EXHIBIT 10.12
AGREEMENT OF INDEMNITY - THIRD PARTY CONTRACTS
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THIS AGREEMENT OF INDEMNITY, made as of the 30th day of April, 1998
(the "Agreement of Indemnity"), by and between Vencor Healthcare, Inc. (which
will change its name to "Vencor, Inc.") a Delaware corporation, Vencor
Operating, Inc., a Delaware corporation, Vencor Nursing Centers East, LLC, a
Delaware limited liability company, Vencor Nursing Centers West, LLC, a Delaware
limited liability company, Vencor Nevada, LLC, a Delaware limited liability
company, New Vencor Hospitals East, LLC, a Delaware limited liability company,
Vencor Hospitals West, LLC, a Delaware limited liability company, Vencor
Hospitals Limited Partnership, a Delaware limited partnership, Vencor Nursing
Centers Limited Partnership, a Delaware limited partnership, each having an
address at 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxx Center, Xxxxxxxxxx,
Xxxxxxxx 00000 (each individually, an "Indemnitor"), Vencor, Inc. (which will
change its name to ("Ventas, Inc."), a Delaware corporation, having an office at
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxx Center, Xxxxxxxxxx, Xxxxxxxx 00000 and
First Healthcare Corporation ("Indemnitee").
W I T N E S S E T H:
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WHEREAS, Indemnitee has entered into those certain agreements listed
in Schedule A (the "Third Party Agreements") with various third parties (the
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"Obligees")
WHEREAS, on the date hereof, Indemnitor and Indemnitee will effectuate
certain internal mergers and stock and asset transfers allocating certain assets
and liabilities to each other as part of an overall reorganization
(collectively, the "Distribution Transactions");
WHEREAS, as part of the Distribution Transactions, Indemnitee and
Indemnitor will enter into the several Assignment and Assumption Agreements
dated as of April 30, 1998 among the various Indemnitors and Indemnitees, dated
as of the date hereof, and pursuant thereto, Indemnitee will assign and
Indemnitor will assume, the liabilities, duties, interests, guarantees and all
other rights and obligations of Indemnitee under the "Third Party Agreements";
and
WHEREAS, the Obligees have not released Indemnitee from Indemnitee's
obligations under the Third Party Agreements listed in Schedule A; and
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WHEREAS, it is a condition to Indemnitee entering into and
consummating the Distribution Transactions that Indemnitor execute and deliver
to Indemnitee an agreement of indemnity containing the terms set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Indemnitor shall indemnify, defend and hold harmless Indemnitee,
its direct and indirect shareholders, subsidiaries, partners and affiliates and
their respective officers, directors, agents, representatives, successors and
assigns (collectively, the "Indemnified Parties" and each individually, an
"Indemnified Party") from and against any and all Claims (as defined in
Paragraph 2 hereof) incurred by, imposed upon, commenced or asserted against the
Indemnified Parties, or any one or more of them, on or after the date hereof by
reason of, caused by, arising out of, in connection with or resulting from the
Third Party Agreements.
2. For the purposes of this Agreement of Indemnity, the term "Claims"
shall mean all liabilities (statutory or otherwise), obligations, claims,
damages, penalties, causes of action, costs and expenses, losses and injuries of
every kind and nature whatsoever, including all costs reasonably incurred by
Indemnitee in connection with the enforcement of any provision of this Agreement
of Indemnity, including without limitation attorney's and legal assistant fees
and expenses, court costs and fees and consultant fees and expenses.
3. If at any time Indemnitee shall receive written notice of a Claim,
Indemnitee shall give reasonably prompt written notice of such Claim to
Indemnitor; provided that (i) Indemnitee shall have no liability for a failure
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to give notice of any Claim of which Indemnitor has otherwise been notified or
has knowledge and (ii) the failure of Indemnitee to give such a notice to
Indemnitor shall not limit the rights of any Indemnified Party or the
obligations of Indemnitor with respect to such Claim except to the extent that
Indemnitor incurs actual expenses or suffers actual monetary loss as a result of
such failure. Indemnitor shall have the right to control the defense or
settlement of any Claim, provided that (A) Indemnitor shall first confirm in
writing to the Indemnified Parties that such Claim is within the scope of this
Agreement of Indemnity and that Indemnitor shall pay any and all amounts
required to be paid in respect of such Claim and (B) if the compromise or
settlement of any such Claim shall not result in the complete release of all
Indemnified Parties from the Claim so compromised or settled, the compromise or
settlement shall require the prior written approval of the Indemnified Parties
not being completely released. The Indemnified Parties, at their election and
at their sole cost and expense, shall have the right, but not the obligation, to
participate in the defense of any Claim. In addition to such right to
participate, Indemnitee (or its designee) shall have the right, by written
notice given to Indemnitor at any time, to assume exclusive control of the
defense of any Claim insofar as the Indemnified Parties are concerned, but,
subject to the next succeeding sentence, such a notice shall result in
Indemnitor being relieved of its obligations in respect of such Claim under this
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Agreement of Indemnity. If at any time during the pendency of a Claim
Indemnitor shall not confirm in writing its obligations under (A) above and pay
the claim or it shall disaffirm its responsibility for such Claim, Indemnitee
(or its designee) shall have the right, but not the obligation, to assume the
exclusive control of the defense and settlement of such Claim insofar as the
Indemnified Parties are concerned, and all costs and expenses of such defense
shall be paid by Indemnitor if such Claim is within the scope of this Agreement
of Indemnity. If Indemnitee is required to pay any claim the Indemnitor will
immediately reimburse Indemnitee for such amounts with interest from payment
date at the Prime Rate plus two percent (2%).
4. This Agreement of Indemnity shall be governed by and construed in
accordance with the laws of the State of New York. Any legal suit, action or
proceeding against any party arising out of or relating to this Agreement shall
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be instituted in any Federal or Commonwealth court in the Commonwealth of
Kentucky. Each party hereby (i) irrevocably waives, to the fullest extent
permitted by applicable law, any objection which it may now or hereafter have to
the laying of venue of any such suit, action or proceeding brought in such a
court and any claim that any such proceeding brought in such a court has been
brought in an inconvenient forum, and (ii) irrevocably submits to the
jurisdiction of any such court in any such suit, action or proceeding.
5. This Agreement of Indemnity shall be binding upon and shall inure
to the benefit of Indemnitor and Indemnitee and their respective successors and
assigns. In addition, each of the Indemnified Parties (other than Indemnitee)
is intended to be, and is hereby expressly made, a third party beneficiary of
Indemnitor's obligations hereunder.
6. This Agreement of Indemnity constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and may not be
modified or amended except pursuant to the terms of an instrument signed by both
Indemnitor or Indemnitee.
7. Every notice, demand, request, consent, approval or other
communication (herein without distinction sometimes referred to as "notices")
which either party hereto is required or desires to give or make or communicate
shall be in writing and shall be given or made or communicated by personal
delivery, telecopy or by mailing the same by registered or certified mail,
return receipt requested, postage prepaid, to the following address:
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If to Indemnitor: Vencor Healthcare, Inc.
Attention: Chief Financial Officer
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxx Center
Xxxxxxxxxx, Xxxxxxxx 00000
with a copy to: Vencor Healthcare, Inc.
Attention: General Counsel
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxx Center
Xxxxxxxxxx, Xxxxxxxx 00000
and Vencor Operating, Inc.
Attention: General Counsel
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxx Center
Xxxxxxxxxx, Xxxxxxxx 00000
If to Indemnitee: Ventas, Inc.
Attention: President
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxx Center
Xxxxxxxxxx, Xxxxxxxx 00000
with a copy to: Ventas, Inc.
Attention: General Counsel
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxx Center
Xxxxxxxxxx, Xxxxxxxx 00000
or at such other address or addresses as any party hereto may designate from
time to time by notice given as herein provided. All notices so sent shall be
deemed to have been delivered, effective, made or communicated, as the case may
be, three (3) days after the date so mailed.
8. (a) To the extent that any party hereto or any of its property
has, or may hereafter acquire, directly or indirectly, any right of immunity
from the jurisdiction
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of any court or from any legal process (including immunity from attachment prior
to judgment) on the grounds of diplomatic status, sovereignty or any other
claims for immunity, each party hereby irrevocably waives any such right or
immunity in respect of its obligations arising under or in connection with this
Agreement of Indemnity. Each party represents and warrants to the other that it
is not now entitled, directly or indirectly, to any such diplomatic or sovereign
immunity or any other form of immunity and that it is not owned or controlled by
any foreign governmental entity or agency and agrees that, should any party
bring any suit, action or proceeding in the Commonwealth of Kentucky, or any
other jurisdiction to enforce any obligation or liability of any other party
arising under or in connection with this Agreement of Indemnity, no such
immunity will be claimed by or on behalf of such party.
(b) All disputes arising out of or relating to this Agreement of
Indemnity and all actions to enforce this Agreement of Indemnity shall be
adjudicated in the state courts of the Commonwealth of Kentucky or the federal
courts sitting in the Commonwealth of Kentucky and each party hereby irrevocably
submits to the jurisdiction of such courts in any suit, action or proceeding
arising out of or relating to this Agreement of Indemnity or in any action to
enforce this Agreement of Indemnity. So far as is permitted under applicable
law, this consent to personal jurisdiction shall be self-operative and no
further instrument or action, other than service of process in one of the
manners specified in this Paragraph 8, or as otherwise permitted by law, shall
be necessary in order to confer jurisdiction upon the person of any party hereto
in any such court.
(c) Provided that service of process is effected upon a party hereto
in one of the manners hereafter specified or as otherwise permitted by law, such
party irrevocably waives, to the fullest extent permitted by law, and agrees not
to assert, by way of motion, as a defense or otherwise (i) any objection which
it may have or may hereafter have to the laying of the venue of any such suit,
action or proceeding brought in such a court as is mentioned in Paragraph 8(b)
or (ii) any claim that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. Provided that service of
process is effected upon any party hereto in one of the manners specified in
this Paragraph 8 or as otherwise permitted by law, each party hereto agrees that
any final judgment from which such party has not or may not appeal or further
appeal in any such suit, action or proceeding brought in such a court shall be
conclusive and binding upon such party and may, so far as is permitted under
applicable law, be enforced in any domestic or foreign courts to the
jurisdiction of which such party is subject.
(d) Each party hereto hereby consents to process being served in any
suit, action or proceeding relating to this Agreement of Indemnity either by (i)
the mailing of a copy thereof by registered or certified mail, postage prepaid,
return receipt requested, to such party at the address set forth in Paragraph 7
hereof, (ii) personal delivery of a copy
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thereof to such position of an individual as a senior officer of such party or,
in the case of an individual, to such individual or (iii) in any manner
permitted by law in the jurisdiction where service of process is effected on a
Business Day (as hereinafter defined) at the address set forth in Paragraph 7
hereof. The term "Business Day" means a day of the year on which banks are open
for business and not required or authorized to close in New York City.
(e) Each party shall execute and deliver to the other all such
further instruments as may be necessary to make effective any provision of this
Paragraph 8.
(f) Nothing in this Paragraph 8 shall affect the right of any party
to serve process in any manner permitted by law or limit the right of any party
pursuant to applicable law to bring proceedings against another party in the
courts of any jurisdiction or jurisdictions.
9. If Indemnitor consists of more than one party, the parties
comprising Indemnitor shall be jointly and severally liable for all of the
obligations of Indemnitor hereunder.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement of
Indemnity as of the date first herein above written.
VENCOR, INC., a Delaware corporation
By:
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Name:
Title:
FIRST HEALTHCARE CORPORATION
By:
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Name:
Title:
VENCOR HEALTHCARE, INC., a Delaware
corporation
By:
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Name:
Title:
VENCOR OPERATING, INC., a Delaware
corporation
By:
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Name:
Title:
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VENCOR NURSING CENTERS EAST, LLC, a
Delaware limited liability company
By: VENCOR OPERATING, INC.,
its Managing Member
By:
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Name:
Title:
VENCOR NURSING CENTERS WEST, LLC, a
Delaware limited liability company
By: VENCOR OPERATING, INC.,
its Managing Member
By:
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Name:
Title:
VENCOR NEVADA, LLC, a Delaware limited
liability company
By: VENCOR OPERATING, INC.,
its Managing Member
By:
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Name:
Title:
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NEW VENCOR HOSPITALS EAST, LLC, a
Delaware limited liability company
By: VENCOR OPERATING, INC.,
its Managing Member
By:
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Name:
Title:
VENCOR HOSPITALS WEST, LLC, a Delaware
limited liability company
By: VENCOR OPERATING, INC.,
its Managing Member
By:
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Name:
Title:
VENCOR HOSPITALS LIMITED
PARTNERSHIP, a Delaware limited partnership
By: VENCOR OPERATING, INC.,
its General Partner
By:
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Name:
Title:
VENCOR NURSING CENTERS LIMITED
PARTNERSHIP, a Delaware limited partnership
By: VENCOR OPERATING, INC.,
its General Partner
By:
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Name:
Title:
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SCHEDULE A
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AGREEMENTS
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1. Guaranty Agreement, dated as of December, 1992, jointly and severally by MGH
Health Services Corporation and Brim of Massachusetts, Inc., as trustees of Fox
Hill Village Trust under Declaration of Trust, dated November 25, 1986.
2. Guaranty Agreement, dated as of November 1, 1997, by and between Vencor,
Massachusetts, Industrial Finance Authority and State Street Bank and Trust
Company.
3. Guaranty Agreement, between Vencor and Xxxxxx Bank, N.A., dated as of
November 17, 1995.
4. Guaranty Reimbursement Agreement, by and between Vencor (as successor to The
Hillhaven Corporation) and Starr Farm Partnership, dated as of April 7, 1993, as
amended by the First Amendment to the Guaranty Reimbursement Agreement, dated as
of November 17, 1995.
5. Assumption, Amendment and Restatement of Guaranty Agreement, between First
Healthcare Corporation and Nationsbank (as successor to Citizens and Southern
National Bank).
6. Parent Guaranty Agreement, between The Hillhaven Corporation and Nationsbank
(as successor to Citizens and Southern National Bank).
7. Amended and Restated Guarantee Reimbursement Agreement, dated as of April
29, 1998, by and among Vencor, Inc., Vencor Healthcare, Inc. and Xxxxx
Healthcare Corporation.
8. Agreement for Sale and Purchase of Mortgages, dated September 26, 1996, by
and between Omega Healthcare Investors, Inc., Vencor, Inc. and First Healthcare
Corporation.
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