EXHIBIT (10)(iii)
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ENVIRONMENTAL INDEMNIFICATION AGREEMENT
This Environmental Indemnification Agreement (this "Agreement") is
made and entered into effective for all purposes as of the 13th day of
November, 2000, by the parties signatory hereto or to an Accession
Agreement (as hereinafter defined) (collectively, the "Indemnitor" whether
one or more), to and for the benefit of SOCIETE GENERALE, SOUTHWEST AGENCY,
as Joint Book Runner and Administrative Agent (the "Administrative Agent"),
BANK OF MONTREAL, CHICAGO BRANCH as Syndication Agent (the "Syndication
Agent"), DEUTSCHE BANC ALEX. XXXXX, as Joint Book Runner and Documentation
Agent ("Documentation Agent"), and the banks and other lenders named in the
Credit Agreement herein described (the "Banks").
INTRODUCTION
WHEREAS, this Agreement is given in connection with that certain
Second Amended and Restated Senior Unsecured Credit Agreement dated as of
even date as this Agreement ("Credit Agreement"), among LASALLE HOTEL
OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (the
"Borrower"), Administrative Agent, Syndication Agent, Documentation Agent
and the banks and other lenders party thereto (collectively the "Banks")
pursuant to which the Banks are making, subject to future advances, a loan
in an amount up to $200,000,000.00 (the "Loan") to Borrower as more
specifically described therein;
WHEREAS, the Borrower and Subsidiaries of the Borrower now or
hereafter will own certain Hotel Properties which include without
limitation the Initial Properties, the Future Properties, the Permitted
Non-Eligible Properties and the properties owned by the Permitted Other
Subsidiaries (said properties together with all property owned by the
Participating Lessees in connection with such Hotel Properties, all rights
and appurtenances to such Hotel Properties and all improvements presently
located or hereafter constructed on such Hotel Properties are hereinafter
collectively called the "Properties", and each a "Property");
WHEREAS, the Borrower is the principal financing entity for capital
requirements of its Subsidiaries, and from time to time the Borrower has
made and will continue to make capital contributions and advances to its
Subsidiaries, including the Subsidiaries which are parties hereto. Other
than the Parent, each Indemnitor is a direct or indirect subsidiary of the
Borrower. Each Indemnitor will derive substantial direct and indirect
benefit from the transactions contemplated by the Credit Agreement; and
WHEREAS, the Banks have required the execution and delivery of this
Agreement as a condition precedent to the execution of the Credit
Agreement. The Banks would not be willing to execute the Credit Agreement
in the absence of the execution and delivery by Indemnitor of this
Agreement.
AGREEMENT
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NOW, THEREFORE, Indemnitor, as an inducement to the Banks to make the
Loan, hereby covenants and agrees to and for the benefit of the Banks as
follows:
1. DEFINED TERMS. All terms used in this Agreement, but not
defined herein, shall have the meaning given such terms in the Credit
Agreement.
2. HAZARDOUS MATERIAL. As used in this Agreement, the term
"Hazardous Materials" shall mean any flammable explosives, radioactive
materials, hazardous wastes, hazardous materials, hazardous or toxic
substances, or related materials as defined in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
(42 U.S.C. Section 9601 et. seq.), the Hazardous Materials Transportation
Act, as amended (49 U.S.C. Section 1801 et seq.), the Resource Conservation
and Recovery Act, as amended (42 U.S.C. Section 6901 et seq.), and in the
regulations adopted and publications promulgated pursuant thereto, and all
friable asbestos, petroleum derivatives, polychlorinated biphenyls, and
materials defined as hazardous materials under any federal, state or local
laws, ordinances, codes, rules, orders, regulations or policies governing
the use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal thereof (collectively, "Environmental
Laws").
3. REPRESENTATION. Except as set forth in the Environmental
Reports, Indemnitor warrants and represents to the Banks that it has no
knowledge of (a) the presence of any Hazardous Materials on any of the
Properties except for Permitted Hazardous Substances; or (b) any material
spills, releases, discharges or disposal of Hazardous Materials that have
occurred or are presently occurring off any of the Properties as a result
of any construction on or operation and use of any of the Properties. In
connection with the operation and use of any of the Properties, Indemnitor
warrants and represents that, as of the date of this Agreement, it has no
knowledge of any failure to comply in all material respects with all
applicable law, state and federal environmental laws, regulations,
ordinances and administrative and judicial orders relating to the
generation, recycling, reuse, sale, storage, handling, transport and
disposal of any Hazardous Materials other than as set forth in the
Environmental Reports.
4. COVENANT. Indemnitor covenants and agrees not to cause or
permit the presence, use, generation, release, discharge, storage, disposal
or transportation of any Hazardous Materials on, under, in, about, to or
from any of the Properties except for Permitted Hazardous Substances.
5. INDEMNIFICATION. Indemnitor shall exonerate, indemnify, pay
and protect, defend (with counsel approved pursuant to the Credit
Agreement) and save the Administrative Agent, the Syndication Agent, the
Documentation Agent, the Banks, and their respective directors, trustees,
beneficiaries, officers, shareholders, employees and agents of the Banks
(collectively, the "Indemnified Parties"), harmless from and against any
claims (including, without limitation, third party claims for personal
injury or real or personal property damage), actions, administrative
proceedings (including informal proceedings), judgments, damages, punitive
damages, penalties, fines, costs, taxes, assessments, liabilities
(including, without limitation, sums paid in settlements of claims),
interest or losses, including reasonable attorneys' fees and expenses
(including, without limitation, any such reasonable fees and expenses
incurred in enforcing this Agreement or collecting any sums due hereunder),
consultant fees, and expert fees, together with all other reasonable costs
and expenses of any kind or nature (collectively, the "Costs") that arise
directly or indirectly in connection with the presence, suspected presence,
release or suspected release of any Hazardous Materials in or into the air,
soil, ground water, surface water or improvements at, on, about, under or
within any of the Properties, or any portion thereof, or elsewhere in
connection with the transportation of Hazardous Materials to or from any of
the Properties (any such release being referred to herein as a "Release");
provided however that Indemnitor shall not be so liable for any Costs
arising because of the gross negligence or willful misconduct of an
Indemnified Party or Costs arising because of a Release from or on a
Property after the Administrative Agent or the Administrative Agent's
nominee acquires title to such Property. INDEMNITOR'S OBLIGATION TO SO
INDEMNIFY THE INDEMNIFIED PARTIES SHALL INCLUDE INDEMNIFICATION FOR ANY OF
SUCH MATTERS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF ANY OF THE
INDEMNIFIED PARTIES. The indemnification provided in this Section shall
specifically apply to and include claims or actions brought by or on behalf
of tenants or employees of Indemnitor; Indemnitor hereby expressly waives
(with respect to any claims of the Indemnified Parties arising under this
Agreement) any immunity to which Indemnitor may otherwise be entitled under
any industrial or worker's compensation laws. In the event any of the
Indemnified Parties shall suffer or incur any such Costs, Indemnitor shall
pay to the Administrative Agent for the benefit of the Indemnified Party
the total of all such Costs suffered or incurred by such Indemnified Party
within ten (10) days after demand therefor, such payment to be disbursed by
the Administrative Agent in accordance with the Credit Agreement. Without
limiting the generality of the foregoing, the indemnification provided by
this Section 5 shall specifically cover Costs, including, without
limitation, capital, operating and maintenance costs, incurred in
connection with any investigation or monitoring of site conditions, any
clean-up, containment, remedial, removal or restoration work required or
performed by any federal, state or local governmental agency or political
subdivision ("Governmental Agency") or performed by any non-governmental
entity or person as required or requested, by any Governmental Agency
because of the presence, suspected presence, release or suspected release
of any Hazardous Materials in or into the air, soil, groundwater, surface
water or improvements at, on, under or within any of the Properties (or any
portion thereof), or elsewhere in connection with the transportation of
Hazardous Materials to or from any of the Properties, and any claims of
third parties for loss or damage due to such Hazardous Materials.
6. REMEDIAL WORK. In the event any investigation or monitoring of
site conditions or any clean-up, containment, restoration, removal or other
remedial work ("Remedial Work") is required (a) under any Environmental
Law, (b) by any judicial, arbitral or administrative order, (c) in order to
comply with any agreements affecting any of the Properties, or (d) to
maintain any of the Properties in a standard of environmental condition
which prevents the release or generation of any Hazardous Materials except
for Permitted Hazardous Substances, Indemnitor shall perform or cause to be
performed such Remedial Work; provided, that Indemnitor may withhold
commencement of such Remedial Work pending resolution of any good faith
contest regarding the application, interpretation or validity of any law,
regulation, order or agreement, subject to the requirements of Section 7
below. All Remedial Work shall be conducted (i) in a diligent and timely
fashion by a licensed environmental engineer, (ii) pursuant to a detailed
written plan for the Remedial Work approved by any Governmental Agency with
a legal or contractual right to such approval, (iii) with such insurance
coverage pertaining to liabilities arising out of the Remedial Work as is
then customarily maintained with respect to such activities and (iv) only
following receipt of all required permits, licenses or approvals. In
addition, Indemnitor shall submit to the Banks promptly upon receipt or
preparation, copies of any and all reports, studies, analyses,
correspondence, governmental comments or approvals, proposed removal or
other Remedial Work contracts and similar information prepared or received
by Indemnitor in connection with any Remedial Work or Hazardous Materials
relating to any of the Properties. All costs and expenses of such Remedial
Work shall be paid by Indemnitor, including, without limitation, the
charges of the Remedial Work contractors and the consulting environmental
engineer, any taxes or penalties assessed in connection with the Remedial
Work and the Banks' reasonable fees and costs incurred in connection with
monitoring or review of such Remedial Work. In the event Indemnitor should
fail to commence or cause to be commenced such Remedial Work, in a timely
fashion, or fail diligently to prosecute to completion, such Remedial Work,
the Administrative Agent following consent of the Required Lenders
(following thirty (30) days written notice to Indemnitor) may, but shall
not be required to, cause such Remedial Work to be performed, and all costs
and expenses thereof, or incurred in connection therewith shall be Costs
within the meaning of Section 5 above. All such Costs shall be due and
payable to the Administrative Agent by Indemnitor upon thirty (30) days
after demand therefor, such payments to be disbursed by the Administrative
Agent in accordance with the Credit Agreement.
7. PERMITTED CONTESTS. Notwithstanding any provision of this
Agreement to the contrary, Indemnitor may contest by appropriate action any
Remedial Work requirement imposed by any Governmental Agency or similar
agency provided that (a) Indemnitor has given the Banks written notice that
Indemnitor is contesting or shall contest and Indemnitor does in fact
contest the application, interpretation or validity of the law, regulation,
order or agreement pertaining to the Remedial Work by appropriate legal or
administrative proceedings conducted in good faith and with due diligence
and dispatch, (b) such contest shall not subject any of the Indemnified
Parties nor any assignee of all or any portion of the Banks' interest in
the Loan nor any of the Properties to civil or criminal liability and does
not jeopardize any such party's lien upon or interest in any of the
Properties and (c) if the estimated cost of the Remedial Work is greater
than $1,000,000, Indemnitor shall give such security or assurances as may
be reasonably required by the Banks as determined pursuant to the Credit
Agreement to ensure ultimate compliance with all legal or contractual
requirements pertaining to the Remedial Work (and payment of all costs,
expenses, interest and penalties in connection therewith) and to prevent
any sale, forfeiture or loss by reason of nonpayment or non-compliance.
8. REPORTS AND CLAIMS. Indemnitor shall deliver to the Banks
copies of any reports, analyses, correspondence, notices, licenses,
approvals, orders or other written materials relating to the environmental
condition of any of the Properties promptly upon receipt, completion or
delivery thereof. Indemnitor shall give notice to the Banks of any claim,
action, administrative proceeding (including, without limitation, informal
proceedings) or other demand by any governmental agency or other third
party involving Costs or Remedial Action at the time such claim or other
demand first becomes known to Indemnitor. Receipt of any such notice shall
not be deemed to create any obligation on the Banks to defend or otherwise
respond to any claim or demand. All notices, approvals, consents, requests
and demands upon the respective parties hereto shall be in writing,
including telegraphic communication and delivered or teletransmitted to the
Administrative Agent, as set forth in the Credit Agreement and to each
Indemnitor, at the address set forth beneath such Indemnitor's signature or
in the Accession Agreement executed by such Indemnitor, or to such other
address as shall be designated by any Indemnitor or the Administrative
Agent in written notice to the other parties. All such notices and other
communications shall be effective when delivered or teletransmitted to the
above addresses.
9. BANKS AS OWNER. If for any reason, the Administrative Agent or
any of the Banks (or any successor or assign of such parties) becomes the
fee owner of any of the Properties and any claim, action, notice,
administrative proceeding (including, without limitation, informal
proceedings) or other demand is made by any governmental agency or other
third party which implicate Costs or Remedial Work, Indemnitor shall
cooperate with such party in any defense or other appropriate response to
any such claim or other demand; provided however that Indemnitor shall not
be so liable for any Costs arising because of the gross negligence or
willful misconduct of an Indemnified Party. Indemnitor's duty to cooperate
and right to participate in the defense or response to any such claim or
demand shall not be deemed to limit or otherwise modify Indemnitor's
obligations under this Agreement. Any party subject to a claim or other
proceeding referenced in the first sentence of this Section 9 shall give
notice to Indemnitor of any claim or demand governed by this Section 9 at
the time such claim or other demand first becomes known to such party.
10. SUBROGATION OF INDEMNITY RIGHTS. If Indemnitor fails to fully
perform its obligations under Sections 5 and 6 above, the Indemnified
Parties shall be subrogated to any rights or claims Indemnitor may have
against any present, future or former owners, tenants or other occupants or
users of any of the Properties, any portion thereof or any adjacent or
proximate properties, relating to the recovery of Costs or the performance
of Remedial Work.
11. ASSIGNMENT BY AGENTS AND BANKS. No consent by Indemnitor shall
be required for any assignment or reassignment of the rights of the
Administrative Agent, the Syndication Agent, the Documentation Agent or the
Banks under this Agreement to any successor of such party or a purchaser of
the Loan or any interest in or portion of the Loan including participation
interests in accordance with the terms of the Credit Agreement.
12. MERGER, CONSOLIDATION OR SALE OF ASSETS. In the event
Indemnitor is dissolved, liquidated or terminated or all or substantially
all the assets of Indemnitor are sold or otherwise transferred to one or
more persons or other entities, the surviving entity or transferee of
assets, as the case may be, (i) shall be formed and existing under the laws
of a state, (ii) shall deliver to the Banks an acknowledged instrument in
recordable form assuming all obligations, covenants and responsibilities of
Indemnitor under this Agreement.
13. INDEPENDENT OBLIGATIONS; SURVIVAL. The obligations of
Indemnitor under this Agreement shall survive the consummation of the Loan
transaction described above and the repayment of the Loan. The obligations
of Indemnitor under this Agreement are separate and distinct from the
obligations of Indemnitor under the Credit Documents. This Agreement may
be enforced by the Banks without regard to or affecting any rights and
remedies the Administrative Agent and/or the Banks may have against
Indemnitor under the Credit Documents and without regard to any limitations
on the Administrative Agent's or Banks' recourse for recovery of the Loan
as may be provided in the Credit Documents. Enforcement of this Agreement
is not and shall not be deemed to constitute an action for recovery of the
indebtedness of the Loan.
14. DEFAULT INTEREST. In addition to all other rights and remedies
of the Banks against Indemnitor as provided herein, or under applicable
law, Indemnitor shall pay to the Administrative Agent, immediately upon
demand therefor, Default Interest (as defined below) on any Costs and other
payments required to be paid by Indemnitor to the Banks under this
Agreement which are not paid within ten (10) days after demand therefor,
such payments to be disbursed by the Administrative Agent in accordance
with the Credit Agreement. Default Interest shall be paid by Indemnitor
from the date such payment becomes delinquent through and including the
date of payment of such delinquent sums. "Default Interest" shall mean a
per annum interest rate equal to three percent (3%) above the Adjusted Base
Rate or reference rate for the then current calendar month, as of the first
day of such calendar month, which is publicly announced from time to time
by the Administrative Agent.
15. CONTRIBUTION. As a result of the transactions contemplated by
the Credit Agreement, each of the Indemnitors will benefit, directly and
indirectly, from the Obligations and in consideration thereof desire to
enter into a contribution agreement among themselves as set forth in this
Section 15 to allocate such benefits among themselves and to provide a fair
and equitable arrangement to make contributions in the event any payment is
made by any Indemnitor hereunder to the Administrative Agent, the
Syndication Agent, the Documentation Agent or the Banks (such payment being
referred to herein as a "Contribution," and for purposes of this Agreement,
includes any exercise of recourse by the Administrative Agent against any
Property of a Contributor and application of proceeds of the sale of such
Property in satisfaction of such Indemnitor's obligations under this
Agreement). The Indemnitors hereby agree as follows:
15.1. CALCULATION OF CONTRIBUTION. In order to provide for
just and equitable contribution among the Indemnitors in the event any
Contribution is made by an Indemnitor (a "Funding Indemnitor"), such
Funding Indemnitor shall be entitled to a contribution from certain other
Indemnitors for all payments, damages and expenses incurred by that Funding
Indemnitor in discharging any of the obligations under this Agreement (the
"Obligations"), in the manner and to the extent set forth in this Section.
The amount of any Contribution under this Agreement shall be equal to the
payment made by the Funding Indemnitor to the Administrative Agent or any
other beneficiary pursuant to this Agreement and shall be determined as of
the date on which such payment is made.
15.2. BENEFIT AMOUNT DEFINED. For purposes of this Agreement,
the "Benefit Amount" of any Indemnitor as of any date of determination
shall be the net value of the benefits to such Indemnitor and all of its
Subsidiaries (including any Subsidiaries which may be Indemnitors) from
extensions of credit made by the Banks to the Borrower under the Credit
Agreement; provided, that in determining the contribution liability of any
Indemnitor which is a Subsidiary to its direct or indirect parent
corporation or of any Indemnitor to its direct or indirect Subsidiary, the
Benefit Amount of such Subsidiary and its Subsidiaries, if any, shall be
subtracted in determining the Benefit Amount of the parent corporation.
Such benefits shall include benefits of funds constituting proceeds of
Advances made to the Borrower by the Banks which are in turn advanced or
contributed by the Borrower to such Indemnitor or its Subsidiaries and
benefits of Letters of Credit issued pursuant to the Credit Agreement on
behalf of, or the proceeds of which are advanced or contributed or
otherwise benefit, directly or indirectly, such Indemnitor and its
Subsidiaries (collectively, the "Benefits"). In the case of any proceeds
of Advances or Benefits advanced or contributed to a Person (an "Owned
Entity") any of the equity interests of which are owned directly or
indirectly by an Indemnitor, the Benefit Amount of an Indemnitor with
respect thereto shall be that portion of the net value of the benefits
attributable to Advances or Benefits equal to the direct or indirect
percentage ownership of such Indemnitor in its Owned Entity.
15.3. CONTRIBUTION OBLIGATION. Each Indemnitor shall be liable
to a Funding Indemnitor in an amount equal to the greater of (A) the (i)
ratio of the Benefit Amount of such Indemnitor to the total amount of
Obligations, multiplied by (ii) the amount of Obligations paid by such
Funding Indemnitor and (B) 95% of the excess of the fair saleable value of
the property of such Indemnitor over the total liabilities of such
Indemnitor (including the maximum amount reasonably expected to become due
in respect of contingent liabilities) determined as of the date on which
the payment made by a Funding Indemnitor is deemed made for purposes of
this Agreement (giving effect to all payments made by other Funding
Indemnitors as of such date in a manner to maximize the amount of such
contributions).
15.4. ALLOCATION. In the event that at any time there exists
more than one Funding Indemnitor with respect to any Contribution (in any
such case, the "Applicable Contribution"), then payment from other
Indemnitors pursuant to this Agreement shall be allocated among such
Funding Indemnitors in proportion to the total amount of the Contribution
made for or on account of the Borrower by each such Funding Indemnitor
pursuant to the Applicable Contribution. In the event that at any time any
Indemnitor pays an amount under this Agreement in excess of the amount
calculated pursuant to clause (A) of Subsection 15.3 above, that Indemnitor
shall be deemed to be a Funding Indemnitor to the extent of such excess and
shall be entitled to contribution from the other Indemnitors in accordance
with the provisions of this Section.
15.5. SUBSIDIARY PAYMENT. The amount of contribution payable
under this Section by any Indemnitor shall be reduced by the amount of any
contribution paid hereunder by a Subsidiary of such Indemnitor.
15.6. EQUITABLE ALLOCATION. If as a result of any
reorganization, recapitalization, or other corporate change in the Borrower
or any of its Subsidiaries, or as a result of any amendment, waiver or
modification of the terms and conditions of other Sections of this
Agreement or the Obligations, or for any other reason, the contributions
under this Section become inequitable as among the Indemnitors, the
Indemnitors shall promptly modify and amend this Section to provide for an
equitable allocation of contributions. Any of the foregoing modifications
and amendments shall be in writing and signed by all Indemnitors.
15.7. ASSET OF PARTY TO WHICH CONTRIBUTION IS OWING. The
Indemnitors acknowledge that the right to contribution hereunder shall
constitute an asset in favor of the Indemnitor to which such contribution
is owing.
15.8. SUBORDINATION. No payments payable by an Indemnitor
pursuant to the terms of this Section 15 shall be paid until all amounts
then due and payable by the Borrower to the Administrative Agent, the
Syndication Agent, the Documentation Agent, or any Bank, pursuant to the
terms of the Credit Documents, are paid in full in cash. Nothing contained
in this Section 15 shall affect the obligations of any Indemnitor to the
Administrative Agent, the Syndication Agent, the Documentation Agent, or
any Bank under the Credit Agreement or any other Credit Documents.
16. MISCELLANEOUS. If there shall be more than one Indemnitor
hereunder, or pursuant to any other indemnification of Banks relating to
Hazardous Materials arising out of or in connection with the Loan ("Other
Indemnitor"), each Indemnitor and Other Indemnitor agrees that (a) the
obligations of the Indemnitor hereunder, and each Other Indemnitor, are
joint and several, (b) a release of any one or more Indemnitors or Other
Indemnitors or any limitation of this Agreement in favor of or for the
benefit of one or more Indemnitors or Other Indemnitors shall not in any
way be deemed a release of or limitation in favor of or for the benefit of
any other Indemnitor or Other Indemnitor and (c) a separate action
hereunder may be brought and prosecuted against any or all Indemnitors or
Other Indemnitors. If any term of this Agreement or any application
thereof shall be invalid, illegal or unenforceable, the remainder of this
Agreement and any other application of such term shall not be affected
thereby. No delay or omission in exercising any right hereunder shall
operate as a waiver of such right or any other right. This Agreement shall
be binding upon, inure to the benefit of and be enforceable by Indemnitor
and the Banks, and their respective successors and assigns, including
(without limitation) any assignee or purchaser of all or any portion of the
Banks' interest in (i) the Loan, (ii) the Credit Documents, or (iii) any of
the Properties.
17. GOVERNING LAW. ANY DISPUTE BETWEEN THE INDEMNITOR, ANY AGENT,
ANY BANK, OR ANY INDEMNITEE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH,
THIS AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS, AND WHETHER ARISING IN
CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH
THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF
LAWS PROVISIONS) OF THE STATE OF NEW YORK.
18. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B),
EACH OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE
OTHER CREDIT DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR
OTHERWISE, SHALL BE RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED
IN NEW YORK, NEW YORK, BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS
FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW
YORK, NEW YORK. EACH OF THE PARTIES HERETO WAIVES IN ALL DISPUTES BROUGHT
PURSUANT TO THIS SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. THE INDEMNITOR AGREES THAT ANY AGENT, ANY
BANK OR ANY INDEMNITEE SHALL HAVE THE RIGHT TO PROCEED AGAINST THE
INDEMNITOR OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON
TO (1) OBTAIN PERSONAL JURISDICTION OVER THE INDEMNITOR OR (2) ENFORCE A
JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. THE
INDEMNITOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN
ANY PROCEEDING BROUGHT BY SUCH PERSON TO ENFORCE A JUDGMENT OR OTHER COURT
ORDER IN FAVOR OF SUCH PERSON. THE INDEMNITOR WAIVES ANY OBJECTION THAT IT
MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A
PROCEEDING DESCRIBED IN THIS SUBSECTION (B).
(C) SERVICE OF PROCESS. THE INDEMNITOR WAIVES PERSONAL SERVICE OF
ANY PROCESS UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF
ANY WRITS, PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE
MAILING THEREOF BY ANY AGENT OR THE BANKS BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE INDEMNITOR ADDRESSED AS PROVIDED HEREIN. NOTHING
HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF ANY AGENT OR THE
BANKS TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW. THE INDEMNITOR IRREVOCABLY WAIVES ANY
OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH
ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED
WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM
IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE
PARTIES HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY
PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT
WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(E) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH
OTHER PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY,
THE PROVISIONS OF THIS SECTION 18, WITH ITS COUNSEL.
19. AMENDMENTS/ACCESSION AGREEMENT. No waiver of any provision of
this Agreement nor consent to any departure by any Indemnitor therefrom
shall be effective unless the same shall be in writing and signed by the
Administrative Agent and the Required Lenders, and no amendment of this
Agreement shall be effective unless the same shall be in writing and signed
by the Administrative Agent, with the consent of the Required Lenders;
PROVIDED that any amendment or waiver releasing any Indemnitor from any
liability hereunder shall be signed by all the Banks; and PROVIDED FURTHER
that any waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. Notwithstanding the
foregoing, in the event that any Subsidiary or Affiliate of the Borrower
hereafter is required in accordance with the terms of the Credit Agreement
or otherwise agrees to become an Indemnitor under this Agreement, then such
Subsidiary or Affiliate may become a party to this Agreement by executing
an Accession Agreement ("Accession Agreement") in the form attached hereto
as ANNEX 1, and each Indemnitor and the Administrative Agent hereby agrees
that upon such Subsidiary's or Affiliate's execution of such Accession
Agreement, this Agreement shall be deemed to have been amended to make such
Person an Indemnitor hereunder for all purposes and a party hereto and no
signature is required on behalf of the other Indemnitors or the
Administrative Agent to make such an amendment to this Agreement effective.
[INTENTIONALLY BLANK]
IN WITNESS WHEREOF, Indemnitor has caused this Agreement to be
executed as of the day and year first written above.
INDEMNITORS:
LASALLE HOTEL OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: LASALLE HOTEL PROPERTIES, a Maryland
real estate investment trust,
its general partner
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
Address: 0000 Xxxxxxxxxx Xxxx, Xxxxx X00
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxx
SIGNATURE PAGE OF ENVIRONMENTAL INDEMNIFICATION AGREEMENT
LASALLE HOTEL PROPERTIES,
a Maryland real estate investment trust
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
Address: 0000 Xxxxxxxxxx Xxxx, Xxxxx X00
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxx
LHO MISSION BAY HOTEL, L.P.,
a California limited partnership
By: LaSalle Hotel Operating Partnership, L.P.,
a Delaware limited partnership,
its general partner
By: LaSalle Hotel Properties,
its general partner
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
Address: 0000 Xxxxxxxxxx Xxxx, Xxxxx X00
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxx
Signature Page of Environmental Indemnification Agreement
ANNEX 1
to Environmental Indemnification Agreement
ACCESSION AGREEMENT
_______________________ [NAME OF ENTITY], a [limited partnership/corpora-
tion] (the "Company"), hereby agrees with (i) SOCIETE GENERALE, SOUTHWEST
AGENCY, as Joint Book Runner and Administrative Agent (the "Administrative
Agent") under the Second Amended and Restated Senior Unsecured Credit
Agreement dated as of __________, 2000 (the "Credit Agreement") among
LASALLE HOTEL OPERATING PARTNERSHIP, L.P., a Delaware limited partnership,
as the Borrower, the Administrative Agent, BANK OF MONTREAL, CHICAGO BRANCH
as Syndication Agent, DEUTSCHE BANC ALEX. XXXXX, as Joint Book Runner and
Documentation Agent, and the Banks; (ii) the parties to the Environmental
Indemnity and Agreement (the "Environmental Indemnity") dated as of
__________, 2000 executed in connection with the Credit Agreement, (iii)
the parties to the Guaranty and Contribution Agreement (the "Guaranty")
dated as of __________, 2000 executed in connection with the Credit
Agreement, as follows:
The Company hereby agrees and confirms that, as of the date hereof,
it (a) intends to be a party to the Environmental Indemnity and the
Guaranty and undertakes to perform all the obligations expressed therein,
respectively, of an Indemnitor and a Guarantor (as defined in the
Environmental Indemnity and the Guaranty, respectively), (b) agrees to be
bound by all of the provisions of the Environmental Indemnity and the
Guaranty as if it had been an original party to such agreements, (c)
confirms that the representations and warranties set forth in the
Environmental Indemnity and the Guaranty, respectively, with respect to the
Company, a party thereto, are true and correct in all material respects as
of the date of this Accession Agreement and (d) has received and reviewed
copies of each of the Environmental Indemnity and the Guaranty.
For purposes of notices under the Environmental Indemnity and the
Guaranty the address for the Company is as follows:
Attention:
------------------------------
Telephone:
------------------------------
Telecopy:
------------------------------
This Accession Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF this Accession Agreement was executed and
delivered as of the ___ day of ___________________, 20___.
[NAME OF ENTITY]
----------------------------------------
By:
----------------------------------
Title:
----------------------------------
