RESTATED NONCOMPETITION AGREEMENT
THIS RESTATED NONCOMPETITION AGREEMENT ("Agreement") is made as of the 27th
day of March, 1998, by and between SODEXHO MARRIOTT SERVICES, INC., successor by
name change to Marriott International, Inc. ("Sodexho Marriott"), and HOST
MARRIOTT SERVICES CORPORATION ("Host Marriott Services").
WHEREAS, Sodexho Marriott and Host Marriott Corporation entered into a
Noncompetition Agreement dated as of October 8, 1993, as amended (the "Original
Agreement"), in connection with and pursuant to that certain Distribution
Agreement between them dated as of September 15, 1993, (as thereafter amended
from time to time, "Distribution Agreement").
WHEREAS, on December 29, 1995, Host Marriott Corporation spun off certain
of the businesses subject to the Original Agreement through a distribution of
the stock of its then subsidiary, Host Marriott Services, to its shareholders,
and accordingly, Sodexho Marriott, Host Marriott Corporation and Host Marriott
Services entered into an amendment dated as of December 29, 1995 to the Original
Agreement which added Host Marriott Services as a party (the Original Agreement,
as so amended, the "Existing Agreement").
WHEREAS, on October 1, 1997, Sodexho Marriott announced its intention to
spin off to its shareholders a new company, New Marriott MI, Inc. ("New
Marriott"), which will directly or through subsidiaries own all or substantially
all of the lodging, senior living and distribution services businesses; and to
rename Sodexho Marriott, the corporate entity which will retain its management
services business, Sodexho Marriott Services, Inc.
WHEREAS, as a result of consummation the two spin off transactions
described above, the businesses subject to the Existing Agreement will be owned
by four separate companies, Host Marriott Corporation, Host Marriott Services,
Sodexho Marriott, and New Marriott; with the result that four companies would
need to be participate in any and every future modification of or waiver under
the Existing Agreement, even though any such waiver or modification would likely
have no relevance to two of the four companies.
WHEREAS, New Marriott, Sodexho Marriott, Host Marriott Corporation and Host
Marriott Services now wish to replace the Existing Agreement with two bilateral
agreements, of which this Agreement is one, each covering only that subset of
the businesses covered by the Existing Agreement which are germane to such
parties and each of which is to be deemed by the parties thereto to be a
continuation of the Original Agreement with respect to such parties; and
accordingly are entering into an Acknowledgment and Release substantially in the
form of Exhibit A attached hereto.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
the parties agree as follows:
ARTICLE ONE
DEFINITIONS
1. DEFINITIONS. The following terms when used herein shall have the meaning
set forth below:
"Affiliates" shall mean any Person directly or indirectly controlling or
controlled by, or under direct or indirect common control with Host Marriott
Services or Sodexho Marriott, as the case may be. 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, Host Marriott Services Affiliates shall not
include Sodexho Marriott or its Subsidiaries or Affiliates, and Sodexho Marriott
Affiliates shall not include (i) Sodexho Alliance S.A., or its Subsidiaries or
Affiliates other than Sodexho Marriott and its subsidiaries or (ii) Host
Marriott Services or its Subsidiaries or Affiliates.
"Compete" shall mean (i) to conduct or participate or engage in, or bid for
or otherwise pursue a business, whether as a principal, sole proprietor,
partner, stockholder, or agent of, or consultant to or manager for, any Person
or in any other capacity, or (ii) have any ownership interest in any Person or
business which conducts, participates or engages in, or bids for or otherwise
pursues a business, whether as a principal, sole proprietor, partner,
stockholder, or agent of, or consultant to or manager for any Person or in any
other capacity.
"Competing Host Services Business" shall mean a business that competes
with, or is substantially similar to, the Host Services Business.
"Competing Host Services Activity" shall mean a business activity that
competes with, or is substantially similar to, the Host Services Business.
"Competing Sodexho Marriott Business" shall mean a business that competes
with, or is substantially similar to, the Sodexho Marriott Business.
"Competing Sodexho Marriott Activity" shall mean a business activity that
competes with, or is substantially similar to, the Sodexho Marriott Business.
"Conference Centers" shall mean the facilities for conferences and meetings
of groups and associations (together with the lodging, food and other services
related thereto), principally utilized by Persons belonging to or affiliated
with educational, health care, governmental, corporate or other organizations,
or other facilities marketed primarily for such conference and group meeting
business, such as the Westwood Conference Center in Wausau, WI, substantially as
it was being operated by Sodexho Marriott as of October 8, 1993.
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"Effective Period" shall mean that period commencing on October 8, 1993,
and automatically terminating without further documentation on October 7, 2000.
"Host Services Business" shall mean the business of providing management
services or operations with respect to food, beverages, vending, merchandise,
duty free shops and gift shops operated in airports or airport facilities, on
tollroads or on other limited access highways, in rapid transit and mass transit
facilities (bus, light and heavy railway and trolley), in sporting arenas and
stadiums utilized by professional football, basketball, or major league baseball
or hockey teams, and in gift or merchandise shops in hotels or casinos
(excluding Conference Centers).
"New Catering Account" shall mean a corporate or industrial catering
account not held by Host Marriott Services or its former parent, Host Marriott
Corporation, as of October 8, 1993, but acquired thereafter, excluding renewals,
amendments or extensions of accounts existing as of October 8, 1993.
"Person" shall mean any person, firm, corporation, general or limited
partnership, association, or other entity.
"Route Vending" shall mean the operation of vending machines supplied with
food, beverages and merchandise primarily from facilities located other than on
the premises where the vending machines are located.
"Sodexho Marriott Business" shall mean the business of providing management
services or operations, or franchising (either as franchisee or a franchisor),
with respect to food, beverages, housekeeping, laundry, vending, plant and
equipment operation and maintenance, grounds care, Conference Centers, child
care, convenience stores, and gift or merchandise shops, located in hospitals,
nursing homes and other health care facilities, primary and secondary schools,
colleges, universities, academies and other educational facilities, corporate
headquarters and office buildings, manufacturing or industrial facilities,
municipal, state or federal government offices, courthouses, penal institutions,
and stadiums and arenas owned or operated by colleges or universities (except
for such stadiums and arenas utilized by professional football, basketball, or
major league baseball or hockey teams).
"Subsidiaries" shall mean corporations or other entities which are more
than fifty percent (50%) owned, directly or indirectly, by Host Marriott
Services or Sodexho Marriott, as the case may be, and partnerships in which Host
Marriott Services or Sodexho Marriott, as the case may be, or a subsidiary
corporation, is a general partner.
"Territory" shall mean the United States, Canada, and their respective
territories and protectorates.
"Transfer" shall mean the sale, conveyance, disposal of or other transfer
of ownership, title or other interest.
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ARTICLE TWO
NONCOMPETITION WITH RESPECT TO THE SODEXHO MARRIOTT BUSINESS
2. CERTAIN RESTRICTIONS ON HOST MARRIOTT SERVICES.
a. Except as provided in Section 2(b), during the Effective Period, Host
Marriott Services shall not:
i. Compete in the Sodexho Marriott Business within the
Territory.
ii. Compete in the Sodexho Marriott Business anywhere outside of the
Territory where Sodexho Marriott was, as of the Effective Date,
prohibited from Competing in the Sodexho Marriott Business or
where Host Marriott Services is prohibited from Competing in the
Host Services Business, due to a valid, written noncompetition
agreement; provided, however, in the event any such agreement
terminates prior to the expiration of the Effective Period this
Section 2.a.ii, as it relates to the prohibitions covered by such
agreement, shall automatically terminate and be void without
further documentation. The applicable agreements containing the
restrictions are identified on Schedules A and B hereto and
incorporated herein by this reference.
b. Except as specifically provided in this Agreement, nothing contained
in this Agreement shall restrict Host Marriott Services from engaging
in the Host Services Business or the Sodexho Marriott Business
including, but not limited to:
Route Vending provided to airports or facilities related thereto;
or food and beverage and related services or other businesses at
national or state parks, ski resorts or other seasonal resorts,
zoos, aquariums, concert or other entertainment facilities,
tourist attractions, or professional minor league sporting arenas
and stadiums.
c. Notwithstanding anything herein to the contrary, Section 2.a shall not
prohibit Host Marriott Services from the following activities:
i. the continued operation of any business that was operated as of
October 8, 1993, by the Host/Travel Plaza Divisions of Host
Marriott Corporation; or
ii. the ownership of capital stock of a corporation which conducts,
participates or engages in competition with, or owns or has an
interest in a business similar to, the Sodexho Marriott Business
if (a) such capital stock is traded on a national or regional
stock exchange in the United States or Canada or is traded on the
National Association of Securities Dealers, Inc., Automated
Quotation System, and (b) Host Marriott Services, directly or
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indirectly, is the beneficial owner of not more than five percent
(5%) of such corporation's outstanding capital stock; or
iii. the acquisition of any Person which conducts, participates or
engages in competition with, or owns or has an interest in a
Competing Sodexho Marriott Business, except for such a Person
whose primary business is a Competing Sodexho Marriott Business,
if (x) the gross sales of such Person (including its Subsidiaries
and Affiliates) from the Competing Sodexho Marriott Activities
for the three hundred sixty-five (365) days preceding the date on
which the acquisition is consummated (the "Preceding Period"), do
not constitute more than twenty percent (20%) of the gross sales
(including sales from the Competing Sodexho Marriott Activities)
of such Person (including its Subsidiaries and Affiliates), or
(y) neither the fair market value of, nor the value, if any,
attributed by the acquisition agreement to the Competing Sodexho
Marriott Activities is in excess of Five Million Dollars
($5,000,000.00), as increased by the percentage increase, if any,
in the Consumer Price Index, All Urban Consumers, United States
during the term hereof (using 1993 as the base year).
iv. the continued operation of food preparation facilities utilized
by Host Marriott Services (or its former parent, Host Marriott
Corporation) (a "Host Services Preparation Facility") as of
October 8, 1993, to prepare food for in-flight catering accounts
and the continued operation of corporate or industrial catering
accounts serviced with food prepared in any Host Services
Preparation Facility;
v. entering into any New Catering Account, provided that such New
Catering Account (w) is located within a five (5) mile radius of
a Host Services Preparation Facility and serviced with food
prepared in the Host Services Preparation Facility in question;
(x) is located in a building that contains no on-site food
preparation facilities; (y) is located in a building where
Sodexho Marriott then has no vending business; and (z) shall have
annual gross sales not in excess of Two Hundred Fifty Thousand
Dollars ($250,000.00), as increased by the percentage increase,
if any, in the Consumer Price Index, All Urban Consumers, United
States during the term hereof (using 1993 as the base year).
d. During the Effective Period, Host Marriott Services shall not,
directly or indirectly:
i. acquire from any Person (other than Sodexho Marriott) any
interest in a Competing Sodexho Marriott Business unless, prior
to such acquisition, Host Marriott Services offers to sell the
Competing Sodexho Marriott Activities to Sodexho Marriott on the
same terms and conditions on which the Competing Sodexho Marriott
Business is being acquired. Sodexho
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Marriott shall have thirty (30) days after receiving notice of
the acquisition of the Competing Sodexho Marriott Business to
elect, by notice to Host Marriott Services, to purchase the
Competing Sodexho Marriott Activities on the terms and conditions
set forth in the notice. If Sodexho Marriott does not elect to
purchase the Competing Sodexho Marriott Activities within the
30-day period, Host Marriott Services shall be entitled to own
and operate such Competing Sodexho Marriott Activities, subject
to the restrictions on Transfer set forth in Section 2.d.ii
hereinbelow. Notwithstanding the foregoing, Host Marriott
Services shall not have to offer to sell, or sell, to Sodexho
Marriott any such Competing Sodexho Marriott Activities which are
not readily divisible from other activities permitted to Host
Marriott Services, provided that the gross sales from such
non-divisible Competing Sodexho Marriott Activities do not exceed
the greater of One Million Dollars ($1,000,000.00), per year or
five percent (5%) of the gross sales of the Competing Sodexho
Marriott Business as determined in accordance with Section
2.c.iii hereof. In the event that the gross sales from such
non-divisible Competing Sodexho Marriott Activities exceed the
greater of One Million Dollars ($1,000,000.00) per year or five
percent (5%) of the gross sales of the Competing Sodexho Marriott
Business as determined in accordance with Section 2.c.iii hereof,
then all non-divisible Competing Sodexho Marriott Activities
shall be subject to Host Marriott Services's obligation to offer
them for sale to Sodexho Marriott, as set forth above, to the
maximum extent that Host Marriott Services and Sodexho Marriott,
using their best efforts and negotiating in good faith, can make
such Competing Sodexho Marriott Activities divisible and
transferable to Sodexho Marriott. The amount of One Million
Dollars ($1,000,000.00) referenced in this Section shall be
increased by the percentage increase, if any, in the Consumer
Price Index, All Urban Consumers, United States during the term
hereof (using 1993 as the base year).
ii. Transfer to any Person (other than Sodexho Marriott) any
Competing Sodexho Marriott Activities unless it first offers to
sell such Competing Sodexho Marriott Activities to Sodexho
Marriott upon substantially the same terms and conditions offered
by a bona fide prospective purchaser not an affiliate of Host
Marriott Services. Sodexho Marriott shall have thirty (30) days
after receiving notice of the proposed Transfer to elect, by
notice to Host Marriott Services, to purchase the Competing
Sodexho Marriott Activities on the terms and conditions set forth
in the notice. If Sodexho Marriott does not elect to purchase the
Competing Sodexho Marriott Activities from Host Marriott Services
within the 30-day period, Host Marriott Services shall be
entitled to Transfer such Competing Sodexho Marriott Activities
to any Person not an affiliate of Host Marriott Services on
substantially the same terms and conditions as set forth in the
notice to Sodexho Marriott. However, if no definitive agreement
to Transfer is
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executed within ninety (90) days after the expiration of the
30-day period, Host Marriott Services shall not thereafter
Transfer such Competing Sodexho Marriott Activities to any Person
(other than Sodexho Marriott) without first offering to sell it
to Sodexho Marriott as provided above.
ARTICLE THREE
NONCOMPETITION WITH RESPECT TO THE SODEXHO MARRIOTT BUSINESS
3. CERTAIN RESTRICTIONS ON SODEXHO MARRIOTT.
a. Except as provided in Section 3(b), during the Effective Period,
Sodexho Marriott shall not:
i. Compete in the Host Marriott Services Business within the
Territory.
ii. Compete in the Host Marriott Services Business anywhere outside
of the Territory where Host Marriott Services was, as of the
Effective Date, prohibited from Competing in the Host Marriott
Services Business or where Sodexho Marriott is prohibited from
Competing in the Host Services Business, due to a valid, written
noncompetition agreement; provided, however, in the event any
such agreement terminates prior to the expiration of the
Effective Period this Section 3.a.ii, as it relates to the
prohibitions covered by such agreement, shall automatically
terminate and be void without further documentation. The
applicable agreements containing the restrictions are identified
on Schedules A and B hereto and incorporated herein by this
reference.
b. Except as specifically provided in this Agreement, nothing contained
in this Agreement shall restrict Sodexho Marriott from engaging in the
Host Services Business or the Sodexho Marriott Business including, but
not limited to:
Route vending provided to airports or facilities related thereto;
or food and beverage and related services or other businesses at
national or state parks, ski resorts or other seasonal resorts,
zoos, aquariums, concert or other entertainment facilities,
tourist attractions, or professional minor league sporting arenas
and stadiums.
c. Notwithstanding anything herein to the contrary, Section 3.a shall not
prohibit Sodexho Marriott from the following activities:
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i. the continued operation and development of any business that was
operated as of October 8, 1993, by what was then known as the
Marriott Management Services division of Sodexho Marriott's
former parent, Marriott Corporation; or
ii. the ownership of capital stock of a corporation which conducts,
participates or engages in competition with, or owns or has an
interest in a business similar to, the Host Marriott Services
Business if (a) such capital stock is traded on a national or
regional stock exchange in the United States or Canada or is
traded on the National Association of Securities Dealers, Inc.,
Automated Quotation System, and (b) Sodexho Marriott, directly or
indirectly, is the beneficial owner of not more than five percent
(5%) of such corporation's outstanding capital stock; or
iii. the acquisition of any Person which conducts, participates or
engages in competition with, or owns or has an interest in a
Competing Host Marriott Services Business, except for such a
Person whose primary business is a Competing Host Marriott
Services Business, if (x) the gross sales of such Person
(including its Subsidiaries and Affiliates) from the Competing
Host Marriott Services Activities for the Preceding Period do not
constitute more than twenty percent (20%) of the gross sales
(including sales from the Competing Host Marriott Services
Activities) of such Person (including its Subsidiaries and
Affiliates), or (y) neither the fair market value of, nor the
value, if any, attributed by the acquisition agreement to the
Competing Host Marriott Services Activities is in excess of Five
Million Dollars ($5,000,000.00), as increased by the percentage
increase, if any, in the Consumer Price Index, All Urban
Consumers, United States during the term hereof (using 1993 as
the base year).
d. During the Effective Period, Sodexho Marriott shall not, directly or
indirectly:
i. acquire from any Person (other than Host Marriott Services) any
interest in a Competing Host Marriott Services Business unless,
prior to such acquisition, Sodexho Marriott offers to sell the
Competing Host Marriott Services Activities to Host Marriott
Services on the same terms and conditions on which the Competing
Host Marriott Services Business is being acquired. Host Marriott
Services shall have thirty (30) days after receiving notice of
the acquisition of the Competing Host Marriott Services Business
to elect, by notice to Sodexho Marriott, to purchase the
Competing Host Marriott Services Activities on the terms and
conditions set forth in the notice. If Host Marriott Services
does not elect to purchase the Competing Host Marriott Services
Activities within the 30-day period, Sodexho Marriott shall be
entitled to own and operate such Competing Host Marriott Services
Activities, subject to the restrictions on Transfer set forth in
Section 3.d.ii hereinbelow. Notwithstanding the foregoing,
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Sodexho Marriott shall not have to offer to sell, or sell, to
Host Marriott Services any such Competing Host Marriott Services
Activities which are not readily divisible from other activities
permitted to Sodexho Marriott, provided that the gross sales from
such non-divisible Competing Host Marriott Services Activities do
not exceed the greater of One Million Dollars ($1,000,000.00),
per year or five percent (5%) of the gross sales of the Competing
Host Marriott Services Business as determined in accordance with
Section 3.c.iii hereof. In the event that the gross sales from
such non-divisible Competing Host Marriott Services Activities
exceed the greater of One Million Dollars ($1,000,000.00) per
year or five percent (5%) of the gross sales of the Competing
Host Marriott Services Business as determined in accordance with
Section 3.c.iii hereof, then all non-divisible Competing Host
Marriott Services Activities shall be subject to Sodexho
Marriott's obligation to offer them for sale to Host Marriott
Services, as set forth above, to the maximum extent that Sodexho
Marriott and Host Marriott Services, using their best efforts and
negotiating in good faith, can make such Competing Host Marriott
Services Activities divisible and transferable to Host Marriott
Services. The amount of One Million Dollars ($1,000,000.00)
referenced in this Section shall be increased by the percentage
increase, if any, in the Consumer Price Index, All Urban
Consumers, United States during the term hereof (using 1993 as
the base year).
ii. Transfer to any Person (other than Host Marriott Services) any
Competing Host Marriott Services Activities unless it first
offers to sell such Competing Host Marriott Services Activities
to Host Marriott Services upon substantially the same terms and
conditions offered by a bona fide prospective purchaser not an
affiliate of Sodexho Marriott. Host Marriott Services shall have
thirty (30) days after receiving notice of the proposed Transfer
to elect, by notice to Sodexho Marriott, to purchase the
Competing Host Marriott Services Activities on the terms and
conditions set forth in the notice. If Host Marriott Services
does not elect to purchase the Competing Host Marriott Services
Activities from Sodexho Marriott within the 30-day period,
Sodexho Marriott shall be entitled to Transfer such Competing
Host Marriott Services Activities to any Person not an affiliate
of Sodexho Marriott on substantially the same terms and
conditions as set forth in the notice to Host Marriott Services.
However, if no definitive agreement to Transfer is executed
within ninety (90) days after the expiration of the 30-day
period, Sodexho Marriott shall not thereafter Transfer such
Competing Host Marriott Services Activities to any Person (other
than Host Marriott Services) without first offering to sell it to
Host Marriott Services as provided above.
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ARTICLE FOUR
MISCELLANEOUS
4.1 ARBITRATION OF CERTAIN MATTERS. Host Marriott Services and Sodexho Marriott
agree that any controversy or dispute concerning any calculation or
determination of value or sales arising under Sections 2.c.iii, 2.d.i, 3.c.iii,
or 3.d.i hereof shall be settled in arbitration in accordance with the Rules of
the American Arbitration Association then in effect. Such arbitration shall take
place in Washington, DC. Any judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof. The arbitrators shall
not, under any circumstances, have any authority to award punitive, exemplary or
similar damages, and may not, in any event, make any ruling, finding or award
that does not conform to the terms and conditions of this Agreement. Nothing
contained in this Section 4.1 shall limit or restrict in any way the right or
power of a party at any time to seek injunctive relief in any court and to
litigate the issues relevant to such request for injunctive relief before such
court (i) to restrain the other party from breaching this Agreement, or (ii) for
specific enforcement of this Section 4.1. The parties agree that any legal
remedy available to a party with respect to a breach of this Section 4.1 will
not be adequate and that, in addition to all other legal remedies, each party is
entitled to an order specifically enforcing this Section 4.1. Neither party nor
the arbitrators may disclose the existence or results of any arbitration under
this Agreement or any evidence presented during the course of the arbitration
without the prior written consent of both parties, except as required to fulfill
applicable disclosure and reporting obligations, or as otherwise required by
agreements with third parties, or by law.
4.2 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the
parties concerning the subject matter hereof.
4.3 MODIFICATION. This Agreement may only be amended, modified or supplemented
in a written agreement signed by both parties hereto.
4.4 WAIVER. No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
hereof, except by written instrument of the party charged with such waiver or
estoppel.
4.5 SEVERABILITY. Host Marriott Services and Sodexho Marriott agree that the
period of restriction and the geographical area of restriction imposed upon the
parties are fair and reasonable and are reasonably required for the protection
of each of the parties hereto. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule or law of public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect as though the invalid portions were not a part
hereof. 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.
4.6 REMEDIES. Sodexho Marriott and Host Marriott Services agree that irreparable
damage would occur in the event any of the provisions of this Agreement were not
to be performed in
10
accordance with the terms hereof, and that their remedy at
law for any breach of the other party's obligations hereunder would be
inadequate. Sodexho Marriott and Host Marriott Services agree and consent that
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.
4.7 ENFORCEABILITY. 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. Each of the parties hereto shall cause its subsidiaries to comply with
such party's obligations hereunder. Nothing herein, expressed or implied, shall
be construed to give any other Person any legal or equitable rights hereunder.
4.8 ASSIGNMENT AND SUCCESSORS AND ASSIGNS. Neither party shall, without the
prior written consent of the other, assign any rights or delegate any
obligations under this Agreement. Notwithstanding anything herein to the
contrary, the restrictions, rights and obligations set forth in Articles 2 and 3
shall be treated as follows: in the event Host Marriott Services Transfers all
or substantially all of the Host Services Business, such purchaser shall
automatically be bound by the terms of this Agreement unless such purchaser has
annual gross Sodexho Marriott Business sales in excess of Five Hundred Million
Dollars ($500,000,000.00), as increased by the percentage increase, if any, in
the Consumer Price Index, All Urban Consumers, United States during the term
hereof (using 1993 as the base year); and, in the event Sodexho Marriott
Transfers all or substantially all of the Sodexho Marriott Business, without
exception, such purchaser shall automatically be bound by the terms of this
Agreement.
4.9 CONSENT TO JURISDICTION. Subject to Section 4.1 hereof, the parties
irrevocably submit to the exclusive jurisdiction of (a) the Courts of the State
of Maryland in Xxxxxxxxxx County, and (b) if federal jurisdiction exists, the
United States District Court for the State of Maryland for the purposes of any
suit, action or other proceeding arising out of this Agreement. Each party
hereby irrevocably designates, appoints and empowers Prentice Hall Corporation
System, Inc. as its true and lawful agent and attorney-in-fact in its name,
place, and stead to receive on its behalf service of process in any action,
suit, or proceeding with respect to any matters as to which it has submitted to
jurisdiction as set forth in the immediately preceding sentence.
4.10 INTERPRETATION. When a reference is made in this Agreement to a Section,
Article, or Schedule, such reference shall be to a Section, Article, or Schedule
of this Agreement unless otherwise indicated. The headings contained in this
Agreement are for reference purposes only and shall neither affect the meaning
or interpretation of this Agreement, nor define or limit the scope or intent of
any provision or part hereof. Whenever the words "include," or "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
4.11 NOTICES. All notices and other communications hereunder shall be in writing
and shall be delivered by hand, by facsimile 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:
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To Sodexho Marriott:
Sodexho Marriott Services, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
ATTN: General Counsel
or
-------------------------------------
-------------------------------------
-------------------------------------
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To Host Marriott Services:
Host Marriott Services Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
ATTN: General Counsel
4.12 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Maryland, regardless of the laws that
might be applied under applicable principles of conflicts of laws.
4.13 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.
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.
SODEXHO MARRIOTT SERVICES, INC.
By: /S/ XXXXXX X XXXXX
-----------------------------------------
Printed Name: Xxxxxx X. Xxxxx
-------------------------------
Title: Sr. Vice President and General Counsel
--------------------------------------
HOST MARRIOTT SERVICES CORPORATION
By: /S/ XXX X. XXXXXX
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Printed Name: Xxx X. Xxxxxx
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Title: Sr. Vice President and General Counsel
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12
EXHIBIT A
NONE
