Exhibit 10.31
AMENDED AND RESTATED
NONCOMPETITION AGREEMENT
THIS AMENDED AND RESTATED NONCOMPETITION AGREEMENT ("Agreement") is
made and entered into as of __________, 1998 by and among HOST MARRIOTT
CORPORATION, a Delaware corporation ("Host Marriott"), CRESTLINE CAPITAL
CORPORATION, a Maryland corporation ("Crestline"), FORUM GROUP, INC., an Indiana
corporation ("FGI"), MARRIOTT SENIOR LIVING SERVICES, INC., a Delaware
corporation ("MSLS"), and MARRIOTT INTERNATIONAL, INC., a Delaware corporation
("MI").
RECITALS
WHEREAS, Host Marriott, FGI, MSLS and MI entered into that certain
Noncompetition Agreement dated as of June 21, 1997 (the "Original Noncompetition
Agreement") in connection with the Stock Purchase Agreement dated as of June 21,
1997 (the "Stock Purchase Agreement") by and between Host and MSLS; and
WHEREAS, it was the intent of the parties that from and after the
closing under the Stock Purchase Agreement (x) MSLS would continue in its
capacity as Operator of the Senior Living Business previously conducted by FGI
and its Subsidiaries and Affiliates and (y) except as otherwise specifically set
forth in this Agreement, Host Marriott and FGI would act solely in their
capacities as Investors in the Senior Living Facilities owned by FGI and its
Subsidiaries and Affiliates and other Senior Living Facilities that Host
Marriott and FGI might acquire in the future; and
WHEREAS, MSLS and MI desired to grant Host Marriott certain rights to
participate in the development of certain retirement communities and to acquire
certain other retirement communities within limited geographic areas adjacent to
the Senior Living Facilities owned by FGI and its Subsidiaries and Affiliates on
the Closing Date; and
WHEREAS, Host Marriott has determined that it will restructure its
business operations so that as to qualify as a real estate investment trust for
federal income tax purposes, and, in connection therewith, on or about December
29, 1998, (i) Host Marriott will distribute approximately 82% of the outstanding
common stock of Crestline to or on behalf of the stockholders of Host Marriott
(the "Crestline Distribution") and will contribute the remaining 18% of such
Crestline common stock to Host Marriott, L.P. for delivery to The Blackstone
Group and certain affiliated entities thereof (or for return to Crestline if not
delivered to The Blackstone Group and its affiliated entities) and (ii) Host
Marriott will merge (the "Merger") into HMC Merger Corporation, a Maryland
corporation ("Host REIT"); and
WHEREAS, following the Crestline Distribution (i) FGI will remain a
subsidiary of Crestline and (ii) Crestline will conduct those certain activities
as an Investor in Senior Living Facilities conducted by Host Marriott prior to
the restructuring; and
WHEREAS, as a result of such restructuring, Crestline is obligated to
become a party to this Agreement, as contemplated by Section 3.4 of the Original
Noncompetition Agreement; and
WHEREAS, the parties hereto desire to amend and restate the Original
Noncompetition Agreement to add Crestline as a party to the Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and in the Stock Purchase Agreement and in the
related agreements entered into pursuant to or related to the Stock Purchase
Agreement, and for other valuable consideration, the receipt and sufficiency of
which are hereby mutually acknowledged, the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
The following terms when used herein shall have the meaning set forth
below:
"AFFILIATES" means, with respect to any Person at any time, any other
Person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such Person at such time. For purposes of this
definition "control", when used with respect to any Person, means the power to
direct the management and policies of such Person, directly or indirectly,
through the ownership of voting securities, by contract, or otherwise.
Notwithstanding the foregoing, from and after the Closing Date, (x) "Affiliates"
of Host Marriott do not include MI, MSLS, Host Marriott Services Corporation,
Crestline, FGI, any of their respective Subsidiaries or any of their officers,
directors or stockholders (in such capacity only), (y) "Affiliates" of MI and
MSLS do not include Host Marriott, Crestline, FGI, Host Marriott Services
Corporation or any of their respective Subsidiaries or any of their officers,
directors or stockholders (in such capacity only), and (z) "Affiliates" of
Crestline and FGI do not include Host Marriott, Host Marriott Services
Corporation, MI, MSLS or any of their respective Subsidiaries or any of their
officers, directors or stockholders (in such capacity only).
"CLOSING DATE" means June 21, 1997.
"CRESTLINE" has the meaning set forth in the first paragraph of this
Agreement.
"CRESTLINE DISTRIBUTION DATE" means the effective date of the Crestline
Distribution.
"FGI" has the meaning set forth in the first paragraph of this Agreement.
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"FORUM OPERATING AGREEMENTS" has the meaning set forth in Section 3.1
hereof.
"HOST MARRIOTT" has the meaning set forth in the first paragraph of this
Agreement.
"INVESTOR" means, with respect to any facility or property, any Person who,
directly or indirectly, owns, has an equity interest in or lends money to or
otherwise finances, such facility or property.
"MI" has the meaning set forth in the first paragraph of this Agreement.
"MSLS" has the meaning set forth in the first paragraph of this Agreement.
"OPERATOR" means, with respect to any facility or property, any Person who,
in whatever capacity, operates, manages, franchises (as a franchisor), or in any
other manner supervises the day-to-day conduct of, such facility or property.
"PERSON" means any person, firm, corporation, limited liability company,
general or limited partnership, limited liability partnership, association or
other entity.
"SENIOR LIVING BUSINESS" means (i) the business of operating, managing or
franchising (as a franchisor), or in any other manner supervising the day-to-day
conduct of, any Senior Living Facility (other than typical monitoring of an
Operator of a Senior Living Facility done by an Investor in such Senior Living
Facility) and (ii) operational or management services with respect to health
care, therapy, home health care, assisted living, nursing and related medical,
residential, supportive and personal care services conducted at or related to
any Senior Living Facility; provided that "SENIOR LIVING BUSINESS" does not
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include activities involving services that are ancillary to a Senior Living
Facility (e.g. operation of a gift shop business), so long as such activities do
not involve either (x) conduct as an Operator of any such Senior Living
Facilities or (y) any of the activities described in clause (ii) above.
"SENIOR LIVING FACILITY" means any limited service or full service
retirement or senior living service facilities or communities, including
assisted living facilities, nursing homes, congregate care facilities and other
health care facilities providing residential, recreational, personal care, home
care, assisted living, nursing care, other health care and like services, in any
combination, to the elderly.
"SUBSIDIARIES" means, with respect to any Person at any time, corporations
or other entities which are more than fifty percent (50%) owned, directly or
indirectly, by such Person at such time, and partnerships in which such Person
or a subsidiary thereof is a general partner at such time.
"TERM" means that period commencing on the Closing Date and terminating on
the tenth anniversary of the Closing Date, provided, however, that, with respect
to Crestline and FGI,
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"Term" shall mean that period commencing on the Closing Date and terminating on
the thirteenth anniversary of the Closing Date.
"TERRITORY" shall mean the continental United States.
"TRANSFER" shall mean the sale, conveyance, disposal of or other transfer
of ownership, title or other interest, by operation of law or otherwise.
ARTICLE TWO
AGREEMENTS
2.1 AGREEMENT NOT TO COMPETE. Except as otherwise provided in this
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Article II, Host Marriott, Crestline and FGI shall not, nor shall Host Marriott,
Crestline or FGI permit any of their Subsidiaries or Affiliates to:
(i) during the Term, directly or indirectly, within the Territory (a)
compete in the Senior Living Business by conducting, participating or
engaging in, or bidding for or otherwise pursuing, whether as a principal,
sole proprietor, partner, financing source, equity holder or agent of, or
consultant to, or manager or operator for, another Person, any Senior
Living Business, or (b) have any ownership interest whatsoever in, or lend
money to or otherwise finance any Person that conducts, participates or
engages in, or bids for or otherwise pursues any Senior Living Business; or
(ii) except as expressly permitted by the Stock Purchase Agreement or
by a Forum Operating Agreement, use or permit any Subsidiary or Affiliate
to use, either as an Investor or as an Operator, the name "Forum" (or any
variant thereof) with respect to any Senior Living Facility or in any other
capacity in the Senior Living Business, including using their corporate
names, designs or logos (including the name "Forum") with respect to any
such Senior Living Facility (including identifying a geographic location
with respect to any such Senior Living Facility).
2.2 AGREEMENT NOT TO TRANSFER. During the Term, Host Marriott,
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Crestline and FGI shall not, nor shall Host Marriott, Crestline or FGI permit
any of their Subsidiaries or Affiliates to, enter into (or agree to enter into)
any transaction or series of transactions that would upon consummation result,
directly or indirectly, in the Transfer of a controlling interest in ten (10) or
more Senior Living Facilities set forth on Schedule 1 hereto to the same Person
or affiliated group of Persons, unless contemporaneously therewith such
Person(s) execute and deliver an agreement binding such Person or Persons during
the remainder of the Term, to the restrictions in this Article II applicable to
Host Marriott, Crestline and FGI (subject to the exceptions set forth in Section
2.3), in form and substance reasonably satisfactory to MSLS.
2.3 EXCEPTIONS. Notwithstanding anything herein to the contrary,
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clause (i) of Section 2.1 shall not prohibit Host Marriott, Crestline, FGI or
any of their Subsidiaries and Affiliates from engaging in the following
activities:
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(i) the ownership of equity interests in any Person which derives
revenue from activities as an Operator in the Senior Living Business if (a)
such equity interests are traded on a national or regional stock exchange
in the United States or are traded on the National Association of
Securities Dealers, Inc., Automated Quotation System, and (b) Host
Marriott, Crestline, FGI or any of their Subsidiaries and Affiliates
directly or indirectly, are not beneficial owners of more than five percent
(5%) of such Person's outstanding equity interests, but only so long as
Host Marriott, Crestline, FGI or any of their Subsidiaries and Affiliates
do not seek to control the management or operations of any such Person; or
(ii) activities as an Operator of any Senior Living Facility owned by
any such Person for a period not to exceed twelve months in any such
instance, so long as such conduct arises solely as a result of a change in
management or the manager or operator of any such Senior Living Facility;
or
(iii) bidding for, otherwise pursuing the acquisition of, or
acquiring either (A) all of the voting and ownership interests in a Person,
or (B) voting and ownership interests sufficient to control a Person, in
each case if such Person is both an Operator in the Senior Living Business
and an Investor in Senior Living Facilities (including by means of
acquiring equity or debt securities of any such Person or providing
financing to any such Person); provided that (x) the principal purpose of
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such acquisition is other than acquiring for its own account, or
controlling, an Operator of a Senior Living Business and (y) the activities
conducted by such Person as an Operator in the Senior Living Business are
terminated, or such Senior Living Business (or Host Marriott's, Crestline's
or FGI's investment therein) is divested by Host Marriott, Crestline, FGI
and their Subsidiaries and Affiliates, within twelve months from the date
Host Marriott, Crestline, FGI or their Subsidiaries and Affiliates
(together with any Persons that may be acting in concert therewith) first
acquire a majority of the voting interests of such Operator or otherwise
are able to control such Operator; and provided further that, if requested
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in writing by MSLS, Host Marriott or Crestline within five days confirms or
reconfirms in writing to MSLS that the principal purpose of the acquisition
is other than acquiring for its own account, or controlling, an Operator of
a Senior Living Business (for purposes of this paragraph, the terms
"control" and "controlling," when used with respect to any Person, mean the
power to direct the management and policies of such Person, directly or
indirectly, through the ownership of voting securities, by contract or
otherwise); or
(iv) engagement of an Operator (other than Host Marriott, Crestline,
FGI or any of their Subsidiaries or Affiliates) with respect to any Senior
Living Facility owned by Host Marriott, Crestline, FGI or any of their
Subsidiaries or Affiliates.
2.4 PROPRIETARY INFORMATION.
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(a) Host Marriott, Crestline and FGI shall not, nor shall either
Host Marriott, Crestline or FGI permit any of their Subsidiaries or
Affiliates to, at any time use for its own account or divulge to any Person
whomsoever any MSLS Confidential Information (as defined below). Each of
Host Marriott, Crestline and FGI shall use its best efforts to prevent the
publication or disclosure of any such MSLS Confidential Information by any
of their Subsidiaries or Affiliates. "MSLS Confidential Information" means
confidential or proprietary information or material received directly or
indirectly from MSLS or any of its Affiliates that is not publicly
available relating to the following: (1) projects in the Senior Living
Business or Senior Living Facilities that are under consideration or
development by MSLS or any of its Affiliates at any time, (2) current and
future operating systems and procedures employed by MSLS and its Affiliates
in their capacities as Operators in the Senior Living Business, (3)
marketing and feasibility analyses, studies and materials used and
developed from time to time by MSLS and its Affiliates, (4) development of
new or derivative products for use in the Senior Living Business or Senior
Living Facilities and (5) such other types of information and materials as
are reasonably requested by MSLS from time to time in writing to be treated
as confidential or proprietary information hereunder. Notwithstanding the
foregoing, Host Marriott, Crestline and FGI may disclose MSLS Confidential
Information (x) if and to the extent required by law, so long as prior
thereto (to the extent permitted by law) MSLS is provided the opportunity
to contest any such required disclosure, and (y) if and to the extent
required by existing or potential lenders, existing or potential investors
or potential acquirors of any Senior Living Facility owned or leased by
Host Marriott, Crestline, FGI or any of their Subsidiaries or Affiliates,
so long as such Persons acknowledge the confidential and proprietary nature
of such MSLS Confidential Information and agree, for the benefit of MSLS,
to keep such information confidential to the same extent as required
hereby.
(b) MSLS shall not, nor shall MSLS permit any of its
Subsidiaries or Affiliates to, at any time use for its own account or
divulge to any Person whomsoever any Host Confidential Information (as
defined below). MSLS shall use its best efforts to prevent the publication
or disclosure of any Host Confidential Information by any of its
Subsidiaries or Affiliates. "Host Confidential Information" means
confidential or proprietary information or material received directly or
indirectly from Host Marriott, Crestline, FGI or any of their Subsidiaries
or Affiliates that is not publicly available relating to (i) projects that
are under consideration or development by Host Marriott, Crestline, FGI or
any of their Subsidiaries or Affiliates at any time in their capacities as
Investors in Senior Living Facilities, (ii) marketing and feasibility
analyses, studies and materials used and developed from time to time by
Host Marriott, Crestline, FGI and their Subsidiaries and Affiliates in
their capacities as Investors in Senior Living Facilities or (iii) such
other types of information and materials as are reasonably requested by
Host Marriott or Crestline from time to time in writing to be treated as
confidential or proprietary information hereunder. Notwithstanding the
foregoing, MSLS may disclose Host
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Confidential Information (x) if and to the extent required by law, so long
as prior thereto (to the extent permitted by law) Host Marriott, Crestline
and FGI are provided the opportunity to contest any such required
disclosure and (y) if and to the extent required by existing or potential
lenders, existing or potential investors or potential acquirors of MSLS's
Senior Living Business, so long as such Persons acknowledge the
confidential and proprietary nature of such Host Confidential Information
and agree, for the benefit of Host Marriott or Crestline, to keep such
information confidential to the same extent as required hereby.
2.5 INTERPRETATION. The parties agree that the period of restriction
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and the geographical area of restriction imposed upon Host Marriott, Crestline
and FGI in this Article II are fair and reasonable and are reasonably required
for the protection of MSLS. If the provisions of this Agreement relating to the
area of restriction or the period of restriction shall be deemed to exceed the
maximum area or period which a court having jurisdiction over the matter would
deem enforceable, such area or period shall, for purposes of this Agreement, be
deemed to be the maximum area or period which such court would deem valid and
enforceable.
ARTICLE THREE
DEVELOPMENT AND ACQUISITION RIGHTS
3.1 DEVELOPMENT RESTRICTIONS. MSLS is a party to operating
------------------------
agreements with respect to all Senior Living Facilities owned indirectly by FGI
on the date hereof and listed on Schedule 1 to this Agreement (the "Forum
Operating Agreements"), and, in accordance therewith, the parties thereto have
agreed upon certain restrictions regarding development of Similar Properties
within specified regions. These regions are referred to as "Area A" and "Area
B" in each Forum Operating Agreement. As used herein, "Similar Property" means
a then-existing full service retirement community offering the full care
continuum of independent living (predominantly), assisted living, and health
care services, and "Assisted Living Facility" means a retirement community or
facility dedicated in its entirety to assisted living accommodations and
services, Alzheimer's facilities and nursing care facilities, so long as the
Alzheimer's and nursing care facilities constitute less than half of such
community or facility.
3.2 ACQUISITION OF SIMILAR PROPERTY. Until the earlier of (x) the
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seventh anniversary of the Closing Date or (y) the date on which the Forum
Operating Agreement for the relevant Senior Living Facility is terminated
(unless such termination results from a breach by MSLS thereunder), if MI, MSLS
or any of their Affiliates has the opportunity to acquire a Similar Property in
either Area A or Area B and MSLS is permitted under the Forum Operating
Agreement to acquire Similar Properties in Area A or Area B, at MI's or MSLS's
option, MI or MSLS shall either (i) offer Crestline the opportunity to acquire
such Similar Property by providing prompt written notice to Crestline of such
opportunity or (ii) attempt to acquire such Similar Property itself (or through
one of its Affiliates) and, if successful in acquiring such similar Property,
thereafter offer Crestline the opportunity to acquire such Similar Property on
substantially similar terms and conditions by providing prompt written notice to
Crestline of such
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opportunity as soon as practicable following the acquisition of such Similar
Property. Within thirty (30) days of this initial notice, Crestline must provide
written notice to MI or MSLS of its intention to exercise this right. Failure to
deliver such notice in a timely manner will terminate Crestline's rights
hereunder as to the Similar Property in question. In connection with its
acquisition of a Similar Property in accordance with this Section 3.2, Crestline
will cause the owner of such Similar Property to enter into an operating
agreement with MSLS having terms substantially similar to a Forum Operating
Agreement. Crestline's rights under this Section 3.2 will not apply to any
Similar Properties constructed or developed by MI, MSLS or any of their
Affiliates.
3.3 ASSISTED LIVING DEVELOPMENT PARTICIPATION RIGHTS. Until the
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earlier of (x) the seventh anniversary of the Closing Date or (y) the date on
which the Forum Operating Agreement for the relevant Senior Living Facility is
terminated (unless such termination results from a breach by MSLS thereunder),
MI and MSLS will allow Crestline the opportunity to negotiate to participate in
the development (as an Investor) of any Assisted Living Facility that MI, MSLS
or their Affiliates may seek to develop in such Area A or Area B. The right of
Crestline to negotiate with MI or MSLS to participate in the development of an
Assisted Living Facility in such Area A or Area B shall commence upon its
receipt of written notice from MI or MSLS, specifically referencing this Section
3.3, of its intent to develop an Assisted Living Facility in such area.
Crestline must provide written notice to MI or MSLS within ten (10) days of this
initial notice if it intends to exercise this right. Failure to deliver such
notice in a timely manner will terminate Crestline's rights hereunder as to the
Assisted Living Facility in question. If such notice is timely received, MI or
MSLS and Crestline shall negotiate the terms and conditions upon which MI or
MSLS would permit Crestline to invest in such Assisted Living Facility (it being
understood that any such terms and conditions would require the owner of such
Assisted Living Facility to enter into an operating agreement with MI or MSLS
having terms substantially similar to a Forum Operating Agreement). If the
terms of the proposed investment are not mutually agreed upon within forty-five
(45) days of MI's or MSLS' initial notice, MI or MSLS may enter into agreements
with any other parties for investment in such Assisted Living Property upon any
terms whatsoever. In no event shall MI or MSLS be obligated to offer to
Crestline the opportunity to invest in such Assisted Living Property on the same
terms to which MI or MSLS agrees with any other party so long as MI or MSLS has
complied with the other provisions of this Section. Crestline's rights under
this Section 3.3 will not apply to (x) any of the Senior Living Facilities set
forth on Schedule 2 hereto or (y) any Assisted Living Facility acquired or
sought to be acquired by MI, MSLS or any of their Affiliates.
3.4 ASSIGNMENT. The rights under this Article III are not assignable
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by Crestline, except to (i) one of its Affiliates or (ii) any successor to all
or substantially all of Crestline's business as an Investor in Senior Living
Facilities; provided that neither Host Marriott nor Crestline is released from
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its obligations in connection with any such assignment.
3.5 NO EFFECT ON FORUM OPERATING AGREEMENTS. The terms of this
---------------------------------------
Article III do not modify or otherwise affect the restrictions on MI, MSLS and
their Affiliates set forth in Section 19.14 of each Forum Operating Agreement.
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ARTICLE FOUR
MISCELLANEOUS
4.1 ENTIRE AGREEMENT. This Agreement, the Stock Purchase Agreement
----------------
and the other Transaction Documents (as defined in the Stock Purchase Agreement)
constitute the entire agreement of the parties concerning the subject matter
hereof. Additional restrictions on competition may be contained in the Forum
Operating Agreements, and restrictions contained therein shall be in addition to
the restrictions contained herein.
4.2 DOCUMENTARY CONVENTIONS. This Agreement shall be governed by the
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Documentary Conventions. Documentary Conventions means, with respect to any
document or agreement that states in substance that it is governed thereby, that
such document or agreement shall be deemed to include the following provisions
and all references in any such provisions to "this Agreement," "hereunder,"
"hereby" or similar phrases shall refer to the document or agreement in which
such provisions are incorporated:
(i) MODIFICATIONS. No modification to this Agreement shall be valid
unless in writing and signed by all parties thereto. No purported waiver
of any of the provisions of this Agreement shall be valid or effective
unless in writing signed by the party against whom such waiver is sought to
be enforced.
(ii) SURVIVAL. All representations, warranties and covenants in this
Agreement shall survive and not be merged in the execution of this
Agreement.
(iii) GOVERNING LAW. The Agreement shall be governed by and
construed in accordance with the internal laws of the State of Maryland,
without reference to conflicts of laws principles.
(iv) CAPTIONS; PRONOUNS. Captions in this Agreement are for
convenience of reference only and shall not be considered in construing
this Agreement. Whenever the context shall so require, the singular shall
include the plural, the male gender shall include the female, and vice
versa. "Include," "includes" and "including" shall be deemed to be
followed by "without limitation" whether or not they are in fact followed
by such words or words of like import.
(v) EXHIBITS. All exhibits to this Agreement are incorporated in
this Agreement as though set forth in full in the text of this Agreement.
(vi) COUNTERPARTS. Multiple originals of this Agreement may be
executed, each of which shall constitute one and the same agreement. This
Agreement may be executed in counterparts, and it shall not be necessary
that the original signature of each party to this Agreement appear on each
such counterpart.
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(vii) SEVERABILITY. In the event that one or more of the provisions
of this Agreement shall be held to be illegal, invalid or unenforceable,
such provisions shall be deemed severable and the remaining provisions of
this Agreement shall continue in full force and effect.
(viii) NOT CONSTRUED AGAINST DRAFTER. Each party to this Agreement
acknowledges that it was represented by counsel in connection with this
Agreement, and that it and its counsel reviewed and participated in the
preparation and negotiation of this Agreement. Consequently, any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this
Agreement.
(ix) BUSINESS DAY. To the extent that the date of any performance
required under this Agreement falls on a date which is not a business day,
the date of performance shall be extended to the next succeeding business
day.
(x) WAIVERS. No waiver of any provision or right set forth in this
Agreement shall be valid unless it is in writing signed by the party
against which such waiver is sought to be enforced. The failure of any
party to insist on strict performance of any of the provisions of this
Agreement or to exercise any right granted to it under this Agreement shall
not be construed as a waiver of the requirement of such performance.
(xi) PARTIES IN INTEREST. This Agreement shall be binding upon and
inure to the benefit of each party, and nothing in this Agreement, express
or implied, is intended to confer upon any other person or entity any
rights or remedies of any nature whatsoever under or by reason of this
Agreement. Nothing in this Agreement is intended to relieve or discharge
the obligation of any third person to any party of this Agreement.
4.3 REMEDIES. The parties agree that irreparable damage would occur
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in the event any of the provisions of this Agreement were not to be performed in
accordance with the terms hereof, and that their remedy at law for any breach of
the other party's obligations hereunder would be inadequate. The parties agree
and consent that, in addition to any other rights or remedies that may be
available of law or in equity, temporary and permanent injunctive relief may be
granted in any proceeding which may be brought to enforce any provision hereof
without the necessity of proof of actual damage.
4.4 ENFORCEABILITY; SUCCESSORS AND ASSIGNS. Subject to the terms of
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Section 4.5 hereof, the terms, conditions and promises contained in this
Agreement shall be binding upon and shall inure to the benefit of each of the
parties hereto, their heirs, personal representatives or successors and assigns,
including, in the case of MSLS, any successor to all or substantially all of
MSLS's Senior Living Business. Each party hereto covenants and agrees to cause
its Subsidiaries and Affiliates to comply with such party's obligations
hereunder. Nothing herein,
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expressed or implied, shall be construed to give any other Person any legal or
equitable rights hereunder.
4.5 ASSIGNMENT. Except in the case of MSLS as provided in Section
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4.4 and in the case of Crestline as provided in Section 3.4, no party to this
Agreement shall, without the prior written consent of the others assign any
rights or delegate any obligations under this Agreement.
4.6 CONSENT TO JURISDICTION. Any suit, action or proceeding under or
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in connection with this Agreement shall be brought in any federal or state court
of competent jurisdiction located in the State of Maryland. By execution of
this Agreement, each party consents to the exclusive jurisdiction of such
courts, and waives any right to challenge the jurisdiction of such courts or the
appropriateness of venue in such courts. EACH PARTY HEREBY WAIVES ANY RIGHT TO
TRIAL BY JURY IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING UNDER OR IN
CONNECTION WITH THIS AGREEMENT.
4.7 NOTICES. All notices and other communications hereunder shall be
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in writing and shall be delivered by hand, by facsimile, delivered by nationally
recognized overnight courier, or mailed by registered or certified mail (return
receipt requested) to the parties at the following addresses (or at such other
addresses for a party as shall be specified by like notice) and shall be deemed
given on the date on which such notice is received:
To Host Marriott:
Host Marriott Corporation
Asset Management Department 908
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Director, Senior Living Facilities
FAX NO. 301/000-0000
with a copy to:
Host Marriott Corporation
Law Department 903
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
FAX NO. 301/000-0000
with a copy to:
Xxxxxx & Xxxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
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Attention: Xxxxxxx X. Xxxxxxx, Esq.
FAX NO. 202/000-0000
To Crestline or FGI:
c/o Crestline Capital Corporation
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx, 00000
Attention: General Counsel
FAX NO.
with a copy to:
Crestline Capital Corporation
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx, 00000
Attention: Xxxxxxxxx Xxxxxxxxx
FAX NO.
To MSLS:
Marriott Senior Living Services, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000 (registered or certified mail)
Attention: Chief Financial Officer
Dept. 52/923
FAX NO. 301/000-0000
and
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000 (express mail or courier)
Attention: General Counsel
Dept. 52/923
FAX NO. 301/000-0000
12
with a copy to:
O'Melveny & Xxxxx LLP
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq.
FAX NO. 202/000-0000
4.8 RELATIONSHIP OF PARTIES. It is understood and agreed that
-----------------------
nothing in this Agreement shall be deemed or construed by the parties or any
third party as creating an employer-employee principal/agent, partnership or
joint venture relationship between the parties. It is further understood that
the obligations of each of Host Marriott, on the one hand, and Crestline and
FGI, on the other hand, hereunder, and any liability arising therefrom, is
several and not joint.
4.9 HOST REIT AS SUCCESSOR. The parties acknowledge that, upon the
-----------------------
effectiveness of the Merger, Host REIT shall succeed to all the rights and
obligations of Host Marriott under this Agreement.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered, all as of the day and year first above written.
MARRIOTT SENIOR LIVING SERVICES, INC.
By:
-------------------------------------
Name:
Title:
MARRIOTT INTERNATIONAL, INC.
By:
-------------------------------------
Name:
Title:
HOST MARRIOTT CORPORATION
By:
-------------------------------------
Name:
Title:
HMC MERGER CORPORATION
By:
-------------------------------------
Name:
Title:
S-1
FORUM GROUP, INC.
By:
-------------------------------------
Name:
Title:
CRESTLINE CAPITAL CORPORATION
By:
-------------------------------------
Name:
Title:
S-2
SCHEDULE 1
----------
COMMUNITIES SUBJECT TO FORUM OPERATING AGREEMENTS
-------------------------------------------------
The Forum at Brookside, Louisville, Kentucky.
Coral Oaks Retirement Community, Palm Harbor, Florida.
Forum at Xxxx Xxxxx, Xxxxxxxxx Xxxxx, Xxxxxxx.
Desert Harbor, Peoria, Arizona.
Xxxxxxx Manor, Wilmington, Delaware.
The Forum at the Crossing, Indianapolis, Indiana.
Xxxxx Manor North, Wilmington, Delaware.
Xxxxx Manor South, Wilmington Delaware.
Fountainview, West Palm Beach, Florida.
Springwood Court, Ft. Xxxxx, Florida.
The Forum at Knightsbridge, Columbus, Ohio.
Lafayette at Country Place, Lexington, Kentucky.
Lexington at Country Place, Lexington, Kentucky.
Forum at Lincoln Heights, San Antonio, Texas.
The Forum at Memorial Xxxxx Healthcare, Houston, Texas.
Millcroft Retirement & Nursing Home, Wilmington, Delaware.
Montebello on Academy, Albuquerque, New Mexico.
Montevista at Coronado, El Paso, Texas.
Xxxxxx Xxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxx Xxxxxxxx.
The Forum at Overland Park, Overland Park, Kansas.
The Forum at Park Lane, Dallas, Texas.
Park Summit at Coral Springs, Coral Springs, Florida.
The Forum - Pueblo Norte, Scottsdale, Arizona.
Remington Club I at Rancho Xxxxxxxx, San Diego, California.
Remington Club II at Rancho Xxxxxxxx, San Diego, California.
Xxxxxxx Manor, Wilmington, Delaware.
Xxxxxxx House, Ft. Lauderdale, Florida.
Forum at Tucson, Tucson, Arizona.
Forum at The Woodlands, Xxxxxxxxxx County, Texas.
SCHEDULE 2
Assisted Living Sites Under Development
---------------------------------------
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EXISTING COMMUNITY APPROXIMATE LOCATIONS OF EXISTING DEVELOPMENT SITES
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1. BROOKSIDE None
-----------------------------------------------------------------------------------------------------
2. CORAL OAKS None
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3. FORUM @ CROSSING Approximately 400 feet west of Forum @ Crossing at NWC of E. 86th
St. & Elrico
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4. DEER CREEK None
-----------------------------------------------------------------------------------------------------
5. DESERT HARBOR None
-----------------------------------------------------------------------------------------------------
6. XXXXXXX MANOR S/W corner of New Xxxxx Xx. (Rt. 141) and Rockland Rd.
-----------------------------------------------------------------------------------------------------
7. XXXXX XXXXX XXXXX X/X xxxxxx xx Xxx Xxxxx Xx. (Rt. 141) and Rockland Rd.
-----------------------------------------------------------------------------------------------------
8. XXXXX MANOR NORTH . S/W corner of New Xxxxx Xx. (Rt. 141) and Rockland Rd.
. S/E corner of Lancaster Pike (Rt. 48) and Centerville Rd.
-----------------------------------------------------------------------------------------------------
9. FOUNTAINVIEW None
-----------------------------------------------------------------------------------------------------
10. KNIGHTSBRIDGE None
-----------------------------------------------------------------------------------------------------
11. LAFAYETTE None
-----------------------------------------------------------------------------------------------------
12. LEXINGTON None
-----------------------------------------------------------------------------------------------------
13. LINCOLN HEIGHTS None
-----------------------------------------------------------------------------------------------------
14. MEMORIAL XXXXX None
-----------------------------------------------------------------------------------------------------
15. MILLCROFT None
-----------------------------------------------------------------------------------------------------
16. MONTEBELLO None
-----------------------------------------------------------------------------------------------------
17. MONTEVISTA None
-----------------------------------------------------------------------------------------------------
18. MYRTLE BEACH MANOR None
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19. OVERLAND PARK East Side of Mission Road South of 71st Street
-----------------------------------------------------------------------------------------------------
20. PARK LANE Across the street from Park Lane Forum
-----------------------------------------------------------------------------------------------------
21. PARK SUMMIT None
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22. PUEBLO NORTE . Hayden Avenue and E. Cactus Rd.
. 91st St.; South of Xxxx Blvd.
-----------------------------------------------------------------------------------------------------
23. REMINGTON I None
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24. REMINGTON II None
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25. XXXXXXX MANOR S/W corner of New Xxxxx Xx. (Rt. 141) and Rockland Rd.
-----------------------------------------------------------------------------------------------------
26. SPRINGWOOD COURT None
(formerly known as
Independence Court of
Kentwood)
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27. XXXXXXX HOUSE None
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28. TUCSON None
-----------------------------------------------------------------------------------------------------
29. WOODLANDS (formerly known None
as Chambrel)
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