EXHIBIT 10.5
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement"), dated as of [__________]
[__], 2005, is made by and between Inland American Real Estate Trust, Inc., a
Maryland corporation (the "Company" or the "Indemnitor"), as indemnitor, and the
director, officer, employee or agent of the Company executing this Agreement as
of or subsequent to the date hereof whether by separate instrument, counterpart
or otherwise, as indemnitee (the "Indemnified Party"). Capitalized terms used
herein but not otherwise defined herein shall have the meanings ascribed to them
in the Company's Articles of Incorporation (as amended or restated from time to
time, the "Articles").
R E C I T A L S
A. The Company was formed on October 4, 2004, and intends to operate as a
real estate investment trust (a "REIT") for federal and state income tax
purposes.
B. The Articles and the Company's Bylaws (as amended or restated from
time to time, the "Bylaws") authorize the Company to indemnify and advance
expenses to the Indemnified Party, subject to certain limitations and
conditions.
C. The Indemnified Party has requested that the Company enter into a
contract for indemnity and advancement of expenses pursuant to the applicable
sections of the Articles and Bylaws, and the Company is willing to enter into
such a contract.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. COMPANY INDEMNIFICATION OF THE INDEMNIFIED PARTIES.
(a) Subject to paragraphs (b), (c) and (d) of this SECTION 1, the
Company shall, to the fullest extent permitted by Maryland statutory or
decisional law, as amended or interpreted, and, without limiting the
generality of the foregoing, in accordance with Section 2-418 of the
Maryland General Corporation Law, indemnify and pay, advance or reimburse
reasonable expenses to the Indemnified Party from and against any liability
or loss to which the Indemnified Party may become subject or which the
Indemnified Party may incur by reason of his or her services as a director,
officer, employee or agent of the Company.
(b) The Company shall not indemnify nor pay, advance or reimburse
expenses to the Indemnified Party unless:
(i) the Indemnified Party has determined, in good faith, that
the course of conduct which caused the liability or loss was in the
best interest of the Company;
(ii) the Indemnified Party was acting on behalf of or performing
services on the part of the Company;
(iii) the liability or loss was not the result of negligence or
misconduct on the part of the Indemnified Party except that in the
event the Indemnified Party is or was an Independent Director, the
liability or loss shall not have been the result of gross negligence
or willful misconduct;
(iv) the indemnification or agreement to be held harmless is
recoverable only out of the Net Assets of the Company and not from the
Stockholders; and
(v) in respect to an indemnification or reimbursement of legal
fees, the requisite Board of Directors, special legal counsel or
stockholders determination has been made that indemnification or
reimbursement is proper.
(c) Notwithstanding anything to the contrary in paragraph (b) above,
the Company shall not indemnify the Indemnified Party for liabilities or
losses arising from or out of an alleged violation of federal or state
securities laws by the Indemnified Party unless one or more of the
following conditions are met:
(i) there has been a successful adjudication on the merits of
each count involving alleged securities law violations as to the
Indemnified Party;
(ii) the claims have been dismissed with prejudice on the merits
by a court of competent jurisdiction as to the Indemnified Party; or
(iii) a court of competent jurisdiction approves a settlement of
the claims and finds that indemnification of the settlement and
related costs should be made and the court considering the request has
been advised of the position of the Securities and Exchange Commission
and the published opinions of any state securities regulatory
authority in which securities of the Company were offered or sold as
to indemnification for violations of securities laws.
(d) The Company shall advance amounts to the Indemnified Party for
legal and other expenses and costs incurred as a result of any legal action
for which indemnification is being sought only in accordance with Section
2-418 of the Maryland General Corporation Law, and only if all of the
following conditions are satisfied:
(i) the legal action relates to acts or omissions with respect
to the performance of duties or services by the Indemnified Party for
or on behalf of the Company;
(ii) the legal action is initiated by a third party who is not a
Stockholder or the legal action is initiated by a Stockholder acting
in his or her capacity as such and a court of competent jurisdiction
specifically approves the advancement;
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(iii) the Indemnified Party provides written affirmation of his
or her good faith belief that the standard of conduct necessary for
indemnification by the Company as authorized by this Agreement and
Maryland law has been met; and
(iv) the Indemnified Party undertakes in writing to repay the
advanced funds to the Company, together with the applicable legal rate
of interest thereon, in the event that the Indemnified Party is found
not to be entitled to indemnification.
(e) The Company shall have the power to purchase and maintain
insurance or provide similar protection on behalf of the Indemnified Party
against any liability or loss asserted that was incurred in any capacity
with the Company or arising out of this status; provided, however, that the
Company shall not incur the costs of any liability insurance that insures
any Person against liability or loss for which he, she or it could not be
indemnified under the Articles.
(f) Nothing contained in this Agreement shall constitute a waiver by
the Indemnified Party of any right that the Indemnified Party may have
against any Person under federal or state securities laws.
2. NOTICES. All notices or other communications required or permitted to
be given or delivered hereunder shall be deemed to have been properly given or
delivered to the following address: (i) when delivered personally or by
commercial messenger; (ii) one business day following deposit with a recognized
overnight courier service, provided the deposit occurs prior to the deadline
imposed by the overnight courier; or (iii) when transmitted, if sent by
facsimile copy, provided confirmation of receipt is received by sender and the
notice is sent by an additional method provided hereunder, in each case above
provided the notice or other communication is addressed to the intended
recipient thereof as set forth below:
INDEMNITOR: Inland American Real Estate Trust, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxxx,
Vice President, Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
INDEMNIFIED PARTY: To the address set forth by the Indemnified
Party on the signature page hereto
3. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all or which taken together shall constitute one and the same
agreement, and shall become effective when the counterparts have been signed by
each party hereto and delivered to the other parties hereto.
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4. GOVERNING LAW. This Agreement shall be construed, performed and
enforced in accordance with, and governed by, the internal laws of the State of
Maryland, without giving effect to the principles of conflicts of laws thereof.
5. AMENDMENTS. This Agreement may be amended or modified, and any of the
terms, covenants, representations, warranties or conditions hereof may be
waived, only by a written instrument executed by the parties hereto, or in the
case of a waiver, by the party waiving compliance.
6. HEADINGS. The descriptive headings in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
7. SEVERABILITY. In the event that any part of this Agreement is declared
by any court or other judicial or administrative body to be null, void or
unenforceable, said provision shall survive to the extent it is not so declared,
and all of the other provisions of this Agreement shall remain in full force and
effect.
8. SUCCESSOR AND ASSIGNS. All references herein to the Company hereunder
shall be deemed to include all successors and assigns of the Company. The
Indemnified Party may not assign its benefits hereunder to any third party
beneficiaries or successors or assigns without the prior written consent of the
Company.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
INDEMNITOR:
INLAND AMERICAN REAL ESTATE TRUST, INC.
By: --------------------------------
Name: --------------------------------
Its: --------------------------------
INDEMNIFIED PARTY:
By: --------------------------------
Name: --------------------------------
Its: --------------------------------
Address: --------------------------------
--------------------------------
Facsimile: --------------------------------
