Exhibit 10.37
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (the "Agreement") is made as of this 14th
day of January 1997, 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 Xxxxx Hire and Xxxxxxx Xxxxxx
(each an "Indemnitee" and together, the "Indemnitees").
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 parties believe 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
the members of the Advisory Committee in connection with their service on the
Advisory Committee including, without limitation, their service on any special
committee thereof;
WHEREAS, the Partnership intends the Indemnitees' benefits under this
Agreement to include, without limitation, the supplementation of benefits under
any existing liability insurance policy;
WHEREAS, the Indemnitees are willing to serve on the Advisory Committee,
provided that and for as long as the General Partner and the Partnership will
indemnify them, their successors, assigns, heirs, personal representatives, and
administrators in accordance with the provisions of this Agreement.
NOW THEREFORE, the parties agree as follows:
Section 1. LIMITATIONS ON LIABILITY OF MEMBERS OF AN ADVISORY COMMITTEE.
(a) An Indemnitee 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 or the holders of any class of
Units in the Partnership (any "Covered Person") for 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 in
connection with any act or omission or by reason of such service on the 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 gross negligence or willful
misconduct of the Indemnitee.
(b) Notwithstanding Section 1(a) hereof, an Indemnitee 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 Indemnitee, or (2) such claims have been
dismissed with prejudice on the merits by a court of competent jurisdiction as
the Indemnitee, or (3) a court of competent jurisdiction approves a settlement
of the claim against the Indemnitee.
(c) To the extent that, at law or in equity, an Indemnitee has 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 Indemnitee's 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 Indemnitee reasonably believes are within such
person's professional or expert competence, including, without limitation,
advice 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 each
Indemnitee and his 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 Indemnitee shall not be entitled to be indemnified
for any Indemnified Expenses to the extent incurred by the Indemnitee by reason
of his own gross 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 not satisfied
the standard for limitation of his liability or indemnification under this
Agreement.
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(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 (including but not limited to claims alleging
violations of federal or state securities laws) shall, from time to time, be
advanced by, or on behalf of, the Partnership or the General Partner 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 an Indemnitee and reasonably satisfactory to the General Partner, an
undertaking by or on behalf of the Indemnitee 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 Indemnitee
is not entitled to be indemnified. The advances to be made hereunder shall be
paid to an Indemnitee within thirty (30) 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 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
or 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 sixty (60) days after a written claim therefor has been received by
either the General Partner or the Partnership, an Indemnitee 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 Indemnitee shall be entitled to be paid
also the expense of prosecuting or defending such suit or part thereof
(including attorney's fees) as to which the Indemnitee has 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 or the General
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Partner under this Agreement, notify each of 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 an Indemnitee otherwise than under this Agreement, and shall
relieve the Partnership or the General Partner from liability hereunder only to
the extent that the defense of the claim or the ability of the Partnership or
the General Partner to make an insurance claim or other third party indemnity or
surety claim with respect to the liability has been prejudiced.
(b) In the event the Partnership or the General Partner shall be obligated
to pay the expenses of an 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 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 unless each such person seeking
separate counsel provides to the General Partner an opinion of counsel,
satisfactory in form and substance to the General Partner in its reasonable
discretion that states that there exist conflicts of interest which can not be
waived as a matter of public policy that would preclude a single attorney or
firm from representing both such person and the other persons in the proceeding
in question who are beneficiaries of indemnification rights from the General
Partner or the Partnership with respect to such 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.
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Section 6. SUBROGATION RIGHTS. In the event of any payment under this
Agreement to (or for the benefit of) an 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' 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. LIMITATIONS WITH RESPECT TO THE PARTNERSHIP; NO CHANGE TO
OBLIGATIONS OF THE GENERAL PARTNER OR RIGHTS OF INDEMNITEES AGAINST THE GENERAL
PARTNER. Notwithstanding anything in this Agreement to the contrary, the
Partnership shall in no circumstances be required to indemnify, hold harmless
or advance costs to an Indemnitee, if the Indemnitee fails to meet the standard
for limitation on liability and indemnification established in Section 8.9 of
the Partnership Agreement (as the same may be amended, supplemented or otherwise
changed). The first sentence of this Section 9 shall not, however, in any way
affect either (i) any of the rights of an Indemnitee against the General Partner
hereunder or (ii) any of the obligations of the General Partner to an Indemnitee
hereunder.
Section 10. 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 11. AMENDMENT. No amendment, modification, termination or cancellation
of this Agreement shall be effective against an Indemnitee unless made in
writing and signed by the Indemnitee to be bound or charged thereby.
Section 12. 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.
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Adopted this 14th day of January, 1997
AIRCOA HOSPITALITY SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
By: /s/ Xxxx X. Xxxx
------------------
Name: Xxxx X. Xxxx
Title: Vice President
AIRCOA HOTEL PARTNERS, L.P.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
By: /s/ Xxxx X. Xxxx
------------------
Name: Xxxx X. Xxxx
Title: Vice President
INDEMNITEES:
By: /s/ Xxxxx Hire
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Xxxxx Hire
By: /s/ Xxxxxxx Xxxxxx
--------------------
Xxxxxxx Xxxxxx
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