Exhibit 10.17
PIMS INDEMNIFICATION LETTER
PRUDENTIAL INVESTMENT MANAGEMENT SERVICES LLC
0 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
In connection with the engagement agreement, dated the date hereof,
between Prudential Investment Management Services, LLC ("PIMS") and Heritage
Realty Trust, Inc. (the "Company"), the Company agrees to indemnify and hold
harmless PIMS and its affiliates, their respective directors, officers,
controlling persons (within the meaning of Section 15 of the Securities Act of
1933, as amended, or Section 20(a) of the Securities Exchange Act of 1934, as
amended), if any, agents and employees (collectively, "Indemnified Persons" and
individually, an "Indemnified Person") from and against any and all actions,
claims, suits, proceedings, liabilities, losses, damages and expenses incurred,
joint or several (collectively, "Claims"), by any Indemnified Person (including
reasonable fees and disbursements of one counsel for PIMS and the Indemnified
Persons ) which are related to or arise from PIMS' engagement by the Company
under that engagement agreement dated as of the date hereof, including Claims
that relate to or arise from any actions taken or omitted to be taken (including
any untrue or alleged untrue statements made or any statements omitted or
alleged to be omitted) by the Company or which relate to or arise from
securities laws or any other law or legal theory, and will reimburse PIMS and
any other Indemnified Person for all reasonable costs and expenses (including
reasonable fees and disbursements of one counsel for PIMS and the Indemnified
Persons), as they are incurred, in connection with investigating, preparing for,
providing depositions for, testifying in or defending any such action or claim,
formal or informal, investigation, inquiry or other proceeding, whether or not
in connection with pending or threatened litigation, whether or not PIMS or any
Indemnified Person is named as a party thereto and whether or not any liability
results therefrom, in each case related to or arising from the foregoing
(collectively, "Costs"). Notwithstanding the foregoing, the Company will not,
however, be responsible for any Claims or Costs which are found in a final
judgment by a court of competent jurisdiction (not subject to further appeal) to
have resulted directly and primarily from PIMS and/or an Indemnified Person's
gross negligence or willful misconduct.
The Company agrees that neither XXXX nor any other Indemnified Person
shall have any liability to the Company for or in connection with such
engagement except liability for Claims and/or Costs which are found in a final
judgment by a court of competent jurisdiction (not subject to further appeal) to
have resulted directly and primarily from PIMS' and/or an Indemnified Person's
gross negligence or willful misconduct. Promptly after receipt by an Indemnified
Person of notice of any Claim or the commencement of any action that could give
rise to Costs, such Indemnified Person will, if a claim in respect thereof is to
be made against the Company under this letter agreement, notify the Company
thereof; but the omission so to notify the Company will not relieve it from any
liability which it may have to any Indemnified
Person otherwise, unless and to the extent that such omission materially
prejudices the Company's ability to defend the same. In case any such action is
brought against any Indemnified Person and it notifies the Company of the
commencement thereof, the Company will be entitled to participate therein and to
assume the defense thereof, with counsel satisfactory to the Company and the
Indemnified Person (who shall not, except with the consent of the Indemnified
Person, be counsel to the Indemnified Person), and after notice from the Company
to such Indemnified Person of its election so to assume the defense thereof, the
Company will not be liable to such Indemnified Person under this section for any
legal or other expenses subsequently incurred by such Indemnified Person in
connection with the defense thereof other than reasonable costs of
investigation. The Company shall not, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened action in
respect of which any Indemnified Person is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Person unless
such settlement includes an unconditional release of such Indemnified Person
from all liability on any claims that are the subject matter of such action. An
Indemnified Person shall not be required to give such prior written consent with
respect to, and without such consent the Company shall not enter into, any such
settlement or compromise that imposes any material obligation on the Indemnified
Person or any other Indemnified Person or contains any admission of culpability
on the part of PIMS or any Indemnified Person.
In order to provide for just and equitable contribution, if a demand for
indemnification or reimbursement for Claims or Costs is made pursuant to these
provisions but is not available for any reason (other than by reason of the
gross negligence or wilfull misconduct of PIMS or an Indemnified Person), then
the Company, on the one hand, and PIMS, on the other hand, shall contribute to
such Claims or Costs for which such indemnification or reimbursement is held
unavailable (other than by reason of the gross negligence or wilfull misconduct
of PIMS or an Indemnified Person) in such proportion as is appropriate to
reflect the relative benefits to the Company, on the one hand, and PIMS and/or
an Indemnified Person on the other hand, in connection with the transaction or
transactions from which the Claims or Costs in question arose. The relative
benefits received by the Company, on the one hand, and by PIMS and/or an
Indemnified Person, on the other hand, shall be deemed to be in the same
proportion as the value (before deducting expenses) of the consideration
received by the Company or its shareholders or comparable equity owners, as the
case may be, in connection with the transaction or transactions from which the
Claims or Costs in question arose bears to the total fees actually received by
PIMS and/or an Indemnified Person in connection therewith. If the allocation
provided by the foregoing sentence is not permitted by applicable law, then such
allocation shall be based not only on such relative benefits determined as
aforesaid but also on the relative fault of the Company, on the one hand, and
PIMS and/or an Indemnified Person, on the other, as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, the parties' relative intents, knowledge,
access to information and, if applicable, whether any untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by PIMS and/or
an
Indemnified Person, and any other equitable considerations appropriate in the
circumstances. Any such contribution shall be subject to the limitation that in
any event PIMS' and/or an Indemnified Person' aggregate contribution to all
Claims or Costs for which contribution is available hereunder shall not exceed
the amount of fees actually received by PIMS pursuant to the particular
engagement relating to the transaction or transactions from which the Claims or
Costs in question arose.
The Company hereby consents to personal jurisdiction, service of process
and venue in any court in which any Claim which is subject to this
Indemnification Agreement is brought against PIMS or any other Indemnified
Person.
EACH OF PIMS AND EACH INDEMNIFIED PERSON AND THE COMPANY (ON ITS OWN
BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS
SHAREHOLDERS) WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE)
RELATING TO OR ARISING OUT OF THIS INDEMNIFICATION AGREEMENT.
In connection with XXXX' engagement of even date herewith, PIMS may also
be engaged to act for the Company in one or more additional capacities. The
terms of any such engagement may be embodied in one or more separate written
agreements, and the terms of any indemnification rights shall be addressed in
such other agreements.
The benefits of this Indemnification Agreement shall inure to the
respective successors and permitted assigns of the parties hereto and of the
Indemnified Persons hereunder and their successors, permitted assigns and
representatives, and the obligations and liabilities assumed in this
Indemnification Agreement by the parties hereto shall be binding upon their
respective successors and permitted assigns. This Indemnification Agreement may
not be assigned without the prior written consent of the nonassigning party (or
parties).
This Indemnification Agreement may not be amended or modified except in a
writing signed by the party hereto against which enforcement of this
Indemnification Agreement is sought and shall be governed by and construed in
accordance with the laws of the State of New Jersey, without regard to
principles of conflicts of laws.
Very truly yours,
HERITAGE REALTY TRUST, INC.
By: /s/ X X Xxxxxxxxxxx
--------------------------------------
Name:
Title:
Accepted and agreed as of the
date first above written:
PRUDENTIAL INVESTMENT MANAGEMENT
SERVICES LLC
By:
--------------------------------------
Name:
Title:
This Indemnification Agreement may not be amended or modified except in a
writing signed by the party hereto against which enforcement of this
Indemnification Agreement is sought and shall be governed by and construed in
accordance with the laws of the State of New Jersey, without regard to
principles of conflicts of laws.
Very truly yours,
HERITAGE REALTY TRUST, INC.
By:
--------------------------------------
Name:
Title:
Accepted and agreed as of the
date first above written:
PRUDENTIAL INVESTMENT MANAGEMENT
SERVICES LLC
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
