Exhibit 10.6


 


FORM OF INDEMNIFICATION AGREEMENT


 


THIS
INDEMNIFICATION AGREEMENT (this “Agreement”) is made and entered into as
of the          day of
                    ,
20    , by and between Clarion Property Trust Inc. (the “Company”),
and                     
(the “Indemnitee”).


 


WHEREAS,
at the request of the Company, the Indemnitee currently serves as a director or
officer of the Company and may, therefore, be subjected to claims, suits or
proceedings arising as a result of his or her service;


 


WHEREAS,
as an inducement to the Indemnitee to continue to serve as such director or
officer, the Company has agreed to indemnify and to advance expenses and costs
incurred by the Indemnitee in connection with any such claims, suits or
proceedings; and


 


WHEREAS,
the parties to 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 the Indemnitee do hereby covenant and agree as follows:


 


Section 1.               Definitions.  For
purposes of this Agreement:


 


(a)           “Applicable Legal Rate” means a fixed rate of interest equal to
the applicable federal rate for mid-term debt instruments as of the day that it
is determined that the Indemnitee must repay any advanced expenses.


 


(b)           “Change in Control” means a change in control of the Company
occurring after the Effective Date of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A
(or in response to any similar item on any similar schedule or
form) promulgated under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), whether or not the Company is then subject to
such reporting requirement; provided, however, that, without limitation, such a
Change in Control shall be deemed to have occurred if, after the Effective Date
(i) any “person” (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act) is or becomes the “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing 15% or more of the combined voting power of all of the Company’s
then-outstanding securities entitled to vote generally in the election of
directors without the prior approval of at least two-thirds of the members of
the Board of Directors in office immediately prior to such person’s attaining
such percentage interest; (ii) the Company is a party to a merger,
consolidation, sale of assets, plan of liquidation or other reorganization not
approved by at least two-thirds of the members of the Board of Directors then
in office, as a consequence of which members of the Board of Directors in
office immediately prior to such transaction or event constitute less than a
majority of the Board of Directors thereafter; or (iii) at any time, a
majority of the members of the Board of Directors are not individuals (A) who
were directors as of the Effective Date or (B) whose election by the Board
of Directors or nomination for election by the Company’s stockholders was
approved by the affirmative vote of at least two-thirds of the directors then
in office who were directors as of the Effective Date or whose election for
nomination for election was previously so approved.


 


(c)           “Corporate Status” means the status of a person as a present or
former director, 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, 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 the Indemnitee may be serving at the request of the
Company, service by the Indemnitee shall be deemed to be at the request of the
Company if the Indemnitee serves or served as a director, trustee, officer,
partner, manager, managing member, fiduciary, employee or agent of any
corporation, 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 Director” means a director of the Company who is
not and was not a party to the Proceeding in respect of which indemnification
and/or advance of Expenses is sought by the 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 fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, federal, state, local
or foreign taxes imposed on the 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 for, 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 corporation law and neither is, nor in the
past five years has been, retained to represent:  (i) the Company or the Indemnitee in any
matter material to either such party (other than with respect to matters
concerning the 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 the Indemnitee in an action to determine the 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 the Indemnitee.  If the 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 the Indemnitee.  The
Indemnitee will serve as a director or officer of the Company.  However, this Agreement shall not impose any
independent obligation on the Indemnitee or the Company to continue the
Indemnitee’s service to the Company. 
This Agreement shall not be deemed an employment contract between the Company
(or any other entity) and the Indemnitee.


 


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Section 3.               General.  Subject to
the limitations in Section 5 hereof, the Company shall indemnify, and
advance Expenses to, the Indemnitee (i) as provided in this Agreement and (ii) as
otherwise 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 the Indemnitee
hereunder based on Maryland law as in effect on the Effective Date.  Subject to the limitations in Section 5
hereof, the rights of the 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”).


 


Section 4.               Standard for Indemnification. 
Subject to the limitations in Section 5 hereof, if, by reason of
the Indemnitee’s Corporate Status, the Indemnitee is, or is threatened to be,
made a party to any Proceeding, the Company shall indemnify the Indemnitee
against all judgments, penalties, fines and amounts paid in settlement and all
Expenses actually and reasonably incurred by the Indemnitee or on the
Indemnitee’s behalf in connection with any such Proceeding unless it is
established by clear and convincing evidence that (i) the act or omission
of the Indemnitee was material to the matter giving rise to the Proceeding and
(A) was committed in bad faith or (B) was the result of active and
deliberate dishonesty, (ii) the Indemnitee actually received an improper
personal benefit in money, property or services or (iii) in the case of
any criminal Proceeding, the Indemnitee had reasonable cause to believe that
his or her conduct was unlawful.


 


Section 5.               Certain Limits on Indemnification. 
Notwithstanding any other provision of this Agreement (other than Section 6
hereof), the Indemnitee shall not be entitled to:


 


(a)           indemnification 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;


 


(b)           indemnification 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 material 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;


 


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


 


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


 


(e)           indemnification or advance of Expenses hereunder
if the Proceeding was brought by the Indemnitee, unless:  (i) the Proceeding was brought to
enforce indemnification under this


 


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Agreement, and then only
to the extent in accordance with and as authorized by Section 12 of this
Agreement, or (ii) the Company’s charter or Bylaws, a resolution of the
stockholders entitled to vote generally in the election of directors or of the
Board of Directors or an agreement approved by the Board of Directors to which
the Company is a party expressly provide otherwise.


 


Section 6.               Court-Ordered Indemnification. 
Subject to the limitations in Section 5(a) and (b) hereof,
a court of appropriate jurisdiction, upon application of the Indemnitee and
such notice as the court shall require, may order indemnification of the
Indemnitee by the Company in the following circumstances:


 


(a)           if such court determines that the Indemnitee is entitled to reimbursement
under Section 2-418(d)(1) of the MGCL, the court shall order indemnification,
in which case the Indemnitee shall be entitled to recover the Expenses of
securing such reimbursement; or


 


(b)           if such court determines that the Indemnitee is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances, whether
or not the 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.


 


Section 7.               Indemnification for Expenses of an Indemnitee
Who is Wholly or Partly Successful.  Subject to
the limitations in Section 5 hereof, to the extent that the Indemnitee was
or is, by reason of his or her Corporate 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, the Indemnitee shall be
indemnified for all Expenses actually and reasonably incurred by the Indemnitee
or on the Indemnitee’s behalf 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 indemnify the Indemnitee under this Section 7 for all
Expenses actually and reasonably incurred by the Indemnitee or on the
Indemnitee’s 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 an Indemnitee.  If,
by reason of the Indemnitee’s Corporate Status, the Indemnitee is, or is
threatened to be, made a party to any Proceeding, the Company shall, without
requiring a preliminary determination of the Indemnitee’s ultimate entitlement
to indemnification hereunder, advance all reasonable Expenses incurred by or on
behalf of the Indemnitee in connection with (i) such Proceeding which is
initiated by a third party who is not a stockholder of the Company, or (ii) such
Proceeding which is initiated by a stockholder of the Company acting in his or
her capacity as such and for which a court of competent jurisdiction
specifically approves such advancement, and which relates to acts or omissions
with respect to the performance of duties or services on behalf of the Company,
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 the Indemnitee and shall include or be preceded or accompanied by a
written affirmation by the Indemnitee of the 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 the Indemnitee, in substantially the form attached hereto as
Exhibit A or in such form as may be 


 


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required under applicable
law as in effect at the time of the execution thereof, to reimburse the portion
of any Expenses advanced to the Indemnitee, together with the Applicable Legal
Rate of interest thereon, relating to claims, issues or matters in the
Proceeding as to which it shall ultimately be established, by clear and
convincing evidence, that the standard of conduct has not been met by the
Indemnitee and which have not been successfully resolved as described in Section 7
hereof.  To the extent that Expenses
advanced to the 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 the Indemnitee and shall be accepted without reference to the
Indemnitee’s financial ability to repay such advanced Expenses and without any
requirement to post security therefor.


 


Section 9.               Indemnification and Advance of Expenses as a
Witness or Other Participant.  Subject to
the limitations in Section 5, to the extent that the Indemnitee is or may
be, by reason of the Indemnitee’s Corporate Status, made a witness or otherwise
asked to participate in any Proceeding, whether instituted by the Company or
any other party, and to which the Indemnitee is not a party, the Indemnitee
shall be advanced all reasonable Expenses and indemnified against all Expenses
actually and reasonably incurred by the Indemnitee or on the Indemnitee’s
behalf in connection therewith within ten days after the receipt by the Company
of a statement or statements requesting any such advance or indemnification
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 the Indemnitee.


 


Section 10.             Procedure for Determination of Entitlement to
Indemnification.


 


(a)           To obtain indemnification under this Agreement, the Indemnitee shall
submit to the Company a written request, including therein or therewith such
documentation and information as is reasonably available to the Indemnitee and
is reasonably necessary to determine whether and to what extent the Indemnitee
is entitled to indemnification.  The
Indemnitee may submit one or more such requests from time to time and at such
time(s) as the Indemnitee deems appropriate in the Indemnitee’s sole
discretion.  The officer of the Company
receiving any such request from the Indemnitee shall, promptly upon receipt of
such a request for indemnification, advise the Board of Directors in writing
that the Indemnitee has requested indemnification.


 


(b)           Upon written request by the Indemnitee for indemnification pursuant to Section 10(a) hereof,
a determination, if required by applicable law, with respect to the Indemnitee’s
entitlement thereto shall promptly be made in the specific case:  (i) if a Change in Control shall have
occurred, by Independent Counsel, in a written opinion to the Board of
Directors, a copy of which shall be delivered to the Indemnitee, which
Independent Counsel shall be selected by the Indemnitee and approved by the
Board of Directors in accordance with Section 2-418(e)(2)(ii) of the
MGCL, which approval shall not be unreasonably withheld; or (ii) if a
Change in Control shall not have occurred, (A) by the Board of Directors
by a majority vote of a quorum consisting of Disinterested Directors or, if
such a quorum cannot be obtained, then by a majority vote of a duly authorized
committee of the Board of Directors consisting solely of one or more
Disinterested Directors, (B) if Independent Counsel has been selected by
the Board of Directors 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 Directors, a copy of which shall be delivered to the Indemnitee or (C) if
so directed by a majority of the members of the Board of Directors, by the
stockholders of the Company.  If it is so
determined that the Indemnitee is entitled to indemnification, payment to the
Indemnitee shall be made within ten days after such determination.  The Indemnitee shall cooperate with the
person, persons or entity making such determination with respect to the
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 


 


5

















 


available to the Indemnitee and reasonably necessary
to such determination in the discretion of the Board of Directors or
Independent Counsel if retained pursuant to clause (ii)(B) of this Section 10(b).  Any Expenses incurred by the 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 the Indemnitee’s
entitlement to indemnification) and the Company shall indemnify and hold the
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 the Indemnitee is entitled to indemnification
under this Agreement if the Indemnitee has submitted a request for
indemnification in accordance with Section 10(a) hereof, and the
Company shall have the burden of proof to overcome that presumption in
connection with the making of any determination contrary to that presumption.


 


(b)           The termination of any Proceeding 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 the 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 director,
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, partnership, limited liability company,
joint venture, trust, employee benefit plan or other enterprise shall not be
imputed to the Indemnitee for purposes of determining any other right to
indemnification under this Agreement.


 


Section 12.             Remedies of the Indemnitee.


 


(a)           If (i) a determination is made pursuant to Section 10(b) hereof
that the Indemnitee is not entitled to indemnification under this Agreement,
(ii) an advance of Expenses is not timely made pursuant to Sections 8 or 9
hereof, (iii) no determination of entitlement to indemnification shall
have been made pursuant to Section 10(b) hereof within 60 days after
receipt by the Company of the request for indemnification, (iv) payment of
indemnification is not made pursuant to Sections 7 or 9 hereof 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
charter or Bylaws of the Company is not made within ten days after a
determination has been made that the Indemnitee is entitled to indemnification,
the 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 the Indemnitee’s entitlement to such indemnification or
advance of Expenses.  Alternatively, the
Indemnitee, at the Indemnitee’s 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. 
The Indemnitee shall commence a proceeding seeking an adjudication or an
award in arbitration within 180 days following the date on which the 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 the Indemnitee to enforce his or her rights
under Section 7 hereof.  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 the Indemnitee’s
right to seek any such adjudication or award in arbitration.


 


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(b)           In any judicial proceeding or arbitration commenced pursuant to this
Section 12, the 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 the Indemnitee
is not entitled to indemnification or advance of Expenses, as the case may
be.  If the Indemnitee commences a
judicial proceeding or arbitration pursuant to this Section 12, the
Indemnitee shall not be required to reimburse the Company for any advances
pursuant to Section 8 hereof until a final determination is made with
respect to the 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) hereof
that the 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 the Indemnitee of a
material fact, or an omission of a material fact necessary to make the
Indemnitee’s statement not materially misleading, in connection with the
request for indemnification.


 


(d)           In the event that the Indemnitee is successful in seeking, pursuant to
this Section 12, a judicial adjudication of or an award in arbitration to
enforce the Indemnitee’s rights under, or to recover damages for breach of,
this Agreement, the 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 or her in such judicial adjudication or
arbitration.  If it shall be determined
in such judicial adjudication or arbitration that the Indemnitee is entitled to
receive part but not all of the indemnification or advance of Expenses sought,
the Expenses incurred by the Indemnitee in connection with such judicial
adjudication or arbitration shall be appropriately prorated.


 


(e)           Interest shall be paid by the Company to the 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 (i) commencing with
either the tenth day after the date on which the Company was requested to
advance Expenses in accordance with Sections 8 or 9 hereof or the 60th day after the date on which the
Company was requested to make the determination of entitlement to
indemnification under Section 10(b) hereof, as applicable, and (ii) ending
on the date such payment is made to the Indemnitee by the Company.


 


Section 13.             Defense of the Underlying Proceeding.


 


(a)           The 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 the Indemnitee from the
right, or otherwise affect in any manner any right of the 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) hereof, the Company shall have the right to defend
the Indemnitee in any Proceeding which may give rise to indemnification
hereunder; provided, however, that the Company shall notify the 


 


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Indemnitee of any such decision to defend within 15
calendar days following receipt of notice of any such Proceeding under
Section 13(a) hereof.  The
Company shall not, without the prior written consent of the Indemnitee, which
shall not be unreasonably withheld or delayed, consent to the entry of any
judgment against the Indemnitee or enter into any settlement or compromise
which (i) includes an admission of fault of the Indemnitee, (ii) does
not include, as an unconditional term thereof, the full release of the
Indemnitee from all liability in respect of such Proceeding, which release
shall be in form and substance reasonably satisfactory to the Indemnitee, or
(iii) would impose any Expense, judgment, fine, penalty or limitation on
the Indemnitee.  This Section 13(b) shall
not apply to a Proceeding brought by the Indemnitee under Section 12
hereof.


 


(c)           Notwithstanding the provisions of Section 13(b) hereof, if, in
a Proceeding to which the Indemnitee is a party by reason of the Indemnitee’s
Corporate Status, (i) the Indemnitee reasonably concludes, based upon an
opinion of counsel approved by the Company, which approval shall not be
unreasonably withheld, that the Indemnitee 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) the 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 the
Indemnitee and the Company, or (iii) if the Company fails to assume the
defense of such Proceeding in a timely manner, the Indemnitee shall be entitled
to be represented by separate legal counsel of the Indemnitee’s choice, subject
to the prior approval of the Company, which approval 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 the Indemnitee the benefits intended to
be provided to the Indemnitee hereunder, the Indemnitee shall have the right to
retain counsel of the Indemnitee’s choice, subject to the prior approval of the
Company, which approval shall not be unreasonably withheld, at the expense of
the Company (subject to Section 12(d) hereof), to represent the
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 the
Indemnitee may at any time be entitled under applicable law, the charter or
Bylaws of the Company, any agreement or a resolution of the stockholders
entitled to vote generally in the election of directors or of the Board of Directors,
or otherwise.  Unless consented to in
writing by the Indemnitee, no amendment, alteration or repeal of this Agreement
or of any provision hereof shall limit or restrict any right of the Indemnitee
under this Agreement in respect of any action taken or omitted by such
Indemnitee in his or her Corporate 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 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
the 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.


 


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Section 15.             Insurance.  The
Company will use its reasonable best efforts to acquire directors and officers
liability insurance, on appropriate terms and conditions, covering the Indemnitee
or any claim made against the Indemnitee by reason of his or her Corporate
Status and covering the Company for any indemnification or advance of Expenses
made by the Company to the Indemnitee for any claims made against the
Indemnitee by reason of his or her Corporate Status.  Without in any way limiting any other
obligation under this Agreement, the Company shall indemnify the Indemnitee for
any payment by the 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 the 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 the 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 the Indemnitee is a
party or a participant (as a witness or otherwise), the Company has director
and officer 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, payable or reimbursable as Expenses hereunder if and
to the extent that the Indemnitee has otherwise actually received such payment
under any insurance policy, contract, agreement or otherwise.


 


Section 17.             Reports to Stockholders.  To
the extent required by the MGCL, the Company shall report in writing to its
stockholders the payment of any amounts for indemnification of, or advance of
Expenses to, the Indemnitee under this Agreement arising out of a Proceeding by
or in the right of the Company with the notice of the meeting of stockholders
of the Company next following the date of the payment of any such
indemnification or advance of Expenses or prior to such meeting.


 


Section 18.             Duration of Agreement; Binding Effect.


 


(a)           This Agreement shall continue until and terminate on the later of (i) the
date that the Indemnitee shall have ceased to serve as a director, 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 the Indemnitee is no longer subject
to any actual or possible Proceeding (including any rights of appeal thereto
and any Proceeding commenced by the Indemnitee pursuant to Section 12
hereof).


 


(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
the Indemnitee and the Indemnitee’s spouse, assigns, heirs, devisees, executors
and administrators and other legal representatives.


 


9

















 


(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 the 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 the Indemnitee agree 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 the Indemnitee
irreparable harm.  Accordingly, the
parties hereto agree that the 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, the Indemnitee shall not be precluded from seeking
or obtaining any other relief to which the Indemnitee may be entitled.  The 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 the Indemnitee by a
court, and the Company hereby waives any such requirement of such a bond or
undertaking.


 


Section 19.             Severability.  If any
provision or provisions of this Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever: 
(i) 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;
(ii) 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 (iii) 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.


 


Section 20.             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 21.             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 22.             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 23.             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, on the day of such delivery, 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:


 


10

















 


(a)           If to the Indemnitee, to the address set forth on the signature page hereto.


 


(b)           If to the Company, to:


 


Clarion
Property Trust Inc.


230
Park Avenue


New
York, New York 10169


Attn:  Chief Financial Officer


 


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


 


Section 24.             Governing Law.  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.


 


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


 


	
   

  	
  CLARION
  PROPERTY TRUST INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Co-President

  
	
   

  	
   

  
	
   

  	
  INDEMNITEE

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  



 


11

















 


EXHIBIT A


 


AFFIRMATION
AND UNDERTAKING TO REPAY EXPENSES ADVANCED


 


To:  The Board of Directors of Clarion Property
Trust Inc.


 


Re:  Affirmation and Undertaking


 


Ladies
and Gentlemen:


 


This
Affirmation and Undertaking is being provided pursuant to that certain
Indemnification Agreement, dated the 22nd day of
September, 2010, by and between Clarion Property Trust Inc. (the “Company”),
and the undersigned Indemnitee (the “Indemnification Agreement”),
pursuant to which I am entitled to the advance of Expenses in connection with [Description of Proceeding] (the “Proceeding”).


 


Terms
used herein and not otherwise defined shall have the meanings specified in the
Indemnification Agreement.


 


I
am subject to the Proceeding by reason of my Corporate Status or by reason of
alleged actions or omissions by me in such capacity.  I hereby affirm my good faith belief that at
all times, insofar as I was involved as a director or officer  of the Company, in any of the facts or events giving rise
to the Proceeding, I (i) did not act with bad faith or active or
deliberate dishonesty, (ii) did not receive any improper personal benefit
in money, property or services and (iii) 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 (i) 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, (ii) I actually received an improper personal
benefit in money, property or services or (iii) 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, together with the Applicable Legal Rate of interest thereon, 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        .


 


 


	
   

  	
   

  
	
   

  	
  Name: