INDEMNIFICATION AGREEMENT
EXHIBIT 10.14
THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered into as of this
___day of May, 2010 by and among WELSH PROPERTY TRUST, L.P., a Delaware limited partnership (the
“Indemnitor”), as indemnitor, in favor of the individuals and entities identified on
Exhibit A attached hereto (each, an “Indemnitee” and collectively, the
“Indemnitees”), as indemnitee.
RECITALS:
WHEREAS, in connection with an initial public offering of its common stock, WELSH PROPERTY
TRUST, INC., a Maryland corporation (the “REIT”), desires to consolidate the ownership of a
portfolio of properties (the “Properties”) currently owned, directly or indirectly, by
various entities and individuals through certain entities managed by affiliates of WelshCo, LLC
(the “Existing Entities”), as more particularly described in the Confidential Offering
Memorandum dated December 23, 2009, as supplemented by that certain Supplement dated February 16,
2010 (the “PPM”), and to own and operate such Properties as a self-administered and
self-managed real estate investment trust within the meaning of Section 856 of the Internal Revenue
Code of 1986, as amended; and
WHEREAS, the consolidation of the Existing Entities (hereinafter referred to as the
“Formation Transactions”) will be accomplished by a series of contributions by the owners
of equity interests in such Existing Entities to the Indemnitor in exchange for units of limited
partner interest in the Indemnitor (“OP Units”) pursuant to one or more contribution
agreements substantially in the form of contribution agreement accompanying the PPM (collectively,
the “Contribution Agreements”); and
WHEREAS, each Indemnitee is party to one or more Contribution Agreements pursuant to which
such Indemnitee has agreed to contribute the ownership interest of such Indemnitee in one or more
of the Existing Entities (each, a “Contributed Entity”) to the Indemnitor in exchange for
OP Units; and
WHEREAS, pursuant to the agreements listed on Schedule I hereto (each such agreement,
as the same may be amended, supplemented, restated, replaced or otherwise modified from time to
time, a “Covered Agreement”), the Indemnitees have guaranteed or agreed to guaranty the
payment and performance of certain indebtedness, liabilities, claims and other obligations of one
or more Contributed Entities (collectively, whether now existing or hereafter arising or incurred,
and whether or not subject to any contingency, the “Guaranty Obligations”), and/or to
protect, defend, indemnify, release and hold certain third parties harmless from and against
certain losses, damages, costs, fees, expenses, claims, suits, judgments, awards, liabilities,
judgments and other amounts arising out of or relating to one or more Contributed Entities and/or
the use, maintenance and operation of the real property and other assets owned by one or more
Contributed Entities (collectively, whether now existing or hereafter arising or incurred, and
whether or not subject to any contingency, the “Indemnity Obligations”; herein, the
Guaranty Obligations and the Indemnity Obligations are sometimes referred to collectively as
the “Covered Obligations”); and
WHEREAS, to induce each Indemnitee to enter into each Contribution Agreement to which such
Indemnitee is a party, the Indemnitor has agreed to enter into this Agreement and to indemnify each
Indemnitee as herein provided.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants and
agreements of the parties set forth herein and of other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Indemnification. The Indemnitor hereby agrees to indemnify and
hold each Indemnitee and, with respect to any Indemnitee that is not a natural person, its
officers, directors, employees, agents, representatives and attorneys (hereinafter collectively
referred to as “Indemnified Parties”), harmless from and against, and shall reimburse the
Indemnified Parties for, any and all losses, claims, damages, liabilities, fines, penalties, costs,
expenses, judgments and settlements (each, a “Loss”) of any threatened, pending or
completed civil, criminal, administrative or investigative inquiry, claim, action, suit,
proceeding, hearing, investigation, mediation, arbitration or other alternative dispute resolution
mechanism (each, a “Proceeding”) which are actually and reasonably paid or incurred,
directly or indirectly, by one or more of the Indemnified Parties as a result of, in connection
with or in any way relating to any Covered Obligation arising under or pursuant to any Covered
Agreement to which such Indemnitee is a party, except to the extent such Covered Obligation arises
or otherwise exists by reason of (i) the bad faith, fraud, gross negligence or willful misconduct
of such Indemnified Party or (ii) an act or omission by such Indemnified Party which directly or
indirectly causes a violation of any non-recourse carve-out guaranty, limited recourse guaranty or
other so-called “bad boy” guaranty, or similar provisions contained in any mortgage, guaranty or
other finance document to which the Covered Obligation relates. Notwithstanding the foregoing, the
Indemnitor shall not be obligated to provide any indemnification or reimbursement hereunder in
respect of any Loss arising under or pursuant to any Covered Agreement that is amended,
supplemented, restated, replaced, or otherwise modified after the date of this Agreement without
the prior written consent of the Indemnitor to the extent such Loss exceeds the Loss for which the
Indemnitor would have been obligated to provide indemnification or reimbursement hereunder had such
Covered Agreement not been so amended, supplemented, restated, replaced or otherwise modified.
Section 2. Procedures for Indemnification.
(a) In the event an Indemnified Party seeks indemnification under this
Agreement, the Indemnified Party shall promptly give notice hereunder to the Indemnitor upon
obtaining notice of any demand for payment of any Covered Obligation, or any claim,
investigation, or service of a summons or other initial or continuing legal or
administrative process or proceeding in any Proceeding instituted, or threatened to be
instituted, against the Indemnified Party as to which recovery or other action may be sought
against the Indemnified Party because of the indemnification provided for herein,
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and the Indemnified Party shall be required to permit the Indemnitor to assume the
defense of any such Proceeding. The right to indemnification hereunder shall not be
affected by any failure of the Indemnified Party to give such notice (or by delay by the
Indemnified Party in giving such notice) unless, and only to the extent that, the rights and
remedies of the Indemnitor shall have been prejudiced as a result of the failure to give, or
the delay in giving, such notice. Failure by the Indemnitor to notify the Indemnified Party
of its affirmative intent to defend any such Proceeding within thirty (30) days after notice
thereof shall have been given to the Indemnitor shall be deemed a waiver by the Indemnitor
of its right to defend such Proceeding.
(b) If the Indemnitor assumes the defense of any such Proceeding, the
obligations of the Indemnitor hereunder as to such Proceeding shall include taking all steps
reasonably necessary in the defense or settlement of such Proceeding and holding the
Indemnified Party harmless from and against any and all Losses caused by or arising out of
any settlement approved by the Indemnitor or any judgment entered in connection with such
Proceeding except where, and only to the extent that, the Indemnitor has been prejudiced by
the actions or omissions of the Indemnified Party. The Indemnitor shall not, in the defense
of any such Proceeding, consent to entry of any judgment (other than a judgment of dismissal
on the merits without cause) except with the written consent of the Indemnified Party (which
consent shall not be unreasonably withheld, delayed or conditioned), or enter into any
settlement (except with the written consent of the Indemnified Party, which consent shall
not be unreasonably withheld, delayed or conditioned) unless (i) there is no finding or
omission of any violation of law and no material effect on any claims that could reasonably
be expected to be made against the Indemnified Party, (ii) the sole relief provided is
monetary damages, and (iii) the settlement shall include the giving by the claimant or the
plaintiff to the Indemnified Party a release from all liability in respect of such
Proceeding. Upon the Indemnitor’s assumption of the defense of any such Proceeding, the
Indemnified Party shall be entitled to participate in the defense of the Proceeding, but
solely by observation and comment to the Indemnitor, and the counsel selected by the
Indemnified Party shall not appear on its behalf in any Proceeding arising hereunder. The
Indemnified Party shall bear the fees and expenses of any additional counsel retained by it
to participate in its defense unless any of the following shall apply: (i) the employment
of such counsel and the payment of fees by the Indemnitor shall have been authorized in
advance in writing by the Indemnitor; or (ii) the Indemnitor’s legal counsel shall advise
the Indemnitor in writing, with a copy to the Indemnified Party, that there is a conflict of
interest that would make it inappropriate under applicable standards of professional conduct
to have common counsel. If clause (i) or (ii) in the immediately preceding sentence is
applicable, then the Indemnified Party may employ separate counsel at the expense of the
Indemnitor to represent the Indemnified Party, but in no event shall the Indemnitor be
obligated to pay the costs and expenses of more than one such separate counsel for any one
Proceeding in any one jurisdiction. The Indemnitor shall not be liable for any settlement
of any Proceeding effected without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the Indemnitor agrees to indemnify the
Indemnified Party against any Loss by reason of such settlement or judgment.
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(c) Each party hereto shall cooperate in good faith and in all respects with
the Indemnitor and its representatives (including without limitation its counsel) in the
investigation, negotiation, settlement, trial and/or defense of any Proceedings (and any
appeal arising therefrom). The parties shall cooperate with each other and any
notifications to and information requests of any insurers. No individual representative of
any party hereto or the respective affiliates shall be personally liable for any loss, claim
or other amount under this Agreement, except as specifically agreed to by said individual
representative.
Section 3. Indemnification for Expenses of a Witness. To the extent an
Indemnified Party is a witness in any Proceeding to which the Indemnified Party is not a party,
such Indemnified Party shall be indemnified against and reimbursed for all costs and expenses
actually and reasonably paid or incurred by such Indemnified Party in connection therewith.
Section 4. Non-Exclusivity. The rights of indemnification as provided by
this Agreement shall not be deemed exclusive of any other rights to which the Indemnified Party may
at any time be entitled under any other agreement, under applicable law, or otherwise. No
amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or
restrict any right of Indemnified Party under this Agreement in respect of any action taken or
omitted by such Indemnified Party prior to such amendment, alteration or repeal. No right or
remedy herein conferred is intended to be exclusive of any other right or remedy, and every other
right and remedy shall be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other right or remedy.
Section 5. Subrogation; Limitation of Liability. Except as otherwise
provided herein, in the event of any payment under this Agreement, the Indemnitor shall be
subrogated to the extent of such payment to all of the rights of recovery of the Indemnified Party,
who shall execute all papers required and take all action necessary to secure such rights,
including execution of such documents as are necessary to enable the Indemnitor to bring suit to
enforce such rights. The Indemnitor shall not be liable under this Agreement to make any payment
of amounts otherwise indemnifiable hereunder if and to the extent that the Indemnified Party has
otherwise actually received such payment under any insurance policy, contract, agreement or
otherwise.
Section 6. Duration of Agreement. All agreements and obligations of the
Indemnitor contained herein shall continue so long as an Indemnified Party has or may have any
liability with respect to a Covered Obligation arising under any Covered Agreement.
Section 7. Entire Agreement; Binding Effect; Modification and Waiver.
Except as stated herein, this Agreement constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements and understandings,
oral, written and implied, between the parties hereto with respect to the subject matter hereof.
This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors (including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business or assets of the
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Indemnitor), assigns, spouses, heirs, executors and personal and legal representatives. No
supplement, modification, termination or amendment of this Agreement shall be binding unless
executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver unless explicitly so stated.
Section 8. Severability. If any provision or provisions of this Agreement
shall be held to be invalid, void, illegal or otherwise unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining provisions of this Agreement
(including without limitation, each portion of any section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to
the fullest extent permitted by law; and (b) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any section of this Agreement containing
any such provision held to be invalid, illegal or unenforceable, that is not itself invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.
Section 9. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if (a) delivered by hand
(with receipt) to the party to whom said notice or other communication shall have been directed, or
(b) mailed by certified or registered mail with postage prepaid, on the third business day after
the date on which it is so mailed, to the applicable parties at their respective addresses set
forth on the execution page(s) hereto or, as to each party, at such other address as shall be
designated by such party in a written notice to the other parties complying with the terms of this
Section 9.
Section 10. Miscellaneous. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original but all of which
together shall constitute one and the same Agreement. Only one such counterpart signed by the
party against whom enforceability is sought needs to be produced to evidence the existence of this
Agreement. The headings of the 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.
The parties agree that this Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware without application of the conflict of laws
principles thereof. This Agreement and the obligations of the parties hereunder shall survive
termination of the Covered Agreements.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and
year first above written.
| INDEMNITOR: | WELSH PROPERY TRUST, L.P., a Delaware limited partnership | |||||
| By: WELSH PROPERTY TRUST, LLC, a Delaware limited liability company, its general partner | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Address: | 0000 Xxxxx Xxxx, Xxxxx 000, | |||||
| Xxxxxxxxxx XX 00000 | ||||||
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and
year first above written.
INDEMNITEE:
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EXHIBIT A
Indemnitees
Xxxxxx X. Xxxxx |
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Xxxxx X. Xxxxxxxxxxx |
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Xxxx X. Xxxx |
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Wayzata Village Shoppes, LLP |
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Arlington Xxxxxxx Rosewood Apartments, X.X. |
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Xxxxxxxx X. Xxxxxx |
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Xxxxxxxx X. Xxxxxx Revocable Trust |
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Xxxxxx Xxxxxxxx |
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Xxxxxx Xxxxxx |
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Xxxxx X. Xxxxxxxxx |
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Welsh Midwest Real Estate Fund, LLC |
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Roseridge Holdings, LLC |
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Westval Ventures, LLC |
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Xxxxx Security Fund, LLC |
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