FORM OF INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement") is entered and made
effective as of the __ day of October, 2004 by and between Xxxxxxxxx Xxxxxx Real
Estate Income Fund Inc., a Maryland corporation (the "Company"), and
___________________ ("Indemnitee"), an individual resident in _______________,
with reference to the following facts:
A. The Company desires the benefits of having Indemnitee serve as an
officer and/or director, secure in the knowledge that any expenses, liability
and/or losses that may be incurred by Indemnitee as a result of his good faith
service to the Company will be borne by the Company or its successors and
assigns;
B. Indemnitee is willing to continue to serve as a director and/or officer
of the Company on the condition that he is indemnified by the Company for any
such expenses, liability and/or losses;
C. The Company and Indemnitee recognize that there has been an increase in
litigation against corporate directors, officers and agents;
D. The parties by this Agreement desire to set forth their agreement
regarding indemnification;
NOW, THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
1.1 "Agent" shall mean any person who (a) is or was a director, officer,
employee or agent of the Company whether serving in such capacity or as a
director, officer, employee, agent, fiduciary or other official of another
corporation, joint venture, trust or other enterprise at the request of, for the
convenience of, or to represent the interests of the Company.
1.2 "Disinterested Director" shall mean a director of the Company who is
not and was not a party to the Proceeding in respect of which advancement of
Expenses or indemnification is being sought by Indemnitee.
1.3 "Expenses" shall be broadly construed and shall include, without
limitation, (a) all direct and indirect costs incurred, paid or accrued, (b) all
attorneys' fees, retainers, court costs, transcripts, fees of experts, witness
fees, travel expenses, food and lodging expenses while traveling, duplicating
costs, printing and binding costs, telephone charges, postage, delivery service,
freight or other transportation fees and expenses, (c) all other disbursements
and out-of-pocket expenses, (d) amounts paid in settlement, to the extent not
prohibited by Maryland Law, and (e) reasonable compensation for time spent by
Indemnitee for which he is otherwise not compensated by the Company or any third
party; actually and reasonably incurred in connection with or arising out of a
Proceeding, including a Proceeding by Indemnitee to establish or enforce a right
to advancement of Expenses indemnification under this Agreement, applicable law
or otherwise.
1.4 "Independent Counsel" shall mean a law firm or a member of a law firm
that neither is presently nor in the past five years has been retained to
represent: (a) the Company, an affiliate of the Company or Indemnitee in any
matter material to either party or (b) any other party to 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 right to advancement of Expenses
indemnification under this Agreement.
1.5 "Liabilities" shall mean liabilities of any type whatsoever, including,
but not limited to, judgments or fines, ERISA or other excise taxes and
penalties, and amounts paid in settlement (including all interest, assessments
or other charges paid or payable in connection with any of the foregoing)
actually and reasonably incurred by Indemnitee in connection with a Proceeding.
1.6 "Maryland Law" means Maryland corporate law, as amended and in effect
from time to time, or any successor or other statutes of Maryland having similar
import and effect.
1.7 "Proceeding" shall mean any pending, threatened or completed action,
hearing, suit or any other proceeding, whether civil, criminal, arbitrative,
administrative, investigative or any alternative dispute resolution mechanism,
including without limitation any such Proceeding brought by or in the right of
the Company.
2. EMPLOYMENT RIGHTS AND DUTIES. Subject to any other obligations imposed
on either of the parties by contract or by law, and with the understanding that
this Agreement is not intended to confer employment rights on any party which it
did not possess on the date of its execution, Indemnitee agrees to continue to
serve as a director or officer so long as he is duly appointed or elected and
qualified in accordance with the applicable provisions of the Charter (the
"Charter") and Bylaws (the "Bylaws") of the Company and until such time as he
resigns or fails to stand for election or until his employment terminates.
Indemnitee may from time to time also perform other services at the request, or
for the convenience of, or otherwise benefiting the Company. Indemnitee may at
any time and for any reason resign or (subject to applicable provisions of
Maryland Law and the Company's Charter and Bylaws) be removed from such position
(subject to any other contractual obligation or other obligation imposed by
operation of law), in which event the Company shall have no obligation under
this Agreement to continue Indemnitee in any such position.
2.1 DIRECTORS' AND OFFICERS' INSURANCE.
(a) The Company hereby covenants and agrees that, so long as Indemnitee
shall continue to serve as a director or officer of the Company, and
thereafter so long as Indemnitee shall be subject to any possible
Proceeding arising from, in connection with or touching upon his service to
the Company, the Company, subject to Section 2.1(c) shall maintain
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directors' and officers' insurance in the amount of $25 million
($25,000,000) in full force and effect.
(b) In all policies of directors' and officers' insurance maintained by
the Company (or its directors or officers at the Company's direct or
indirect expense), Indemnitee shall be named as an insured in such a manner
as to provide Indemnitee the same rights and benefits, subject to the same
limitations, as are accorded to the Company's directors or officers most
favorably insured by such policy.
(c) The Company shall have no obligation to maintain directors' and
officers' insurance if the Company determines in good faith that such
insurance is not reasonably available, the premium costs for such insurance
are grossly disproportionate to the amount of coverage provided, or the
coverage provided by such insurance is limited by exclusions so as to
provide a grossly insufficient benefit to the party named in this
Agreement.
3. INDEMNIFICATION. The Company shall indemnify Indemnitee to the fullest
extent authorized or permitted by Maryland Law and the Investment Company Act of
1940, as amended (the "1940 Act") and the provisions of the Charter and Bylaws
of the Company, as in effect on the date hereof, and as Maryland Law, the 1940
Act, the Charter and Bylaws may from time to time be amended (but, in the case
of any such amendment, only to the extent such amendment permits the Company to
provide broader advancement of Expenses and indemnification rights than Maryland
Law, the 1940 Act, the Charter and/or Bylaws permitted the Company to provide
before such amendment). The Company shall indemnify, and shall pay Expenses to,
Indemnitee (a) as specifically provided in this Agreement and (b) otherwise to
the fullest extent permitted by applicable law in effect on the date hereof and
as amended from time to time. Any change after the date of this Agreement in any
applicable law that narrows the right of the Company to indemnify an Indemnitee
shall have no effect on this Agreement or the parties' rights and obligations
under this Agreement except to the extent required by such law. The rights to
advancement of Expenses and indemnification conferred in the Charter and Bylaws
shall be presumed to have been relied upon by Indemnitee in serving or
continuing to serve the Company as a director or officer and shall be
enforceable as a contract right. Without in any way diminishing the scope of the
advancement of Expenses or indemnification provided by the Charter, Bylaws and
this Section 3, the Company shall advance Expenses to and indemnify Indemnitee
if and whenever he is or was a witness or party to, or is threatened to be made
a witness or a party to, any Proceeding, by reason of the fact that he is or was
an Agent or by reason of anything done or not done, or alleged to have been done
or not done, by him in such capacity, against all Expenses and Liabilities
actually and reasonably incurred by Indemnitee or on his behalf in connection
with the investigation, defense, settlement or appeal of such Proceeding. In
addition to, and not as a limitation of, the foregoing, the rights of
advancement of Expenses or indemnification of Indemnitee provided under this
Agreement shall include those rights set forth in Sections 4, 5 and 6 below.
4. PAYMENT OF EXPENSES. All Expenses incurred by or on behalf of Indemnitee
shall be advanced by the Company to Indemnitee in accordance with Section 5
below, whether incurred prior to or after final disposition of a Proceeding
(unless there has been a final determination by a court of competent
jurisdiction that Indemnitee is not entitled to be indemnified for such
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Expenses). Indemnitee's entitlement to advancement of Expenses shall include
those incurred in connection with any Proceeding by Indemnitee seeking a
determination, an adjudication or an award in arbitration pursuant to this
Agreement. The requests for payment shall reasonably evidence the Expenses
incurred by Indemnitee in connection therewith. Indemnitee hereby undertakes to
repay the amounts advanced if it shall ultimately be determined that Indemnitee
is not entitled to be indemnified pursuant to the terms of this Agreement.
5. PROCEDURE FOR DETERMINATION OF ENTITLEMENT TO ADVANCEMENT OF EXPENSES OR
INDEMNIFICATION; PROMPT PAYMENT.
5.1 Whenever Indemnitee believes that he is entitled to advancement of
Expenses or indemnification pursuant to this Agreement, Indemnitee shall submit
a written request for advancement of Expenses or indemnification (the "Request")
to the Company to the attention of the administrator of the Company
("Administrator") with a copy to the Secretary. The Request shall include
documentation or information which is necessary for the determination of
entitlement to advancement of Expenses or indemnification and which is
reasonably available to Indemnitee. Determination of Indemnitee's entitlement to
advancement of Expenses or indemnification shall be made no later than 30 days
after receipt of the Request. The Administrator and the Secretary shall each,
promptly upon receipt of Indemnitee's Request for advancement of Expenses or
indemnification, advise the Board in writing that Indemnitee has made such
Request for advancement of Expenses or indemnification.
5.2 The Request shall set forth Indemnitee's selection of one of the
following forums, which shall determine whether Indemnitee is entitled to
advancement of Expenses or indemnification:
(a) A majority vote of a quorum of Disinterested Directors, or, if a
quorum cannot be obtained, a majority vote of a committee of two or more
Disinterested Directors, or, if there be no Disinterested Directors or if
the Disinterested Directors so direct, a written opinion of an Independent
Counsel;
(b) A majority vote of the Company's stockholders at a meeting at which
a quorum is present, with the shares owned by the Indemnitee not being
entitled to vote thereon;
(c) The court in which the Proceeding is or was pending upon
application by Indemnitee; or
(d) An Independent Counsel selected by Indemnitee.
Determination of Indemnitee's entitlement to advancement of Expenses or
indemnification shall be made no later than 30 days after receipt of the Request
if the Indemnitee chooses forum (a) or (d) above. If the Indemnitee chooses
forum (b) above, the Board of Directors shall within 30 days of receipt of such
Request call a special meeting of stockholders to consider such Request.
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If an Independent Counsel is selected, then the Independent Counsel shall,
among other things, determine whether and to what extent Indemnitee is permitted
to be advanced Expenses or indemnified under applicable law and shall render a
written opinion to the Company and Indemnitee to such effect.
The Company agrees to bear any and all costs and Expenses incurred by
Indemnitee or the Company in connection with the determination of Indemnitee's
entitlement to indemnification by any of the above forums.
5.3 Within 5 days following a determination, by any method permitted under
this Agreement (including any method of appealing a decision), that an
Indemnitee is entitled to advancement of Expenses or indemnification, the
Company shall deliver to the Indemnitee the full amount of Expenses or
indemnification to which he is then entitled, by certified check or readily
available funds deposited to an account named by the Indemnitee.
6. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS. No initial finding by
the Board of Directors, its counsel, an Independent Counsel, arbitrators or the
stockholders shall be effective to deprive Indemnitee of the protection of this
advancement of Expenses or indemnity, nor do the parties intend that a court or
other forum to which Indemnitee may apply for enforcement of this advancement of
Expenses or indemnity give any weight to any such adverse finding in deciding
any issue before it. Upon making a request for advancement of Expenses or
indemnification, Indemnitee shall be presumed to be entitled to advancement of
Expenses or indemnification under this Agreement and the Company shall have the
burden of proof to overcome that presumption in reaching any contrary
determination. The termination of any Proceeding by judgment, order, settlement,
arbitration award or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, (a) adversely affect the rights of Indemnitee
to advancement of Expenses or indemnification except as they may be expressly
prohibited under this Agreement, (b) create a presumption that Indemnitee did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Company or (c) with respect to any
criminal action or proceeding, create a presumption that Indemnitee had
reasonable cause to believe that his conduct was unlawful.
7. REMEDIES OF INDEMNITEE IN CASES OF DETERMINATION NOT TO INDEMNIFY OR TO
ADVANCE EXPENSES.
7.1 In the event that (a) an initial determination is made that Indemnitee
is not entitled to indemnification, (b) advances for Expenses are not made when
and as required by this Agreement, (c) payment has not been timely made
following a determination of entitlement to advancement of Expenses or
indemnification pursuant to this Agreement or (d) Indemnitee otherwise seeks
enforcement of this Agreement, Indemnitee shall be entitled to a final
adjudication in an appropriate court of the State of Maryland (or other
appropriate court, if the Indemnitee determines in good faith that Company or
its successors or assigns are beyond the jurisdiction of the Maryland courts) of
his entitlement to such indemnification or advance. Alternatively, Indemnitee at
his option may seek an award in arbitration. If the parties are unable to agree
on an arbitrator, the parties shall provide to the American Arbitration
Association ("AAA") a statement of the nature of the dispute and the desired
qualifications of the arbitrator. AAA will provide the parties with a list of
three available arbitrators. Each party may strike one of the names on the list,
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and the remaining person will serve as the arbitrator. If both parties strike
the same person, AAA will select the arbitrator from the other two names. All
parties shall follow a schedule established by the arbitrator intended to result
in the arbitration award being made within 90 days following the demand for
arbitration. Except as set forth herein, the relevant provisions of Maryland Law
shall apply to any such arbitration. The Company shall not oppose Indemnitee's
right to seek any such adjudication or arbitration award. In any such,
proceeding or arbitration, Indemnitee shall be presumed to be entitled to
advancement of Expenses or indemnification under this Agreement and the Company
shall have the burden of proof to overcome that presumption.
7.2 An initial determination, in whole or in part, that Indemnitee is not
entitled to advancement of Expenses or indemnification shall create no
presumption in any judicial proceeding or arbitration that Indemnitee has not
met the applicable standard of conduct for, or is otherwise not entitled to,
advancement of Expenses or indemnification.
7.3 If an initial determination is made or deemed to have been made
pursuant to the terms of this Agreement that Indemnitee is entitled to
advancement of Expenses or indemnification, the Company shall be bound by such
determination in the absence of (a) a misrepresentation of a material fact by
Indemnitee in the Request or (b) a specific finding (which has become final) by
a court of competent jurisdiction that all or any part of such advancement of
Expenses or indemnification is expressly prohibited by law.
7.4 The Company and Indemnitee agree herein that a monetary remedy for
breach of this Agreement at some later date will be inadequate, impracticable
and difficult to prove, and further agree that such breach would cause
Indemnitee irreparable harm. Accordingly, the Company and Indemnitee agree that
Indemnitee shall be entitled to temporary and permanent injunctive relief to
enforce this Agreement without the necessity of proving actual damages or
irreparable harm. The Company and Indemnitee further agree that Indemnitee shall
be entitled to such injunctive relief, including temporary restraining orders,
preliminary injunctions and permanent injunctions, without the necessity of
posting bond or other undertaking in connection therewith. The Company hereby
waives any such requirement of bond or undertaking by the Indemnitee, and the
Company acknowledges that in the absence of such a waiver, a bond or undertaking
may be required of the Company by the court.
7.5 The Company shall be precluded from asserting that the procedures and
presumptions of this Agreement are not valid, binding and enforceable. The
Company shall stipulate in any such court or before any such arbitrator that the
Company is bound by all the provisions of this Agreement and is precluded from
making any assertion to the contrary.
7.6 Expenses incurred by Indemnitee in connection with his request for
advancement of Expenses or indemnification under, seeking enforcement of or to
recover damages for breach of this Agreement shall be borne and advanced by the
Company.
8. OTHER RIGHTS TO INDEMNIFICATION. Indemnitee's rights of indemnification
and advancement of Expenses provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may now or in the future be
entitled to under applicable law, the Charter, the Bylaws, an employment
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agreement, a vote of stockholders or Disinterested Directors, insurance or other
financial arrangements or otherwise.
9. LIMITATIONS ON INDEMNIFICATION. No indemnification shall be paid or
Expenses advanced by the Company in the following circumstances:
9.1 INSURANCE. To the extent that Indemnitee is reimbursed pursuant to such
insurance as may exist for Indemnitee's benefit. Notwithstanding the
availability of such insurance, Indemnitee also may claim indemnification from
the Company pursuant to this Agreement by assigning to the Company any claims
under such insurance to the extent Indemnitee is paid by the Company. Indemnitee
shall reimburse the Company for any sums he receives as advancement of Expenses
or indemnification from other sources to the extent of any amount paid to him
for that purpose by the Company;
9.2 SECTION 16(b). On account and to the extent of any wholly or partially
successful claim against Indemnitee for an accounting of profits made from the
purchase or sale by Indemnitee of securities of the Company pursuant to the
provisions of Section 16(b) of the Securities Exchange Act of 1934, as amended,
or similar provisions of any federal, state or local statutory law;
9.3 INDEMNITEE'S PROCEEDINGS. Except as otherwise provided in this
Agreement, in connection with all or any part of a Proceeding which is initiated
or maintained by or on behalf of Indemnitee, or any Proceeding by Indemnitee
against the Company or its directors, officers, employees or other agents,
unless (a) such advancement of Expenses or indemnification is expressly required
to be made by Maryland Law, (b) the Proceeding was authorized by a majority of
the Disinterested Directors, or (c) such advancement of Expenses or
indemnification is provided by the Company, in its sole discretion, pursuant to
the powers vested in the Company under Maryland Law or the 1940 Act;
9.4 1940 ACT. On account of any liability to the Company or its
shareholders by reason of a final adjudication by the court or other body before
which the Proceeding was brought that Indemnitee engaged in willful misfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in the
conduct of that individual's office; or
9.5 IMPROPER PERSONAL BENEFIT. With respect to any proceeding charging
improper personal benefit to the Indemnitee, whether or not involving action in
the Indemnitee's official capacity, in which the Indemnitee was adjudged to be
liable on the basis that personal benefit was improperly received.
10. DURATION AND SCOPE OF AGREEMENT; BINDING EFFECT. This Agreement shall
continue so long as Indemnitee shall be subject to any possible Proceeding
subject to advancement of Expenses or indemnification by reason of the fact that
he is or was an Agent and shall be applicable to Proceedings commenced or
continued after execution of this Agreement, whether arising from acts or
omissions occurring before or after such execution. This Agreement shall be
binding upon and shall inure to the benefit of the Company and its successors,
assigns, shareholders, directors, officers, agents and employees (including any
direct or indirect successor by purchase, merger, consolidation or otherwise to
all or substantially all of the business, assets or outstanding securities of
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the Company) and shall also be binding upon and shall inure to the benefit of
Indemnitee and his spouse, assigns, successors, heirs, devisees, executors,
administrators and other legal representatives.
11. NOTICE BY INDEMNITEE AND DEFENSE OF CLAIMS. Indemnitee agrees promptly
to notify the Company in writing upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
matter which may be subject to advancement of Expenses or indemnification
hereunder, whether civil, criminal, arbitrative, administrative or
investigative; but the omission so to notify the Company will not relieve the
Company from any liability which it may have to Indemnitee if such omission does
not actually prejudice the Company's rights and, if such omission does prejudice
the Company's rights, it will relieve the Company from liability only to the
extent of such prejudice; nor will such omission relieve the Company from any
liability which it may have to Indemnitee otherwise than under this Agreement.
With respect to any Proceeding:
(a) The Company will be entitled to participate therein at its own
expense;
(b) Except as otherwise provided below, to the extent that it may wish,
the Company jointly with any other advancing or indemnifying party
similarly notified will be entitled to assume the defense thereof, with
counsel reasonably satisfactory to Indemnitee. Except as otherwise provided
below, the Company will not be liable to Indemnitee under this Agreement
for any attorney's fees or costs incurred by Indemnitee in connection with
Indemnitee's defense after notice from the Company to Indemnitee of its
election so to assume the defense thereof and the assumption of such
defense. Indemnitee shall have the right to employ his counsel in such
Proceeding but the fees and Expenses of such counsel incurred after notice
from the Company of its assumption of the defense thereof and the
assumption of such defense shall be at the expense of Indemnitee unless (i)
the employment of counsel by Indemnitee has been authorized by the Company,
(ii) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Company and Indemnitee in the conduct of
the defense of such action or that the Company's counsel may not be
adequately representing Indemnitee or (iii) the Company shall not in fact
have employed counsel to assume the defense of such action, in each of
which-cases the fees and expenses of counsel retained by the Indemnitee
shall be at the expense of the Company; and
(c) The Company shall not be liable to indemnify Indemnitee under this
Agreement for any amounts paid in settlement of any action or claim
effected without the Company's written consent. The Company shall not
settle any action or claim that would impose any limitation or penalty on
Indemnitee without Indemnitee's written consent. Neither the Company nor
Indemnitee will unreasonably withhold consent to any proposed settlement.
12. CONTRIBUTION. In order to provide for just and equitable contribution
in circumstances in which the advancement of Expenses or indemnification
provided for in this Agreement is held by a court of competent jurisdiction to
be unavailable to Indemnitee, in whole or part, the Company shall, in such an
event, after taking into account, among other things, contributions by other
directors and officers of the Company pursuant to indemnification agreements or
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otherwise, and, in the absence of personal enrichment, acts of intentional fraud
or dishonesty or criminal conduct on the part of Indemnitee, contribute to the
payment of Indemnitee's losses to the extent that, after other contributions are
taken into account, such losses exceed in the case of a director of the Company
or any of its subsidiaries who is not an officer of the Company or any of such
subsidiaries, the amount of fees paid to the director for serving as a director
during the 12 months preceding the commencement of the Proceeding (or, if not a
director during all or part of those 12 months, then for the final 12 full
months during which such person did serve as director). Where directors' fees
are allocated among the Company and other funds in the Xxxxxxxxx Xxxxxx complex,
the amount of the fees attributable to the Company shall be determined for
purposes of this section by reference to the Company's most recent audited
financial statements.
13. MISCELLANEOUS PROVISIONS.
13.1 SEVERABILITY; PARTIAL INDEMNITY. If any provision or provisions of
this Agreement (or any portion thereof) shall be held by a court of competent
jurisdiction to be invalid, illegal or unenforceable for any reason whatever:
(a) such provision shall be limited or modified in its application to the
minimum extent necessary to avoid the invalidity, illegality or unenforceability
of such provision; (b) the validity, legality and enforceability of the
remaining provisions of this Agreement shall not in any way be affected or
impaired thereby; and (c) to the fullest extent possible, the provisions of this
Agreement shall be construed so as to give effect to the intent manifested by
the provision (or portion thereof) held invalid, illegal or unenforceable. If
Indemnitee is entitled under any provision of this Agreement to advancement of
Expenses or indemnification by the Company for some or a portion of any Expenses
or Liabilities of any type whatsoever incurred by him in the investigation,
defense, settlement or appeal of a Proceeding but not entitled to all of the
total amount thereof, the Company shall nevertheless advance to indemnify
Indemnitee for such total amount except as to the portion thereof for which it
has been determined pursuant to Section 5 hereof that Indemnitee is not
entitled.
13.2 COUNTERPART SIGNATURE PAGES. This Agreement may be executed in one or
more counterparts, each of which shall be deemed original, and all of which
together shall constitute one and the same instrument. Only one such counterpart
signed by the party against whom enforceability is sought needs to be produced
to evidence the existence of this Agreement.
13.3 INTERPRETATION OF AGREEMENT. It is understood that the parties hereto
intend this Agreement to be interpreted and enforced so as to provide
advancement of Expenses and indemnification to Indemnitee to the fullest extent
not now or hereafter prohibited by law.
13.4 HEADINGS. The headings of the Sections and 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.
13.5 PRONOUNS. Use of the masculine pronoun shall be deemed to include use
of the feminine pronoun where appropriate.
13.6 MODIFICATION AND WAIVER. No supplement, modification or amendment of
this Agreement shall be binding unless executed in writing by both of the
parties to this Agreement. No waiver of any provision of this Agreement shall be
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deemed to constitute a waiver of any of the other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver. No waiver of
any provision of this Agreement shall be effective unless executed in writing.
13.7 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:
IF TO INDEMNITEE, TO:
IF TO THE COMPANY OR TO THE ADMINISTRATOR:
Xxxxxxxxx Xxxxxx Real Estate Income Fund Inc.
000 Xxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
WITH A COPY TO COMPANY SECRETARY:
Xxxxxxx X. Xxxxxxx, Secretary
Xxxxxxxxx Xxxxxx Real Estate Income Fund Inc.
000 Xxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
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.
13.8 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 as applied to contracts between Maryland residents entered into and to
be performed entirely within Maryland.
13.9 CONSENT TO JURISDICTION. The Company and Indemnitee each hereby
irrevocably consent to the jurisdiction of the courts of the State of Maryland
for all purposes in connection with any action or proceeding that arises out of
or relates to this agreement.
13.10 ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the parties hereto, and there are no other agreements, contracts or
understanding between the parties hereto with respect to the subject matter of
this Agreement, except as specifically referred to herein or as provided in
Sections 2.1 and 8 hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXXXXXXXX XXXXXX REAL ESTATE
INCOME FUND INC.
By
--------------------------------
Name:
-----------------------------
Title:
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INDEMNITEE
By
--------------------------------
Name:
-----------------------------
Title:
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