EXHIBIT 10.17
CONSENT AND MODIFICATION AGREEMENT
(HRPT)
This CONSENT AND MODIFICATION AGREEMENT made as of this 10th day of
October, 1997 by and between MARRIOTT INTERNATIONAL, INC. ("MII"), MARRIOTT
SENIOR LIVING SERVICES, INC. ("MSLS"), NEW MARRIOTT MI, INC. ("New Marriott")
(which, by name change, will be renamed Marriott International, Inc.), HEALTH
AND RETIREMENT PROPERTIES TRUST, formerly known as Health and Rehabilitation
Properties Trust ("HRPT") and CHURCH CREEK CORPORATION ("CCC") (HRPT and CCC
collectively, "Owner").
WHEREAS, MII, MSLS and HMC Retirement Properties, Inc. ("HMC") entered
into certain agreements, including, but not limited to those agreements listed
on Exhibit A hereto (as the same may be amended, hereinafter referred to as
"Transaction Agreements"), relating to certain senior living retirement
facilities located in the United States (hereinafter referred to as
"Transaction"); and
WHEREAS, Owner has succeeded to the interests of HMC in said leases and
the guaranties by MII; and
WHEREAS, MII and New Marriott intend to undertake certain corporate
transactions which are set forth in the press release attached hereto as Exhibit
B, it being understood that New Marriott is intended to be the entity that will
constitute the "new" Marriott International and will own, directly or
indirectly, all or substantially all of MII's lodging, distribution services and
senior living services businesses. As used herein, the term "Intended Corporate
Transaction," shall refer to the transaction (a) in which MII spins off New
Marriott (or its assigns, as permitted pursuant to the terms and provisions of
Section 4 hereto) in a transaction which is not materially different from that
described in Exhibit B and (b) which will result, after giving effect to the
Intended Corporate Transaction, in New Marriott (or its assigns, as permitted
pursuant to the terms and provisions of Section 4 hereof) having a long term
debt rating of its senior, unsecured debt of "BBB-" (triple B minus) or greater
by Standard & Poor's Corporation; and
WHEREAS, the parties desire to consent to the Intended Corporate
Transaction and to modify the terms of the Transaction Agreements, as set forth
hereinbelow.
NOW, THEREFORE, the parties agree as follows:
1. The parties agree that upon the closing of the Intended Corporate
Transaction (the "Closing"), without further documentation or action:
(a) All references to MII in all Transaction Agreements shall
thereafter refer to New Marriott, and not to MII, as if New Marriott and not MII
were originally the named entity, and all Transaction Agreements which are to be
executed subsequent to the
Closing shall be modified to name New Marriott, and not MII, as the party to
execute such Transaction Agreements,
(b) MII shall be released from any and all liabilities and
obligations to HMC under each and every Transaction Agreement, notwithstanding
when, and how, such liabilities or obligations arose or may arise, and New
Marriott shall be liable for all such liabilities and obligations of MII to
Owner under each and every Transaction Agreement, notwithstanding when, and how,
such liabilities or obligations arose or may arise,
2. On or after the date of Closing, upon the request of Owner, New
Marriott will execute such documents as Owner may reasonably request to evidence
its assumption of the liabilities and obligations of MII as herein provided;
including a confirmation of each Guaranty of Tenant Obligations of each Lease
(as set forth on Exhibit A hereto) and an opinion of in-house counsel of New
Marriott that New Marriott has taken all necessary corporate action to authorize
such assumption and that such Guaranty is the, valid, binding and enforceable
obligation of New Marriott. Upon the request of New Marriott or MII, Owner will
enter into such documents as MII or New Marriott may reasonably request to
evidence the release of MII from all liabilities and obligations to Owner.
3. The parties agree to cooperate with each other in order to
facilitate the transactions contemplated herein and shall execute and deliver
such documents and agreements as may be necessary or appropriate to accomplish
the purposes of the Intended Corporate Transaction. MII and New Marriott shall
give prior notice of the anticipated date of Closing; provided, however, (a)
such anticipated date may be extended or delayed in the sole discretion of MII
and/or New Marriott, and such extension or delay shall not have any effect on
this Agreement, and (b) such prior notice shall not be required if MII and/or
New Marriott, in its judgment, believes that the giving of such prior notice may
violate any federal or state securities law.
4. Prior to the Closing of the Intended Corporate Transaction, New
Marriott may assign its rights and obligations hereunder to any wholly owned
U.S. subsidiary of MII, which wholly owned subsidiary shall, following the
Intended Corporate Transaction, own all or substantially all of MII's lodging,
distribution services and senior living services businesses in accordance with
the second Whereas clause herein. In the event of such an assignment and
assumption, the assignor shall be released from all of its obligations under
this agreement and the assignee shall become New Marriott for all purposes under
this agreement.
5. Exception as specifically set forth herein, nothing contained herein
shall be deemed to modify, amend, waive or supersede any provision of any
Transaction Agreement, including, without limitation, Section 5.07 of each
Lease.
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IN WITNESS WHEREOF, the parties hereto have set their hand and seal.
ATTEST/WITNESS: MARRIOTT INTERNATIONAL, INC.
/s/ By:/s/ ▇. ▇. ▇▇▇▇▇
MARRIOTT SENIOR LIVING SERVICES, INC.
/s/ By:/s/ ▇.▇. ▇▇▇▇▇
NEW MARRIOTT MI, INC.
/s/ By: /s/ ▇. ▇. ▇▇▇▇▇
HEALTH AND RETIREMENT PROPERTIES TRUST
/s/ By: /s/ ▇▇▇▇ ▇▇▇▇▇
CHURCH CREEK CORPORATION
/s/ By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Omitted Exhibits
The following exhibit to the Consent and Modification Agreement has
been omitted:
Exhibit Letter Exhibit Title
A Transaction Agreements
The registrant agrees to furnish supplementally a copy of the foregoing
omitted exhibit to the Securities and Exchange Commission upon request.
