EXHIBIT 10.4
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") by and between Education
Realty Trust, Inc., a Maryland corporation (the "Company"), and ________________
("Indemnitee") is effective as of the date of the consummation of the Company's
initial public offering pursuant to an effective registration statement on Form
S-11 (the "Effective Date").
WHEREAS, at the request of the Company, Indemnitee currently serves as
a [director] [officer] of the Company and may, therefore, be subjected to
claims, suits or proceedings arising as a result of his service; and
WHEREAS, as an inducement to Indemnitee to continue to serve as such
[director] [officer], the Company has agreed to indemnify and to advance
expenses and costs incurred by Indemnitee in connection with any such claims,
suits or proceedings, to the fullest extent permitted by law; and
WHEREAS, the parties by this Agreement desire to set forth their
agreement regarding indemnification and advance of expenses;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and agree as
follows:
Section 1. Definitions. For purposes of this Agreement:
(a) "Change in Control" means (i) the sale, transfer, or other
disposition of eighty percent (80%) or more of the Company's assets, or (ii) a
sale of fifty percent (50%) or more of the then outstanding voting stock of the
Company in a single transaction or a series of related transactions.
(b) "Corporate Status" means the status of a person who is or was
a director, trustee, officer, employee or agent of the Company or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise for which such person is or was serving at the request of the
Company.
(c) "Disinterested Director" means a director of the Company who
is not and was not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee.
(d) "Effective Date" means the date set forth in the first
paragraph of this Agreement.
(e) "Expenses" shall include all reasonable and out-of-pocket
attorneys' fees, retainers, court costs, transcript costs, fees of experts,
witness fees, travel expenses, duplicating costs, printing and binding costs,
telephone charges, postage, delivery service fees, and all other disbursements
or expenses of the types customarily incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, or being or
preparing to be a witness in a Proceeding.
(f) "Independent Counsel" means a law firm, or a member of a law
firm, that is experienced in matters of corporation law and neither is, nor in
the past five years has been, retained to represent: (i) the Company or
Indemnitee in any matter material to either such party, or (ii) any other party
to or witness in 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 rights under
this Agreement. If a Change of Control has not occurred, Independent Counsel
shall be selected by the Board of Directors, with the approval of Indemnitee,
which approval will not be unreasonably withheld. If a Change of Control has
occurred, Independent Counsel shall be selected by Indemnitee, with the approval
of the Board of Directors, which approval will not be unreasonably withheld.
(g) "Proceeding" includes any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing or any other proceeding, whether civil,
criminal, administrative or investigative (including on appeal), except one
pending or completed on or before the Effective Date, unless otherwise
specifically agreed in writing by the Company and Indemnitee.
Section 2. Services by Indemnitee. Indemnitee will serve as a
[director] [officer] of the Company. However, this Agreement shall not impose
any obligation on Indemnitee or the Company to continue Indemnitee's service to
the Company beyond any period otherwise required by law or by other agreements
or commitments of the parties, if any.
Section 3. Indemnification - General. The Company shall indemnify,
and advance Expenses to, Indemnitee (a) as provided in this Agreement and (b)
otherwise to the fullest extent permitted by Maryland law in effect on the date
hereof and as amended from time to time; provided, however, that no change in
Maryland law shall have the effect of reducing the benefits available to
Indemnitee hereunder based on Maryland law as in effect on the date hereof. The
rights of Indemnitee provided in this Section 3 shall include, without
limitation, the rights set forth in the other sections of this Agreement,
including any additional indemnification permitted by Section 2-418(g) of the
Maryland General Corporation Law ("MGCL").
Section 4. Proceedings Other Than Proceedings by or in the Right of
the Company. Indemnitee shall be entitled to the rights of indemnification
provided in this Section 4 if, by reason of his Corporate Status, he is, or is
threatened to be, made a party to or a witness in any threatened, pending, or
completed Proceeding, other than a Proceeding by or in the right of the Company.
Pursuant to this Section 4, Indemnitee shall be indemnified against all
judgments, penalties, fines and amounts paid in settlement and all Expenses
actually and reasonably incurred by him or on his behalf in connection with a
Proceeding by reason of his Corporate Status unless it is established that (i)
the act or omission of Indemnitee was material to the matter giving rise to the
Proceeding and (a) was committed in bad faith or (b) was the result of active
and deliberate dishonesty, (ii) Indemnitee actually received an improper
personal benefit in money, property or services, or (iii) in the case of any
criminal Proceeding, Indemnitee had reasonable cause to believe that his conduct
was unlawful.
Section 5. Proceedings by or in the Right of the Company.
Indemnitee shall be entitled to the rights of indemnification provided in this
Section 5 if, by reason of his Corporate Status, he is, or is threatened to be,
made a party to or a witness in any threatened, pending or completed Proceeding
brought by or in the right of the Company to procure a judgment in its favor.
Pursuant to this Section 5, Indemnitee shall be indemnified against all amounts
paid in settlement and all Expenses actually and reasonably incurred by him or
on his behalf in connection with such Proceeding unless it is established that
(i) the act or omission of Indemnitee was material to the matter giving rise to
such a Proceeding and (a) was committed in bad faith or (b) was the result of
active and deliberate dishonesty or (ii) Indemnitee actually received an
improper personal benefit in money, property or services.
Section 6. Court-Ordered Indemnification. Notwithstanding any other
provision of this Agreement, a court of appropriate jurisdiction, upon
application of Indemnitee and such notice as the court shall require, may order
indemnification in the following circumstances:
(a) if it determines Indemnitee is entitled to reimbursement under
Section 2-418(d)(1) of the MGCL, the court shall order indemnification, in which
case Indemnitee shall be entitled to recover the expenses of securing such
reimbursement; or
(b) if it determines that Indemnitee is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances, whether
or not Indemnitee (i) has met the standards of conduct set forth in Section
2-418(b) of the MGCL or (ii) has been adjudged liable for receipt of an improper
personal benefit under Section 2-418(c) of the MGCL, the court may order such
indemnification as the court shall deem proper. However, indemnification with
respect to any Proceeding by or in the right of the Company or in which
liability shall have been adjudged in the circumstances described in Section
2-418(c) of the MGCL shall be limited to Expenses actually and reasonably
incurred by him or on his behalf in connection with a Proceeding.
Section 7. Indemnification for Expenses of a Party Who is Wholly or
Partly Successful. Notwithstanding any other provision of this Agreement, and
without limiting any such provision, to the extent that Indemnitee is, by reason
of his Corporate Status, made a party to and is successful, on the merits or
otherwise, in the defense of any Proceeding, he shall be indemnified for all
Expenses actually and reasonably incurred by him or on his behalf in connection
therewith. If Indemnitee is not wholly successful in such Proceeding but is
successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee under this Section 7 for all Expenses actually and reasonably
incurred by him or on his behalf in connection with each successfully resolved
claim, issue or matter, allocated on a reasonable and proportionate basis. For
purposes of this Section and without limitation, the termination of any claim,
issue or matter in such a Proceeding by dismissal, with or without prejudice,
shall be deemed to be a successful result as to such claim, issue or matter.
Section 8. Advance of Expenses. The Company shall advance all
reasonable Expenses actually and reasonably incurred by or on behalf of
Indemnitee in connection with any Proceeding (other than a Proceeding brought to
enforce indemnification under this Agreement, applicable law, the Charter or
Bylaws of the Company, any agreement or a resolution of the stockholders
entitled to vote generally in the election of directors or of the Board of
Directors) to which Indemnitee is, or is threatened to be, made a party or a
witness, within ten days after the receipt by the Company of a statement or
statements from Indemnitee requesting such advance or advances from time to
time, whether prior to or after final disposition of such Proceeding. Such
statement or statements shall reasonably evidence the Expenses incurred by
Indemnitee and shall include or be preceded or accompanied by a written
affirmation by Indemnitee of Indemnitee's good faith belief that the standard of
conduct necessary for indemnification by the Company as authorized by law and by
this Agreement has been met and a written undertaking by or on behalf of
Indemnitee, in substantially the form attached hereto as Exhibit A or in such
form as may be required under applicable law as in effect at the time of the
execution thereof, to reimburse the portion of any Expenses advanced to
Indemnitee relating to claims, issues or matters in the Proceeding as to which
it shall ultimately be established that the standard of conduct has not been met
and which have not been successfully resolved as described in Section 7. To the
extent that Expenses advanced to Indemnitee do not relate to a specific claim,
issue or matter in the Proceeding, such Expenses shall be allocated on a
reasonable and proportionate basis. The undertaking required by this Section 8
shall be an unlimited general obligation by or on behalf of Indemnitee and shall
be accepted without reference to Indemnitee's financial ability to repay such
advanced Expenses and without any requirement to post security therefor.
Section 9. Procedure for Determination of Entitlement to
Indemnification.
(a) To obtain indemnification under this Agreement, Indemnitee
shall submit to the Company a written request, including therein or therewith
such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to determine
whether and to what extent Indemnitee is entitled to indemnification. The
Secretary of the Company shall, promptly upon receipt of such a request for
indemnification, advise the Board of Directors in writing that Indemnitee has
requested indemnification.
(b) Upon written request by Indemnitee for indemnification
pursuant to the first sentence of Section 9(a) hereof, a determination, if
required by applicable law, with respect to Indemnitee's entitlement thereto
shall promptly be made in the specific case: (i) if a Change in Control shall
have occurred, by Independent Counsel in a written opinion to the Board of
Directors, a copy of which shall be delivered to Indemnitee; or (ii) if a Change
of Control shall not have occurred, (A) by the Board of Directors (or a duly
authorized committee thereof) by a majority vote of a quorum consisting of
Disinterested Directors (as herein defined), or (B) if a quorum of the Board of
Directors consisting of Disinterested Directors is not obtainable or, even if
obtainable, such quorum of Disinterested Directors so directs, by Independent
Counsel in a written opinion to the Board of Directors, a copy of which shall be
delivered to Indemnitee, or (C) if so directed by a majority of the members of
the Board of Directors, by the stockholders of the Company. If it is so
determined that Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within ten days after such determination. Indemnitee shall
cooperate with the person, persons or entity making such determination with
respect to Indemnitee's entitlement to indemnification, including providing to
such person, persons or entity upon reasonable advance request any documentation
or information which is not privileged or otherwise protected from disclosure
and which is reasonably available to Indemnitee and reasonably necessary to such
determination in the discretion of the Board of Directors or Independent Counsel
if retained pursuant to clause (ii)(B) of this Section 9. Any Expenses actually
and reasonably incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Company (irrespective
of the determination as to Indemnitee's entitlement to indemnification) and the
Company shall indemnify and hold Indemnitee harmless therefrom.
Section 10. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to
indemnification hereunder, the person or persons or entity making such
determination shall presume that Indemnitee is entitled to indemnification under
this Agreement if Indemnitee has submitted a request for indemnification in
accordance with Section 9(a) of this Agreement, and the Company shall have the
burden of proof to overcome that presumption in connection with the making of
any determination contrary to that presumption.
(b) The termination of any Proceeding by judgment, order,
settlement, conviction, a plea of nolo contendere or its equivalent, or an entry
of an order of probation prior to judgment, does not create a presumption that
Indemnitee did not meet the requisite standard of conduct described herein for
indemnification.
Section 11. Remedies of Indemnitee.
(a) If (i) a determination is made pursuant to Section 9 of this
Agreement that Indemnitee is not entitled to indemnification under this
Agreement, (ii) advance of Expenses is not timely made pursuant to Section 8 of
this Agreement, (iii) no determination of entitlement to indemnification shall
have been made pursuant to Section 9(b) of this Agreement within 90 days after
receipt by the Company of the request for indemnification, (iv) payment of
indemnification is not made pursuant to Section 7 of this Agreement within ten
days after receipt by the Company of a written request therefor, or (v) payment
of indemnification is not made within ten days after a determination has been
made that Indemnitee is entitled to indemnification, Indemnitee shall be
entitled to an adjudication in an appropriate court located
in the State of Maryland, or in any other court of competent jurisdiction, of
his entitlement to such indemnification or advance of Expenses. Alternatively,
Indemnitee, at his option, may seek an award in arbitration to be conducted by a
single arbitrator pursuant to the commercial Arbitration Rules of the American
Arbitration Association. Indemnitee shall commence such proceeding seeking an
adjudication or an award in arbitration within 180 days following the date on
which Indemnitee first has the right to commence such proceeding pursuant to
this Section 11(a); provided, however, that the foregoing clause shall not apply
to a proceeding brought by Indemnitee to enforce his rights under Section 7 of
this Agreement.
(b) In any judicial proceeding or arbitration commenced pursuant
to this Section 11 the Company shall have the burden of proving that Indemnitee
is not entitled to indemnification or advance of Expenses, as the case may be.
(c) If a determination shall have been made pursuant to Section
9(b) of this Agreement that Indemnitee is entitled to indemnification, the
Company shall be bound by such determination in any judicial proceeding or
arbitration commenced pursuant to this Section 11, absent a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to
make Indemnitee's statement not materially misleading, in connection with the
request for indemnification.
(d) In the event that Indemnitee, pursuant to this Section 11,
seeks a judicial adjudication of or an award in arbitration to enforce his
rights under, or to recover damages for breach of, this Agreement, Indemnitee
shall be entitled to recover from the Company, and shall be indemnified by the
Company for, any and all Expenses actually and reasonably incurred by him in
such judicial adjudication or arbitration. If it shall be determined in such
judicial adjudication or arbitration that Indemnitee is entitled to receive part
but not all of the indemnification or advance of Expenses sought, the Expenses
incurred by Indemnitee in connection with such judicial adjudication or
arbitration shall be appropriately prorated.
Section 12. Defense of the Underlying Proceeding.
(a) Indemnitee shall notify the Company promptly upon being served
with or receiving any summons, citation, subpoena, complaint, indictment,
information, notice, request or other document relating to any Proceeding which
may result in the right to indemnification or the advance of Expenses hereunder;
provided, however, that the failure to give any such notice shall not disqualify
Indemnitee from the right, or otherwise affect in any manner any right of
Indemnitee, to indemnification or the advance of Expenses under this Agreement
unless the Company's ability to defend in such Proceeding or to obtain proceeds
under any insurance policy is materially and adversely prejudiced thereby, and
then only to the extent the Company is thereby actually so prejudiced.
(b) Subject to the provisions of the last sentence of this Section
12(b) and of Section 12(c) below, the Company shall have the right to defend
Indemnitee in any Proceeding which may give rise to indemnification hereunder;
provided, however, that the Company shall notify Indemnitee of any such decision
to defend within 15 calendar days following receipt of notice of any such
Proceeding under Section 12(a) above. The Company shall not, without the prior
written consent of Indemnitee, which shall not be unreasonably withheld or
delayed, consent to the entry of any judgment against Indemnitee or enter into
any settlement or compromise which (i) includes an admission of fault of
Indemnitee or (ii) does not include, as an unconditional term thereof, the full
release of Indemnitee from all liability in respect of such Proceeding, which
release shall be in form and substance reasonably satisfactory to Indemnitee.
This Section 12(b) shall not apply to a Proceeding brought by Indemnitee under
Section 11 above or Section 18 below.
(c) Notwithstanding the provisions of Section 12(b) above, if in a
Proceeding to which Indemnitee is a party by reason of Indemnitee's Corporate
Status, (i) Indemnitee reasonably concludes, based upon an opinion of counsel
approved by the Company, which approval shall not be unreasonably withheld, that
he may have separate defenses or counterclaims to assert with respect to any
issue which may not be consistent with other defendants in such Proceeding, (ii)
Indemnitee reasonably concludes, based upon an opinion of counsel approved by
the Company, which approval shall not be unreasonably withheld, that an actual
or apparent conflict of interest or potential conflict of interest exists
between Indemnitee and the Company, or (iii) if the Company fails to assume the
defense of such Proceeding in a timely manner, Indemnitee shall be entitled to
be represented by separate legal counsel of Indemnitee's choice, subject to the
prior approval of the Company, which shall not be unreasonably withheld, at the
expense of the Company. In addition, if the Company fails to comply with any of
its obligations under this Agreement or in the event that the Company or any
other person takes any action to declare this Agreement void or unenforceable,
or institutes any Proceeding to deny or to recover from Indemnitee the benefits
intended to be provided to Indemnitee hereunder, Indemnitee shall have the right
to retain counsel of Indemnitee's choice, subject to the prior approval of the
Company, which shall not be unreasonably withheld, at the expense of the Company
(subject to Section 11(d)), to represent Indemnitee in connection with any such
matter.
Section 13. Non-Exclusivity; Survival of Rights; Subrogation;
Insurance.
(a) The rights of indemnification and advance of Expenses as
provided by this Agreement shall not be deemed exclusive of any other rights to
which Indemnitee may at any time be entitled under applicable law, the Charter
or Bylaws of the Company, any agreement or a resolution of the stockholders
entitled to vote generally in the election of directors or of the Board of
Directors, or otherwise. No amendment, alteration or repeal of this Agreement or
of any provision hereof shall limit or restrict any right of Indemnitee under
this Agreement in respect of any action taken or omitted by such Indemnitee in
his Corporate Status prior to such amendment, alteration or repeal.
(b) In the event of any payment under this Agreement, the Company
shall be subrogated to the extent of such payment to all of the rights of
recovery of Indemnitee, 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 Company to bring suit to enforce such rights.
(c) The Company shall not be liable under this Agreement to make
any payment of amounts otherwise indemnifiable or payable or reimbursable as
Expenses hereunder if and to the extent that Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement or
otherwise.
Section 14. Insurance. The Company will use its reasonable best
efforts to acquire directors and officers liability insurance, on terms and
conditions deemed appropriate by the Board of Directors of the Company, with the
advice of counsel, covering Indemnitee or any claim made against Indemnitee for
service as a director or officer of the Company and covering the Company for any
indemnification or advance of Expenses made by the Company to Indemnitee for any
claims made against Indemnitee for service as a director or officer of the
Company. Without in any way limiting any other obligation under this Agreement,
the Company shall indemnify Indemnitee for any payment by Indemnitee arising out
of the amount of any deductible or retention and the amount of any excess of the
aggregate of all judgments, penalties, fines, settlements and reasonable
Expenses actually and reasonably incurred by Indemnitee in connection with a
Proceeding over the coverage of any insurance referred to in the previous
sentence.
Section 15. Indemnification for Expenses of a Witness.
Notwithstanding any other provision of this Agreement, to the extent that
Indemnitee is or may be, by reason of his Corporate Status, a witness
in any Proceeding, whether instituted by the Company or any other party, and to
which Indemnitee is not a party but in which the Indemnitee receives a subpoena
to testify, he shall be advanced all reasonable Expenses and indemnified against
all Expenses actually and reasonably incurred by him or on his behalf in
connection therewith.
Section 16. Duration of Agreement; Binding Effect.
(a) This Agreement shall continue until and terminate ten years
after the date that Indemnitee's Corporate Status shall have ceased; provided,
that the rights of Indemnitee hereunder shall continue until the final
termination of any Proceeding then pending in respect of which Indemnitee is
granted rights of indemnification or advance of Expenses hereunder and of any
proceeding commenced by Indemnitee pursuant to Section 11 of this Agreement
relating thereto.
(b) The indemnification and advance of Expenses provided by, or
granted pursuant to, this Agreement shall be binding upon and be enforceable by
the parties hereto and their respective successors and assigns (including any
direct or indirect successor by purchase, merger, consolidation or otherwise to
all or substantially all of the business or assets of the Company), shall
continue as to an Indemnitee who has ceased to be a director, trustee, officer,
employee or agent of the Company or of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise which such person is
or was serving at the written request of the Company, and shall inure to the
benefit of Indemnitee and his spouse, assigns, heirs, devisees, executors and
administrators and other legal representatives.
(c) The Company shall require and cause any successor (whether
direct or indirect by purchase, merger, consolidation or otherwise) to all,
substantially all or a substantial part, of the business and/or assets of the
Company, by written agreement in form and substance satisfactory to Indemnitee,
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform if no such
succession had taken place.
Section 17. Severability. If any provision or provisions of this
Agreement shall be held to be invalid, illegal or 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 (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 18. Exception to Right of Indemnification or Advance of
Expenses. Notwithstanding any other provision of this Agreement, Indemnitee
shall not be entitled to indemnification or advance of Expenses under this
Agreement with respect to any Proceeding brought by Indemnitee, unless (a) the
Proceeding is brought to enforce indemnification under this Agreement, and then
only to the extent in accordance with and as authorized by Sections 8 and 11 of
this Agreement, or (b) the Company's Bylaws, as amended, the Charter, a
resolution of the stockholders entitled to vote generally in the election of
directors or of the Board of Directors or an agreement approved by the Board of
Directors to which the Company is a party expressly provide otherwise.
Section 19. Identical Counterparts. 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. One such counterpart signed by the party against whom enforceability
is sought shall be sufficient to evidence the existence of this Agreement.
Section 20. Headings. 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.
Section 21. Modification and Waiver. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by both
of 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.
Section 22. 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:
(a) If to Indemnitee, to: The address set forth on the signature
page hereto.
(b) If to the Company to:
Education Realty Trust, Inc.
Xxxxx 000
000 Xxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attn: President
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.
Section 23. 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, without regard to its conflicts of laws rules.
Section 24. Miscellaneous. Use of the masculine pronoun shall be
deemed to include usage of the feminine pronoun where appropriate.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the Effective Date.
ATTEST: EDUCATION REALTY TRUST, INC.
By: (SEAL)
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Name:
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Title:
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WITNESS: INDEMNITEE
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Name:
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Address:
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EXHIBIT A
FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED
The Board of Directors of Education Realty Trust, Inc.
Re: Undertaking to Repay Expenses Advanced
Ladies and Gentlemen:
This undertaking is being provided pursuant to that certain
Indemnification Agreement effective as of the ____ day of __________, 2004, by
and between Education Realty Trust, Inc. (the "Company") and the undersigned
Indemnitee (the "Indemnification Agreement"), pursuant to which I am entitled to
advance of expenses in connection with [DESCRIPTION OF PROCEEDING] (the
"Proceeding").
Terms used herein and not otherwise defined shall have the meanings
specified in the Indemnification Agreement.
I am subject to the Proceeding by reason of my Corporate Status or by
reason of alleged actions or omissions by me in such capacity. I hereby affirm
that at all times, insofar as I was involved as [A DIRECTOR] [AN OFFICER] of the
Company, in any of the facts or events giving rise to the Proceeding, I (1)
acted in good faith and honestly, (2) did not receive any improper personal
benefit in money, property or services and (3) in the case of any criminal
proceeding, had no reasonable cause to believe that any act or omission by me
was unlawful.
In consideration of the advance of Expenses by the Company for
reasonable attorneys' fees and related expenses incurred by me in connection
with the Proceeding (the "Advanced Expenses"), I hereby agree that if, in
connection with the Proceeding, it is established that (1) an act or omission by
me was material to the matter giving rise to the Proceeding and (a) was
committed in bad faith or (b) was the result of active and deliberate dishonesty
or (2) I actually received an improper personal benefit in money, property or
services or (3) in the case of any criminal proceeding, I had reasonable cause
to believe that the act or omission was unlawful, then I shall promptly
reimburse the portion of the Advanced Expenses relating to the claims, issues or
matters in the Proceeding as to which the foregoing findings have been
established and which have not been successfully resolved as described in
Section 7 of the Indemnification Agreement. To the extent that Advanced Expenses
do not relate to a specific claim, issue or matter in the Proceeding, I agree
that such Expenses shall be allocated on a reasonable and proportionate basis.
IN WITNESS WHEREOF, I have executed this Affirmation and Undertaking on
this ___ day of __________ ____, 200__.
WITNESS:
(SEAL)
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