(collectively, the “Disclosing Party”)
RE: Severn Lodge, 116 Gloucester Trail, Port Severn, ON, Canada, L0K 1S0 (the “Property” or “Properties”)
The Disclosing
Party, through itself or through its affiliates, agents, representatives, employees,
officers or clients, is prepared to provide the undersigned (“us” or “our”)
with certain confidential and non-public information to assist us in evaluating
our interest in the potential transaction in relation to the Property or
Properties (the “Transaction”).
All information provided to us or to our affiliates or
any of our or our affiliate’s directors, officers, employees, agents or
advisors (collectively our “Representatives”) in connection with the Transaction,
whether oral, in writing or in any electronic form, as well as all notes,
extracts, analyses, compilations, data, reports or other documents or records prepared
by us is referred to in this confidentiality agreement (the “Agreement”)
as the “Confidential Information”. Confidential Information does not
include information or material of any nature, whether or not obtained pursuant
to legal process or court order: (i) which was lawfully in our possession prior
to disclosure of such information by the Disclosing Party; (ii) which was, or
at any time becomes, available in the public domain other than through any act
or omission by us or our Representatives; (iii) which is documented us in
writing as having been developed by us independently; or (iv) which is
furnished to us by a third party having a right to do so.
In consideration of the disclosure of the
Confidential Information, the parties
hereby agree as follows:
1.
Nondisclosure of Confidential
Information. We agree that all
Confidential Information shall be kept strictly confidential, shall not be used
by us, directly or indirectly, for any purpose other than for purposes of evaluating
or dealing with the Transaction. Furthermore, we shall not disclose to any
person that the Confidential Information exists, or that discussions are taking
or have taken place with respect to a possible Transaction.
We may
transmit the Confidential Information to our Representatives but only to the
extent that they need to know the Confidential Information for the purposes of
evaluating or dealing with the Transaction and if our Representatives agree to
be bound to the terms set out in this Agreement in the same way that we are. We
agree to be responsible for any breach of the provisions of this Agreement by us
or our Representatives and agree to indemnify the Disclosing Party and
any of its affiliates for any such breach by us or our Representatives.
2.
Compelled Disclosure. In the event that we or our Representatives become
compelled by law or by any legal proceeding to disclose any of the Confidential
Information, we will provide the Disclosing Party with prompt notice thereof.
We further agree to fully cooperate with and assist the Disclosing Party and/or
any of its affiliates, as the Disclosing Party and/or any of its affiliates may
deem necessary, to respond to any such request or demand for disclosure.
3.
Termination of discussion;
Return of Confidential Information. If
we determine that we do not wish to proceed with the Transaction, or at any
time upon the request of the Disclosing Party for any reason, we will promptly deliver
or, at the Disclosing Party’s option, destroy all the Confidential Information (and
all copies, extract or other reproductions thereof) whether in paper,
electronic, or other form or media. Notwithstanding the above, we and our
Representatives will continue to be bound by obligations of confidentiality and
other obligations hereunder.
4.
Remedies. We acknowledge that the Confidential Information is
material to the interests and business affairs of the Disclosing Party, its affiliates
and its clients, and any breach of this Agreement may result in significant
irreparable harm to the Disclosing Party, its affiliates and/or its clients. We
understand and agree that monetary damages may not be a sufficient remedy for
any breach of this Agreement by us or our Representatives and that the Disclosing
Party and its affiliates shall be entitled to equitable relief, including
injunction and specific performance, without proof of damages, as a remedy for
any breach, threatened breach or anticipatory breach. Such remedies shall not
be deemed to be the exclusive remedies for any such breach but shall be in
addition to all other remedies available at law or equity to the Disclosing
Party. If a court of competent jurisdiction determines that we or our Representatives
have breached this Agreement, we shall be liable and pay to the Disclosing Party
and/or any of its affiliates and their respective shareholders, directors,
officers, managers, employees and other representatives, as applicable, the
reasonable legal and/or consultant fees and disbursements incurred by the Disclosing
Party in connection with any litigation arising hereof, including any appeals.
5.
Term. This Agreement shall remain in force for a term of
two (2) years from the date hereof.
6.
Contact. All
communications regarding the Property, Properties or the Transaction or any
transaction, the Confidential Information, requests for additional information,
requests for facility tours or management meetings, and discussions or
questions regarding procedures will be directed exclusively to the Disclosing Party.
7.
Completeness and Accuracy of Confidential
Information; No Title or Interest.
Neither the Disclosing Party nor any
of its affiliates have made or will make any representation or warranty,
express or implied, as to the accuracy or completeness of the Confidential
Information. We agree that none of the Disclosing Party, its affiliates, or
any of their respective directors, officers, employees or agents will have any
liability to us or to our Representatives relating to or resulting from the use
of the Confidential Information. We agree that all Confidential Information
disclosed to us remains the property of the Disclosing Party and we shall
acquire no right, title or interest to any such Confidential Information.
8.
Agency. The undersigned hereby represents that: (i) it is a
principal and not an agent on behalf of any other party in conjunction with the
Transaction (except advisors working on behalf of their fund clients); and,
(ii) acknowledges that any Representatives retained in connection with the
consideration or completion of the Transaction will be representing the undersigned’s
interests and all costs related to their service will be paid by the undersigned.
9. Effect
of Agreement. No agreement providing for any Transaction currently
exists and none will be deemed to exist between the parties unless and until a
definitive written agreement with respect to a Transaction is negotiated,
executed, and delivered.
10.
Governing Law and Jurisdiction. This Agreement shall be governed and construed in
accordance with the laws of the Province of Ontario.
11.
Counterparts/Electronic
Signatures. This Agreement
may be executed in one or more counterparts, each of which will be deemed to be
an original copy and all of which, when taken together, will be deemed to constitute
one and the same agreement and will be effective when counterparts have been
signed by each of the parties and delivered to the other parties. A manual
signature whose image shall have been transmitted electronically will
constitute an original signature for all purposes. The delivery of copies of this Agreement,
including executed signature pages, by electronic transmission will constitute
effective delivery of this Agreement for all purpose.
12.
Severability. If any provision of
this Agreement is held invalid or unenforceable by any court of competent
jurisdiction, the other provisions of this Agreement will remain in full force and
effect.
13.
Entire
Agreement.
This Agreement supersedes all prior agreements, whether written or oral, between
the parties with respect to its subject matter and constitutes a complete and
exclusive statement of the terms of the agreement between the parties with
respect to its subject matter.
14.
Modification. This Agreement may
only be amended, supplemented, or otherwise modified by a writing executed by
the parties.