EXHIBIT 10.5


 


INDEMNIFICATION
AGREEMENT


 


This Indemnification Agreement (this “Agreement”), dated as of [ __________ ]
[ __ ], 2005, is made by and between Inland American Real Estate
Trust, Inc., a Maryland corporation (the “Company” or the “Indemnitor”),
as indemnitor, and the director, officer, employee or agent of the Company
executing this Agreement as of or subsequent to the date hereof whether by
separate instrument, counterpart or otherwise, as indemnitee (the “Indemnified
Party”).  Capitalized terms used herein but
not otherwise defined herein shall have the meanings ascribed to them in the
Company’s Articles of Incorporation (as amended or restated from time to time, the
“Articles”).


 


R E C I T A L S


 


A.                                   The
Company was formed on October 4, 2004, and intends to operate as a real
estate investment trust (a “REIT”) for federal and state income tax purposes.


 


B.                                     The
Articles and the Company’s Bylaws (as amended or restated from time to time, the
“Bylaws”) authorize the Company to indemnify and advance expenses to the
Indemnified Party, subject to certain limitations and conditions.


 


C.                                     The
Indemnified Party has requested that the Company enter into a contract for
indemnity and advancement of expenses pursuant to the applicable sections of the
Articles and Bylaws, and the Company is willing to enter into such a contract.


 


NOW, THEREFORE, in consideration of the mutual covenants and conditions
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:


 


1.                                       Company
Indemnification of the Indemnified Parties.


 


(a)                                  Subject
to paragraphs (b), (c) and (d) of this Section 1, the
Company shall indemnify and pay, advance or reimburse reasonable expenses to the
Indemnified Party from and against any liability or loss to which the
Indemnified Party may become subject or which the Indemnified Party may incur
by reason of his or her services as a director, officer, employee or agent of
the Company.


 


(b)                                 The
Company shall not indemnify the Indemnified Party unless:


 


(i)                                     the
Directors have determined, in good faith, that the course of conduct which
caused the liability or loss was in the best interest of the Company;


 


(ii)                                  the
Indemnified Party was acting on behalf of or performing services on the part of
the Company;


 





















 


(iii)                               the
liability or loss was not the result of negligence or misconduct on the part of
the Indemnified Party except that in the event the Indemnified Party is or was
an Independent Director, the liability or loss shall not have been the result
of gross negligence or willful misconduct;


 


(iv)                              the indemnification is recoverable only out
of the Net Assets of the Company and not from the Stockholders; and


 


(v)                                 in respect to an indemnification or reimbursement
of legal fees, the requisite Board of Directors, special legal counsel or
stockholders determination has been made that indemnification or reimbursement
is proper.


 


(c)                                  Notwithstanding
anything to the contrary in paragraph (b) above, the Company shall not
indemnify the Indemnified Party for liabilities or losses arising from or out
of an alleged violation of federal or state securities laws by the Indemnified Party 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 Indemnified Party;


 


(ii)                                  the
claims have been dismissed with prejudice on the merits by a court of competent
jurisdiction as to the Indemnified Party; or


 


(iii)                               a
court of competent jurisdiction approves a settlement of the claims and finds
that indemnification of the settlement and related costs should be made and the
court considering the request has been advised of the position of the
Securities and Exchange Commission and the published opinions of any state securities
regulatory authority in which securities of the Company were offered or sold as
to indemnification for violations of securities laws.


 


(d)                                 The
Company shall advance amounts to the Indemnified Party for legal and other
expenses and costs incurred as a result of any legal action for which indemnification is being sought only in
accordance with Section 2-418 of the Maryland General Corporation Law, and
only if all of the following conditions are satisfied:


 


(i)                                     the
legal action relates to acts or omissions with respect to the performance of
duties or services by the Indemnified Party for or on behalf of the Company;


 


(ii)                                  the
legal action is initiated by a third party who is not a Stockholder or the
legal action is initiated by a Stockholder acting in his or her capacity as
such and a court of competent jurisdiction specifically approves the advancement;
and


 


(iii)                               the
Indemnified Party receiving the advances undertakes in writing to repay the
advanced funds to the Company, together with the applicable legal rate of
interest thereon, in the event that the Indemnified Party is found not to be
entitled to indemnification.


 


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(e)                                  The
Company shall have the power to purchase and maintain insurance or provide
similar protection on behalf of the Indemnified Party against any liability or
loss asserted that was incurred in any capacity with the Company or arising out
of this status; provided, however, that the Company shall not
incur the costs of any liability insurance that insures any Person against liability
or loss for which he, she or it could not be indemnified under the Articles.


 


(f)                                    Nothing
contained in this Agreement shall constitute a waiver by the Indemnified Party
of any right that the Indemnified Party may have against any Person under
federal or state securities laws.


 


2.                                       Notices.  All notices or other communications required
or permitted to be given or delivered hereunder shall be deemed to have been
properly given or delivered to the following address: (i) when delivered
personally or by commercial messenger; (ii) one business day following
deposit with a recognized overnight courier service, provided the deposit
occurs prior to the deadline imposed by the overnight courier; or (iii) when
transmitted, if sent by facsimile copy, provided confirmation of receipt is
received by sender and the notice is sent by an additional method provided
hereunder, in each case above provided the notice or other communication is
addressed to the intended recipient thereof as set forth below:


 


	
  Indemnitor:

  	
  Inland
  American Real Estate Trust, Inc.

  
	
   

  	
  2901
  Butterfield Road

  
	
   

  	
  Oak Brook,
  IL 60523

  
	
   

  	
  Attn:  Ms. Roberta
  S. Matlin,

  Vice President, Administration

  
	
   

  	
  Telephone:

  	
  (630)
  218-8000

  
	
   

  	
  Facsimile:

  	
  (630)
  218-4955

  
	
   

  	
   

  
	
   

  	
   

  
	
  Indemnified Party:

  	
  To the address
  set forth by the Indemnified

  Party on the signature page hereto

  



 


3.                                       Counterparts.
 This Agreement may be executed in
one or more counterparts, all or which taken together shall constitute one and
the same agreement, and shall become effective when the counterparts have been
signed by each party hereto and delivered to the other parties hereto.


 


4.                                       Governing
Law.  This Agreement shall be
construed, performed and enforced in accordance with, and governed by, the
internal laws of the State of Maryland, without giving effect to the principles
of conflicts of laws thereof.


 


5.                                       Amendments.  This Agreement may be amended or modified,
and any of the terms, covenants, representations, warranties or conditions
hereof may be waived, only by a written instrument executed by the parties
hereto, or in the case of a waiver, by the party waiving compliance.


 


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6.                                       Headings.  The descriptive headings in this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.


 


7.                                       Severability.  In the event that any part of this Agreement
is declared by any court or other judicial or administrative body to be null,
void or unenforceable, said provision shall survive to the extent it is not so
declared, and all of the other provisions of this Agreement shall remain in
full force and effect.


 


8.                                       Successor
and Assigns.  All references herein
to the Company hereunder shall be deemed to include all successors and assigns
of the Company.  The Indemnified Party
may not assign its benefits hereunder to any third party beneficiaries or
successors or assigns without the prior written consent of the Company.


 


[SIGNATURES
ON FOLLOWING PAGE]


 


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


 


	
   

  	
  INDEMNITOR:

  
	
   

  	
   

  
	
   

  	
  INLAND AMERICAN REAL ESTATE TRUST, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEMNIFIED PARTY:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Facsimile: