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EXHIBIT 10.78
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (this "Agreement"), made as of the 30th
day of January, 1988, is by and among Assisted Care Operators of Xxxxxxx, a
Delaware limited liability company ("Tenant"), BCC MANAGEMENT AND DEVELPMENT
CO., a Delaware corporation ("Developer"), Balanced Care at Xxxxxxx, Inc.
("Manager") Oakhaven Senior Living, Inc. a California corporation (collectively,
"Tenant Parent") , Balanced Care Corporation, a Delaware corporation ("Balanced
Care" and referred to collectively with Tenant, Developer, Manager, Tenant
Parent and the respective Affiliates of each such Person as the "Restricted
Parties") and AHP of Tennessee, Inc., a Tennessee corporation ("Owner").
RECITALS:
WHEREAS, Tenant Parent is the sole owner of Tenant;
WHEREAS, Balanced Care and American Health Properties, Inc., a Delaware
corporation have entered into that certain Facility Agreement dated as of the
30th day of January, 1998 pursuant to which American Health has caused Owner to
develop the Facility leased to Tenant and Balanced Care has caused Developer to
enter into the Development Agreement with Developer and caused Tenant to enter
into the Management Agreement with Manager (all capitalized terms not otherwise
defined in this Agreement shall have the meaning ascribed to those terms in the
Facility Agreement);
WHEREAS, Balanced Care Corporation is guarantying the obligations of
Developer to Owner and the obligations of Manager under the Management
Agreement;
WHEREAS, Owner and Tenant have entered into the Lease with respect to
the leasing of a certain assisted living facility to be constructed in Jackson,
Tennessee and
WHEREAS, Owner would not enter into the Lease Agreement and Development
Agreement unless the Restricted Parties agreed to enter into this Agreement upon
the terms and conditions contained herein.
AGREEMENT:
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Non-Competition. From the date hereof and for so long as the Lease
remains in full force and effect, Restricted Parties shall not directly or
indirectly, whether or not for compensation, engage in, allow the use of such
person's or entity's name or likeness by, or have any direct or indirect
ownership or management interest (which shall include but not be limited to
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an interest as an employee, shareholder, member, manager, proprietor, officer,
director, agent, security holder, trustee, consultant, partner, creditor lending
credit or money for the purpose of establishing or operating any such business
or otherwise) in any person, firm, corporation or business which engages in the
ownership, operation or management of any Senior Housing Project (as defined
below) (other than the property which is the subject of the Lease) within thirty
(30) miles of the Property. For purposes of this Agreement, the term "Senior
Housing Project" shall mean any senior housing project, independent living
project, facility providing assisted living services or similar facility
requiring a license no more restrictive than the license required for the
Facility, excluding, for the avoidance of doubt, any license skilled nursing
facility.
2. Scope and Reasonableness. The parties to this Agreement expressly
agree and contract that it is not their intention to violate any public policy
or statutory or common law. The Restricted Parties have carefully considered the
nature and extent of the restrictions upon competition set forth in this
Agreement and agree that the same are reasonable with respect to the nature,
duration, scope and geographic coverage.
3. Enforceability. If any of the covenants or other provisions of this
Agreement shall be held unenforceable by the final determination of a court of
competent jurisdiction and all appeals therefrom shall have failed or the time
for such appeals shall have expired, such provision or provisions shall be
deemed eliminated from this Agreement, but the remaining provisions shall
nevertheless be given full effect. In the event this Agreement or any portion
hereof is more restrictive than permitted by applicable law, the parties hereto
shall request that the court of competent jurisdiction fashion one that is
acceptable or substitute restrictions of permissible scope that are consistent
with the intent of the parties as evidenced by this Agreement.
4. Remedies: Injunctive Relief. The parties to this Agreement recognize
and agree that the violation of the provisions of this Agreement cannot be
reasonably or adequately compensated in monetary damages and that, in addition
to any other relief to which the injured party may be entitled by reason of such
violation, the injured party shall also be entitled to permanent and temporary
injunctive and equitable relief.
5. Attorney's Fees. If any legal action or other proceeding is brought
for the enforcement of this Agreement or because of an alleged dispute, breach,
default or misrepresentation in connection with the provisions hereof, the
successful or prevailing party or parties shall be entitled to recover
reasonable attorney's fees and other costs incurred in that action or proceeding
in addition to any other relief to which it or they may be entitled.
6. Counterparts. This Agreement may be executed in two or more
counterparts, each of which, when taken together, will constitute one and the
same Agreement.
7. Notices. No notice or other communication shall be deemed given
unless sent in any of the manners, and to the persons, specified in this
paragraph. All notices and other communications hereunder shall be in writing
and shall be deemed given (i) upon receipt if
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delivered personally (unless subject to clause (ii) or if mailed by registered
or certified mail, (iii) at noon on the date after dispatch if sent by overnight
courier or (iv) upon the completion of transmission on or before 4:30 p.m. local
time of the recipient if received on a business day (which is confirmed by
telephone or by a statement generated by the transmitting machine (if
transmitted by telecopy or other means of facsimile which provides immediate or
near immediate transmission to compatible equipment in the possession of the
recipient), or on the next business day following receipt if received after 4:30
p.m. local time of the recipient on any business day, in any case to the parties
at the following addressees or telecopy number (or at such other address or
telecopy number for a party as will be specified by like notice):
If to Owner: AHP OF TENNESSEE, INC.
0000 Xxxxx Xxxxxxx'x Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
If to Restricted Parties: Balanced Care Corporation
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000
With a copy to: Xxxxxxxxxxx & Xxxxxxxx, LLP
0000 Xxxxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
8. Controlling Law. THE VALIDITY, INTERPRETATION, ENFORCEMENT AND
EFFECT OF THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF TENNESSEE.
9. Consent to Jurisdiction. THE PARTIES HERETO HEREBY AGREE THAT THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF TENNESSEE OR, TO THE EXTENT
REQUIRED BY APPLICABLE LAW, ANY TENNESSEE STATE COURT, SHALL HAVE NON-EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE PARTIES
HERETO PERTAINING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT.
10. Waiver of Jury Trial. RESTRICTED PARTIES HEREBY WAIVE ANY RIGHT TO
THAT THEY MAY HAVE TO A TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF,
DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING OUT OF OR IN ANY WAY RELATED TO
THIS AGREEMENT OR THE TRANSACTION DOCUMENTS, OR (B) IN ANY WAY CONNECTED WITH OR
PERTAINING OR RELATED TO OR INCIDENTAL TO ANY DEALINGS OF OWNER AND/OR
RESTRICTED PARTIES WITH RESPECT TO THE TRANSACTION DOCUMENTS OR IN CONNECTION
WITH THIS AGREEMENT OR
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THE EXERCISE OF ANY PARTY'S RIGHTS AND REMEDIES UNDER THIS AGREEMENT OR
OTHERWISE, OR THE CONDUCT OR THE RELATIONSHIP OF THE PARTIES HERETO, IN ALL OF
THE FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE. RESTRICTED PARTIES AGREE THAT OWNER MAY
FILE A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING,
VOLUNTARY, AND BARGAINED-FOR AGREEMENT OF RESTRICTED PARTIES IRREVOCABLY TO
WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY AS AN INDUCEMENT OF OWNER TO
ENTER INTO THE TRANSACTON DOCUMENTS, AND THAT, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY DISPUTE OR CONTROVERSY WHATSOEVER (WHETHER OR NOT MODIFIED
HEREIN) BETWEEN OWNER AND RESTRICTED PARTIES SHALL INSTEAD BE TRIED IN A COURT
OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
11. Amendments; Waivers. No modification, termination or waiver under
this Agreement shall be valid unless in writing and signed by the parties
hereto. The waiver by any party of any breach of any provision of this Agreement
shall not operate or be construed as a waiver of any other provision of this
Agreement or of any subsequent breach.
12. Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
13. Successors and Assigns. Restricted Parties acknowledge that Owner
shall have the right to assign any or all of its rights and obligations
hereunder and this Agreement will inure to the benefit of, and be binding upon,
any such assignee of Owner in the same manner and to the same extent as if such
assignee were an original party hereto. Restricted Parties shall not assign this
Agreement without the prior written consent of Owner.
14. Severability. Any provision hereof which is held to be prohibited
or unenforceable in any jurisdiction will, as to such jurisdiction, be adjusted
rather than avoided, if possible, in order to achieve the intent of the parties
to this Agreement to the extent possible without in any manner invalidating the
remaining provisions hereof, or materially affecting the consideration bargained
for, and any such prohibition or unenforceability in any jurisdiction will not
invalidate or render unenforceable such provision in any other jurisdiction.
[THIS SPACE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment as
of the date first written above.
WITNESS: RESTRICTED PARTIES:
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Name:
WITNESS:
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Name:
WITNESS:
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Name: By:
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WITNESS:
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Name: By:
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OWNER:
WITNESS: AHP OF TENNESSEE
a Tennessee corporation
------------------------------ By:
Name: ------------------------------
Name:
Title:
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Schedule to Exhibit 10.78 filed pursuant to Instruction 2 to Item
601(a) of Regulation S-K
Non-Competition Agreement
Location Owner Manager
Anderson, IN AHP of Indiana, Inc. Balanced Care at
Xxxxxxxx, Inc.