EXHIBIT 10.70
INDEMNITY AGREEMENT
THIS AGREEMENT ("Indemnity Agreement") is executed and delivered as of this
13th day of January, 1998 (the "Effective Date") by and between INTEGRATED
HEALTH SERVICES, INC., a Delaware corporation ("IHS") and OMEGA HEALTHCARE
INVESTORS, INC., a Maryland corporation ("Omega").
The circumstances underlying the execution and delivery of this Agreement
are as follows:
A. Capitalized terms used but not otherwise defined herein have the
respective meanings given them in the Purchase Agreement between the entities
described on attached EXHIBIT A (each a "Seller" and collectively, "Sellers"),
LYRIC HEALTH CARE LLC, a Delaware limited liability company ("Lyric"), LYRIC
HEALTH CARE HOLDINGS, INC., a Delaware corporation ("Lyric Holdings") and OMEGA
("Purchase Agreement"), or, if not defined in the Purchase Agreement, then the
respective meanings given them in the Master Lease between Lyric Holdings and
Omega.
B. Lyric Holdings is a wholly owned subsidiary of Lyric. Sellers are
corporations that are wholly owned by Lyric Holdings. IHS is the sole member of
Lyric. Sellers also are the respective owners of Sellers' Assets. Sellers desire
to sell, and Purchaser desires to acquire and lease to Lyric Holdings, Sellers'
Assets. The purchase and lease of Seller's Assets will benefit IHS.
C. As a condition precedent to its agreement to purchase Sellers' Assets,
Omega has required that IHS indemnify Omega on the terms and conditions
hereinafter set forth with respect to certain environmental matters.
NOW, THEREFORE, IHS and Omega agree as follows:
1. INDEMNIFICATION. IHS shall indemnify and hold Omega harmless from and
against any and all damages, losses, liabilities, costs, actions, suits,
proceedings, demands, assessments, and judgments, including, but not limited to,
reasonable and documented attorneys' fees and reasonable costs and expenses of
litigation, arising out of or in any manner related to the claims of third
parties resulting from:
(a) Any failure of Sellers, Lyric Holdings and Lyric to complete as
and when required to do so by the terms of the Purchase Agreement the
environmental remediation described on Schedule1(b) thereof;
(b) Any failure of Sellers, Lyric Holdings and Lyric to complete if,
as and when required to do so by the terms of the Master Lease such
environmental remediation as may be required by Section 7.3(g) thereof.
2. Procedure. If Omega asserts that IHS is subject to a claim for
indemnification hereunder, Omega shall describe the claim in sufficient detail
in order to permit IHS to evaluate the nature and cause of the claim. If the
asserted claim arises or is in connection with a claim, suit, or demand filed by
a third party, IHS shall be entitled to defend against such claim with counsel
reasonably satisfactory to Omega. Omega may also employ counsel of its own, but
the costs of Omega's separate counsel shall be borne by Omega as long as IHS
continues to so defend. If IHS fails to respond or does not admit responsibility
for indemnification, the Omega may take such necessary steps to defend itself
and any reasonable costs associated therewith may be included as part of the
asserted claim for indemnification. If the claims do not arise from a third
party, within 30 days of receipt of written notice from Omega describing the
claim in reasonable detail, IHS shall notify Omega as to whether or not it
believes such claim is covered by this Indemnity Agreement, and if IHS believes
such claim is not covered, including the specific reasons for its position. With
respect to claims by third parties, (a) if Omega declines to accept a bona fide
offer of settlement that is recommended by the IHS, which settlement without
cost to Omega releases Omega from all liability, the maximum liability of IHS
shall not exceed that amount for which it would have been liable had such
settlement been accepted, and (b) if IHS declines to accept a bona fide offer of
settlement recommended by Omega, IHS shall be liable for whatever outcome
results from such third party claim, provided, however, that IHS shall not
settle any claim covered by this Indemnity Agreement without either the written
consent of Omega or a full and complete release of Omega.
3. Notices. Any notice, request or other communication to be given by any
party hereunder shall be in writing and shall be sent by registered or certified
mail, postage prepaid, by overnight delivery, hand delivery or facsimile
transmission to the following address:
To IHS: Integrated Health Services, Inc.
00000 Xxx Xxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Telephone No.: 410/000-0000
Facsimile No.: 410/998-8700
With copy to Xxxxx X. Xxxxxxx and Xxxx X. Xxxxxx, Xx.
(which shall not LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
constitute notice): 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone No.: 212/000-0000
Facsimile No.: 212/424-8500
To Omega: Omega Healthcare Investors, Inc.
000 Xxxx Xxxxxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
Attn: F. Xxxxx Xxxxxxx
Telephone No.: 313/000-0000
Facsimile No.: 313/996-0020
With copy to Xxxxxx Xxxxxxx PLLC
(which shall not 0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
constitute notice): Xxxxxxxxxx Xxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxxxxx
Telephone No.: 248/000-0000
Facsimile No.: 248/203-0763
Notices shall be deemed given upon actual receipt.
4. Choice of law. This Indemnity Agreement shall be governed by and
construed in accordance with the laws of Michigan, except as to matters which
under the laws of the State, or under applicable procedural conflicts of laws
rules, require the application of laws of the State.
IHS CONSENTS TO IN PERSONAM JURISDICTION BEFORE THE STATE AND FEDERAL
COURTS OF THE STATES OF MICHIGAN AND THE STATES IN WHICH THE LEASED PROPERTY IS
LOCATED, AND AGREES THAT ALL DISPUTES CONCERNING THIS INDEMNITY AGREEMENT BE
HEARD IN THE STATE AND FEDERAL COURTS LOCATED IN THE STATES OF MICHIGAN OR THE
STATES IN WHICH THE LEASED PROPERTY IS LOCATED. IHS AGREES THAT SERVICE OF
PROCESS MAY BE EFFECTED UPON IT UNDER ANY METHOD PERMISSIBLE UNDER THE LAWS OF
THE STATES OF MICHIGAN OR THE STATES IN WHICH THE LEASED PROPERTY IS LOCATED AND
IRREVOCABLY WAIVES ANY OBJECTION TO VENUE IN THE STATE AND FEDERAL COURTS OF THE
STATES OF MICHIGAN OR THE STATES IN WHICH THE LEASED PROPERTY IS LOCATED.
IN WITNESS WHEREOF, the parties hereby execute this Indemnity Agreement as
of the day and year first set forth therein.
INTEGRATED HEALTH SERVICES, INC.
By:
-------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
OMEGA HEALTHCARE INVESTORS, INC., a
Maryland corporation
By:
-------------------------------
Name: F. Xxxxx Xxxxxxx
Title: Executive Vice President
EXHIBIT "A"
NAME OF SELLER STATE OF INCORPORATION
Gainesville Health Care Center, Inc. Florida
Rest Haven Nursing Center (Chestnut Pennsylvania
Hill), Inc.
Claremont Integrated Health, Inc. Pennsylvania
Rikad Properties, Inc. Florida
Integrated Management-Governor's Delaware
Park, Inc.
