Exhibit 6
CONFIDENTIALITY, NON-DISCLOSURE AND NON-CIRCUMVENTION AGREEMENT
THIS CONFIDENTIALITY, NON-DISCLOSURE AND NON-CIRCUMVENTION
AGREEMENT (this "Agreement") is made as of this 27th day of October, 2004 by and
among JD Holdings, LLC ("Originator") and iStar Financial Inc., a Maryland
corporation ("Participant").
WHEREAS, Originator is considering entering into a transaction
with the entity set forth on Exhibit I attached hereto ("Target") (whether
structured as a purchase of assets, a purchase of securities, a merger,
consolidation, combination, recapitalization, refinancing, restructuring,
reorganization or otherwise, a "Transaction"); and
Participant may participate with Originator in the due
diligence review and negotiations regarding the Transaction, in each case on
such terms and in such capacity as may be mutually agreeable to Originator and
Participant (the "Participation");
WHEREAS, Originator or its Representative may execute a
confidentiality agreement with Target (a "Confidentiality Agreement") pursuant
to which Originator may agree to maintain the confidentiality of certain
information and to refrain from certain activities in respect of Target's
employees, and including for purposes herein, without limitation, all financial
analysis and models relating to various post-Transaction structures and
including all information and materials in respect of Originator which would
constitute confidential information if Originator were substituted for Target
throughout the Confidentiality Agreement and Participant were substituted for
Originator) (such information referred to herein as "Evaluation Material"); and
WHEREAS, in connection with the Participation, Participant may
have access to the Evaluation Material.
NOW, THEREFORE, for good and valuable consideration
(including, without limitation, Originator's making available the Evaluation
Material to Participant and Originator's engaging in discussions with
Participant regarding the Participation), the receipt and sufficiency of which
is hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. The term "Representatives" means each party's subsidiaries
and such party's and its subsidiaries' directors, officers, partners, employees,
agents and advisors (including, without limitation, financial advisors, legal
counsel and accountants), rating agencies, potential participants, insurers and
other companies that provide risk-management services with respect to risks
relative to an actual or potential investment in the Transaction, and the term
"person" shall include any corporation, company, partnership, limited liability
company, trust, governmental entity or individual.
2. (a) Except as provided herein, Participant agrees that
Participant will (i) use the Evaluation Material solely for the purposes of the
Participation, (ii) not, directly or indirectly, use, disseminate, disclose,
discuss or reveal any Evaluation Material, and (iii) otherwise treat and
maintain in full confidence all Evaluation Material.
(b) Except to the extent Participant may disclose
Evaluation Material hereunder, Participant agrees that Participant will not
disclose to any person (including other possible bidders for Target and
employees, customers and suppliers of Target) that the Evaluation Material has
been made available to Participant, that Participant has inspected any portion
thereof, the fact that Originator is considering a possible Transaction, that
discussions are or may take place regarding a possible Transaction, that
Originator and Participant are considering or discussing Participant's possible
participation in a Transaction, or any other information regarding a possible
Transaction, including the status thereof.
(c) Neither Participant nor its Representatives shall
initiate any communications with any Representative of Target concerning the
Evaluation Material without Originator's prior written consent.
(d) "Evaluation Material" shall not include any information
which Participant can demonstrate (i) was or becomes available to the public
other than as a result of a disclosure by Participant or its Representatives in
breach of this Agreement, or (ii) was or becomes available to Participant or its
Representatives on a nonconfidential basis from a source other than Originator
or its Representatives or Target or its representatives (provided that such
source is not actually known by participant to be bound by a confidentiality
obligation or fiduciary obligation prohibiting or otherwise restricting the
disclosure of such information) or (iii) is required pursuant to (x) applicable
law or legal, administrative or judicial process, (y) at the request of any
regulatory or supervisory authority having jurisdiction over Participant, or (z)
the rules of any stock exchange or trading system on which Participant's
securities or the securities of any of Participant's affiliates may be listed or
traded.
(e) Notwithstanding anything contained herein, Participant
may disclose Evaluation Material to its Representatives in order to permit
Participant to evaluate its participation in a possible Transaction and to whom
disclosure is made for the purposes of such evaluation; provided that prior to
making any such disclosure, Participant shall apprise its Representatives of the
confidential nature of such matters and the obligations of Participant
hereunder. Participant shall in any event be liable to Originator for any
actions by such persons which would constitute a breach of this Agreement if
taken by Participant.
(f) In the event that Participant or any Representative of
Participant is requested or becomes legally compelled (by oral questions,
interrogatories; requests for information or documents, subpoena, civil
investigative demands or similar process) to disclose any of the Evaluation
Material or take any other action prohibited by this Agreement, Participant
shall, to the extent permitted by law and to the extent practicable, provide
Originator with prompt written notice thereof (in reasonable detail) so that
Originator may seek a protective order or other appropriate remedy. In the event
that such protective order or other remedy is not obtained, Participant shall
furnish only that portion of the Evaluation Material or take only such action as
is legally required by law or binding order.
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3. In the event that a Transaction is not consummated and upon
originator's written request, or otherwise upon Originator's written request,
all Evaluation Material supplied by Originator, Target or their respective
Representatives (and all copies, extracts or other reproductions in whole or in
part thereof, whether prepared by Originator or any of its Representatives or
any other person) shall be returned to Originator or, with the Originator's
written permission, destroyed and not retained by Participant or its
Representatives in any form or for any reason except as required by law or
regulations. This provision applies to all documents, memoranda, notes, computer
programs and data bases and other writings whatsoever prepared by Participant or
its Representatives based on, containing or otherwise reflecting the Evaluation
Material.
4. To the extent the Evaluation Material includes or otherwise
involves intellectual property, technical data, technology, processes,
applications for patents, trade secrets or know-how, disclosure thereof to
Participant or its Representatives by or on behalf of Originator, Target or any
of their respective Representatives shall not be construed as the grant of any
license or of any right to use the same, except for the sole purpose of
evaluating and completing a potential Transaction.
5. Participant hereby covenants and agrees that for a period
of eighteen months following the date hereof, it shall not, without the prior
written consent of Originator (which will not be unreasonably withheld)
directly:
(a) enter into negotiations, provide any form of financial
assistance (including, without limitation, debt or equity investments) or
consummate any transaction involving Target (whether structured as an
investment, a purchase or assets, a purchase of debt or equity interests
(including, without limitation, options, warrants or other securities or
instruments convertible into or exercisable or exchangeable for debt or equity
interests or equity appreciation rights, phantom equity or similar instruments
or rights containing equity-like features), a merger, consolidation,
combination, recapitalization, refinancing, restructuring, reorganization or
otherwise) without the prior express written consent of Originator; or
(b) initiate discussions with respect to the prospective
employment of, or hire for employment, any employees of Target or any subsidiary
thereof.
6. Participant acknowledges and agrees that neither Originator
nor any Representative of Originator makes any representation or warranty,
express or implied, as to the accuracy or completeness of the Evaluation
Material. Any representations or warranties with respect to Originator, Target
or otherwise made in connection with the consummation of a potential Transaction
shall be contained only in a definitive agreement, if any, to which Participant
and Originator are parties. Originator and its Representatives expect that
Participant shall conduct its own independent investigation and analysis of
Target and a potential Transaction, and Participant agrees that neither
Originator nor any of its Representatives shall have any liability to
Participant or its Representatives resulting from the use of the Evaluation
Material supplied by Originator, Target or any of its Representatives.
7. Nothing herein shall be deemed to obligate Participant to
enter into any transaction or arrangement with Originator or Target, and
Originator shall be entitled to
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terminate the Participation and to demand the return or destruction of all
Evaluation Materials by Participant at any time without limiting Participant's
obligations hereunder.
8. Participant acknowledges and affirms that money damages
would not be a sufficient remedy for any breach of this Agreement by it and that
Originator shall be entitled to seek equitable relief, including injunction and
specific performance, as a remedy for any such breach. Such remedies shall not
be deemed to be the exclusive remedies for a breach of this Agreement, but shall
be in addition to all other remedies available at law or in equity. In the event
of litigation relating to this Agreement, the non-prevailing party shall be
liable for and shall pay to the prevailing party the reasonable legal fees and
expenses and court costs incurred by the prevailing party in connection with any
such litigation, including any appeal therefrom.
9. If any term, provision, covenant or restriction contained
in this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be deemed affected, impaired or invalidated.
10. This Agreement may not be amended or waived, in whole or
in part, except with the written consent of Originator and Participant. It is
understood and agreed that no failure or delay by Originator in exercising any
right, power or privilege hereunder shall operate as a waiver hereof, nor shall
any single or partial exercise thereof preclude any other or future exercise
thereof or the exercise of any other right, power or privilege.
11. This Agreement shall be governed by and construed in
accordance with the internal laws of New York State.
12. The language used herein shall be deemed to be the
language mutually chosen by the parties hereto to express their intent and
understanding, and no doctrine of construction shall be applied against either
party.
13. This Agreement may be executed in two counterparts, each
of which shall be deemed to be an original and both of which together shall be
deemed to constitute one fully-executed Agreement.
14. This agreement shall expire upon the earlier of the date
the Transaction is consummated or eighteen months from the date hereof.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
Originator:
JD Holdings, LLC
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------
Its: Managing Member
Participant:
iStar Financial Inc., a Maryland corporation
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Its: Executive Vice President
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Exhibit I
Name of Entity
Xxxx X. Xxxxxxx Hotels
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