EXHIBIT 10.13
[FORM OF]
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT ("Agreement"), dated as of ______ __, 1998, by and
between LASALLE HOTEL PROPERTIES, a Maryland real estate investment trust (the
"Company"), and LASALLE HOTEL ADVISORS, INC., a Maryland corporation (the
"Advisor").
WHEREAS, the Company through its interest in LaSalle Hotel Operating
Partnership, L.P. (the "Operating Partnership") is in the business of acquiring,
developing, managing, owning and disposing of hotels (the "Hotels") and leasing
the Hotels to qualified lessees (the "Lessees") pursuant to participating leases
(the "Leases") (for purposes hereof unless the context otherwise requires, the
term "Company" shall include the Company and the Operating Partnership); and
WHEREAS, the Company intends to qualify as a Real Estate Investment Trust
(a "REIT") under the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, the Company desires to retain the services of the Advisor with
respect to the acquisition, leasing, investment management, financing, ownership
and disposition of the Hotels, and to provide certain services to the Company in
connection with such Hotels and Leases on the terms set forth herein and
consistent with the Company's initial and continued qualification and operation
in accordance with all requirements applicable to a REIT; and
WHEREAS, the Advisor is willing to provide such services to the Company on
the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants set forth in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. APPOINTMENT OF ADVISOR. The Company hereby retains the Advisor on the
terms hereinafter set forth, and the Advisor hereby accepts such appointment.
2. DUTIES OF ADVISOR. The Advisor shall perform the following activities
consistent with the Company's stated policy of maximizing current returns to
shareholders through increases in cash available for distribution and to
increase long term total returns to shareholders through appreciation in the
value of its common shares, subject to the direction and supervision of the
Company's Board of Trustees:
(i) identify, negotiate, review and analyze a continuing and
suitable investment program of Hotel acquisitions and developments,
consistent with the investment policies and objectives of the Company
and consistent with the Company's Declaration of Trust;
(ii) cause the Company to perform its responsibilities and
enforce its rights under the Leases so as to increase lease income and
enhance the Hotels' values;
(iii) identify Hotels for sale consistent with the
Company's investment objectives and prevailing economic conditions and
retain investment banks, brokers or other intermediaries to market for
sale such Hotels;
(iv) advise the Company in connection with its financing
strategy including assisting the Company in the negotiation of any
borrowings which the Company may seek to incur;
(v) maintain or cause to be maintained, on behalf of the
Company, such books and records of account concerning the Company, the
Operating Partnership and the Hotels as are necessary for the proper
management and control of the assets of the Company, in accordance
with generally accepted accounting practices;
(vi) take all actions necessary to enable the Company to
comply with and abide by in all material respects all applicable laws
and regulations;
(vii) administer the day-to-day operations and perform
all necessary and reasonable administrative and "back office"
functions with respect to the Company, the Operating Partnership, the
Hotels and the Leases, including, but not limited to, collecting
rents, paying debts, depositing funds and investing funds in a manner
consistent with the Company's policies;
(viii) assist the Company in preparing reports to, and
meeting materials for, the Company and its shareholders;
(ix) prepare and deliver to the Company quarterly financial
statements within forty-five (45) days of the end of each fiscal
quarter, year end financial statements within ninety (90) days of the
end of the Company's fiscal year and such schedules, reports summaries
and other information regarding the Company's portfolio as may be
requested by the Company from time to time;
(x) oversee investment due diligence and provide research
and economic and statistical data to support the Company's investment
program and strategies;
(xi) retain and oversee third parties hired to conduct and
provide services to the Company such as development management,
project management, design, construction, investment banking services,
property disposition brokerage services, legal, independent accounting
and auditing services (including, without limitation, such reports and
returns as may be required by any governmental authority in connection
with the ordinary conduct of the Company's business, such as the
Securities and Exchange Commission and the Internal Revenue Service,
and any state and local securities commissions and
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taxing authorities) and providing tax reviews and advice, feasibility
studies or appraisals, engineering, or environmental property
inspections and consulting services. Such services may be provided by
Affiliates of the Advisor (as defined below) provided such Affiliates
charge the Company no more than the fair market value for such
services and such services are approved by a majority of the Company's
Board of Trustees, including, a majority of the Independent Trustees;
it being understood that certain Affiliates of the Advisor will
provide certain "back office" services such as accounting, human
resources, and review of external consultant reports, as part of the
services to be performed by the Advisor, without additional charge to
the Company. For purposes of this Agreement, "Independent Trustee"
shall mean a trustee who, on the date at issue, is currently serving
on the Board of Trustees and is "independent" as determined by
application of the rules and regulations of the New York Stock
Exchange. For purposes of this Agreement, "Affiliate" means any
company or other entity owned or controlled, directly or indirectly,
by LaSalle Partners Incorporated;
(xii) manage the Company's short-term investments,
including the acquisition and sale of money market instruments in
accordance with the Company's policies; and
(xiii) take such other actions and render such other
services as may reasonably be requested by the Company consistent with
the purpose of this Agreement.
3. ADVISOR'S RESOURCES. The Advisor shall, at its expense, maintain such
office space, facilities, equipment and personnel trained and experienced in the
business of acquisitions, financing, investment management and hotel leasing
sufficient to enable the Advisor to fulfill its obligations under this Agreement
and shall provide, at its expense, administrative personnel as necessary to
provide the services herein. The Advisor shall utilize its Affiliates or
unrelated third parties as necessary to supplement such resources performing the
services required by this Agreement.
4. PAYMENT OF EXPENSES. Except as set forth below, in consideration of
the compensation provided under paragraph 5, the Advisor shall bear all expenses
attributable to the management services to be provided by the Advisor to the
Company hereunder including providing the resources required by paragraph 3
above, without separate reimbursement from the Company. The Advisor, however,
shall be reimbursed by the Company for any amounts the Advisor expends to pay
fees and expenses of third parties providing services to the Company set forth
in paragraph 2(xi) above (including Affiliates providing services in accordance
with 2(xi) above), all other costs and expenses of third parties relating to the
Company's operations, including costs and expenses of acquiring, owning,
protecting, insuring, maintaining and disposing of the Company's investments,
cost and expenses connected with dividends, interest or other distributions,
transfer agents and registrar fees, costs and expenses associated with investor
relations, costs and expenses associated with the continuous reporting and other
requirements of governmental bodies or agencies, including dissemination of
materials to shareholders, or such other costs and expenses as approved by a
majority of the Company's Board of Trustees, including a majority of the
Company's Independent Trustees.
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5. COMPENSATION.
(a) The Operating Partnership shall pay to the Advisor in cash a base fee
(the "Base Fee"), at the following percentages of annual Net Operating Income as
defined below ("NOI"):
Incremental NOI of Company Base Fee %
------------------------------------------ -----------------------------------------
From up to but excluding
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0 $100,000,000 5.0%
$100,000,000 $225,000,000 an additional 4.8% on such increment
$225,000,000 $350,000,000 an additional 4.6% on such increment
$350,000,000 $475,000,000 an additional 4.4% on such increment
$475,000,000 $600,000,000 an additional 4.2% on such increment
$600,000,000 and any excess an additional 4.0% on such increment
For purposes of this Agreement, NOI for any period shall mean total revenues
(excluding gains or losses from the sale of Company assets, or any refinancings
thereof) applicable to such period, less the operating expenses applicable to
such period (excluding advisory fees payable hereunder to the Advisor, and
excluding amounts attributable to depreciation and amortization, or reserves for
bad debts or other similar non-cash items or reserves) after adjustment for
unconsolidated partnerships and joint ventures and before adjustment for
minority interest in the Operating Partnership.
The Base Fee shall be payable quarterly on an estimated basis, in arrears
within 45 days of the end of each fiscal quarter. Within ten days after the
Company has received its audited financial statements for the prior year, the
Company shall make a final determination of the Base Fee for such prior year,
and the Operating Partnership shall pay any deficiency or deduct any over-
payment made to the Advisor for such year from the next payment or payments due
to the Advisor pursuant to this Agreement.
(b)(i) For the calendar year ending December 31, 1998, the Operating
Partnership shall pay the Advisor in arrears an incentive fee (the "1998
Incentive Fee") in an amount equal to 25% of the product of (A) the amount by
which the "FFO per Share Amount" (as defined below), calculated on a pro forma
basis as if the IPO had occurred on January 1, 1998, exceeds a growth rate of 7%
per annum of the FFO per Share Amount for the calendar year ended December 31,
1997, calculated on a pro forma basis as if the IPO had occurred on January 1,
1997 and (B) the Shares Outstanding (as defined below) for the calendar year
ending December 31, 1998. The 1998 Incentive Fee calculation shall be pro rated
based upon the number of days remaining in calendar 1998 from the date of the
IPO.
(ii) For the calendar year ending December 31, 1999, the Operating
Partnership shall pay the Advisor in arrears an incentive fee (the "1999
Incentive Fee") in an amount equal to 25% of the product of (A) the amount by
which the FFO per Share Amount, for calendar year 1999 exceeds a growth
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rate of 7% per annum by the FFO per Share Amount for the calendar year ended
December 31, 1998, calculated on a pro forma basis as if the IPO had occurred on
January 1, 1998 and (B) the Shares Outstanding for the calendar year ending
December 31, 1999.
(iii) Thereafter, the Operating Partnership shall pay to the Advisor
annually in arrears an incentive fee (the "the Incentive Fee") in an amount
equal to 25% of the product of (A) the amount by which the FFO per Share Amount
for the calendar year then ended (the "Measurement Year") exceeds a growth rate
of 7% per annum of the FFO per Share Amount for the prior calendar year and (B)
the Shares Outstanding for the Measurement Year. The Incentive Fee shall be
deemed to have been earned as of the end of the Management Year and shall be
paid as set forth below upon determination of the FFO per share for the
Management Year. For fees payable for any year in which fees are not payable for
the entire calendar year, the fees shall be calculated as if this Agreement had
been in effect for the entire year, but shall be pro rated and payable for only
that portion of the year this Agreement was in effect.
For purposes of this Agreement, "Funds from Operations" shall mean the
Company's net income (loss) (computed in accordance with generally accepted
accounting principles ("GAAP")), excluding gains (or losses) from debt
restructuring and sales of property, plus real estate related depreciation and
amortization and after adjustments for unconsolidated partnerships and joint
ventures. Adjustments for unconsolidated partnerships and joint ventures will
be calculated to reflect Funds from Operations on the same basis.
"FFO per Share Amount" means an amount equal to the Funds from Operations
divided by the Shares Outstanding.
"Shares Outstanding" means, for purposes of calculating the FFO per Share
Amount, the weighted average number of shares of beneficial interests of the
Company (the "Shares") outstanding (as determined by GAAP), including any
beneficial interests in the Operating Partnership (the "Units"), for the period
such calculation is made; provided, however, that appropriate equitable
adjustments shall be made when calculating the FFO per Share Amount in the event
of any extraordinary transactions such as stock splits, stock dividends, etc.
Payment of the Incentive Fee shall be made by the Operating Partnership, at
the option of the Advisor, in Shares or Units (with one Unit convertible into
one Share) unless and to the extent, receipt of Shares would adversely affect
the Company's status as a REIT, in which such event the Advisor shall receive
Units. The number of Shares or Units shall be the nearest whole number of Shares
or Units, as the case may be, obtained by dividing the Incentive Fee by the
average closing price of the Shares on the New York Stock Exchange (or such
other exchange or national market system on which the Shares are then traded)
for the Measurement Year. Any such Shares or Units shall not be transferable,
other than to Affiliates of the Advisor, except by operation of law for a period
of one year from the date of issuance.
(c) Notwithstanding anything herein to the contrary, for the year ending
December 31, 1998 the sum of the Base Fee and the 1998 Incentive Fee shall not
exceed 6% of the Company's pro forma NOI for the calendar year 1998 with such
calculation pro rated as if the calendar year 1998 began on the date of the IPO.
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(d) The Company shall purchase Officers and Trustees (or Directors)
insurance in reasonably acceptable and customary levels for the Officers and
Trustees of the Company and Officers and Directors of the Advisor. Such policy
shall constitute primary coverage for the individuals covered thereby for their
activities relating to the Company and the Advisor.
(e) Nothing in this Agreement shall preclude or restrict the Company from
the direct acquisition of Hotels or the negotiation and execution of Leases
without the assistance of the Advisor.
6. REIT STATUS. Notwithstanding anything in this Agreement to the
contrary, the Advisor shall not take any action which would (a) adversely affect
the status of the Company as a REIT, (b) subject the Company to regulation under
the Investment Company Act of 1940, as amended or (c) violate any law, rule,
regulation or policy of any governmental body or agency having jurisdiction over
the Company or otherwise prohibited by the Company's Declaration of Trust, its
Bylaws or resolutions of the Board of Trustees all as in effect from time to
time. In the event the Company authorizes or directs the Advisor to take any
actions which, in the judgment of the Advisor would violate any of the
foregoing, the Advisor shall so advise the Company in writing specifying the
basis for its position and shall take no further action with respect to such
matters unless and until it receives clarification and instructions from the
Board of Trustees.
7. LIMITATION OF LIABILITY AND INDEMNIFICATION OF ADVISOR.
7.1 Limitation on Liability.
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The Advisor shall have no responsibility other than to render the services
and take the actions described herein in good faith and with the exercise of due
care and shall not be responsible for any action of the Board of Trustees in
following or declining to follow any advice or recommendation of the Advisor.
The Advisor, except by reason of its own gross negligence, bad faith or willful
misconduct, shall not be liable for any action taken, omitted or suffered to be
taken by it in good faith and believed by it to be authorized or within its
discretion or rights or powers conferred upon it by this Agreement or in
reliance upon the written opinion of counsel of recognized expertise.
7.2 Indemnification.
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(a) The Company shall reimburse, indemnify and hold harmless the Advisor
and its partners, directors, officers, stockholders, agents and employees and
each other person or entity, if any, controlling the Advisor (an "Indemnified
Party"), to the full extent lawful, from and against any and all losses, claims,
damages or liabilities of any nature whatsoever with respect to or arising from
any acts or omission of the Advisor (including ordinary negligence) in its
capacity as such, except with respect to losses, claims, damages or liabilities
with respect to or arising out of the Advisor's gross negligence, bad faith or
willful misconduct.
Notwithstanding the indemnification provisions in Section 7.2(a) above,
indemnification will not be allowed for any liability imposed by judgment, and
costs associated therewith, including attorneys' fees, arising from or out of a
violation of state or federal securities laws associated with the offer and sale
of Company shares. Indemnification will be allowed for settlements and related
expenses of lawsuits alleging securities law violations, and for expenses
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incurred in successfully defending such lawsuits, provided that a court either
(i) approves the settlement and finds that indemnification of the settlement and
related costs should be made; or (ii) approves indemnification of litigation
costs if a successful defense is made. If indemnification is unavailable as a
result of this Section 7.2(a), the Company shall contribute to the aggregate
losses, claims, damages or liabilities to which the Advisor or its partners,
officers, directors, agents, employees or controlling persons may be subject in
such amount as is appropriate to reflect the relative benefits received by each
of the Company and the party seeking contribution on the one hand and the
relative faults of the Company and party seeking contribution on the other, as
well as any other relevant equitable considerations.
(b) Promptly after receipt by an Indemnified Party of notice of the
commencement of any action, such Indemnified Party shall, if a claim in respect
thereof is to be made against the Company, notify the Company in writing of the
commencement thereof; but the omission to so notify the Company shall not
relieve it from any liability that it may have to any Indemnified Party pursuant
to this Section 7.2. In case any such action shall be brought against an
Indemnified Party and it shall notify the Company of the commencement thereof,
the Company shall be entitled to participate therein and, to the extent that it
shall wish, to assume the defense thereof, with counsel satisfactory to such
Indemnified Party and, after notice from the Company to such Indemnified Party
of its election to assume the defense thereof, the Company shall not be liable
to such Indemnified Party under Section 7.2(a) hereof for any legal expenses of
other counsel or any of the expenses, in each case subsequently incurred by such
Indemnified Party, unless (i) the Company and the Indemnified Party shall have
mutually agreed to the retention of such counsel or, (ii) the named parties to
any such proceeding (including any impleaded parties) include both the Company
and Indemnified Party and representation of both parties by the same counsel
would be inappropriate in the reasonable opinion of the Indemnified Party, due
to actual or potential differing interests between them.
The obligations of the Company under this Section 7.2 shall be in addition
to any liability which the Company otherwise may have.
8. BOOKS AND RECORDS. All books and records compiled by the Advisor in
the course of discharging its responsibilities under this Agreement shall be the
property of the Company and shall be delivered by the Advisor to the Company
immediately upon any termination of this Agreement and regardless of the grounds
for such termination (including, but not limited to, a breach by the Company of
this Agreement); provided, however, that the Advisor shall have reasonable
access to such books and records to the extent reasonably necessary in
connection with the conduct of its services hereunder. The Advisor shall not
maintain or assert any lien against or upon any of the books and records and all
such books and records concerning the Hotels and/or the Leases. If requested by
the Company, the Advisor shall maintain records including, but not limited to
(a) pro-rated costs (including salaries, commissions, bonuses and benefits) of
personnel employed by the Advisor and who are involved in the acquisition, and
administrative process related to the acquisitions of Hotels which are
identified by the Advisor and acquired by the Company during the term of this
Agreement (the "Acquisition Process"); (b) all costs of fees, taxes and
assessments applicable to the Acquisition Process; (c) travel, lodging and
entertainment expenses related to the Acquisition Process and (d) other general
and administrative expenses, including expenses for administrative personnel
relating to the Acquisition Process;
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9. TERM AND TERMINATION.
(a) This Agreement shall become effective upon the successful completion of
the Company's IPO and shall continue through December 31, 1999 and shall be
automatically extended for successive one year terms thereafter without further
action by either the Company or the Advisor unless earlier terminated, as
provided herein. This Agreement shall be automatically renewed for additional
one (1) year terms unless either party gives written notice to the other party
of termination 180 days prior to the expiration of the then current term.
(b) The Company also may, at any time, terminate this Agreement:
(i) immediately upon providing written notice to the Advisor if the
Advisor is determined by unanimous vote of all Independent Trustees of
the Company, taken after at least fourteen (14) days prior written
notice to the Advisor of such vote, to have committed an act of actual
fraud, willful malfeasance, or gross negligence relating to its duties
and responsibilities under this Agreement or a material breach by the
Advisor of its obligations under this Agreement which is not remedied
in a reasonable period of time after receipt of written notice from
the Independent Trustees specifying such breach ;
(ii) upon written notice effective immediately, given not earlier than
thirty (30) days after the Advisor shall (A) authorize or agree to the
commencement of a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency, receivership or other
similar law now or hereafter in effect or the appointment of a
trustee, receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, (B) make a general
assignment for the benefit of its creditors, or (C) have an
involuntary or other proceeding commenced against it seeking
liquidation, reorganization or other relief with respect to it or its
debts under any bankruptcy, insolvency or other similar law now or
thereafter in effect, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period exceeding sixty
(60) days.
(c) Upon any termination of this Agreement by the Company, the Advisor
shall, upon the Company's request, cooperate with and assist the Company in
finding a new entity to act as advisor to the Company and in assisting the
Company with the transition process.
10. NOTICES. Any notices, instructions or other communications required
or contemplated by this Agreement shall be deemed to have been properly given
and to be effective upon delivery if delivered in person or sent by telecopier
or upon receipt if sent by courier service.
All such communications to the Company shall be addressed as follows:
LaSalle Hotel Properties
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
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Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
All such communications to the Advisor shall be addressed as follows:
LaSalle Hotel Advisors, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to:
▇▇▇▇▇ & Associates
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
and;
LaSalle Partners Incorporated
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Either party hereto may designate a different address by written notice to
the other party delivered in accordance with this Section 11.
11. DELEGATION OF RESPONSIBILITIES. Notwithstanding anything contained
herein to the contrary, the Advisor may delegate any and all of its
responsibilities and obligations under this Agreement to its Affiliates. Any
delegation of responsibilities by the Advisor shall not be inconsistent with any
express instructions of the Board of Trustees; shall not cause the Company to
incur any financial responsibility to the delegee except to the extent
specifically permitted under Paragraph 4 and shall not relieve the Advisor of
its obligations to the Company with respect to the responsibilities delegated
and with respect to which delegated responsibilities the Advisor shall remain
liable to the Company.
12. NONCOMPETE AGREEMENT. The Advisor and its Affiliates shall not invest
directly or indirectly or on behalf of others in any hotel properties in the
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United States (the "Competitive Hotels"), other than through the Company except
for the excluded properties set forth in Exhibit A hereto and except for hotels
constituting part of a mixed-use property where less than 40% of the property's
NOI is attributable to the hotel. Notwithstanding the foregoing, no Affiliate
shall be restricted from acquiring interests directly or indirectly, in
Competitive Hotels or providing asset management services with respect to
Competitive Hotels to the extent that such Affiliate (i) is a Registered
Investment Advisor under the Investment Advisors Act of 1940 and makes such
acquisition or gives such advice in the ordinary course of management activities
for securities investments, (ii) acquires a company or other entity which owns
or provides asset management services with respect to Competitive Hotels,
provided (a) it is not a material activity of such company or entity, (b) such
company or entity does not engage in activities relating to additional
Competitive Hotels, after such acquisition, and (c) the Advisor maintains a
"Chinese wall" between employees of the Advisor and those of such company or
entity with respect to such activities, or (iii) invests in debt or debt
securities, including debt or debt securities which have equity components, to
the extent the intention of such Affiliate at the time such investment was made
was not to exercise its rights to directly hold such equity or (iv) is engaged
in financing, disposition, consulting, development management or facility
related (e.g., accounting or engineering) services with respect to Competitive
Hotels. For purposes of this Agreement, "material" shall mean twenty percent
(20%) of the company's activities.
13. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ADVISOR. The Advisor
represents and warrants to, and covenants and agrees with, the Company as
follows:
(a) The Advisor, taking into account its own personnel and the
personnel available to it through its Affiliates, has access to personnel
trained and experienced in the business of acquisitions, leasing of hotels
asset management, financing, and the ownership and dispositions of hotels,
and such other areas as may be necessary and sufficient to enable the
Advisor to perform its obligations under this Agreement.
(b) The Advisor shall comply with all laws, rules, regulations
and ordinances applicable to the performance of its obligations under this
Agreement.
(c) Neither the Advisor nor any of its Affiliates is party to or
otherwise bound by or, during the term of this Agreement (including any
extension thereof), will become party to or otherwise bound by, any
agreement that would restrict or prevent (i) except as set forth on Exhibit
A attached hereto, the Advisor from performing any obligation contemplated
by this Agreement or (ii) the Company from operating its business as
proposed to be conducted, including, without limitation, acquiring any
Hotel in any geographic market in the United States or any foreign country.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflict of laws principals thereof.
15. ENTIRE AGREEMENT. This Agreement reflects the entire understanding of
the parties hereto with respect to the subject matter hereof and supersedes and
replaces all agreements between the Company and the Advisor with respect to the
subject matter hereof.
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16. RELATIONSHIP OF PARTIES. The parties intend that the Advisor shall
act as an independent contractor in performing services for the Company
hereunder. Nothing contained herein is intended to, or shall be construed to,
constitute the Advisor as a partner, joint venturer or agent of the Company.
17. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the parties to this Agreement and their respective
successors and permitted assigns, and no other person or entity shall acquire or
have any right under, or by virtue of, this Agreement. The Company shall be
entitled to assign this Agreement to any successor to all or substantially all
of its assets, rights and/or obligations; the Advisor shall have the right to
assign this Agreement to any Affiliate (as such term is defined in Section 12.)
18. AMENDMENT, MODIFICATIONS AND WAIVER. This Agreement hereto shall not
be altered or otherwise amended in any respect, except pursuant to an instrument
in writing signed by the parties hereto. The waiver by a party of a breach of
any provisions of this Agreement shall not operate or be construed as a waiver
of any subsequent breach.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, and all of which
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
LASALLE HOTEL PROPERTIES
By: ______________________________
Name:
Title:
LASALLE HOTEL
OPERATING PARTNERSHIP, L.P.
By: LASALLE HOTEL PROPERTIES
its general partner
By: ______________________________
Name:
Title:
LASALLE HOTEL ADVISORS, INC.
By: ______________________________
Name:
Title:
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Exhibit A
Project
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Hotel Nikko,
San Francisco, CA
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Orlando, FL
Greensboro Hilton Hotel,
Greensboro, NC
Holiday In on the Hill,
Washington, D.C.
The ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
San Antonio, TX
The Radisson Charlotte
Hotel, Charlotte, NC
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