EXHIBIT 10.17
SUPPLEMENTAL REPRESENTATIONS,
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WARRANTIES AND INDEMNITY AGREEMENT
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THIS SUPPLEMENTAL REPRESENTATIONS AND WARRANTIES AGREEMENT (the
"Agreement") is made and entered into as of _____ __, 1998 by **[LaSalle Plaza
Park Limited Partnership]** **[LaSalle Seaview, L.P.]** **[LaSalle LRP
Bloomington Limited Partnership]** **[LaSalle LRP Dallas Hotel Limited
Partnership]** **[LaSalle LRP New Orleans Hotel Limited Partnership]**
**[LaSalle LRP Key West Hotel Investors Limited Partnership]** **[LaSalle Le
Montrose Limited Partnership]** **[LaSalle Sabal Plaza Limited Partnership]**
**[LaSalle Omaha Hotel Investors Limited Partnership]** **[LaSalle Hotel Co-
Investment, Inc.]** ("Indemnitor"), LaSalle Hotel Operating Partnership, L.P., a
Delaware limited partnership (the "Operating Partnership") and LaSalle Hotel
Properties, a Maryland real estate investment trust (the "REIT"). Capitalized
terms used herein without definition shall have the meaning ascribed to such
terms in that certain Omnibus Contribution Agreement dated as of _________ __,
1998 (the "Contribution Agreement") by and among the Operating Partnership, the
Indemnitor and others named therein.
WHEREAS, in connection with an initial public offering of common shares of
beneficial interest of the REIT (the "IPO"), the Indemnitor and certain other
persons will transfer to the Operating Partnership their direct and indirect
equity interests in the Asset Entity and the Property (each as hereinafter
defined) upon the exercise by the Operating Partnership of options granted to it
by the Indemnitor pursuant to the Contribution Agreement and by certain third
parties (collectively, the "Grantors" and individually, a "Grantor") pursuant to
certain Contribution Agreements (the "Grantor Agreements") (all of the foregoing
transfers being collectively referred to herein as the "Transactions"); and
WHEREAS, to induce the REIT to consummate the IPO and to induce the
Operating Partnership to exercise the options granted to it pursuant to the
Contribution Agreement, Indemnitor has agreed to make the representations and
warranties contained in this Agreement for the benefit of the REIT and the
Operating Partnership, on the condition that the individual liability of such
Indemnitor for any breach of such representations and warranties be limited as
provided herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereby agree as follows:
1. Representations and Warranties with Respect to the Property and
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Indemnitor. Indemnitor hereby makes the following representations and
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warranties as of the date hereof, as of the date of the Initial Closing and as
of the date of the Final Closing with respect to the property set forth on
Exhibit A hereto, including all personal property related thereto or to the
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operation thereof (collectively, the "Property") and all property management
agreements set forth on Exhibit B hereto (the "Corporate Assets"). Such
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representations and warranties, other than those contained in Section 2.3
hereto, are deemed modified in full to the extent any specific statement of fact
in the REIT's Registration Statement on Form S-ll (Registration No. 333 -
[_____], as amended (the "Registration Statement")), conflicts with any similar
statement of fact contained in such representations and warranties.
1.1 Organization and Qualification. Indemnitor is a **[limited
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partnership]** **[corporation]**, duly formed and validly existing and in good
standing under the laws of its jurisdiction of organization, and has the
requisite power and authority to carry on its business as it is now being
conducted and, if applicable, to engage in the Transactions to which it is a
party. Indemnitor has made available to the Operating Partnership or the REIT
complete and correct copies of its governing instruments, together with all
amendments thereto, as in effect on the date of this Agreement. Indemnitor is
duly qualified or registered to transact business in each jurisdiction in which
such qualification or registration is required, whether by reason of the
ownership or leasing of property, the management of properties owned by others
or the conduct of business, except where the failure to so qualify would not
have a material adverse effect on the condition (financial or otherwise) or the
earnings, assets, business affairs or business prospects of such entity.
1.2 Authority Relative to Contribution Agreement. All action of
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Indemnitor necessary to authorize the execution, delivery and performance by
such Indemnitor of the Contribution Agreement has been taken, and no other
proceedings on the part of Indemnitor is necessary to authorize (i) the
execution and delivery by Indemnitor (or by any attorney-in-fact for such
Indemnitor appointed pursuant to the Contribution Agreement (an "Attorney-in-
Fact")), of the Contribution Agreement and the assignment of partnership
interests and other deliveries contemplated thereby or (ii) the consummation by
such Indemnitor (directly or through an Attorney-in-Fact) of the Transactions to
which it is a party. Neither the execution and delivery Indemnitor (directly or
through an Attorney-in-Fact) of any of the Contribution Agreements to which it
is a party, nor the consummation by such Indemnitor (directly or through an
Attorney-in-Fact) of the Transactions to which it is a party, nor compliance by
such Indemnitor (directly or through an Attorney-in-Fact) with any of the
provisions of the Contribution Agreement to which it is a party will (i)
conflict with or result in any breach of any provisions of the governing
instruments of such Indemnitor, (ii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or acceleration) under any
of the terms, conditions, or provisions of any of the organizational documents
of the Indemnitor or of any note, bond, mortgage, indenture, lease, license,
easement, restriction, contract, agreement or other instrument or obligation to
which such Indemnitor is a party or by which any of the foregoing or any of
their respective properties or other assets may be bound, or (iii) violate any
order, writ, injunction, law, decree, statute, agreement, rule or regulation
applicable to Indemnitor or the Property except in the case of (ii) or (iii) for
violations, breaches or defaults which would not, singly or in the aggregate,
have a material adverse effect on the business or financial condition of
Indemnitor, the Property or the Transactions.
1.3 Consents Obtained; Binding Obligation; Absence of Undisclosed
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Liabilities. Upon consummation of the assignments and other transactions
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contemplated by the Contribution Agreement and the Grantor Agreements, the
Operating Partnership will acquire, directly or indirectly, good, marketable and
valid title to 100% of the ownership interests in the Asset Entity, free and
clear of any liens, encumbrances, debts, liabilities or obligations, direct or
indirect, contingent or non-contingent, and matured or unmatured with respect to
such ownership interests in the Asset Entity (collectively, "Liabilities").
1.4 Brokers. Indemnitor, nor any general partner, officer or
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director of Indemnitor, has employed any broker or finder, or incurred any
liability therefor, in connection with the Transactions to which it is a party.
1.5 Ownership. Except as disclosed in the Registration Statement,
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Indemnitor has not granted to any person (other than pursuant to the
Contribution Agreement) any option, warrant or other right to acquire any
interest in the Asset Entity or the Property or, if such Indemnitor is a limited
partnership, corporation, or trust, in such Indemnitor, and, to the knowledge of
Indemnitor, no other person or entity has granted to any person any option,
warrant or other right to acquire any interest in the Asset Entity, Grantor or
the Property (in each case, other than options, warrants or other rights of
third parties that have been duly waived or released).
1.6 Assets. Except as reflected in the Contribution Agreement or on
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Schedule 1.6 attached hereto, Indemnitor does not own any assets other than its
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interest in the Corporate Assets and the interest in the Property being
transferred to the Operating Partnership pursuant to the Contribution Agreement.
1.7 Title to Corporate Assets. To the best of Indemnitor's
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knowledge, the Asset Entity has good and marketable title to the Corporate
Assets identified in the Contribution Agreement as being owned by such Asset
Entity, free and clear of any material Liabilities of any kind except as
disclosed in the Financial Statements (as defined hereinafter).
1.8 Debt. To the best of Indemnitor's knowledge, except for the
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existing mortgage debt with respect to the Property, as described in the
Registration Statement, the Asset Entity does not have any indebtedness other
than indebtedness incurred by it in its ordinary course of business (which in no
case exceeds **[$50,000]**). There exists no default or, to the knowledge of
the Indemnitor, any event which with the passage of time or notice or both would
constitute a default, with respect to the mortgage debt or any other debt of
such entity that has not been cured or waived.
1.9 Financial Statements. To the best of Indemnitor's knowledge, the
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consolidated financial statements of the Asset Entity incorporated in the
Registration Statement (the "Financial Statements") have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods specified. The balance sheets in the Financial
Statements fairly present the financial condition of such entities as of the
dates shown and the income statements in the Financial Statements fairly present
the results of operations for the periods indicated. To the best of
Indemnitor's knowledge, there are no material known Liabilities of the Asset
Entity that are not described in such Financial Statements.
1.10 Financial Condition. Since the date of the Financial
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Statements, there has been no material adverse change in the condition
(financial or otherwise), earnings, business, affairs or business prospects of
Indemnitor or the Asset Entity except as disclosed on Schedule
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1.10 attached hereto. Neither the Indemnitor nor the Asset Entity (i) is in
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receivership or dissolution, (ii) has made an assignment for the benefit of
creditors or admitted in writing its inability to pay its debts as they mature,
or (iii) has been adjudicated a bankrupt or filed a petition in voluntary
bankruptcy or a petition or answer seeking reorganization or an arrangement with
creditors under the Federal bankruptcy law or any other similar law or statute
of the United States or any jurisdiction and no such petition has been filed
against such Indemnitor or the Asset Entity.
1.11 Contracts. Except for (i) agreements relating to mortgage
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financing assumed by the Operating Partnership or to be repaid in connection
with the Transactions, (ii) agreements relating to other indebtedness for
borrowed money disclosed in the Registration Statement, (iii) agreements that
the REIT or the Operating Partnership have or will enter into, or (iv) the
leases referred to in Section 1.12 below, Schedule 1.11 attached hereto lists
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all contracts or other understandings, written or oral, to which the Asset
Entity is a party or by which the Asset Entity is bound that relate to the
Property or the Corporate Assets or that would otherwise become binding on the
REIT or the Operating Partnership following consummation of the Transactions
(collectively, the "Contracts" and each, a "Contract") which (a) singly or in
combination with any other contract purporting to address the same matter for
the Property or the Corporate Assets could require payments in excess of $50,000
in any year and (b) would not be terminable on six months notice or less by such
Asset Entity or the Operating Partnership without violating the terms thereof.
Each of the Contracts is valid and binding on the Asset Entity that is a party
thereto, as applicable, and is in full force and effect in all material
respects. The Asset Entity has not, and to the knowledge of the Indemnitor, no
other party to any Contract has, breached or defaulted under the terms of such
Contract, except for such breaches or defaults that would not, singly or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise), earnings, assets, business affairs or business prospects of the
Asset Entity, the Property, the Corporate Assets or on the Transactions.
1.12 Leases; Rent Rolls. With respect to the Property, a true,
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complete and correct copy of the lease (including all amendments, modifications
and supplements thereto) for such Property have been delivered to the REIT or
the Operating Partnership. The lease, upon the completion of the Transactions,
will be in full force and effect in all material respects. No party to any such
lease has breached or defaulted under the terms of such lease, except for such
breaches or defaults as would not, singly or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), earnings, assets,
business affairs or business prospects of the Asset Entity, the Property, the
Corporate Assets or the Transactions.
1.13 Permits. There exists for the Property (and will continue to
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exist immediately following the consummation of the Transactions) all
certificates, licenses, permits and other authorizations from governmental or
political subdivisions or regulatory authorities (collectively, "Permits") as
are necessary for the ownership, use, operation and licensing of such Property
as it is currently being operated, except for such Permits for which the failure
to possess would not have a material adverse effect on the condition (financial
or otherwise), earnings, business, affairs or business prospects of the
Property. All such Permits are in full force and effect and no such Permit has
been violated in any material respect.
1.14 Litigation; Moratoria. Etc. No claims, actions, suits,
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proceedings or investigations have been instituted or, to the knowledge of the
Indemnitor, threatened against any Grantor, the Asset Entity or any of the
properties or rights of any of them (including, without limitation, the Property
and the Corporate Assets), before or by any court or administrative,
governmental or regulatory authority or body, domestic or foreign, that would
have a material adverse effect on the condition (financial or otherwise),
earnings, business, affairs or business prospects of the Property, any such
Grantor, the Asset Entity or the Transactions. Neither the Asset Entity nor the
Property is subject to any order, judgment, injunction or decree of any court,
tribunal or other governmental authority (other than generally applicable laws,
rules and regulations) that would have a material adverse effect on the business
or condition (financial or otherwise), earnings, business, affairs or business
prospects of the Asset Entity or the Property. Except as disclosed in the
Registration Statement, there is no pending or, to the knowledge of the
Indemnitor, threatened litigation, moratorium, condemnation proceedings, zoning
change, or other similar proceeding or action that is likely to in any manner
affect the size of, use of, improvements on, construction on, access to or
availability of utilities or other necessary services to the Property, except
such proceedings or actions that would not, singly or in the aggregate, have a
material adverse effect on the condition (financial or otherwise), earnings,
assets, business, affairs or business prospects of or with respect to such
Property or of the Asset Entity or, following the consummation of the
Transactions, the REIT or the Operating Partnership.
1.15 Compliance with Laws, Etc. The Property is not in violation in
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any material respect of any zoning code, law, regulation or ordinance or any
recorded covenants applicable to such Property which would have a material
adverse effect on the condition (financial or otherwise), earnings, business,
affairs or business prospects of any Grantor, Asset Entity or the Property or on
the Transactions. The Asset Entity, or proper representative thereof, has not
received any written or other notice of any violation of any applicable zoning
code, law, regulation or ordinance, or of any employment, environmental, or
other regulatory law, order, regulation, or requirement relating to the Property
which remains uncured, and there are no such violations which, individually or
in the aggregate, would have a material adverse effect on the condition
(financial or otherwise), earnings, business, affairs or business prospects of
the Asset Entity or the Property or on the Transactions.
1.16 Taxes, Utilities, Etc. Except for such matters that in the
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aggregate would not result in a material adverse effect on the condition
(financial or otherwise), earnings, business, affairs or business prospects of
the Asset Entity or the Property or on the Transactions, (i) all tax or
information returns required to be filed on or before the date hereof by or on
behalf of Indemnitor or the Asset Entity have been filed through the date hereof
or will be filed on or before the closing of the IPO in accordance with all
applicable laws, and (ii) there is no action, suit or proceeding pending
against, or with respect to, Indemnitor or the Asset Entity or the Property in
respect of any tax (other than tax abatement proceedings) nor is any claim for
additional tax asserted by any such authority. No amounts due and owing with
respect to the Property in connection with utilities, insurance, assessments or
other charges customarily prorated in real estate transactions have been
outstanding more than 30 days.
1.17 Insurance. The Asset Entity currently has in place the public
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liability, casualty and other insurance coverage with respect to its Property as
is required by the applicable mortgage or bond financing documents to be assumed
by the REIT or the Operating Partnership
or to be placed by the REIT or the Operating Partnership on the Property (as
described in the Registration Statement) or as would otherwise customarily be
carried by owners or operators of projects similar to the Property in the
markets in which such Property is located. To the knowledge of Indemnitor, each
insurance policy with respect to the Property is in full force and effect and
all premiums due and payable thereunder have been fully paid when due.
Indemnitor nor, to the knowledge of Indemnitor, the Asset Entity, has received
from any insurance company notice of any material defects or deficiencies
affecting the insurability of the Property or any notices of cancellation or
intent to cancel any such insurance.
1.18 Employees. Except as disclosed on Schedule 1.18, the Asset
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Entity has no employees.
1.19 Environmental. To the knowledge of Indemnitor, except as
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disclosed in the environmental report prepared for the Property and enumerated
on Schedule 1.19 (the "Environmental Report") and in the Registration Statement:
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(i) no Hazardous Substances (as defined below) are present in the
Environment (as defined below) at the Property in amounts or concentrations that
would have a material adverse effect on the condition (financial or otherwise),
earnings, assets, business, affairs, or business prospects of the Property, the
Asset Entity, the Transactions, the REIT, or the Operating Partnership,
(ii) the Asset Entity has not caused or allowed any discharging or
disposal of any Hazardous Substance or pollutant into the Environment at the
Property in material violation of any Environmental Law (as defined below)
applicable to such Property and in an amount that would have a material adverse
effect on the condition (financial or otherwise), earnings, assets, business,
affairs, or business prospects of the Property, the Asset Entity, the
Transactions, the REIT, or the Operating Partnership;
(iii) the Asset Entity has not received any notice of a claim under
or pursuant to any Environmental Law applicable to the Property pertaining to
Hazardous Substances on the Property or pertaining to other property at which
Hazardous Substances generated at the Property have come to be located;
(iv) the Asset Entity has not received any notice from any
Governmental Authority (as defined below) claiming any violation of any
Environmental Law at the Property that is uncured or unremediated as of the date
hereof; and
(iv) the Property (A) is not included on the National Priorities List
issued pursuant to CERCLA (as defined below) by the United States Environmental
Protection Agency (the "EPA") or on the Comprehensive Environmental Response,
Compensation and Liability Information System database maintained by the EPA or
(B) is included on any similar list of potentially contaminated sites pursuant
to any other applicable Environmental Law, and the Asset Entity has not received
any written notice from the EPA or any other Governmental Authority proposing
the inclusion of the Property on such list.
As used herein, "HAZARDOUS SUBSTANCE" shall mean asbestos or asbestos
containing materials, polychlorinated biphenyls or any hazardous substance,
hazardous material, hazardous
waste, toxic substance, toxic material, toxic waste, oil, petroleum, or
petroleum-derived substance or waste, listed or regulated under the
Comprehensive Environmental Response, Compensation and Liability Act, as amended
(42 U.S.C. (S)(S) 9601 et seq.) ("CERCLA"), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. (S)(S) 6901, et seq.) ("RCRA"), or any other
Environmental Law affecting the Property; "ENVIRONMENT" shall mean any ambient
air, surface water, ground water, land surface, or subsurface strata located at,
on, or under the Property; "ENVIRONMENTAL LAW" shall mean CERCLA, RCRA, the
Clean Air Act, as amended (42 U.S.C. (S)(S) 7401 et seq.), or the Clean Water
Act, as amended (33 U.S.C. (S)(S) 1251 et seq.), together with all laws, rules,
regulations, statutes, ordinances and orders promulgated thereunder and all
other federal, state and local laws, relating to the protection of the
environment or the safety and health of persons from exposure to any actual or
potential release, removal, discharge or emission of Hazardous Substances;
"GOVERNMENTAL AUTHORITY" shall mean any federal, state or local governmental
office, agency or authority having the duty or authority to promulgate,
implement or enforce any Environmental Law; "LIEN" shall mean, with respect to
the Property, any mortgage, deed of trust, pledge, security interest, lien,
encumbrance, penalty, fine, charge, assessment, judgment, or other liability in,
on, or affecting such Property.
1.20 Condition of the Property: No Alterations. There is no material
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defect in the condition of the Property, the improvements thereon, the
structural elements thereof, or the mechanical systems therein, nor any material
damage from uninsured casualty or other cause, nor any soil condition of any
such Property that will not support all of the improvements thereon without the
need for unusual or new subsurface excavations, fill, footings, caissons or
other installations, except for any such defect, damage or condition that has
been corrected or will be corrected in the ordinary course of the business of
such Property as part of its scheduled annual maintenance and improvement
program.
1.21 Ground Leases. (i) each ground lease which creates a leasehold
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interest in the Property (collectively, "Ground Leases") is in full force and
effect, (ii) no material default exists under any of the terms, conditions,
covenants or provisions of any of the Ground Leases, (iii) neither the Asset
Entity nor the landlord under any of the Ground Leases has commenced any action
or given or received any notice asserting a default thereunder or for the
purpose of terminating any of the Ground Leases and (iv) all rents, additional
rents and other sums which have been billed under any of the Ground Leases have
been paid in full.
2. Additional Representations and Warranties with Respect to Indemnitor.
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Indemnitor hereby further represents and warrants to the REIT and the Operating
Partnership as follows:
2.1 Authority Relative to this Agreement. All action of such
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Indemnitor necessary to authorize the execution, delivery and performance of
this Agreement by such Indemnitor has been taken, and no other proceedings on
the part of such Indemnitor are necessary to authorize the execution and
delivery by such Indemnitor of this Agreement and the consummation by such
Indemnitor of the transactions hereunder. Neither the execution and delivery of
this Agreement by such Indemnitor, nor the consummation by such Indemnitor of
the transactions contemplated hereunder, nor compliance by such Indemnitor with
any of the provisions of this Agreement will (i) conflict with or result in any
breach of any provisions of the partnership agreement, the articles of
incorporation or bylaws or other organizational documents,
as applicable, to which such Indemnitor is bound or is a party, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation to which such Indemnitor is a party or by which such
Indemnitor may be bound, or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to such Indemnitor, except in the case of
(ii) or (iii) for violations, breaches or defaults which would not in the
aggregate have a material adverse effect on the business or financial condition
of such Indemnitor.
2.2 Binding Obligation. This Agreement has been duly and validly
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executed and delivered by such Indemnitor and constitutes a valid and binding
agreement of such Indemnitor, enforceable against such Indemnitor in accordance
with its terms, except that such enforcement may be subject to bankruptcy,
conservatorship, receivership, insolvency, moratorium or similar laws affecting
creditors' rights generally and to general principles of equity.
2.3 Registration Statement. The Indemnitor has reviewed the
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Registration Statement and represents and warrants that it does not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading.
3. Indemnity, Limitations on Liability. Subject to the terms hereof,
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Indemnitor hereby agrees to indemnify and hold harmless the REIT and the
Operating Partnership (each, a "Covered Party") from any damage, expense, loss,
cost, claim or liability (each a "Claim") suffered or incurred by any Covered
Party as a result of any inaccuracy in any representation or warranty contained
herein. Notwithstanding anything to the contrary contained in this Agreement,
(a) for so long as the REIT shall have a valid, first priority perfected lien on
and security interest in the Collateral described in the Pledge Agreement
referred to in Section 4 hereof, the maximum liability of Indemnitor under this
Agreement shall be limited to the rights of such entity in such Collateral;
provided, however, that the Indemnitor shall have no liability resulting from
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any Claims, unless and until the amount of such Claims shall exceed in the
aggregate $100,000 (except with respect to liabilities arising pursuant to
Section 1.4 hereof which are evidenced by written brokerage agreements which
have been executed by Indemnitor or the Asset Entity or any general partner,
officer or director of Indemnitor on behalf of such Indemnitor, with respect to
which such minimum aggregate amount shall not apply); the liability of
Indemnitor hereunder is expressly limited to the actual out-of-pocket damages,
expenses, losses, costs or liabilities suffered or incurred by the REIT or the
Operating Partnership (including, without limitation, reasonable attorneys' fees
and expenses and other costs incurred in defending against any adverse claims)
as a result of any matter referred to in this Section 3 (each, a "Covered
Matter") and with respect to which a claim is made in accordance with Section 5
hereof, and the Indemnitor shall not be liable to any Covered Party under this
Agreement for any indirect, special, consequential, loss of profits, or similar
speculative damages asserted or claimed by a Covered Party.
4. Pledge of Stock and Units. As security for the full and timely
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performance of its obligations hereunder, the Indemnitor agrees to execute and
deliver a Pledge and Security Agreement and the documents referred to therein
(the "Pledge Agreement") in the form of Exhibit C attached hereto and to make
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the deliveries and perform the obligations required thereunder.
5. Survival: Agreements Regarding Certain Claims. It is the express
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intention and agreement of the parties hereto that the representations,
warranties and indemnities set forth in this Agreement shall survive the Final
Closing for a period equal to one (1) year from the date hereof and (except as
specifically provided below in this Section 5) shall expire and be terminated
and extinguished forever at such time, except with respect to claims asserted
against the Indemnitor in good faith pursuant hereto by written notice from any
or all of the Covered Parties to such Indemnitor at any time within one (1) year
following the date hereof. Any written notice given within such one (1) year
period must set forth the nature and details of the Claim with reasonable
specificity in order to constitute a valid notice pursuant to the preceding
sentence. Each Covered Party agrees that, in the event that such Covered Party
could reasonably make any claim with respect to a matter covered by this
Agreement under any existing policy of insurance or against any Grantor under a
Grantor Agreement, such Covered Party shall, prior to taking any action
hereunder against the Indemnitor, make a claim under such policy or against such
Grantor and thereafter shall use reasonable efforts to prosecute such claim to
completion; provided, however, that from and after (i) the time that notice is
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given to Indemnitor that a Claim exists but that coverage therefor is being
sought from an insurer or Grantor and that no action or (in accordance with the
preceding proviso) limited action is being taken against such Indemnitor
(provided such notice is given within one (1) year following the date of the
Final Closing), through and including (ii) thirty days after the date of
abandonment (by non-prosecution or otherwise) of such Claim against such carrier
or Grantor (or other final disposition of such Claim) or, if earlier, the
applicable limitations period for such claim, such one year period, with respect
to that Indemnitor and that Claim only and no other Claim (other than other
Claims satisfying the conditions of this proviso), shall be stayed, as
necessary, to preserve such Covered Party's rights against such Indemnitor under
this Agreement. The amounts recovered under an insurance policy or from any
Grantor with respect to any Claim shall be credited against the Indemnitor's
liability with respect to such Claim.
6. Miscellaneous.
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6.1 Notices. All notices, demands, requests or other communications
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which may be or are required to be given or made either by the Indemnitor, on
the one hand, or the REIT or the Operating Partnership, on the other hand,
pursuant to this Agreement shall be in writing and shall be hand delivered or
transmitted by certified mail, express overnight mail or delivery service,
telegram, telex or facsimile transmission to the parties to the following
addresses:
If to Indemnitor, to: c/o LaSalle Partners
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxx & Associates
000 Xxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Attn: Xxxxxx X. Xxxxx, Esq.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to the REIT or the Operating
Partnership to: c/o LaSalle Partners
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxx & Wood
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
or to such other address in the United States of America as the addressee may
indicate by written notice to the other party in conformance with this Section
6.1.
Each notice, demand, request or communication which shall be given or made
in the manner described above shall be deemed sufficiently given or made for all
purposes at such time as it is delivered to the addressee (with the delivery
receipt, the affidavit of messenger or (with respect to a telex) the answer back
being deemed conclusive but not exclusive evidence of such delivery) or at such
time as delivery is refused by the addressee upon presentation.
6.2 Benefit and Assignment. No party hereto shall assign this
----------------------
Agreement, in whole or in part, whether by operation of law or otherwise,
without the prior written consent of the Indemnitor (if the assignor is the
Operating Partnership or the REIT) or of the Operating Partnership and the REIT
(if the assignor is the Indemnitor); and any purported assignment contrary to
the terms hereof shall be null, void and of no force and effect. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and assigns as permitted hereunder. No person or
entity other than the parties hereto is or shall be entitled to bring any action
to enforce any provision of this Agreement against any of the parties hereto,
and the covenants and agreements set forth in this Agreement shall be solely for
the benefit of, and shall be enforceable only by, the parties hereto or their
respective successors and assigns as permitted hereunder.
6.3 Entire Agreement; Amendment. This Agreement contains the final
----------------------------
and entire agreement between the parties hereto with respect to the subject
matter hereof and is intended to be an integration of all prior negotiations and
understandings. The parties to this Agreement shall not be bound by any terms,
conditions, statements, warranties or representations, oral or written, not
contained or referred to herein or therein. No change or modification of this
Agreement shall be valid unless the same is in writing and signed by the parties
hereto.
6.4 Governing Law. This Agreement, the rights and obligations of
--------------
the parties hereto and any claims or disputes relating thereto shall be governed
by and construed under the laws of the State of New York.
6.5 Counterparts. This Agreement may be executed in one or more
-------------
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
6.6 Definition of Knowledge. As used herein, "to the knowledge" of
------------------------
Indemnitor means the actual knowledge of such Indemnitor.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed and delivered on its behalf as of the date first above written.
LASALLE OPERATING PARTNERSHIP, L.P.
By: LaSalle Hotel Properties,
its General Partner
By:________________________________
Name:
Title:
**[LASALLE PLAZA PARK LIMITED
PARTNERSHIP]** **[LASALLE SEAVIEW, L.P.]** **[LASALLE LRP
BLOOMINGTON LIMITED PARTNERSHIP]** **[LASALLE LRP DALLAS
HOTEL LIMITED PARTNERSHIP**] **[LASALLE LRP NEW ORLEANS
HOTEL LIMITED PARTNERSHIP**] **[LASALLE LRP KEY WEST HOTEL
INVESTORS LIMITED PARTNERSHIP**] **[LASALLE LE MONTROSE
LIMITED PARTNERSHIP]** **[LASALLE SABAL PLAZA LIMITED
PARTNERSHIP]** **[LASALLE OMAHA HOTEL INVESTORS LIMITED
PARTNERSHIP]** **[LASALLE HOTEL CO-INVESTMENT, INC.]**
By:________________________________
Name:
Title:
SCHEDULE 1.10
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Listing of material adverse change in the condition (financial or
otherwise), earnings, business, affairs or business prospectus of Indemnitor or
the Asset Entity: NONE
SCHEDULE 1.11
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List of contracts or understandings that require $10,000 payment with
respect to the Property and are not terminable on 6 months notice or less: NONE
Exhibit C
[Pledge Agreement]
