CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
These Confidentiality and Non-Disclosure Rules regulate the manner in which Ken Fennell and Brendan O’Reilly of Interpath Advisory as Joint Receivers over the assets of Goldstein Property ICAV (acting solely in respect of its sub-fund Goldstein Property Fund II) (In Receivership) (the “Joint Receivers”) grants potential bidders and their advisors access to the virtual data room (the “VDR”) containing information and documents (the “Information”) relating to Goldstein Property ICAV (acting solely in respect of its sub-fund Goldstein Property Fund II) (In Receivership) (the “Company”) and the potential purchase of the following properties:
(i) Ardmore Facility, Bray IDA Business Park, Bray, Co. Wicklow, A98 F7D7;
(ii) Unit D2A & B Blessington Industrial Estate, Blessington, Co. Wicklow, W91 CKF4;
(iii) Unit D3 Blessington Industrial Estate, Blessington, Co. Wicklow, W91 DW02;
(iv) Salcombe House, Robinhood Industrial Estate, Dublin 22, D22 WP11;
(v) Unit B2 Riverview Business Park, Nangor Road, Dublin 12, D12 TN99;
(vi) Unit 10 Rosemount Business Park, Dublin 11;
(vii) Units 1-4 The Stables, Old Quarry Business Park, Dublin 15, D15 EE77;
(viii) Unit 662 Greenogue Business Park, Rathcoole, Co. Dublin, D24 HWX2;
(ix) Honda Distributors Ireland HQ, M50 Business Park, Dublin 12, D12 KP90;
(x) Unit 8 The Business Centre, Kilshane Avenue, Northwest Business Park, Dublin 15, D15 FH5W; and
(xi) Unit 1A Airside Enterprise Centre, Airside Business Park, Swords, Co. Dublin, K67 V3V9
(the “Proposed Transaction”). The VDR is hosted and managed by William Harvey Ltd (“HARVEY”) on behalf of the Joint Receivers.
By way of consideration for their use of the VDR, potential bidders shall agree to be bound by this Confidentiality & Non-Disclosure Agreement (“NDA”) and shall procure that each of their officers, employees, agents and advisors accessing the VDR shall comply with and be bound by this NDA.
The Information is provided to you for information purposes only in connection with your consideration of the Proposed Transaction and for no other purpose.
The conditions of this NDA shall apply to each and every occasion on which the VDR is accessed by, or on behalf of, any potential bidder or their officers, employees, agents and advisors (“Potential Bidder”) and each Potential Bidder or viewer shall constitute an authorised user (“Authorised User”).
To the extent that any Potential Bidder has agreed a separate NDA with the Joint Receivers in relation to access to the VDR for the Proposed Transaction (the “Alternate NDA”), then the terms of that NDA will supersede and replace the confirmations provided by clicking through this confirmation page. The terms of the Alternate NDA will govern that Potential Bidders access to the VDR and the Information and shall apply to each and every occasion on which the VDR is accessed by, or on behalf of, any such Potential Bidder.
1. Confidentiality
1.1. Each Authorised User of the VDR agrees that the Information made available in the VDR constitutes confidential information and unconditionally and irrevocably agrees and undertakes that it will treat all Information as secret and confidential and not disclose it to any person (save to the extent necessary in the case of disclosure to professional advisors, and prior to making such disclosure, that any person to whom such disclosure is to be made shall be bound by this confidentiality obligation) and ensure that it is protected with security measures and a degree of care that would apply to its own confidential information; and use the Information only for appraisal, consideration, evaluation, negotiation or advancement by the Potential Bidder of the Proposed Transaction and not for any other purpose (including, without limitation, so as to procure a commercial or competitive advantage over the Joint Receivers). The Information (including additional documents added to the VDR from time to time) and copies of them will be supplied subject to the terms of this NDA.
1.2. Each Authorised User of the VDR will use best endeavours to procure that its professional advisor and representative(s) will, whenever we so request, promptly (i) return to us all documents and other records of the Information or any of it in any form, and (ii) destroy all analysis, notes, reports or extracts derived from the Information, and (iii) take all necessary steps to expunge to the extent technologically practicable all Information from any computer, word processor or other device containing Information (or where such Information was provided in hardcopy to destroy or return such Information).
1.3. Each Potential Bidder confirms that it has read the NDA and understands the restrictions on the use and disclosure of the Information and its obligations relating to the return, destruction and deletion (as the case may be) of the Information.
2. No Offer, Invitation, Representation or Warranty
2.1. In providing the Information, neither the Joint Receivers nor any of its directors, officers, employees, agents, advisors or shareholders shall:
2.1.1. be making an offer or invitation to purchase any shares or assets or to enter into the Proposed Transaction and the Information shall not form the basis of any contract to enter into the Proposed Transaction; or
2.1.2. be giving investment advice and the Potential Bidder should take appropriate financial and other professional advice and rely on its own investigations in respect of the Proposed Transaction.
2.2. Neither the Joint Receivers nor any of its advisors shall:
2.2.1. Owe or accept any duty, responsibility or liability whatsoever (including, without limitation, in negligence) for, nor make any representation or warranty (whether express or implied) as to, the adequacy, accuracy, reliability or completeness of the Information or as to whether any assumptions on which the Information is based were reasonably made; and
2.2.2. Not be liable in respect of any losses (of whatever nature) costs, claims, demands, expenses (including without limitation, legal expenses) and/or other liabilities incurred or suffered in connection with the Information.
2.3. Potential Bidders agree that they will not;
2.3.1. Rely on the Information and that they will not bring any action, proceedings or claim of any sort against the Joint Receivers or HARVEY or any of its advisors where such action, proceeding or claim in any way relates to, concerns or in concerned with the provision or use of any report or any information contained in or which reflects or is generated from the Information; and
2.3.2. Neither the Joint Receivers or HARVEY nor any of its advisors has any duty, responsibility or obligation to update the Information or to provide you with any subsequent versions of the Information (whether in draft or final form) or any other information or explanations (whether orally or in writing) in relation to the Information.
2.4. The Information is not and shall not be a complete description of all matters which would be material for consideration in connection with the Proposed Transaction. It has not been verified by the Joint Receivers, its advisors or any other person.
3. Draft Title & Lease Summaries
3.1. By accessing this VDR and the draft legal title summary and draft lease summaries prepared by Dillon Eustace LLP (“DE”) for the Joint Receivers in connection with the Proposed Transaction (the “Reports”), you acknowledge and agree that:
3.1.1. The Reports are provided to you strictly on a non-reliance basis and for assistance only in connection with your consideration of the Proposed Transaction and for no other purpose. Accordingly, you may not use it for any other purpose. They are not a legal statement or interpretation of the title and shall not be regarded as the giving of legal advice by DE and each Potential Bidder is responsible for carrying out their out due diligence and obtaining their own legal advice;
3.2. the Reports are provided to you on the strict understanding that neither DE or the Joint Receivers nor any person from DE or the Joint Receivers shall:
3.2.1. owe, assume or accept any duty, responsibility or liability whatsoever (including, without limitation, in negligence) to you or any person to whom you provide the Reports; and
3.2.2. shall be liable in respect of any losses (of whatever nature), costs, claims, demands, expenses (including, without limitation, legal expenses) and/or other liabilities incurred or suffered by you or any such person, in connection with the Reports (including, without limitation, any information contained in, omitted from or which reflects or is generated from the Reports, or the provision or use of the Reports or such information);
3.2.3. you will not rely on the Reports and you will not bring any action, proceedings or claim of any sort against DE or the Joint Receivers and/or any person from DE or the Joint Receivers or such action, proceeding or claim in any way relates to concerns or is connected with the provision or use of the Reports or any information contained in or which reflects or is generated from the Reports;
3.2.4. neither DE or the Joint Receivers nor any person from DE or the Joint Receivers has any duty, responsibility, or obligation to update the Reports or to provide you with any subsequent versions of the Reports (whether in draft or final form) or any other information or explanations (whether orally or in writing) in relation to the Reports or any of our due diligence findings (“Further Due Diligence Report”). If, however, any such Further Due Diligence Report is provided to you, you agree and acknowledge that these terms and conditions shall apply to such Further Due Diligence Report;
3.2.5. neither DE or the Joint Receivers nor any person from DE or the Joint Receivers gives any warranty, representation or assurance (express or implied) as to the fairness, accuracy or completeness of the Reports or the information contained in them; and
3.3. you shall procure that each Authorised User to whom you make the Report available complies with these terms and you shall be responsible for any non- compliance by any such Authorised User with such terms.
4. Contents of the VDR
4.1. Further materials and documentation may be added to the VDR from time to time and it is the responsibility of the Potential Bidder and/or its advisors to check the VDR for amendments.
4.2. the Joint Receivers reserves the right to withhold any Information from the VDR at any time for reasons of confidentiality, commercial sensitivity, or any other reason at the Joint Receivers’ sole discretion.
4.3. Neither the Joint Receivers nor its advisors undertake any obligation to provide the Potential Bidder and its advisors with additional information or to update or correct any inaccuracies which may become apparent in the Information.
4.4. Authorised Users shall not post any information or materials to the VDR or create links from the VDR to any information or material that infringes or may infringe any third party’s intellectual property rights. the Joint Receivers may procure the removal of information or material which it suspects may infringe any such rights and indefinitely prohibit the access of the Authorised User who has posted such information or material.
4.5. Information within the VDR may be watermarked, redacted or otherwise altered by the Joint Receivers in order to protect its confidentiality, commercial sensitivity, contents that contain personal information or for any other reason that the Joint Receivers consider appropriate.
4.6. No Information may be defaced, marked, altered, modified or varied in any way.
4.7. Authorised Users shall procure that they, shall keep the Information safe in a secure place and properly protected against theft, damage, loss and unauthorised access (including, but not limited to, access by electronic means) and, without prejudice to the foregoing, shall procure that they, shall take all reasonable steps and exercise reasonable skill and care to keep the same confidential and to exercise in relation to Information no lesser security measures and degree of care as they would apply to their own such confidential information.
5. Downloading and Printing
5.1. Authorised User will not attempt to download, scan, copy, print or otherwise capture in any manner any of the Information without the consent of the Joint Receivers via the VDR which may be withheld in its absolute discretion) or unless such Information is made available as downloadable or printable. Authorised Users will not attempt to circumvent any of the security features in the VDR.
5.2. In the event that any Authorised User succeeds in downloading, scanning, copying, printing or otherwise capturing in any manner any of the Information without such consent, they shall immediately refrain from such action and immediately notify the Joint Receivers or HARVEY.
6. Remedies
6.1. Without prejudice to any rights or remedies which the Joint Receivers may have, each Potential Bidder acknowledges and agrees that damages alone would not be an adequate remedy for any breach by its Authorised Users of the provisions of these Rules and that accordingly, The Joint Receivers and its advisors shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of these Rules and no proof of special damages shall be necessary to enforce these Rules.
7. Injunction
7.1. The Receiving Party/Authorised User agrees and acknowledges the Information received from the Joint Receivers via the VDR is confidential and proprietary to the Joint Receivers, a breach of any of the provisions of this agreement could injure the Joint Receivers irreparably and, therefore, the Joint Receivers shall have the right, in addition to all other remedies available at law or enquiry, to seek injunctive relief, including costs, expenses and legal fees.
8. Term
8.1. The Authorised User obligations shall terminate five (5) years from the date of this agreement.
9. Waiver
9.1. The rights of the Joint Receivers in respect of a breach of these Rules shall not be affected by the giving of time or other indulgence to any person nor by any other cause except a specific waiver in writing, which may be subject to any condition which it, in its absolute discretion, thinks fit. Such waiver shall not prejudice or affect any remaining rights or remedies of the Joint Receivers provided by law or by these Rules. Unless otherwise expressly stated, any waiver shall be effective only in respect of the particular matter and purpose for which it is given.
10. Amendment to these Rules
10.1. the Joint Receivers and its advisors shall be entitled at any time to amend and modify these Rules by giving notice to Potential Bidders.
11. Non – Assignment
11.1. The rights and obligations under this Agreement may not be assigned or delegated.
12. No Personal Liability
12.1. The Potential Bidders agree and acknowledge that:
12.1.1. the Information is being provided by Ken Fennell and Brendan O’Reilly of Interpath Advisory solely in their capacity as receivers of the assets of the Company; and
12.1.2. none of the partners or employees of Interpath Advisory shall have any personal liability under or in connection with this NDA, the VDR Agreement or any matter relating to the Proposed Transaction.
13. Jurisdiction & Governing Law
13.1 You agree that this confirmation and use of the VDR shall be governed by and construed in accordance with the laws of Ireland. The courts of Ireland shall have exclusive jurisdiction to settle any dispute arising out of or in connection with your use of the VDR in line with this confirmation. Any proceeding, suit or action arising out of or in connection herewith shall therefore be brought in the courts of Ireland.
By clicking on the "Accept" button below, you acknowledge and confirm to the Joint Receivers that:
1. you have read, understand and agree to comply with, and be bound by, both the NDA and the HARVEY Disclaimer as set out below;
HARVEY Disclaimer
Particulars are set out as a general outline for potential purchasers and whilst every care has been taken in their preparation, they do not constitute an invitation to treat, or an offer or contract of any kind. All descriptions, floor areas, site areas, dimensions, plans, maps, computer generated images, references to condition, permissions or licences of use or occupation, access and other details, are for guidance purposes only and may be subject to change. The particulars and information are given in good faith and are believed to be correct, but any intending purchaser should not rely upon them as statements or representations of fact and is specifically advised to satisfy themselves as to their accuracy by carrying out their own due diligence at their own expense. No principal or employee of HARVEY has any authority to make or give any representation or warranty in respect of any property and no liability will be accepted in respect of any loss suffered by any intending purchaser or third party arising out of information contained on these web pages, brochures or given verbally. Prices and/or annual rents are quoted exclusive of VAT and any other applicable taxes that the purchaser will be liable for and the purchaser must satisfy themselves independently as to the incidence of VAT, stamp duty and all additional outgoings or associated acquisition costs in respect of any transaction.
and
2. you are an Authorised User of the VDR to whom log-in details have been issued by or on behalf of the Joint Receivers (via the VDR) and that you have not received the log-in details, user-ID or password by unauthorised means.
