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EXHIBIT 10.7
INDEMNIFICATION AGREEMENT
This Indemnification Agreement (this "Agreement") is made as
of the _____ day of __________, 1995, between Starwood Lodging Trust, a
Maryland real estate investment trust (the "Trust"), and ____________________
("Indemnitee"), with reference to the following facts and objectives:
A. Indemnitee is currently serving as a Trustee or officer of the
Trust or has been elected or appointed a Trustee or officer of the Trust to
take effect on a later date; the Trust conducts its business as general partner
of SLT Realty Limited Partnership, a Delaware limited partnership.
B. Section 7.4 of the Amended and Restated Declaration of Trust
dated as of June 6, 1988, as amended February 1, 1995, of the Trust (the "Trust
Declaration") and Section 8-301 (15) of the Maryland General Corporation Law
(the "MGCL") provide that the provisions of Section 2-418 of the MGCL shall be
fully applicable to the Trust and its Trustees (the "Trustees"), officers,
employees and other agents, and Section 7.4 of the Trust Declaration obligates
the Trust to indemnify its Trustees and officers to the fullest extent
permitted by the aforesaid Section 2-418 or other applicable law.
C. Each of Section 2-418 of the MGCL and Section 7.4 of the Trust
Declaration specifically provides that the indemnification provided for therein
is not exclusive, and each such Section thereby contemplates that agreements or
other financial arrangements may be entered into between the Trust, on the one
hand, and the Trustees or the Trust's officers, on the other hand, with respect
to the indemnification of and advancement of expenses to such persons.
D. In recognition of Indemnitee's need for substantial protection
against personal liability in order to maintain Indemnitee's continued service
to the Trust in an effective manner and Indemnitee's reliance on the Trust
Declaration, and in part to provide Indemnitee with specific contractual
assurance that the protection promised by the Trust Declaration will be
available to Indemnitee (regardless of, among other things, any limitation or
other amendment or revocation of Section 7.4 of the Trust Declaration or any
change in the composition of the Trust's Board of Trustees (the "Board of
Trustees")), the Trust desires to provide in this Agreement for the
indemnification of and the advancing of expenses to Indemnitee to the full
extent (whether partial or complete) permitted by law, as set forth in this
Agreement, and, to the extent trustees' and officers' insurance is maintained
by the Trust, for the continued coverage of Indemnitee under such policy or
policies.
NOW, THEREFORE, in consideration of the premises and of
Indemnitee's continuing to serve the Trust directly or, at its request, another
enterprise, the Trust and Indemnitee hereby agree as follows:
1. D&O Liability Insurance.
(a) Subject only to the provisions of Section
1(b) hereof, so long as Indemnitee shall continue to serve as a Trustee and/or
officer of the Trust (or shall continue at the request of the Trust to serve as
a trustee, director, officer, partner, employee or agent
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of another business trust, corporation, partnership, joint venture or other
enterprise or an employee benefit plan), and thereafter so long as Indemnitee
shall be subject to any possible claim or threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that Indemnitee was a Trustee and/or
officer of the Trust or served in any of said other capacities, the Trust
shall purchase and maintain in effect, including through the obtaining or
exercise of appropriate "tail" coverage, one or more valid, binding and
enforceable insurance policies issued by a reputable insurer or insurers
protecting Trustees and Trust officers (subject to customary limitations and
exceptions) against losses, costs and expenses arising out of any such claim,
action, suit or proceeding ("D&O Insurance"), which D&O Insurance shall
provide coverage in all respects at least comparable to that presently
provided, and shall cause Indemnitee to be covered by such policy or policies.
The Trust shall not be required to maintain in effect the
policy or policies of D&O Insurance contemplated by the first paragraph of this
Section 1(a) at any time at which (i) said insurance is not generally
available, or (ii) in the reasonable business judgment of the persons then
constituting the Board of Trustees, either (I) the premium cost for such
insurance is substantially disproportionate to the amount of coverage afforded,
or (II) the coverage provided by such insurance is so limited and/or subject to
such exclusions that there is insufficient benefit to the Trust from such
insurance; provided, however, that to the extent that the Trust maintains any
D&O Insurance, Indemnitee shall be covered by such policy or policies, in
accordance with its or their terms, to the maximum extent of the coverage
available for any Trustee or Trust officer under such policy or policies, and,
further, that in the event the Trust does not purchase and maintain in effect
the policy or policies of D&O Insurance contemplated by this Section 1(a), the
Trust shall indemnify Indemnitee to the full extent of the coverage that would
otherwise have been provided for the benefit of Indemnitee pursuant to such D&O
Insurance.
(b) The Trust's obligation under this Article 1
shall terminate as of the fifth anniversary of the date on which Indemnitee
ceases to render any service or to act in any capacity specified in Article 3
hereof.
2. Basic Indemnity. The Trust hereby indemnifies
Indemnitee, whether or not he is then an officer, to the fullest extent
permitted by the provisions of Section 2-418 of the MGCL or any amendment
thereof or by any other statute permitting such indemnification that is adopted
after the date hereof.
3. Additional Indemnity. Subject only to the
limitations and exclusions set forth in Article 5 hereof, and without limiting
the provisions of the foregoing Article 2, the Trust hereby also expressly
agrees that in the event Indemnitee is or becomes a party to or witness or
other participant in, or is threatened to be made a party to or witness or
other participant in, any action, suit or proceeding, whether pending,
threatened or completed, whether civil, criminal or administrative, and whether
instituted by or in the name of the Trust or any other party, or any
investigation or inquiry or investigation that Indemnitee in good faith
believes might lead to the institution of any such action, suit or proceeding,
by reason of (or arising in part out of) the fact that Indemnitee is or was a
Trustee, officer, employee or agent of the Trust, or is or was serving at the
request of the Trust as a trustee,
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director, officer, partner, employee, agent or fiduciary of another business
trust, corporation, partnership, joint venture or other enterprise or an
employee benefit plan, or by reason of anything done or not done by Indemnitee
in any such capacity (any such threatened, pending or completed action, suit
or proceeding, or any such inquiry or investigation, a "Claim"), the Trust
shall indemnify Indemnitee against any and all judgments, fines, penalties and
amounts paid in settlement (including all interest, assessments and other
charges paid or payable in connection with or in respect of such judgments,
fines, penalties or amounts paid in settlement), and any and all reasonable
expenses, actually paid or incurred by Indemnitee in connection with or in
respect of such Claim.
4. Advancing of Expenses. If so requested by
Indemnitee, and subject only to the limitations and exclusions of Article 5
hereof, the Trust shall pay to Indemnitee or reimburse Indemnitee for any and
all expenses actually and reasonably incurred by Indemnitee in connection with
or in respect of any Claim (an "Expense Advance") in advance of the final
determination thereof, in the manner provided in Section 11(a) hereof.
For purposes of this Agreement, "expenses" shall include
attorneys' fees and all other costs, charges and obligations paid or incurred
in connection with investigating, defending, being a witness in or
participating in (including an appeal), or preparing to defend, be a witness in
or participate in, any Claim.
5. Limitation on Additional Indemnity and Advance
Payment of Expense Advances. No indemnity pursuant to Article 3 hereof shall
be paid by the Trust, nor shall the Trust be required to make Expense Advances
under Article 4 hereof:
(a) For which and to the extent that payment or
reimbursement of such amount is made to Indemnitee under any
D&O Insurance;
(b) For which and to the extent that Indemnitee
is indemnified, receives a recovery or is reimbursed other
than pursuant to a policy of insurance or this Agreement;
(c) On account of any action, suit or proceeding
for which and to the extent that judgment is rendered against
Indemnitee (i) for an accounting of profits made from the
purchase or sale by Indemnitee of securities of the Trust
pursuant to the provisions of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or any similar provisions of
any Federal, state or local statutory law, or (ii) for a
violation of any provision of the Securities Act of 1933, as
amended, in connection with the offer or sale of securities of
the Trust pursuant to a registration statement under said
statute, unless either (I) in the opinion of counsel for the
Trust, Indemnitee is entitled to such indemnification by
controlling precedent, or (ii) a final adjudication by a court
of competent jurisdiction holds that such indemnification is
not against public policy as expressed in such statute;
(d) On account of any action, suit or proceeding
in which a court of competent jurisdiction shall enter a final
judgment that:
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(i) The act or omission of
Indemnitee was material to the matter giving
rise to the proceeding and (I) was committed
in bad faith; or (II) was that result of
active and deliberate dishonesty; or
(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 the act or omission was
unlawful;
(e) On account of any action, suit or proceeding
in which a court of competent jurisdiction shall enter a final
judgment in a proceeding by or in the right of the Trust that
Indemnitee is liable to the Trust; or
(f) If such payment by the Trust under this
Agreement is not otherwise permitted by applicable law.
In addition, if Maryland law in effect at the time so
requires, (i) the obligations of the Trust under Articles 3 and 4 hereof shall
be subject to the condition that any "Determining Party" (as hereinafter
defined) shall not have determined (in a written opinion in any case in which
the "Independent Legal Counsel" (as defined in Article 6 hereof) is involved)
that indemnification of Indemnitee is not permitted under applicable law or the
expenses as to which Indemnitee requests payment or reimbursement are not
reasonable, and (ii) the obligation of the Trust to make an Expense Advance
pursuant to Article 4 hereof shall be subject to the condition that if, when
and to the extent that any Determining Party determines that Indemnitee would
not be permitted to be so indemnified under applicable law, Indemnitee shall
reimburse the Trust for all expenses paid; provided, however, that if as of the
time any determination is made by the Determining Party that Indemnitee is
under certain circumstances not permitted to be indemnified and/or that certain
expenses are not reasonable, Indemnitee has commenced or thereafter commences
legal proceedings in a court of competent jurisdiction to secure a final
determination that Indemnitee should or may be indemnified under applicable law
and/or that any expenses are not reasonable shall not be binding, and
Indemnitee shall not be required to reimburse the Trust for any such expense
until a final judicial determination is made with respect thereto (as to which
all rights of appeal therefrom have been exhausted or lapsed).
If there has not been a Change in Control (as hereinafter
defined), or if such Change in Control was approved by a majority of the Board
of Trustees who were Trustees immediately prior to such Change in Control, the
"Determining Party" shall be such members of the Board of Trustees, such
Independent Legal Counsel (other than with respect to the reasonableness of
expenses), or such other person or persons as MGCL Section 2-418 (or any
successor provisions) shall require. If, on the other hand, there has been a
Change in Control not approved by such majority of the Board, the Determining
Party shall be (i) as to whether indemnification is permitted under applicable
law, the Independent Legal Counsel referred to in Article 6 hereof, and (ii) as
to the reasonableness of expenses, such members
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of the Board of Trustees or such other person(s) as MGCL Section 2-418 (or any
successor provision) shall require.
For purposes of this Agreement, a "Change in Control" shall be
deemed to have occurred if (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Securities Exchange Act"), other than a trustee or other fiduciary holding
securities under an employee benefit plan of the Trust or another business
trust or corporation owned directly or indirectly by the shareholders of the
Trust in substantially in the same proportions as their ownership shares of
beneficial interest of the Trust, becomes, directly or indirectly, the
"beneficial owner" (as defined in Rule 13(d)-3 under the Securities Exchange
Act) of securities of the Trust evidencing 8% or more of the total voting power
evidenced by the Trusts's then outstanding securities that vote generally in
the election of trustees ("Voting Securities"), or (ii) during any period of
two consecutive years, individuals who at the beginning of such period
constitute the Board of Trustees and any new Trustee whose election by the
Board of Trustees or nomination for election by the Trust's shareholders was
approved by the vote of at least two-thirds of the Trustees then still in
office who were either Trustees at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any
reason to constitute a majority of the Board of Trustees, or (iii) the
shareholders of the Trust approve a merger or consolidation of the Trust with
any other business trust, corporation or other entity, other than a merger or
consolidation that would result in the holders of Voting Securities outstanding
immediately prior to such merger or consolidation continuing to have (by virtue
of such Voting Securities either remaining outstanding or being converted into
securities entitled to vote generally in the election of trustees or directors
of the surviving entity) at least 80% of the total voting power evidenced by
the Voting Securities or the voting securities of such surviving entity
outstanding immediately after such merger or consolidation, or (iv) the
shareholders of the Trust approve a plan of complete liquidation of the Trust
or an agreement for the sale or disposition by the Trust of (in one transaction
or a series of affiliated transactions) all or substantially all of the Trust's
assets.
If within 15 business days after Indemnitee submits a request
for indemnification or for a payment or reimbursement of expenses hereunder,
there has been no determination by the Determining Party, or if the Determining
Party determines that Indemnitee is not permitted to be indemnified in whole or
in part under applicable law and/or that the expenses as to which payment or
reimbursement has been requested are not reasonable, Indemnitee shall have the
right to commence litigation in any court in the States of Maryland or
California having subject matter jurisdiction thereof and in which venue is
proper, seeking an initial determination by the court or challenging any such
determination by the Determining Party or any aspect thereof, including the
legal or factual bases therefor, and the Trust hereby consents to service of
process and to appear in any such proceeding.
6. Independent Legal Counsel. In the event that there
is a Change in Control (other than a Change in Control that has been approved
by a majority of the Board of Trustees immediately prior to such Change in
Control), the Trust shall seek legal advice with respect to any and all matters
thereafter arising concerning the rights of Indemnitee to indemnity payments
and payment or reimbursement of expenses under this Agreement or any other
agreement or financial arrangement or the Declaration of Trust as now or
hereafter in
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effect only from an attorney or firm of attorneys (the "Independent Legal
Counsel") proposed by Indemnitee and selected by the Board of Trustees (or a
committee thereof), or such other person(s) as MGCL Section 2-418 (or any
successor provision) may require. Such Independent Legal Counsel, among other
things, shall render its written opinion to the Trust and Indemnitee as to
whether and to what extent Indemnitee would be permitted to be indemnified
under applicable law. The Trust shall pay the reasonable fees and expenses of
the Independent Legal Counsel and shall fully indemnify such counsel against
all expenses, claims, liabilities, losses and damages arising out of or
relating to this Agreement or such counsel's engagement pursuant hereto.
7. Indemnification for Additional Expenses. To the full
extent permitted by law, the Trust shall indemnify Indemnitee against any and
all expenses and, if requested by Indemnitee, shall (within 10 business days of
such request) advance such expenses to Indemnitee, that are incurred by
Indemnitee in connection with any Claim asserted against or action, suit or
proceeding brought by Indemnitee for (i) indemnification or payment or
reimbursement of expenses by the Trust and this Agreement, or any other
agreement or the Trust Declaration each as now or hereafter in effect, relating
to claims for indemnification or advancement of expenses, and/or (ii) recovery
under any D&O Insurance policy or policies maintained by the Trust, if
Indemnitee ultimately is determined to be entitled to such indemnification,
advance expense payment or insurance recovery, as the case may be.
8. Partial Indemnity. If Indemnitee is entitled under
any provision of this Agreement to indemnification by the Trust for some or a
portion of the expenses, judgments, fines, penalties and amounts paid in
settlement or incurred by Indemnitee in respect of a Claim, but not, however,
for all of such amount, the Trust nevertheless shall indemnify Indemnitee for
the portion thereof to which Indemnitee is entitled. Moreover, notwithstanding
any other provision of this Agreement, to the extent that Indemnitee has been
successful in the merits or otherwise in defense of any Claim, issue or matter,
including dismissal without prejudice, Indemnitee shall be indemnified against
all expenses incurred in connection with such defense.
9. No Presumptions; Burden of Proof. For purposes of
this Agreement, the termination of any action, suit or proceeding by judgment,
order or settlement (with or without court approval) shall not, of itself,
create a presumption that Indemnitee's conduct was such that indemnity is not
available pursuant to Article 3 hereof; provided, however, that the
termination of any action, suit or proceeding by conviction, or upon a plea of
nolo contendere or its equivalent, or an entry of an order of probation prior
to judgment, shall create a rebuttable such presumption, and that the
termination of any action, suit or proceeding by a settlement entered into by
the Indemnitee at the request of the Trust shall create a rebuttable
presumption that Indemnitee is entitled to indemnity hereunder.
Except as provided by the immediately preceding sentence, in
connection with any determination by the Determining Party or otherwise as to
whether Indemnitee is entitled to be indemnified hereunder, the burden of proof
shall be on the Trust to establish that Indemnitee is not so entitled. In
addition, any attorneys' fees as to which Indemnitee requests indemnification
or advancement shall be rebuttably presumed reasonable if and to
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the extent that such fees, if charged at an hourly rate, do not exceed the
hourly rates then regularly charged by such attorney or attorneys.
10. Notification and Defense of Claims. Promptly after
receipt by Indemnitee of notice of the commencement of any Claim, Indemnitee
shall notify the Trust of the commencement thereof; provided, however, that the
failure so to notify the Trust shall relieve the Trust from any obligation or
liability that the Trust may have to Indemnitee under this Agreement only if
and to the extent that the Trust's rights hereunder are prejudiced by such
omission. If at the time the Trust receives such notice, the Trust has D&O
Insurance in effect, the Trust shall give prompt notice of the commencement of
Claim to the insurer(s) in accordance with the procedures set forth in the
policy or policies in favor of Indemnitee. The Trust thereafter shall take all
necessary or desirable action to cause such insurer(s) to pay, or advance, to
or on behalf of Indemnitee, all losses, costs and expenses payable as a result
of such Claim in accordance with the terms of such policy or policies. The
provisions of this Agreement shall in no way relieve or modify any
obligation(s) or liability or liabilities of any insurer under any D&O
Insurance or other applicable insurance policy.
With respect to any Claim as to which Indemnitee notifies the
Trust of the commencement thereof:
(a) The Trust shall be entitled to participate
therein at its own expense.
(b) Except to the extent such Claim is brought by
or in the right of the Trust and/or as otherwise provided below, to
the extent that it may wish, the Trust, jointly with any other
indemnifying party similarly notified, shall be entitled to assume the
defense of Indemnitee in respect of such Claim, at the Trust's own
expense, with counsel approved by Indemnitee, whose approval shall not
be unreasonably withheld. After notice from the Trust to Indemnitee
of the Trust's election so to assume such defense, the Trust shall not
be liable to Indemnitee under this Agreement for any legal or other
expenses subsequently incurred by Indemnitee in connection with the
defense thereof, other than as expressly provided to the contrary
below. Indemnitee shall have the right to employ his own counsel in
connection with such Claim, but the fees and expenses of such counsel
incurred after notice from the Trust of its assumption of the defense
thereof shall be at the expense of Indemnitee unless:
(i) Such retention (or continued
retention) of counsel by Indemnitee has been authorized or
consented to by Trust;
(ii) Counsel employed by Indemnitee shall
have concluded that there is or may be a conflict of interest
between Indemnitee and the Trust with respect to such action,
in which event counsel employed by Indemnitee also shall be
entitled to participate in the defense of Indemnitee in
connection with such Claim;
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(iii) The counsel retained by the Trust
to assume the defense of Indemnitee in such proceeding shall
also be representing in such action the Trust and/or one or
more other parties; such counsel shall have concluded that
there is an actual conflict of interest between Indemnitee and
the one or more of such other parties (including, if
applicable, the Trust); and within 10 business days after the
Trust is notified of such conflict, separate counsel shall
have been retained by the Trust to represent either the party
or parties with whom there is such conflict of interest or
Indemnitee (in which case such counsel shall be selected by
Indemnitee and approved by the Trust, whose approval shall not
be unreasonably withheld); or
(iv) The Trust shall not in fact have
retained counsel to assume the defense of Indemnitee in
connection with such action.
In each of the above cases, the fees and expenses of counsel employed
by Indemnitee shall be at the expense of the Trust.
(c) The Trust shall not be required to indemnify
Indemnitee under this Agreement for any amounts paid in settlement of
any Claim effected without the Trust's written consent. The Trust
shall not settle any Claim in any manner that would impose any penalty
or limitation on Indemnitee without Indemnitee's written consent.
Neither the Trust nor Indemnitee shall unreasonably withhold consent
to any such proposed such settlement.
11. Indemnification and Expense Advancement Requests.
(a) Advancement of Expenses.
(i) Indemnitee shall, in order to
request payment or reimbursement of expenses pursuant to
Article 4 hereof, submit to the Board of Trustees a statement
or request for advancement of expenses substantially in the
form of Exhibits 1 or 1A attached hereto and made a part
hereof (the "Expense Advancement Request").
(ii) Within 10 business days after
receipt of a properly completed Expense Advancement Request
and an invoice or other statement of the expenses to be
advanced, the President, the Chief Executive Officer, a Vice
President or General Counsel of the Trust shall authorize the
Trust's payment or reimbursement of said expenses, whereupon
such payment(s) or reimbursement(s) shall immediately be made.
No security shall be required in connection with any Expense
Advancement Request, and it shall be accepted without
reference to Indemnitee's financial ability to make repayment.
(b) Indemnification.
(i) Indemnitee, in order to request
indemnification pursuant to Article 3 hereof, shall submit to
the Board of Trustees a statement of
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request for indemnification substantially in the form of
Exhibit 2 attached hereto and made a party hereof (the
"Indemnification Request").
(ii) Any and all payments on account of
the Trust's indemnification obligations under Article 3 hereof
shall be made within 10 business days of the Trust's receipt
of a duly completed Indemnification Request with respect
thereto.
12. Continuation of Indemnity; Indemnity Not Exclusive.
All agreements and obligations of the Trust contained herein shall continue
during the period Indemnitee is a Trustee and/or officer of the Trust (or
serves at the request of the Trust as a trustee, director, officer, partner,
employee or agent of another business trust, corporation, partnership, joint
venture or other enterprise or an employee benefit plan) and shall continue
thereafter so long as Indemnitee shall be subject to any possible Claim.
The rights and benefits of Indemnitee and the obligations of
the Trust under this Agreement shall be in addition to, and shall not
supersede, limit or be in lieu of, the provisions, if any, relating to the
indemnification of Indemnitee by the Trust in the Trust Declaration, the
Trustee's Regulations of the Trust, any resolution or resolutions of the Board
of Trustees, any other agreement or financing arrangement, the provisions of
policies of insurance of the Trust, or other applicable law.
13. Subrogation. In the event of payment or
reimbursement by the Trust under this Agreement, the Trust shall be subrogated
to the extent of such payment or reimbursement to any and all rights of
recovery of Indemnitee, who shall execute all papers required and shall do
everything that may be necessary to secure such rights, including the execution
of any and all such documents as may be necessary to enable the Trust
effectively to enforce such rights.
14. Notice. All notices 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 such 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 so mailed:
If to Indemnitee, to: ____________________________________
____________________________________
____________________________________
If to the Trust, to: Starwood Lodging Trust
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
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or to such other address as may have been furnished to Indemnitee by the Trust
or to the Trust by Indemnitee, as the case may be.
15. Severability. If any provision of this Agreement or
the application of any such provision to any person or circumstance is held by
a court of competent jurisdiction invalid, void or otherwise unenforceable, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected, and the provision so held to be
invalid, void or otherwise unenforceable shall be reformed to the extent (and
only to that extent) necessary to make it enforceable.
16. Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one
document.
17. Captions. The captions of the Articles to this
Agreement have been included herein for convenience of reference only, and this
Agreement shall not be construed by reference thereto.
18. Governing Law; Binding Effect; Amendment and
Termination.
(a) This Agreement is made and entered into
pursuant to Section 2-418 of the MGCL, and this Agreement shall be
governed by and its provisions interpreted and enforced in accordance
with the laws of the State of Maryland applicable to contracts made
and to be performed in such State without giving effect to the
principles of conflicts of laws.
(b) This Agreement shall be binding upon and
inure to the benefit of (i) the Trust and its successors and permitted
assigns (including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the
business and/or assets of the Trust), and (ii) Indemnitee, his or her
spouse, heirs, executors, personal and legal representatives and other
successors and permitted assigns. Neither this Agreement nor any
right or obligation hereunder may be assigned, delegated or otherwise
transferred by Indemnitee voluntarily during his lifetime or by the
Trust, except that the Trust shall require and cause any successor to
expressly assume and agree (by a writing in form and substance
satisfactory to Indemnitee, whose approval shall not be unreasonably
withheld) to perform this Agreement in the same manner and to the same
extent that the Trust would have been required to perform if no such
succession had taken place.
(c) No amendment, supplement or other
modification, termination of this Agreement shall be effective unless
executed in writing by both of the parties hereto. No waiver of any
provision or provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision or provisions hereof
(whether or not similar), nor shall any such waiver constitute a
continuing waiver.
19. Other Indemnification Agreements.
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(a) This Agreement supersedes and replaces any
prior Indemnification Agreement between the Trust and Indemnitee which covers
similar rights and obligations between Indemnitee and the Trust; provided
however that Indemnitee and the Trust shall retain any and all rights and
obligations under any such prior agreement which may have accrued or be
applicable to any period prior to the date of this Agreement.
(b) If Indemnitee has entered into, or in the
future enters into, an Indemnification Agreement with Starwood Lodging
Corporation, a Maryland corporation, similar to this Agreement, then if and to
the extent that Indemnitee is entitled to indemnification against and/or
advancement of any judgement(s), fine(s), penalty(ies), amount(s) paid in
settlement, cost(s) and/or expense(s) both under this Agreement and such other
Indemnification Agreement, Indemnitee shall be entitled to seek such
indemnification and/or reimbursement under either or both said agreements, as
Indemnitee may elect, but any and all such requests for indemnification and/or
advancement or expenses shall be subject to the provisions of paragraph (b) of
Section 5 of this Agreement.
20. Disclaimer. The name "Starwood Lodging Trust" is a
designation of a Maryland real estate investment trust and its trustees (as
trustees but not personally) under an Amended and Restated Declaration of Trust
dated as of June 6, 1988, as amended, and all persons dealing with such trust
must look solely to such trust property for enforcement of any claims against
such trust, the trustees, officers, agents and security holders of such trust
assume no personal liability for obligations entered into on behalf of such
trust and the respective property shall not be subject to the claims of any
person relating to any such obligations.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on and as of the day and year first above written.
STARWOOD LODGING TRUST
By:________________________________
Its:_______________________________
___________________________________
____________________, Indemnitee
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Exhibit 1
Expense Advancement Request
I, _______________________, do hereby affirm, undertake and
agree as follows:
1. This Expense Advancement Request is submitted
pursuant to the Indemnification Agreement dated as of ___________________, 1995
(the "Indemnification Agreement"), between Starwood Lodging Trust, a Maryland
real estate investment trust (the "Trust"), and the undersigned.
2. I am requesting that the Trust pay or reimburse to me
certain expenses that I have incurred in connection with the following civil,
criminal, administrative or investigative action, suit or proceeding to which I
am a party (the "Claim"):
_______________________________________________________________
_______________________________________________________________
3. The expenses payment or reimbursement of which is
requested are itemized below:
_______________________________________________________________
_______________________________________________________________
4. It is my good faith belief that in connection with
the matters that are the subject of the Claim, I have met the standard of
conduct necessary for indemnification by the Trust pursuant to Section 2-418 of
the Maryland General Corporation Law (a copy of which has been provided to me).
5. If it shall be ultimately determined that in
connection with the matters that are the subject of the Claim, I have not met
such standard of conduct, I will repay to the Trust the amounts paid or
reimbursed by the Trust pursuant hereto.
___________________________________
13
Exhibit 1A
EXPENSE ADVANCEMENT REQUEST
I, ______________________, do hereby affirm, undertake and
agree as follows:
1. This Expense Advancement Request is submitted
pursuant to the Indemnification Agreement dated as of ____________________,
1995 (the "Indemnification Agreement"), between Starwood Lodging Trust, a
Maryland real estate investment trust (the "Trust"), and the undersigned.
2. I hereby request that the Trust pay directly the
fees, expenses and other charges of my legal counsel, ____________________, in
connection with the following civil or criminal, administrative or
investigative action, suit or proceeding to which I am a party (the "Claim"):
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
3. It is my good faith belief that in connection with
the matters that are the subject of the Claim, I have met the standard of
conduct necessary for indemnification by the Trust pursuant to Section 2-418 of
the Maryland General Corporation Law (a copy of which statute has been provided
to me).
4. If it shall be ultimately determined that in
connection with the matters that are the subject of the Claim, I have not met
such standard of conduct, I will repay to the Trust the amounts paid by the
Trust pursuant hereto.
___________________________________
14
Exhibit 2
Indemnification Request
I, _________________________, do hereby affirm, undertake and
agree as follows:
1. This Indemnification Request is submitted pursuant to
the Indemnification Agreement dated as of __________________, 1995 (the
"Indemnification Agreement"), between Starwood Lodging Trust, a Maryland real
estate investment trust (the "Trust"), and the undersigned.
2. I am requesting indemnification against the following
expenses (including attorneys' fees), judgments, penalties, fines and amounts
paid in settlement, paid or incurred by me in connection with suit, action,
investigation, inquiry or other proceeding also described below:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
3. With respect to all matters related to such
proceeding, I am entitled to be indemnified pursuant to the aforesaid
Indemnification Agreement.
___________________________________
15
AMENDMENT NO. 1 TO
INDEMNIFICATION AGREEMENT
_______________
Starwood Lodging Trust
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Indemnification Agreement
Gentlemen:
Please refer to the Indemnification Agreement (the "Agreement") dated as of
____________________, between Starwood Lodging Trust, a Maryland real estate
investment trust (the "Trust") and the undersigned ("Indemnitee").
Defined terms used herein have the same meaning as in the Agreement.
This confirms our understanding that nothing contained in the Agreement is
intended to, nor shall be deemed as, an agreement to indemnify or to advance
expenses to the Indemnitee to the extent that the Indemnitee brings any action,
suit or proceeding or causes any such action, suit or proceeding to be brought,
against the Trust or any of the Trustees of the Trust other than an action,
suit or proceeding against the Trust for the Trust's alleged breach of the
Agreement.
Yours very truly,
AGREED TO:
Starwood Lodging Trust,
a Maryland real estate investment trust
By:____________________
Its:___________________