INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (the "Agreement") is
entered into as of November 3,1996, by and between
EMERITUS CORPORATION, a Washington corporation
("EMERITUS") and PAINTED POST PARTNERS, a
Washington general partnership (the
"PARTNERSHIP"), with reference to the following
facts:
A. The Partnership is the licensed
operator of the real property and the
improvements and the personal property
comprising those adult homes located in New
York and described in Exhibit A (the
"Facilities"). In addition, the Partnership is
the employer of certain persons associated
with, and is the holder of certain licenses
necessary for, the operation of the Facility
and has made the same available to Emeritus in
connection with its operation of the Facility.
B. By Agreement to Provide Administrative
Services of even date herewith (the
"Administrative Services Agreement"), Emeritus
has agreed to provide certain administrative
services to the Partnership in connection with
the day to day operations of the Facilities.
C. Emeritus has agreed to indemnify the
Partnership from and against any and all costs,
expenses, damages and liability which it or
they may incur with respect to the Facilities,
including under the terms of the Facilities
Leases (as defined in the Administrative
Services Agreement) from and after the
Effective Date hereof (as defined below).
D. The Administrative Services Agreement
contains certain indemnity provisions which the
Partnership and Emeritus are desirous of
expanding upon in order to ensure that the
intent of the parties is met.
NOW, THEREFORE, in consideration of the
foregoing premises and the mutual covenants of
the parties set forth herein, IT IS HEREBY
AGREED AS FOLLOWS:
AGREEMENT
1. INDEMNITY.
Emeritus does hereby agree to indemnify,
defend and hold harmless the Partnership and
the partners thereof entirely from and against
any and all liabilities, losses, damages,
expenses, costs, suits, legal or administrative
proceedings, or expenses of whatsoever nature
(including, without limitation, sums paid in
settlement thereof, fines, penalties, operating
expenses incurred by Emeritus (or by the
Partnership, with the understanding and
approval of Emeritus) and not covered by the
revenues of the Facility, fees due and paid or
payable to Emeritus under the Administrative
Services Agreement, rent and any other sums due
under the Facilities Leases, including sums due
in connection with the performance by the
Partnership of its obligations under the
Facilities Leases, consequential damages,
attorney's fees including attorney's fees
incurred to enforce this Agreement or to
collect any sums due hereunder, and court
costs) incurred by the Partnership from and
after the Effective Date (as defined below) in
connection with the operation of the Facilities
or the performance by the Partnership of its
obligations under the Facilities Leases
(collectively, the Losses, Costs and
Expenses").
2. ATTORNEY'S FEES
In any action or arbitration brought to
enforce or interpret any part of this Agreement,
the prevailing party shall be entitled to recover
from the other the costs and expenses of
maintaining such an action, including without
limitation, reasonable attorney's fees and
expenses incurred before such action is commenced,
before trial, at trial, and on appeal, whether
such action is at law, in equity or in a
bankruptcy proceeding.
3. AMENDMENT OR MODIFICATION
This Agreement may not be amended or modified
in any respect whatsoever except by instrument in
writing signed by the parties hereto. This
Agreement and the documents and agreements
delivered pursuant hereto or in connection
herewith constitute the entire agreement between
the parties hereto and supersede all prior
negotiations, discussions, writings and agreements
between them. In the event any of the provisions
of this Agreement conflict with any of the
provisions of the Administrative Services
Agreement, the provisions of this Agreement shall
control.
4. SUCCESSORS AND ASSIGNS
The terms of this Agreement shall be binding
upon and inure to the benefit of and be
enforceable by and against the heirs and
successors of the parties hereto; provided,
however, that Emeritus shall not have the right to
assign this Agreement other than in conjunction
with a permitted assignment of the Administrative
Services Agreement.
5. GOVERNING LAW
This Agreement shall be governed by and
construed in accordance with the laws of the State
of Washington.
6. SEVERABILITY
Should any one or more of the provisions
of this Agreement be determined to be invalid,
unlawful or unenforceable in any respect, the
validity, legality and enforceability of the
remaining provisions hereof shall not in any way
be affect or impaired thereby.
7. COUNTERPARTS
This Agreement may be executed in
counterparts, each of which shall be deemed to be
an original, but all of which taken together shall
constitute but one and the same instrument.
8. EFFECTIVE DATE
This Agreement shall be effective as of
November 3,1996 (the "Effective Date")
IN WITNESS WHEREOF, this Agreement has been
executed by the parties as of the date first set
forth above.
EMERITUS CORPORATION
By: Xxxxx Xxxxx
-------------------------
Its: EVP
PAINTED POST PARTNERS
By: /s/ Xxxxxxx X. Xxxxxxxxxx
--------------------------
Its: Partner
By: /s/ Xxxxxx X. Xxxx
--------------------------
Its: Partner
EXHIBIT A
FACILITIES
Colonie Manor Xxxxxxx Park Manor
626 Watervliet Shaker Road 000 Xx. Xxxxxxx
Xxxxx
Xxxxxx, Xxx Xxxx 00000 Williamsville, New
York 14221
Xxxxxxx Manor Woodland Manor
000 Xxxxxxx Xxxx 000 Xxxxxxxxx Xxxx
Xxxxxxxxxxxxx, Xxx Xxxx 00000 Xxxxxx, Xxx Xxxx
00000
West Side manor Xxxx Xxxx Xxxxx
0000 Xxxx Xxxxxx Xxxx 0000 Xxxx Xxxxxxxx
Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000 Xxxxxxxxxxxx, Xxx
Xxxx 00000
Bellevue Manor Xxxx Xxxx Xxxxx
0000 Xxxxxxxx Xxxxxxxxx 0000 Xxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000 Xxxxxxxxx, Xxx Xxxx 00000
Perinton Park Manor
000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
