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Exhibit 10.4  


 
 

FORM OF
  INDEMNIFICATION AGREEMENT    
    


        THIS INDEMNIFICATION AGREEMENT ("Agreement") is made and entered into as of the            day
of            , 2006 by and among Dividend Capital Total
Realty Trust Inc., a Maryland corporation (the "Company") and                        , a director and/or officer of the
Company (the "Indemnitee"). 


RECITALS 


        WHEREAS,
the interpretation of statutes, regulations and charter and Bylaw provisions regarding indemnification of directors and officers may be too uncertain to provide such directors
and officers with adequate notice of the legal, financial and other risks to which they may be exposed by virtue of their service as such; and 



        WHEREAS,
damages sought against directors and officers in shareholder or similar litigation may be substantial, and the costs of defending such actions and of judgments in favor of
plaintiffs or of settlement therewith may be prohibitive for individual directors and officers, without regard to the merits of a particular action and without regard to the culpability of, or the
receipt of improper personal benefit by, any named director or officer; and 


        WHEREAS,
the long period of time which may elapse before final disposition of such litigation may impose undue hardship and burden on a director or officer or his estate in maintaining a
proper and adequate defense of himself or his estate against claims for damages; and 


        WHEREAS,
the Company is organized under the Maryland General Corporation Law (the "MGCL"), and Section 2-418 of the MGCL empowers corporations to
indemnify and advance expenses of litigation to a person serving as a director, officer, employee or agent of a corporation and to persons serving at the request of the corporation, while a director
of a corporation, as a director, officer, partner, trustee, employee or agent of another foreign or domestic corporation, partnership,
joint venture, trust, other enterprise or employee benefit plan, and further provides that the indemnification and advancement of expenses set forth in the MGCL are not "exclusive of any other rights,
by indemnification or otherwise, to which a director may be entitled under the charter, the bylaws, a resolution of stockholders or directors, an agreement or otherwise, both as to action in an
official capacity and as to action in another capacity while holding such office"; and 


        WHEREAS,
the charter of the Company, as it may be amended or amended and restated from time to time (the "Charter"), provides that the Company shall indemnify and hold harmless
directors, advisors, or affiliates, as such terms are defined in the Charter; and 


        WHEREAS,
the Board of Directors of the Company (the "Board") has concluded that it is advisable and in the best interests of the Company to enter into an agreement to indemnify in a
reasonable and adequate manner the Indemnitee and to assume for itself maximum liability for expenses and damages in connection with claims lodged against him for his decisions and actions as a
director and/or officer of the Company; 







 



        NOW,
THEREFORE, in consideration of the foregoing, and of other good and valuable consideration, the receipt and sufficiency of which is acknowledged by each of the parties hereto, the
parties agree as follows: 


ARTICLE I  


 DEFINITIONS  


        For purposes of this Agreement, the following terms shall have the meanings set forth below: 


        Section 1.1    "Change in Control" shall mean a change in the ownership of or power to direct the Voting Securities of
the Company or the acquisition by a person not affiliated with the Company of the ability to direct the management of the Company. 


        Section 1.2    "Corporate Status" shall mean the status of a person who is or was a director or officer of the Company,
or a member of any committee of the Board, and the status of a person who, while a director or officer of the Company, is or was serving at the request of the Company as a director, officer, partner
(including service as a general partner of any limited partnership), trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, other incorporated or
unincorporated entity or enterprise or employee benefit plan. 


        Section 1.3    "Disinterested Director" shall mean a director of the Company who neither is nor was a party to the
Proceeding in respect of which indemnification is being sought by the Indemnitee. 


        Section 1.4    "Expenses" shall mean without limitation expenses of Proceedings including all attorneys' fees, retainers,
court costs, transcript costs, fees of experts, investigation fees and expenses, accounting and 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. 


        Section 1.5    "Good Faith Act or Omission" shall mean an act or omission of the Indemnitee reasonably believed by the
Indemnitee to be in or not opposed to the best interests of the Company and other than (i) one involving negligence or misconduct, or, if the Indemnitee is an independent director, one
involving gross negligence or willful misconduct; (ii) one that was material to the loss or liability and that was committed in bad faith or that was the result of active and deliberate
dishonesty; (iii) one from which the Indemnitee actually received an improper personal benefit in money, property or services; or (iv) in the case of a criminal Proceeding, one as to
which the Indemnitee had cause to believe his conduct was unlawful. 


        Section 1.6    "Liabilities" shall mean liabilities of any type whatsoever, including, without limitation, any judgments,
fines, excise taxes and penalties under the Employee Retirement Income Security Act of 1974, as amended, 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) in connection with the investigation, defense, settlement or appeal of any
Proceeding or any claim, issue or matter therein. 


        Section 1.7    "Proceeding" shall mean any threatened, pending or completed action, suit, arbitration, alternate dispute
resolution mechanism, investigation, administrative hearing or any other actual, threatened or completed proceeding whether civil, criminal, administrative or investigative, or any appeal therefrom. 


        Section 1.8    "Voting Securities" shall mean any securities of the Company that are entitled to vote generally in the
election of directors. 


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ARTICLE II  


 TERMINATION OF AGREEMENT  


        This Agreement shall continue until, and terminate upon the later to occur of (i) the death of the Indemnitee; or (ii) the final termination of all
Proceedings (including possible Proceedings) in respect of which the Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any proceeding commenced by the
Indemnitee regarding the interpretation or enforcement of this Agreement. 


ARTICLE III  


 SERVICE BY INDEMNITEE, NOTICE OF PROCEEDINGS

AND DEFENSE OF CLAIMS  


        Section 3.1    Notice of Proceedings.    The Indemnitee agrees to notify the Company promptly in writing upon
being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of
Expenses covered hereunder, but the Indemnitee's failure to so notify the Company shall not relieve the Company from any liability which it may have to the Indemnitee 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 prejudiced. 


        Section 3.2    Defense of Claims.    The Company will be entitled to participate, at its own expense, in any
Proceeding of which it has notice. The Company jointly with any other indemnifying party similarly notified of any Proceeding will be entitled to assume the defense of the Indemnitee therein, with
counsel reasonably satisfactory to the Indemnitee; provided, however, that the Company shall not be
entitled to assume the defense of the Indemnitee in any Proceeding if there has been a Change in Control or if the Indemnitee has reasonably concluded that there may be a conflict of interest between
the Company and the Indemnitee with respect to such Proceeding. The Company will not be liable to the Indemnitee under this Agreement for any Expenses incurred by the Indemnitee in connection with the
defense of any Proceeding, other than reasonable costs of investigation or as otherwise provided below, after notice from the Company to the Indemnitee of its election to assume the defense of the
Indemnitee therein. The Indemnitee shall have the right to employ his own counsel in any such Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its
assumption of the defense thereof shall be at the expense of the Indemnitee unless (i) the employment of counsel by the Indemnitee has been authorized by the Company; (ii) the Indemnitee
shall have reasonably concluded that counsel employed by the Company may not adequately represent the Indemnitee and shall have so informed the Company; or (iii) the Company shall not in fact
have employed counsel to assume the defense of the Indemnitee in such Proceeding or the counsel employed by the Company shall not, in fact, have assumed such defense or such counsel shall not be
acting, in connection therewith, with reasonable diligence; and in each such case the fees and expenses of the Indemnitee's counsel shall be advanced by the Company in accordance with this Agreement. 


        Section 3.3    Settlement of Claims.    The Company shall not settle any Proceeding in any manner which would
impose any liability, penalty or limitation on the Indemnitee without the written consent of the Indemnitee; provided, however, that the Indemnitee will not unreasonably withhold or delay consent to
any proposed settlement. The Company shall not be liable to indemnify the Indemnitee under this Agreement or otherwise for any amounts paid in settlement of any Proceeding effected by the Indemnitee
without the Company's written consent, which consent shall not be unreasonably withheld or delayed. 


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ARTICLE IV  


 INDEMNIFICATION  


        Section 4.1    General.    Upon the terms and subject to the conditions set forth in this Agreement, the
Company shall hold harmless and indemnify the Indemnitee against any and all Liabilities actually incurred by or for him in connection with any Proceeding (whether the Indemnitee is or becomes a
party, a witness or otherwise is a participant in any role) to the fullest extent required or permitted by the Charter and by applicable law in effect on the date hereof and to such greater extent as
applicable law may hereafter from time to time permit. For all matters for which the Indemnitee is entitled to indemnification under this Article IV, the Indemnitee shall be entitled to
advancement of Expenses in accordance with Article V hereof. 


        Section 4.2    Proceeding Other Than a Proceeding by or in the Right of the Company.    If the Indemnitee was
or is a party or is threatened to be made a party to any Proceeding (whether the Indemnitee is or becomes a party, a witness or otherwise is a participant in any role) (other than a Proceeding by or
in the right of the Company) by reason of his Corporate Status, or by reason of alleged action or inaction by him in any such capacity, the Company shall, subject to the limitations set forth in
Section 4.3 below, hold harmless and indemnify him against any and all Expenses and Liabilities actually and reasonably incurred by or for the Indemnitee in connection with the Proceeding if
the act(s) or omission(s) of the Indemnitee giving rise thereto were Good Faith Act(s) or Omission(s). 


        Section 4.3    Proceedings by or in the Right of the Company.    If the Indemnitee, by reason of his Corporate
Status, or by reason of alleged action or inaction by him in such capacity, was or is a party or is threatened to be made a party to any Proceeding (whether the Indemnitee is or becomes a party, a
witness or otherwise is a participant in any role) by or in the right of the Company, then the Company shall, subject to the limitations set forth in Section 4.6 below, hold harmless and
indemnify him against any and all Expenses actually incurred by or for him in connection with the investigation, defense, settlement or appeal of such Proceeding if the act(s) or omission(s) of the
Indemnitee giving rise to the Proceeding were Good Faith Act(s) or Omission(s); except that no indemnification under this Section 4.3 shall be made in respect of any claim, issue or matter as
to which the Indemnitee shall have been finally adjudged to be liable to the Company, unless a court of appropriate jurisdiction (including, but not limited to, the court in which such Proceeding was
brought) shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, regardless of whether the Indemnitee's act(s) or omission(s)
were found to be a Good Faith Act(s) or Omission(s), the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses which such court shall deem proper. 


        Section 4.4    Indemnification of a Party Who is Wholly or Partly Successful.    Notwithstanding any other
provision of this Agreement, to the extent that the Indemnitee is, by reason of the Indemnitee's Corporate Status, a party to and is successful, on the merits or otherwise, in any Proceeding, the
Indemnitee shall be indemnified by the Company to the maximum extent consistent with applicable law, against all Expenses and Liabilities actually incurred by or for him in connection therewith. If
the 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 hold harmless and indemnify the Indemnitee to the maximum extent consistent with applicable law, against all Expenses and Liabilities actually and reasonably incurred by or for him in connection
with each successfully resolved claim, issue or matter in such Proceeding. Resolution of a claim, issue or matter by dismissal, with or without prejudice, except as provided in Section 4.5
hereof, shall be deemed a successful result as to such claim, issue or matter, so long as there has been no finding (either adjudicated or pursuant to Article VI hereof) that the act(s) or
omission(s) of the Indemnitee giving rise thereto were not a Good Faith Act(s) or Omission(s). 


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        Section 4.5    Indemnification for Expenses as Witness.    Notwithstanding any other provision of this
Agreement, to the extent that the Indemnitee, by reason of the Indemnitee's Corporate Status, has prepared to serve or has served as a witness in any Proceeding, or has participated in discovery
proceedings or other trial preparation, the Indemnitee shall be held harmless and indemnified against all Expenses actually and reasonably incurred by or for him in connection therewith. 


        Section 4.6    Specific Limitations on Indemnification.    In addition to the other limitations set forth in
this Article IV, and notwithstanding anything in this Agreement to the contrary, the Company shall not be obligated under this Agreement to make any payment to the Indemnitee for
indemnification with respect to any Proceeding: 



        (a)   To
the extent that payment is actually made to the Indemnitee under any insurance policy or is made on behalf of the Indemnitee by or on behalf of the Company otherwise
than pursuant to this Agreement. 


        (b)   If
a court in such Proceeding has entered a judgment or other adjudication which is final and has become non-appealable and establishes that a claim of the
Indemnitee for such indemnification arose from: (i) acts or omissions of the Indemnitee that are not Good Faith Acts or Omissions or which are the result of active and deliberate dishonesty;
(ii) acts or omissions of the Indemnitee which the Indemnitee had reasonable cause to believe were unlawful; or (iii) a transaction in which the Indemnitee actually received an improper
personal benefit in money, property or services. 


        (c)   If
there has been no Change in Control, for Liabilities in connection with Proceedings settled without the consent of the Company which consent, however, shall not be
unreasonably withheld. 


        (d)   For
any loss or liability unless all of the following conditions are met: (i) the Indemnitee has determined, in good faith, that the course of conduct that caused
the loss or liability was in the best interests of the Company, (ii) the Indemnitee was acting on behalf of or performing services for the Company, (iii) such loss or liability was not
the result of negligence or misconduct, or, if the Indemnitee is an independent director, gross negligence or willful misconduct, and (iv) such indemnification is recoverable only out of the
Company's net assets and not from the Company's stockholders. 


        (e)   For
any loss or liability arising from an alleged violation of federal or state securities laws unless one or more of the following conditions are met: (i) there
has been a successful adjudication on the merits of each count involving alleged securities law violations as to the Indemnitee, (ii) such claims have been dismissed with prejudice on the
merits by a court of competent jurisdiction as to the Indemnitee; or (iii) a court of competent jurisdiction approves a settlement of the claims against the Indemnitee and finds that
indemnification of the settlement and the related costs should be made, and the court considering the request for indemnification has been advised of the position of the Securities and Exchange
Commission and of the published position of any state securities regulatory authority in which securities of the Company were offered or sold as to indemnification for violations of securities laws. 



ARTICLE V  


 ADVANCEMENT OF EXPENSES  


        Notwithstanding any provision to the contrary in Article VI hereof, the Company shall advance to the Indemnitee all Expenses which, by reason of the
Indemnitee's Corporate Status, were incurred by or for him in connection with any Proceeding for which the Indemnitee is entitled to indemnification pursuant to Article IV hereof, in advance of
the final disposition of such Proceeding, provided that all of the following are satisfied: (i) the Indemnitee was made a party to the proceeding by reason of his 


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service
as a director or officer of the Company, (ii) the Indemnitee provides the Company with written affirmation of his good faith belief that he has met the standard of conduct necessary for
indemnification by the Company pursuant to Article IV hereof, (iii) the Indemnitee provides the Company with a written agreement (the "Undertaking") to repay the amount paid or
reimbursed by the Company, together with the applicable legal rate of interest thereon, if it is ultimately determined that the Indemnitee did not comply with the requisite standard of conduct, and
(iv) the legal proceeding was initiated by a third party who is not a stockholder of the Company or, if by a stockholder of the Company acting in his or her capacity as such, a court of
competent jurisdiction approves such advancement. The Indemnitee shall be required to execute and submit the Undertaking to repay Expenses advanced in the form of Exhibit A attached hereto or
in such form as may be required under applicable law as in effect at the time of execution thereof. The Undertaking shall reasonably evidence the Expenses incurred by or for the Indemnitee and shall
contain the written affirmation by the Indemnitee, described above, of his good faith belief that the standard of conduct necessary for indemnification has been met. The Company shall advance such
expenses within five (5) business days after the receipt by the Company of the Undertaking. The Indemnitee hereby agrees to repay any Expenses advanced hereunder if it shall ultimately be
determined that the Indemnitee is not entitled to be indemnified against such Expenses. Any advances and the undertaking to repay pursuant to this Article V shall be unsecured. 


ARTICLE VI  


 PROCEDURE FOR PAYMENT OF LIABILITIES; DETERMINATION

OF RIGHT TO INDEMNIFICATION  


        Section 6.1    Procedure for Payment.    To obtain indemnification for Liabilities under this Agreement, the
Indemnitee shall submit to the Company a written request for payment, including with such request such documentation as is reasonably available to the Indemnitee and reasonably necessary to determine
whether, and to what extent, the Indemnitee is entitled to indemnification and payment hereunder. The Secretary of the Company, or such other person as shall be designated by the Board of Directors,
promptly upon receipt of a request for indemnification shall advise the Board of Directors, in writing, of such request. Any indemnification payment due hereunder shall be paid by the Company no later
than five (5) business days following the determination, pursuant to this Article VI, that such indemnification payment is proper hereunder. 


        Section 6.2    No Determination Necessary when the Indemnitee was Successful.    To the extent the Indemnitee
has been successful, on the merits or otherwise, in defense of any Proceeding referred to in Sections 4.2 or 4.3 above or in the defense of any claim, issue or matter described therein, the Company
shall indemnify the Indemnitee against Expenses actually and reasonably incurred by or for him in connection with the investigation, defense or appeal of such Proceeding. 



        Section 6.3    Determination of Good Faith Act or Omission.    In the event that Section 6.2 is
inapplicable, the Company also shall hold harmless and indemnify the Indemnitee unless the Company shall prove by clear and convincing evidence to a forum listed in Section 6.4 below that the
act(s) or omission(s) of the Indemnitee giving rise to the Proceeding were not Good Faith Act(s) or Omission(s). 


        Section 6.4    Forum for Determination.    The Indemnitee shall be entitled to select from among the following
the forums, in which the validity of the Company's claim under Section 6.3, that the Indemnitee is not entitled to indemnification will be heard: 



        (a)   A
quorum of the Board consisting of Disinterested Directors; 


        (b)   Legal
counsel selected by the Indemnitee, subject to the approval of the Board, which approval shall not be unreasonably delayed or denied, which counsel shall make such
determination in a written opinion; or 



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        (c)   A
panel of three arbitrators, one of whom is selected by the Company, another of whom is selected by the Indemnitee and the last of whom is selected jointly by the first
two arbitrators so selected. As soon as practicable, and in no event later than thirty (30) days after written notice of the Indemnitee's choice of forum pursuant to this Section 6.4,
the Company shall, at its own expense, submit to the selected forum in such manner as the Indemnitee or the Indemnitee's counsel may reasonably request,
its claim that the Indemnitee is not entitled to indemnification, and the Company shall act in the utmost good faith to assure the Indemnitee a complete opportunity to defend against such claim. The
fees and expenses of dthe selected forum in connection with making the determination contemplated hereunder shall be paid by the Company. If the Company shall fail to submit the matter to the selected
forum within thirty (30) days after the Indemnitee's written notice or if the forum so empowered to make the determination shall have failed to make the requested determination within thirty
(30) days after the matter has been submitted to it by the Company, the requisite determination that the Indemnitee has the right to indemnification shall be deemed to have been made. 




        Section 6.5    Right to Appeal.    Notwithstanding a determination by any forum listed in Section 6.4
above that the Indemnitee is not entitled to indemnification with respect to a specific Proceeding, the Indemnitee shall have the right to apply to the court in which that Proceeding is or was
pending, or to any other court of competent jurisdiction, for the purpose of enforcing the Indemnitee's right to indemnification pursuant to this Agreement. Such enforcement action shall consider the
Indemnitee's entitlement to indemnification de novo, and the Indemnitee shall not be prejudiced by reason of a prior determination that the Indemnitee is not entitled to indemnification. The Company
shall be precluded from asserting that the procedures and presumptions of this Agreement are not valid, binding and enforceable. The Company further agrees to stipulate in any such judicial proceeding
that the Company is bound by all the provisions of this Agreement and is precluded from making any assertion to the contrary. 


        Section 6.6    Right to Seek Judicial Determination.    Notwithstanding any other provision of this Agreement
to the contrary, at any time after sixty (60) days after a request for indemnification has been made to the Company (or upon earlier receipt of written notice that a request for indemnification
has been rejected) and within one (1) year after the making of such indemnification request, the Indemnitee may petition a court of competent jurisdiction, whether or not the court has
jurisdiction over, or is the forum in which is pending, the Proceeding, to determine whether the Indemnitee is entitled to indemnification hereunder, and such court thereupon shall have the exclusive
authority to make such determination, unless and until such court dismisses or otherwise terminates the Indemnitee's action without having made such determination. The court, as petitioned, shall make
an independent determination of whether the Indemnitee is entitled to indemnification hereunder, without regard to any prior determination in any other forum as provided hereby. 


        Section 6.7    Expenses under this Agreement.    Notwithstanding any other provision in this Agreement to the
contrary, the Company shall indemnify the Indemnitee against all Expenses incurred by the Indemnitee in connection with any hearing or proceeding under this Section VI involving the Indemnitee
and against all Expenses incurred by the Indemnitee in connection with any other action between the Company and the Indemnitee involving the interpretation or enforcement of the rights of the
Indemnitee under this Agreement, even if it is finally determined that the Indemnitee is not entitled to indemnification in whole or in part hereunder. 


ARTICLE VII  


 PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS  



        Section 7.1    Burden of Proof.    In making a determination with respect to entitlement to indemnification
hereunder, the person, persons, entity or entities making such determination shall 


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presume
that the Indemnitee is entitled to indemnification under this Agreement and the Company shall have the burden of proof to overcome that presumption. 



        Section 7.2    Effect of Other Proceedings.    The termination of any Proceeding or of any claim, issue or
matter therein, by judgment, order or settlement shall not create a presumption that the act(s) or omission(s) giving rise to the Proceeding were not Good Faith Act(s) or Omission(s). The termination
of any 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 presumption that the act(s) or
omission(s) of the Indemnitee giving rise to the Proceeding were not Good Faith Act(s) or Omission(s). 



        Section 7.3    Reliance as Safe Harbor.    For purposes of any determination of whether any act or omission of
the Indemnitee was a Good Faith Act or Omission, each act of the Indemnitee shall be deemed to be a Good Faith Act or Omission if the Indemnitee's action is based on the records or books of accounts
of the Company, including financial statements, or on information supplied to the Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the
Company or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company.
The provisions of this Section 7.3 shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard
of conduct set forth in this Agreement or under applicable law. 


        Section 7.4    Actions of Others.    The knowledge and/or actions, or failure to act, of any other director,
officer, agent or employee of the Company shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. 


ARTICLE VIII  


 INSURANCE  


        In the event that the Company maintains officers' and directors' or similar liability insurance to protect itself and any director or officer of the Company
against any expense, liability or loss, such insurance shall cover the Indemnitee to at least the same degree as each other director and/or officer of the Company. 


ARTICLE IX  


 MISCELLANEOUS  


        Section 9.1    Non-Exclusivity.    The rights of the Indemnitee hereunder shall not be deemed
exclusive of any other rights to which the Indemnitee may at any time be entitled under any provision of law, the Charter, the Bylaws of the Company, as the same may be in effect from time to time,
any agreement, a vote of stockholders of the Company or a resolution of directors of the Company or otherwise, and to the extent that during the term of this Agreement the rights of the
then-existing directors and officers of the Company are more favorable to such directors or officers than the rights currently provided to the Indemnitee under this Agreement, the
Indemnitee shall be entitled to the full benefits of such more favorable rights. No amendment, alteration, rescission or replacement of this Agreement or any provision hereof which would in any way
limit the benefits and protections afforded to an Indemnitee hereby shall be effective as to such Indemnitee with respect to any action or inaction by such Indemnitee in the Indemnitee's Corporate
Status prior to such amendment, alteration, rescission or replacement. 


        Section 9.2    Subrogation.    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 the Indemnitee, who 


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shall
execute all documents 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. 


        Section 9.3    Notices.    All notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given (i) if delivered by hand, by courier or by telegram and receipted for by the party to whom said notice or other communication shall have been
directed at the time indicated on such receipt; (ii) if by facsimile at the time shown on the confirmation of such facsimile transmission; or (iii) if by U.S. certified or registered
mail, with postage prepaid, on the third business day after the date on which it is so mailed: 


        If
to the Indemnitee, as shown with the Indemnitee's signature below. 


        If
to the Company, to: 




Dividend
Capital Total Realty Trust Inc.

518 17th street, 17th Floor

Denver, CO 80202

Attention: President

Facsimile No. (303) 869-4644 





or
to such other address as may have been furnished to the Indemnitee by the Company or to the Company by the Indemnitee, as the case may be. 


        Section 9.4    Governing Law.    The parties agree that this Agreement shall be governed by, and construed and
enforced in accordance with, the substantive laws of the State of Maryland, without application of the conflict of laws principles thereof. 



        Section 9.5    Binding Effect.    Except as otherwise provided in this Agreement, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns. The Company shall require any successor
or assignee (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of its respective assets or business, by written agreement in form and substance
reasonably satisfactory to the Indemnitee, to assume and agree to be bound by and to perform this Agreement in the same manner and to the same extent as the Company would be required to perform absent
such succession or assignment. 


        Section 9.6    Waiver.    No termination, cancellation, modification, amendment, deletion, addition or other
change in this Agreement, or any provision hereof, or waiver of any right or remedy herein, shall be effective for any purpose unless specifically set forth in a writing signed by the party or parties
to be bound thereby. The waiver of any right or remedy with respect to any occurrence on one occasion shall not be deemed a waiver of such right or remedy with respect to such occurrence on any other
occasion. 


        Section 9.7    Entire Agreement.    This Agreement, constitutes the entire agreement and understanding among
the parties hereto in reference to the subject matter hereof; provided, however, that the parties acknowledge and agree that the Charter contains provisions on the subject matter hereof and that this
Agreement is not intended to, and does not, limit the rights or obligations of the parties hereto pursuant to such Charter. 


        Section 9.8    Titles.    The titles to the articles and sections of this Agreement are inserted for
convenience of reference only and should not be deemed a part hereof or affect the construction or interpretation of any provisions hereof. 


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        Section 9.9    Invalidity of Provisions.    Every provision of this Agreement is severable, and the invalidity
or unenforceability of any term or provision shall not effect the validity or enforceability of the remainder of this Agreement. 


        Section 9.10    Pronouns and Plurals.    Whenever the context may require, any pronoun used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa. 


        Counterparts.    This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all
of which together constitute one agreement binding on all the parties hereto. 


        IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. 


DIVIDEND
CAPITAL TOTAL REALTY TRUST INC. 



	By:	
	 
	

Name:	

	

 
	

Title:	

	

 




10







 

INDEMNITEE








(Name) 


EXHIBIT A 


FORM
OF UNDERTAKING TO REPAY EXPENSES ADVANCED 


The
Board of Directors of Dividend Capital Total Realty Trust Inc. 


	Re:
	Undertaking
to Repay Expenses Advanced 



Ladies
and Gentlemen: 


        This
undertaking is being provided pursuant to that certain Indemnification Agreement dated the            day of            , 2005, by
and among Dividend Capital Total Realty
Trust Inc. and the undersigned Indemnitee (the "Indemnification Agreement"), pursuant to which I am entitled to advancement 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. During the period of time to which the Proceeding
relates I was                        [name of office(s) held] of Dividend Capital Total Realty Trust Inc. Pursuant to
Article IV of the Indemnification Agreement, the
Company is obligated to reimburse me for Expenses that are actually and reasonably incurred by or for me in connection with the Proceeding, provided that I execute and submit to the Company an
Undertaking in which (i) I undertake to repay any Expenses paid by the Company on my behalf, together with the applicable legal rate of interest thereon, if it shall be ultimately determined
that I am not entitled to be indemnified thereby against such Expenses; (ii) I affirm my good faith belief that I have met the standard of conduct necessary for indemnification; and
(iii) I reasonably evidence the Expenses incurred by or for me. 


[Description
of expenses incurred by or for Indemnitee] 


        This
letter shall constitute my undertaking to repay to the Company any Expenses paid by it on my behalf, together with the applicable legal rate of interest thereon, in connection with
the Proceeding if it is ultimately determined that I am not entitled to be indemnified with respect to such Expenses as set forth above. I hereby affirm my good faith belief that I have met the
standard of conduct necessary for indemnification and that I am entitled to such indemnification. 



	 	
 Signature
	

 	

 Name
	

 	

 Date




11











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FORM OF INDEMNIFICATION AGREEMENT