**EXHIBIT 10.6**
**ARCHSTONE-SMITH TRUST**
**INDEMNIFICATION AGREEMENT**
     AGREEMENT, made and entered into as of                    , 200  , betweenArchstone-Smith Trust, a Maryland real estate investment trust (the “Trust”),and                     (“Indemnitee”).
WHEREAS, the Trust is a Maryland real estate investment trust; and
     WHEREAS, at the request of the Trust, Indemnitee currently serves as atrustee or officer of the Trust or one of its subsidiaries and may, therefore,be subjected to claims, suits or proceedings arising as a result of theIndemnitee’s service; and
     WHEREAS, as an inducement to Indemnitee to continue to serve as suchtrustee or officer, the Trust has agreed to indemnify Indemnitee againstexpenses and costs incurred by Indemnitee in connection with any such claims,suits or proceedings, to the fullest extent that is lawful; and
     WHEREAS, the parties by this Agreement desire to set forth their agreementregarding indemnification and hereby superceding any previous indemnificationagreement between the Indemnitee and the Trust;
     NOW, THEREFORE, the parties agree as follows:
     1. Acts or Omissions Covered by This Agreement. This Agreement shallcover any act or omission by an Indemnitee after the date of the Indemnitee’scommencement of service as an officer or trustee, regardless of whether saidact or omission occurred prior to the date of this Agreement, which (i) occursor is alleged to have occurred by reason of the Indemnitee’s being or havingbeen a trustee or officer, (ii) occurs or is alleged to have occurred, duringor after the time when the Indemnitee served as a trustee or officer and (iii)gives rise to, or is the direct or indirect subject of a claim in anythreatened, pending or completed action, suit or proceeding at any time ortimes whether during or after the Indemnitee’s service as trustee or officer.
     2. Indemnity.
     (a) The Trust hereby agrees to indemnify, and keep indemnified inaccordance with, and to the fullest lawful extent permitted by Maryland Law andby the Trust’s Declaration of Trust and by-laws on the date of executionhereof, and regardless of any subsequently enacted by-law or amendment to theDeclaration of Trust to the contrary, Indemnitee, from and against any and allexpenses (including attorney’s fees), judgments, fines, taxes, penalties andamounts paid in settlement actually and reasonably incurred by Indemnitee inconnection with any threatened, pending or completed action, suit orproceeding, whether civil, criminal, administrative or investigative, by reasonof the fact that he or she is or was a trustee or officer of the Trust or is orwas serving at the request of the Trust as a director, trustee, officer,employee or agent of another corporation, partnership, joint venture, trust orother enterprise and whether or not such action is by or in the right of theTrust or that other corporation, partnership, joint venture, trust or otherenterprise with respect to which the Indemnitee serves or has served. For
 

 

purposes of this Agreement, references to “other enterprises” shallinclude, without limitation, employee benefit plans; references to “fines”shall include any excise taxes assessed on a person with respect to an employeebenefit plan; and references to “serving at the request of the Trust” shallinclude any service as a trustee, director, officer, employee or agent of anyother partnership, trust or corporation which imposes duties on, or involvesservices by, the Indemnitee which are requested in writing by the Board ofTrustees, or which involve services by, such trustee, director, officer,employee, or agent with respect to an employee benefit plan, its participants,or beneficiaries.
     (b) Despite anything to the contrary in subsection (a), the Trust agreesto indemnify Indemnitee in a suit or proceeding initiated by the Indemniteeonly if the Indemnitee acted with the authorization of the Trust in initiatingthat suit or proceeding. However, an arbitration proceeding brought underSection 11 shall not be subject to this subsection (b).
     3. Notice by Indemnitee; Determination of Entitlement to Indemnification.
     (a) An indemnification under this Agreement shall be made uponIndemnitee’s written request to the Board of Trustees, setting forth thegrounds and lawfulness of such indemnification and such documentationreasonably necessary to determine whether and to what extent the Indemnitee isentitled to indemnification. Indemnitee shall notify the Trust in writing ofany matter with respect to which Indemnitee intends to seek indemnificationhereunder as soon as reasonably practicable following the receipt by Indemniteeof written threat thereof, provided, however, that failure to so notify theTrust shall not constitute a waiver by Indemnitee of Indemnitee’s rightshereunder.
     (b) Upon such written request pursuant to Section 3(a), a determinationwith respect to the Indemnitee’s entitlement thereto shall be made in thespecific case: (i) if a Change in Control (as defined in Section 3(e)) shallhave occurred, by Independent Counsel (as defined in Section 3(f)) in a writtenopinion to the Board of Trustees, a copy of which shall be delivered to theIndemnitee (unless the Indemnitee shall request that such determination be madeby the Board of Trustees, in which case such determination shall be made by theperson or persons or in the manner provided in clauses (ii) or (iii) of thisSection 3(b)); (ii) if a Change in Control shall not have occurred, (A) by theBoard of Trustees by a majority vote of a quorum consisting of DisinterestedTrustees (as defined in Section 3(g)), or (B) if a quorum of the Board ofTrustees consisting of Disinterested Trustees is not obtainable, or, even ifobtainable, if such quorum of Disinterested Trustees so directs, by IndependentCounsel in a written opinion to the Board of Trustees, a copy of which shall bedelivered to the Indemnitee; or (iii) as provided in Section 4(b) of thisAgreement.
     (c) The Indemnitee shall cooperate with the person or entity making suchdetermination with respect to the Indemnitee’s entitlement to indemnification,including providing upon reasonable advance request any documentation orinformation which is not privileged or otherwise protected from disclosure andwhich is reasonably available to the Indemnitee and reasonably necessary tosuch determination. Any costs or expenses (including attorneys’ fees anddisbursements) incurred by the Indemnitee in so cooperating shall be borne bythe Trust (irrespective of the determination as to the Indemnitee’s entitlementto
2

 

indemnification) and the Trust hereby indemnifies and agrees to hold theIndemnitee’s harmless therefrom.
     (d) In the event the determination of entitlement to indemnification is tobe made by Independent Counsel pursuant to Section 3(b) hereof, the IndependentCounsel shall be selected as provided in this Section 3(d). If a Change inControl shall not have occurred, the Independent Counsel shall be selected bythe Board of Trustees, and the Trust shall give written notice to theIndemnitee advising such Indemnitee of the identity of the Independent Counselso selected. If a Change in Control shall have occurred, the IndependentCounsel shall be selected by the Indemnitee (unless the Indemnitee shallrequest that such selection be made by the Board of Trustees, in which eventthe preceding sentence shall apply), and the Indemnitee shall give writtennotice to the Trust advising it of the identity of the Independent Counsel soselected. In either event, the Indemnitee, or the Trust, as the case may be,may, within seven (7) days after such written notice of selection shall havebeen given, deliver to the Trust or to the Indemnitee, as the case may be, awritten objection to such selection. Such objection may be asserted only onthe grounds that the Independent Counsel so selected does not meet therequirements of “Independent Counsel” (as defined in Section 3(f)). If suchwritten objection is made, the Independent Counsel so selected may not serve asIndependent Counsel until the Indemnitee and the Trust reach agreement or untilthe matter is submitted to arbitration in accordance with Section 11 hereof andit is determined that such objection is without merit. If, within twenty (20)days after submission by the Indemnitee of a written request forindemnification pursuant to Section 3(a) hereof, no Independent Counsel shallhave been selected or, if selected, shall have been objected to, either theTrust or the Indemnitee may submit the dispute to arbitration in accordancewith Section 11 for resolution of any objection which shall have been made bythe Trust or the Indemnitee to the other’s selection of Independent Counseland/or for the appointment as Independent Counsel of a person selected by thearbitrators or by such other person as the arbitrators shall designate, and theperson with respect to whom an objection is so resolved or the person soappointed shall act as Independent Counsel under Section 3(b) hereof. TheTrust shall pay all reasonable fees and expenses of Independent Counselincurred in connection with acting pursuant to Section 3(b) hereof, and allreasonable fees and expenses incident to the selection of such IndependentCounsel pursuant to this Section 3(d).
     (e) “Change in Control” means the occurrence of any of the followingevents:
 (i) the shareholders of the Trust approve a definitive agreementto merge the Trust or the Archstone-Smith Operating Trust (the“Operating Trust”) into or consolidate the Trust or the OperatingTrust with another entity, sell or otherwise dispose of all orsubstantially all of the assets of the Operating Trust, or adopt aplan of liquidation; provided that if the merger, consolidation,sale of assets or liquidation is not consummated for any reason,then no Change in Control shall be deemed to have occurred; andprovided further, that if the merger, consolidation, sale of assetsor liquidation is consummated, then a Change in Control shall bedeemed to have occurred as of the date of the shareholder approvalof such transaction. A Change in Control shall not be deemed tohave occurred, however, by reason of a transaction (or asubstantially concurrent or otherwise related series oftransactions) (a “Transaction”) upon the completion of which 75% ormore of the beneficial ownership of the voting power of the Trust,the surviving entity or
3

 

   entity directly or indirectly controlling the Trust or thesurviving entity, as the case may be, is held by the same persons(although not necessarily in the same proportion) as held the“beneficial ownership” (as defined in Rule 13(d)(3) under theExchange Act) of the voting power of the Trust immediately prior tothe Transaction (except that upon the completion thereof, employeesor employee benefit plans of Trust may be a new holder of suchbeneficial ownership); provided, however, that in the event thatthe shareholders of Trust immediately prior to the consummation ofa Transaction beneficially own (not giving effect to any sharesbeneficially owned by such persons in any party to the Transactionother than Trust) less than 75% of the voting power of the Trust,the surviving entity or entity directly or indirectly controllingthe Trust or the surviving corporation, as the case may be,immediately after the consummation of the Transaction, then aChange in Control shall be deemed to have occurred. A transactionwith an “Affiliate” of the Trust (as defined in the SecuritiesExchange Act of 1934, as amended (the “Exchange Act”)) shall not betreated as a Change in Control; or
 (ii) the beneficial ownership of securities representing 25% ormore of the combined voting power of the Trust is acquired, otherthan from the Trust, by any “person” as defined in Sections 13(d)and 14(d) of the Exchange Act (other than by any trustee or otherfiduciary holding securities under an employee benefit plan or othersimilar stock plan of the Trust); or
 (iii) at any time during any period of two consecutive years,individuals who at the beginning of such period were members of theBoard of Trustees of the Trust cease for any reason to constitute atleast a majority thereof (unless the election, or the nomination forelection by the Trust’s shareholders, of each new Trustee wasapproved by a vote of at least two-thirds of the trustees still inoffice at the time of such election or nomination who were trusteesat the beginning of such period).
     (f) “Independent Counsel” means a law firm, or a member of a law firm,that is experienced in matters of corporation law and neither presently is, orin the past three (3) years has been, retained to represent (i) the Trust orthe Indemnitee in any matter material to either such party, or (ii) any otherparty to the proceeding giving rise to a claim for indemnification hereunder.
     (g) “Disinterested Trustee” means a trustee of the Trust who is not andwas not a party to the proceeding in respect of which indemnification is soughtby the Indemnitee.
     4. Presumptions.
     (a) Indemnitee shall be presumed to be entitled to indemnification for anyact or omission covered in Section 1 or 2 of this Agreement. The burden ofproof of establishing that Indemnitee is not entitled to indemnificationbecause of the failure to fulfill some requirement of Maryland law, the Trust’sDeclaration of Trust or by-laws as in effect on the date of execution hereof,or this Agreement shall be on the Trust.
4

 

     (b) If the person or entity making the determination whether theIndemnitee is entitled to indemnification shall not have made a determinationwithin sixty (60) days after receipt by the Trust of the request therefor, therequisite determination of entitlement to indemnification shall be deemed tohave been made and the Indemnitee shall be entitled to such indemnification,absent: (i) a misstatement by the Indemnitee of a material fact, or anomission of a material fact necessary to make the Indemnitee’s statement notmaterially misleading, in connection with the request for indemnification, or(ii) a prohibition of such indemnification under applicable law. Such sixty(60)-day period may be extended for a reasonable time, not to exceed anadditional thirty (30) days, if the person or entity making said determinationin good faith requires additional time for the obtaining or evaluatingdocumentation and/or information relating thereto. The foregoing provisions ofthis Section 4(b) shall not apply if the determination of entitlement toindemnification is to be made by Independent Counsel pursuant to Section 3(b)of this Agreement.
     (c) The termination of any proceeding or of any claim, issue or mattertherein by judgment, order, settlement or conviction, or upon a plea of nolocontedere or its equivalent, shall not (except as otherwise expressly providedin this Agreement) of itself adversely affect the right of Indemnitee toindemnification or create a presumption that Indemnitee did not act in goodfaith and in a manner which such Indemnitee reasonably believed to be in or notopposed to the best interests of the Trust and its shareholders, or, withrespect to any criminal action or proceeding, that Indemnitee had reasonablecause to believe that such Indemnitee’s conduct was unlawful.
     (d) Indemnitee’s conduct with respect to an employee benefit plan for apurpose that Indemnitee reasonably believed to be in the interests of theparticipants in and beneficiaries of the plan shall be deemed to be conductthat Indemnitee reasonably believed to be in or not opposed to the bestinterests of the Trust and its shareholders.
     (e) For purposes of any determination hereunder, Indemnitee shall bedeemed to have acted in good faith and in a manner that Indemnitee reasonablybelieved to be in or not opposed to the best interests of the Trust and itsshareholders, or, with respect to any criminal action or proceeding, to havehad no reasonable cause to believe such conduct was unlawful, if such actionwas based on (i) the records or books of account of the Trust or anotherperson, including financial statements, (ii) information supplied to theIndemnitee by the officers of the Trust or another person in the course oftheir duties, (iii) the advice of legal counsel for the Trust or anotherperson, or (iv) information or records given or reports made to the Trust oranother person by an independent certified public accountant or by an appraiseror other expert selected with reasonable care by the Trust or another person.
     5. Advancement of Expenses. In the event of any action, suit orproceeding against Indemnitee which may give rise to a right of indemnificationfrom the Trust pursuant to this Agreement, following written request to theTrust by the Indemnitee, the Trust shall promptly advance to Indemnitee amountsto cover expenses incurred by Indemnitee in defending the action, suit orproceeding whether prior to or after final disposition of such action, suit orproceeding upon receipt of (i) an undertaking by or on behalf of the Indemniteeto repay the amount advanced in the event that it shall be ultimatelydetermined in accordance with Section 3 of this Agreement that such Indemniteeis not entitled to indemnification by the Trust, and (ii)
5

 

satisfactory evidence as to the amount of such expenses. Indemnitee’swritten certification together with a copy of the statement paid or to be paidby Indemnitee shall constitute satisfactory evidence unless determined to thecontrary in an arbitration proceeding conducted pursuant to Section 11 of thisAgreement. Such advances are deemed to be an obligation of the Trust to theIndemnitee hereunder, and shall in no event be deemed a personal loan.
     6. Witness Expenses. Notwithstanding any other provision of thisAgreement, to the extent that the Indemnitee is, by reason of such Indemnitee’sstatus as a trustee or officer of the Trust or by reason of such Indemniteeserving in such capacity at the request of the Trust for any other enterprise,a witness for any reason in any proceeding to which such Indemnitee is not aparty, such Indemnitee shall be indemnified against all expenses actually andreasonably incurred by or on behalf of such Indemnitee in connection therewith.
     7. Partial Indemnification. If Indemnitee is entitled under any provisionof this Agreement to indemnification by the Trust for some or a portion of theexpenses of Indemnitee in connection with the investigation, defense,settlement or appeal of any proceeding specified in Section 2, but not,however, for the total amount thereof, the Trust shall nevertheless indemnifyIndemnitee for the portion thereof to which Indemnitee is entitled. The partyor parties making the determination in accordance with Section 3 hereof shalldetermine the portion (if less than all) of such expenses for which Indemniteeis entitled to indemnification under this Agreement.
     8. Non-Exclusivity of Right of Indemnification. The indemnificationrights granted to Indemnitee under this Agreement shall not be deemed exclusiveof, or in limitation of, any rights to which Indemnitee may be entitled underMaryland law, the Trust’s Declaration of Trust or by-laws, any other agreement,vote of stockholders or trustees or otherwise.
     9. Selection of Counsel. In the event the Company shall be obligatedunder Section 2 hereof to pay the expenses of any proceeding againstIndemnitee, the Trust shall be entitled to assume the defense of suchproceeding, with counsel approved by Indemnitee (who shall not unreasonablywithhold such approval), upon the delivery to Indemnitee of written notice ofits election so to do. After delivery of such notice, approval of such counselby Indemnitee and the retention of such counsel by the Trust, the Trust willnot be liable to Indemnitee under this Agreement for any fees of counselsubsequently incurred by Indemnitee with respect to the same proceeding,provided that, (i) Indemnitee shall have the right to employ Indemnitee’scounsel in any such proceeding at Indemnitee’s expense, and (ii) the reasonablefees and expenses of Indemnitee’s counsel shall be at the expense of the Trustif (A) the employment of counsel by Indemnitee has been previously authorizedin writing by the Trust, (B) Indemnitee shall have reasonably concluded thatthere may be a conflict of interest between the Trust and Indemnitee in theconduct of any such defense and shall have notified the Trust in writingthereof, (C) Indemnitee shall have reasonably concluded that there may be aconflict of interest between Indemnitee and other indemnitees of the Trustbeing represented by counsel retained by the Trust in the same proceeding andshall have notified the Trust in writing thereof, or (D) the Trust shall not,in fact, have employed counsel to assume the defense of such proceeding withina reasonable time frame.
     10. Termination of Agreement and Survival of Right of Indemnification.
6

 

     (a) Subject to subparagraph (b) of this section, this Agreement shallterminate when the Indemnitee’s term of office as an officer or trustee, asapplicable, ends.
     (b) The rights granted to Indemnitee hereunder shall continue aftertermination as provided in Section 1 and shall inure to the benefit ofIndemnitee, and such Indemnitee’s personal representative, heirs, executors,administrators and beneficiaries, and this Agreement shall be binding upon theTrust, its successors and assigns.
     11. Arbitration of All Disputes Concerning Entitlement. Any controversyor claim arising out of or relating to the Indemnitee’s entitlement toindemnification under this Agreement shall be settled by arbitration in theState of Colorado.
     (a) “Arbitrator” means any natural person who is a resident of the UnitedStates and who is not an employee of the Trust or its affiliates or of anyaffiliate of the Indemnitee.
     (b) Appointment of Arbitrators. In the selection and appointment ofArbitrators, the parties shall act in good faith to name Arbitrators withexperience and expertise in the subject matter involved. The demand forarbitration shall be in writing, shall be served on the other party to thisAgreement in the manner prescribed for the giving of notices and shall setforth a short statement of the factual basis for claiming that indemnificationis or is not merited, and identify the name and address of the Arbitratorchosen by the party making such demand. Within 45 days after receipt of thedemand, the other party shall appoint an Arbitrator and give written notice ofsuch appointment to the party that has demanded arbitration and shall specifythe name and address of such Arbitrator. If such party shall fail to appointan Arbitrator and notify the other party within such 45-day period, the partymaking the demand shall have the right to apply to the Chief Judge of theUnited States District Court for the District of Colorado for an appointment ofan Arbitrator. The two Arbitrators appointed or selected as set forth in thisSection shall appoint a third Arbitrator as soon as practicable or, if they donot do so within 45 days after notice is given to the parties of theappointment of the second Arbitrator, either party may apply to the Chief Judgeof the United States District Court for the District of Colorado for anappointment of a third Arbitrator.
     (c) Procedure. After the appointment of the third Arbitrator, theArbitrators shall hold a conference with the parties as soon as practicable todefine and narrow the issues and claims to be arbitrated, to define and limitdiscovery and to identify the form of evidence to be presented. Anyarbitration shall be conducted by the Arbitrators under the guidance of theFederal Rules of Civil Procedure and the Federal Rules of Evidence, but theArbitrators shall not be required to comply strictly with such rules inconducting any such arbitration. The Arbitrators shall conduct suchevidentiary or other hearings as they deem necessary or appropriate andthereafter shall make their determination as soon as practicable. A full andcomplete record and transcript of the arbitration proceeding shall bemaintained. The judgment of the Arbitrators shall be accompanied by detailedwritten findings of fact and conclusions of law of the Arbitrators. Allarbitration proceedings shall take place in the metropolitan Denver, Coloradoarea. Either party to the arbitration may seek to have the award rendered bythe Arbitrators entered in the United States District Court for the District ofColorado.
7

 

     (d) Discovery. In any arbitration proceeding, each party shall havereasonable access, except to the extent such access is prohibited by the law ofColorado, to the relevant books and records of the other party and the otherparty’s affiliates prior to the submission of evidentiary materials by theparties, and the power to call any employee, agent or officer of the otherparty for testimony at any evidentiary hearing held by the Arbitrators, unlessthe Arbitrators for good reason order otherwise. Any discovery by the partiesto the arbitration shall be performed within a discovery period to be definedand limited by the Arbitrators, which shall not exceed 90 days.
     (e) Award. The Arbitrators shall render their decision and award upon theconcurrence of at least two Arbitrators. Such decision and award shall be inwriting and counterpart copies thereof shall be delivered to each of theparties. In rendering such decision and award, the Arbitrators shall not addto, subtract from or otherwise modify the provisions of this Agreement or anyagreement entered into pursuant to this Agreement.
     (f) Limitation of Other Proceedings. Neither the Company nor theIndemnitee shall file any suit or otherwise commence any legal action orproceeding in a court asserting a claim that may be submitted to arbitrationpursuant to this Agreement. Upon the entry of an order by a court dismissingor staying any such action or proceeding pending arbitration pursuant to thisAgreement, the party that filed such action or proceeding shall promptly pay tothe other party the reasonable attorneys’ fees and reasonable costs andexpenses incurred in that court proceeding by such other party prior to theentry of such order.
     (g) Indemnitee’s Expenses. If it is necessary or desirable for theIndemnitee to retain legal counsel or incur other costs and expenses(including, without limitation, travel costs and expenses) in connection withenforcement of Indemnitee’s rights under this Agreement, the Trust shall payIndemnitee’s reasonable attorneys’ fees and reasonable costs and expenses inconnection with enforcement of Indemnitee’s rights (including the enforcementof any arbitration award in court), regardless of the final outcome, unless theArbitrators determine that under the circumstances recovery by the Indemniteeof all or a part of any such fees and costs and expenses would be unjust.
     12. Establishment of Trust. In the event of a Change in Control, theTrust shall, upon written request by the Indemnitee, create a trust for thebenefit of the Indemnitee (the “Indemnitee Trust”) and from time-to-time uponwritten request by the Indemnitee, shall fund such Indemnitee Trust in anamount sufficient to satisfy any and all expenses, judgments, penalties, finesand settlement amounts actually and reasonably incurred by or on behalf of suchIndemnitee or claimed, reasonably anticipated or proposed to be paid inaccordance with the terms of this Agreement. The amount to be deposited in theIndemnitee Trust pursuant to the foregoing funding obligation shall bedetermined by Independent Counsel. The terms of the Indemnitee Trust shallprovide that upon a Change in Control: (i) the Indemnitee Trust shall not berevoked or the principal thereof invaded, without the prior written consent ofthe Indemnitee, (ii) the trustee of the Indemnitee Trust (the “Indemnitee TrustTrustee”) shall advance, within two business days of a request by theIndemnitee and in accordance with Section 5 of this Agreement, any and allexpenses to the Indemnitee, (iii) the Indemnitee Trust shall continue to befunded by the Trust in accordance with the funding obligation set forth above,(iv) the Indemnitee Trust Trustee shall promptly pay to the Indemnitee allamounts for which the Indemnitee shall be entitled to indemnification pursuantto this Agreement or otherwise, and (v)
8

 

all unexpended funds in such Indemnitee Trust shall revert to the Trustupon a final determination by Independent Counsel that the Indemnitee has beenfully indemnified under the terms of this Agreement. The Indemnitee TrustTrustee shall be chosen by the Indemnitee and agreed to by the Trust, whichagreement shall not be unreasonably withheld or delayed. Nothing in thisSection shall relieve the Trust of any of its obligations under this Agreement.
     13. Governing Law.
     (a) Except as provided for in subparagraph (b) of this section, thisAgreement shall be governed by the laws of the State of Maryland.
     (b) Any arbitration under this Agreement shall be governed by the laws ofthe State of Colorado.
     14. Subrogation and Insurance Recovery. In the event of any payment underthis Agreement, the Trust shall be subrogated to the extent of such payment toall of the rights of recovery of the Indemnitee, who shall execute all papersrequired and take all actions necessary to secure such rights, includingexecution of such documents as are necessary to enable the Trust to bring suitto enforce such rights. The Trust shall not be liable under this Agreement tomake any payment of amounts otherwise indemnifiable hereunder if and to theextent that the Indemnitee has otherwise actually received such payment underany insurance policy paid for by the Trust, or pursuant to any other contractor agreement.
     15. Trust bound by Agreement. The Trust shall be precluded from assertingin any arbitration commenced in accordance with this Agreement or any otherproceeding, judicial or otherwise, that the procedures and presumptions of thisAgreement are not valid, binding and enforceable and shall stipulate in anysuch court that the Trust is bound by all the provisions of this Agreement.
     16. Headings. The headings of the Sections of this Agreement are insertedfor convenience only and shall not be deemed to constitute part of thisAgreement or to affect the construction thereof.
     17. Modification and Waiver. No supplement, modification, or amendment ofthis Agreement shall be binding unless executed in writing by both of theparties hereto. No waiver of any of the provisions of this Agreement shall bedeemed or shall constitute a waiver of any other provisions hereof (whether ornot similar) nor shall such waiver constitute a continuing waiver.
     18. Notices. All notices, requests, demands, and other communicationshereunder 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 orother communication shall have been directed, (ii) sent by overnight courier,or (iii) mailed by certified or registered mail with postage prepaid, on thethird business day after the date on which it is so mailed, if so delivered ormailed, as the case may be, to the following address:
     If to the Indemnitee, to the address set forth in the records of theTrust.
9

 
           If to the Trust to: 9200 E. Panorama Circle   Suite 400   Englewood, Colorado 80112   Attention: General Counsel
or to such other address as may have been furnished to the Indemnitee by theTrust or to the Trust by the Indemnitee, as the case may be.
     19. Severability. If any provision of this Agreement is determined to beinvalid or unenforceable, the invalidity or unenforceability shall not affectthe validity or enforceability of any other provision of this Agreement, andthis Agreement shall be interpreted as though the invalid or unenforceableprovision was not a part of this Agreement.
     20. Identical Counterparts. This Agreement may be executed in one or morecounterparts, each of which shall for all purposes be deemed to be an originalbut all of which together shall constitute one and the same Agreement. Onlyone such counterpart signed by the party against whom enforcement is soughtneeds to be produced to evidence the existence of this Agreement.
10

 

     IN WITNESS WHEREOF, the parties have executed this Agreement as of the dayand year first above stated.         ARCHSTONE-SMITH TRUST          By             Caroline Brower