**Exhibit 10.46**

 

**INDEMNIFICATION AGREEMENT**

 

THIS INDEMNIFICATION AGREEMENT is made and entered into this 12th day of October, 2004 (“Agreement”), by andbetween Innkeepers USA Trust, a Maryland real estate investment trust (the “Company”), and Rolf E. Ruhfus (“Indemnitee”). 

 

WHEREAS, at the request of the Company, Indemnitee currently serves as a trustee of the Company and may, therefore, be subjected to claims, suits orproceedings arising as a result of his service; and 

 

WHEREAS,as an inducement to Indemnitee to continue to serve as such trustee, 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 extentpermitted by law; and 

 

WHEREAS, the parties by this Agreementdesire 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) “Change in Control” means a change in control of the Companyoccurring 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 SecuritiesExchange Act of 1934, as amended (the “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 theEffective Date (i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Act) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Act), directly or indirectly, of securities of the Companyrepresenting 15% or more of the combined voting power in the election of trustees of the Company’s then outstanding securities without the prior approval of at least two-thirds of the members of the Board of Trustees in office immediately priorto such person attaining such percentage interest; (ii) there occurs a proxy contest, or 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 themembers of the Board of Trustees then in office, as a consequence of which members of the Board of Trustees in office immediately prior to such transaction or event constitute less than a majority of the Board of Trustees thereafter; or (iii) duringany period of two consecutive years, other than as a result of an event described in clause (a)(ii) of this Section 1, individuals who at the beginning of such period constituted the Board of Trustees (including for this purpose any new trusteewhose election or nomination for election by the Company’s shareholders was approved by a vote of at least two-thirds of the trustees then still in office who were trustees at the beginning of such period) cease for any reason to constitute atleast a majority of the Board of Trustees. 

(b) “Corporate Status” means the status of a person who is or was a director, trustee, officer,employee or agent of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise for which such person is or was serving at the request of the Company. 

 

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

 

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

 

(e) “Expenses” shall include all reasonable and out-of-pocketattorneys’ fees, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements or expensesof the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, or being or preparing to be a witness in a Proceeding. 

 

(f) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters ofcorporation law as applicable to Maryland real estate investment trusts 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, or (ii) any other party toor witness in the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct thenprevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. If a Change of Control has not occurred, Independent Counsel shall be selected bythe Board of Trustees, with the approval of Indemnitee, which approval will not be unreasonably withheld. If a Change of Control has occurred, Independent Counsel shall be selected by Indemnitee, with the approval of the Board of Trustees, whichapproval will not be unreasonably withheld. 

 

(g)“Proceeding” includes any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, administrative hearing or any other proceeding, whether civil, criminal, administrative orinvestigative (including on appeal), except one pending or completed on or before the Effective Date, unless otherwise specifically agreed in writing by the Company and Indemnitee. 

 

Section 2. Services by Indemnitee. Indemnitee will serve as a trustee of the Company. However, this Agreement shallnot impose any obligation on Indemnitee or the Company to continue Indemnitee’s service to the Company beyond any period otherwise required by law or by other agreements or commitments of the parties, if any. 

 

Section 3. Indemnification - General. The Company shall indemnify, andadvance Expenses to, Indemnitee (a) as provided in this Agreement and (b) otherwise to the maximum extent permitted by Maryland law in effect on the date hereof and as amended from time to time; provided, however, that no change in Maryland lawshall have the effect of reducing the benefits available to Indemnitee hereunder based on Maryland law as in effect on the date hereof. The rights of Indemnitee provided in this Section 3 shall include, without limitation, the rights set 

 

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forth in the other sections of this Agreement, including any additional indemnification permitted by Section 2-418(g) ofthe Maryland General Corporation Law (“MGCL”), as applicable to a Maryland real estate investment trust by virtue of Section 8-301(15) of the Maryland REIT Law. 

 

Section 4. Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to therights of indemnification provided in this Section 4 if, by reason of his Corporate Status, he is, or is threatened to be, made a party to or a witness in any threatened, pending, or completed Proceeding, other than a Proceeding by or in the rightof the Company. Pursuant to this Section 4, 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 aProceeding by reason of his Corporate Status unless it is established that (i) the act or omission of 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 anddeliberate dishonesty, (ii) Indemnitee actually received an improper personal benefit in money, property or services, or (iii) in the case of any criminal Proceeding, Indemnitee had reasonable cause to believe that his conduct was unlawful.

 

Section 5. Proceedings by or in the Right of theCompany. Indemnitee shall be entitled to the rights of indemnification provided in this Section 5 if, by reason of his Corporate Status, he is, or is threatened to be, made a party to or a witness in any threatened, pending or completedProceeding brought by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 5, Indemnitee shall be indemnified against all amounts paid in settlement and all Expenses actually and reasonably incurred by him oron his behalf in connection with such Proceeding unless it is established that (i) the act or omission of Indemnitee was material to the matter giving rise to such a Proceeding and (a) was committed in bad faith or (b) was the result of active anddeliberate dishonesty or (ii) Indemnitee actually received an improper personal benefit in money, property or services. 

 

Section 6. Court-Ordered Indemnification. Notwithstanding any other provision of this Agreement, a court of appropriate jurisdiction, uponapplication 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 caseIndemnitee 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 Section2-418(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 toany 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 actually and reasonably incurred by him or on his behalf inconnection with a Proceeding. 

 

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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 is, by reason of his Corporate Status, made a party to and is successful, on the merits or otherwise, in the defense of anyProceeding, he 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 oneor 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 successfullyresolved claim, issue or matter, allocated on a reasonable and proportionate basis. For purposes of this Section 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. The Company shall advance all reasonable Expenses actually and reasonably incurred by or on behalf of Indemnitee in connection with any Proceeding (other than a Proceedingbrought to enforce indemnification under this Agreement, 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 ofTrustees) to which Indemnitee is, or is threatened to be, made a party or a witness, within ten days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether priorto 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’sgood 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 asExhibit 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 towhich it shall ultimately be established that the standard of conduct has not been met and which have not been successfully resolved as described in Section 7. 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 acceptedwithout reference to Indemnitee’s financial ability to repay such advanced Expenses and without any requirement to post security therefor. The Company shall advance all reasonable Expenses actually and reasonably incurred by or on behalf ofIndemnitee’s spouse in connection with any Proceeding (other than a Proceeding brought to enforce indemnification under this Agreement, applicable law, the Declaration of Trust or Bylaws of the Company, any agreement or a resolution of theshareholders entitled to vote generally in the election of trustees or of the Board of Trustees) to which Indemnitee’s spouse, as a result of Indemnitee’s Corporate Status, is, or is threatened to be, made a party or a witness, within tendays after the receipt by the Company of a statement or statements from Indemnitee and/or Indemnitee’s spouse requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding, and afterreceipt from Indemnitee of the undertaking and affirmation above. 

 

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Section 9. Procedure for Determination of Entitlement to Indemnification. 

 

(a) To obtain indemnification under this Agreement, Indemnitee shall submitto 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 toindemnification. The Secretary of the Company 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 thefirst sentence of Section 9(a) hereof, 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 IndependentCounsel in a written opinion to the Board of Trustees, a copy of which shall be delivered to Indemnitee; or (ii) if a Change of Control shall not have occurred, (A) by the Board of Trustees (or a duly authorized committee thereof) by a majority voteof a quorum consisting of Disinterested Trustees (as herein defined), or (B) if a quorum of the Board of Trustees consisting of Disinterested Trustees is not obtainable or, even if obtainable, such quorum of Disinterested Trustees so directs, byIndependent 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 sodetermined 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 toIndemnitee’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 isreasonably 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 9. Any Expenses actually and reasonablyincurred 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 shallindemnify and hold Indemnitee harmless therefrom. 

 

Section 10.Presumptions and Effect of Certain Proceedings. 

 

(a) Inmaking a 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 submitteda request for indemnification in accordance with Section 9(a) of this Agreement, 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 by judgment, order, settlement,conviction, a plea of nolocontendere or its equivalent, or an 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 forindemnification. 

 

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Section 11. Remedies of Indemnitee. 

 

(a) If (i) a determination is made pursuant to Section 9 of this Agreement that Indemnitee is not entitled toindemnification 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 9(b) of this Agreementwithin 90 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 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, orin 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 thecommercial Arbitration Rules of the American Arbitration Association. Indemnitee shall commence such proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has the right to commencesuch proceeding pursuant to this Section 11(a); provided, however, that the foregoing 180-day limit shall not apply to a proceeding brought by Indemnitee to enforce his rights under Section 7 of this Agreement. 

 

(b) In any judicial proceeding or arbitration commenced pursuant to thisSection 11, the Company shall have the burden of proving that Indemnitee is not entitled to indemnification or advance of Expenses, as the case may be. 

 

(c) If a determination shall have been made pursuant to Section 9(b) of this Agreement that Indemnitee is entitled to indemnification, the Company shallbe bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 11, absent a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statementnot materially misleading, in connection with the request for indemnification. 

 

(d) In the event that Indemnitee, pursuant to this Section 11, seeks a judicial adjudication of or an award in arbitration to enforce his rights under, or to recover damages for breach of, this Agreement, Indemniteeshall 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 judicialadjudication 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 beappropriately prorated. If it shall be determined in such judicial adjudication or arbitration that Indemnitee is not entitled to indemnification or advance of Expenses sought, Indemnitee shall not be entitled to recover from the Company, and shallnot be indemnified by the Company for, any and all Expenses incurred by him in such judicial adjudication or arbitration. 

 

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Section 12. Defense of the Underlying Proceeding. 

 

(a) Indemnitee shall notify the Company promptly upon being served with orreceiving any summons, citation, subpoena, complaint, indictment, information, notice, request or other document relating to any Proceeding which may result in the right to indemnification or the advance of Expenses hereunder; provided, however,that 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 abilityto 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 12(b) andof Section 12(c) below, the Company shall have the right to defend Indemnitee in any Proceeding which may give rise to indemnification hereunder; provided, however, that the Company shall notify Indemnitee of any such decision to defend within 15calendar days following receipt of notice of any such Proceeding under Section 12(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 anyjudgment against Indemnitee or enter into any settlement or compromise which (i) includes an admission of fault of Indemnitee or (ii) does not include, as an unconditional term thereof, the full release of Indemnitee from all liability in respect ofsuch Proceeding, which release shall be in form and substance reasonably satisfactory to Indemnitee. This Section 12(b) shall not apply to a Proceeding brought by Indemnitee under Section 11 above or Section 18 below. 

 

(c) Notwithstanding the provisions of Section 12(b) above, if in a Proceedingto which Indemnitee is a party by reason of Indemnitee’s Corporate 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 haveseparate 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, whichapproval 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 atimely 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 recoverfrom 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, atthe expense of the Company (subject to Section 11(d)), to represent Indemnitee in connection with any such matter. 

 

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Section 13. Non-Exclusivity; Survival of Rights; Subrogation; Insurance.

 

(a) The rights of indemnification and advance of Expenses as provided bythis 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 tovote generally in the election of trustees or of the Board of Trustees, or otherwise. 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 ofany action taken or omitted by such Indemnitee in his Corporate Status prior to such amendment, alteration or repeal. 

 

(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 ofIndemnitee, 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. 

 

(c) The Company shall not be liable under this Agreement to make any paymentof 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 14. Insurance. The Company will use its reasonable bestefforts to acquire trustees and officers liability insurance, on terms and conditions deemed appropriate by the Board of Trustees of the Company, with the advice of counsel, covering Indemnitee or any claim made against Indemnitee for service as atrustee or officer of the Company and covering the Company for any indemnification or advance of Expenses made by the Company to Indemnitee for any claims made against Indemnitee for service as a trustee or officer of the Company. In determiningwhether to acquire insurance or the terms and conditions of any insurance acquired, the Board of Trustees of the Company may consider all facts that it deems relevant to its decision, including cost. Without in any way limiting any other obligationunder 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 andreasonable Expenses actually and reasonably incurred by Indemnitee in connection with a Proceeding over the coverage of any insurance referred to in the previous sentence. 

 

Section 15. Indemnification for Expenses of a Witness. Notwithstanding any other provision of this Agreement, to theextent that Indemnitee is or may be, by reason of his Corporate Status, a witness in any Proceeding, whether instituted by the Company or any other party, and to which Indemnitee is not a party but in which the Indemnitee receives a subpoena totestify, 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. 

 

 

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Section 16. Duration of Agreement; Binding Effect. 

 

(a) This Agreement shall continue until and terminate ten years after thedate that Indemnitee’s Corporate Status shall have ceased; provided, that the rights of Indemnitee hereunder shall continue until the final termination of any Proceeding then pending in respect of which Indemnitee is granted rights ofindemnification or advance of Expenses hereunder and of any proceeding commenced by Indemnitee pursuant to Section 11 of this Agreement relating thereto. 

 

(b) The indemnification and advance of Expenses provided by, or granted pursuant to, this Agreement shall be binding upon and be enforceable by theparties 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 anIndemnitee who has ceased to be a director, trustee, officer, employee or agent of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise which such person is or was serving at thewritten 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 orotherwise) 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 samemanner and to the same extent that the Company would be required to perform if no such succession had taken place. 

 

Section 17. Severability. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reasonwhatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any section of this Agreement containing any such provision held to be invalid, illegal orunenforceable that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of anysection 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 18. Exception to Right of Indemnification or Advance ofExpenses. Notwithstanding any other provision of this Agreement, Indemnitee shall not be entitled to indemnification or advance of Expenses under this Agreement with respect to any Proceeding brought by Indemnitee, unless (a) the Proceeding isbrought to enforce indemnification under this Agreement, and then only to the extent in accordance with and as authorized by Sections 8 and 11 of this Agreement, or (b) the Company’s Bylaws, as amended, the Declaration of Trust, a resolution ofthe 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 19. Identical Counterparts. This Agreement may be executed inone or more counterparts, each of which shall for all purposes be deemed to be an original but all of which 

 

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together shall constitute one and the same Agreement. One such counterpart signed by the party against whomenforceability 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 towhom 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 pagehereto. 

 

(b) If to the Company to: 

 

Innkeepers USA Trust 

306 Royal Poinciana Way 

Palm Beach, FL 33480 

Attn: General Counsel 

 

or to such other address as may have been furnished to Indemnitee by the Company or to theCompany 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 bedeemed 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 on the day and year first abovewritten. 

 

ATTEST:
 
INNKEEPERS USA TRUST

/s/ Pauline O’Neill
 
By:
 
/s/ Jeffrey H. Fisher
  
Name:
 
Jeffrey H. Fisher
  
Title:
 
Chairman, CEO and President

WITNESS:
 
INDEMNITEE

/s/ Pauline O’Neill
 
/s/ Rolf E. Ruhfus
  
Name:
 
Rolf E. Ruhfus
  
Address:
 
c/o LodgeWorks Corporation
    
8100 E. 22nd St North, Bldg. 500
    
Wichita, KS 67226

 

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**EXHIBIT A**

 

FORM OF UNDERTAKING TO REPAY EXPENSES ADVANCED 

 

The Board of Trustees of Innkeepers USA 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                    , 200    , by and between Innkeepers USA Trust (the “Company”) and the undersignedIndemnitee (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 specifiedin the Indemnification Agreement. 

 

I am subject to theProceeding by reason of my Corporate Status or by reason of alleged actions or omissions by me in such capacity. I hereby affirm that at all times, insofar as I was involved as **[a trustee]****[an officer]** of the Company, in any of thefacts or events giving rise to the Proceeding, I (1) acted in good faith and honestly, (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 tobelieve that any act or omission by me was unlawful. 

 

Inconsideration 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 theProceeding, 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 animproper 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 Expensesrelating to the claims, issues or matters in the Proceeding as to which the foregoing findings have been established and which have not been successfully resolved as described in Section 7 of the Indemnification Agreement. To the extent thatAdvanced Expenses do not relate to a specific claim, issue or matter in the Proceeding, I agree that such Expenses shall be allocated on a reasonable and proportionate basis. 

 

****IN WITNESS WHEREOF, I have executed this Affirmation and Undertaking on this      day of                    , 200    . 

 

WITNESS:
    
 
 
 
 
(SEAL)