INDEMNIFICATION AGREEMENT
Exhibit
10.20
THIS
INDEMNIFICATION AGREEMENT is made and entered into as of the ___ day of June
2006 ("Agreement"), by and between CNL Hotels & Resorts, Inc., a Maryland
corporation (the "Company"), and _______
("Indemnitee").
WHEREAS,
at the request of the Company, Indemnitee currently serves as a director and/or
officer of the Company and may, therefore, be subjected to claims, suits or
proceedings arising as a result of his service; and
WHEREAS,
as an inducement to Indemnitee to continue to serve as such director and/or
officer, the Company has agreed to indemnify and to advance expenses and costs
incurred by Indemnitee in connection with any such claims, suits or proceedings,
to the maximum extent permitted by law; and
WHEREAS,
the parties by this Agreement desire to set forth their agreement regarding
indemnification and advance of expenses;
NOW,
THEREFORE, in consideration of the premises and the covenants contained herein,
the Company and Indemnitee do hereby covenant and agree as follows:
Section
1. Definitions.
For
purposes of this Agreement:
(a) "Change
in Control" means a change in control of the Company occurring after the
Effective Date of a nature that would be required to be reported in response
to
Item 6(e) of Schedule 14A of Regulation 14A (or in response to any similar
item
on any similar schedule or form) promulgated under the Securities Exchange
Act
of 1934, as amended (the "Act"), whether or not the Company is then subject
to
such reporting requirement; provided, however, that, without limitation, such
a
Change in Control shall be deemed to have occurred if after the Effective Date
(i) any "person" (as such term is used in Sections 13(d) and 14(d) of the Act)
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Act),
directly or indirectly, of securities of the Company representing 30% or more
of
the combined voting power of the Company's then outstanding securities without
the prior approval of at least two-thirds of the members of the Board of
Directors in office immediately prior to such person attaining such percentage
interest; (ii) there occurs a proxy contest, or the Company is a party to a
merger, consolidation, sale of assets, plan of liquidation or other
reorganization not approved by at least two-thirds of the members of the Board
of Directors then in office, as a consequence of which members of the Board
of
Directors
in office immediately prior to such transaction or event constitute less than
a
majority of the Board of Directors thereafter; or (iii) during any period of
two
consecutive years, other than as a result of an event described in clause
(a)(ii) of this Section
1, individuals who at the beginning of such period constituted the Board of
Directors (including for this purpose any new director whose election or
nomination for election by the Company's stockholders was approved by a vote
of
at least two-thirds of the directors then still in office who were directors
at
the beginning of such period) cease for any reason to constitute at least a
majority of the Board of Directors.
(b) "Corporate
Status" means the status of a person who is or was a director, trustee, officer,
employee, member, partner or agent of the Company or of any other corporation,
company, partnership, joint venture, trust, employee benefit plan or other
enterprise that is a subsidiary of the Company or for which such person is
or
was serving at the request of an officer
or the
Board of Directors
of the
Company.
(c) "Disinterested
Director" means a director of the Company who is not and was not a party to
the
Proceeding in respect of which indemnification is sought by
Indemnitee.
(d) "Effective
Date" means the date set forth in the first paragraph of this
Agreement.
(e) "Expenses"
shall include all reasonable and out-of-pocket attorneys' fees, retainers,
court
costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, or being or preparing to be a witness in
a
Proceeding.
(f)
"Independent Counsel" means a law firm, or a member of a law firm, that is
experienced in matters of corporation law and neither is, nor in the past five
years has been, retained to represent: (i) the Company or Indemnitee in any
matter material to either such party, or (ii) any other party to or witness
in
the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term "Independent Counsel" shall not include
any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the Company
or Indemnitee in an action to determine Indemnitee's rights under this
Agreement. If a Change of Control has not occurred, Independent Counsel shall
be
selected by the Board of Directors, with
the
approval of Indemnitee, which approval will not be unreasonably
withheld
or
delayed.
If a
Change of Control has occurred, Independent Counsel shall be recommended
by
the
Indemnitee, and
approved by
the
Board of Directors, which approval will not be unreasonably withheld
or
delayed.
(g) "Proceeding"
includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative hearing,
inquiry or any other proceeding, whether civil, criminal, administrative or
investigative (including on appeal) unless otherwise specifically agreed in
writing by the Company and Indemnitee.
Section
2. Services
by Indemnitee.
This
Agreement shall not impose any obligation on Indemnitee or the Company to
continue Indemnitee’s service to the Company beyond any period otherwise
required by law or by other agreements or commitments of the parties, if
any.
Section
3. Indemnification
- General.
The
Company shall indemnify and,
without
need for any Board determination,
advance
Expenses to, Indemnitee (a) as provided in this Agreement and (b) otherwise
to
the maximum extent permitted by Maryland law in effect from
time
to time; provided, however, that no change in Maryland law shall have the effect
of reducing the benefits available to Indemnitee hereunder based on Maryland
law
as in effect on the Effective Date. The
rights of Indemnitee provided in this Section 3 shall include, without
limitation, the rights set forth in the other sections of this Agreement,
including any additional indemnification permitted by Section 2-418(g) of the
Maryland General Corporation Law (“MGCL”).
Section
4. Proceedings
Other Than Proceedings by or in the Right of the Company.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 4 if, by reason of his Corporate Status, he is, or is threatened to
be,
made a party to or a witness in any Proceeding, other than a Proceeding by
or in
the right of the Company. Pursuant to this Section 4, Indemnitee shall be
indemnified against all judgments, penalties, fines and amounts paid in
settlement and all Expenses actually and reasonably incurred by him or on his
behalf in connection with a Proceeding by reason of his Corporate Status unless
it is established that (i) the act or omission of Indemnitee was material to
the
matter giving rise to the Proceeding and (a) was committed in bad faith or
(b)
was the result of active and deliberate dishonesty, (ii) Indemnitee actually
received an improper personal benefit in money, property or services, or (iii)
in the case of any criminal Proceeding, Indemnitee had reasonable cause to
believe that the
act
or omission
was
unlawful.
Section
5. Proceedings
by or in the Right of the Company.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 5 if, by reason of his Corporate Status, he is, or is threatened to
be,
made a party to or a witness in any Proceeding brought by or in the right of
the
Company.
Pursuant to this Section 5, Indemnitee shall be indemnified against all amounts
paid in settlement and all Expenses actually and reasonably incurred by him
or
on his behalf in connection with a
Proceeding
by or in
the right of the Company
unless
(1) it
is
established that (i) the act or omission of Indemnitee was material to the
matter giving rise to such a Proceeding and
(a) was
committed in bad faith or (b) was the result of active and deliberate dishonesty
or (ii) Indemnitee actually received an improper personal benefit in money,
property or services or
(2)
the Indemnitee shall have been adjudged to be liable to the Company.
Section
6. Court-Ordered
Indemnification.
Notwithstanding any other provision of this Agreement, a court of appropriate
jurisdiction, upon application of Indemnitee and such notice as the court shall
require, may order indemnification in the following circumstances:
(a) if
it
determines Indemnitee is entitled to reimbursement under Section 2-418(d)(1)
of
the MGCL, the court shall order indemnification, in which case Indemnitee shall
be entitled to recover the Expenses
of
securing such reimbursement; or
(b) if
it
determines that Indemnitee is fairly and reasonably entitled to indemnification
in view of all the relevant circumstances, whether or not Indemnitee (i) has
met
the standards of conduct set forth in Section 2-418(b) of the MGCL or (ii)
has
been adjudged liable for receipt of an improper personal benefit under Section
2-418(c) of the MGCL, the court may order such indemnification as the court
shall deem proper. However, indemnification with respect to any Proceeding
by or
in the right of the Company or in which liability shall have been adjudged
in
the circumstances described in Section 2-418(c) of the MGCL shall be limited
to
Expenses actually and reasonably incurred by him or on his behalf in connection
with a Proceeding.
Section
7. Indemnification
for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, and without limiting
any
such provision, to the extent that Indemnitee is, by reason of his Corporate
Status, made a party to and is successful, on the merits or otherwise, in the
defense of any Proceeding, he shall be indemnified for all Expenses actually
and
reasonably incurred by him or on his behalf in connection therewith. If
Indemnitee is not wholly successful in such Proceeding but is successful, on
the
merits or otherwise, as to one or more but less than all claims, issues or
matters in such Proceeding, the Company shall indemnify Indemnitee under this
Section 7 for all Expenses actually and reasonably incurred by him or on his
behalf in connection with each successfully resolved claim, issue or matter,
allocated on a reasonable basis
taking
into account a reasonable allocation of the Expenses among the matters in
question.
For
purposes of this Section
7
and
without limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed to be a
successful result as to such claim, issue or matter.
Section
8. Advance
of Expenses.
The
Company shall advance all reasonable Expenses actually and reasonably incurred
by or on behalf of Indemnitee in connection with any Proceeding (other than
a
Proceeding brought to enforce indemnification under this Agreement, applicable
law, the Charter or Bylaws of the Company, any agreement or a resolution of
the
stockholders entitled to vote generally in the election of directors or of
the
Board of Directors) to which Indemnitee is, or is threatened to be, made a
party
or a witness, within ten days after the receipt by the Company of a statement
or
statements from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the Expenses incurred by
Indemnitee and,
in the
case of the initial advance of Expenses,
shall be
preceded or accompanied by a written affirmation by Indemnitee of Indemnitee's
good faith belief that the standard of conduct necessary for indemnification
by
the Company as authorized by law and by this Agreement has been met and a
written undertaking by or on behalf of Indemnitee, in substantially the form
attached hereto as Exhibit A or in such form as may be required under applicable
law as in effect at the time of the execution thereof, to reimburse to
the
Company the
portion of any Expenses advanced to Indemnitee relating to claims, issues or
matters in the Proceeding as to which it shall ultimately be established that
the standard
of conduct has not been met and which have not been successfully resolved as
described in Section 7.
To the
extent that Expenses advanced to Indemnitee do not relate to a specific claim,
issue or matter in the Proceeding, such Expenses shall be allocated on a
reasonable basis
taking
into account a reasonable allocation of the Expenses among the matters in
question.
The
undertaking required by this Section 8 shall be an unlimited general obligation
by or on behalf of Indemnitee and shall be accepted without reference to
Indemnitee’s financial ability to repay such advanced Expenses and without any
requirement to post security therefor.
Section
9. Procedure
for Determination of Entitlement to Indemnification.
(a) To
obtain
indemnification under this Agreement, Indemnitee shall submit to the Company
a
written request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and is reasonably necessary
to determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon receipt
of
such a request for indemnification, advise the Board of Directors in writing
that Indemnitee has requested indemnification.
(b) Upon
written request by Indemnitee for indemnification pursuant to the first sentence
of Section 9(a) hereof, a determination, if required by applicable law, with
respect to Indemnitee's entitlement thereto shall promptly be made in the
specific case: (i) if a Change in Control shall have occurred, by Independent
Counsel in a written opinion to the Board of Directors, a copy of which shall
be
delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred,
(A) by the Board of Directors (or a duly authorized committee thereof) by a
majority vote of a quorum consisting of Disinterested Directors (as herein
defined), or (B) if a quorum of the Board of Directors consisting of
Disinterested Directors is not obtainable or, even if obtainable, such quorum
of
Disinterested Directors so directs, by Independent Counsel in a written opinion
to the Board of Directors, a copy of which shall be delivered to Indemnitee,
or
(C) if so directed by
the
Board of Directors, by the stockholders of the Company;
provided that shares held by directors of the Company who are not Disinterested
Directors may not be voted on such matter.
If it
is so determined that Indemnitee is entitled to indemnification, payment to
Indemnitee shall be made within ten days after such determination. Indemnitee
shall cooperate with the person, persons or entity making such determination
with respect to Indemnitee's entitlement to indemnification, including providing
to such person, persons or entity upon reasonable advance request any
documentation or information which is not privileged or otherwise protected
from
disclosure and which is reasonably available to Indemnitee and reasonably
necessary to such determination in the discretion of the Board of Directors
or
Independent Counsel if retained pursuant to
this
Section 9. Any Expenses actually and reasonably incurred by Indemnitee in so
cooperating with the person, persons or entity making such determination shall
be borne by the Company (irrespective of the determination as to Indemnitee's
entitlement to indemnification) and the Company shall indemnify and hold
Indemnitee harmless therefrom.
Section
10. Presumptions
and Effect of Certain Proceedings.
(a) In
making
a determination with respect to entitlement to indemnification hereunder, the
person
or
persons or entity making such determination shall presume that Indemnitee is
entitled to indemnification under this Agreement if Indemnitee has submitted
a
request for indemnification in accordance with Section 9(a) of this Agreement,
and the Company shall have the burden of proof to overcome that presumption
in
connection with the making of any determination contrary to that
presumption.
(b) The
termination of any Proceeding by judgment, order
or
settlement does not create a presumption that Indemnitee did not meet the
requisite standard of conduct described herein for indemnification.
(c) The
termination of any Proceeding by conviction, or a plea of nolo contendere
or its
equivalent, or an entry of an order of probation prior to judgment, creates
a
rebuttable presumption that the Indemnitee did not meet the requisite standard
of conduct described herein for indemnification.
Section
11. Remedies
of Indemnitee.
(a) If
(i) a
determination is made pursuant to Section 9 of this Agreement that Indemnitee
is
not entitled to indemnification under this Agreement, (ii) advance of Expenses
is not timely made pursuant to Section 8 of this Agreement, (iii) no
determination of entitlement to indemnification shall have been made pursuant
to
Section 9(b) of this Agreement within 60 days
after receipt by the Company of the request for indemnification, (iv) payment
of
indemnification is not made pursuant to Section 7 of this Agreement within
ten
days after receipt by the Company of a written request therefor, or (v) payment
of indemnification is not made within ten days after a determination has been
made that Indemnitee is entitled to indemnification, Indemnitee shall be
entitled to seek an
adjudication in an appropriate court located in the
State
of Maryland, or in any other court of competent jurisdiction, of his entitlement
to such indemnification or advance of Expenses. Alternatively, Indemnitee,
at
his option, may seek an award in arbitration to be conducted by a single
arbitrator pursuant to the commercial Arbitration Rules of the American
Arbitration Association. Indemnitee shall commence such proceeding seeking
an
adjudication or an award in arbitration within 180 days following the date
on
which Indemnitee first has the right to commence such proceeding pursuant to
this Section 11(a); provided, however, that the foregoing clause shall not
apply
to a proceeding brought by Indemnitee to enforce his rights under Section 7
of
this Agreement.
(b) In
any
judicial proceeding or arbitration commenced pursuant to this Section 11 the
Company shall have the burden of proving that Indemnitee is not entitled to
indemnification or advance of Expenses, as the case may be.
(c) If
a
determination shall have been made pursuant to Section 9(b) of this Agreement
that Indemnitee is entitled to indemnification, the Company shall be bound
by
such determination in any judicial proceeding or arbitration commenced pursuant
to this Section 11, absent a misstatement by Indemnitee of a material fact,
or
an omission of a material fact necessary to make Indemnitee's statement not
materially misleading, in connection with the request for
indemnification.
(d) In
the
event that Indemnitee, pursuant to this Section 11, seeks a judicial
adjudication of or an award in arbitration to enforce his rights under, or
to
recover damages for breach of, this Agreement, Indemnitee shall be entitled
to
recover from the Company, and shall be indemnified by the Company for, any
and
all Expenses actually and reasonably incurred by him in such judicial
adjudication or arbitration. If it shall be determined in such judicial
adjudication or arbitration that Indemnitee is entitled to receive part but
not
all of the indemnification or advance of Expenses sought, the Expenses incurred
by Indemnitee in connection with such judicial adjudication or arbitration
shall
be appropriately prorated.
Section
12. Defense
of the Underlying Proceeding.
(a) Indemnitee
shall notify the Company promptly upon being served with or receiving any
summons, citation, subpoena, complaint, indictment, information, notice, request
or other document relating to any Proceeding which may result in the right
to
indemnification or the advance of Expenses hereunder; provided, however, that
the failure to give any such notice shall not disqualify Indemnitee from the
right, or otherwise affect in any manner any right of Indemnitee, to
indemnification or the advance of Expenses under this Agreement unless the
Company’s ability to defend in such Proceeding or to obtain proceeds under any
insurance policy is materially and adversely prejudiced thereby, and then only
to the extent the Company is thereby actually so prejudiced.
(b) Subject
to the provisions of the last sentence of this Section 12(b) and of Section
12(c) below, the Company shall have the right to defend Indemnitee in any
Proceeding which may give rise to indemnification hereunder; provided, however,
that the Company shall notify Indemnitee of any such decision to defend within
15 days
following receipt of notice of any such Proceeding under Section 12(a) above.
The Company shall not, without the prior written consent of Indemnitee, which
shall not be unreasonably withheld or delayed, consent to the entry of any
judgment against Indemnitee or enter into any settlement or compromise which
(i)
includes an admission of fault of Indemnitee or (ii) does not include, as an
unconditional term thereof, the full release of Indemnitee from all liability
in
respect of such Proceeding, which release shall be in form and substance
reasonably satisfactory to Indemnitee. This Section 12(b) shall not apply to
a
Proceeding brought by Indemnitee under Section 11 above or Section 18
below.
(c) Notwithstanding
the provisions of Section 12(b) above, if in a Proceeding to which Indemnitee
is
a party by reason of Indemnitee’s Corporate Status, (i) Indemnitee reasonably
concludes, based upon an opinion of counsel reasonably
approved by the Company, which approval shall not be unreasonably
withheld
or
delayed,
that
he may
have separate defenses or counterclaims to assert with respect to any issue
which may not be consistent with other defendants in such Proceeding, (ii)
Indemnitee reasonably concludes, based upon an opinion of counsel reasonably
approved by the Company, which approval shall not be unreasonably withheld
or
delayed,
that an
actual or apparent conflict of interest or potential conflict of interest exists
between Indemnitee and the Company, or (iii) if the Company fails to assume
the
defense of such Proceeding in a timely manner, Indemnitee shall be entitled
to
be represented by separate legal counsel of Indemnitee’s choice, subject to the
prior approval of the Company, which shall not be unreasonably
withheld
or
delayed,
at the
expense of the Company. In addition, if the Company fails to comply with any
of
its obligations under this Agreement or in the event that the Company or any
other person takes any action to declare this Agreement void or unenforceable,
or institutes any Proceeding to deny or to recover from Indemnitee the benefits
intended to be provided to Indemnitee hereunder, Indemnitee shall have the
right
to retain counsel of Indemnitee’s choice, subject to the prior reasonable
approval of the Company, which shall not be unreasonably withheld
or
delayed,
at
the
expense
of the Company (subject to Section 11(d)), to represent Indemnitee in connection
with any such matter.
Section
13. Non-Exclusivity;
Survival of Rights; Subrogation; Insurance.
(a) The
rights of indemnification and advance of Expenses as provided by this Agreement
shall not be deemed exclusive of any other rights to which Indemnitee may at
any
time be entitled under applicable law, the Charter or Bylaws of the Company,
any
agreement or a resolution of the stockholders entitled to vote generally in
the
election of directors or of the Board of Directors, or otherwise. No amendment,
alteration or repeal of this Agreement or of any provision hereof shall limit
or
restrict any right of Indemnitee under this Agreement in respect of any action
taken or omitted by such Indemnitee in his Corporate Status prior to such
amendment, alteration or repeal.
(b) In
the
event of any payment under this Agreement, the Company shall be subrogated
to
the extent of such payment to all of the rights of recovery of Indemnitee,
who
shall execute all papers required and take all action necessary to secure such
rights, including execution of such documents as are necessary to enable the
Company to bring suit to enforce such rights.
(c) The
Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable or payable or reimbursable as Expenses hereunder if
and
to the extent that Indemnitee has otherwise actually received such payment
under
any insurance policy, contract, agreement or otherwise.
Section
14. Insurance.
The
Company will use its reasonable best efforts to acquire directors and officers
liability insurance, on customary terms and conditions consistent with past
practice, with the advice of counsel, covering Indemnitee or claim(s) made
against Indemnitee for service as a director or officer of the Company and
covering the Company for any indemnification or advance of Expenses made by
the
Company to Indemnitee for claim(s) made against Indemnitee for service as a
director or officer of the Company. Without in any way limiting any other
obligation under this Agreement, the Company shall indemnify Indemnitee for
any
payment by Indemnitee arising out of the amount of any deductible or retention
and the amount of any excess of the aggregate of all judgments, penalties,
fines, settlements and reasonable Expenses actually and reasonably incurred
by
Indemnitee in connection with a Proceeding over the coverage of any insurance
referred to in the previous sentence.
Section
15. Indemnification
for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is or may be, by reason of his Corporate Status, a witness in any
Proceeding, whether instituted by the Company or any other party, and to which
Indemnitee is not a party but in which the Indemnitee receives a subpoena to
testify, he shall be advanced all reasonable Expenses and indemnified against
all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.
Section
16. Duration
of Agreement; Binding Effect.
(a) The
indemnification and advance of Expenses provided by, or granted pursuant to,
this Agreement shall be binding upon and be enforceable by the parties hereto
and their respective successors and assigns (including any direct or indirect
successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of the Company), shall continue
as
to an Indemnitee who has ceased to be a director, trustee, officer, employee,
member, partner or agent of the Company or of any other corporation, company,
partnership, joint venture, trust, employee benefit plan or other enterprise
that is a subsidiary of the Company or for which such person is or was serving
at the written request of the Company, and shall inure to the benefit of
Indemnitee and his spouse, assigns, heirs, devisees, executors and
administrators and other legal representatives.
(b) The
Company shall require and cause any successor (whether direct or indirect by
purchase, merger, consolidation or otherwise) to all, substantially all or
a
substantial part, of the business and/or assets of the Company, by written
agreement in form and substance
reasonably
satisfactory to Indemnitee, expressly to assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would
be
required to perform if no such succession had taken place.
Section
17. Severability.
If any
provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever: (a) the validity, legality and
enforceability of the remaining provisions of this Agreement (including, without
limitation, each portion of any section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable that is not itself
invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby; and (b) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall
be
construed so as to give effect to the intent manifested thereby.
Section
18. Exception
to Right of Indemnification or Advance of Expenses.
Notwithstanding any other provision of this Agreement, Indemnitee shall not
be
entitled to indemnification or advance of Expenses under this Agreement with
respect to any Proceeding brought by Indemnitee, unless (a) the Proceeding
is
brought to enforce indemnification under this Agreement, and then only to the
extent in accordance with and as authorized by Sections 8 and 11 of this
Agreement, or (b) the Company’s Bylaws, as amended, the Charter, a resolution of
the stockholders entitled to vote generally in the election of directors or
of
the Board of Directors or an agreement approved by the Board of Directors to
which the Company is a party expressly provide otherwise.
Section
19. Identical
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
for
all purposes be deemed to be an original but all of which together shall
constitute one and the same Agreement. One such counterpart signed by the party
against whom enforceability is sought shall be sufficient to evidence the
existence of this Agreement.
Section
20. Headings.
The
headings of the paragraphs of this Agreement are inserted for convenience only
and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
Section
21. Modification
and Waiver.
No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both of the parties hereto. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of
any
other provisions hereof (whether or not similar) nor shall such waiver
constitute a continuing waiver.
Section
22. Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if (i) delivered by hand
and
receipted for by the party to whom said notice or other communication shall
have
been directed, or (ii) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so
mailed:
(a) If
to
Indemnitee, to: The address set forth on the signature page hereto.
(b) If
to the
Company to:
CNL
Hotels & Resorts, Inc.
CNL
Center II at City Commons
000
Xxxxx
Xxxxxx Xxxxxx
Xxxxx
000
Xxxxxxx,
Xxxxxxx 00000
Attn:
General Counsel
or
to
such other address as may have been furnished to Indemnitee by the Company
or to
the Company by Indemnitee, as the case may be.
Section
23. Governing
Law.
The
parties agree that this Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Maryland, without regard
to its conflicts of laws rules.
Section
24. Entire
Agreement.
This
Agreement contains the entire agreement between the parties with respect to
the
subject matter hereof and supersedes all prior agreements, written or oral,
with
the Company or its subsidiaries (or any predecessor of either), except the
provisions of any employment agreement, between the Company and the
Indemnitee.
Section
25. Miscellaneous.
Use of
the masculine pronoun shall be deemed to include usage of the feminine pronoun
where appropriate.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and
year first above written.
ATTEST: CNL
HOTELS & RESORTS, INC.
_________________________
By:
___________________________
Name:
Title:
WITNESS:
INDEMITEE
_________________________
__________________________
Name:
Address:
EXHIBIT
A
FORM
OF
UNDERTAKING TO REPAY EXPENSES ADVANCED
The
Board
of Directors of CNL Hotels & Resorts, Inc.
Re:
Undertaking to Repay Expenses Advanced
Ladies
and Gentlemen:
This
undertaking is being provided pursuant to that certain Indemnification Agreement
dated the ___ day of June 2006, by and between CNL Hotels & Resorts, Inc.
(the "Company") and the undersigned Indemnitee (the "Indemnification
Agreement"), pursuant to which I am entitled to advance of expenses in
connection with [Description
of Proceeding]
(the
"Proceeding").
Terms
used herein and not otherwise defined shall have the meanings specified in
the
Indemnification Agreement.
I
am
subject to the Proceeding by reason of my Corporate Status or by reason of
alleged actions or omissions by me in such capacity. I hereby affirm that
at
all times, insofar as I was involved as a director and/or an officer of the
Company, in any of the facts or events giving rise to the Proceeding, I (1)
acted in good faith and honestly, (2) did not receive any improper personal
benefit in money, property or services and (3) in the case of any criminal
proceeding, had no reasonable cause to believe that any act or omission by
me
was unlawful.
In
consideration of the advance of Expenses by the Company for reasonable
attorneys' fees and related expenses incurred by me in connection with the
Proceeding (the "Advanced Expenses"), I hereby agree that if, in connection
with
the Proceeding, it is established that (1) an act or omission by me was material
to the matter giving rise to the Proceeding and (a) was committed in bad faith
or (b) was the result of active and deliberate dishonesty or (2) I actually
received an improper personal benefit in money, property or services or (3)
in
the case of any criminal proceeding, I had reasonable cause to believe that
the
act or omission was unlawful, then I shall promptly reimburse the portion of
the
Advanced Expenses relating to the claims, issues or matters in the Proceeding
as
to which the foregoing findings have been established and which have not been
successfully resolved as described in Section 7 of the Indemnification
Agreement. To the extent that Advanced Expenses do not relate to a specific
claim, issue or matter in the Proceeding, I agree that such Expenses shall
be
allocated on a reasonable basis taking
into account a reasonable allocation of the Expenses among the matters in
question.
IN
WITNESS WHEREOF, I have executed this Affirmation and Undertaking on this ___
day of ____________________, 200__.
WITNESS:
____________________________ _____________________________(SEAL)
ny-fs1\1189790v02
