exv10w4






Exhibit 10.4




INDEMNIFICATION AGREEMENT




     THIS INDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered into as of the
        
             day of      
                  
                 , 20___, by and between                                              
               , a Maryland real estate
investment trust (the “Company”), and       
           
             
           (“Indemnitee”).



     WHEREAS, at the request of the Company, Indemnitee currently serves as [a trustee] [and] [an
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 [a trustee] [and] [an
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 maximum 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) “Board of Trustees” means the board of trustees of the Company.



               (b) “Change in Control” means a change in control of the Company which will be deemed to have
occurred after the date hereof if:




(1) any “person” as such term is used in Section 3(a)(9) of the Exchange Act, as modified
and used in Sections 13(d) and 14(d) thereof except that such term shall not include (A) the
Company or any of its subsidiaries, (B) any trustee or other fiduciary holding securities
under an employee benefit plan of the Company or any of its affiliates, (C) an underwriter
temporarily holding securities pursuant to an offering of such securities, (D) any
corporation owned, directly or indirectly, by the shareholders of the Company in
substantially the same proportions as their ownership of the Company’s common shares, or (E)
any person or group as used in Rule 13d-1(b) under the Exchange Act, is or becomes the
Beneficial Owner, as such term is defined in Rule 13d-3 under the Exchange Act, directly or
indirectly, of securities of the Company representing more than 50% of the combined voting
power or common shares of the Company;




(2) during any period of two consecutive years, individuals who at the beginning of such
period constitute the Board of Trustees, and any new trustee (other than (A) a trustee
designated by a person who has entered into an agreement with the Company to effect a
transaction described in clause (1), (3), or (4) of this Section 1(c) or (B) a trustee whose
initial assumption of office is in connection with an actual or threatened election contest,
including but not limited to a consent solicitation, relating to the election of trustees of



 









 







the Company) whose election by the Board of Trustees or nomination for election by the
Company’s shareholders was approved by a vote of at least two-thirds (2/3) of the trustees
then still in office who either were trustees at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any reason to
constitute at least a majority thereof;




(3) there is consummated a merger or consolidation of the Company or any direct or indirect
subsidiary of the Company with any other corporation, other than a merger or consolidation
which would result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity or any parent thereof) in combination with the
ownership of any trustee or other fiduciary holding securities under an employee benefit
plan of the Company or any subsidiary of the Company, more than 50% of the combined voting
power and common shares of the Company or such surviving entity or any parent thereof
outstanding immediately after such merger or consolidation; or




(4) there is consummated an agreement for the sale or disposition by the Company of all or
substantially all of the Company’s assets (or any transaction having a similar effect,
including a liquidation) other than a sale or disposition by the Company of all or
substantially all of the Company’s assets to an entity, more than fifty percent (50%) of the
combined voting power and common shares of which is owned by shareholders of the Company in
substantially the same proportions as their ownership of the common shares of the Company
immediately prior to such sale.



               (c) “Company Status” means the status of a person as a present or former trustee, officer,
employee or agent of the Company or as a director, trustee, officer, partner, manager, managing
member, fiduciary, employee or agent of any other foreign or domestic corporation, real estate
investment trust, partnership, limited liability company, joint venture, trust, employee benefit
plan or other enterprise that such person is or was serving in such capacity at the request of the
Company. As a clarification and without limiting the circumstances in which Indemnitee may be
serving at the request of the Company, service by Indemnitee shall be deemed to be at the request
of the Company if Indemnitee serves or served as a director, trustee, officer, partner, manager,
managing member, fiduciary, employee or agent of any corporation, real estate investment trust,
partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise (i) of which a majority of the voting power or equity interest is owned directly or
indirectly by the Company or (ii) the management of which is controlled directly or indirectly by
the Company.



               (d) “Disinterested Trustee” means a trustee of the Company who is not and was not a party to a
Proceeding in respect of which indemnification and/or advance of Expenses is sought by Indemnitee.



               (e) “Effective Date” means the date set forth in the first paragraph of this Agreement.



               (f) “Expenses” means any and all reasonable and out-of-pocket attorneys’ fees and costs,
retainers, court costs, transcript costs, fees of experts, witness



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fees, travel expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, federal, state, local or foreign taxes imposed on Indemnitee as a
result of the actual or deemed receipt of any payments under this Agreement, ERISA excise taxes and
penalties and any other disbursements or expenses incurred in connection with prosecuting,
defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in
or otherwise participating in a Proceeding. Expenses shall also include Expenses incurred in
connection with any appeal resulting from any Proceeding including, without limitation, the
premium, security for and other costs relating to any cost bond supersedeas bond or other appeal
bond or its equivalent.



               (g) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in
matters of corporate 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 (other than
with respect to matters concerning Indemnitee under this Agreement or of other indemnitees under
similar indemnification agreements) or (ii) any other party to or participant or witness in the
Proceeding giving rise to a claim for indemnification or advance of Expenses 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.



               (h) “Proceeding” means any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other
proceeding, whether brought by or in the right of the Company or otherwise and whether of a civil
(including intentional or unintentional tort claims), criminal, administrative or investigative
(formal or informal) nature, including any appeal therefrom, except one pending or completed on or
before the Effective Date, unless otherwise specifically agreed in writing by the Company and
Indemnitee. If Indemnitee reasonably believes that a given situation may lead to or culminate in
the institution of a Proceeding, such situation shall also be considered a Proceeding.



          Section 2. Services by Indemnitee. Indemnitee will serve as [a trustee] [and] [an
officer] of the Company. However, this Agreement shall not impose any independent obligation on
Indemnitee or the Company to continue Indemnitee’s service to the Company. This Agreement shall
not be deemed an employment contract between the Company (or any other entity) and Indemnitee.



          Section 3. General. The Company shall indemnify, and advance Expenses to, Indemnitee
(a) as provided in this Agreement and (b) otherwise to the maximum extent permitted by Maryland law
in effect on the Effective Date 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 Effective Date. 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 (the “MGCL”), as applicable to a Maryland real estate investment
trust by virtue of Section 8-301(15) of the Maryland REIT Law.



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          Section 4. Standard for Indemnification. If, by reason of Indemnitee’s Company
Status, Indemnitee is, or is threatened to be, made a party to any Proceeding, 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 any such Proceeding
unless it is established that (a) 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 the result of active
and deliberate dishonesty, (b) Indemnitee actually received an improper personal benefit in money,
property or services or (c) in the case of any criminal Proceeding, Indemnitee had reasonable cause
to believe that his conduct was unlawful.



          Section 5. Certain Limits on Indemnification. Notwithstanding any other provision of
this Agreement, except to the extent provided by Section 6 of this Agreement, Indemnitee shall not
be entitled to:



               (a) indemnification hereunder if the Proceeding was one by or in the right of the Company and
Indemnitee is adjudged to be liable to the Company;



               (b) indemnification hereunder if Indemnitee is adjudged to be liable on the basis that
personal benefit was improperly received in any Proceeding charging improper personal benefit to
Indemnitee, whether or not involving action in the Indemnitee’s Company Status; or



               (c) indemnification or advance of Expenses hereunder if the Proceeding was brought by
Indemnitee unless (i) the Proceeding was brought to enforce indemnification under this Agreement,
and then only to the extent in accordance with and as authorized by Section 12 of this Agreement,
or (ii) the Company’s declaration of trust or Bylaws, a resolution of the shareholders entitled to
vote generally in the election of trustees or of the Board of Trustees or an agreement approved by
the Board of Trustees to which the Company is a party expressly provide otherwise.



          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.



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          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 was or is, by reason of his Company Status, made a party to (or
otherwise becomes a participant in) any Proceeding and is successful, on the merits or otherwise,
in the defense of such Proceeding, Indemnitee 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 such claim, issue or matter, allocated on a reasonable and proportionate
basis. For purposes of this Section 7 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 for a Party. If, by reason of Indemnitee’s Company
Status, Indemnitee is, or is threatened to be, made a party to any Proceeding, the Company shall,
without requiring a preliminary determination of Indemnitee’s ultimate entitlement to
indemnification hereunder, advance all reasonable Expenses incurred by or on behalf of Indemnitee
in connection with such Proceeding within ten days after the receipt by the Company of a statement
or statements 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 by Indemnitee and which have not been successfully
resolved as described in Section 7 of this Agreement. 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. Indemnification and Advance of Expenses of a Witness. Notwithstanding any
other provision of this Agreement, to the extent that Indemnitee is or may be, by reason of his
Company Status, made a witness or otherwise asked to participate in any Proceeding, whether
instituted by the Company or any other party, and to which Indemnitee is not a party, 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 within ten days after the receipt by the
Company of a statement or statements 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.



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          Section 10. 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. Indemnitee may submit one or more such requests from
time to time and at such time(s) as Indemnitee deems appropriate in his sole discretion. The
officer of the Company receiving any such request from Indemnitee shall, promptly upon receipt of
such a request for indemnification, advise the Board of Trustees in writing that Indemnitee has
requested indemnification.



               (b) Upon written request by Indemnitee for indemnification pursuant to Section 10(a) above, 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 Trustees, a copy of which shall be
delivered to Indemnitee, which Independent Counsel shall be selected by the Indemnitee and approved
by the Board of Trustees in accordance with Section 2-418(e)(2)(ii) of the MGCL, which approval
will not be unreasonably withheld; or (ii) if a Change in Control shall not have occurred, (A) by
the Board of Trustees by a majority vote of a quorum consisting of Disinterested Trustees or, if
such a quorum cannot be obtained, then by a majority vote of a duly authorized committee of the
Board of Trustees consisting solely of one or more Disinterested Trustees, (B) if Independent
Counsel has been selected by the Board of Trustees in accordance with Section 2-418(e)(2)(ii) of
the MGCL and approved by the Indemnitee, which approval shall not be unreasonably withheld, by
Independent Counsel, in a written opinion to the Board of Trustees, a copy of which shall be
delivered to Indemnitee or (C) if so directed by a majority of the members of the Board of
Trustees, by the shareholders 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 Trustees or
Independent Counsel if retained pursuant to clause (ii)(B) of this Section 10(b). Any Expenses
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.



               (c) The Company shall pay the reasonable fees and expenses of Independent Counsel, if one is
appointed.



          Section 11. Presumptions and Effect of Certain Proceedings.



               (a) In making any 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 10(a) of this Agreement, and



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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 or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, upon a plea of nolo contendere or its equivalent, or 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.



               (c) The knowledge and/or actions, or failure to act, of any other trustee, officer, employee
or agent of the Company or any other director, trustee, officer, partner, manager, managing member,
fiduciary, employee or agent of any other foreign or domestic corporation, real estate investment
trust, partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise shall not be imputed to Indemnitee for purposes of determining any other right to
indemnification under this Agreement.



          Section 12. Remedies of Indemnitee.



               (a) If (i) a determination is made pursuant to Section 10(b) 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 10(b) of this Agreement within 60 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 pursuant to any other section of this
Agreement or the declaration of trust or Bylaws of the Company 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 any 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 12(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. Except as set forth herein, the provisions of Maryland law (without regard to
its conflicts of laws rules) shall apply to any such arbitration. The Company shall not oppose
Indemnitee’s right to seek any such adjudication or award in arbitration.



               (b) In any judicial proceeding or arbitration commenced pursuant to this Section 12,
Indemnitee shall be presumed to be entitled to indemnification or advance of Expenses, as the case
may be, under this Agreement and the Company shall have the burden of proving that Indemnitee is
not entitled to indemnification or advance of Expenses, as the case may be. If Indemnitee
commences a judicial proceeding or arbitration pursuant to this Section 12, Indemnitee shall not be
required to reimburse the Company for any advances pursuant to Section 8 of this Agreement until a
final determination is made with respect to



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Indemnitee’s entitlement to indemnification (as to which all rights of appeal have been
exhausted or lapsed). The Company shall, to the fullest extent not prohibited by law, be precluded
from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 12 that
the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court or before any such arbitrator that the Company is bound by all of the
provisions of this Agreement.



               (c) If a determination shall have been made pursuant to Section 10(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 12, 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 12, 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.



               (e) Interest shall be paid by the Company to Indemnitee at the maximum rate allowed to be
charged for judgments under the Courts and Judicial Proceedings Article of the Annotated Code of
Maryland for amounts which the Company pays or is obligated to pay for the period commencing with
the date on which the Company was requested to advance expenses in accordance with Section 8 of
this Agreement or to make the determination of entitlement to indemnification under Section 12(a)
above Indemnitee requests indemnification, reimbursement or advance of any Expenses and ending on
the date such payment is made to Indemnitee by the Company.



          Section 13. Defense of the Underlying Proceeding.



               (a) Indemnitee shall notify the Company promptly in writing upon being served with any
summons, citation, subpoena, complaint, indictment, request or other document relating to any
Proceeding which may result in the right to indemnification or the advance of Expenses hereunder
and shall include with such notice a description of the nature of the Proceeding and a summary of
the facts underlying the Proceeding. 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 13(b) and of Section 13(c)
below, the Company shall have the right to defend Indemnitee in any



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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 13(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, (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 or (iii) would
impose any Expense, judgment, fine, penalty or limitation on Indemnitee. This Section 13(b) shall
not apply to a Proceeding brought by Indemnitee under Section 12 of this Agreement.



               (c) Notwithstanding the provisions of Section 13(b) above, if in a Proceeding to which
Indemnitee is a party by reason of Indemnitee’s Company 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 12(d) of this Agreement), to represent Indemnitee in
connection with any such matter.



          Section 14. Non-Exclusivity; Survival of Rights; Subrogation.



               (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 declaration of trust or Bylaws of the Company, any agreement or a resolution of
the shareholders entitled to vote generally in the election of trustees or of the Board of
Trustees, or otherwise. Unless consented to in writing by Indemnitee, 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 Company
Status prior to such amendment, alteration or repeal, regardless of whether a claim with respect to
such action or inaction is raised prior or subsequent to such amendment, alteration or repeal. No
right or remedy herein conferred is intended to be exclusive of any other right or remedy, and
every other right or remedy shall be cumulative and in addition to every other right or remedy
given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion of
any right or remedy hereunder, or



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otherwise, shall not prohibit the concurrent assertion or employment of any other right or
remedy.



               (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.



          Section 15. 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 Trustees, with the advice of counsel, covering Indemnitee or any claim made against
Indemnitee by reason of his Company Status and covering the Company for any indemnification or
advance of Expenses made by the Company to Indemnitee for any claims made against Indemnitee by
reason of his Company Status. 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 Expenses incurred by Indemnitee in connection with a
Proceeding over the coverage of any insurance referred to in the previous sentence. The purchase,
establishment and maintenance of any such insurance shall not in any way limit or affect the rights
or obligations of the Company or Indemnitee under this Agreement except as expressly provided
herein, and the execution and delivery of this Agreement by the Company and the Indemnitee shall
not in any way limit or affect the rights or obligations of the Company under any such insurance
policies. If, at the time the Company receives notice from any source of a Proceeding to which
Indemnitee is a party or a participant (as a witness or otherwise) the Company has directors’ and
officers’ liability insurance in effect, the Company shall give prompt notice of such Proceeding to
the insurers in accordance with the procedures set forth in the respective policies.



          Section 16. Coordination of Payments. 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 17. Duration of Agreement; Binding Effect.



               (a) This Agreement shall continue until and terminate on the later of (i) the date that
Indemnitee shall have ceased to serve as a trustee, officer, employee or agent of the Company or as
a director, trustee, officer, partner, manager, managing member, fiduciary, employee or agent of
any other foreign or domestic corporation, real estate investment trust, partnership, limited
liability company, joint venture, trust, employee benefit plan or other enterprise that such person
is or was serving in such capacity at the request of the Company and (ii) the date that Indemnitee
is no longer subject to any actual or possible Proceeding (including any rights of appeal thereto
and any Proceeding commenced by Indemnitee pursuant to Section 12 of this Agreement).



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               (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, officer, employee or agent of
the Company or a director, trustee, officer, partner, manager, managing member, fiduciary, employee
or agent of any other foreign or domestic corporation, partnership, limited liability company,
joint venture, trust, employee benefit plan or other enterprise that such person is or was serving
in such capacity at the 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.



               (d) The Company and Indemnitee agree herein that a monetary remedy for breach of this
Agreement, at some later date, may be inadequate, impracticable and difficult of proof, and further
agree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto
agree that Indemnitee may enforce this Agreement by seeking injunctive relief and/or specific
performance hereof, without any necessity of showing actual damage or irreparable harm and that by
seeking injunctive relief and/or specific performance, Indemnitee shall not be precluded from
seeking or obtaining any other relief to which he may be entitled. Indemnitee shall further be
entitled to such specific performance and injunctive relief, including temporary restraining
orders, preliminary injunctions and permanent injunctions, without the necessity of posting bonds
or other undertakings in connection therewith. The Company acknowledges that, in the absence of a
waiver, a bond or undertaking may be required of Indemnitee by a court, and the Company hereby
waives any such requirement of such a bond or undertaking.



          Section 18. 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, paragraph or sentence of this Agreement containing any such provision
held to be invalid, illegal or unenforceable that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest
extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent
necessary to conform to applicable law and to give the maximum effect to the intent of the parties
hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including,
without limitation, each portion of any Section, paragraph or sentence 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.



11









 





          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:


Pebblebrook Hotel Trust



         
                 
                   
               



          
                  
                    
            



                                                            



or to such other address as may have been furnished in writing 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.



[SIGNATURE PAGE FOLLOWS]





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



	 	 	 	 	 	 	 
	 	 	PEBBLEBROOK HOTEL TRUST:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	INDEMNITEE:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Address:	 	 	 	 






 









 






EXHIBIT A




FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED




The Board of Trustees of Pebblebrook Hotel Trust





			
	     Re:	 	Undertaking to Repay Expenses Advanced





Ladies and Gentlemen:




     This undertaking is being provided pursuant to that certain Indemnification Agreement dated
the ___day of                
                
         , 20___, by and between Pebblebrook Hotel Trust, a Maryland real
estate investment trust (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 Company Status or by reason of alleged actions
or omissions by me in such capacity. I hereby affirm my good belief that at all times, insofar as
I was involved as [a trustee] [and] [an officer] of the Company, in any of the facts or events
giving rise to the Proceeding, I (1) did not act with bad faith or active or deliberate dishonesty,
(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.



     IN WITNESS WHEREOF, I have executed this Affirmation and Undertaking on this ___day of
          
                
              , 20_.