EXHIBIT 10.36
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is made this 12 day of
September 1996, by and among AIRCOA Hotel Partners, L.P., a Delaware limited
partnership (the "Partnership"), AIRCOA Hospitality Services, Inc., a Delaware
corporation (the "General Partner") and Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx
(the "Indemnities").
RECITALS
WHEREAS, the agreement of limited partnership of the Partnership, as
amended to date (the "Partnership Agreement") provides for an advisory committee
("Advisory Committee") to perform the duties set out in Section 1.8 of the
Partnership Agreement;
WHEREAS, Section 1.8 of the Partnership Agreement provides that a majority
of the Members of the Advisory Committee should, to the extent practicable,
consist of persons not affiliated with the General Partner.
WHEREAS, the General Partner believes it is in the best interest of the
Partnership, in order to assure that competent, professional, and independent
persons continue to serve on the Advisory Committee that the General Partner and
the Partnership limit the liability and provide indemnification from liability
for those members of the Advisory Committee not otherwise indemnified pursuant
to the terms of the Partnership Agreement in connection with their service on
the Advisory Committee including, without limitation, their service on any
special committee thereof that may be established after the date of this
Agreement;
WHEREAS, the Partnership intends the Indemnities' benefits under this
Agreement to include, without limitation, the supplementation of benefits under
any existing liability insurance policy;
WHEREAS, the Indemnities are willing to continue to serve on the Advisory
Committee provided the General Partner and the Partnership are and will continue
to be obligated to indemnify them, their successors, assigns, heirs, personal
representatives, and administrators in accordance with the provisions of the
Agreement.
NOW THEREFORE, the parties agree as follows:
Section 1. LIMITATIONS ON LIABILITY OF MEMBERS OF AN ADVISORY COMMITTEE.
(a) The Indemnities shall not be liable to the Partnership or to the
General Partner, or to any Affiliate of the Partnership (including, without
limitation, the Operating Partnerships, as defined in the Partnership Agreement)
or to any director, officer employee, or agent of the Partnership, General
Partner or their Affiliates, or to the Limited Partners (any "Covered Person")
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for losses and liabilities, obligations, damages, penalties, taxes, claims,
actions, suits, amounts paid in settlement, or out-or-pocket expenses or costs
of any kind and nature whatsoever incurred in connection with any act or
omission or by reason of such service on an Advisory committee, (collectively,
"Committee Claims"), unless it shall be determined by final judicial decision on
the merits from which there is no further right to appeal that such Committee
Claims are due to the negligence or willful misconduct of the Indemnitees in
their capacity as such.
(b) Notwithstanding Section 1 (a) hereof, the Indemnitees shall not be
indemnified for losses, liabilities or expenses arising from or out of an
alleged violation of federal or state securities laws unless (1) there has been
a successful adjudication on the merits of each count involving alleged
securities law violations as to the particular Indemnitee, or (2) such claims
have been dismissed with prejudice on the merits by a court of competent
jurisdiction as the particular Indemnitee, or (3) a court of competent
jurisdiction approves a settlement of the claim against the particular
Indemnitee.
(c) To the extent that, at law or in equity, the Indemnitees have duties
(including fiduciary duties) and liabilities relating to service on the Advisory
Committee, the Indemnitees acting under the Partnership Agreement shall not be
liable to any Covered Person for the Indemnitees' good-faith reliance on the
provisions of the Partnership Agreement or on the records of the Partnership or
on such information, opinions, reports or statements presented to the Advisory
Committee by any person that the Indemnitees reasonably believe are within such
person's professional or expert competence, including, without limitation,
advise of counsel and financial advisors.
Section 2. INDEMNIFICATION AND ADVANCEMENT OF LEGAL FEES FOR MEMBERS OF
ADVISORY COMMITTEE.
(a) To the fullest extent permitted by law, the Partnership and the
General Partner jointly and severally agree to indemnify and hold harmless the
Indemnitees and their heirs, successors, assigns, administrators and personal
representatives for any and all losses and liabilities, obligations, damages,
penalties, taxes, claims, actions, suits, amounts paid in settlement, or out-of-
pocket expenses or costs of any kind and nature whatsoever incurred or arising
out of or in connection with service on the Advisory Committee including the
reasonable out-of-pocket costs and expenses, including attorney fees, of
defending himself against any claim of liability (collectively, "Indemnified
Expenses"), except that the indemnitees shall not be entitled to be indemnified
for any Indemnified Expenses to the extent incurred by the Indemnitees by reason
of his own negligence or willful misconduct determined after final judicial
decision on the merits from which there is no further right of appeal. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere, or its equivalent, shall not, of
itself, create a presumption that an Indemnitee has acted in a manner contrary
to this Agreement.
(b) To the fullest extent permitted by applicable law, Indemnified
Expenses (including legal fees) incurred by an Indemnitee in defending any
claim, demand, action, suit or proceeding shall, from time to time, be advanced
by, or on behalf of, the Partnership or the General Partner
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prior to the final disposition of such claim, demand, action, suit or proceeding
upon receipt by the Partnership or the General Partner, as the case may be, by
or on behalf of the indemnitees and reasonably satisfactory to the General
Partner, an undertaking by or on behalf of the Indemnitees to repay such amount
if it shall be determined by a court of competent jurisdiction after final
judicial decision on the merits from which there is no further right of appeal
that the Indemnitees are not entitled to be indemnified. The advances to be made
hereunder shall be paid to an Indemnitee within sixty (60) days following
delivery of a written request therefor by the Indemnitee to the Partnership and
the General Partner, supported by appropriate invoices, receipts and/or
vouchers.
(c) The indemnification provided by this Section shall be in addition to
any other rights to which each Indemnitee may be entitled under any agreement,
vote of the Partners, as a matter of law or otherwise.
(d) The obligation of the Partnership and the General Partner to
indemnify, hold harmless and advance expenses to an Indemnitee, and the right of
any Indemnitee to be compensated and to be reimbursed for its reasonable out-of-
pocket expenses, disbursements and advances shall constitute indebtedness of the
Partnership and shall survive the termination of this Agreement.
(e) For purposes of determining the rights of the Indemnitees under this
Agreement, the provisions of Sections 8.10 (a) and (b) of the Partnership
Agreement (or any successor provision thereto) applicable to the General Partner
of any of its Affiliates shall apply mutatis mutandis to the Indemnitees.
Section 3. RIGHT OF INDEMNITEES TO BRING SUIT. If the General Partner or the
Partnership does not pay in full a claim under Section 1 or 2 of this Agreement
within seventy-five days after a written claim therefor has been received by
either the General Partner or the Partnership, the Indemnitees may at any time
thereafter bring suit against the General Partner and/or the Partnership to
recover the unpaid amount of the claim. If successful in whole or in part in
any such suit, or in a suit brought by the General Partner or the Partnership to
recover any advancement of expenses, the Indemnitees shall be entitled to be
paid also the expense of prosecuting or defending such suit or part thereof as
to which the Indemnitees have been successful.
Section 4. NOTICE AND OTHER INDEMNIFICATION PROCEDURES.
(a) Promptly after receipt by an Indemnitee of notice of the
commencement of or the threat of commencement of any proceeding, the Indemnitee
shall, if the Indemnitee believes that indemnification with respect thereto
properly may be sought from the Partnership and the General Partner in writing
at their principal executive offices (attention General Counsel) of the
commencement or threat of commencement thereof. The failure to notify or
promptly notify the Partnership or the General Partner shall not relieve the
Partnership or the General Partner from any liability which either of them may
have to Indemnitee otherwise than under this Agreement, and shall relieve the
Partnership or the General Partner from liability hereunder only to the extent
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the Partnership or the General Partner has been prejudiced by the failure of the
Indemnitee to adhere to this notice provision.
(b) In the event the Partnership or the General Partner shall be
obligated to pay the expenses of the Indemnitee in connection with any
proceeding, the Partnership or the General Partner shall be entitled to assume
the defense of such proceeding, with counsel selected by the Partnership or
General Partner (subject to the approval of the Indemnitee, such approval not to
be unreasonably withheld), upon the delivery to the indemnitee of written notice
of an election to assume the defense. After delivery of such notice, approval of
such counsel by the Indemnitee and the retention of such counsel by the
Partnership or the General Partner, the Partnership or the General Partner, the
Partnership or the General Partner will not be liable to the Indemnitee under
this Agreement for any fees of counsel or other expenses subsequently incurred
by the Indemnitee with respect to the same proceeding, provided that (i) the
Indemnitee shall have the right to employ his own counsel in any such proceeding
at the Indemnitee's expense; and (ii) if (A) the employment of counsel by the
Indemnitee has been previously authorized by the Partnership or the General
Partner, or (B) the Indemnitee shall have reasonably concluded, in good faith,
that there is a conflict of interest between the Partnership or the General
Partner and the Indemnitee in the conduct of any such defense, or (C) the
Partnership or the General Partner shall not, in fact, have employed counsel to
assume the defense of such proceeding, then the fees and expenses of
Indemnitee's counsel shall be paid by the Partnership or the General Partner;
and provided further that the Partnership or the General Partner shall not be
required to pay the expenses of more than one such separate counsel for persons
it is indemnifying in any one proceeding.
Section 5. SETTLEMENT. Neither the Partnership nor the General Partner shall
be liable to indemnify an Indemnitee under this Agreement for any amounts paid
in settlement of any proceeding without their written consent, which consent
shall not be unreasonably withheld. Neither the Partnership nor the General
Partner shall settle any proceeding which would impose any penalty or limitation
on an indemnitee without that Indemnitee's written consent, which consent shall
not be unreasonably withheld.
Section 6. SUBROGATION RIGHTS. In the event of any payment under this
Agreement to (or for the benefit of) and Indemnitee by either the Partnership or
the General Partner, the Partnership or the General Partner, as the case may be,
shall be subrogated to the extent of such payment to all of the rights of
recovery of the Indemnitee against any person or organization and such
indemnitee shall execute all papers required and shall do everything that may be
reasonably necessary to secure such rights for the Partnership or the General
Partner.
Section 7. NO DUPLICATION OF PAYMENTS. Neither the Partnership nor the General
Partner shall be liable under this Agreement to make any payment under the terms
of this Agreement to the extent an Indemnitee has otherwise actually received
payment (under any insurance policy or otherwise) of the amounts otherwise
indemnifiable hereunder.
Section 8. SEVERABILITY. If this Agreement or any portion hereof shall be
invalidated on any ground by a court of competent jurisdiction, then the General
Partner or the Partnership shall nevertheless indemnify the Indemnitees as to
costs, charges, and expenses (including attorneys'
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fees), judgments fines, and amounts paid in settlement with respect to any
action, suit, or proceeding, including an action by or in the right of the
Partnership, to the full extent permitted by any applicable portion of this
Agreement that shall not have been invalidated and to the full extent permitted
by applicable law.
Section 9. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon all
successors and assigns of the General Partner and the Partnership and shall be
binding on and inure to the benefit of the Indemnitee's heirs, executors and
administrators.
Section 10. AMENDMENT. No amendment, modification, termination or cancellation
of this Agreement shall be effective against the indemnitees unless made in
writing and signed by the Indemnitees.
Section 11. CHOICE OF LAW. This Agreement shall be governed and its provisions
construed in accordance with the laws of the State of Delaware, as applied to
contracts between Delaware residents entered into and to be performed entirely
within Delaware.
Adopted this 13th day of September 1996
AIRCOA HOSPITALITY SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President/CEO
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President and Chief
Accounting Officer
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AIRCOA HOTEL PARTNERS, L.P.
By: AIRCOA HOSPITALITY SERVICES, INC.
---------------------------------
Sole General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President/CEO
By: /s/ Xxxxxxx Xxxx
---------------------------------
Name: Xxxxxxx Xxxx
Title: Senior Vice President and
Treasurer
INDEMNITEES:
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Xxxxx X. Xxxxxx
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