EXHIBIT 10(q)
INDEMNIFICATION AGREEMENT
This Indemnification Agreement is made and entered into by and between
Xxxx X. Xxxxxx ("Xxxxxx") and First Union Real Estate Equity and Mortgage
Investments, an Ohio Real Estate Investment Trust, together with its successors,
subsidiaries and parent companies (collectively, the "Company") as of April 29,
2002.
W I T N E S S E T H:
WHEREAS, the Company and Xxxxxx wish to set forth certain
understandings in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and for other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, the parties do hereby agree
as follows:
1. Xxxxxx'x Services. Xxxxxx agrees to continue to serve as the
Chief Financial Officer of First Union Real Estate Equity and Mortgage
Investments (the "Trust") under the same terms and conditions as he has
heretofore served in that capacity, which service may be terminated at any time
by either Xxxxxx or the Trust.
2. Indemnification.
(a) The Company agrees to indemnify and hold Xxxxxx
harmless from and against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation and attorney fees and
expenses) arising out of or in connection with his services on behalf of the
Trust, or the enforcement of this Agreement, and shall reimburse Xxxxxx for any
and all legal and other costs or expenses as incurred, but in no event less
frequently than 30 days after each invoice is submitted, by him in connection
with investigating, preparing for, defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action.
(b) If any action or claim shall be brought or asserted
against Xxxxxx, he shall promptly notify the Company in writing, and the Company
shall assume the defense thereof, including the employment of counsel reasonably
satisfactory to Xxxxxx and the payment of all expenses; provided, however, that
Xxxxxx'x failure to notify the Company shall not relieve the Company from any of
its obligations hereunder, but shall only relieve it from any liability to the
extent the Company is prejudiced thereby. Xxxxxx shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of Xxxxxx
unless (i) the employment thereof has been authorized by the Company in writing,
(ii) the Company has failed to assume the defense or to employ counsel
reasonably satisfactory to Xxxxxx or (iii) the named parties to any such action
(including any impleaded parties) include both Xxxxxx and the Company, and
Xxxxxx shall have been advised by such counsel that there may be one or more
legal defenses available to him that
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are different from or in addition to those available to the Company (in which
case, if Xxxxxx notifies the Company in writing that he elects to employ
separate counsel at the expense of the Company, the Company shall not have the
right to assume the defense of such action) it being understood, however, that
the Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time and for
Xxxxxx, which firm shall be designated in writing by Xxxxxx. Xxxxxx, as a
condition of such indemnity, shall use reasonable efforts to cooperate with the
Company in the defense of any such action or claim. The Company also agrees to
indemnify and hold harmless Xxxxxx from and against any loss, claim, damage,
liability or expense by reason of any settlement or judgment.
(c) Under any and all circumstances, Xxxxxx shall have
the right to participate in and oversee the defense of any action or claim to
which he is a named defendant whether it involves the services of an attorney
procured by the Company or by Xxxxxx pursuant to this Agreement.
(d) The amount paid or payable by Xxxxxx as a result of
the losses, claims, damages, liabilities and expenses referred to in this
Agreement shall also include, subject to the limitations set forth above, any
legal or other costs or expenses reasonably incurred by Xxxxxx in connection
with investigating or defending any such action or claim.
(e) The indemnity agreements contained in this Section
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any party hereto and any termination of
this Agreement.
3. No Participation in Third Party Civil Litigation. The Company
agrees and promises not to voluntarily participate, without receiving the prior
written approval of Xxxxxx, in any pending or future civil case, arbitration,
agency proceeding, or other legal proceeding brought against him, by a third
party ("Third Party Civil Litigation") with respect to any issues whatsoever.
The Company also agrees that it will not intentionally cause, encourage, or
participate in any Third Party Civil Litigation maintained or instituted against
Xxxxxx. Specifically, among other things, this paragraph is intended to preclude
the Company from (a) voluntarily providing any party involved in a Third Party
Civil Litigation, as defined above, against him with any statement, oral or
written, sworn or unsworn, to be used in connection with that Third Party Civil
Litigation and/or (b) voluntarily appearing for the purpose of providing
deposition or trial testimony at such party's request without the prior written
approval of Xxxxxx.
4. Entire Agreement. The parties each represent and warrant that
no promise or inducement has been offered or made except as herein set forth and
that the consideration stated herein is the sole consideration for this
Agreement. This Agreement is a complete and entire agreement and states fully
all agreements, understandings, promises and commitments as between the parties
with respect to the subject matter hereof; this Agreement supersedes and cancels
any and all other negotiations, understandings and agreements, oral or written,
respecting the subject matter hereof; and this Agreement may not be modified
except by an instrument in writing signed by the party against whom the
enforcement of any waiver, change, modification or discharge is sought.
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5. Severability. If any provision or clause of this Agreement is
found to be invalid by a court of competent jurisdiction, then such provision or
clause shall be severed here from and such invalidity shall not affect any other
provision or clause of this Agreement, the balance of which shall remain and
have its intended full force and effect.
6. Assignability, Choice of Law and Forum Selection. This
Agreement is personal to the parties and neither party may assign, pledge,
delegate or otherwise transfer any of the rights, obligations or duties under
this Agreement. This Agreement shall be governed by, construed in accordance
with, and enforced pursuant to the laws of the State of New York without regard
to principles of conflict of laws which might result in the application of the
laws of another jurisdiction. The parties hereto waive any defense of lack of
personal jurisdiction or improper venue, and hereby specifically authorize and
require any action brought by either party to this Agreement to be instituted
and prosecuted exclusively in either the Supreme Court of the State of New York,
County of New York, or in the United States District Court for the Southern
District of New York, at the election of the party bringing such action.
7. Counterparts. This Agreement may be executed in counterparts,
each of which together constitute one and the same instrument.
8. Notices. Any notice to be given hereunder may be delivered (a)
in the case of the Company, by first class mail addressed to its Chairman at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and (b) in the case of Xxxxxx, either to
him personally or by first class mail to his last known residence address, with
a copy to Xxx X. Xxxxxxxxxx, Esq. Vedder, Price, Xxxxxxx & Kammholz, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Notices served by mail shall be deemed given
when they are mailed.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Indemnification Agreement as of the date first written above.
FIRST UNION REAL ESTATE EQUITY
AND MORTGAGE INVESTMENTS
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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