EXHIBIT 10.26
CROSS INDEMNIFICATION AND CONTRIBUTION AGREEMENT
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THIS CROSS INDEMNIFICATION AND CONTRIBUTION AGREEMENT (this
"Agreement") is made and entered into as of January 26th, 1998, by and among
ELDERTRUST, a Maryland real estate investment trust (the "Company"),
ELDERTRUST OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership (the
"Operating Partnership"), and GENESIS HEALTH VENTURES, INC., a Pennsylvania
corporation ("Genesis").
RECITALS
WHEREAS, the Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-11 (No.
333-37451) (such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information and the Rule 434 Information (as hereinafter defined by
reference), as applicable, is herein called the "Form S-11");
WHEREAS, Genesis, as a co-registrant with the Company, has filed with
the Commission a registration statement on Form S-3 (No. 333-37451) (such
registration statement, including the exhibits thereto and schedules thereto
at the time it became effective and including the Rule 430A Information and
the Rule 434 Information (as hereinafter defined by reference), as applicable,
is herein called the "Form S-3"; and the Form S-11 and the Form S-3 are
hereinafter referred to as the "Registration Statement"); and
WHEREAS, all capitalized terms used herein not otherwise defined
herein shall have the meanings ascribed thereto in that certain U.S. Purchase
Agreement of even date herewith among the Company, the Operating Partnership,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, BT
Alex. Brown Incorporated, Goldman, Sachs & Co. and each of the other U.S.
Underwriters named in Schedule A thereto and the related International
Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual
promises and covenants set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:
SECTION 1. Indemnification.
(a) Indemnification of Genesis, Directors and Officers. The Company
and the Operating Partnership jointly and severally hereby agree to indemnify
and hold harmless Genesis, its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls Genesis within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever (including, without limitation, any and all loss,
liability, claim, damage and expense to any Underwriter), as
incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading or arising
out of any untrue statement or alleged untrue statement of a material
fact included in any preliminary prospectus or the Prospectuses (or
any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever (including, without limitation, any and all loss,
liability, claim, damage and expense to any Underwriter), as
incurred, arising out of (A) the violation of any applicable laws or
regulations of foreign jurisdictions where Reserved Securities have
been offered and (B) any untrue statement or alleged untrue statement
of a material fact included in the supplement or prospectus wrapper
material distributed in Canada or in connection with the reservation
and sale of the Reserved Securities to eligible employees and others
having a business relationship with the Company or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein, when considered in conjunction with the
Prospectuses or preliminary prospectuses, not misleading;
(iii) against any and all loss, liability, claim, damage and
expense whatsoever (including, without limitation, any and all loss,
liability, claim, damage and expense to any Underwriter), as
incurred, to the extent of the aggregate amount paid in settlement of
any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission or in connection with any
violation of the nature referred to in Section 1(a)(ii)(A) hereof;
provided that (subject to Section 1(d) below) any such settlement is
effected with the written consent of the Company; and
(iv) against any and all expense whatsoever (including,
without limitation, any and all loss, liability, claim, damage and
expense to any Underwriter), as incurred (including the fees and
disbursements of counsel chosen by Genesis), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission or in connection with any violation of the nature referred
to in Section 1(a)(ii)(A) hereof, to the extent that any such expense
is not paid under (i), (ii) or (iii) above;
provided, however, that the indemnity agreement under this Section 1(a) shall
not apply to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue statement or
omission with respect to which Genesis agrees to provide indemnification
pursuant to Section 1(b).
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(b) Indemnification of the Company, the Operating Partnership,
Trustees, Trustee Nominees and Officers. Genesis agrees to indemnify and hold
harmless the Company, its trustees, trustee nominees named in the Registration
Statement, each of its officers who signed the Registration Statement, the
Operating Partnership, and each person, if any, who controls the Company or
the Operating Partnership within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever (including, without limitation, any and all loss,
liability, claim, damage and expense to any Underwriter), as incurred,
arising out of any untrue statement or alleged untrue statement of a
material fact, with respect to Genesis and its subsidiaries, contained
in the Registration Statement (or any amendment thereto), including the
Form S-3 and the Rule 430A Information and the Rule 434 Information, if
applicable, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements
therein not misleading, with respect to Genesis and its subsidiaries,
or arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the
Prospectuses (or any amendment or supplement thereto), with respect to
Genesis and its subsidiaries, or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; with respect to Genesis and its subsidiaries;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever (including, without limitation, any and all loss,
liability, claim, damage and expense to any Underwriter), as incurred,
arising out of any untrue statement or alleged untrue statement of a
material fact included in the supplement or prospectus wrapper material
distributed in Canada, with respect to Genesis and its subsidiaries, or
the omission or alleged omission therefrom of a material fact necessary
to make the statements therein, when considered in conjunction with the
Prospectuses or preliminary prospectuses, not misleading; with respect
to Genesis and its subsidiaries;
(iii) against any and all loss, liability, claim, damage and
expense whatsoever (including, without limitation, any and all loss,
liability, claim, damage and expense to any Underwriter), as incurred,
to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, provided that (subject to Section 1(d)
below) any such settlement is effected with the written consent of
Genesis; and
(iv) against any and all expense whatsoever (including,
without limitation, any and all loss, liability, claim, damage and
expense to any Underwriter), as incurred (including the fees and
disbursements of counsel chosen by the Company), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission to the extent that any such expense is not paid under (i),
(ii) or (iii) above.
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(c) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to
Section 1(a) above, counsel to the indemnified parties shall be selected by
Genesis, and, in the case of parties indemnified pursuant to Section 1(b)
above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. Notwithstanding the foregoing, if it so elects within a
reasonable time after receipt of such notice, an indemnifying party, jointly
with any other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it and approved by the
indemnified parties defendant in such action (which approval shall not be
unreasonably withheld), unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to
them which are different from or in addition to those available to such
indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying party shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action, except the indemnifying party shall be liable for the reasonable
costs of investigation subsequently incurred by the indemnified party in
connection with the defense. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 1 or Section 2 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 1(a)(iii) or Section 1(b)(iii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
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SECTION 2. Contribution. If the indemnification provided for in
Section 1 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, in such
proportion as is appropriate to reflect the relative fault of the Company and
the Operating Partnership on the one hand and of Genesis on the other hand in
connection with the statements or omissions, or in connection with any
violation of the nature referred to in Section 1(a)(ii)(A) hereof, which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative fault of the Company and the Operating Partnership on
the one hand and Genesis on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of
a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or the Operating Partnership or
by Genesis and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission or any
violation of the nature referred to in Section 1(a)(ii)(A) hereof.
The Company and the Operating Partnership and Genesis agree that it
would not be just and equitable if contribution pursuant to this Section 2
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above
in this Section 2. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 2 shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 2, each person, if any, who controls
Genesis within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as Genesis, and each
trustee of the Company, each trustee nominee of the Company named in the
Registration Statement, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company or
the Operating Partnership within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company and the Operating Partnership, respectively. For purposes of this
Section 2, the Company, the Operating Partnership and its subsidiaries shall
be deemed one party jointly and severally liable for any obligations hereunder
and Genesis and its subsidiaries shall be deemed one party jointly and
severally liable for any obligations hereunder.
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SECTION 3. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to Genesis
shall be directed to Genesis at 148 West State Street, Kennett Square,
Pennsylvania 19348, attention of Michael R. Walker, Chairman of the Board and
Chief Executive Officer; and notices to the Company or the Operating
Partnership shall be directed to the Company at 415 McFarlan Road, Suite 202,
Kennett Square, Pennsylvania 19348, attention of Edward B. Romanov, Jr.,
President and Chief Executive Officer.
SECTION 4. Parties. This Agreement shall each inure to the benefit of
and be binding upon the parties hereto and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties
hereto and their respective successors and the controlling persons and
officers, trustee and trustee nominees referred to in Sections 1 and 2 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the parties hereto and their respective
successors, and said controlling persons and officers, trustee and trustee
nominees and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 5. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, the parties have caused this Cross
Indemnification and Contribution Agreement to be executed on their behalf as
of the date first above written.
Very truly yours,
ELDERTRUST
By: /s/ Edward B. Romanov, Jr.
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Edward B. Romanov, Jr.
President and Chief Executive Officer
ELDERTRUST OPERATING LIMITED
PARTNERSHIP
By: ElderTrust Realty Group, Inc.
(its general partner)
By: /s/ Edward B. Romanov, Jr.
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Edward B. Romanov, Jr.
Chief Executive Officer
GENESIS HEALTH VENTURES, INC.
By: /s/ Michael R. Walker
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Michael R. Walker
Chairman and Chief Executive Officer
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