CONFIDENTIALITY AND ACCESS AGREEMENT
This letter agreement (this "Agreement") sets forth the terms on which Starwood Hotels & Resorts Worldwide, Inc. ("Starwood"), either directly or through any person or entity for or on its behalf, would be willing to (i) provide certain confidential information to the undersigned (the "Receiving Party") or any person or entity for or on its behalf in connection with their preliminary, non-binding discussions to attempt to agree on terms for Starwood or any of its affiliates to sell the land parcel located at 3387 Lenox Road, Atlanta, Georgia (the "Real Property") and (ii) provide the Receiving Party with access to the Real Property in connection therewith. The Receiving Party hereby agrees as follows:
1. Confidential Information. The term "Confidential Information" means all information (whether in the form of documents, materials, computer media, verbal communication or otherwise, and irrespective of whether marked as or stated to be "confidential") provided by Starwood, either directly or through any person or entity for or on its behalf, to the Receiving Party either directly to any of its shareholders, principals, officers, employees or other persons acting for or on behalf of the Receiving Party, or to any of its investors, lenders, attorneys, advisors, agents, representatives, or any other persons or entities acting for or on behalf of any of the foregoing (such persons are referred to herein as the "Receiving Party Representatives") with respect to the Real Property or the transaction contemplated in this Agreement (whether provided prior to, concurrent with or after the date of this Agreement), including, without limitation, (i) the existence of any discussions or negotiations, (ii) any proposal of business terms, (iii) any due diligence materials, and (iv) the form of Starwood's proposed definitive agreements (including, without limitation, Starwood’s purchase and sale agreement, management agreement and license agreement), in each case to the extent relating to the transaction contemplated in this Agreement, but expressly excluding any such information that (A) is or becomes generally known to the public other than as a result of a breach or default of this Agreement, or (B) is or becomes known to, the Receiving Party through a source having the right to disclose such information to the Receiving Party on a non-confidential basis.
For the purposes of this Agreement, all terms regarding the use, disclosure, return and destruction of Confidential Information shall apply to all (i) copies or other reproductions of any Confidential Information provided to, for or on behalf of the Receiving Party pursuant to this Agreement, and (ii) summaries, abstracts, compilations, analyses and other documents or materials produced by, for or on behalf of the Receiving Party based on any Confidential Information.
2. Use and Disclosure of Confidential Information. The Receiving Party acknowledges that the Confidential Information is a valuable asset of Starwood, has competitive value and is confidential. The Receiving Party shall use the Confidential Information only for the purpose of evaluating the transaction contemplated in this Agreement, and for no other purpose. The Receiving Party shall keep confidential and not disclose to, discuss with or otherwise make available to any person or entity any Confidential Information, except:
(i) to any Receiving Party Representatives on a "need-to-know" basis to the extent the assistance of such Receiving Party Representatives are required to evaluate the transaction contemplated in this Agreement, provided, however, that the Receiving Party shall advise such Receiving Party Representatives of the confidentiality of such Confidential Information pursuant to the terms of this Agreement, and cause such Receiving Party Representatives to maintain the confidentiality of such Confidential Information, or
(ii) to the extent required by court order or applicable law, including, without limitation, the regulations of the stock exchange under which Starwood’s equities are publicly traded (collectively, "Legal Requirements"), provided, however, that the Receiving Party shall advise Starwood immediately upon receiving any demand for disclosure of any Confidential Information pursuant to Legal Requirements, and Starwood shall have the right to attempt to obtain a protective order or agree to an arrangement with the person or entity demanding such Confidential Information to prevent or limit the extent of such disclosure, prior to the Receiving Party's disclosure of such Confidential Information.
3. Public Announcements. Without limiting the generality of the foregoing, the Receiving Party shall not make any public announcement regarding the transaction contemplated in this Agreement or any matter related thereto, without the prior written consent of Starwood, which may be withheld in its sole and absolute discretion, except to the extent the Receiving Party is required to make a public announcement under any Legal Requirements, in which case the Receiving Party shall obtain Starwood's prior written approval regarding the form and substance of any such public announcement.
4. Ownership of Confidential Information. The Receiving Party acknowledges and agrees that Starwood shall retain exclusive ownership of the Confidential Information, and the Receiving Party shall not have any right or interest whatsoever in any of the Confidential Information.
5. Return or Destruction of Confidential Information. If Starwood informs the Receiving Party that it will not proceed with the transaction contemplated in this Agreement, the Receiving Party promptly shall (i) return all tangible Confidential Information specifically requested by Starwood, (ii) destroy all other tangible Confidential Information and confirm in writing that the Receiving Party has completed such destruction in accordance with this Agreement, and (iii) no longer be permitted pursuant to Section 7 of this Agreement to inspect the Real Property.
6. No Representation, Warranty or Guaranty. The Receiving Party acknowledges that Starwood makes no representation, warranty or guaranty whatsoever with respect to any of the Confidential Information, including, without limitation, the accuracy or completeness of any such Confidential Information, and Starwood shall have no liability for the Receiving Party's use of or reliance on any such Confidential Information, except as expressly set forth in any definitive transaction documents entered into between the parties.
7. Site Inspections.
a. Site Inspection. The Receiving Party may perform on reasonable prior notice to and scheduling with Starwood, non-invasive inspections of the Real Property (an "Inspection") as the Receiving Party reasonably deems advisable in accordance with this Section 7(a). The Receiving Party may conduct the Inspection with its or its affiliates’ consultants, contractors, agents and representatives and their respective officers, employees, or other personel (the "Receiving Party’s Inspectors"); provided, however, that the Receiving Party shall cause the Receiving Party’s Inspectors to comply with applicable law and the terms of this Agreement. Starwood shall provide reasonable access to the Real Property for the Receiving Party’s Inspectors to perform the Inspection. Except to the extent Starwood may otherwise agree in writing, the Receiving Party’s Inspectors will not enter the Real Property without accompaniment by a representative of Starwood’s broker (CBRE) or Starwood.
b. Release and Indemnification. The Receiving Party, for itself and the Receiving Party Inspectors, hereby releases Starwood, and its affiliates, and each of their respective shareholders, members, partners, trustees, beneficiaries, directors, officers and employees, and the successors, assigns, legal representatives, heirs and devisees of each of the foregoing (collectively, the "Starwood Parties") for any liability, damage, loss, cost, injury or expense incurred by any Receiving Party Inspector arising from or in connection with any Inspection, except to the extent resulting from Starwood’s gross negligence or willful misconduct. Receiving Party shall defend, indemnify and hold harmless each of the Starwood Parties from and against any claim, liability, damage, loss, cost or expense, including, without limitation, reasonable attorneys fees and expenses and court costs, pertaining to or arising out of any claim asserted by any Receiving Party Inspector in contravention of said release. This Section 7(b) shall survive the expiration or termination of this Agreement.
c. Confidentiality. The Receiving Party acknowledges and agrees that the terms of the confidentiality provisions of this Agreement shall apply to all due diligence activities conducted by the Receiving Party or any person or entity for or on behalf of the Receiving Party, including, without limitation, the Receiving Party’s Inspectors, with respect to the Real Property. This Section 7(c) shall survive the expiration or termination of this Agreement.
8. Survival. This Agreement shall survive for a period of two (2) years after the date of this Agreement.
9. Remedies. The Receiving Party acknowledges and agrees that any breach of this Agreement would cause immediate, substantial and irreparable harm to Starwood and damages at law would not provide an adequate remedy for such breach. Accordingly, the Receiving Party agrees that Starwood shall have the right to obtain injunctive relief (in addition to any other rights or remedies available at law or in equity) for any breach or anticipatory breach of this Agreement by the Receiving Party or any Receiving Party Representatives.
10. Assignment. The Receiving Party shall not assign this Agreement or any interest herein without the prior written consent of Starwood, which may be withheld in its sole and absolute discretion.
11. Successors and Third-Party Beneficiaries. This Agreement shall be binding upon and inure to the benefit of the parties and all of their respective affiliates and related persons and entities, and their respective successors and permitted assigns. This Agreement shall not confer any rights or remedies on any person or entity other than (i) the parties hereto and their respective successors and permitted assigns; and (ii) any Starwood Parties to the extent such Starwood Parties are expressly provided any release or right of defense or indemnification in this Agreement.
12. Governing Law. This Agreement shall be governed by the laws of the State of New York, without giving effect to any principles regarding conflict of laws.
13. Jurisdiction and Venue. Any litigation or other court proceedings with respect to any matter arising from or in connection with this Agreement shall be conducted in the federal or state courts in New York County in the State of New York. The Receiving Party hereby submits to personal jurisdiction and consents to venue in such courts, and waives any defense based on forum non conveniens.
14. Entire Agreement. This Agreement sets forth the entire understanding and agreement by the parties as of the date hereof and supersedes all prior agreements and understandings (oral and written) between the parties with respect to the matters set forth in this Agreement.
15. Waiver of Jury Trial. The Receiving Party waives right to jury trial in any dispute arising under this Agreement.
16. Electronic Transmission. The Receiving Party may deliver executed signature pages to this Agreement by electronic transmission, and the same shall be effective on the same basis as an original executed signature page.
17. Amendments and Waivers. This Agreement shall not be amended or terminated, and no obligation of the Receiving Party shall be waived, except by written instrument signed by Starwood.
18. Not an Offer. The delivery by Starwood of this Agreement by Starwood shall not constitute an offer to sell the Real Property and Starwood shall have no obligation to sell the Real Property to the Receiving Party, unless all parties have executed and delivered the necessary definitive agreements. Notwithstanding anything to the contrary in this Agreement, the execution and delivery of any definitive agreements by Starwood or any of its affiliates shall be subject to the prior written approval of the Board of Directors or duly authorized executive committee of Starwood, which may be withheld in its sole and absolute discretion, notwithstanding the completion of all necessary definitive agreements.
The Receiving Party expressly acknowledges and agrees that this Agreement does not create any obligation whatsoever on Starwood to provide any Confidential Information to any Receiving Party Representatives, continue negotiations with the Receiving Party or enter into the transaction contemplated in this Agreement.
ACCEPTED AND AGREED BY: