8-K

TABLE OF CONTENTS

FORM 8-K
	BACKGROUND RELATED TO TAXABLE REIT SUBSIDIARY TRANSACTIONS.
ITEM 2. ACQUISITIONS OR DISPOSITIONS OF ASSETS
	BMC Transaction.
ITEM 5. OTHER EVENTS
	Meristar Transaction.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
SIGNATURES
Boykin Lodging Company Pro Forma Financial Information
Pro Forma Condensed Consolidated Statement of Income For the Nine Months Ended September 30, 2001
Pro Forma Condensed Consolidated Statement of Income For the Year Ended December 31, 2000
Notes to Pro Forma Condensed Consolidated Statements of Income
Exhibit 23.1 - Consent of Independent Auditors
Exhibit 99.1 - Company Press Release
Exhibit 99.2 - Master Contribution Agreement
Exhibit 99.3 - Form of Hotel Management Agreement
Exhibit 99.4 - Amend. to Shareholder Rights Agrmt
Exhibit 99.5 - Registration Rights Agreement
Exhibit 99.6 - 2nd Amend to Agrmt of Ltd Prtnershp

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities and Exchange Act of 1934

Date of Report:	January 1, 2002
	(Date of earliest event reported)

Boykin Lodging Company
(Exact Name of Registrant as Specified in its Charter)

Ohio	001-11975	34-1824586
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification Number)

Guildhall Building, Suite 1500, 45 W. Prospect Avenue, Cleveland, Ohio	44115
(Address of Principal Executive Offices)	(Zip Code)

(216) 430-1200
(Registrant’s telephone number, including area code)

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BACKGROUND RELATED TO TAXABLE REIT SUBSIDIARY TRANSACTIONS

The Work Incentives Improvement Act of 1999 (“REIT Modernization Act”) amended the tax laws to permit real estate investment trusts (“REIT”), like Boykin Lodging Company, to lease hotels to a subsidiary that qualifies as a taxable REIT subsidiary (“TRS”) as long as the TRS engages an independent hotel management company to operate those hotels under a management contract. Effective January 1, 2002, we implemented this structure for our properties we previously leased to Boykin Management Company Limited Liability Company (“BMC”) and Meristar Hotels and Resorts, Inc. (“Meristar”). We now have all but two of our 33 hotel properties under the TRS structure.

We believe that the new TRS structure will make us more profitable in the long run, will align the interests of our operators with ours, and will allow us to benefit from things like expense management initiatives which we could implement and monitor more closely. In addition, we believe that our flexibility has been significantly enhanced because the new management agreements with BMC and Meristar are terminable by us without penalty (i.e., upon a sale of the property), whereas the previous percentage leases provided for significant termination penalties.

We expect to record an approximate $15 million primarily non-cash charge to earnings for the quarter ended December 31, 2001 relating to the acquisition and termination of the percentage leases described below and the related transaction costs. We also expect that the transactions will reduce our earnings and Funds From Operations (“FFO”) per share for 2002, however, if the TRS benefits described above are realized, the transactions should result in increased earnings and FFO per share in the future.

ITEM 2. ACQUISITIONS OR DISPOSITIONS OF ASSETS

BMC Transaction.

Acquisition of Lessees:

Effective on January 1, 2002, our operating partnership Boykin Hotel Properties, L.P. (the “Partnership”), acquired 16 subsidiaries of BMC (the “Lessees”). We acquired these entities, whose primary assets are leasehold interests in 25 hotel properties we own and certain working capital assets and liabilities of those hotels, by issuing 1,427,142 limited partnership units of the Partnership, and assuming $1.6 million of working capital liabilities in excess of assets relating to Westboy LLC (“Westboy”), one of the Lessees. The Partnership then contributed the Lessees to Bellboy, Inc., a wholly owned subsidiary of the Partnership. Bellboy, Inc. has elected to be treated as a TRS.

BMC is owned by our Chairman and Chief Executive Officer, Robert W. Boykin (53.8%) and his brother, John E. Boykin (46.2%). Prior to the transaction, we owned 92.3% of the Partnership and BMC and its affiliates owned 7.3% of the Partnership. After the transaction, our ownership interest in the Partnership was reduced to 85.0% and the interests owned by BMC affiliates increased to 14.6%. All of our partners in the Partnership, including BMC and its affiliates, have the right to request that the Partnership buy their partnership interests by paying the market value of one of our common shares multiplied by the number of units they tender for

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redemption. At our election, we may substitute an equal number of our common shares instead of paying cash.

Management and Other Agreements with BMC:

Effective on January 1, 2002, we entered into new management agreements with BMC (the “BMC Management Agreements”) to operate 15 of the hotels we had previously leased to BMC. The BMC Management Agreements provide for BMC to be paid a base management fee of 3% of hotel revenues, as defined in the agreements, plus an incentive management fee of 13.5% of gross operating profit in excess of budget, as defined in the agreements, up to a maximum of an additional 1.125% of hotel revenues. The BMC Management Agreements have terms of three to nine years, but are cancelable by us without penalty upon 90 days notice.

We also entered into a development services agreement with BMC for one of the hotels we own and previously leased to BMC. Under the terms of this agreement, BMC will be paid a fee of 50% of the proceeds from the sale of the hotel in excess of our undepreciated cost of the hotel plus $39 million, up to a maximum fee of $3.5 million. As of September 30, 2001, a fee would be payable to BMC only for sales proceeds from the hotel in excess of approximately $66 million. The net book value of the hotel as of September 30, 2001, was $21.7 million, and it was recently appraised at $26.1 million.

As part of the transactions with BMC, we also amended our shareholder rights agreement dated as of May 25, 1999. Under this amendment, any of our shares that BMC or its affiliates acquire because of our right to issue common shares upon a tender of units described above would not count toward the 15% ownership threshold which triggers those shareholder rights. We also agreed in certain circumstances to register shares that BMC owns or acquires because of such a tender of units.

Hilton Management Agreement:

Westboy (one of the Lessees we acquired from BMC), leases ten Doubletree branded hotels from us. Westboy is party to an existing long-term management agreement with a subsidiary of Hilton Hotels Corporation (“Hilton”) to operate these hotels. This management agreement has a remaining term of ten years and Hilton has ten successive options to extend the term by five years each. Except with respect to the three Doubletree hotels located in the state of Washington, the agreement with Hilton may not be terminated without penalty. This management agreement provides for Hilton to be paid a base management fee of 3% of hotel revenues, as defined in the agreement, plus an incentive management fee (the “Hilton Incentive Fee”) of 15% to 25% of gross operating profit, as defined in the agreement.

The payment of the Hilton Incentive Fee is deferred to the extent certain cash flow levels defined in the agreement are not achieved. The total Hilton Incentive Fees deferred may not exceed $6 million. Therefore, any Hilton Incentive Fees that would otherwise have been deferred are instead eliminated after the Hilton Incentive Fee deferral has reached $6 million. The Hilton Incentive Fee payable by Westboy was $4.9 million and $3.0 million for the year ended December 31, 2000, and the nine months ended September 30, 2001, respectively, of which $2.4 million and $3.0 million respectively was deferred. At September 30, 2001, the deferred Hilton Incentive Fee payable by Westboy equaled the maximum $6 million. We do not expect Hilton to earn additional Hilton Incentive Fees for the fourth quarter of 2001 or for the year ending December 31, 2002, nor do we expect to pay any previously deferred Hilton Incentive Fees, as we expect that the defined cash flow levels will not be achieved in these periods.

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Evaluation of BMC Transactions by Our Board:

Because of our relationship with BMC and its owners, our Board of Directors established a special committee (the “Special Committee”), consisting only of independent directors, to evaluate and negotiate the transactions with BMC. In determining the amount of the consideration paid to BMC described above, the Special Committee considered, among other things, the profits we expect the Lessees and Westboy to earn, offset by the new management fees we expect to pay to BMC, and the income taxes we expect the TRS to pay. The Special Committee also took into account the benefits of expected operational efficiencies and the elimination of potential lease termination fees upon the sale of hotels. The Special Committee was advised by independent counsel and financial advisors, and received the opinion of Houlihan, Lokey, Howard & Zukin Financial Advisors, Inc. that the transactions with BMC are fair to us from a financial point of view. The Special Committee also received advice from the HVS International division of Hotel Appraisals LLC as to the prevailing terms and conditions of hotel management contracts.

ITEM 5. OTHER EVENTS

Meristar Transaction.

Termination / Assignment of Leases:

Effective on December 31, 2001, as the settlement of a dispute, we terminated percentage lease agreements with affiliates of Meristar for two hotel properties we own. These hotel properties were re-leased to subsidiaries of our TRS. A Meristar affiliate also assigned a percentage lease agreement for a third hotel property we own to a subsidiary of the TRS. We paid Meristar lease termination fees of approximately $0.4 million, which were offset against Meristar’s outstanding rent obligations.

Management and Other Agreements:

Effective on December 31, 2001, we entered into new management agreements (the “Meristar Management Agreements”) with Meristar to operate the three hotels previously leased to Meristar affiliates. The Meristar Management Agreements have terms of five to six years, but are cancelable by us without penalty upon 90 days notice.

As part of the transaction with Meristar, Meristar also assigned to us its 20% equity interest in the joint venture that owns the Kansas City Doubletree hotel, and certain personal property it owned at the Pink Shell Beach Resort.

We also entered into an agreement with Meristar to provide cooperative marketing and reservation services to our Pink Shell Beach Resort. That agreement has a term of one year.

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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS

(a)     Financial statements of businesses acquired: Audited financial statements of BMC as of and for the year ended December 31, 2000, and unaudited financial statements of BMC as of and for the nine months ended September 30, 2001 are incorporated by reference to our Form 10-K for the year ended December 31, 2000, and our Form 10-Q for the quarter ended September 30, 2001.

(b)     Pro forma income statements. (See pg. 8)

(c)     Exhibits

         23.1 Consent of Independent Public Accountants.

         99.1 Our press release dated January 14, 2002.

         99.2 MASTER CONTRIBUTION AGREEMENT dated as of December 31, 2001, by and among BOYKIN MANAGEMENT COMPANY LIMITED LIABILITY COMPANY, JABO LLC, BOYKIN LODGING COMPANY and BOYKIN HOTEL PROPERTIES, L.P.

         99.3 Form of HOTEL MANAGEMENT AGREEMENT dated as of the 1st day of January 2002, between Lessee, and Boykin Management Company Limited Liability Company.

         99.4 AMENDMENT TO SHAREHOLDER RIGHTS AGREEMENT dated as of December 31, 2001, between BOYKIN LODGING COMPANY and NATIONAL CITY BANK.

         99.5 REGISTRATION RIGHTS AGREEMENT dated as of December 31, 2001 by and between BOYKIN LODGING COMPANY and JABO LLC.

         99.6 SECOND AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF BOYKIN HOTEL PROPERTIES, L.P. dated as of January 1, 2002.

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FORWARD LOOKING STATEMENTS

This Form 8-K contains statements that constitute forward-looking statements. For this purpose, any statements contained herein and in documents incorporated by reference herein that are not historical fact may be deemed to be forward-looking. Those statements appear in a number of places in this Form 8-K and the documents incorporated by reference herein and include statements regarding our intent, belief or current expectations or those of our directors or officers with respect to, among other things, our expectations about the long-term profitability of the TRS structure, the Hilton Incentive Fee obligations in future periods, and our future performance or anticipated financial results.

         You are cautioned that any such forward-looking statement is not a guarantee of future performance and involves risks and uncertainties, and that actual results may differ materially from those in the forward-looking statement as a result of various factors. The factors that could cause actual results to differ materially from our expectations include, among other factors, financial performance, real estate conditions, execution of hotel acquisition or disposition programs, changes in local or national economic conditions and its impact on the occupancy of our hotels, changes in interest rates, changes in local or national supply and construction of new hotels, changes in profitability and margins and the financial condition of our lessees, and other similar variables. The information contained in this Form 8-K and in the documents incorporated by reference herein and our periodic filings with the Securities and Exchange Commission (“SEC”), which can be found on the SEC’s website at http://www.sec.gov, also identifies important factors that could cause such differences.

         With respect to any such forward-looking statement that includes a statement of its underlying assumptions or bases, we caution that, while we believe such assumptions or bases to be reasonable and have formed them in good faith, assumed facts or bases almost always vary from actual results, and the differences between assumed facts or bases and actual results can be material depending on the circumstances. When, in any forward-looking statement, we or our management express an expectation or belief as to future results, that expectation or belief is expressed in good faith and is believed to have a reasonable basis, but there can be no assurance that the stated expectation or belief will result or be achieved or accomplished.

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SIGNATURES

         Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

	BOYKIN LODGING COMPANY
Date: January 14, 2002	By: /s/ Paul A. O’Neil
	Paul A. O’Neil, Chief Financial Officer and Treasurer

Page  7

Boykin Lodging Company
Pro Forma Financial Information

Our unaudited pro forma financial information set forth below is based on unaudited consolidated financial statements for the nine months ended September 30, 2001 and audited consolidated financial statements for the fiscal year ended December 31, 2000. The following financial information does not contain pro forma balance sheet information as the impact of these transactions would not have had a material impact on our consolidated balance sheet.

The pro forma financial information is presented as if the following had occurred as of January 1, 2000:

1.	Our acquisition of the Lessees from BMC;
2.	Our issuance of 1.4 million partnership units to a BMC subsidiary;
3.	Our entering into the BMC Management Agreements;
4.	The termination / assignment of the Meristar leases;
5.	Our entering into the Meristar Management Agreements and other Meristar transaction documents; and
6.	Our June 2001 termination of the percentage lease for a hotel in Chicago, Illinois owned by an unconsolidated joint venture, and a new taxable REIT subsidiary owned by that joint venture entering into a management contract with a BMC subsidiary.

Our unaudited pro forma financial statements do not purport to represent what our results of operations or financial condition would actually have been if these transactions had in fact occurred at the beginning of the periods presented, or to project our results of operations or financial condition for any future period.

Our unaudited pro forma financial statements are based upon available information and upon assumptions and estimates, some of which are set forth in the notes to the unaudited pro forma financial statements, that we believe are reasonable under the circumstances. The unaudited pro forma financial statements and accompanying notes should be read in conjunction with our financial statements and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” contained in our filings with the SEC.

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Boykin Lodging Company
Pro Forma Condensed Consolidated Statement of Income
For the Nine Months Ended September 30, 2001
(Unaudited, amounts in thousands except for per share data)

									Historical
						Historical			Meristar Leases
						BMC Lessees			Terminated/
				Historical		Acquired			Assigned		Adjustments			Pro Forma
Revenues:					(A)		(B)			(C)
	Hotel revenues:
			Room revenue	$	3,405	$	112,640		$	16,365	$	—		$	132,410
			Food and beverage revenue		1,483		50,347			3,347		—			55,177
			Other revenue		233		10,710			1,046		—			11,989
	Percentage lease revenue				49,989		—			—		(46,004	)(D)		3,985
	Interest and other income				1,224		167			—		—			1,391
		Total revenue			56,334		173,864			20,758		(46,004	)		204,952
Expenses:
	Hotel operating expenses:
			Rooms		863		28,511			3,916		(157	)(G)		33,133
			Food and beverage		981		35,670			2,518		—			39,169
			Other		127		5,987			592		—			6,706
			General and administrative		627		17,762			1,823		—			20,212
			Marketing and franchise costs		551		16,739			2,089		—			19,379
			Utilities and maintenance		749		14,615			1,869		—			17,233
			Management fees to related party		154		—			—		2,859	(E)		3,013
			Management fees to third parties		—		2,411			—		259	(E)		2,670
			Deferred incentive management fees		—		2,996	(F)		—		—			2,996
			Percentage lease expense		—		48,937			5,399		(54,336	)(D)		—
		Property taxes, insurance and other			8,173		—			2,217		—			10,390
		Depreciation and amortization			21,055		—			—		—			21,055
		Corporate general and administrative			4,447		—			—		—			4,447
		Interest expense			16,691		—			—		—			16,691
		Amortization of deferred financing costs			904		—			—		—			904
			Total expenses		55,322		173,628			20,423		(51,375	)		197,998
Equity in income of unconsolidated joint ventures					732		—			—		(334	)(H)		398
Income before gain on sale of assets, minority interest, and one-time effect of change in accounting principle					1,744		236			335		5,037			7,352
		Gain on sale of assets			240		—			—		—			240
		Minority interest in joint ventures			356		—			—		—			356
		Minority interest in operating partnership			46		—			—		(1,254	)(I)		(1,208	)
Income before one-time effect of change in accounting principle				$	2,386	$	236		$	335	$	3,783		$	6,740
Earnings per share before one-time effect of change in accounting principle:
			Basic	$	0.14									$	0.39
			Diluted	$	0.14									$	0.39
Weighted average number of common shares outstanding:
			Basic		17,171										17,171
			Diluted		17,229										17,229

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Boykin Lodging Company
Pro Forma Condensed Consolidated Statement of Income
For the Year Ended December 31, 2000
(Unaudited, amounts in thousands except for per share data)

									Historical
						Historical			Meristar Leases
						BMC Lessees			Terminated/
			Historical			Acquired			Assigned		Adjustments			Pro Forma
Revenues:				(A)			(B)			(C)
	Hotel revenues:
		Room revenue	$	4,497		$	145,961		$	20,861	$	—		$	171,319
		Food and beverage revenue		1,890			70,212			5,432		—			77,534
		Other revenue		348			14,686			1,521		—			16,555
		Percentage lease revenue		85,854			—			—		(73,251	)(D)		12,603
		Interest and other income		1,162			403			—		—			1,565
		Total revenue		93,751			231,262			27,814		(73,251	)		279,576
Expenses:
	Hotel operating expenses:
		Rooms		1,200			36,518			5,426		(186	)(G)		42,958
		Food and beverage		1,393			48,989			3,952		—			54,334
		Other		184			7,907			885		—			8,976
		General and administrative		810			22,011			2,583		—			25,404
		Marketing and franchise costs		729			20,034			2,971		—			23,734
		Utilities and maintenance		903			19,596			2,353		—			22,852
		Management fees to related party		202			—			—		3,874	(E)		4,076
		Management fees to third parties		—			5,703			—		348	(E)		6,051
		Deferred incentive management fees		—			2,411	(F)		—		—			2,411
		Percentage lease expense		—			66,467			6,784		(73,251	)(D)		—
	Property taxes, insurance and other			10,714			—			2,678		—			13,392
	Depreciation and amortization			30,374			—			—		—			30,374
	Corporate general and administrative			5,849			—			—		—			5,849
	Interest expense			24,291			—			—		—			24,291
	Amortization of deferred financing costs			1,242			—			—		—			1,242
	Gain on property insurance recovery			(407	)		—			—		—			(407	)
	Unrealized loss on carrying value of assets held for sale			7,000			—			—		—			7,000
		Total expenses		84,484			229,636			27,632		(69,215	)		272,537
Equity in income of unconsolidated joint ventures				68			—			—		509	(H)		577
Income before minority interest and extraordinary item				9,335			1,626			182		(3,527	)		7,616
	Minority interest in joint ventures			(534	)		—			—		—			(534	)
	Minority interest in operating partnership			(385	)		—			—		(693	)(I)		(1,078	)
Income before extraordinary item			$	8,416		$	1,626		$	182	$	(4,220	)	$	6,004
Earnings per share before extraordinary item:
	Basic		$	0.49										$	0.35
	Diluted		$	0.49										$	0.35
Weighted average number of common shares outstanding:
	Basic			17,137											17,137
	Diluted			17,305											17,305

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Boykin Lodging Company
Notes to Pro Forma Condensed Consolidated Statements of Income
(Unaudited, dollars in thousands except for per share data)

(A)	Represents our historical statements of income for the periods presented.
(B)	Represents the historical statements of income of the BMC Lessees acquired for the periods presented.
(C)	Represents the historical statements of income of the Meristar leases terminated/assigned for the periods presented.
(D)	Represents pro forma adjustments to our, the BMC Lessees’ and the Meristar leases’ historical statements of income to reflect the elimination of the percentage lease revenue and expense, respectively, between us and these lessees. The difference of $8,332 between the percentage lease revenue recorded by us and the percentage lease expense recorded by the lessees for the nine months ended September 30, 2001, is primarily due to our revenue recognition on an interim basis in accordance with the SEC Staff Accounting Bulletin (“SAB”) No. 101 “Revenue Recognition in Financial Statements.” Under the provisions of SAB No. 101, a portion of our percentage lease revenue is deferred in the first nine months and is recognized in the last three months, whereas the lessees record the greater percentage lease expense in accordance with the applicable percentage lease agreements, as defined. On a pro forma basis, our fourth quarter income from operations would be significantly less than historical amounts due to our historically recognizing a significant amount of deferred rent as income in the fourth quarter. Refer to Note (J) for a comparison of historical FFO to pro forma FFO for the nine months ended September 30, 2001, which eliminates the effect of deferred rent on a consistent basis to the historical and pro forma operating results. This inconsistency in revenue recognition in interim periods caused by SAB No. 101 does not affect the annual financial statements for the year ended December 31, 2000.
(E)	Represents pro forma adjustments to reflect the management fees payable under the BMC Management Agreements and the Meristar Management Agreements during the periods presented. The management fees payable under the BMC Management Agreements have been calculated on a pro forma basis by multiplying the historical hotel revenues by the base management fee of 3%, plus an incentive management fee of 13.5% of the historical gross operating profit in excess of budget up to a maximum of an additional 1.125% of hotel revenues. The management fees payable under the Meristar Management Agreements have been calculated on a pro forma basis by multiplying the historical hotel revenues by 1.25%. These discounted management fees were agreed to with Meristar as part of the settlement of a dispute.
(F)	As noted above, we do not expect to owe a Hilton Incentive Fee for the fourth quarter of 2001, or for 2002, because the $6 million maximum deferred limit was reached at September 30, 2001. Our transactions with BMC were based upon this significant expectation of lower Westboy expenses and, therefore, higher Westboy income. If the maximum $6 million deferral had been reached prior to the pro forma periods presented, Westboy’s historical management fee expense to Hilton would have decreased by $3.0 million and $2.4 million for the nine months ended September 30, 2001 and the year ended December 31, 2000, respectively, thereby increasing pro forma earnings per diluted share by $0.14 and $0.11, respectively.

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(G)	Represents pro forma adjustments related to savings for the cooperative marketing and reservation services agreement at the Pink Shell Beach Resort compared to historical expenses.
(H)	Adjustment to reflect the June 2001 termination of the percentage lease for a hotel in Chicago Illinois, owned by an unconsolidated joint venture, the re-leasing of that hotel to a new taxable REIT subsidiary owned by that joint venture, and that taxable REIT subsidiary entering into a management contract with a BMC subsidiary.
(I)	Represents the pro forma adjustment to minority interest expense of the effect of our issuance of 1.4 million partnership units to a BMC subsidiary.
(J)	FFO:

         The White Paper on Funds From Operations approved by the Board of Governors of the National Association of Real Estate Investment Trusts (“NAREIT”) in October 1999 defines FFO as net income (loss) (computed in accordance with GAAP), excluding gains (or losses) from sales of properties and extraordinary items, plus real estate related depreciation and amortization, and after comparable adjustments for our portion of these items related to unconsolidated entities and joint ventures. We believe that FFO is helpful to investors as a measure of the performance of an equity REIT because, along with cash flow from operating activities, financing activities and investing activities, it provides investors with another indication of the ability of a company to incur and service debt, to make capital expenditures and to fund other cash needs.

         We compute FFO in accordance with the NAREIT White Paper except that, on an interim basis only, we add back deferred rent under SAB  No. 101, which may not be comparable to FFO reported by other REITs that do not define the term in accordance with the current NAREIT definition or that interpret the current NAREIT definition differently than we do. FFO does not represent cash generated from operating activities determined by GAAP and should not be considered as an alternative to net income (determined in accordance with GAAP) as an indication of our financial performance or to cash flow from operating activities (determined in accordance with GAAP) as a measure of our liquidity, nor is it indicative of funds available to fund our cash needs, including our ability to make cash distributions. FFO may include funds that may not be available for management’s discretionary use due to functional requirements to conserve funds for capital expenditures and property acquisitions, and other commitments and uncertainties. The following is a reconciliation between net income and FFO for the historical and pro forma nine months ended September 30, 2001 and year ended December 31, 2000, respectively (in thousands):

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	Historical Nine			Pro Forma Nine			Historical			Pro Forma
	Months Ended			Months Ended			Year Ended			Year Ended
	September 30,			September 30,			December 31,			December 31,
	2001			2001			2000			2000
Income before one-time effect of change in accounting principle and extraordinary item	$	2,386		$	6,740		$	8,416		$	6,004
Deferred rent		8,776			967			—			—
Real estate related depreciation and amortization		21,055			21,055			30,374			30,374
Minority interest		(402	)		852			919			1,612
Gain on property insurance recovery		—			—			(407	)		(407	)
Unrealized loss on carrying value of assets held for disposition		—			—			7,000			7,000
Gain on sale of assets		(240	)		(240	)		—			—
Equity in income of unconsolidated joint ventures		(732	)		(398	)		(68	)		(577	)
FFO adjustment related to joint ventures		1,690			1,357			(229	)		280
Funds from operations	$	32,533		$	30,333		$	46,005		$	44,286
Weighted average number of common shares and units outstanding:
Basic		18,462			19,889			18,428			19,855
Diluted		18,521			19,948			18,596			20,023

Page  13 EX-23.1 3 l92251aex23-1.txt EXHIBIT 23.1 - CONSENT OF INDEPENDENT AUDITORS Exhibit 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Current Report on Form 8-K of our report dated February 9, 2001 included in the Company's Form 10-K for the year ended December 31, 2000. /s/ Arthur Andersen LLP Cleveland, Ohio, January 14, 2002. EX-99.1 4 l92251aex99-1.txt EXHIBIT 99.1 - COMPANY PRESS RELEASE Exhibit 99.1 FOR IMMEDIATE RELEASE CONTACT: Paul A. O'Neil Chief Financial Officer and Treasurer Boykin Lodging Company (216) 430-1200 BOYKIN LODGING ACQUIRES HOTEL LEASE INTERESTS Cleveland, Ohio, January 14, 2002. Boykin Lodging Company (NYSE: BOY), a hotel real estate investment trust ("REIT"), today announced that it has acquired leasehold interests for 28 of its hotels from two of its operators, Boykin Management Company ("BMC") and Meristar Hotels & Resorts (NYSE: MMH) ("Meristar"). The structural change was made under the REIT Modernization Act, which became effective January 1, 2001. Under the Act, REIT's are now permitted to lease hotels to a subsidiary that qualifies as a taxable REIT subsidiary ("TRS"). The company acquired leasehold interests in 25 of the hotels by issuing BMC 1.4 million limited partnership units of Boykin's operating partnership, and assuming from BMC $1.6 million of liabilities in excess of assets related to one of the lessee entities. The company entered into management agreements for BMC to operate 15 of the 25 hotels, and took over BMC's contract with Hilton Hotels Corporation (NYSE: HLT) for Hilton's operation of the remaining 10 Doubletree branded hotels. The company also restructured its relationship with Meristar by acquiring or canceling Meristar's leasehold interests for 3 hotels and signing management agreements with Meristar to operate those hotels. Following the transaction, 31 of Boykin Lodging's 33 hotel properties now have management contracts under the TRS structure. The company expects to record a $15 million primarily non-cash charge to earnings in the fourth quarter of 2001 relating to the acquisition and termination of the leases. "We are very pleased to have completed this transaction in our continuing effort to augment long-term shareholder value," stated Richard Conti, President and Chief Operating Officer. "The key benefit is that our operators now have a greater alignment of financial interests with ours. In addition, we believe that our flexibility has been significantly enhanced because the new management agreements with BMC and Meristar are terminable by us without penalty (e.g., upon a sale of the property), whereas the previous percentage leases provided for significant termination penalties. Over the long run, the new structure will improve profitability, but we do expect a short-term earnings dilution. We believe this structure is critical to improve our long-term financial performance." Because the company's chairman, Robert Boykin, controls BMC, the board of directors established a special committee of independent directors to evaluate and negotiate the terms of the transactions with BMC. The special committee was advised by independent counsel and financial advisors, and received the opinion of Houlihan, Lokey, Howard & Zukin Financial Advisors, Inc. that the transactions with BMC are fair to the company from a financial point of view. The special committee also received advice from the HVS International division of Hotel Appraisals LLC as to the prevailing terms and conditions of hotel management contracts. Additional details related to the transactions can be obtained from the Company's 8-K filing made today with the Securities and Exchange Commission. Boykin Lodging Company is a real estate investment trust that focuses on the ownership of full-service, upscale commercial and resort hotels. The company currently owns 33 hotels containing a total of 9,249 rooms located in nineteen states, and operating under such internationally known brands as Doubletree, Marriott, Hilton, Radisson and Embassy Suites, among others. For more information about Boykin Lodging Company, visit the company's web site at www.boykinlodging.com. - -------------------------------------------------------------------------------- This news release contains "forward-looking statements" within the meaning of Section 21E of the Securities Exchange Act of 1934 regarding the Company, including those statements regarding the Company's and management's beliefs and expectations concerning the expected benefits from the new TRS structure, Company's future performance or anticipated financial results, among others. Except for historical information, the matters discussed in this release are forward-looking statements that involve risks and uncertainties that may cause results to differ materially from those set forth in those statements. Among other things, factors that could cause actual results to differ materially from those expressed in such forward-looking statements include financial performance, real estate conditions, execution of hotel acquisition programs, changes in local or national economic conditions, and other similar variables and other matters disclosed in the Company's filings with the SEC, which can be found on the SEC's website at http://www.sec.gov. - -------------------------------------------------------------------------------- EX-99.2 5 l92251aex99-2.txt EXHIBIT 99.2 - MASTER CONTRIBUTION AGREEMENT Exhibit 99.2 MASTER CONTRIBUTION AGREEMENT dated as of December 31, 2001 by and among BOYKIN MANAGEMENT COMPANY LIMITED LIABILITY COMPANY, JABO LLC, BOYKIN LODGING COMPANY and BOYKIN HOTEL PROPERTIES, L.P. IN RELIANCE UPON CERTAIN EXEMPTIONS FROM REGISTRATION, THE SECURITIES TO BE ISSUED PURSUANT TO THIS AGREEMENT WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. ACCORDINGLY, NO PARTNERSHIP INTERESTS IN BOYKIN HOTEL PROPERTIES, L.P. MAY BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS SUBSEQUENTLY REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE, AND UNLESS THE OTHER TRANSFER RESTRICTIONS ON SUCH INTERESTS HAVE BEEN SATISFIED. THE BMC PARTIES (AS DEFINED HEREIN) SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THEIR OWNERSHIP OF PARTNERSHIP INTERESTS IN BOYKIN HOTEL PROPERTIES, L.P. FOR AN INDEFINITE PERIOD OF TIME. IN MAKING AN INVESTMENT DECISION THE BMC PARTIES MUST RELY ON THEIR OWN EXAMINATION OF BOYKIN HOTEL PROPERTIES, L.P. AND THE TERMS OF THE OFFERING, INCLUDING THE MERITS AND RISKS INVOLVED. THE PARTNERSHIP INTERESTS HAVE NOT BEEN RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. TABLE OF CONTENTS

PAGE ARTICLE 1 DEFINITIONS.............................................................1 1.1 Definitions.............................................................1 ARTICLE 2 CONTRIBUTIONS OF INTERESTS; CONSENTS....................................6 2.1 Contributions of Interests..............................................6 ARTICLE 3 CONSIDERATION...........................................................7 3.1 Consideration...........................................................7 ARTICLE 4 COVENANTS...............................................................7 4.1 Amendment to the OP Partnership Agreement...............................7 4.2 Registration Rights Agreement...........................................7 4.3 Amendment to Rights Agreement...........................................7 4.4 Expenses................................................................7 4.5 Reservation of REIT Shares..............................................8 4.6 Resignation of Officers.................................................8 4.7 Financial Statements....................................................8 4.8 HSR Act.................................................................8 4.9 [INTENTIONALLY OMITTED].................................................8 4.10 Assumption of Westboy Note..............................................8 4.11 Liquor Licenses.........................................................8 4.12 Franchise Agreements....................................................9 4.13 Post-Closing Cooperation................................................9 ARTICLE 5 CLOSING.................................................................9 5.1 Closing.................................................................9 5.2 Closing Deliveries by the BMC Parties...................................9 5.3 Closing Deliveries by the BLC Parties..................................12 ARTICLE 6 CONDITIONS PRECEDENT TO CLOSING........................................14 6.1 Conditions Precedent to Obligation of the REIT and the Operating Partnership............................................................14

-i-

ARTICLE 7 REPRESENTATIONS AND WARRANTIES..........................................16 7.1 Representations and Warranties of the BLC Parties.......................16 7.2 Representations and Warranties of the BMC Parties.......................21 7.3 Survival................................................................28 ARTICLE 8 INDEMNIFICATION.........................................................28 8.1 Obligation of the BLC Parties to Indemnify..............................28 8.2 Obligation of the BMC Parties to Indemnify..............................30 8.3 Net Claims..............................................................32 ARTICLE 9 APPORTIONMENTS AND PAYMENTS.............................................32 9.1 Payments - Lessee Properties............................................32 9.2 Settlement Procedures...................................................34 ARTICLE 10 MISCELLANEOUS...........................................................35 10.1 Broker..................................................................35 10.2 Further Assurances......................................................35 10.3 Payment of Expenses.....................................................35 10.4 Notices.................................................................36 10.5 Assignment; Binding Effect..............................................37 10.6 Waiver..................................................................37 10.7 Incorporation of Recitals and Schedules.................................37 10.8 Confidentiality; Press Releases.........................................37 10.9 Merger..................................................................38 10.10 GOVERNING LAW...........................................................38 10.11 Jurisdiction............................................................38 10.12 Captions................................................................39 10.13 Counterparts............................................................39 10.14 Severability............................................................39 10.15 No Recordation..........................................................39 10.16 WAIVER OF TRIAL BY JURY.................................................39 10.17 Survival................................................................39

-ii- EXHIBITS EXHIBIT A LESSEES AND LESSEE PROPERTIES EXHIBIT B WESTBOY PROPERTIES EXHIBIT C OP PARTNERSHIP AMENDMENT EXHIBIT D REGISTRATION RIGHTS AGREEMENT EXHIBIT E AMENDMENT TO RIGHTS AGREEMENT EXHIBIT F WESTBOY NOTE ASSUMPTION EXHIBIT G MANAGEMENT AGREEMENTS EXHIBIT H INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT EXHIBIT I WESTBOY INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT EXHIBIT J FORM OF OPINION OF COUNSEL TO THE BMC PARTIES EXHIBIT K FIRPTA AFFIDAVIT EXHIBIT L FORM OF OPINION OF COUNSEL TO THE BLC PARTIES EXHIBIT M FORM OF ALIGNMENT OF INTERESTS CONSENT SCHEDULES SCHEDULE 4.6 FORM OF RELEASE OF RESIGNING OFFICERS SCHEDULE 4.11(i) TRANSFERRED LIQUOR LICENSES SCHEDULE 4.11(ii) LIQUOR LICENSES REQUIRING NOTIFICATION OF OWNERSHIP CHANGE SCHEDULE 4.12(i) ASSIGNED FRANCHISE LICENSE AGREEMENTS SCHEDULE 4.12(ii) TERMINATED AND NEW FRANCHISE LICENSE AGREEMENTS SCHEDULE 4.12(iii) RETAINED FRANCHISE LICENSE AGREEMENTS SCHEDULE 6.1(e) BLC PARTIES' CONSENTS, WAIVERS, AUTHORIZATIONS AND APPROVALS SCHEDULE 6.2(g) BMC PARTIES' CONSENTS, WAIVERS, AUTHORIZATIONS AND APPROVALS SCHEDULE 7.1(f)(i) BLC PARTIES' PENDING LITIGATION SCHEDULE 7.1(f)(ii) BLC PARTIES' DEFAULTS AND OTHER VIOLATIONS SCHEDULE 7.1(h) BLC PARTIES' VIOLATIONS OF LAWS SCHEDULE 7.1(i)(a) COMMITMENTS REGARDING ISSUANCE AND REGISTRATION OF OP UNITS SCHEDULE 7.1(i)(b) COMMITMENTS REGARDING ISSUANCE AND REGISTRATION OF REIT SHARES SCHEDULE 7.2(a) BMC PARTIES' CONFLICTING AGREEMENTS SCHEDULE 7.2(b) BMC PARTIES' ORGANIZATIONAL DOCUMENTS SCHEDULE 7.2(d) BMC PARTIES' NON-COMPLIANCE WITH LAWS SCHEDULE 7.2(g)(iv) LESSEE AND WESTBOY FORMATION DOCUMENTS SCHEDULE 7.2(g)(vi) AFFILIATE LOANS SCHEDULE 7.2(h) OPERATING CONTRACTS SCHEDULE 7.2(i) EXCEPTIONS TO WESTBOY FINANCIAL STATEMENTS AND EXTRAORDINARY BUSINESS -iii- MASTER CONTRIBUTION AGREEMENT THIS MASTER CONTRIBUTION AGREEMENT (this "AGREEMENT") is made as of the 31st day of December, 2001, by and among BOYKIN MANAGEMENT COMPANY LIMITED LIABILITY COMPANY, an Ohio limited liability company, having an address at Guildhall Building, 45 West Prospect Avenue, Suite 1515, Cleveland, Ohio 44115 ("BMC"), JABO LLC, a Delaware limited liability company ("JABO"; BMC and JABO are referred to herein collectively as the "BMC Parties"), BOYKIN LODGING COMPANY, an Ohio corporation (the "REIT"), and BOYKIN HOTEL PROPERTIES, L.P., an Ohio limited partnership (the "OPERATING PARTNERSHIP"; the Operating Partnership and the REIT are referred to herein collectively as the "BLC PARTIES"), each having an address at 45 West Prospect Avenue, Suite 1500, Cleveland, Ohio 44115. W I T N E S S E T H: - - - - - - - - - - WHEREAS, BMC owns ninety-nine percent (99%) of the membership interests in JABO, which owns (i) all of the membership interests (the "WESTBOY INTERESTS") in Westboy, LLC, a Delaware limited liability company ("WESTBOY"), and (ii) all of the membership interests (the "INTERESTS") in each of the fifteen (15) limited liability companies identified on EXHIBIT A (each, a "LESSEE" and, collectively, the "LESSEES"); WHEREAS, each Lessee is the owner of a leasehold interest in one of the fifteen (15) hotel properties identified on EXHIBIT A (collectively, the "LESSEE PROPERTIES"); WHEREAS, Westboy is the owner of the leasehold interests in the ten (10) hotel properties identified on EXHIBIT B (collectively, the "WESTBOY PROPERTIES"; each of the Lessee Properties and Westboy Properties, a "PROPERTY" and, collectively, the "PROPERTIES"); WHEREAS, at the Closing, the BMC Parties have agreed to cause JABO to contribute the Interests and Westboy Interests to the Operating Partnership, in each case in exchange for partnership interests in the Operating Partnership on the terms set forth below; NOW, THEREFORE, in consideration of the premises and the representations, warranties, covenants, conditions and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: ARTICLE 1 DEFINITIONS 1.1 DEFINITIONS. For purposes of this Agreement, the following terms have the meanings indicated below: "ACCRUED VACATION TIME" has the meaning set forth in Section 9.1(c). "ACTUAL KNOWLEDGE" means, with respect to a Person who is any of the BMC Parties (other than an individual) the actual, not imputed, knowledge of any officer, director or employee at the level of a general manager (other than a general manager at any of the Westboy Properties) and above, and with respect to a Person who is any of the BLC Parties, the actual, not imputed, knowledge of any director, senior executive or officer of such Person. "ADJUSTED CLOSING STATEMENT" has the meaning set forth in Section 9.3. "AFFILIATE" means, with respect to the applicable party, any corporation, partnership, sole proprietorship or other entity or individual which (a) is owned or controlled by such party, (b) owns or controls such party, or (c) is under common ownership or control with such party; provided that the BLC Parties shall not be deemed Affiliates of the BMC Parties and the BMC Parties shall not be deemed Affiliates of the BLC Parties; and provided further that (i) The John E. Boykin 1997 Amended and Restated Revocable Trust, The Robert W. Boykin Second 1997 Amended and Restated Revocable Trust, Robert W. Boykin and John E. Boykin and any entity controlled by the foregoing Persons, and (ii) the BLC Parties, shall not in any event be considered Affiliates of each other. "AGREEMENT" has the meaning set forth in the preamble. "ALIGNMENT OF INTERESTS CONSENT" has the meaning set forth in Section 5.3(n). "AMENDMENT TO RIGHTS AGREEMENT" has the meaning set forth in Section 4.3. "ASSIGNED PROPERTY" means all of the tangible personal property, contracts, permits, tenant leases, personal property leases and other assets owned by the Lessees pursuant to those certain General Assignment and Assumption Agreements, by and between BMC and the Lessees, dated as of the date hereof. "BLC INDEMNITEES" has the meaning set forth in Section 8.2(a). "BLC MATERIAL ADVERSE EFFECT" has the meaning set forth in Section 7.1(b). "BLC PARTIES" has the meaning set forth in the preamble. "BMC" has the meaning set forth in the preamble. "BMC HILTON CLAIMS" has the meaning set forth in Section 9.4. "BMC INDEMNITEES" has the meaning set forth in Section 8.1(a). "BMC OPERATING AGREEMENT" means all documents comprising the operating agreement of BMC including, without limitation, all amendments, supplements and modifications thereof. "BMC PARTIES" has the meaning set forth in the preamble. "BUSINESS DAY" means any day of the year, other than a Saturday or Sunday or any other day that the Federal Reserve Bank of Cleveland recognizes as a federal holiday. "CLOSING" and "CLOSING DATE" have the meanings set forth in Section 5.1 hereof. -2- "CLOSING STATEMENT" has the meaning set forth in Section 9.3. "CONSIDERATION" has the meaning set forth in 3.1 hereof. "CUTOFF TIME" means 3:01 a.m. on the Closing Date. "EMPLOYEE BENEFIT PLAN" has the meaning set forth in Section 7.2(k). "ENVIRONMENTAL LIABILITIES" means any reasonable cost, liability, damage or expense (including, without limitation, any attorneys' fees or expenses) that arise out of any violation or non-compliance, with respect to any Property, with any Federal, State or local law, rule or regulation or any written judicial or administrative order, in each case, in effect on or prior to the Closing Date, relating to the protection of the environment (including, without limitation, a violation or non-compliance relating to Hazardous Materials located at, on, under or in any Property or migrating from any Property) caused by any failure by BMC, the relevant Lessee or Westboy to perform any obligation under the relevant Lease that resulted in such violation or non-compliance, during the period in which BMC, the relevant Lessee or Westboy held the relevant Lease to the Property prior to the date hereof. "ENVIRONMENTAL LIABILITIES SURVIVAL PERIOD" has the meaning set forth in Section 7.3. "FOREIGN OWNER" has the meaning set forth in Section 7.2(l). "FRANCHISE DOCUMENTS" has the meaning set forth in Section 4.12. "GAAP" means generally accepted accounting principles consistently applied. "GENERAL ASSIGNMENT AGREEMENTS" means the Assignment and Assumption Agreements between BMC and each of the Lessees dated as of January 1, 2002. "GENERAL SURVIVAL PERIOD" has the meaning set forth in Section 7.3. "GOVERNMENTAL AUTHORITY" means any agency, bureau, commission, court, department, official, political subdivision, tribunal or other instrumentality of any government, whether federal, state or local, domestic or foreign. "GROUND LEASE" means that certain lease, by and between the City of Berkeley, as lessor, and William J. Boykin, as lessee, dated August 7, 1969, as amended and assigned by mesne assignments to Boykin Berkeley LLC. "HAZARDOUS MATERIALS" means any substance, chemical, compound, product, solid, gas, liquid, waste, byproduct, pollutant, contaminant or other material that is hazardous, toxic, ignitable, corrosive, carcinogenic or otherwise presents a risk of danger to human, plant or animal life or the environment or that is defined, determined or identified as such in any federal, state or local law, rule or regulation and any written judicial or administrative order or final judgment in effect on or prior to the Closing Date, in each case relating to the protection of human health, safety and/or the environment, including but not limited to, any materials, wastes or substances that are included within the definition of (a) "hazardous waste" in the federal -3- Resource Conservation and Recovery Act; (b) "hazardous substances" in the federal Comprehensive Environmental Response, Compensation, and Liability Act; (c) "pollutants" in the federal Clean Water Act; (d) "toxic substances" in the federal Toxic Substances Control Act; and (e) "oil or hazardous materials" in the laws or regulations of any state. "HILTON" means Hilton Hotel Corporation and any of its Affiliates. "HSR ACT" has the meaning set forth in Section 4.8. "INDEPENDENT ACCOUNTANTS" has the meaning set forth in Section 9.3. "INQUIRY" has the meaning set forth in Section 8.1(c). "INTERESTS" has the meaning set forth in the recitals. "INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT" has the meaning set forth in Section 5.2(c). "JABO" has the meaning set forth in the preamble. "JABO OPERATING AGREEMENT" means all documents comprising the operating agreement of JABO including, without limitation, all amendments, supplements and modifications thereof. "JABO'S ACCOUNTANTS" has the meaning set forth in Section 9.3. "LAWS" means applicable laws, ordinances, rules, regulations, orders and requirements of any Governmental Authorities having jurisdiction. "LEASE" means, with respect to each Lessee Property, the particular lease between the Operating Partnership and BMC or an Affiliate of BMC as such was assigned on December 31, 2001, to that particular Lessee. "LEASE ASSIGNMENT AGREEMENTS" means the Lease Assignment Agreements between BMC and each of the Lessees, dated as of December 31, 2001. "LESSEE" and "LESSEES" have the meaning set forth in the recitals. "LESSEE PROPERTIES" has the meaning set forth in the recitals. "LESSEE ORGANIZATIONAL DOCUMENTS" means all documents comprising the constituent organizational documents of each of the Lessees including, without limitation, operating agreements, articles of incorporation and all amendments, supplements and modifications thereof and all assignments with respect thereto. "LIABILITY CAP" has the meaning set forth in Section 8.2(c). "LIQUOR LICENSE DOCUMENTS" has the meaning set forth in Section 4.11. "MANAGEMENT AGREEMENTS" has the meaning set forth in Section 5.2(b). -4- "NET CURRENT ASSETS AND LIABILITIES AMOUNT" has the meaning set forth in Section 9.1. "NOTICES" means all notices, demands or requests made pursuant to or otherwise in connection with this Agreement. "OPERATING CONTRACTS" has the meaning set forth in Section 7.2(h). "OPERATING PARTNERSHIP" has the meaning set forth in the preamble. "OP PARTNERSHIP AGREEMENT" means the Second Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated as of May 20, 1998, as amended by that certain Amendment to Second Amended and Restated Agreement of Limited Partnership, dated as of February 1, 1999. "OP PARTNERSHIP AMENDMENT" has the meaning set forth in Section 4.1. "OP UNITS" means those Partnership Units issued to JABO pursuant to Section 3.1. "PARTNERSHIP INTERESTS" has the meaning set forth in the OP Partnership Agreement. "PARTNERSHIP UNITS" means the non-preferred Partnership Interests of the Operating Partnership. "PERCENTAGE LEASES" means those certain leases pursuant to which the Lessees and Westboy hold leasehold interests in the Properties. "PER PROPERTY LIABILITY CAP" has the meaning set forth in Section 8.2(c). "PERSON" means an individual, a partnership (general or limited), limited liability company, corporation, joint venture, business trust, cooperative, association or other form of business organization, whether or not regarded as a legal entity under applicable law, a trust (inter vivos or testamentary), an estate of a deceased, insane or incompetent person or any other entity. "PROPERTY" and "PROPERTIES" have the meaning set forth in the recitals. "PROPERTY MATERIAL ADVERSE EFFECT" has the meaning set forth in Section 7.2(a)(vii). "PROPERTY SURVIVAL PERIOD" has the meaning set forth in Section 7.3. "REGISTRATION RIGHTS AGREEMENT" has the meaning set forth in Section 4.2. "REIT" has the meaning set forth in the preamble. "REIT SHARES" has the meaning set forth in Section 4.5. "SEC DOCUMENTS" has the meaning set forth in Section 7.1(i)(ii). "SECURITIES ACT" means the Securities Act of 1933, as amended. -5- "SHARED HILTON CLAIMS" has the meaning set forth in Section 9.4. "SPACE LEASES" means any existing leases, tenancies, concessions, licenses and other use or occupancy agreements affecting or relating to any portion of the Properties, together with any renewals of, additions to, modifications of or substitutions for such leases entered into by or on behalf of the Lessees or Westboy prior to the Closing Date. "SURVIVAL PERIOD" has the meaning set forth in Section 7.3. "TBG" means The Boykin Group, Inc., an Ohio corporation. "TRANSACTION DOCUMENTS" means this Agreement, the Registration Rights Agreement, the Amendment to Rights Agreement, the Management Agreements, the Interests Assignment and Assumption Agreement, the Westboy Interests Assignment and Assumption Agreement, the Westboy Note Assumption, the Liquor License Documents, the Franchise Documents, the OP Partnership Amendment, the Alignment of Interests Consent, the Lease Assignment Agreements, and the General Assignment Agreement. "WESTBOY" has the meaning set forth in the recitals. "WESTBOY INTERESTS" has the meaning set forth in the recitals. "WESTBOY INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT" has the meaning set forth in Section 5.2(d). "WESTBOY MATERIAL ADVERSE EFFECT" has the meaning set forth in Section 7.2(a)(vii). "WESTBOY MEMBER'S EQUITY" means the member's equity of Westboy as shall be reflected on Westboy's balance sheet as of December 31, 2001, determined under GAAP consistently applied; but without considering the Westboy Note as an asset of Westboy, or the BMC Hilton Claims or the Shared Hilton Claims as either an asset or a liability. "WESTBOY NOTE" has the meaning set forth in Section 4.10. "WESTBOY NOTE ASSUMPTION" has the meaning set forth in Section 4.10. "WESTBOY PROPERTIES" has the meaning set forth in the recitals. "WIND UP DATE" has the meaning set forth in Section 9.3. ARTICLE 2 CONTRIBUTIONS OF INTERESTS; CONSENTS 2.1 CONTRIBUTIONS OF INTERESTS. Subject to and on the terms and conditions hereinafter set forth, assuming satisfaction by the BMC Parties and/or waiver by the BLC Parties and satisfaction by the BLC Parties and/or waiver by the BMC Parties of all conditions set forth in -6- Sections 6.1 and 6.2, respectively, on the date and at the time and place provided for in Section 5.1: (a) JABO shall contribute, transfer, assign and deliver all of its right, title and interest in and to the Interests to the Operating Partnership; and (b) JABO shall contribute all of its right, title and interest in and to the Westboy Interests to the Operating Partnership. ARTICLE 3 CONSIDERATION 3.1 CONSIDERATION. On the Closing Date, assuming satisfaction by the BMC Parties and/or waiver by the BLC Parties and satisfaction by the BLC Parties and/or waiver by the BMC Parties of all conditions set forth in Sections 6.1 and 6.2, respectively, as consideration (the "CONSIDERATION") for the contributions described in Section 2.1, the Operating Partnership agrees and the REIT shall cause the Operating Partnership to admit JABO as an additional limited partner of the Operating Partnership and to issue to JABO 1,427,142 OP Units as set forth in the OP Partnership Amendment. ARTICLE 4 COVENANTS 4.1 AMENDMENT TO THE OP PARTNERSHIP AGREEMENT. At or prior to the Closing, the Operating Partnership agrees to adopt an amendment, in the form attached hereto as EXHIBIT C (the "OP PARTNERSHIP AMENDMENT"), to the OP Partnership Agreement reflecting the admission of JABO as an additional limited partner to the Operating Partnership and the issuance of the OP Units in accordance with the provisions of Section 3.1 of this Agreement. 4.2 REGISTRATION RIGHTS AGREEMENT. At or prior to the Closing, the REIT and JABO agree to enter into and deliver the registration rights agreement, in the form attached hereto as EXHIBIT D (the "REGISTRATION RIGHTS AGREEMENT"). 4.3 AMENDMENT TO RIGHTS AGREEMENT. At or prior to the Closing Date, the REIT agrees to adopt an amendment to the Shareholder Rights Agreement between the REIT and National City Bank, dated May 25, 1999, in the form attached hereto as EXHIBIT E (the "AMENDMENT TO RIGHTS AGREEMENT"). 4.4 EXPENSES. Each party agrees to pay its own expenses (including the fees and expenses of its own attorneys, accountants and other advisers) in connection with its due diligence activities, negotiating this Agreement and any related agreements, obtaining any required approvals and otherwise preparing for the Closing. The parties agree to cooperate with one another to prepare and file with the relevant authorities all sales, use and transfer tax returns, affidavits and other similar instruments, if any, required in connection with the payment of the foregoing expenses. The REIT agrees to prepare and file with the relevant authorities all necessary sales, use and transfer tax returns and related instruments in connection with the -7- transfer to the Operating Partnership of the Interests and Westboy Interest, if any, and to pay all sales, use or transfer taxes, if any, required in connection therewith. The BLC Parties agree to pay any fees, costs and charges due in connection with the transfer of any liquor licenses and franchise license agreements or the retention of any liquor licenses or franchise license agreements by BMC for the benefit of the Lessees pursuant to Sections 4.11 and 4.12, including such fees, costs and charges arising after the date hereof. 4.5 RESERVATION OF REIT SHARES. The REIT agrees that commencing on or prior to the Closing and at all times thereafter it will reserve and keep available, free from preemptive rights, out of its authorized but unissued common shares, solely for the purpose of issuance upon redemption of the OP Units, the full number of the common shares of the REIT without a par value per share ("REIT SHARES") then deliverable upon redemption in full of all of the OP Units should the REIT as general partner of the Operating Partnership elect to issue all such REIT shares upon any such redemption request. 4.6 RESIGNATION OF OFFICERS. At or prior to the Closing, JABO agrees to cause Robert W. Boykin and each family member of Robert W. Boykin that is then an officer or director of any Lessee or Westboy to resign from such position. Each such resigning officer and director shall receive a release from the relevant Lessee or Westboy in the form attached hereto as SCHEDULE 4.6. 4.7 FINANCIAL STATEMENTS. BMC agrees that, at its expense, it will provide the REIT with (i) a combined statement of operations that will include its operations with respect to each Property for the year ended December 31, 2001, audited by Arthur Andersen LLP, before March 31, 2002, and (ii) a "management's discussion and analysis" comparing and explaining specific line items in the foregoing statements. The foregoing statements and analysis will be delivered in a form and format that will facilitate their inclusion in any filing required to be made by the BLC Parties with any Governmental Authority. 4.8 HSR ACT. The BMC Parties and the BLC Parties agree that they have mutually concluded that no filing under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended ("HSR ACT"), is required with respect to the transactions contemplated hereby. 4.9 [INTENTIONALLY OMITTED] 4.10 ASSUMPTION OF WESTBOY NOTE. At Closing, BMC agrees to assign to the Operating Partnership its obligations under that certain promissory note dated as of December 31, 1997, and all requests for payment thereunder subsequently executed, which in the aggregate obligate BMC to make additional capital contributions to Westboy in the amount of Nine Hundred Thousand Dollars ($900,000) (collectively, the "WESTBOY NOTE"), and the Operating Partnership agrees to assume such obligations in the form attached hereto as EXHIBIT F (the "WESTBOY NOTE ASSUMPTION") and, immediately following the Closing, the BLC Parties shall cause Westboy to release BMC from its obligations under the Westboy Note. 4.11 LIQUOR LICENSES. The BMC Parties agree to assign to the applicable Lessee and each such Lessee shall agree to assume on, prior to or after the Closing the liquor licenses set forth in SCHEDULE 4.11(i). At, prior to or after the Closing, the BMC Parties agree to notify the -8- relevant liquor commissions on or before the Closing Date of the change in the membership of Westboy with regard to the liquor licenses for the Properties set forth in SCHEDULE 4.11(II). Except as set forth on SCHEDULE 4.11(i) or Schedule 4.11(ii), all liquor licenses shall remain with the applicable holder of record as of December 31, 2001. All documents executed pursuant to this Section 4.11, shall be referred to herein as the "LIQUOR LICENSE DOCUMENTS". 4.12 FRANCHISE AGREEMENTS. At or prior to the Closing, the BMC Parties agree to assign to the applicable Lessee and each such Lessee shall agree to assume the franchise license agreements for the Properties set forth on SCHEDULE 4.12(i). At or prior to the Closing, the BMC Parties agree to terminate the franchise license agreements for the Properties set forth on SCHEDULE 4.12(ii) and the BLC Parties agree that the Lessees shall enter into new franchise license agreements for such Properties effective immediately after the Closing. The BMC Parties agree to retain the franchise license agreements set forth on SCHEDULE 4.12(iii). All documents executed pursuant to this Section 4.12, shall be referred to herein as the "FRANCHISE DOCUMENTS". 4.13 POST-CLOSING COOPERATION. Each party agrees that it will cooperate with the other party for a reasonable period after the Closing by, where practical, providing the other party with information that it presently possesses with respect to the current status of pending litigation and insurance claims relating to the Properties or circumstances underlying such litigation or claims to the extent the litigation or underlying circumstances arose prior to the Closing. ARTICLE 2 CLOSING 5.1 CLOSING. Subject to the terms and conditions of this Agreement, the Closing shall take place at the office of Thompson Hine LLP, 3900 Key Center, 127 Public Square, Cleveland, Ohio 44114, at 9:00 A.M., E.S.T. on January 2, 2002, but be deemed effective as of 3:01 A.M., E.S.T. on January 1, 2002, or at such other place, time and date as may hereafter be mutually agreed between the BMC Parties and the BLC Parties (the "CLOSING DATE"). As used in this Agreement, the term "CLOSING" means the transfer and assignment of the Interests and Westboy Interests to the Operating Partnership in exchange for the Consideration and the performance by each party hereto of the obligations on its part then to be performed under and in accordance with this Agreement. 5.2 CLOSING DELIVERIES BY THE BMC PARTIES. At the Closing, the respective BMC Parties will deliver to the respective BLC Parties each of the following instruments and documents: (a) REGISTRATION RIGHTS AGREEMENT. The Registration Rights Agreement, duly executed by JABO. (b) MANAGEMENT AGREEMENTS. Management agreements with respect to each of the Lessee Properties in the form attached hereto as EXHIBIT G (the "MANAGEMENT AGREEMENTS"), duly executed by BMC. -9- (c) INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT. An assignment and assumption agreement for the Interests in the form of EXHIBIT H attached hereto (the "INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT"), duly executed by JABO. (d) WESTBOY INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT. An assignment and assumption agreement for the Westboy Interests in the form of EXHIBIT I attached hereto (the "WESTBOY INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT"), duly executed by JABO. (e) CERTIFICATES. (i) A certificate, issued by the Secretary of State of the State of Ohio and dated not earlier than thirty (30) Business Days prior to the Closing Date, certifying as to the good standing of BMC, JABO and Westboy under the laws of Ohio. (ii) A certificate, issued by the Secretary of State of the State of Delaware and dated not earlier than thirty (30) Business Days prior to the Closing Date, certifying as to the good standing of JABO, Westboy and each of the Lessees under the laws of Delaware. (iii) A certificate, issued by the Secretary of State of the State where each Property is located and dated not earlier than thirty (30) Business Days prior to the Closing Date, certifying as to the good standing of such Lessee or Westboy which owns the leasehold interest in such Property under the laws of such State to the extent not covered in (i) or (ii) above. (iv) A duly executed certificate of the secretary of BMC, dated as of such Closing Date, certifying: (A) that (i) attached to such certificate is a true and complete copy of resolutions adopted by the board of directors of BMC, which resolutions approve the transactions contemplated hereunder and authorize the officers of BMC to execute and deliver, for and on behalf of BMC, this Agreement, the Management Agreements and each other agreement or instrument necessary for the consummation of the transactions contemplated by this Agreement and the Management Agreements to be executed and delivered by BMC, (ii) the adoption of the attached resolutions by the board of directors constitutes the only authorization required for the aforementioned execution, delivery and consummation by BMC of the transactions contemplated hereunder, and (iii) such authorization has not been revoked or otherwise withdrawn and remains in full force and effect. (v) A duly executed certificate of BMC as the managing member of JABO, dated as of such Closing Date, certifying: (A) that (i) attached to such certificate is a true and complete copy of the resolutions adopted by the board of directors of BMC, which resolutions approve the transactions contemplated hereunder and authorize the officers of -10- BMC to execute and deliver, for and on behalf of JABO, this Agreement and the other Transaction Documents or any instruments necessary for the consummation of the transactions contemplated hereunder and thereunder to be executed and delivered by JABO, (ii) the adoption of the attached resolutions by the board of directors of BMC constitutes the only authorization required for the aforementioned execution, delivery and consummation by JABO of the transactions contemplated hereunder, and (iii) such authorization has not been revoked or otherwise withdrawn and remains in full force and effect; (B) that (i) attached to such certificate is a true and complete copy of the BMC Operating Agreement and BMC's articles of organization, (ii) such instruments have not been amended (except as noted therein) and (iii) such instruments are in full force and effect as of the Closing Date. (C) that (i) attached to such certificate is a true and complete copy of the JABO Operating Agreement and JABO's certificate of formation (certified by the Secretary of State of the State of Delaware), (ii) such instruments have not been amended (except as noted therein) and (iii) such instruments are in full force and effect as of the Closing Date; (D) that (i) attached to such certificate is a true and complete copy of each Lessee's operating agreement and certificate of formation (certified by the Secretary of State of the State of Delaware), (ii) such instruments have not been amended (except as noted therein) and (iii) such instruments are in full force and effect as of the Closing Date; and (E) that (i) attached to such certificate is a true and complete copy of Westboy's operating agreement and certificate of formation (certified by the Secretary of State of the State of Delaware), (ii) such instruments have not been amended (except as noted therein) and (iii) such instruments are in full force and effect as of the Closing. (f) OPINION. An opinion of counsel to BMC in substantially the form attached hereto as EXHIBIT J. (g) LIQUOR LICENSES. An assignment and assumption of the liquor licenses listed on SCHEDULE 4.11, duly executed by BMC, and such other agreements necessary to satisfy Section 4.11, duly executed by BMC. (h) FRANCHISE AGREEMENTS. An assignment and assumption of the franchise license agreements listed on SCHEDULE 4.12, duly executed by BMC, and such other agreements necessary to satisfy the requirements of Section 4.12, duly executed by BMC. (i) FIRPTA AFFIDAVIT. An affidavit of JABO , in the form of EXHIBIT K attached hereto, stating the U.S. taxpayer identification number of JABO and that JABO is a "United States person", as defined by the Internal Revenue Code Section 7701(a)(30). -11- (j) RECORDS. At the Closing, the BMC Parties shall deliver hard copies (originals, to the extent they exist) in their existing file folders (to the extent they exist in such folders), and to the extent available in electronic format on computer disk or other comparable storage medium, to, or at the direction of, the Operating Partnership (a) all documents, records and books of account, or copies thereof, relating to the construction, ownership, management, leasing and operation of the Properties which are in the BMC Parties' possession or in the possession of their agents and owned by BMC on the Closing Date, including original Percentage Leases, Space Leases, the Ground Lease and other ground leases, if any, and all associated lease files, (b) any other financial information in the BMC Parties' possession or in the possession of their agents and owned by BMC relating to the Properties, and (c) to the extent available and in the possession of the BMC Parties, copies of all litigation files and information on claims and insurance claims relating to the Properties, the Lessees or Westboy; provided, however, that the BMC Parties shall retain possession of such documents, records, books and other information that BMC has a right to possess, as agent for a Lessee under a Management Agreement, subject to the terms and conditions of such Management Agreement. The BMC Parties shall also deliver to, or at the direction of, the Operating Partnership, both prior to and after the Closing, copies of any documents in the possession of the BMC Parties or their agents and owned by BMC that may be necessary or helpful to the Operating Partnership in adjusting losses or claims or otherwise enforcing or settling claims with respect to all Percentage Leases, Space Leases, insurance policies or contracts relating to the Properties. (k) OTHER DOCUMENTS, ETC. All other instruments and documents, if any, required to be executed, acknowledged and/or delivered by the BMC Parties to the Operating Partnership and/or the REIT pursuant to and in accordance with any of the other provisions of this Agreement and the other Transaction Documents or instruments as the Operating Partnership or the REIT may reasonably request to effect the transactions contemplated in the aforementioned agreements. 5.3 CLOSING DELIVERIES BY THE BLC PARTIES. At the Closing, the respective BLC Parties will deliver to the respective BMC Parties each of the following instruments, documents and payments: (a) CONSIDERATION. The Consideration as provided for in Section 3.1 of this Agreement by execution of the OP Partnership Amendment. (b) OP PARTNERSHIP AMENDMENT. The OP Partnership Amendment, duly executed by the REIT, as general partner of the Operating Partnership. (c) REGISTRATION RIGHTS AGREEMENT. The Registration Rights Agreement, duly executed by the REIT. (d) AMENDMENT TO RIGHTS AGREEMENT. The Amendment to Rights Agreement, duly executed by the REIT and National City Bank. (e) MANAGEMENT AGREEMENTS. The Management Agreements with respect to each of the Lessee Properties, duly executed by the applicable Lessee. -12- (f) INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT. The Interests Assignment and Assumption Agreement, duly executed by the Operating Partnership. (g) WESTBOY INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT. The Westboy Interests Assignment and Assumption Agreement, duly executed by the Operating Partnership. (h) CERTIFICATES. (i) A certificate issued by the Secretary of State of the State of Ohio and dated not earlier than thirty (30) days prior to the Closing Date, certifying as to the good standing of the REIT and the full force and effect of the Operating Partnership under the laws of the State of Ohio. (ii) A duly executed certificate of the Secretary of the REIT, dated as of the Closing Date, certifying: (A) that (i) attached to such certificate is a true and complete copy of the resolutions adopted by the board of directors of the REIT, which resolutions approve the transactions contemplated hereunder and authorize the REIT on its own behalf and as general partner of the Operating Partnership to execute and deliver this Agreement and the other Transaction Documents or any instrument necessary for the consummation of the transactions contemplated hereunder and thereunder, and which provide for the reservation of the full number of REIT Shares that will be deliverable upon redemption in full of all the OP Units issued pursuant to Section 3.1 should the REIT elect to issue such REIT Shares upon any redemption request, (ii) the adoption of the attached resolutions by the board of directors of the REIT constitutes the only authorization required for the aforementioned execution, delivery and consummation by the REIT on its own behalf and on behalf of the Operating Partnership, and (iii) such authorization has not been revoked or otherwise withdrawn and remains in full force and effect; (B) that (i) attached to such certificate is a true and complete copy of the OP Partnership Agreement, the certificate of limited partnership of the Operating Partnership and the articles of incorporation and code of regulations of the REIT, (ii) such instruments have not been amended (except as noted therein) and (iii) such instruments are in full force and effect as of such Closing Date. (i) OPINION. An opinion of counsel to the BLC Parties in substantially the form attached as EXHIBIT L. (j) WESTBOY NOTE. The Westboy Note Assumption, duly executed by the Operating Partnership and Westboy. (k) TRANSFER TAXES. All necessary sales, use and transfer tax reports and related instruments required to be filed with any Governmental Authority in connection with the transfer to the Operating Partnership of the Interests and Westboy Interests, duly executed by the -13- BLC Parties, and payment of or provisions for any amounts due to any Governmental Authority in connection therewith. (l) LIQUOR LICENSES. An assignment and assumption of the liquor licenses listed on SCHEDULE 4.11, duly executed by the Operating Partnership and the applicable Lessee in each case and such other agreements necessary to satisfy Section 4.11, duly executed by the Operating Partnership and the applicable Lessee. (m) FRANCHISE AGREEMENTS. An assignment and assumption of the franchise license agreements listed on SCHEDULE 4.12, duly executed by the Operating Partnership or the applicable Lessee and such other agreements necessary to satisfy the requirements of Section 4.12, duly executed by the Operating Partnership and the applicable Lessee. (n) ALIGNMENT OF INTERESTS CONSENT. The Operating Partnership's consent in the form of EXHIBIT M attached hereto (the "ALIGNMENT OF INTERESTS CONSENT"), as required under the Alignment of Interests Agreement, dated November 4, 1996, among the REIT, the Operating Partnership, BMC, TBG, Purchasing Concepts, Inc., Robert J. Boykin and John E. Boykin. (o) OTHER DOCUMENTS, ETC. All other instruments and documents, if any, required to be executed, acknowledged and/or delivered by the Operating Partnership and/or the REIT to the BMC Parties pursuant to and in accordance with any of the other provisions of this Agreement, the other Transaction Documents and such other agreements or instruments as the BMC Parties may reasonably request to effect the transactions contemplated in the aforementioned agreements. ARTICLE 6 CONDITIONS PRECEDENT TO CLOSING 6.1 CONDITIONS PRECEDENT TO OBLIGATION OF THE REIT AND THE OPERATING PARTNERSHIP. The obligation of the REIT and the Operating Partnership to consummate the transactions contemplated herein shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by the REIT and/or the Operating Partnership in their sole discretion: (a) DELIVERY OF DOCUMENTS. The BMC Parties shall have delivered all of the items required to be delivered to the BLC Parties pursuant to Section 5.2. (b) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and warranties of the BMC Parties in Section 7.2 of this Agreement shall be true and correct in all material respects as originally made and, if applicable, as remade on and as of the Closing Date (or, if made as of a specified date, as of such date). (c) OBSERVANCE OF COVENANTS. The BMC Parties shall have performed and observed, in all material respects, all covenants and agreements in this Agreement to be performed and observed by the BMC Parties as of the Closing Date. -14- (d) TRANSACTIONS NOT PROHIBITED. No statute, temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation by the BMC Parties or any of the Lessees of the transactions contemplated by this Agreement, and the other Transaction Documents shall be in effect or, if applicable, have been threatened in writing by any Governmental Authority, other than any such order or other legal restraint or prohibition or written threat thereof obtained or instituted by or on behalf of the REIT, the Operating Partnership or any of their Affiliates. (e) CONSENTS AND WAIVERS. The BLC Parties shall have obtained the lender, franchisor and other third-party consents and waivers, consents, authorizations and approvals from the limited partners of the Operating Partnership necessary to consummate the transactions contemplated herein, which consents, waivers, authorizations and approvals are set forth on SCHEDULE 6.1(e). The BLC Parties agree to use commercially reasonable efforts to obtain such consents, waivers, authorizations and approvals. 6.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BMC PARTIES. The obligation of the BMC Parties to consummate the transactions contemplated herein shall be subject to the fulfillment on or before the Closing Date of all of the following conditions, any or all of which may be waived by the BMC Parties in their sole discretion: (a) RECEIPT OF CONSIDERATION. The Operating Partnership shall have delivered the Consideration. (b) DELIVERY OF DOCUMENTS. The BLC Parties shall have delivered all of the items required to be delivered to the BMC Parties pursuant to Section 5.3. (c) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and warranties of the BLC Parties contained in Section 7.1 of this Agreement shall be true and correct in all material respects as originally made and as remade on and as of the Closing Date (or, if made as of a specified date, as of that date). (d) OBSERVANCE OF COVENANTS. The BLC Parties shall have performed and observed, in all material respects, all covenants and agreements in this Agreement to be performed and observed by the BLC Parties as of the Closing Date. (e) TRANSACTIONS NOT PROHIBITED. No statute, temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation by the BLC Parties of the transactions contemplated by this Agreement and the other Transaction Documents shall be in effect, or, if applicable, have been threatened in writing by any Governmental Authority, other than any such order or other legal restraint or prohibition or written threat thereof obtained or initiated by or on behalf of the BMC Parties or any of their Affiliates. (f) REIT SHARES. The REIT shall have reserved for issuance and made available, free from preemptive rights, out of the REIT's authorized but unissued common shares, solely for the purpose of issuance upon redemption of the OP Units, the full number of -15- REIT Shares then deliverable upon redemption in full of all of the OP Units should the REIT elect to issue all such REIT Shares upon any such redemption request. (g) CONSENTS AND WAIVERS. The BMC Parties shall have obtained the lender, franchisor and other third-party consents, waivers, authorizations and approvals necessary to consummate the transactions contemplated herein, which consents, waivers, authorizations and approvals are set forth in SCHEDULE 6.2(g). The BMC Parties agree to use commercially reasonable efforts to obtain such consents, waivers, authorizations, and approvals, and any other requirements and conditions precedent with respect to such consents, waivers, authorizations and approvals. (h) TRANSFER TAXES. All necessary sales, use and transfer tax reports and related instruments required to be filed with any Governmental Authority in connection with the transfer to the Operating Partnership of the Interests and Westboy Interests shall have been prepared by the BLC Parties, and payment of or provisions for any amounts due to any Governmental Authority in connection herewith shall have been made by the BLC Parties. ARTICLE 7 REPRESENTATIONS AND WARRANTIES 7.1 REPRESENTATIONS AND WARRANTIES OF THE BLC PARTIES. In order to induce the BMC Parties to carry out the transactions contemplated by this Agreement, the REIT and the Operating Partnership, jointly and severally, make the following representations and warranties to the BMC Parties: (a) ORGANIZATION, GOOD STANDING AND AUTHORITY OF THE REIT. The REIT is a corporation, duly organized, validly existing and in good standing under the laws of the State of Ohio, is duly qualified to do business in all jurisdictions where such qualification is necessary to carry on its business as now conducted, except where failure to so qualify would not interfere in any material respect with the ability of the REIT to consummate any of the transactions contemplated in this Agreement, and the REIT is authorized to consummate the transactions contemplated hereby, to fulfill all of its respective obligations hereunder and under all documents contemplated hereunder to be executed by the REIT and to execute and deliver this Agreement, the other Transaction Documents and all documents contemplated hereunder and thereunder to which it is a party, and to perform all of its respective obligations hereunder and thereunder. The REIT has delivered to the BMC Parties true, correct and complete copies of the articles of incorporation of the REIT and the code of regulations of the REIT. (b) ORGANIZATION, FULL FORCE AND EFFECT AND AUTHORITY OF THE OPERATING PARTNERSHIP. The Operating Partnership is a limited partnership, duly organized, validly existing and in full force and effect under the laws of the State of Ohio, is duly qualified to do business in all jurisdictions where such qualification is necessary to carry on its business as now conducted, except where failure to so qualify would not interfere in any material respect with the ability of the Operating Partnership, the REIT or, with regard to the Management Agreements, the Lessees to complete any of the transactions contemplated in this Agreement or to issue the OP Units and comply with their terms or materially and adversely affect the business, operations, financial -16- conditions or assets of the Operating Partnership or any of the Lessees, determined either (i) without giving effect in whole or in part to the transactions contemplated herein, or (ii) after giving such effect (any such interference or adverse effect, a "BLC MATERIAL ADVERSE EFFECT"), and the Operating Partnership is authorized to consummate the transactions contemplated hereby and under any of the Transaction Documents to which it is a party and to fulfill all of its respective obligations hereunder and thereunder and under all documents contemplated hereunder and thereunder to be executed by the Operating Partnership, and has all necessary power to issue the OP Units and to execute and deliver this Agreement and the other Transaction Documents to which it is a party all documents contemplated hereunder and thereunder to be executed by the Operating Partnership and to perform all of its respective obligations hereunder and thereunder. The Operating Partnership has delivered to the BMC Parties true, correct and complete copies of the OP Partnership Agreement and the certificate of limited partnership of the Operating Partnership. (c) THE BLC PARTIES' AUTHORIZATION AND BINDING EFFECT. This Agreement and the other Transaction Documents have been, and all documents contemplated hereunder and thereunder to be executed by or at the direction of the Operating Partnership and/or the REIT, when executed and delivered will have been, duly authorized and approved by all requisite partnership or corporate action on the part of the Operating Partnership and the REIT and each is, or will be, upon execution and delivery, as applicable, a legal, valid and binding obligation of the Operating Partnership and/or the REIT, as the case may be, enforceable against each such party in accordance with each of its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors' rights generally and to general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law. Neither the execution and delivery of this Agreement, the other Transaction Documents or any document contemplated hereunder and thereunder to be executed by or at the direction of the Operating Partnership or the REIT, nor the issuance of the OP Units and performance of the obligations of the Operating Partnership or the REIT or the Lessees hereunder or thereunder, will (i) result in the violation of any provision of the OP Partnership Agreement, the articles of limited partnership of the Operating Partnership or the certificate of incorporation or code of regulations of the REIT or the Lessee Organizational Documents, or (ii) conflict with any order or decree of any court or governmental instrumentality of any nature by which the Operating Partnership or the REIT is bound or to which it is subject. (d) THE LESSEES AUTHORIZATION AND BINDING EFFECT. The Management Agreements and all documents contemplated thereunder to be executed by the Lessees, when executed and delivered, will have been duly authorized by all requisite corporate action on the part of each of the Lessees and each is, or will be, upon execution and delivery, a legal, valid and binding obligation of each such Lessee, enforceable in accordance with its respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors' rights generally and to general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law. Neither the execution and delivery of the Management Agreements or any document contemplated thereunder to be executed by the Lessees nor performance of the obligations of the Lessees thereunder, will result in the violation -17- of any provision of the OP Partnership Agreement, the articles of limited partnership of the Operating Partnership or the certificate of incorporation or code of regulations of the REIT. (e) CONFLICTING AGREEMENTS AND OTHER MATTERS. The execution, delivery and performance of this Agreement and the other Transaction Documents by the REIT and the Operating Partnership (and the Lessees, solely with respect to performance of obligations after the date hereof) and fulfillment of and compliance with the terms and provisions hereof and thereof, the issuance of the OP Units to be issued to JABO pursuant to this Agreement, and the issuance of the REIT Shares upon redemption, will not (i) violate any provision of any law presently in effect having applicability to the REIT or the Operating Partnership or any of their properties, except such violations as could not reasonably be expected to have a BLC Material Adverse Effect, (ii) conflict with or result in a breach of or constitute a default under the OP Partnership Agreement, as amended by the OP Partnership Amendment, charter or bylaws or any other organizational document of either the REIT or the Operating Partnership, (iii) require any consent, approval (other than shareholder approval of the issuance of REIT Shares upon redemption of the OP Units issued to JABO pursuant to this Agreement) or notice (not received and/or given prior to the Closing) under, or conflict with or result in a breach of, constitute a default or accelerate any right under, any note, bond, mortgage, license, indenture or loan or credit agreement, or any other agreement or instrument, to which the REIT or the Operating Partnership is a party or by which any of its respective properties is bound, (iv) require any of the BLC Parties to obtain any consent, approval or action of, or make any filing with or give any notice to, any Governmental Authority or any other Person, (v) violate any order or decree of any court, arbitrator or other Governmental Authority against or binding upon any of the BLC Parties or, to the Actual Knowledge of the REIT or the Operating Partnership, any of its assets, or (vi) result in, or require the creation or imposition of, any lien upon or with respect to any of the Interests, other than as contemplated herein, except such consents, approvals, notices, conflicts, breaches, defaults, results or requirements as could not reasonably be expected to have a BLC Material Adverse Effect or impair or interfere with consummation of the transactions contemplated herein. In addition, to each of the BLC Parties' Actual Knowledge, excluding facts or circumstances generally affecting the lodging industry, no facts or circumstances exist that, individually or in the aggregate, could reasonably be expected to have a BLC Material Adverse Effect or impair or interfere in any material respect with the consummation of the transactions contemplated herein. (f) LITIGATION, PROCEEDING, ETC. Except to the extent set forth in SCHEDULE 7.1(f)(i), there is no action, suit, notice of violation, proceeding or investigation pending or, to the Actual Knowledge of the REIT and the Operating Partnership, threatened in writing against or affecting the REIT or the Operating Partnership or any of their respective properties before or by any Governmental Authority which (i) challenges the legality, validity or enforceability of the transactions contemplated herein or of any of the documents relating to the transactions contemplated herein, or (ii) could (individually or in the aggregate) reasonably be expected to have a BLC Material Adverse Effect or (iii) would (individually or in the aggregate) impair the ability of either the REIT or the Operating Partnership to perform fully on a timely basis any obligations which it has under any of the documents relating to the transactions contemplated herein. Except to the extent set forth in SCHEDULE 7.1(f)(ii), none of the BLC Parties have received written notice or have Actual Knowledge that it is (x) in default under or in violation of any indenture, loan or credit agreement or any other agreement or instrument to which any of the -18- BLC Parties is a party or by which the BLC Parties or any Property are bound, (y) in violation of any order of any Governmental Authority, or (z) in violation of any law, in each case of (x)-(z), which could reasonably be expected to (1) adversely affect the legality, validity or enforceability of the documents relating to the transactions contemplated herein, (2) adversely and materially impair any of the BLC Parties' ability or obligation to perform fully on a timely basis any obligation which it has under the documents relating to the transactions contemplated herein, or (3) have any BLC Material Adverse Effect. (g) GOVERNMENTAL CONSENTS, ETC. Except as may be required under any federal or applicable state securities laws in connection with the performance by the BLC Parties of their obligations under the OP Partnership Agreement with respect to certain registration rights granted thereunder and assuming the accuracy of the representations and warranties of, and the performance of the agreements of, the BMC Parties under this Agreement and any other Transaction Document, no authorization, consent, approval, waiver, license, qualification or formal exemption from, nor any filing, declaration, qualification or registration with, any Governmental Authority or any securities exchange is required in connection with (a) the execution, delivery or performance by the BLC Parties of this Agreement and any other Transaction Document, or (b) the issuance of the OP Units pursuant to this Agreement. At the Closing Date, the BLC Parties will have made all filings and given all notices to Governmental Authorities and obtained all necessary registrations, declarations, approvals, orders, consents, qualifications, franchises, certificates, permits and authorizations from any Governmental Authorities, to own or lease its properties and to conduct its businesses as currently owned, leased or conducted, or as contemplated hereby, except where failure to do so could not reasonably be expected to have a BLC Material Adverse Effect. (h) COMPLIANCE WITH LAWS. (i) None of the BLC Parties is in violation of any law, regulation, order or decree of any Governmental Authority, court order, decision, ruling, order or award of any arbitration other than a violation which, individually or in the aggregate with other such violations, would not impair or interfere in any material respect with the BLC Parties' ability to consummate the transactions contemplated herein or have a BLC Material Adverse Effect. None of the BLC Parties has received any written notice of violation or claimed violation of any such law, regulation or decree, or pending regulatory proceeding, action or investigation with respect thereto, or any written threat by any Governmental Authority to take regulatory action against any of the BLC Parties or any of the Properties by reason of any such violation or claimed violation other than such of the foregoing as, individually or in the aggregate, would not impair or interfere in any material respect with the BLC Parties' ability to consummate the transactions contemplated herein or have a BLC Material Adverse Effect. (ii) Except as set forth on SCHEDULE 7.1(h) hereto, no BLC Party has Actual Knowledge or has received any written notice within the past twelve (12) months from any Governmental Authority having jurisdiction over any of the BLC Parties of any violation of any employment or other regulatory law, order, regulation or requirement that remains uncured and which, individually or in the aggregate with other such violations which remain uncured, would impair or interfere in any material respect with -19- the BLC Parties' ability to consummate the transactions contemplated herein or have a BLC Material Adverse Effect. (i) CAPITALIZATION. (i) OP UNITS AND PARTNERSHIP UNITS. The capitalization of the Operating Partnership is as set forth in EXHIBIT A of the OP Partnership Agreement. As of the date hereof, an aggregate of 16,681,804 Partnership Units are issued and outstanding, of which none are 1999-A Preferred Units and 16,681,804 are Partnership Units. The "conversion factor" as defined in the OP Partnership Agreement equals one (1) and prior to the date hereof no event has occurred which could cause it to be changed. There are no restrictions on the transfer of the OP Units to be issued hereunder other than those contained in the OP Partnership Agreement (as amended by the OP Partnership Amendment) or those arising out of federal and applicable state securities laws. All currently issued and outstanding Partnership Units were, and all of the OP Units to be issued in connection with the transactions contemplated herein are duly authorized and validly issued in accordance with the terms of the OP Partnership Agreement and in compliance with federal and applicable state securities laws, and, are fully paid and non-assessable with no pre-emptive rights and the OP Units to be issued in connection with the transactions contemplated herein will be issued upon the terms provided in the OP Partnership Agreement, as the same is to be amended as permitted or required hereunder. Except as set forth on SCHEDULE 7.1(i)(a) and except for the OP Units to be issued pursuant to this Agreement, as of the date hereof, there are no outstanding subscriptions, options, warrants, preemptive or other rights or other security interests or other arrangements or commitments obligating the Operating Partnership to issue any OP Units or any other security interests, or to acquire or redeem any of them. Except as described on SCHEDULE 7.1(i)(a), there are no obligations to register any OP Units for any member of the Operating Partnership for trading. At the Closing, upon receipt of the Interests and Westboy Interests being contributed in exchange for OP Units, the Operating Partnership will issue the OP Units to be issued hereunder free and clear of all liens other than those suffered or permitted or granted by the BMC Parties and, as of the Closing, JABO will be admitted as a limited partner of the Operating Partnership. The issuance of the OP Units to JABO at the Closing will not require any approval or consent of any Person, except any such approval as shall have been obtained on or prior to the date hereof. Assuming each of the BMC Parties is either an "accredited investor" as defined in Rule 501 under the Securities Act or a person who is not an accredited investor but was advised by a qualified purchaser's representative (and there are no more than thirty-five (35) such non-accredited investors), the issuance of the OP Units hereunder is exempt from registration under the Securities Act and the applicable state securities laws. (ii) REIT SHARES. The SEC Documents set forth (i) the authorized capital shares of the REIT, and (ii) for each class and series of capital stock of the REIT, the total number of options and warrants to acquire such capital stock and any commitments to issue or grant any of the foregoing. As of December 31, 2001, the total number of shares of such capital shares outstanding is 17,390,690, of which none are preferred shares and 17,390,690 are REIT Shares. All of the outstanding REIT Shares are duly and validly issued, fully paid and non-assessable and not subject to any -20- preemptive rights. Except as set forth on SCHEDULE 7.1(i)(b) and except for REIT Shares that may be issued upon redemption of the OP Units issued under this Agreement as Consideration, as of the date hereof, there are no outstanding subscriptions, options, warrants, preemptive or other rights or other security interests or other arrangements or commitments obligating the REIT to issue any REIT Shares, any other shares of capital stock or any other security interests, or to acquire or redeem any of them. Except as described on SCHEDULE 7.1(i)(b), there are no obligations to register for trading any REIT Shares or other equity interests in the REIT for any person. The REIT Shares to be issued upon redemption of the OP Units issued herein as Consideration will be issued free and clear of all liens other than those suffered or permitted or granted by the BMC Parties and the issuance of such REIT Shares to JABO will not require any approval or consent of any Person, except for shareholder approval required for the issuance of over 1% of the REIT's capital stock at any one instance, assuming such issuance were to occur on the Closing Date. For the purposes hereof, "SEC DOCUMENTS" shall mean all reports, schedules, forms, statements, proxy information and solicitation materials and other documents required by the Securities Act or the Securities Exchange Act of 1934, as amended, or the rules or regulations promulgated thereunder, filed by the REIT in each case in the form and with the substance prescribed by either such act or such rules or regulations, including, without limitation the most recent filings by the REIT, which were made on November 14, 2001. 7.2 REPRESENTATIONS AND WARRANTIES OF THE BMC PARTIES. In order to induce the BLC Parties to carry out the transactions contemplated by this Agreement, as of the date of this Agreement, the BMC Parties represent and warrant to and agree with each of the BLC Parties, as follows: (a) ORGANIZATION, GOOD STANDING AND AUTHORITY; BINDING EFFECT. (i) BMC is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Ohio, is duly qualified to do business in all jurisdictions where such qualification is necessary to carry on its business as now conducted, except where failure to so qualify would not interfere in any material respect with the ability of BMC to consummate any of the transactions contemplated in this Agreement. (ii) JABO is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, is duly qualified to do business in all jurisdictions where such qualification is necessary to carry on its business as now conducted, except where failure to so qualify would not interfere in any material respect with the ability of JABO to complete any of the transactions contemplated in this Agreement. (iii) BMC owns 99% of the membership interests in JABO and is the managing member of JABO. The John E. Boykin 1997 Amended and Restated Revocable Trust Indenture, dated November 19, 1997, owns 0.4615% of the membership interests in JABO. The Robert W. Boykin Second 1997 Amended and Restated -21- Revocable Trust Indenture, dated July 23, 1997, owns 0.5385% of the membership interests in JABO. (iv) Each of the BMC Parties is authorized to consummate the transactions contemplated hereby, to fulfill all of their respective obligations hereunder and under all documents contemplated hereunder to be executed by the BMC Parties and to execute and deliver this Agreement and the other Transaction Documents and all documents contemplated hereunder and thereunder to be executed by any of the BMC Parties, and to perform all of its respective obligations hereunder and thereunder. The BMC Parties have delivered to the BLC Parties true, correct and complete copies of the certificate of formation of BMC and JABO and the operating agreements of BMC and JABO. (v) JABO has the power to, and is duly authorized and otherwise duly qualified to, purchase and hold securities such as Partnership Units and common shares of the REIT. (vi) This Agreement and the other Transaction Documents have been, and all documents contemplated hereunder and thereunder to be executed by the BMC Parties, when executed and delivered will have been, duly authorized and approved by all necessary action of BMC or JABO, as applicable, and are, or will be upon execution and delivery, a legal, valid and binding obligation of each such party as the case may be, enforceable against each party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws relating to or affecting creditors' rights generally and to general principles of equity (including concepts of materiality, reasonableness, good faith and fair dealing), regardless of whether considered in a proceeding in equity or at law. (vii) Except to the extent set forth in SCHEDULE 7.2(a), the execution, delivery, and performance by each of the BMC Parties of this Agreement and each of the Transaction Documents and the consummation of the transactions contemplated hereby and thereby (including the transfer of the Interests and the Westboy Interests to the Operating Partnership) will not (A) subject to receipt of the consents and approvals described in clause (B), violate any provision of the governing documents of any of the BMC Parties or any Lessee Organizational Documents, except where failure to do so would not interfere in any material respect with the ability of the BMC Parties or the Lessees (other than with respect to the Management Agreements) to complete any of the transactions contemplated in this Agreement or any other Transaction Document and comply with their terms or materially and adversely affect the business, operations, financial condition or assets of the BMC Parties or the Lessees, determined either (i) without giving effect in whole or in part to the transactions contemplated herein, or (ii) after giving such effect, (B) require any of the BMC Parties to obtain any consent, approval, or action of, or make any filing with or give any notice to, any Governmental Authority or any other Person, (C) conflict with, result in the breach of or constitute a default under any lease, note, mortgage, or other binding agreement to which any of the BMC Parties, any Lessee or Westboy is a party or by or to which any of the BMC Parties, Westboy or any of the Lessees may be bound, (D) violate any order or decree of any -22- court, arbitrator or other Governmental Authority against or binding upon any of the BMC Parties or any of the Lessees or, to the Actual Knowledge of BMC, any of the Properties, (E) violate any law or regulation of any Governmental Authority presently in effect to which any of the BMC Parties or any of the Lessees is subject, or (F) result in, or require the creation or imposition of, any lien upon or with respect to any of the Interests, other than as contemplated herein; except, in the case of the preceding clauses (B), (C), (D), (E), and (F), where the failure to obtain a consent, approval or action or to make any filing where the occurrence of such a conflict, breach, default, violation, results or requirements individually or in the aggregate, would not have a material adverse effect on the business, results of operations or financial operation of (x) a Lessee and/or its related Property (a "PROPERTY MATERIAL ADVERSE EFFECT"), or (y) Westboy or the Westboy Properties on an aggregate basis (a "WESTBOY MATERIAL ADVERSE EFFECT") or impair or interfere in any material respect with the consummation of the transactions contemplated herein. In addition, to the Actual Knowledge of the BMC Parties, excluding facts or circumstances generally affecting the lodging industry, no facts or circumstances exist that, individually or in the aggregate, could reasonably be expected to have a Property Material Adverse Effect or impair or interfere in material respect with the consummation of the transactions contemplated herein. (b) TITLE TO INTERESTS AND WESTBOY INTERESTS. (i) The Interests have been duly authorized and validly issued in accordance with the constituent organizational documents of the issuers thereof and applicable law. JABO, immediately preceding the Closing, will own 100% of the Interests to be contributed, free and clear of all rights, liens, claims and encumbrances other than claims or encumbrances arising pursuant to the organizational documents of the relevant issuer of those Interests and claims arising pursuant to this Agreement, and subject to restrictions on transfer under federal and state securities laws. Neither BMC nor JABO has pledged any of the Interests or consented to the pledge or encumbrance of any of the Interests. (ii) The Westboy Interests have been duly authorized and validly issued in accordance with the articles of organization and operating agreement of Westboy and applicable law. JABO, immediately prior to the Closing, will own 100% of the Westboy Interests to be contributed, and are free and clear of all rights, liens, claims and encumbrances other than claims or encumbrances arising pursuant to the articles of organization or operating agreement of Westboy and applicable law and pursuant to this Agreement and restrictions on transfer under federal and state securities laws. Neither BMC nor JABO has pledged any of the Westboy Interests or consented to the pledge or encumbrance of any of the Westboy Interests. (iii) The BMC Operating Agreement, the JABO Operating Agreement, and the Lessee Organizational Documents are described on SCHEDULE 7.2(b) attached hereto, and, prior to the date hereof, a true, correct and complete copy of the Lessee Organization Documents have been delivered to the Operating Partnership or its counsel. The BMC Operating Agreement, the JABO Operating Agreement and the Lessee Organizational Documents are in full force and effect. -23- (c) LITIGATION, PROCEEDING, ETC. There is no action, suit, notice of violation, or proceeding or, to the Actual Knowledge of the BMC Parties, investigation pending or threatened in writing against any of the BMC Parties, any of the Lessees or Westboy before or by any Governmental Authority which (i) challenges the legality, validity or enforceability of the transactions contemplated herein or of any of the documents relating to the transactions contemplated herein, or (ii) could (individually or in the aggregate) reasonably be expected to have a Property Material Adverse Effect or a Westboy Material Adverse Effect, or (iii) would (individually or in the aggregate) impair the ability of the BMC Parties to perform fully on a timely basis any obligations which it has under any of the documents relating to the transactions contemplated herein, other than those which, individually or in the aggregate would neither impair or interfere in any material respect with BMC's ability to consummate the transactions contemplated herein nor have a Property Material Adverse Effect or a Westboy Material Adverse Effect. None of the BMC Parties has received written notice or has Actual Knowledge that it is (x) in default under or in violation of any indenture, loan or credit agreement or any other agreement or instrument to which it, Westboy or any Lessee is a party or by which any of the BMC Parties, Westboy, any Lessee or any Property are bound, (y) in violation of any order of any Governmental Authority, or (z) in violation of any law, in each case of (x)-(z), which could reasonably be expected to (1) adversely affect the legality, validity or enforceability of the documents relating to the transactions contemplated herein, (2) adversely and materially impair any of the BMC Parties' ability or obligation to perform fully on a timely basis any obligation which it has under the documents relating to the transactions contemplated herein, or (3) have any Property Material Adverse Effect or any Westboy Material Adverse Effect. (d) COMPLIANCE WITH LAWS. (i) None of the BMC Parties, Westboy or Lessees is in violation of any law, regulation, order or decree of any Governmental Authority, court order, decision, ruling, order or award of any arbitration other than a violation which, individually or in the aggregate with other such violations, would not impair or interfere in any material respect with BMC's ability to consummate the transactions contemplated herein or have a Property Material Adverse Effect or a Westboy Material Adverse Effect. Neither BMC, nor Westboy, nor any Lessee has received any written notice of violation or claimed violation of any such law, regulation or decree, or pending regulatory proceeding, action or investigation with respect thereto, or any written threat by any Governmental Authority to take regulatory action against BMC or any of the Properties by reason of any such violation or claimed violation other than such of the foregoing as, individually or in the aggregate, would not impair or interfere in any material respect with the BMC Parties' ability to consummate the transactions contemplated herein or have a Property Material Adverse Effect or a Westboy Material Adverse Effect. (ii) Except as set forth on SCHEDULE 7.2(d) hereto, neither BMC, nor Westboy, nor any Lessee has Actual Knowledge or has received any written notice within the past twelve (12) months from any Governmental Authority having jurisdiction over any of the BMC Parties, Westboy or the Lessees of any violation of any employment or other regulatory law, order, regulation or requirement relating to the management of the Properties that remains uncured and which, individually or in the aggregate with other such violations which remain uncured, would impair or interfere in any material respect -24- with the BMC Parties' ability to consummate the transactions contemplated herein or have a Property Material Adverse Effect or a Westboy Material Adverse Effect. (e) PERMITS. Each of the Lessees and Westboy have all material permits that are necessary for the use, operation and licensing of the management of their respective Properties and are not in material violation of any such permits. (f) INSOLVENCY. There are no attachments, executions or assignments for the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy, or under any other debtor relief laws, pending or, to the Actual Knowledge of BMC, threatened in writing against any of the BMC Parties, the Lessees or Westboy. (g) LESSEES AND WESTBOY. (i) each of the Lessees and Westboy is duly organized and validly existing under the laws of its jurisdiction of organization and has the power and authority to carry on its business as now being conducted; (ii) each Lessee and Westboy is duly qualified to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership and/or leasing of its properties makes such qualification necessary, other than in such jurisdictions where the failure to be so qualified or licensed, individually or in the aggregate, could not reasonably be expected to have a Property Material Adverse Effect or a Westboy Material Adverse Effect; (iii) none of the Lessees or Westboy has conducted or currently conducts any business or has owned or owns any assets other than cash and investment securities and direct or indirect leasehold interests in a Property and assets relating thereto; (iv) SCHEDULE 7.2(g)(iv) attached hereto identifies for each Lessee and Westboy the relevant certificate of formation, the relevant operating agreement, as applicable, and in each case all amendments thereto through the date of this Agreement, and the BMC Parties have delivered to the Operating Partnership complete and correct copies of each of such instruments, agreements and amendments; (v) none of the Lessees or Westboy is in breach of, or in default under, the constituent organizational documents of such entity, no member of any Lessee or Westboy is in breach of, or default under, the organizational documents of such Lessee or Westboy and no event has occurred that, with the giving of notice or the passage of time, or both, would constitute a default under the constituent organizational documents of any of the Lessees or Westboy, except for such breach or violation that would not result in a Property Material Adverse Effect or a Westboy Material Adverse Effect; (vi) Except as identified on SCHEDULE 7.2(g)(vi) no member or other affiliate of any of the Lessees or Westboy has made a loan to such Lessee or Westboy that is outstanding on the date hereof and none of the BMC Parties has any outstanding capital commitments to any of the Lessees or Westboy, except for the Westboy Note, -25- which the Operating Partnership will assume pursuant to the Westboy Note Assumption as contemplated by this Agreement. (vii) none of the Lessees or Westboy is in default under, or in breach of, any of the Percentage Leases or Space Leases, and to the Actual Knowledge of the BMC Parties no event has occurred which, with the giving of notice or the passage of time or both, would constitute a default under any of the Percentage Leases or Space Leases, which in each case could reasonably be expected to constitute a Property Material Adverse Effect or a Westboy Material Adverse Effect, as the case may be. (h) OPERATING CONTRACTS. Except as set forth on SCHEDULE 7.2(h) ("OPERATING CONTRACTS"), there are no management, service, operating, listing, brokerage, supply and maintenance agreements, equipment leases, or other contracts or agreements between Westboy or any Lessee, or any of their Affiliates and any other party relating to operations at the Property leased by it as of the date hereof, other than those that (i) involve total payment of not more than $25,000 per annum or are terminable by the relevant Lessee or Westboy without a penalty in excess of $1,000 upon six (6) months prior written notice or less or (ii) are terminable by the relevant Lessee or Westboy without penalty upon the sale of the Property. Each of the Operating Contracts is in full force and effect and, except as set forth on SCHEDULE 7.2 (h), has not been amended, modified or supplemented. (i) FINANCIAL STATEMENTS. The financial statements for Westboy as of and for the year ended December 31, 2000, which were previously made available to the BLC Parties, were prepared in accordance with GAAP, and, except as disclosed on SCHEDULE 7.2(i), to the Actual Knowledge of the BMC Parties, fairly present in all material respects and in accordance with applicable accounting principles the financial position and results of operations of Westboy at or as of the date or period specified therein. Since December 31, 2000, except as set forth on SCHEDULE 7.2(I), Westboy has conducted its business in the ordinary course consistent in all material respects with past practice. (j) NO OTHER LIABILITIES. Except as described in any of the Transaction Documents, or any exhibits or schedules hereto and thereto or as otherwise disclosed in writing to the BLC Parties, with the exception of the applicable Lease, none of the Lessees has incurred any material liability, whether absolute, accrued, contingent or otherwise. To the Actual Knowledge of the BMC Parties, Westboy has not incurred any liability, whether absolute, accrued, contingent or otherwise that could reasonably be expected to result in a Westboy Material Adverse Effect, except as set forth in the financial statements for Westboy, which were previously made available to the BLC Parties, and except for liabilities incurred in the ordinary course of business or that are not required by GAAP consistently applied to be reflected on such financial statements. (k) EMPLOYEES. Neither Westboy nor any Lessee has any employees or maintains any "EMPLOYEE BENEFIT PLAN" as that term is defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and neither Westboy nor any of the Lessees has ever had any employees or maintained any such Employee Benefit Plan. -26- (l) NO FOREIGN OWNERS. None of the BMC Parties, Lessees or Westboy is or will become, directly or indirectly, a Foreign Owner (as hereinafter defined) in the Operating Partnership as a result of the transactions contemplated by this Agreement. "FOREIGN OWNER" as used herein, means a foreign person or a person that is directly or indirectly owned, in whole or in part, by a foreign person as determined in accordance with Section 897(h)(4) of the Internal Revenue Code of 1986 as amended and the regulations promulgated thereunder. (m) PRIVATE OFFERING. None of the BMC Parties, nor any Person acting on their behalf has taken, or will prior to the applicable Closing Date take, any action that could reasonably be expected to subject the OP Units issued on such Closing Date to the registration requirements of Section 5 of the Securities Act of 1933, as amended. (n) PARTNERSHIP STATUS; OWNERSHIP OF CORPORATIONS. JABO is treated as a partnership and the Lessees and Westboy are treated as a single-member limited liability companies that are disregarded as entities separate from their respective owners, for federal income tax purposes. Neither JABO, any the Lessees nor Westboy have made any election to be taxed as a corporation for federal income tax purposes. None of the Lessees owns any of the stock of any entity that is treated as a corporation or an association taxed as a corporation for federal income tax purposes. (o) INVESTMENT REPRESENTATIONS. JABO, for itself, and for each member or other equity holder of JABO, hereby acknowledges that it (i) has been given full and complete access to the Operating Partnership and its management in connection with this Agreement and the transactions contemplated hereby, (ii) has had the opportunity to review all documents relevant to its decision to enter into this Agreement, and (iii) has had the opportunity to ask questions of the Operating Partnership and its management concerning its investment in the Operating Partnership and the transactions contemplated hereby. JABO, for itself and for each member of JABO, acknowledges that it understands that the OP Units to be purchased or received by it hereunder will not be registered under the Securities Act in reliance upon the exemption afforded by Section 4(2) thereof for transactions by an issuer not involving any public offering and will not be registered or qualified under any applicable state securities laws. JABO represents that (i) it is acquiring such OP Units for investment only and without any view toward distribution thereof in violation of any applicable securities or other laws, and it will not sell or otherwise dispose of such OP Units except in compliance with the registration requirements or exemption provisions of any applicable federal or state securities laws and in accordance with the terms of such securities set forth in the OP Partnership Agreement, (ii) its economic circumstances are such that it is able to bear all risks of the investment in the Partnership Units for an indefinite period of time, including the risk of a complete loss of its investment in the Partnership Units, (iii) it has knowledge and experience in financial and business matters sufficient to evaluate the risks of investment in the OP Units, and (iv) it has consulted with its own counsel and tax advisor, to the extent deemed necessary by it, as to all legal and taxation matters covered by this Agreement and has not relied upon the Operating Partnership for any explanation of the application of the various federal or state securities laws or tax laws with regard to its acquisition of the OP Units. JABO further acknowledges and represents that it has made its own independent investigation of the Operating Partnership and the business proposed to be conducted by the Operating Partnership and that any information relating thereto furnished to JABO was supplied by or on behalf of the Operating Partnership. -27- (p) OWNERSHIP OF ASSETS. The Lessees have good right, title and interest in and to the Assigned Property and to the leasehold interests in the Percentage Leases, free and clear of all liens or encumbrances. 7.3 SURVIVAL. The representations and warranties in this Article VII shall survive the Closing for two (2) years following the Closing Date (the "GENERAL SURVIVAL PERIOD"); provided, however, that the representations and warranties set forth in Section 7.2(g)(vii) and Sections 7.2(c)(ii), 7.2(d), 7.2(e) and 7.2(j) to the extent they apply to a claim relating to the condition or maintenance of the Properties shall survive the Closing for one (1) year following the Closing Date (the "PROPERTY SURVIVAL PERIOD"), except for representations and warranties regarding any Environmental Liabilities, which shall survive until the expiration of the relevant statutes of limitation applicable to the relevant Environmental Liabilities (the "ENVIRONMENTAL LIABILITIES SURVIVAL PERIOD"; each of the Environmental Liabilities Survival Period, the General Survival Period and Property Survival Period, a "SURVIVAL PERIOD"). ARTICLE 8 INDEMNIFICATION 8.1 OBLIGATION OF THE BLC PARTIES TO INDEMNIFY. (a) The BLC Parties hereby jointly and severally agree to indemnify, defend and hold harmless each of the BMC Parties and their respective directors, officers, employees, representatives, members, stockholders, partners, and Affiliates (the "BMC INDEMNITEES") from and against all costs, liabilities, damages and expenses (including, without limitation, reasonable attorneys' fees and disbursements) imposed upon, incurred by (whether by way of judgment, award, decree, settlement payment or otherwise) or suffered by any of the BMC Parties by reason of any (i) breach or inaccuracy of any representation or warranty of the BLC Parties contained in Section 7.1 or in any certificate delivered pursuant to Section 5.3, (ii) breach of any covenant of the BLC Parties (by them, or, with respect to actions taken after the Closing Date, by the Lessees) and their Affiliates contained herein or in any Transaction Document, (iii) any failure (by them or, with respect to actions taken after the Closing Date, by the Lessees) to comply with the terms of any Transaction Document provided hereunder or thereunder, including, without limitation, the failure to issue any OP Units at the Closing as provided herein; or (iv) any Environmental Liabilities for which BMC would have been indemnified under the terms of the Lease as of the date hereof. (b) In addition, the BLC Parties, jointly and severally, agree to indemnify, protect, defend, and hold each of the BMC Indemnities harmless from and against any and all claims, causes of action, demands, obligations, losses, damages, liabilities, judgments, costs and expenses (including, without limitation, reasonable attorneys' fees, charges and disbursements) relating to or arising in respect of (i) any liabilities, costs and charges in connection with any of the liquor licenses for any of the Properties, including, without limitation the costs involved in connection with the transfer of such licenses to any of the BLC Parties or the Lessees or any payments or obligations to be performed pursuant to such liquor licenses (whether or not assigned by BMC to a Lessee) after the date hereof; (ii) any liabilities, costs and charges in connection with any of the franchise license agreements for any of the Properties, including, -28- without limitation, the costs involved in connection with the transfer of such franchise license agreements to any of the BLC Parties or the Lessees or any payments to be made or obligations to be performed pursuant to such franchise license agreements (whether or not assigned by BMC to a Lessee) after the date hereof; and (iii) any obligations of BMC to Westboy pursuant to the Westboy Note. Notwithstanding any of the foregoing provisions of this Section 8.1(b), the BLC Parties shall have no obligation to indemnify the BMC Indemnitees with respect to any matter for which any of the BLC Indemnitees is entitled to indemnification pursuant to either the Management Agreements or this Agreement. (c) In the case of any claim asserted by a third party against the BMC Indemnitees, including without limitation, any claim by a Governmental Authority and any request by such Governmental Authority to audit or otherwise inquire into or examine (an "INQUIRY") any matters as to which a claim might arise hereunder, and for which the BLC Parties have agreed to indemnify the BMC Indemnitees pursuant to Section 8.1(a) and (b), the BMC Indemnitees shall notify the BLC Parties for the purpose of representing their collective interests in the event of a claim against the BMC Indemnitees promptly after the BMC Indemnitees have Actual Knowledge of any claim as to which indemnity may be sought or as to any such Inquiry, and the BMC Indemnitees shall permit the BLC Parties to assume the defense of any claim or any litigation resulting therefrom or administer such Inquiry, provided, that, (i) counsel to the BLC Parties, who shall conduct the defense of such claim or litigation or the administration of such Inquiry, shall be reasonably satisfactory to the BMC Indemnitees, and the BMC Parties may participate in such defense at their expense, and (ii) the omission by the BMC Indemnitees to give notice as provided herein shall not relieve the BLC Parties of their indemnification obligation under this Agreement except to the extent that the BLC Parties are materially damaged as a result of such failure to give such notice. The BLC Parties, in the defense of any such claim or litigation, shall not, except with the consent of the BMC Parties (x) consent to entry of any judgment or enter into any settlement that provides for injunctive or other non-monetary relief affecting the BMC Indemnitees or that does not include as a term thereof the giving by the claimant or plaintiff to the BMC Indemnitees of an unconditional release from all liability with respect to such claim or litigation, or (y) pursue any course of defense of any claim subject to indemnification hereunder, if the BMC Parties shall reasonably and in good faith determine that the conduct of such defense might be expected to affect the BMC Parties in any material respect. In the event that the BMC Parties shall reasonably and in good faith determine that any proposed settlement of any claim subject to indemnification hereunder by the BLC Parties might be expected to affect materially and adversely the BMC Parties or that the BMC Parties may have available one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the BLC Parties in respect of such claims or litigation relating thereto, the BMC Parties shall have the right at all times to take over and assume control over the settlement, negotiations and litigation relating to any such claim at the sole cost of the BLC Parties, provided, that, if the BMC Parties do so take over and assume control, the BMC Parties shall not settle such claim or litigation without the written consent of the BLC Parties, such consent not to be unreasonably withheld, and the liability of the BLC Parties with respect to such claim or litigation shall in no event exceed the amount the BLC Parties would have paid in settlement thereof. In the event that the BLC Parties do not accept the defense of any matter as above provided, the BMC Parties shall have the full right to defend against any such claim or demand, and shall be entitled to settle or agree to pay in full such claim or demand with the consent of the BLC Parties, which shall not be unreasonably withheld. In any event, the BLC -29- Parties and the BMC Parties shall cooperate fully, to the extent reasonably required, in the defense of any action or claim subject to this Agreement and the records of each shall be available to the other with respect to such defense. Acceptance of the defense of any claim or litigation or of the administration of any Inquiry by the BLC Parties shall be without prejudice to the BLC Parties' right to assert at any time before or after accepting such defense or administration that they are not obligated to provide indemnity, either in whole or in part, with respect to such claim or litigation for which such defense is accepted or which might subsequently arise from such Inquiry. 8.2 OBLIGATION OF THE BMC PARTIES TO INDEMNIFY. (a) The BMC Parties hereby jointly and severally agree to indemnify, defend and hold harmless each of the BLC Parties and their respective directors, officers, employees, representatives, members, stockholders, partners, and Affiliates (the "BLC INDEMNITEES") from and against all costs, liabilities, damages and expenses (including, without limitation, reasonable attorneys' fees and disbursements) imposed upon, incurred by (whether by way of judgment, award, decree, settlement payment or otherwise) or suffered by the BLC Parties by reason of any (i) breach or inaccuracy of any representation or warranty of BMC contained in Section 7.2 or in any certificate delivered by BMC pursuant to Section 5.2, (ii) breach of any covenant of BMC or its Affiliates contained herein or in any Transaction Document, or (iii) any failure to comply with the terms of any Transaction Document or any other document provided hereunder or thereunder. (b) In the case of any claim asserted by a third party against the BLC Indemnitees, including without limitation, any claim by a Governmental Authority and any Inquiry and for which the BMC Parties have agreed to indemnify the BLC Indemnitees pursuant to Section 8.2(a), the BLC Indemnitees shall notify the BMC Parties for the purpose of representing their collective interests in the event of a claim against the BLC Indemnitees promptly after the BLC Indemnitees have Actual Knowledge of any claim as to which indemnity may be sought or as to any such Inquiry, and the BLC Indemnitees shall permit the BMC Parties to assume the defense of any claim or any litigation resulting therefrom or administer such Inquiry, provided, that, (i) counsel to the BMC Parties, who shall conduct the defense of such claim or litigation or the administration of such Inquiry, shall be reasonably satisfactory to the BLC Indemnitees, and the BLC Parties may participate in such defense at the expense of the BLC Parties, and (ii) the omission by the BLC Indemnitees to give notice as provided herein shall not relieve the BMC Parties of their indemnification obligation under this Agreement except to the extent that the BMC Parties are materially damaged as a result of such failure to give such notice. The BMC Parties, in the defense of any such claim or litigation, shall not, except with the consent of the BLC Parties (x) consent to entry of any judgment or enter into any settlement that provides for injunctive or other non-monetary relief affecting the BLC Indemnitees or that does not include as a term thereof the giving by the claimant or plaintiff to the BLC Indemnitees of an unconditional release from all liability with respect to such claim or litigation, or (y) pursue any course of defense of any claim subject to indemnification hereunder, if the BLC Parties shall reasonably and in good faith determine that the conduct of such defense might be expected to affect materially and adversely the tax liability of the BLC Parties or ability to conduct their business or adversely affect the use of the Properties in any material respect. In the event that the BLC Parties shall reasonably and in good faith determine that any proposed -30- settlement of any claim subject to indemnification hereunder by the BMC Parties might be expected to affect adversely the BLC Parties or that the BLC Parties may have available one or more defenses or counterclaims that are inconsistent with one or more of those that may be available to the BMC Parties in respect of such claims or litigation relating thereto, the BLC Parties shall have the right at all times to take over and assume control over the settlement, negotiations and litigation relating to any such claim at the sole cost of BMC, provided, that, if the BLC Parties do so take over and assume control, the BLC Parties shall not settle such claim or litigation without the written consent of BMC, such consent not to be unreasonably withheld, and the liability of the BMC Parties with respect to such claim or litigation shall in no event exceed the amount BMC would have paid in settlement thereof. In the event that the BMC Parties do not accept the defense of any matter as above provided, the BLC Parties shall have the full right to defend against any such claim or demand, and shall be entitled to settle or agree to pay in full such claim or demand with the consent of the BMC Parties, which shall not be unreasonably withheld. In any event, the BMC Parties and the BLC Parties shall cooperate fully, to the extent reasonably required, in the defense of any action or claim subject to this Agreement and the records of each shall be available to the other with respect to such defense. Acceptance of the defense of any claim or litigation or of the administration of any Inquiry by the BMC Parties shall be without prejudice to the BMC Parties' right to assert at any time before or after accepting such defense or administration that they are not obligated to provide indemnity, either in whole or in part, with respect to such claim or litigation for which such defense is accepted or which might subsequently arise from such Inquiry. (c) LIMITATIONS ON RECOVERY. Notwithstanding anything to the contrary in this Article VIII or any other provision of this Agreement, it is expressly understood and agreed by the parties that, without limiting or affecting any other obligation of either party to defend and indemnify contained in this Article VIII or otherwise in this Agreement, the BLC Parties shall not be entitled to indemnification unless (A) the amounts to which the BLC Parties are entitled for indemnification hereunder for all such breaches collectively aggregate more than $250,000, it being understood and agreed that the BLC Parties shall only be entitled to indemnification for amounts in excess of the foregoing threshold, and (B) the BLC Parties have given the BMC Parties written notice of such claim on or prior to the expiration of the relevant Survival Period, it being understood and agreed that the BMC Parties shall have no further liability under or in respect of such warranties and representations after the expiration of such Survival Period, except to the extent of any breach thereof of which the BLC Parties give the BMC Parties written notice on or prior to the expiration of such Survival Period. Notwithstanding anything to the contrary contained herein, in no event shall BMC be liable under this Article VIII for any amount in excess of $1,000,000 with respect to claims for indemnification for any single Property (the "PER PROPERTY LIABILITY CAP") and $10,000,000 (the "LIABILITY CAP") in the aggregate for all claims for indemnification thereunder, provided, however, that the Environmental Liabilities will not be subject to either the Per Property Liability Cap or the Liability Cap. Notwithstanding anything herein to the contrary, the BLC Indemnitees shall not be entitled to any indemnification under this Agreement with respect to any claim which is adjusted pursuant to Article IX herein. Any such adjustments shall not be included in the calculation of either the Per Property Liability Cap or the Liability Cap. (d) AVAILABLE REMEDIES. Notwithstanding anything herein to the contrary, the parties hereto agree that their sole remedy with respect to the matters addressed by Articles IV, -31- VI, VII and VIII shall be the remedies provided in this Article VIII. Except to the extent covered in this Agreement, the BLC Parties hereby release the BMC Parties with respect to all obligations or liabilities, relating to matters or events that occurred on or prior to the date hereof, under (i) the Percentage Leases , and (ii) the Westboy Note. 8.3 NET CLAIMS. Notwithstanding anything herein to the contrary, all claims for indemnification under this Article VIII shall be net of (i) all insurance proceeds received by the party seeking indemnification and (ii) the after-tax cost of such claim. ARTICLE 9 APPORTIONMENTS AND PAYMENTS 9.1 PAYMENTS - LESSEE PROPERTIES. The parties shall effect a cash adjustment within five (5) days of their receipt of the Closing Statement, as described in Section 9.3. Such cash adjustment shall be equal to the amount representing the difference between the credits received by JABO pursuant to Section 9.1(a) and the credits received by the Operating Partnership pursuant to Section 9.1(b) (such amount to be referred to herein as the "NET CURRENT ASSETS AND LIABILITIES AMOUNT"). To the extent the aggregate credits received by JABO pursuant to Section 9.1(a) exceeds the aggregate credits received by the Operating Partnership pursuant to Section 9.1(b), the Operating Partnership shall pay JABO an amount equal to the Net Current Assets and Liabilities Amount; and to the extent the aggregate credits received by the Operating Partnership pursuant to Section 9.1(b) exceeds the aggregate credits received by JABO pursuant to Section 9.1(a), JABO shall pay the Operating Partnership an amount equal to the Net Current Assets and Liabilities Amount. (a) To the extent assigned by BMC to the Lessees (or held by BMC for the Lessees' benefit under the Management Agreements), JABO shall receive a credit for the following working capital assets used in the operation of the Lessee Properties, calculated and accrued and valued as of the Cutoff Time determined in accordance with GAAP, consistently applied: (i) The amount of all petty cash funds and cash in house banks; (ii) The book value of all bank deposits held in financial institutions for depository, merchant, credit card, payroll, disbursement or other purposes relating to the operation of the Lessee Properties, but excluding cash concentration or other corporate or pooled accounts of JABO; (iii) The net collectable value (determined after deducting a reserve for doubtful accounts consistent with prior practice) of trade accounts receivable and other accounts receivable relating to the ordinary operation of the Lessee Properties (i.e., guest ledger, city ledger, other trade accounts receivable and rents, leases and concessions receivable, but excluding JABO's or BMC's intercompany accounts receivable); (iv) The net book value of food, beverage, gift shop and other inventories (but excluding inventories of china, glassware, silverware, linen, consumable supplies, or other items not historically inventoried under BMC's accounting procedures); -32- (v) Prepaid expenses and assignable deposits and deposits made by BMC for the benefit of the Lessees; and (vi) Any other assets in connection with the Lessee Properties assigned by BMC to the Lessees on the date hereof, but excluding assets considered fixed assets or amortizable assets under GAAP. (b) To the extent assumed by the Lessees (or payable by BMC for the Lessees' account under the Management Agreements), the Operating Partnership shall receive a credit for the following working capital liabilities relating to the operation of the Lessee Properties, calculated in accordance with GAAP consistently applied and accrued and valued as of the Cutoff Time: (i) The amount of trade or other accounts payable at the Cutoff Time relating to the operation of the Lessee Properties, excluding amounts payable to JABO or its Affiliates; (ii) Advance payments (including obligations under gift certificates), if any, under bookings to the extent the bookings relate in whole or in part to a period after the Cutoff Time; (iii) All security and other deposits held by JABO as of the Cutoff Time with respect to Space Leases, personal property leases and contracts; (iv) Accrued expenses at the Cutoff Time relating to the operation of the Lessee Properties, including accrued rent under the Percentage Leases whereunder percentage rent is payable; (v) Accrued payroll and benefits (including vacation and holiday time, retirement plan contributions, and insurance, but excluding the matters addressed by Section 9.1(c) below) relating to the Lessee Properties' employees as of the Cutoff Time; and (vi) Any other liabilities and obligations assumed by the Lessees from BMC on the date hereof, provided, however, that any contingent liability shall be allocated the amount agreed upon by the parties or, if the parties are unable to reach an agreement, such contingent liability will not be allocated any amount until a final, non-appealable judgment or settlement is reached, and the control of any claim in connection thereof shall be managed as described in Section 8.2(b). (c) In addition to the payments provided for in (a) and (b) above, JABO shall pay to the Operating Partnership the amount accrued for vacation liabilities (calculated in accordance with GAAP consistently applied and accrued and valued as of the Cutoff Time, but subject to adjustment as provided herein) for employees at the Lessee Properties (the "ACCRUED VACATION TIME") in twelve equal installments without interest, commencing on the first day of the calendar month following the Cutoff Time, and continuing on the first day of each calendar month thereafter until paid in full. -33- 9.2 ADJUSTMENTS AND PRORATIONS - WESTBOY. The parties shall effect a cash adjustment within 5 days of their receipt of the Closing Statement, as described in Section 9.3. If the Westboy Member's Equity is an amount which is a larger deficit than a $1,600,000 deficit, the difference between the Member's Equity and negative $1,600,000 shall be paid by JABO to the Operating Partnership in cash within five (5) days of the receipt of the Closing Statement, as described in Section 9.3 herein. If the Westboy Member's Equity is determined to be a smaller deficit than a $1,600,000 deficit or is determined to be a positive amount, the difference between the Member's Equity and negative $1,600,000 shall be paid by the Operating Partnership to JABO in cash within five (5) days of the receipt of the Closing Statement, as described in Section 9.3 herein. Any contingent liability shall be allocated the amount agreed upon by the parties or, if the parties are unable to reach an agreement, such contingent liability will not be allocated any amount until a final, non-appealable judgment or settlement is reached, and the control of any claim in connection thereof shall be managed as described in Section 8.2(b). 9.3 SETTLEMENT PROCEDURES. JABO shall cause its accounting staff ("JABO'S ACCOUNTANTS") to make such examinations and audits of the Properties, and of the books and records of the Lessee Properties, Westboy and the Westboy Properties as JABO's Accountants may deem necessary to make the adjustments and prorations required under this Article 9. The Operating Partnership or its designated representatives may be present at such examinations and audits of the Lessee Properties. Based upon such audits and inventories, JABO's Accountants will prepare and deliver to the Operating Partnership no later than twenty-five (25) days after the Cutoff Time a closing statement (the "CLOSING STATEMENT"). The Closing Statement shall contain JABO's calculation of the Net Current Assets and Liabilities Amount, the Accrued Vacation Time and the Westboy Member's Equity and shall be subject to the concurrence therewith of the Operating Partnership. The amounts set forth on the Closing Statement shall be the basis upon which the payments described in Sections 9.1 and 9.2 shall be made. Fifteen (15) months after the Cutoff Time (the "WIND UP DATE"), the parties shall cause JABO's Accountants to make a revised calculation of the Net Current Assets and Liabilities and the Westboy Member's Equity (the "ADJUSTED CLOSING STATEMENT"). Either party shall pay the other any amounts due as a result of the Adjusted Closing Statement, within five (5) days of the receipt thereof. The Adjusted Closing Statement shall serve to adjust and correct the Closing Statement. If the parties are unable to agree on the Closing Statement or the Adjusted Closing Statement, then any undisputed amounts shall be paid as provided herein and the parties shall submit the dispute to Arthur Andersen (the "INDEPENDENT ACCOUNTANTS") not later than ten (10) days after the receipt of the Closing Statement or the Adjusted Closing Statement by the parties and the determination of the Independent Accountants, which shall be made within a period of fifteen (15) days after such submittal by the parties, shall be conclusive and there shall be no further adjustments to the Closing Statement or the Adjusted Closing Statement. The fees and expenses of the Independent Accountants shall be paid equally by the Operating Partnership and the BMC Parties. For purposes of clarification, the Net Current Assets and Liabilities Amount, the Accrued Vacation Time and the Westboy Member's Equity shall be calculated on the Adjusted Closing Statement by taking into account facts known at the time of the preparation of the Adjusted Closing Statement, which had they been known at the time that the Closing Statement was prepared, would have changed the carrying amount of any underlying asset or liability reflected on the Closing Statement, or otherwise required that an amount be reflected on the Closing Statement, all to be calculated in accordance with GAAP consistently applied and accrued and valued as of the Cutoff Time. -34- 9.4 HILTON CLAIMS. Notwithstanding anything to the contrary contained in this Agreement, in the event that on or prior to the Wind Up Date Hilton asserts any claim or claims against Westboy or Westboy asserts any claim or claims (existing or otherwise) against Hilton (i) arising from or in connection with the respective party's obligations under the existing management agreements between Westboy and Hilton for the Westboy Properties, and (ii) relating (a) only to the period prior to the Closing Date ("BMC HILTON CLAIMS") or (b) to both the period prior to and after the Closing Date ("SHARED HILTON CLAIMS"), then the parties agree, and shall cause their respective Affiliates, to cooperate with each other to prosecute and defend such claims vigorously and to take all steps reasonably necessary in connection therewith. The REIT shall have sole control of the prosecution and defense of both the BMC Hilton Claims and the Shared Hilton Claims, but shall keep BMC regularly informed with respect to such prosecution or defense and consult with BMC on an ongoing basis with respect thereto. Any BMC Hilton Claims or Shared Hilton Claims may only be settled with the prior consent of both the Operating Partnership and BMC. The costs and expenses of prosecuting and defending any BMC Hilton Claims and any recovery or payment received or due thereon, shall be borne or retained in full by BMC. The costs and expense of prosecuting and defending any Shared Hilton Claims shall be funded by Westboy pending a final non-appealable judgment or settlement of such claims. After the determination of a final non-appealable judgment or settlement of any Shared Hilton Claim, the costs and expense of any recovery or payment received due thereon shall be shared by BMC and the Operating Partnership in proportion to their respective Interest in each such Shared Hilton Claim (and the parties shall reimburse Westboy as and to the extent required). All BMC Hilton Claims and Shared Hilton Claims and all amounts recovered or paid thereof shall not be included in the determination of Westboy Member's Equity. ARTICLE 10 MISCELLANEOUS 10.1 BROKER. Each of the BMC Parties and the BLC Parties represent and warrant to the other that it has not dealt with any broker in this transaction and each agrees to hold harmless the other party and to indemnify the other party from and against any and all damages, costs or expenses (including, but not limited to, reasonable attorneys' fees and disbursements) suffered by the indemnified party as a result of acts of the indemnifying party that would constitute a breach of its representation and warranty in this Section. 10.2 FURTHER ASSURANCES. The BMC Parties and the BLC Parties agree, at any time and from time to time after the Closing, to execute, acknowledge where appropriate and deliver such further instruments and documents and to take such other action as the other party may reasonably request in order to carry out the intent and purpose of this Agreement, at the expense of the party making such request, provided, however, that neither the BMC Parties nor the BLC Parties shall, in connection with the foregoing, be obligated to incur any liabilities or obligations in addition to their respective liabilities or obligations otherwise contemplated in this Agreement. 10.3 PAYMENT OF EXPENSES. Each party will pay the expenses provided for in this Agreement to be paid by it (including pursuant to Section 4.4 above) and the fees and disbursements of its attorneys, accountants and other professionals and experts incurred in connection with the negotiation of this Agreement and in preparation for the Closing. -35- 10.4 NOTICES. All notices, demands, consents, requests or other communications provided for or permitted to be given hereunder by a party hereto must be in writing and shall be deemed to have been properly given or served (i) if sent by facsimile upon electronic confirmation of receipt, (ii) if delivered by registered or certified mail, postage prepaid, return receipt requested, upon receipt, (iii) if delivered by a reputable national overnight air courier service, prepaid and addressed to such party, upon receipt, or (iv) if not sent by facsimile, deposited in the United States mail or delivered to a national overnight air courier service as aforesaid, shall be deemed to be properly given or served upon actual receipt (with rejection of delivery by addressee to constitute receipt), as follows: If to any of the BMC Parties: c/o Boykin Management Company Limited Liability Company Guildhall Building 45 West Prospect Avenue, Suite 1515 Cleveland, Ohio 44115 Fax No.: (216) 241-1329 with a copy sent simultaneously to BMC's attorneys: Proskauer Rose LLP 1585 Broadway New York, New York 10036-8299 Attention: Michael E. Feldman Fax No.: (212) 969-2900 If to the REIT: Boykin Lodging Company Guildhall Building 45 West Prospect Avenue, Suite 1500 Cleveland, Ohio 44115 Attention: President Fax No.: (216) 430-1201 -36- with a copy sent simultaneously to the REIT's attorneys: Thompson Hine LLP 3900 Key Center 127 Public Square Cleveland, Ohio 44114-1291 Attention: James B. Aronoff Fax No.: (216) 566-5800 and Baker & Hostetler LLP 1900 East Ninth Street, Suite 3200 Cleveland, Ohio 44114 Attention: Phillip M. Callesen Fax No.: (216) 696-0740 Any of the aforementioned parties may change its address for the receipt of notices, demands, consents, requests and other communications by giving written notice to the others in the manner provided for above. 10.5 ASSIGNMENT; BINDING EFFECT. None of the parties to this Agreement shall have the right to assign, transfer, convey and/or otherwise sell (or enter into any agreement to do the same), directly or indirectly, any interest it may have in or under this Agreement without first having obtained the written consent of the other parties, which consent may be withheld in such party's sole and absolute discretion. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns, but shall not inure to the benefit of, or be enforceable by any other Person. 10.6 WAIVER. Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated orally, and may be changed, waived, disregarded or terminated only by an instrument in writing signed by the party against whom the enforcement of the change, waiver, discharge or termination is sought or, in the case of a default, by the non-defaulting party or parties. 10.7 INCORPORATION OF RECITALS AND SCHEDULES. The Recitals to this Agreement and the Exhibits and Schedules attached hereto are hereby incorporated by reference into the body of this Agreement and made a part hereof. 10.8 CONFIDENTIALITY; PRESS RELEASES. The BLC Parties and the BMC Parties agree that they will not disclose the contents of this Agreement to any third parties or issue any press release with respect thereto or any Closing hereunder without the consent of the other parties, except (i) as may be required or, based on the advice of counsel, advisable to ensure compliance with any applicable laws, rules or regulations of any Governmental Authority having jurisdiction over such party, (ii) as is expressly authorized or required by the terms of this Agreement (e.g., in connection with soliciting or obtaining any required third-party consents or approvals), or (iii) if and to the extent such contents have already been placed in the public domain (other than by -37- the party seeking to disclose and in a manner not permitted by this Section 10.8). Nothing contained in this Section 10.8 shall be construed as prohibiting (x) the BMC Parties from disclosing the contents of this Agreement (A) on a confidential basis to the BMC Parties' counsel, accountants, consultants, property managers and other agents, or (B) (if necessary or appropriate in BMC's reasonable judgment) to regulatory authorities having jurisdiction over the BMC Parties (which authorities, by law, may not be bound by any confidentiality restrictions), or (C) to parties from which the BMC Parties are seeking financing, or (y) the BLC Parties from disclosing the contents of this Agreement (A) on a confidential basis to its counsel, accountants, consultants, property managers and other agents, or (B) (if necessary or appropriate in the reasonable judgment of the BLC Parties) to regulatory authorities having jurisdiction over the BLC Parties (which authorities, by law, may not be bound by any confidentiality restrictions), or (C) to parties from which it seeks financing. The BMC Parties and the BLC Parties each agree (I) to consult with and cooperate with the other parties on the content and timing of all press releases and other public announcements relating to the transactions contemplated by this Agreement, and (II) that the initial press release to be issued with respect to the transactions contemplated by this Agreement will be in the form agreed to by the parties hereto prior to the execution of this Agreement. 10.9 MERGER. All understandings and agreements heretofore had between the parties hereto are merged in this Agreement and the instruments and documents referred to herein, which fully and completely express their agreements with respect to the transactions contemplated herein, and supersede all prior agreements, written or oral, with respect thereto. 10.10 GOVERNING LAW. THE PARTIES HERETO AGREE THAT THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO. 10.11 JURISDICTION. Each of the BMC Parties and the BLC Parties hereby irrevocably and unconditionally submits to the jurisdiction of any Ohio State Court or Federal Court of the United States of America sitting in the City of Cleveland, and any appellate court from any such court, in any suit, action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each hereby irrevocably and unconditionally agrees that all claims in respect of any such suit, action or proceeding shall be brought in and may be heard and determined in such Ohio State Court or, to the extent permitted by law, in such Federal Court. Each of BMC and the BLC Parties agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each of the BMC Parties and the BLC Parties hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any Ohio State Court or Federal Court sitting in the City of Cleveland. Each of the BMC Parties and the BLC Parties hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such suit, action or proceeding in any such court. Nothing contained in this Section 10.11 shall be construed as preventing any of the BMC Parties and the BLC Parties, or any of their respective Affiliates, from (i) objecting to the jurisdiction of any Ohio State Court on the ground that the matter involved exceeds the statutory jurisdiction of such court, or -38- (ii) from seeking to remove any suit, action or proceeding from an Ohio State Court to a Federal Court sitting in the City of Cleveland, or vice versa. 10.12 CAPTIONS. The captions and Article headings included in this Agreement and the table of contents are for convenience only, do not constitute part of this Agreement and shall not be considered or referred to in interpreting the provisions of this Agreement. 10.13 COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument. The submission of a signature page transmitted by facsimile (or similar electronic transmission facility) shall be considered as an original signature page for purposes of this Agreement so long as the original signature page is thereafter transmitted by mail or by other delivery service and the original signature page is substituted for the facsimile signature page in the original and duplicate originals of this Agreement. 10.14 SEVERABILITY. If any provision hereof is held invalid or not enforceable to its fullest extent, such provision shall be enforced to the extent permitted by law, and the validity of the remaining provisions hereof shall not be affected thereby. 10.15 NO RECORDATION. The BMC Parties and the BLC Parties agree that neither this Agreement nor any memorandum or notice hereof shall be recorded and the BLC Parties agreed (a) not to file any notice of pendency or other instrument (other than a judgment or lis pendens filed by the BLC Parties in connection with the BLC Parties' enforcement of its rights hereunder) against any of the Properties or any portion thereof in connection herewith, and (b) to indemnify the BMC Parties against all costs, expenses and damages, including, without limitation, reasonable attorneys' fees and disbursements, incurred by the BMC Parties by reason of the filing by the BLC Parties of such notice of pendency or other instrument. 10.16 WAIVER OF TRIAL BY JURY. THE BMC PARTIES AND THE BLC PARTIES HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM FILED BY THE BMC PARTIES OR THE BLC PARTIES, WHETHER IN CONTRACT, TORT OR OTHERWISE, WHICH RIGHT OR CLAIM RELATES DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, ANY DOCUMENTATION RELATED THERETO, OR ANY ACTS OR OMISSIONS IN CONNECTION WITH THIS AGREEMENT. THIS WAIVER HAS BEEN AGREED TO AFTER CONSULTATION WITH LEGAL COUNSEL SELECTED BY THE BLC PARTIES AND THE BMC PARTIES. 10.17 SURVIVAL. The provisions of this Agreement survive the Closing, except to the extent set forth otherwise herein. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] -39- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. BMC: BOYKIN MANAGEMENT COMPANY LIMITED LIABILITY COMPANY By: /S/ John E. Boykin ------------------ Name: John E. Boykin Title: Secretary JABO: JABO LLC By: Boykin Management Company Limited Liability Company, its Managing Member By: /S/ John E. Boykin ------------------ Name: John E. Boykin Title: Secretary OPERATING PARTNERSHIP: BOYKIN HOTEL PROPERTIES, L.P. By: Boykin Lodging Company, its General Partner By: /S/ Richard C. Conti -------------------- Name: Richard C. Conti Title: President REIT: BOYKIN LODGING COMPANY By: /S/ Richard C. Conti -------------------- Name: Richard C. Conti Title: President EXHIBIT A LESSEES AND LESSEE PROPERTIES [see attachment] LESSEE PROPERTY Berkeley Leasing I LLC Berkeley Marina Radisson 200 Marina Boulevard Berkeley, CA 94710 Buffalo Leasing LLC Buffalo Marriott 1340 Millersport Highway Amherst, NY 14221 Cleveland Leasing LLC Cleveland Airport Marriott 4277 West 150th Street Cleveland, OH 44135 Columbus Leasing LLC Columbus Marriott 6500 Doubletree Avenue Southfield, MI 48034 Crabtree Leasing LLC Holiday Inn Crabtree 4100 Glenwood Avenue Raleigh, NC 27612 French Lick Leasing LLC French Lick Springs Resort 8670 West State Road 56 French Lick, IN 47432 Fort Myers Leasing LLC Fort Myers Radisson 20091 Summerlin Road Ft. Myers, FL 33908 Highpoint Leasing LLC Radisson Hotel High Point 135 South Main Street High Point, NC 27260 Knoxville Leasing LLC Knoxville Hilton 501 Church Avenue Southwest Knoxville, TN 37902 Lake Norman I Leasing LLC Lake Norman Hampton Inn 19501 Statesville Road Cornelius, NC 28031 Lake Norman II Leasing LLC Lake Norman Holiday Inn 19901 Holiday Lane Cornelius, NC 28031 Melbourne H Leasing LLC Melbourne Beach Hilton 3003 North Highway A1A Melbourne, FL 32903 Melbourne Q Leasing LLC Melbourne Quality Suites 1665 State Road A1A North Melbourne, FL 32903 San Antonio Leasing LLC San Antonio Doubletree 37 Northeast Loop 410 San Antonio, TX 78216 Southfield Leasing LLC Southfield Embassy Suites 28100 Franklin Road Southfield, MI 48034 EXHIBIT B WESTBOY PROPERTIES [see attachment] Doubletree Hotel Bellevue Center 818-112th Avenue NE Bellevue, Washington Doubletree Hotel Riverside 29th & Chinden Blvd. Boise, Idaho Doubletree Hotel Colorado Springs - World Arena 1775 E. Cheyenne Mountain Blvd. Colorado Springs, Colorado Doubletree Hotel Omaha Downtown 1616 Dodge Street Omaha, Nebraska Doubletree Hotel Portland Downtown 310 SW Lincoln Portland, Oregon Doubletree Hotel Sacramento 2001 Point West Way Sacramento, California Doubletree Hotel Spokane Valley I-90 at Sullivan Road Spokane, Washington Doubletree Hotel Eugene/Springfield 3280 Gateway Road Springfield, Oregon Doubletree Hotel Yakima Valley 1507 North First Street Yakima, Washington Doubletree Hotel Lloyd Center 1000 N.E. Multnomah Portland, Oregon EXHIBIT H INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT [see attachment] ASSIGNMENT OF LIMITED LIABILITY COMPANY INTERESTS This Assignment of Limited Liability Company Interests, dated as of December 31, 2001 (the "ASSIGNMENT"), is entered into by and between JABO LLC, a Delaware limited liability company (the "ASSIGNOR"), and Boykin Hotel Properties, L.P., an Ohio limited partnership, as assignee (the "ASSIGNEE"). WITNESSETH: WHEREAS, the Assignor holds the limited liability company interests (each, an "INTEREST" and, collectively, the "INTERESTS") in the limited liability companies organized under the laws of the State of Delaware identified on SCHEDULE 1 (the "COMPANIES"); WHEREAS, pursuant to that certain Master Contribution Agreement, dated as of December 31, 2001 (the "MASTER CONTRIBUTION AGREEMENT"), by and among the Assignor, the Assignee, Boykin Management Company Limited Liability Company, and Boykin Lodging Company, the Assignor has agreed to sell, transfer, assign and deliver all of its right, title and interest in and to the Interests identified on SCHEDULE 1 to the Assignee. NOW, THEREFORE, in consideration of the premises, covenants and agreements contained herein and in the Master Contribution Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby agree as follows: 1. ASSIGNMENT AND ASSUMPTION. The Assignor hereby assigns, transfers and conveys to the Assignee the Interests identified on SCHEDULE 1, and the Assignee hereby agrees to assume and accept all such Interests and all of the duties and responsibilities related thereto accruing from and after the date hereof. 2. INDEMNIFICATION. The Assignee shall indemnify, protect, defend, and hold the Assignors harmless from and against any and all claims, causes of action, demands, obligations, losses, damages, liabilities, judgments, costs and expenses (including, without limitation, reasonable attorneys' fees, charges and disbursements) relating to or arising in respect of the Interests and/or the Companies accruing from and after the date hereof, other than claims for which the Assignee is entitled to express indemnification pursuant to the terms of the Master Contribution Agreement. 3. ADMISSION. Each of the signatories hereto acknowledges and agrees that contemporaneously with the assignments described in paragraph 1 hereof, the Assignee shall be admitted to each of the Companies as a substitute member. 4. WITHDRAWAL. Effective upon the admission of the Assignee to each of the Companies, the Assignor hereby withdraws from each of the Companies as a member. 5. CONTINUATION OF THE COMPANIES. The parties hereto agree that the assignment of the Interests, the admission of the Assignee to the Companies and the withdrawal of the Assignor from the Companies shall not dissolve the Companies, and that the business of the Companies shall continue. 6. BOOKS AND RECORDS. The Assignee agrees to cause the Companies to take all actions necessary under the limited liability company laws of the State of Delaware and the Companies' limited liability agreement, including causing the amendment of the Company's limited liability agreement and certificate of formation, to evidence the admission of the Assignee to the Companies and the withdrawal of the Assignor from the Companies. 7. FUTURE COOPERATION. Each of the parties hereto agrees to cooperate at all times from and after the date hereof with respect to all of the matters described herein, and to execute such further assignments, releases, assumptions, amendments of the Agreement, notifications, and other documents as may be reasonably requested for the purpose of giving effect to, or evidencing or giving notice of, the assignments contemplated by this Assignment. 8. BINDING EFFECT. This Assignment shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective permitted successors and assigns. 9. EXECUTION IN COUNTERPARTS. This Assignment may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 10. GOVERNING LAW. This Assignment shall be governed by, and interpreted in accordance with, the laws of the State of Delaware. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be duly executed as of the day and year first above written. ASSIGNOR: JABO LLC By: Boykin Management Company Limited Liability Company, its Managing Member By: /S/ John E. Boykin ------------------ Name: John E. Boykin Title: Secretary ASSIGNEE: Boykin Hotel Properties, L.P. By: /S/ Richard C. Conti -------------------- Name: Richard C. Conti Title: President SCHEDULE 1 CONTRIBUTED INTERESTS: PERCENTAGE INTEREST LESSEE PROPERTY OWNED BY LESSEE IN LESSEE 100% Berkeley Leasing I LLC Berkeley Marina Radisson 200 Marina Boulevard Berkeley, CA 94710 100% Buffalo Leasing LLC Buffalo Marriott 1340 Millersport Highway Amherst, NY 14221 100% Cleveland Leasing LLC Cleveland Airport Marriott 4277 West 150th Street Cleveland, OH 44135 100% Columbus Leasing LLC Columbus Marriott 6500 Doubletree Avenue Southfield, MI 48034 100% Crabtree Leasing LLC Holiday Inn Crabtree 4100 Glenwood Avenue Raleigh, NC 27612 100% French Lick Leasing LLC French Lick Springs Resort 8670 West State Road 56 French Lick, IN 47432 100% Fort Myers Leasing LLC Fort Myers Radisson 20091 Summerlin Road Ft. Myers, FL 33908 100% Highpoint Leasing LLC Radisson Hotel High Point 135 South Main Street High Point, NC 27260 100% Knoxville Leasing LLC Knoxville Hilton 501 Church Avenue Southwest Knoxville, TN 37902 100% Lake Norman I Leasing LLC Lake Norman Hampton Inn 19501 Statesville Road Cornelius, NC 28031 100% Lake Norman II Leasing LLC Lake Norman Holiday Inn 19901 Holiday Lane Cornelius, NC 28031 100% Melbourne H Leasing LLC Melbourne Beach Hilton 3003 North Highway A1A Melbourne, FL 32903 100% Melbourne Q Leasing LLC Melbourne Quality Suites 1665 State Road A1A North Melbourne, FL 32903 100% San Antonio Leasing LLC San Antonio Doubletree 37 Northeast Loop 410 San Antonio, TX 78216 100% Southfield Leasing LLC Southfield Embassy Suites 28100 Franklin Road Columbus, OH 43229 For transfer of interests in limited liability companies EXHIBIT I WESTBOY INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT [see attachment] -1- ASSIGNMENT OF LIMITED LIABILITY COMPANY INTERESTS This Assignment of Limited Liability Company Interests, dated as of January 1, 2002 (the "ASSIGNMENT"), is entered into by and between JABO LLC, a Delaware limited liability company (the "ASSIGNOR"), and Boykin Hotel Properties, L.P., an Ohio limited partnership, as assignee (the "ASSIGNEE"). WITNESSETH: WHEREAS, the Assignor holds all the membership interests (the "INTERESTS") in Westboy LLC, a limited liability company organized under the laws of the State of Delaware ("WESTBOY"), which is the owner of the leasehold interests in the hotel properties identified on SCHEDULE 1 (the "PROPERTIES"); WHEREAS, pursuant to that certain Master Contribution Agreement, dated as of December 31, 2001 (the "MASTER CONTRIBUTION AGREEMENT"), by and among the Assignor, the Assignee, Boykin Management Company Limited Liability Company, and Boykin Lodging Company, the Assignor has agreed to sell, transfer, assign and deliver all of its right, title and interest in and to the Interests to the Assignee. NOW, THEREFORE, in consideration of the premises, covenants and agreements contained herein and in the Master Contribution Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby agree as follows: 1. ASSIGNMENT AND ASSUMPTION. The Assignor hereby assigns, transfers and conveys to the Assignee the Interests identified on Schedule 1, and the Assignee hereby agrees to assume and accept all such Interests. The Assignee agrees to be bound by the terms and conditions of the Amended and Restated Limited Liability Company Agreement of Westboy, dated as of May 22, 1998 (the "WESTBOY AGREEMENT"). 2. REPRESENTATIONS AND WARRANTIES. The Assignor hereby represents and warrants to the Assignee that the assignment of the Interests is made in accordance with the Westboy Agreement and all applicable laws and regulations. 3. INDEMNIFICATION. The Assignee shall indemnify, protect, defend, and hold each of the Assignors harmless from and against any and all claims, causes of action, demands, obligations, losses, damages, liabilities, judgments, costs and expenses (including, without limitation, reasonable attorneys' fees, charges and disbursements) relating to or arising in respect of the Interests and Westboy accruing from and after the date hereof, other than claims for which the Assignee is entitled to express indemnification pursuant to the terms of the Master Contribution Agreement. 4. ADMISSION. Each of the signatories hereto acknowledges and agrees that contemporaneously with the assignments described in paragraph 1 hereof, the Assignee shall be admitted to Westboy as a substitute member. 5. WITHDRAWAL. Effective upon the admission of the Assignee to Westboy, the Assignor hereby withdraws from Westboy as a member. 6. CONTINUATION OF WESTBOY. The parties hereto agree that the assignment of the Interests, the admission of the Assignee to Westboy, and the withdrawal of the Assignor from Westboy shall not dissolve Westboy, and that the business of Westboy shall continue. 7. BOOKS AND RECORDS. The Assignee agrees to cause Westboy to take all actions necessary under the limited liability company laws of the State of Delaware and Westboy's limited liability agreement, including causing the amendment of Westboy's limited liability agreement and certificate of formation, to evidence the admission of the Assignee to Westboy and the withdrawal of the Assignor from Westboy. 8. FUTURE COOPERATION. Each of the parties hereto agrees to cooperate at all times from and after the date hereof with respect to all of the matters described herein, and to execute such further assignments, releases, assumptions, amendments of the Agreement, notifications, and other documents as may be reasonably requested for the purpose of giving effect to, or evidencing or giving notice of, the assignments contemplated by this Assignment. 9. BINDING EFFECT. This Assignment shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective permitted successors and assigns. 10. EXECUTION IN COUNTERPARTS. This Assignment may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 11. GOVERNING LAW. This Assignment shall be governed by, and interpreted in accordance with, the laws of the State of Delaware. 12. NOTICES. All notices, demands, consents, requests or other communications provided for or permitted to be given hereunder by a party hereto must be in writing and shall be deemed to have been properly given or served (i) if sent by facsimile upon electronic confirmation of receipt, (ii) if delivered by registered or certified mail, postage prepaid, return receipt requested, upon receipt, (iii) if delivered by a reputable national overnight air courier service, prepaid and addressed to such party, upon receipt, or (iv) if not sent by facsimile, deposited in the United States mail or delivered to a national overnight air courier service as aforesaid, shall be deemed to be properly given or received or served upon actual receipt (with rejection of delivery by addressee to constitute receipt), as follows: If to Assignor: JABO LLC Guildhall Building 45 West Prospect Avenue, Suite 1515 Cleveland, Ohio 44115 Fax No.: (216) 241-1329 If to Assignee: Boykin Hotel Properties, L.P. c/o Boykin Lodging Company Guildhall Building 45 West Prospect Avenue, Suite 1500 Cleveland, Ohio 44115 Fax No.: (216) 430-1201 Any of the aforementioned parties may change its address for the receipt of notices, demands, consents, requests or other communications by giving written notice to the others in the manner provided above. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be duly executed as of the day and year first above written. ASSIGNOR: JABO LLC By: Boykin Management Company Limited Liability Company, its Managing Member By: /s/ John E. Boykin ------------------ Name: John E. Boykin Title: Secretary ASSIGNEE: Boykin Hotel Properties, L.P. By: /s/ Richard C. Conti -------------------- Name: Richard C. Conti Title: President SCHEDULE 1 WESTBOY PROPERTIES Doubletree Hotel Bellevue Center 818-112th Avenue NE Bellevue, Washington Doubletree Hotel Riverside 29th & Chinden Blvd. Boise, Idaho Doubletree Hotel Colorado Springs - World Arena 1775 E. Cheyenne Mountain Blvd. Colorado Springs, Colorado Doubletree Hotel Omaha Downtown 1616 Dodge Street Omaha, Nebraska Doubletree Hotel Portland Downtown 310 SW Lincoln Portland, Oregon Doubletree Hotel Sacramento 2001 Point West Way Sacramento, California Doubletree Hotel Spokane Valley I-90 at Sullivan Road Spokane, Washington Doubletree Hotel Eugene/Springfield 3280 Gateway Road Springfield, Oregon Doubletree Hotel Yakima Valley 1507 North First Street Yakima, Washington Doubletree Hotel Lloyd Center 1000 N.E. Multnomah Portland, Oregon EX-99.3 6 l92251aex99-3.txt EXHIBIT 99.3 - FORM OF HOTEL MANAGEMENT AGREEMENT Exhibit 99.3 HOTEL MANAGEMENT AGREEMENT (----------------------) HOTEL MANAGEMENT AGREEMENT (this "AGREEMENT") made as of the 1st day of January, 2002, between ___________ ("OWNER"), a Delaware limited liability company, and Boykin Management Company Limited Liability Company ("OPERATOR"), an Ohio limited liability company. RECITALS A. Owner is the lessee of a full-service hotel (the "HOTEL") known as the _______________ located at ____________________; and B. Owner and Operator desire to evidence their agreement with respect to the operation, direction, management, and supervision of the Hotel as more particularly set forth below. NOW, THEREFORE, for and in consideration of the premises, and other good and valuable consideration, Owner and Operator agree as follows: ARTICLE I THE HOTEL 1.1. Owner and Operator acknowledge that the Hotel consists of and contains: A. A Building (the "BUILDING") with _____ guest rooms, restaurant(s), lounge(s), conference facilities and meeting rooms together with the parcel of land described in EXHIBIT A attached hereto (the "LAND") and made a part hereof on which the Building is located and any outdoor parking areas or other facilities located on such Land; B. Mechanical systems and built-in installations (the "INSTALLATIONS") of the Building including, but not limited to, heating, ventilation, air conditioning, electrical and plumbing systems, elevators and escalators, and built-in laundry, refrigeration and kitchen equipment; C. Furniture, furnishings, wall coverings, floor coverings, window treatments, fixtures and hotel equipment and vehicles (the "FF&E"); D. Chinaware, glassware, silverware, linens, and other items of a similar nature, but excluding the FF&E (the "OPERATING EQUIPMENT"); and E. Stock and inventories of paper supplies, cleaning materials and similar consumable items and food and beverage (the "OPERATING SUPPLIES"). ARTICLE II OPERATING TERM 2.1. This Agreement shall have a term (the "OPERATING TERM" or "TERM") commencing on January 1, 2002 (the "COMMENCEMENT DATE") and expiring on ___________________, unless sooner terminated in accordance with the provisions of this Agreement or unless extended by the written agreement of Owner and Operator. ARTICLE III GENERAL SERVICES BY OPERATOR 3.1. Owner hereby engages Operator as the exclusive operator and manager of the Hotel during the Operating Term and Operator hereby accepts such engagement. In exercising its duties hereunder Operator shall act as agent and for the account of Owner and, subject to the terms of this Agreement, the Major Agreements and the applicable Budgets, Operator shall have control and discretion in the operation, direction, management and supervision of the Hotel. Such control and discretion of Operator shall include, without limitation, the determination of credit policies (including entering into agreements with credit card organizations), terms of admittance, charges for rooms, food and beverage policies, entertainment and amusement policies, leasing, licensing and granting of concessions for commercial space at the Hotel, and all phases of advertising, promotion and publicity relating to the Hotel. All services and goods provided by Operator hereunder shall be provided at cost and without additional charge or mark-up for profit, except as otherwise expressly provided in this Agreement. Without derogating from the generality of the above statements, Operator's duties shall include the following: A. Recruit, train, direct, supervise, employ and dismiss on-site staff (the "HOTEL EMPLOYEES") for the operation of the Hotel; B. Develop and implement advertising, marketing, promotion, publicity and other similar programs for the Hotel; C. On and after the date hereof, (i) on behalf of Owner, negotiate and enter into leases, licenses and concession agreements (collectively, the "LEASES") for stores, office space and lobby space at the Hotel, collect the rent under such Leases and otherwise administer the Leases and (ii) negotiate and enter into contracts for the provision of services to the Hotel; provided, however, that without Owner's prior written approval, which shall not be unreasonably withheld, conditioned or delayed, Operator shall not enter into or renew (other than with respect to mandatory renewals) (a) any contract for the provision of services to the Hotel unless the same (x) is terminable upon not more than thirty (30) days' notice without payment of premium and penalty and requires payments of not more than $10,000 annually, or (y) is provided for in the applicable Budget, or (b) any new Lease. D. Apply for, process and take all necessary steps to procure and keep in effect in Owner's name (or, if required by the licensing authority, in Operator's name or both) all licenses and permits required for the operation of the Hotel; E. Purchase all FF&E, Operating Equipment and Operating Supplies necessary for the operation of the Hotel; -2- F. Provide routine accounting and purchasing services as required in the ordinary course of business; G. Maintain the Hotel in a good state of repair and in accordance with the Hotel Standards (as hereinafter defined) and all applicable laws, ordinances, regulations, rulings and orders of governmental authorities applicable to the Hotel or its operation (collectively, "APPLICABLE LAWS"); H. Subject to Section 3.2 below, use reasonable efforts to operate the Hotel in accordance with any applicable deed of trust, mortgage, franchise agreement or loan agreement relating to the Hotel, as well as Owner's lease of the Hotel (the "PERCENTAGE LEASE") from the fee owner or ground lessee of the Hotel, as applicable (collectively, "MAJOR AGREEMENTS"); and I. Provide such other services as are required under the terms of this Agreement or as are customarily performed without additional fee by management companies of similar properties in the area of the Hotel with fee structures similar to that provided herein. Operator's compensation for the foregoing services shall be the Base Fee and the Incentive Fee (as each such term is hereinafter defined) and shall not charge Owner any additional charge or mark-up to perform such services except as otherwise expressly provided in this Agreement. 3.2. Notwithstanding any other provision of this Agreement to the contrary, Operator's obligations with respect to any Major Agreement shall be limited to the extent (i) true and complete copies of the relevant provisions thereof have been delivered to Operator sufficiently in advance to allow Operator to perform such obligations and (ii) the provisions thereof and/or compliance with such provisions by Operator (1) are applicable to the day-to-day operation, maintenance and non-capital repair and replacement of the Hotel or any portion thereof, (2) do not require contribution of capital or payments of Operator's own funds, (3) do not materially increase Operator's obligations hereunder or materially decrease Operator's other rights hereunder, (4) do not limit or purport to limit any corporate activity or transaction with respect to Operator or its Affiliates or any other activity, transfer, transaction, property or other matter involving Operator or its Affiliates other than at the site of the Hotel, and (5) are otherwise within the scope of Operator's duties under this Agreement. Owner acknowledges and agrees, without limiting the foregoing, that any failure of (x) Owner to comply with the provisions of any Major Agreements or Applicable Laws, or (y) Operator to comply with the provisions of any Major Agreement arising out of (A) the condition of the Hotel, and/or the failure of the Hotel to comply with the provisions of such Major Agreement, prior to Operator's assuming the day-to-day management thereof, (B) construction activities at the Hotel, (C) inherent limitations in the design and/or construction of, location of the Hotel and/or parking at the Hotel, (D) failure of Owner to provide funds, from operations or otherwise, sufficient to allow timely compliance with the provisions of the Hotel Standards or any Major Agreement through reasonable and customary business practices and/or (E) Owner's failure to approve any matter requested by Operator in Operator's good faith business judgment as necessary or appropriate to achieve compliance with the Hotel Standards or any Major Agreement, shall not be deemed a breach by Operator of its obligations under this Agreement. -3- ARTICLE IV GENERAL OPERATION OF THE HOTEL 4.1. Operator shall operate the Hotel and all of its facilities and activities in accordance with the standards established by the franchisors of the Hotel from time to time or, if no franchise is applicable to the Hotel, in accordance with past practice and operations at the Hotel (the "HOTEL STANDARDS"). 4.2. Operator will be available to consult with and advise Owner, at Owner's reasonable request, concerning all policies and procedures affecting all phases of the conduct of business at the Hotel. Operator shall in all events consult with Owner before implementing any material changes in policies and procedures relating to the Hotel. ARTICLE V AGENCY; HOTEL EMPLOYEES 5.1. In the performance of its duties as Operator of the Hotel, Operator shall act solely as agent of Owner. Nothing in this Agreement shall constitute or be construed to be or create a partnership or joint venture between Owner and Operator. Except as otherwise provided in this Agreement (including without limitation Article 21 below), (a) all debts and liabilities to third persons incurred by Operator in the course of its operation and management of the Hotel in accordance with the provisions of this Agreement shall be the debts and liabilities of Owner only and (b) Operator shall not be liable for any such obligations by reason of its management, supervision, direction and operation of the Hotel as agent for Owner. Operator may so inform third parties with whom it deals on behalf of Owner and may take any other reasonable steps to carry out the intent of this paragraph. 5.2. All Hotel Employees shall be employees of Operator. All compensation (including without limitation all wages and fringe benefits) of the Hotel Employees shall, subject to the Budgets, be an Operating Expense (as defined in Section 11.2) and shall be borne by Owner and paid out of the Agency Account (as hereinafter defined), or if the amounts therein are insufficient, by Owner upon demand therefor by Operator. Operator may consistent with the Budgets enroll the Hotel Employees in pension, medical and health, life insurance and similar employee benefit plans ("BENEFIT PLANS") substantially similar to plans reasonably necessary to attract and retain employees and generally remain competitive. Owner agrees that the Benefit Plans in effect as of the date hereof satisfy the foregoing standard. The Benefits Plans may be joint plans for the benefit of employees at more than one hotel or motel owned, leased or managed by Operator or its Affiliates. Employer contributions to such plans (including any withdrawal liability incurred upon termination of this Agreement) and reasonable administrative fees (but without further mark-up by Operator), which Operator may expend in connection therewith, shall be the responsibility of Owner and shall be an Operating Expense. The administrative expenses of any joint plans will be equitably apportioned by Operator among properties covered by such plan. 5.3. Operator, in its discretion, may (i) provide lodging for Operator's executive employees and corporate staff visiting the Hotel in connection with the performance of Operator's services and allow them the use of the Hotel facilities and (ii) provide the management of the Hotel with temporary living quarters within the Hotel and the use of all Hotel facilities, in either case at a discounted price or without charge as the case may be. Operator shall, on a space available basis provide lodging at the Hotel for Owner's employees and directors visiting the Hotel and allow them the use of all Hotel facilities in either case without charge, except for recreational facilities for which a charge will apply. -4- 5.4. During the term of this Agreement and for a period of two (2) years thereafter, Owner agrees that it (and its Affiliates) will not, without the prior written consent of Operator, either directly or indirectly, alone or in conjunction with any other person or entity, (a) solicit or attempt to solicit any general manager (each, a "GENERAL MANAGER" and, collectively, "GENERAL MANAGERS") of the Hotel or any other hotels managed by Operator (provided that in the event Manager or its Affiliates manage one hundred (100) or more hotels for third parties that are not Affiliates of Owner, the foregoing shall only apply to General Managers of hotels managed by Operator for Owner) or any of Operator's corporate level (i.e., not engaged full time in the operation of the Hotel) employees or staff (the "EXECUTIVE EMPLOYEES"; collectively, the General Manager and Executive Employees, the "KEY EMPLOYEES") to terminate, alter or lessen Key Employees' employment or affiliation with Operator or to violate the terms of any agreement or understanding between any such Key Employee and Operator, as the case may be, or (b) employ, retain or contract with any Key Employee, unless in each case of the actions described in (a) or (b) it will pay Operator, within thirty (30) days of taking any of the actions described in (a) or (b) above, an amount equal to 2.5 times the aggregate base salary and cash bonus paid to the relevant Key Employee over the twelve (12) month period immediately preceding such action; provided that the restrictions set forth in clauses (a) and (b) above shall not apply to the employment, retention of or contracting with a Key Employee if (i) Operator has not offered such Key Employee employment prior to the termination of this Agreement pursuant to Section 17.1 hereof, (ii) Operator has not offered such Key Employee employment within thirty (30) days from Operator's receipt of notice of the termination of this Agreement other than pursuant to Section 17.1 hereof, (iii) if Operator has otherwise waived in writing such restriction, or (iv) if this Agreement is terminated by Owner as a result of the commission of any theft, embezzlement or other criminal misappropriation of Hotel or Owner funds or any fraud or felony by any executive of Operator that relates to or materially affects the operation or reputation of the Hotel. The parties agree that Operator's damages resulting from Owner's violation of the restrictions set forth in clauses (a) and (b) above are not readily determined and that the compensation payable to Operator by Owner as provided by this Section 5.4 is a fair and reasonable estimation thereof. 5.5. Except to the extent provided otherwise in Article VIII of the Master Contribution Agreement, by and between Operator, JABO LLC, Boykin Lodging Company, and Boykin Hotel Properties, L.P., dated as of December 31, 2001 (the "MASTER CONTRIBUTION AGREEMENT"), Operator shall not be liable for any failure of the Hotel to comply, prior to the Commencement Date, with all federal, state, local and foreign statutes, laws, ordinances, regulations, rules, permits, judgments, orders and decrees affecting labor union activities, civil rights or employment in the United States, including, without limitation, the Civil Rights Act of 1870, 42 U.S.C. Sec.1981, the Civil Rights Acts of 1871, 42 U.S.C. Sec. 1983 the Fair Labor Standards Act, 29 U.S.C. Sec.201, ET SEQ., the Civil Rights Act of 1964, 42 U.S.C. Sec.2000e, ET SEQ., as amended, the Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec.621, ET SEQ.,the Rehabilitation Act, 29 U.S.C. Sec.701, ET SEQ., the Americans With Disabilities Act of 1990, 29 U.S.C. Sec.706, 42 U.S.C. Sec.12101, ET SEQ., the Employee Retirement Income Security Act of 1974, 29 U.S.C. Sec.301, ET SEQ., the Equal Pay Act, 29 U.S.C. Sec. 201, ET SEQ., the National Labor Relations Act, 29 U.S.C. Sec.151, et SEQ., and any regulations promulgated pursuant to such statutes (collectively, as amended from time to time, and together with any similar laws now or hereafter enacted, the "EMPLOYMENT LAWS"). 5.6. Operator shall from time to time develop and implement policies, procedures and programs for the Hotel (collectively, the "EMPLOYMENT POLICIES") reasonably designed to effect compliance with the Employment Laws. The Employment Policies shall be consistent with industry standards from time to time for reputable hotel management companies. 5.7. Operator shall not hire a General Manager without the prior approval of Owner. Owner shall, within fifteen (15) days after notice from Operator, interview a General Manager candidate and grant or withhold its approval; provided Operator has made the General Manager candidate reasonably available -5- within such fifteen (15)-day period. Operator shall allow Owner, at Owner's election, to interview the General Manager candidate; provided, however, that Operator shall have the right to participate in any such interview. ARTICLE VI PROVISION OF FUNDS 6.1. In performing its services under this Agreement, Operator shall act solely as agent and for the account of Owner. Operator shall not be in default of its obligations under this Agreement to the extent it is unable to perform any obligation due to the lack of available funds from the operation of the Hotel or otherwise due to Owner's failure to provide required working capital. 6.2. Operator shall in no event be required to advance any of its funds (whether by waiver or deferral of its management fees or otherwise) for the operation of the Hotel. ARTICLE VII CENTRALIZED SERVICES 7.1. Operator may provide or cause its Affiliates to provide for the Hotel and its guests the full benefit of any reservations system hereafter established by Operator or its Affiliates and provide, or cause its Affiliates to provide, such aspects of any accounting or purchasing services, other group benefits and services, revenue management services, on-site sales training, associate satisfaction surveys, training and other training as are made available generally to properties managed by Operator, all of which are collectively referred to as "CENTRALIZED SERVICES." The Centralized Services being provided on the date hereof, and the approximate cost thereof as of December 31, 2001, are set forth on EXHIBIT B attached hereto. Owner shall not have the right to reject the Centralized Services set forth on EXHIBIT B unless in any given year either (i) the cost charged Owner for Operator's actual out-of-pocket, unrelated third-party costs to provide any Centralized Services increases in excess of the increase in Operator's actual out-of-pocket, unrelated third-party costs to provide such Centralized Services, or (ii) Operator's costs with respect to Centralized Services increases because of a change in the scope of such Centralized Services or the corporate staff devoted to such Centralized Services. Operator shall advise Owner in writing of any Centralized Service not set forth on EXHIBIT B, which Operator proposes to provide to the Hotel and the approximate cost thereof. Owner shall have the right to reject, in its sole and absolute discretion, any and all such other Centralized Services that are proposed by Operator after the date of this Agreement and/or which are not set forth on EXHIBIT B, in which case Operator shall not provide such rejected Centralized Services and no portion of the cost of such rejected Centralized Services shall be incurred by Owner or included in Operating Expenses. 7.2. Subject to the provisions of the applicable Budget and Section 7.1, Operator or such of Operator's Affiliates as provide Centralized Services shall be entitled to be reimbursed for the Hotel's share of the total costs that are reasonably incurred in providing such Centralized Services on a system-wide basis to hotels and motels managed by Operator or its Affiliates, which costs may include, without limitation, salaries (including payroll taxes and employee benefits) of employees and officers of Operator and its Affiliates, costs of all equipment employed in the provision of such services and a reasonable charge for overhead. The Hotel's share of such costs shall be determined in an equitable manner by Operator (which shall be approved by Owner in its reasonable discretion) and substantiated to Owner after each Fiscal Year end and shall be an Operating Expense of the Hotel. -6- 7.3. Owner acknowledges that Operator may enter into purchasing, maintenance or service contracts with respect to the Hotel as are made available generally to properties managed by Operator pursuant to which Operator or Affiliates of Operator receive rebates, cash incentives, administration fees, concessions, profit participations, stock or stock options, investment rights or similar payments or economic consideration from or in, as applicable, vendors or suppliers of goods or services. Operator agrees that any such amounts or benefits derived from the following six (6) categories, are equally the property of Operator and Owner and shall be allocated on an equal (50/50) basis between Operator and Owner; (1) food and beverage purchases, (2) telecommunications, (3) insurance, (4) electronic purchases, (5) early payment discounts or payments and (6) vendor advertising contributions. In addition, the terms of any contract or agreement for such goods or services, when taken as a whole, shall not be materially less favorable to the Hotel than the prevailing terms of contracts to provide similar goods or services on a single-property basis obtainable on a commercially reasonable basis from unrelated parties in the area of the Hotel. ARTICLE VIII WORKING CAPITAL AND BANK ACCOUNTS 8.1. Owner will maintain working capital funds on a system-wide basis sufficient in amount to constitute reasonable working capital for the uninterrupted and efficient operation of the Hotel, and provide Operator with such funds, as and when reasonably required by Operator. 8.2. All funds received by Operator in the operation of the Hotel, and funds for working capital provided by Owner, shall be deposited in an account bearing the name of Owner and the Hotel established by Owner at such financial institution as may from time to time be selected by Owner (the "AGENCY ACCOUNT"); provided, however, that, except as otherwise provided in this Agreement, no signature or other approval of Owner or any representative thereof shall be required for any withdrawal by Operator therefrom. Amounts in the Agency Account may be temporarily withdrawn and invested by Operator in any Permitted Investments, having due regard for the timing of the Hotel's cash needs. From the Agency Account, Operator shall pay all Operating Expenses and reimburse itself for any reimbursable expenses in accordance with this Agreement, pay to itself the Base Fee and Incentive Fee and remit any excess amounts to Owner. In addition, Owner may, at its option, from time to time, instruct Operator to withhold specified amounts from Owner's share as accruals against real estate taxes, debt service and insurance costs, for the benefit of Owner. All interest earned or accrued on amounts invested from the Agency Account shall be added to the Agency Account and shall not constitute Gross Revenues or be included therein. The Agency Account shall be owned by Owner and shall be controlled and operated by Operator as provided herein and in its capacity hereunder. For the purposes of this Agreement, "PERMITTED INVESTMENTS" shall mean insured demand deposits, certificates of deposit, bankers' acceptances and time deposits of United States banks which (i) issue (or the parent company of which issues) commercial paper rated by Moody's Investors Service, Inc. or by Standard & Poor's Rating Services at not less than "1" if then rated by Moody's and not less than "A1" if then rated by Standard & Poor's, (ii) are organized under the laws of the United States or any state thereof, and (iii) have combined capital and surplus in excess of $100,000,000; provided, however, that the aggregate amount at any time so invested with any single bank having combined assets of less than $1,000,000,000 will not exceed $200,000. 8.3. The Agency Account shall be in the name of Operator as agent for Owner and shall be under the control of Operator. Checks or other documents of withdrawal shall be signed only by representatives of Operator, provided that such representatives shall be bonded or otherwise insured in a manner reasonably -7- satisfactory to Owner. The premiums for bonding or other insurance shall be an Operating Expense except for premiums for bonding off-site executive employees of Operator, if, and to the extent, of increased costs associated therewith. Upon the expiration or termination of this Agreement all remaining amounts in the Agency Account shall be transferred to Owner, subject to Owner's remaining obligations, if any, to Operator and its Affiliates under this Agreement. 8.4. In the event the franchisor provides written notice of a default under the franchise agreement, then Owner shall be obligated within thirty (30) days of receipt of such notice, to enter into a negotiation process with the franchisor to cure such default. If, after ninety (90) days of negotiation, Owner and franchisor are unable to reach an agreement on a cure of the default and franchisor proceeds in exercising its right of termination of the franchise agreement, then Owner shall be obligated to pay Operator a fee on the twentieth (20th) day following the end of each of the four (4) full calendar quarters following the end of the aforementioned ninety (90) days, which fee in each case shall be an amount equal to 1.125% of Total Revenues for the corresponding calendar quarter of the preceding calendar year (collectively, the "SPECIAL FEE"), which Special Fee shall be in lieu of the Incentive Fee for that period, as provided for in Section 10. 2 hereof. Notwithstanding the foregoing, Operator shall not be entitled to the Special Fee (i) if within the aforementioned ninety (90) days Owner informs Operator in writing that it is Owner's intention to change the Hotel's franchise affiliation, (ii) Owner terminates this Agreement in accordance the terms of this Agreement, unless Operator earns the Incentive Fee in accordance with Section 10.2 hereof, or (iii) if (a) defaults (as set forth in the notice of default) exist under the franchise agreement other than defaults which occurred as a result of Owner's failure to provide sufficient funds to permit the Hotel and its operations to satisfy the Hotel Standards (such other defaults, the "OTHER DEFAULTS"), and (b) if the Other Defaults did not exist, then the franchisor would not have provided the written notice of default described in the first sentence of this Section 8.4. In no event shall Owner's failure to pay the Special Fee required in this Section 8.4 give rise to any remedy for that period except for the claim for the amounts described herein, except that Operator shall also have a right to terminate this Agreement pursuant to Section 16.2. Subject to the foregoing, the provisions of this Section 8.4 shall not limit either party's rights and remedies set forth elsewhere in this Agreement. ARTICLE IX BOOKS, RECORDS AND STATEMENTS; BUDGETS 9.1. Operator shall keep full and accurate books of account and other records reflecting the results of the operation of the Hotel in accordance with generally accepted accounting principles ("GAAP") and the Uniform System of Accounts (Ninth Revised Edition 1996, as further revised from time to time) as adopted by the American Hotel and Motel Association of the United States and Canada (the "UNIFORM SYSTEM") with such exceptions as may be required by the provisions of this Agreement; provided, however, that Operator may, with prior notice to Owner, make such modifications to the methodology in the Uniform System as are consistent with Operator's standard practice in accounting for its operations under management contracts generally, so long as such modifications do not affect the determination of Total Revenues, Operating Expenses or Fixed Charges under Article XI. Except for the books and records which may be kept in Operator's home office or other accessible location pursuant to the adoption of a central billing system or other centralized service, the books of account and all other records relating to or reflecting the operation of the Hotel shall be kept at the Hotel and shall be available to Owner and its representatives at all reasonable times for examination, audit, inspection and transcription. All of such books and records including, without limitation, books of account, guest records and front office records, shall be the property of Owner, but shall be available to Operator for use during the terms of this Agreement in connection with the operation of the Hotel. Upon any termination of this -8- Agreement, all of such books and records shall thereafter be available to Operator at all reasonable times for inspection, audit, examination and transcription for a period of three (3) years. 9.2. Operator shall deliver to Owner within twenty (20) days after the end of each month, the following items (collectively, the "MONTHLY REPORTS"): A. An executive summary noting highlights of operations for such month; B. A balance sheet as of the last day of such month; C. A source and use of funds statement for such month; D. An income and expense statement for such month; E. A twelve-month summary and forecast of operations for the current Fiscal Year utilizing (i) actual year-to-date figures, (ii) forecasts for the next thirty (30), sixty (60) and ninety (90)-day periods and (iii) budgeted amounts for the balance of the Fiscal Year; F. A twelve-month summary and forecast of cash flow for the current Fiscal Year utilizing (i) actual year-to-date figures, (ii) forecasts for the next thirty (30), sixty (60) and ninety (90)-day periods and (iii) budgeted amounts for the balance of the Fiscal Year; G. A summary of year-to-date capital expenditures and budgeted amounts for the balance of the year; and H. Such other monthly reports as Owner may reasonably request and as are customarily provided without additional fee by managers of similar hotels in the area of the Hotel. The Monthly Reports shall be prepared in accordance with GAAP and the Uniform System to the extent applicable and shall otherwise be prepared in accordance with Operator's standard financial reporting and budgeting practices. 9.3. Year-end financial statements for the Hotel (including a balance sheet, income statement and statement of sources and uses of funds) shall be prepared in accordance with GAAP and the Uniform System and certified by an independent national certified public accounting firm with hospitality experience selected by Owner. Operator shall cooperate in all respects with such accountant in the preparation of such statements. 9.4. On or before each December 1 during the Operating Term, Operator shall submit to Owner for Owner's approval in Owner's sole discretion, the following items (collectively, the "BUDGETS") for the next Fiscal Year: A. An operating budget (the "OPERATING BUDGET") setting forth in reasonable line-item detail the projected income from and expenses of all aspects of the operations of the Hotel with comparison to the Operating Budgets for the two previous fiscal years; B. A capital budget (the "CAPITAL BUDGET") setting forth in reasonable line-item detail proposed capital projects and expenditures for the Hotel, including, but not limited to, FF&E expenditures, ordinary and non-structural repairs, and other alterations, additions -9- and improvements, with comparison to the Capital Budgets for the two previous fiscal years; C. A cash flow forecast (the "CASH FLOW FORECAST") on a monthly basis; D. A plan (the "MARKETING PLAN") describing the proposed advertising, marketing, promotion, publicity and other like programs for the Hotel; E. Such other reports or projections as Owner may reasonably request and as are customarily provided without additional fee by similar sized management companies. The Budgets shall be prepared in accordance with GAAP and the Uniform System to the extent applicable and shall otherwise be prepared in accordance with Operator's standard financial reporting and budgeting practices. 9.5. Owner shall approve or reject, in whole or in part, the Budgets within twenty (20) days of submission by Operator. If Owner does not respond within such twenty (20)-day period, Owner shall be deemed to have not approved the Budgets in their entirety. Operator shall operate the Hotel substantially subject to the Budgets. Operator shall not, without Owner's prior approval: A. Incur any expense for any line-item in the Operating Budget which causes the aggregate expenditures for such line-item to exceed the budgeted amount by the greater of (i) 10% or (ii) $5,000 for the applicable fiscal period set forth in the Operating Budget, not to exceed, except to the extent such expenditures vary in correlation with Total Revenues and/or occupancy in the aggregate, five percent (5%) of the Operating Budget for any such Fiscal Year, provided that Operator may, without Owner's approval (a) pay any expenses (the "NECESSARY EXPENSES") regardless of amount, which are necessary for the continued operation of the Hotel in accordance with Applicable Laws and the Hotel Standard and which are not within the reasonable control of Operator (including, but not limited to, those for taxes, utility charges, licensing and permits), or (b) pay any expenses (the "EMERGENCY EXPENSES") regardless of amount which, in Operator's good faith judgment, are immediately necessary to protect the physical integrity or lawful operation of the Hotel or the health or safety of its occupants; or B. Incur any expense for any line-item in the Capital Budget which causes the aggregate expenditures for such line-item to exceed the budgeted amount by the greater of (i) 10% or (ii) $5,000 for the applicable fiscal period set forth in the Capital Budget, not to exceed, in the aggregate, five percent (5%) of the Capital Budget for such Fiscal Year, provided that Operator may, without Owner's approval, pay any Emergency Expenses which are capital in nature. 9.6. If the Budgets (or any component of the Budgets), have not been approved by Owner prior to any applicable Fiscal Year, then, until approval of the Budgets (or such components) by Owner, Operator shall operate the Hotel substantially in accordance with the prior year's Budgets except for, or as modified by, (a) those components of the Budgets for the applicable Fiscal Year approved by Owner, (b) the Necessary Expenses which shall be paid as required, (c) the Emergency Expenses which shall be paid as required, and (d) those expenses that vary in correlation with Total Revenues and/or occupancy in the aggregate. -10- 9.7. Subject to the express limitations set forth in this Agreement, Owner acknowledges that (a) the Budget is an estimate of income and expenditures only, (b) Operator does not give any guarantee, warranty or representation whatsoever in connection with any Budget, (c) Operator does not guarantee the accuracy of the information contained in the Budget or the results predicted therein, (d) Operator shall not be held responsible for any divergence between the projections contained in the Budget and the actual results achieved, and (e) failure of the Hotel to achieve the projections for any Fiscal Year shall not constitute an event of default. ARTICLE X MANAGEMENT FEES AND PAYMENTS TO OPERATOR AND OWNER 10.1. Owner shall pay to Operator, on a monthly basis, for services rendered under this Agreement a management fee (the "BASE FEE") equal to three percent (3%) of Total Revenues. 10.2. Owner shall pay to Operator on an annual basis an incentive management fee (the "INCENTIVE FEE") equal to thirteen and one half percent (13.5%) of Gross Operating Profit in excess of the Gross Operating Profit agreed to in the Operating Budget for each Fiscal Year. In no event shall the Incentive Fee exceed one and one-eighth percent (1.125%) of Total Revenues for any Fiscal Year. 10.3. [INTENTIONALLY OMITTED] 10.4. In each month during the Operating Term, Operator shall be paid out of the Agency Account the Base Fee for the preceding month, as determined from the monthly income and expense statement, such payment to be made upon delivery of the income and expense statement for such month showing the computation of Total Revenues and the Base Fee for such month. Partial advance payments of the Incentive Fee shall be payable quarterly on the twentieth (20th) day following the end of each quarter. The amount of each such advance payment of the Incentive Fee shall be equal to fifty percent (50%) of the Incentive Fee that would be payable against budget and on a cumulative basis for a partial Fiscal Year which ended on the last day of such quarter, less any previous advance payments for such Fiscal Year. Within ten (10) days after receipt by Owner of the audited financial statements of the Hotel for such Fiscal Year but no later than ninety (90) days after the end of each Fiscal Year or partial Fiscal Year, Owner shall pay to Operator the excess of the Incentive Fee over any advance payments or Operator shall pay to Owner the excess of any advance payments over the Incentive Fee. The Incentive Fee shall be subject to adjustment as provided in Section 10.6. 10.5. On or before the twentieth (20th) day following the last day of each calendar month (or such other fiscal period as Owner and Operator may determine) of each Fiscal Year during the Operating Term, after (a) payment of Operating Expenses and other amounts required to be paid under this Agreement and (b) retention of working capital sufficient to assure the uninterrupted and efficient operation of the Hotel in accordance with the Hotel Standard and the Major Agreement and most recent Cash Flow Forecast, all funds in the Agency Account shall be paid to Owner. 10.6. At the end of each Fiscal Year and following receipt by Owner of the annual audit set forth in Section 9.3, an adjustment will be made, if necessary, based on the audit so that Operator shall have received the accurate Base Fee and Incentive Fee for such Fiscal Year. Within thirty (30) days of receipt by Owner and Operator of such audit, Operator shall either (a) place in the Agency Account or remit to Owner, as appropriate, any excess amounts Operator may have received for such fees during such -11- calendar year or (b) be paid out of the Agency Account or by Owner, as appropriate, any deficiency in the amounts due Operator for the Base Fee and Incentive Fee. 10.7. Operator agrees to provide an incentive to its corporate executive team by allocating annually to a bonus pool a portion of the Incentive Fee received by Operator for such Fiscal Year, which amount shall be the first amounts received by Operator as the Incentive Fee for such Fiscal Year up to a maximum amount equal to the first one-eighth of one percent (.125%) of Total Revenues (the "MINIMUM POOL ALLOCATION"). The allocation by the Operator to the bonus pool shall be made prior to making any other payments or distributions by Operator of the Incentive Fee for such Fiscal Year. In addition, no less than twenty-five percent (25%) of the corporate executive team's bonus for any year during the Term applicable to all hotels managed by Operator on behalf of Owner or any of its Affiliates shall be based upon achieving the aggregate Gross Operating Profit set forth in the approved Operating Budgets for such hotels for any Fiscal Year during the Term. Operator agrees to distribute to its corporate executive team the Minimum Pool Allocation each Fiscal Year during the Term. Bonus and other incentive payments made to Operator's corporate staff and executives is not an Operating Expense. Nothing in this Section 10.7 shall prohibit the Operator from allocating more than the Minimum Pool Allocation to the bonus pool. 10.8. Any bonus or other incentive payment paid to executive committee members at the Hotel will be based upon the Gross Operating Profit of the Hotel. Such incentives will be deemed earned on a sliding scale commencing upon achievement of ninety percent (90%) of the Gross Operating Profit set forth in the approved Operating Budget. The details of this incentive plan will be developed by Operator and will be subject to Owner's approval. In no case will less than twenty-five percent (25%) of the executive committee members' bonus be based upon achieving the Gross Operating Profit set forth in the approved Operating Budget. ARTICLE XI CERTAIN DEFINITIONS 11.1. A. The term "TOTAL REVENUES" shall mean, for any period, all income, revenue, receipts and proceeds resulting from the operation of the Hotel and all of its facilities (net of refunds and credits to guests and other items deemed "Allowances" under the Uniform System) which are properly attributable under GAAP and the Uniform System to the period in question. Subject to Section 11.1(B), Total Revenues shall include, without limitation, all amounts derived from: (i) The rentals of rooms, banquet facilities and conference facilities; (ii) The sale of food and beverage whether sold in a bar, lounge or restaurant, delivered to a guest room, sold through an in-room facility or vending machines, provided in meeting or banquet rooms or sold through catering operations; (iii) Charges for admittance to or the use of any parking facilities, recreational facilities or any entertainment events at the Hotel; (iv) Rentals paid under Leases; (v) Charges for other Hotel services or amenities, including, but not limited to, telephone service, in-room movies, and laundry services; and -12- (vi) The gross income amount on which the proceeds of business interruption or similar insurance are determined, with respect to any period for which such proceeds are received. Notwithstanding the foregoing, the receipts or proceeds derived from the Land or Building or activities thereon or therein unrelated to the operation of the Hotel or for which Operator has minimal or no involvement shall be excluded from Total Revenues. B. Total Revenues shall not include: (i) Sales or use taxes or similar governmental impositions collected by Owner or Operator; (ii) Tips, service charges and other gratuities received by the Hotel Employees; (iii) Proceeds of insurance except as set forth in Section 11.1(A); (iv) Proceeds of the sale or condemnation of the Hotel, any interest therein or any other asset of Owner not sold in the ordinary course of business, or the proceeds of any loans or financings; (v) Capital contributed by Owner to the Hotel; (vi) The repayment to Owner of any loans or interest thereon made by Owner; (vii) The receipts of any tenant, licensee or concessionaire under a Lease; and (viii) Interest Income. 11.2. A. The term "OPERATING EXPENSES" shall mean all costs and expenses for any period of maintaining, conducting and supervising the operation of the Hotel and all of its facilities which are properly attributable under GAAP and the Uniform System and GAAP to the period in question. Operating Expenses shall include, without limitation: (i) The cost of all Operating Equipment and Operating Supplies; (ii) Salaries and wages of the Hotel personnel, including costs of payroll taxes and employee benefits. The salaries or wages of off-site employees or executives of Operator shall not be Operating Expenses, provided that if it becomes necessary for an off-site employee or executive of Operator to temporarily perform services at the Hotel of a nature normally performed by the Hotel Employees, his salary (including payroll taxes and employee benefits) for such period only as well as his traveling expenses shall be Operating Expenses and reimbursed to Operator; (iii) The cost of all other goods and services obtained in connection with the operation of the Hotel, including, without limitation, heat and utilities, laundry, landscaping and exterminating services and office supplies; (iv) The cost of all non-capital repairs to and maintenance of the Hotel; -13- (v) Insurance premiums (or the allocable portion thereof in the case of blanket policies) for all insurance maintained under Article XIII (other than insurance against physical damage to the Hotel) and losses incurred on any self-insured risks (including deductibles, but excluding deductibles and co-payments for losses for physical damage to the Hotel); (vi) All taxes, assessments, permit fees, inspection fees, and water and sewer charges and other charges (other than income or franchise taxes) payable by or assessed against Owner with respect to the operation of the Hotel, excluding Property Taxes (as defined in Section 11.3); (vii) All costs and fees of accountants, attorneys and other third parties who render professional services related to the operation of the Hotel, which under GAAP are expensed currently rather than capitalized; (viii) All expenses for advertising the Hotel and all expenses of sales promotion and public relations activities; (ix) All out-of-pocket expenses and disbursements reasonably incurred by Operator, pursuant to, in the course of, and directly related to, the management and operation of the Hotel under this Agreement, which fees and disbursements shall be paid out of the Agency Account or reimbursed by Owner to Operator upon demand. Without limiting the generality of the foregoing, such charges may include all reasonable travel, telephone, telegram, facsimile, air express and other incidental expenses, but, except as otherwise provided in this Agreement, shall not include any of the regular expenses of the central offices maintained by Operator, other than offices maintained at the Hotel for the management of the Hotel. Operator shall maintain and make available to Owner invoices or other evidence supporting such charges; (x) The Base Fee; (xi) Payments under any applicable franchise agreement; (xii) Any other item specified as an Operating Expense in this Agreement; (xiii) Fees for Centralized Services; and (xiv) Any other cost or charge classified as an Operating Expense or an Administrative and General Expense under the Uniform System unless specifically excluded under the provisions of this Agreement. B. Operating Expenses shall not include: (i) Amortization and depreciation; (ii) the making of or the repayment of any loans or any interest, fees and charges, thereon; -14- (iii) The costs of any alterations, additions or improvements which for Federal income tax purposes or under GAAP must be capitalized and amortized over the life of such alteration addition or improvement; (iv) Payments on account of any equipment lease that are to be capitalized under GAAP; (v) Payments under any ground lease, space lease or easement agreement; (vi) Any item defined as a Fixed Charge in Section 11.3; or (vii) Any federal, state, local or franchise tax based upon net income, capital or capitalization. 11.3. "FIXED CHARGES" shall mean the cost of the following items relating to the Hotel or its facilities which are properly attributable under GAAP and the Uniform System to the period in question: (i) Real estate taxes, assessments, personal property taxes and any other ad valorem taxes imposed on or levied in connection with the Hotel, the Installations and the FF&E (collectively, "PROPERTY TAXES"); (ii) Insurance against physical damage to the Hotel; and (iii) Ground lease payments and charges, if any. 11.4. "GROSS OPERATING PROFIT" for any period shall mean the amount, if any, by which Total Revenues for such period exceed Operating Expenses for such period. 11.5. "FISCAL YEAR" shall mean each twelve (12) consecutive calendar month period or partial twelve (12) consecutive calendar month period within the Operating Term commencing on January 1st (or, with respect to the first year of the Operating Term, January 1, 2002 (the "OPENING DATE")) and ending on December 31st (or, with respect to the last year of the Operating Term, the expiration or earlier termination of the Operating Term) unless Owner and Operator otherwise agree. 11.6. "AFFILIATE" shall mean any corporation, partnership, sole proprietorship or other entity or individual which (a) is owned or Controlled by such party, (b) owns or Controls such party, or (c) is under common ownership or Control with such party; provided that Operator shall not be deemed an Affiliate of Owner and Owner shall not be deemed an Affiliate of Operator; and provided, further, that (i) JABO LLC, The John E. Boykin 1997 Amended and Restated Revocable Trust, The Robert W. Boykin Second 1997 Amended and Restated Revocable Trust, Robert W. Boykin, John E. Boykin, and any entity Controlled by such persons, and (ii) Owner, shall not be deemed to be Affiliates of each other. 11.7. "CONTROL" or "CONTROLLING" shall mean ownership of over fifty percent (50%) of the voting stock, membership interests, partnership interests or other equity interest of an entity or the ability to designate or cause to be elected the managing member, general partner or over fifty percent (50%) of the board of directors or the governing body of such entity. -15- ARTICLE XII REPRESENTATIONS AND WARRANTIES 12.1. Owner, in order to induce Operator to enter into this Agreement, hereby makes the following representations and warranties: A. The execution of this Agreement is permitted by the Certificate of Formation and Operating Agreement of Owner and this Agreement has been duly authorized, executed and delivered on behalf of Owner and constitutes the legal, valid and binding obligation of Owner enforceable in accordance with the terms hereof; B. There is no claim, litigation, proceeding or governmental investigation pending, or, as far as is known to Owner, threatened, against or relating to such party, the properties or business of Owner or the transactions contemplated by this Agreement which does, or may reasonably be expected to, materially or adversely affect the ability of Owner to enter into this Agreement or to carry out its obligations hereunder, and, to the best of Owner's knowledge, there is no basis for any such claim, litigation, proceedings or governmental investigation, except as has been fully disclosed in writing to Operator; C. Neither the consummation of the transactions contemplated by this Agreement of the part of such party to be performed, nor the fulfillment of the terms, conditions and provisions of this Agreement, conflicts with or will result in the breach of any of the terms, conditions or provisions of, or constitute a default under, any agreement, indenture, instrument or undertaking to which Owner is a party or by which it is bound; D. No approval of any third party (including any ground lessor or the holder of any Mortgage in effect as of the date of this Agreement) is required for Owner's execution and performance of this Agreement that has not been obtained prior to the execution of this Agreement; and E. Owner holds all material governmental approvals required to be held by it to own the Hotel. 12.2. Operator, in order to induce Owner to enter into this Agreement, hereby makes the following representations and warranties: A. The execution of this Agreement is permitted by the Articles of Organizations and Operating Agreement of Operator and this Agreement has been duly authorized, executed and delivered on behalf of Operator and constitutes the legal, valid and binding obligation of Operator enforceable in accordance with the terms hereof; B. There is no claim, litigation, proceeding or governmental investigation pending, or, as far as is known to Operator, threatened, against or relating to such party, the properties or business of Operator or the transactions contemplated by this Agreement which does, or may reasonably be expected to, materially or adversely affect the ability of Operator to enter into this Agreement or to carry out its obligations hereunder, and, to the best of Operator's knowledge, there is no basis for any such claim, litigation, proceedings or governmental investigation, except as has been fully disclosed in writing to Owner; -16- C. Neither the consummation of the transactions contemplated by this Agreement of the part of such party to be performed, nor the fulfillment of the terms, conditions and provisions of this Agreement, conflicts with or will result in the breach of any of the terms, conditions or provisions of, or constitute a default under, any agreement, indenture, instrument or undertaking to which Operator is a party or by which it is bound; D. No approval of any third party is required for Operator's execution and performance of this Agreement that has not been obtained prior to the execution of this Agreement; and E. Operator holds all material governmental approvals required to be held by it to perform its obligations under this Agreement. ARTICLE XIII INSURANCE 13.1. The following insurance with respect to the Hotel shall be placed by Operator (without charge or mark-up by Operator) and maintained throughout the Operating Term at Owner's sole cost and expense: A. Insurance covering the Building, the Installations and the FF&E on an all-risk, broad form basis, against such risks as are customarily covered by such insurance (including, without limitation, boiler and machinery insurance, but excluding damage resulting from earthquake, war, and nuclear energy), in aggregate amounts which shall be not less than the full replacement cost of the Building, the Installations and the FF&E (exclusive of foundations and footings); B. Commercial general liability insurance with a combined single limit of not less than $1,000,000 for each occurrence, together with excess liability coverage of not less than $20,000,000, covering each of the following: (i) bodily injury, (ii) death, (iii) property damage, (iv) assault and battery, (v) false arrest, detention or imprisonment or malicious prosecution, (vi) libel, slander, defamation or violation of the right of privacy, (vii) wrongful entry or eviction, (viii) liquor law or dram shop liability, (ix) "all risk legal liability"; (x) products and completed operations, (xi) general aggregate, and (xii) personal and advertising injury. C. Worker's compensation insurance or insurance required by similar employee benefit acts having a minimum per occurrence limit as Operator may reasonably deem advisable against all claims which may be brought for personal injury or death of the Hotel Employees, but in any event not less than amounts prescribed by applicable state law; D. Fidelity insurance, in such amounts and with such deductibles as Owner may require, covering Operator's employees at the Hotel (other than executive employees of Operator) or in job classifications normally bonded in other hotels it manages in the United States or otherwise required by law; E. Business interruption insurance/rent insurance covering loss of income (including gross rent and other charges) for a minimum period of one (1) year resulting from interruption of business caused by the occurrence of any of the risks insured against under "all-risk" policy referred to in Section 13.1(A); -17- F. Employment Practices Liability Insurance ("EMPLOYMENT INSURANCE") with reasonable limits and deductibles; G. If the Hotel is located within an area designated "flood prone" pursuant to the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, as the same may be amended from time to time, flood insurance in such amount as Owner may reasonably require; H. Vehicle liability and physical damage insurance for owned, non-owned and hired vehicles in the amount of $10,000,000; and I. Such other or additional insurance as may be (i) required under the provisions of the applicable Major Agreements, as the same may change from time to time (provided Operator has been given detailed written notice of such requirements) or (ii) reasonably requested by Owner. 13.2. All insurance policies shall name Operator as the insured party and shall name as additional insureds Owner and such other parties as may be required by the terms of any mortgage, deed of trust or franchise agreement as appropriate. Upon thirty (30) days' prior written notice to Operator, Owner shall have the right to obtain any insurance required under Sections 13.1 (A), (B), (E), (G) and/or (H) above; provided, however, that in the event that Owner shall obtain any insurance with respect to the Hotel other than through the program established by Operator, such insurance policy shall name Operator as an additional named insured party. Early cancellation penalties shall be borne by Owner. 13.3. All insurance policies shall be in such form and with such companies as shall be reasonably satisfactory to Owner and provided Owner has given Operator a written copy of such requirements, shall comply with the requirements of any mortgage or deed of trust encumbering the Hotel. Insurance may be provided under blanket or master policies covering one or more other hotels operated by Operator. The portion of the premium for any blanket or master policy which is allocated to the Hotel as an Operating Expense or Fixed Charge shall be determined in an equitable manner by Operator and reasonably approved by Owner. 13.4. All insurance policies shall specify that they cannot be canceled or modified on less than twenty (20) days' prior written notice to both Owner and Operator and any additional insureds (or such longer period as may be required under any applicable mortgage or deed of trust, provided that Operator has been advised in writing of such period), and shall provide that claims shall be paid notwithstanding any act or negligence of Owner or Operator or their respective agents or employees. 13.5. All insurance policies shall provide, to the extent customarily obtainable from the insurance company providing such insurance, that the insurance company will have no right of subrogation against Owner, Operator, any party to a mortgage or deed of trust encumbering the Hotel, or any of their respective agents, employees, partners, members, officers, directors or beneficial owners. 13.6. Owner and Operator hereby release one another from any and all liability, to the extent of the waivers of subrogation obtained under Section 13.5, associated with any damage, loss or liability with respect to which property insurance coverage is provided pursuant to this Article or otherwise. 13.7. The proceeds of any insurance claim (other than proceeds payable to third parties under the terms of the applicable policy) shall be paid into the Agency Account to the extent of Owner's interest therein unless otherwise required by the terms of any mortgage or deed of trust encumbering the Hotel. -18- 13.8. Provided Operator has given Owner at least ten (10) days' prior written notice of the need for such funds and Owner has not paid the same, Operator shall have the right to pay for, or reimburse itself for, insurance required under this Article XIII out of the Agency Account. Operator shall have no obligation to maintain any of the foregoing insurance if funds from Total Revenues or funds otherwise provided by Owner are not available. 13.9. The term "full replacement cost" as used herein shall mean the actual replacement cost of the Hotel requiring replacement from time to time including an increased cost of construction endorsement in the amount of $5,000,000, if available, and the cost of debris removal in an amount not to exceed 25% of the cost of construction. In the event either party believes that full replacement cost has increased or decreased at any time during the Term, it shall have the right to have such full replacement cost re-determined. Operator shall obtain such additional insurance as may be required as a result of such re-determination as full replacement cost. 13.10. All insurance policies covering the Hotel (including the Installations, FF&E or any personal property), and all insurance covering loss of income and business interruption, shall expressly waive any coinsurance penalty and resulting reduction in insurance proceeds, provided that a waiver of coinsurance is applicable with respect to a given insurance policy. 13.11. Operator shall promptly investigate and make a written report to the appropriate insurance company as to all accidents, claims for damage relating to the ownership, operation, and maintenance of the Hotel, any damage or destruction to the Hotel and the estimated cost of repair thereof and shall prepare any and all reports required by any insurance company in connection therewith. Operator shall submit such proposed filings and reports relating to such claims to Owner for its review and approval, which approval shall not be unreasonably withheld or delayed, prior to submitting same to the appropriate insurance company. All other adjustments, settlements and compromises shall be made only with the prior written consent of Owner. ARTICLE XIV PROPERTY TAXES; LEGAL PROCEEDINGS 14.1. If required under the Percentage Lease, provided that funds from Total Revenues or funds otherwise provided by Owner are available after payment of Operating Expenses and the Incentive Fee, if any, Operator shall pay all Property Taxes on behalf of Owner not less than ten (10) days prior to the applicable due dates. Upon Owner's request, Operator shall promptly furnish Owner with proof of payment of Property Taxes. 14.2. Upon Owner's request, Operator shall from time to time advise Owner of the desirability of contesting the validity or amount of any Property Tax (a "TAX CONTEST"). Owner may, whether or not Operator so recommends, pursue a Tax Contest, and Operator agrees to cooperate with Owner in a Tax Contest and execute any documents or pleadings required for such purpose, provided that the facts set forth in such documents or pleadings are accurate and that such cooperation or execution does not impose any liability on Operator. All costs and expenses incurred by Owner and Operator in connection with a Tax Contest shall be Operating Expenses. 14.3. All legal proceedings of any type or nature involving or relating to the Hotel (other than as between Owner and Operator) or the operation thereof ("LEGAL PROCEEDINGS") shall be overseen by Operator. Such oversight shall include referring any Legal Proceedings to the appropriate insurance carrier for the defense thereof, to the extent covered by insurance ("INSURED CLAIMS"). Operator's -19- oversight shall also include (i) providing Owner with prior (or simultaneous) written notice of all Legal Proceedings, (ii) instituting or defending Legal Proceedings, (iii) selecting outside counsel in connection with such Legal Proceedings, subject to the reasonable approval of Owner, (iv) directing and supervising such outside counsel, (v) furnishing to Owner any information reasonably requested by Owner regarding any Legal Proceedings, and (vi) providing quarterly status reports on any Legal Proceedings to Owner. Notwithstanding the foregoing, Owner shall have a right, exercisable by delivering written notice to Operator at any time, to direct and control all Legal Proceedings (including the selection of outside counsel) regarding Major Insured Claims, Uninsured Claims, and Non-Operational Claims and, if Owner exercises such right, Operator shall not commence or participate in any such proceeding without Owner's prior and continuing approval of both the proceeding, the conduct thereof and the counsel therefor. Operator shall provide all cooperation reasonably requested by Owner or its counsel in connection with all Legal Proceedings under the direction and control of Owner. 14.4. The term "MAJOR INSURED CLAIMS" shall mean all Insured Claims to the extent the claim exceeds $200,000. The term "UNINSURED CLAIMS" shall mean any Legal Proceedings that are not Insured Claims, where the claim exceeds $10,000. The term "NON-OPERATIONAL CLAIMS" shall mean any Legal Proceedings that are not Operational Claims. The term "OPERATIONAL CLAIMS" shall mean any and all claims to collect charges, rents or other income derived from the Hotel's operations or to dispossess guests, tenants or other persons in possession of all or any portion of the Hotel, or to cancel or terminate any lease, license, service contract or possession agreement for the breach thereof or default thereunder by the other party thereto and any other claim relating to the operation (as distinguished from the ownership) of the Hotel, excluding any claim relating to, arising out of or in connection with any agreement, arrangement or understanding (i) having a term of more than one year that cannot be cancelled by Owner without penalty on no more than 90 days' prior written notice or (ii) by Operator or its Affiliates that affects that Hotel and any other property. 14.5. Notwithstanding anything herein to the contrary, Operator shall be entitled to participate in the conduct of any Legal Proceeding under the direction and control of Owner in which Operator is a named defendant or which affects any agreement of Operator or its Affiliates regarding any property other than the Hotel, at Operator's sole expense if not otherwise being defended by Owner's counsel, provided that Operator's participation shall not interfere with the conduct of such action by Owner. Notwithstanding the foregoing, Operator's legal counsel shall be at the expense of Owner if in the reasonable opinion of Owner's legal counsel such counsel cannot ethically represent both Owner and Operator because of a conflict of interest. ARTICLE XV DAMAGE OR DESTRUCTION; CONDEMNATION 15.1. If the Hotel is damaged by fire or other casualty, Operator shall promptly notify Owner. This Agreement shall remain in full force and effect subsequent to such casualty provided that either party may terminate this Agreement upon thirty (30) days' prior notice to the other party if (a) Owner shall elect to close the Hotel as a result of such casualty (except on a temporary basis for repairs or restoration) or (b) Owner shall determine in good faith not to proceed with the restoration of the Hotel and provided further that Operator may terminate this Agreement upon thirty (30) days' prior notice to Owner if 20% or more of the rooms in the Hotel are unavailable for rental for a period of sixty (60) days or more as a result of such casualty. 15.2. If all or any portion of the Hotel becomes the subject of a condemnation proceeding or if Operator learns that any such proceeding may be commenced, Operator shall promptly notify Owner. -20- Either party may terminate this Agreement on thirty (30) days' notice to the other party if (a) all or substantially all of the Hotel is taken through condemnation or (b) less than all or substantially all of the Hotel is taken, but, in the reasonable judgment of the party giving the termination notice, the Hotel cannot, after giving effect to any restoration as might be reasonably accomplished through available funds from the condemnation award, be profitably operated as a first-class, full-service hotel. Additionally, Operator may terminate this Agreement upon thirty (30) days' prior notice to Owner if 20% or more of the rooms in the Hotel are unavailable for rental for a period of sixty (60) days or more as a result of a condemnation. 15.3. Any condemnation award or similar compensation shall be the property of Owner, provided that Operator shall have the right to bring a separate proceeding against the condemning authority for any damages and expenses specifically incurred by Operator as a result of such condemnation. 15.4. Neither Owner nor Operator shall be liable for any termination fee, penalty or liability made in connection with a termination of this agreement pursuant to the provisions of this Article XV. ARTICLE XVI EVENTS OF DEFAULT 16.1. The following shall constitute events of default: A. If either party shall be in default in the payment of any amount required to be paid under the terms of this Agreement, and such default continues for a period of ten (10) days after written notice from the other party; B. If either party shall be in material default in the performance of its other obligations under this Agreement, and such default continues for a period of thirty (30) days after written notice from the other party, provided that if such default cannot by its nature reasonably be cured within such thirty (30)-day period, an event of default shall not occur if and so long as the defaulting party promptly commences and diligently pursues the curing of such default; C. If either party shall (i) make an assignment for the benefit of creditors, (ii) institute any proceeding seeking relief under any federal or state bankruptcy or insolvency laws, (iii) institute any proceeding seeking the appointment of a receiver, trustee, custodian or similar official for its business or assets or (iv) consent to the institution against it of any such proceeding by any other person or entity (an "INVOLUNTARY PROCEEDING"); or D. If an Involuntary Proceeding shall be commenced against either party and shall remain undismissed for a period of sixty (60) days. 16.2. If any event of default shall occur, the non-defaulting party may terminate this Agreement on five (5) days' prior notice to the defaulting party. Except as otherwise provided in Section 21.2(d), neither Owner nor Operator shall be liable to the other for any termination fee, penalty or liability in connection with the rightful termination of the other party in accordance with this Section 16.2, but each party shall remain responsible for all fees and expenses then due and payable hereunder to the other party and its Affiliates. No termination pursuant to this Section 16.2 shall be effective unless and until Owner shall pay to Operator and its Affiliates all amounts then due and owing at the time of such termination to Operator and its Affiliates, excluding such amounts about which there is a good faith dispute, provided -21- that Owner shall be entitled to offset against such amounts any amounts due and owing at the time of such termination to Owner and its Affiliates by Operator and its Affiliates, excluding such amounts about which there is a good faith dispute. 16.3. The right of termination set forth in Section 16.2 shall not be in substitution for, but shall be in addition to, any and all rights and remedies for breach of contract or otherwise available in law or at equity. 16.4. Neither party shall be deemed to be in default of its obligations under this Agreement if and to the extent that such party is unable to perform such obligation as a result of fire or other casualty, act of God, strike or other labor unrest, unavailability of materials, terrorist act, war, riot or other civil commotion or any other cause beyond the control of such party, which shall not include the inability of such party to meet its financial obligations (collectively, "FORCE MAJEURE EVENTS"). ARTICLE XVII TERMINATION RIGHTS 17.1. Owner may terminate this Agreement at any time upon ninety (90) days' prior written notice to Operator; provided, however, that no such termination shall be effective unless and until Owner shall pay to Operator and its Affiliates all amounts then due and owing to Operator and its Affiliates. 17.2. Owner shall not be liable for any termination fee, penalty or liability in connection with a termination of this Agreement pursuant to the provisions of this Article XVII. ARTICLE XVIII ASSIGNMENT 18.1. Operator shall not assign, pledge or encumber this Agreement or its interest in this Agreement without the prior consent of Owner, provided that Operator may, without the consent of Owner, assign this Agreement to (a) any entity directly or indirectly controlling, controlled by or under common control with Operator (control being deemed to mean the ownership of 50% or more of the stock or other beneficial interest in such entity and/or the power to direct the day-today operations of such entity), (b) any entity which is the successor by merger, consolidation or reorganization of Operator or Operator's general partner or parent corporation, or (c) the purchaser of all or substantially all of the hotel management business of Operator or Operator's general partner, managing member or parent corporation. 18.2. Owner may transfer or assign its rights and obligations under this Agreement without the consent of Operator, but shall deliver to Operator written notice of such transfer or assignment not less than thirty (30) days prior to the effective date thereof; provided, however, that Operator shall have the right within thirty (30) days following receipt of such notice to terminate this Agreement, which right shall be exercised by the delivery of notice by Operator to Owner within such thirty (30) days. In the event that Operator exercises its right to terminate this Agreement pursuant to this Section 18.2, such termination shall not be effective any earlier than ninety (90) days after delivery of Operator's notice to terminate to Owner. 18.3. Upon any permitted assignment of this Agreement and the assumption of this Agreement by the assignee, the assignor shall be relieved of any obligation or liability under this Agreement arising after the effective date of the assignment. -22- ARTICLE XIX NOTICES 19.1. Any notice, statement or demand required to be given under this Agreement shall be in writing, sent by certified mail, postage prepaid, return receipt requested, or by facsimile transmission, receipt electronically or verbally confirmed, or by nationally-recognized overnight courier, receipt confirmed, addressed if to: Owner: __________________ 45 W. Prospect Avenue Guildhall Building #1500 Cleveland, Ohio 44115 Attn: President and Operator: Boykin Management Company Limited Liability Company 45 W. Prospect Avenue Guildhall Bldg. #1515 Cleveland, Ohio 44115 Attention: President Facsimile No.: (216) 241-1329 or to such other addresses as Operator and Owner shall designate in the manner provided in this Section 19.1. Any notice or other communication shall be deemed given (a) on the date on which it is received, if sent by certified mail, (b) on the business day it shall have been sent by facsimile transmission (unless sent on a non-business day or after business hours in which event it shall be deemed given on the following business day), or (c) on the date received if it shall have been given to a nationally-recognized overnight courier service. ARTICLE XX ESTOPPELS 20.1. Owner and Operator agree that from time to time upon the request of the other party or from the lender under any mortgage or deed of trust encumbering the Hotel), it shall execute and deliver within ten (10) days after the request a certificate confirming that this Agreement is in full force and effect, stating whether this Agreement has been modified and supplying such other information as the requesting party may reasonably require. ARTICLE XXI INDEMNIFICATION 21.1. Operator shall indemnify and hold Owner (and Owner's agents, principals, shareholders, partners, members, officers, directors and employees) harmless from and against all liabilities, losses, claims, damages, costs and expenses (including, but not limited to, reasonable attorneys' fees and expenses) that may be incurred by or asserted against any such party and that arise from (a) the fraud, willful misconduct or gross negligence of Operator, (b) the breach by Operator of any provision of this Agreement, including, without limitation, any action taken by Operator which is beyond the scope of -23- Operator's authority under this Agreement. Owner shall promptly provide Operator with written notice of any claim or suit brought against it by a third party which might result in such indemnification. 21.2. Except as provided in Section 21.1, Owner shall indemnify and hold Operator (and Operator's agents, principals, shareholders, partners, members, officers, directors and employees) harmless from and against all liabilities, losses, claims, damages, costs and expenses (including, but not limited to, reasonable attorneys' fees and expenses) that may be incurred by or asserted against such party and that arise from or in connection with (a) the performance of Operator's services under this Agreement, (b) any act or omission (whether or not willful, tortious, or negligent) of Owner or any third party, (c) or any other occurrence related to the Hotel whether arising before, during or after the Operating Term, or (d) any liability to which Operator is subjected pursuant to WARN in connection with the termination of this Agreement, provided that Operator has provided notices in the form (other than any reference to the time period) required by WARN within five (5) Business Days of Operator's receipt of a notice of the termination of this Agreement, excluding any termination of this Agreement which results from the commission of any theft, embezzlement or other criminal misappropriation of Hotel or Owner funds or any fraud or felony by any executive of Operator that relates to or materially affects the operation or reputation of the Hotel. Operator shall promptly provide Owner with written notice of any claim or suit brought against it by a third party which might result in such indemnification. 21.3. Any party obligated to indemnify the other party under this Agreement (the "INDEMNIFYING PARTY") shall have the right, by notice to the other party, to assume the defense of any claim with respect to which the other party is entitled to indemnification hereunder; provided that the Indemnifying Party expressly acknowledges its obligation to provide indemnity hereunder. If the Indemnifying Party gives such notice, (i) such defense shall be conducted by counsel selected by the Indemnifying Party and approved by the other party, such approval not to be unreasonably withheld or delayed (provided, however, that the other party's approval shall not be required with respect to counsel designated by the Indemnifying Party's insurer); (ii) so long as the Indemnifying Party is conducting such defense with reasonable diligence, the Indemnifying Party shall have the right to control said defense and shall not be required to pay the fees or disbursements of any counsel engaged by the other party for services rendered after the Indemnifying Party has given the notice provided for above to the other party, except if there is a conflict of interest between the parties with respect to such claim or defense; and (iii) the Indemnifying Party shall have the right, without the consent of the other party, to settle such claim, but only provided that such settlement involves only the payment of money, the Indemnifying Party pays all amounts due in connection with or by reason of such settlement and, as part thereof, the other party is unconditionally released from all liability in respect of such claim. The other party shall have the right to participate in the defense of any claim being defended by the Indemnifying Party at the expense of the other party, but the Indemnifying Party shall have the right to control such defense (other than in the event of a conflict of interest between the parties with respect to such claim or defense). In no event shall (i) the other party settle any claim without the consent of the Indemnifying Party so long as the Indemnifying Party is conducting the defense thereof in accordance with this Agreement; or (ii) if a claim is covered by the Indemnifying Party's liability insurance, take or omit to take any action which would cause the insurer not to defend such claim or to disclaim liability in respect thereof. 21.4. The provisions of this Article shall survive the termination of this Agreement with respect to acts, omissions and occurrences arising during the Operating Term. -24- ARTICLE XXII SUBORDINATION 22.1. It is mutually agreed that this Agreement is subject and subordinate to the lien of all and any Mortgages held by mortgagees that are not Affiliates of Owner. The term "MORTGAGES" shall include both construction and permanent financing as well as secondary or junior financings and personal property financing and shall include deeds of trust and similar security instruments that may now or hereafter encumber or otherwise affect the Hotel and to all and any renewals, extensions, modifications, recastings or refinancings thereof. This clause shall be self-operative and no further instrument of subordination shall be required by any mortgagee, trustee, beneficiary, or secured party. At Owner's request, Operator shall promptly execute any requisite or appropriate certificate or other documents to reflect that this Agreement is subject and subordinate to the lien described above. 22.2. After the occurrence of, and during the continuation of, a default under any Mortgages of mortgagees that are not Affiliated with Owner, the Incentive Fee shall be accrued and not paid to Operator, provided that upon the curing of such default, the accrued but unpaid Incentive Fee, together with interest (calculated at eight percent (8%) per annum) accrued thereon from the date such Incentive Fee should have been paid in accordance with the terms of this Agreement to the date of such payment, shall be immediately paid to Operator. 22.3. Operator agrees to negotiate in good faith with Owner with respect to any modifications to this Agreement or any ancillary agreement that may reasonably be required or requested by any such construction or permanent institutional first mortgagee not Affiliated with Owner. Operator agrees that the operation is expressly conditioned upon the approval hereof by such mortgagee and the satisfaction by Owner and Operator of such additional conditions and requirements as may be imposed by such construction or permanent institutional first mortgagee, provided, however, that Operator shall not be required to accept modifications other than the aforementioned subordination that materially and adversely affect its rights and obligations hereunder. 22.4. It is agreed that in the event any party shall succeed to the interest of Owner through foreclosure or through a deed in lieu thereof, no liability or outstanding obligation of Owner to Operator that arose prior to such foreclosure or deed shall bind, obligate, or become a liability of such party, but Owner shall remain liable therefore. 22.5. If requested to do so by any mortgagee not Affiliated with Owner, Operator shall furnish to such mortgagee a copy of any financial report, statement, schedule, or plan required under this Agreement, to be submitted by Operator to Owner. 22.6. A copy of all notices of default under this Agreement shall be provided to any mortgagee of the Hotel, and such mortgages shall be given a reasonable opportunity to cure such default. In addition, upon the request of any mortgagee or of either party hereto, Owner and/or Operator shall provide for such requesting party or such mortgagee estoppel certificates that shall state that this Agreement is in full force and shall specify any known defaults, if any, thereunder. Operator shall certify to such mortgagee, and/or to Owner, that all preconditions and the full effectiveness of the Agreement have been satisfied and that the Operating Term has commenced. -25- ARTICLE XXIII MISCELLANEOUS 23.1. Owner and Operator shall execute and deliver any additional documents and instruments and take any other action that may be necessary or appropriate to effectuate the intent and purpose of this Agreement. 23.2. Operator may engage one or more of its Affiliates or other related parties to furnish goods or services to the Hotel; provided, however, that the terms of any such arrangement, when taken as a whole, shall not be materially less favorable to the Hotel than the prevailing terms of similar such arrangements obtainable on a commercially reasonable basis from unrelated parties in the area of the Hotel. Operator shall promptly notify Owner of any such engagement of Operator's Affiliates to the extent such engagement and affiliation are not included in the applicable Budgets. 23.3. During the Operating Term, Operator shall qualify as an "eligible independent contractor" as defined in Section 856(d)(9) of the Internal Revenue Code of 1986, as amended (the "CODE"). To that end, during the Operating Term: (a) Operator shall not permit wagering activities to be conducted at or in connection with the Hotel; (b) Operator shall not own, directly or indirectly (within the meaning of Section 856(d)(5) of the Code), more than 35% of the shares of Boykin Lodging Company; (c) no more than 35% of the total combined voting power of Operator's outstanding stock (or 35% of the total shares of all classes of its outstanding stock) shall be owned, directly or indirectly, by one or more persons owning 35% or more of the outstanding stock of Boykin Lodging Company; and (d) Operator (or a person who is a "related person" within the meaning of Section 856(d)(9)(F) of the Code (a "RELATED PERSON") with respect to Operator)) shall be actively engaged in the trade or business of operating "qualified lodging facilities" (defined below) for one or ore persons who are not Related Persons with respect to Boykin Lodging Company or Owner ("UNRELATED PERSONS"). A "qualified lodging facility" is defined in Section 856(d)(9)(D) of the Code and means a "lodging facility" (defined below), unless wagering activities are conducted at or in connection with such facility by any person who is engaged in the business of accepting wagers and who is legally authorized to engage in such business at or in connection with such facility. A "LODGING FACILITY" is a hotel, motel or other establishment more than one-half of the dwelling units in which are used on a transient basis, and includes customary amenities and facilities operated as part of, or associated with, the lodging facility so long as such amenities and facilities are customary for other properties of a comparable size and class owned by other owners unrelated to Boykin Lodging Company. 23.4. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof, superseding all prior agreements or undertakings, oral or written. Owner acknowledges that in entering into this Agreement Owner has not relied on any projection of earnings, statements as to the possibility of future success or other similar matter which may have been prepared by Operator. -26- 23.5. The headings of the titles to the several articles of this Agreement are inserted for convenience only and are not intended to affect the meaning of any of the provisions hereof. 23.6. A waiver of any of the terms and conditions of this Agreement may be made only in writing and shall not be deemed a waiver of such terms and conditions on any future occasion. 23.7. This Agreement shall be binding upon and inure to the benefit of Owner and Operator and their respective successors and permitted assigns. 23.8. This Agreement shall be construed, both as to its validity and as to the performance of the parties, in accordance with the laws of the state of Ohio. -27- IN WITNESS WHEREOF, Operator and Owner have duly executed this Agreement the day and year first above written. "OWNER" ----------------------- By: BellBoy, Inc., Sole Member By: /s/ Richard C. Conti -------------------- Name: Richard C. Conti Title: President "OPERATOR" By: BOYKIN MANAGEMENT COMPANY LIMITED LIABILITY COMPANY By: /s/ John E. Boykin ------------------ Name: John E. Boykin Title: Secretary EX-99.4 7 l92251aex99-4.txt EXHIBIT 99.4 - AMEND. TO SHAREHOLDER RIGHTS AGRMT Exhibit 99.4 AMENDMENT TO SHAREHOLDER RIGHTS AGREEMENT This Amendment to SHAREHOLDER RIGHTS Agreement (this "Amendment"), dated as of December 31, 2001, is between BOYKIN LODGING COMPANY, an Ohio corporation (the "Company"), and NATIONAL CITY BANK, a national banking association (the "Rights Agent"). RECITALS: WHEREAS, the Company and the Rights Agent are parties to that certain Shareholder Rights Agreement, dated as of May 25, 1999 (the "Shareholder Rights Agreement"), which was authorized by the Company's Board of Directors to provide shareholders of the Company with the opportunity to benefit from the long-term prospects and value of the Company and to ensure that shareholders of the Company receive fair and equal treatment in the event of any proposed takeover of the Company; and WHEREAS, the Company desires to amend the Shareholder Rights Agreement in connection with the execution of the Master Contribution Agreement, dated as of December 31, 2001, by and among Boykin Management Company Limited Liability Company, an Ohio limited liability company, JABO LLC, a Delaware limited liability company, the Company and Boykin Hotel Properties, L.P., an Ohio limited partnership, and the consummation of the transactions contemplated thereby. AGREEMENTS 1. DEFINED TERMS. Unless otherwise defined herein, capitalized terms used in this Amendment shall have the meanings ascribed thereto in the Shareholder Rights Agreement. 2. ACQUIRING PERSON. The definition of the term "Acquiring Person" in Section 1(a) of the Shareholder Rights Agreement is hereby deleted in its entirety and replaced with the following: "Acquiring Person" means any Person (as defined herein) who, together with all Affiliates (as defined herein) and Associates (as defined herein) of such Person, is the Beneficial Owner (as defined herein) of 15% or more of the Common Shares then outstanding, but does not include (i) the Company, (ii) any Subsidiary (as defined herein) of the Company, (iii) any employee benefit plan or compensation arrangement of the Company or of any Subsidiary of the Company, or (iv) any Person holding Common Shares organized, appointed or established by the Company or by any Subsidiary of the Company for or pursuant to the terms of any employee benefit plan or compensation arrangement described in Section 1(a)(iii), (the Persons described in clauses (i) through (iv) above are referred to herein as "Exempt Persons"). In addition, (i) AEW Partners III, L.P., a Delaware limited partnership ("AEW"), is not an Acquiring Person with respect to Common Shares (the "AEW Shares") acquired or to be acquired under the Stock Purchase Agreement dated as of February 1, 1999 (the "Purchase Agreement") among the Company, Boykin Hotel Properties, L.P., an Ohio limited partnership ("BHP"), and AEW, and on exercise of the Initial Warrant or the Expansion Warrant (each as defined in the Purchase Agreement), except to the extent that any acquisition or series of acquisitions under the Purchase Agreement, the Initial Warrant and the Expansion Warrant of less than 15% of the Common Shares, when combined with Common Shares then beneficially owned by AEW (within the meaning of Section 1(d)(i) hereof, but excluding Common Shares beneficially owned by an Affiliate that is not an Associate of AEW and without giving effect to Rule 13d-3(d) of the Rules under the Exchange Act), results in AEW beneficially owning (as defined in the immediately preceding clause of this sentence) 15% or more of the Common Shares then outstanding and (ii) the Common Shares acquired or to be acquired by JABO LLC, a Delaware limited liability company ("JABO"), upon redemption by the Company of BHP partnership units issued to JABO pursuant to the Master Contribution Agreement (the "Contribution Agreement"), dated as of December 31, 2001, by and among Boykin Management Company Limited Liability Company, an Ohio limited liability company, JABO, the Company and BHP (the "JABO Shares"), shall not be included in the calculation of the beneficial ownership of Common Shares of JABO or any of JABO's Affiliates or Associates, except (A) to the extent that any issuance of JABO Shares to JABO of less than 15% of the issued and outstanding Common Shares, when combined with Common Shares then beneficially owned by JABO (within the meaning of Section 1(d)(i) hereof), results in JABO beneficially owning (as defined in the immediately preceding clause of this sentence) 20% or more of the Common Shares then issued and outstanding, and (B) if, at the time of any issuance of JABO Shares to JABO, JABO is not controlled (as that term is defined in Rule 12b-2 of the Exchange Act) by Robert W. Boykin or John E. Boykin. Notwithstanding the foregoing, (i) no Person will become an "Acquiring Person" as a result of an acquisition by the Company of Common Shares that, by reducing the number of shares outstanding, increases the proportionate number of shares beneficially owned by such Person from below 15% to 15% or more of the Common Shares then outstanding; however, if a Person becomes a Beneficial Owner of 15% or more of the Common Shares then outstanding by reason of share purchases by the Company and, after those share purchases are made, becomes the Beneficial Owner of any additional Common Shares (other than pursuant to a share split, share dividend or similar transaction) and immediately thereafter is the Beneficial Owner of 15% or more of the Common Shares then outstanding, then that Person will be an "Acquiring Person" and (ii) neither JABO nor any of its Affiliates and Associates (collectively, the "JABO Parties") will become an "Acquiring Person" as a result of an acquisition by the Company of Common Shares that, by reducing the number of shares outstanding, increases the proportionate number of shares beneficially owned by such JABO Party from below 20% to 20% or more of the Common Shares then outstanding; however, if a JABO Party becomes a Beneficial Owner of 20% or more of the Common Shares then outstanding by reason of share purchases by the Company and, after those share purchases are made, becomes the Beneficial Owner of any additional Common Shares (other than pursuant to a share split, share dividend or similar transaction) and immediately thereafter is the Beneficial Owner of 20% or more of the Common Shares then outstanding, then that Person will be an "Acquiring Person." In addition, notwithstanding the foregoing, a Person is not an "Acquiring Person" if the Board of Directors determines that a Person who would otherwise be an "Acquiring Person," inadvertently acquired the Common Shares that would otherwise make the Person an "Acquiring Person," if that Person as promptly as practicable divests a sufficient number of Common Shares so that that Person is a Beneficial Owner of less than 15% (or, in the case of the JABO Parties, less than 20%) of the Common Shares then outstanding. 3. COUNTERPARTS. This Amendment may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one action. The signature page of any individual or entity, or copies or facsimiles thereof, may be appended to any counterparts of this action and when so appended shall constitute an original. 4. FULL FORCE AND EFFECT. Except as expressly amended by this Amendment, all other terms and conditions of the Shareholder Rights Agreement shall remain in full force and effect and unmodified hereby. 5. GOVERNING LAW. This Amendment is governed by and construed in accordance with the laws of the State of Ohio, without regard to principles of conflicts of law. Page 2 [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.] Page 3 IN WITNESS WHEREOF, this Amendment has been executed in one or more counterparts by or on behalf of each of the parties hereto as of the date first written above. BOYKIN LODGING COMPANY, an Ohio corporation By: /s/ Richard C. Conti -------------------- Name: Richard C. Conti Title: President NATIONAL CITY BANK, a national banking Association, as Rights Agent By: /s/ Laura Kress --------------- Name: Laura Kress Title: Vice President Page 4 EX-99.5 8 l92251aex99-5.txt EXHIBIT 99.5 - REGISTRATION RIGHTS AGREEMENT Exhibit 99.5 REGISTRATION RIGHTS AGREEMENT THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered into as of January 1, 2002 by and between BOYKIN LODGING COMPANY, an Ohio corporation (the "Company"), and JABO LLC, a Delaware limited liability company (the "Holder"). WHEREAS, the Holder is receiving on the date hereof Partnership Units ("Units") in Boykin Hotel Properties, L.P., an Ohio limited partnership (the "BHP"); WHEREAS, the Holder may exchange the Units for cash or, at the Company's election, the Company may issue its common shares (the "Exchange Shares") to satisfy the Holder's rights pursuant to the terms of the Second Amended and Restated Agreement of Limited Partnership of BHP, dated as of May 20, 1998, among the Company and certain limited partners named therein, as amended by Amendment to Second Amended and Restated Agreement of Limited Partnership of BHP, dated as of February 1, 1999, and Second Amendment to Second Amended and Restated Agreement of Limited Partnership of BHP, dated as of January 1, 2002 (the "Partnership Agreement"); WHEREAS, in connection therewith, the Company has agreed to grant to the Holder the Registration Rights (as defined in Section 1 hereof); NOW, THEREFORE, the parties hereto, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth, hereby agree as follows: SECTION 1. REGISTRATION RIGHTS If the Holder receives any Exchange Shares upon any exchange of Units, then the Holder shall be entitled to offer for sale pursuant to an effective registration statement filed with the Securities and Exchange Commission (the "Commission"), the Exchange Shares, subject to the terms and conditions set forth in this Agreement (the "Registration Rights"). SECTION 2. DEMAND REGISTRATION RIGHTS 2.1 (a) Registration Procedure. Subject to Sections 2.1(c) and 2.2 hereof, if the Holder desires to exercise its Registration Rights with respect to the Exchange Shares, the Holder shall deliver to the Company a written notice (a "Registration Notice") informing the Company of such exercise and specifying the number of shares to be offered by the Holder (such shares to be offered being referred to herein as the "Registrable Securities", and such registration, a "Demand Registration"). Such notice may be given at any time on or after the date a notice of exchange is delivered by the Holder to BHP pursuant to the Partnership Agreement, but must be given at least twenty (20) Business Days prior to the desired consummation of the sale of Registrable Securities. As used in this Agreement, a "Business Day" is any Monday, Tuesday, Wednesday, Thursday or Friday other than a day on which banks and other financial institutions are authorized or required to be closed for business in the State of Ohio. Upon receipt of the Registration Notice, the Company will cause to be filed with the Commission as soon as reasonably practicable after receiving the Registration Notice a registration statement and related prospectus that complies as to form in all material respects with the requirements of the Securities Act of 1933, as amended (the "Act"), and of the rules and regulations thereunder providing for the sale by the Holder of the Registrable Securities, and agrees (subject to Section 3.2 hereof) to use its commercially reasonable efforts to cause such registration statement to be declared effective by the Commission as soon as practicable. (As used herein, "Registration Statement" and "Prospectus" refer to the registration statement and related prospectus (including any preliminary prospectus), including any documents incorporated therein by reference.) Prior to filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company shall (i) provide the Holder with an adequate and appropriate opportunity to participate in the preparation of such Registration Statement and each Prospectus included therein (and each amendment or supplement thereto or comparable statement) to be filed with the Commission and (ii) not file any such Registration Statement or Prospectus (or amendment or supplement thereto or comparable statement) with the Commission to which the Holder's counsel or any underwriter shall have reasonably objected on the grounds that such filing does not comply in all material respects with the requirements of the Act and of the rules and regulations thereunder. The Holder agrees to provide in a timely manner information regarding the proposed distribution by the Holder of the Registrable Securities and all other information reasonably requested by the Company in connection with the preparation of and for inclusion in the Registration Statement. In connection with any Registration Statement utilized by the Company to satisfy the Holder's Registration Rights pursuant to this Section 2, the Holder agrees that it will respond within ten (10) Business Days to any request by the Company to provide or verify information regarding the Holder or the Holder's Registrable Securities as may be required to be included in such Registration Statement pursuant to the requirements of the Act and of the rules and regulations thereunder. (b) Offers and Sales. All offers and sales by the Holder under the Registration Statement referred to in this Section 2 shall be completed within the period during which the Registration Statement is required to remain effective pursuant to Section 4(a), and upon expiration of such period the Holder will not offer or sell any Registrable Securities under the Registration Statement. If directed by the Company, the Holder will return all undistributed copies of the Prospectus in its possession upon the expiration of such period. -2- (c) Limitations on Registration Rights. Each exercise of a demand registration right shall be with respect to a minimum of the lesser of (i) a number of Exchange Shares with an aggregate value of $3,000,000, calculated based on the closing price for the common shares of the Company on the day before the date of the Registration Notice, or (ii) the total number of Exchange Shares held by the Holder at such time. The Company shall be obligated to effect no more than two (2) Demand Registrations under this Agreement; provided, however, that if any Demand Registration is not consummated other than by reason of any action of or failure to act by the Holder (a "Failed Registration"), such Failed Registration shall not be deemed to constitute a Demand Registration under this Section 2.1(c) and shall not reduce the Company's obligations hereunder. The right of the Holder to deliver a Registration Notice commences upon the date the Holder first receives Exchange Shares from the Company in exchange for the Units, or any of them, pursuant to the Partnership Agreement. The right of the Holder to deliver a Registration Notice shall expire on the third anniversary of the date the Holder first receives Exchange Shares from the Company in exchange for the Units, or any of them. The Registration Rights granted pursuant to this Section 2.1 may be exercised in connection with an underwritten public offering; provided, that the Company shall have the right to select the underwriter or underwriters in connection with such public offering, which shall be subject to the reasonable approval of the Holder. (d) Priority on Demand Registrations. If a Demand Registration is an underwritten secondary offering on behalf of the Holder and the managing underwriters advise the Company in writing that in their opinion the number of Registrable Securities and other securities requested to be included in such registration exceeds the number of Registrable Securities and other securities that can be sold in such offering, the Company shall include in such registration, prior to the inclusion of any securities that are not Registrable Securities, the number of Registrable Securities requested to be included that, in the opinion of the underwriters, can be sold in such offering. 2.2 Suspension of Offering. Upon any notice by the Company, either before or after the Holder has delivered a Registration Notice, that a negotiation or consummation of a transaction by the Company or any of its subsidiaries is pending or an event has occurred, which negotiation, consummation or event would require disclosure by the Company in a Registration Statement of material information which the Company has a bona fide business purpose for keeping confidential or the nondisclosure of which in the Registration Statement might cause the Registration Statement to fail to comply with applicable disclosure requirements (a "Materiality Notice"), the Holder agrees that it will immediately discontinue offers and sales of the Registrable Securities under the Registration Statement until the Holder receives copies of a supplemented or amended Prospectus that corrects the misstatement(s) or omission(s) referred to above and receives notice that any post-effective amendment has become effective; provided, that the Company may delay, suspend or withdraw the Registration Statement for such reason for no more than ninety (90) days after delivery of the Materiality Notice; and provided further, that the Company during such delay, suspension or withdrawal may not file a registration statement for securities to be issued and sold for its own account or that of other stockholders. If the Company suspends the Registration Statement, the period for -3- which the Company is required to keep the Registration Statement effective under Section 4(a) shall be extended by the number of days the Registration Statement would have been effective during such suspension absent such suspension. If so directed by the Company, the Holder will deliver to the Company all copies of the Prospectus covering the Registrable Securities current at the time of receipt of any Materiality Notice. The Company may not exercise its rights pursuant to this Section 2.2 more than twice in any (12) month period. SECTION 3. PIGGYBACK REGISTRATIONS. 3.1 Rights to Piggyback. (a) Each time the Company proposes to register any of its securities under the Act (other than (i) a registration on Form S-4 or S-8 (or any substitute form that is adopted by the Commission) or (ii) a registration in connection with an exchange offer or the offering of securities solely to the Company's existing security holders) either for the Company's own account or for the account of any of its security holders (each such registration not withdrawn or abandoned prior to the effective date thereof being herein called a "Piggyback Registration"), then the Company will give written notice to the Holder of such proposal as soon as practicable (but in no event less than thirty (30) days prior to the anticipated filing date for such Piggyback Registration). (b) Subject to Sections 3.2 and 3.3 and the last sentence of this subparagraph (b), (i) the Company will include in each Piggyback Registration all Registrable Securities with respect to which the Company shall receive, within 20 days after the date on which the Company shall have given written notice of such Piggyback Registration to the Holder pursuant to Section 3.1(a) hereof, a written request from the Holder for inclusion in such Piggyback Registration, and (ii) the Company will use its commercially reasonable efforts to effect promptly the registration of all such Registrable Securities. The Company shall not be required to include Registrable Securities in the securities to be registered pursuant to a registration statement on any form which limits the amount of securities which may be registered by the issuer and selling security holders if, and to the extent that, such inclusion would make the use of such form unavailable. The Holder will be permitted to withdraw all or any part of the Registrable Securities of the Holder from any Piggyback Registration at any time prior to the effective date of such Piggyback Registration unless the Holder shall have entered into a written agreement with the Company's underwriters establishing the terms and conditions under which the Holder would be obligated to sell such securities in such Piggyback Registration. The Company is not required to give the Holder more than three (3) opportunities to have Registrable Securities included in a Piggyback Registration. 3.2 Priority on Primary Registration. If a Piggyback Registration is an underwritten primary offering on behalf of the Company, and the managing underwriters for the offering advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number that can be sold in such offering, the Company will limit the number of securities included in such -4- registration to the number that in the opinion of the underwriters can be sold in such offering. The securities registered shall be selected in the following order of priority: (i) first, the securities the Company proposes to sell, (ii) second, the securities requested to be included in such registration by holders of securities party to the Registration Rights Agreement, dated as of November 4, 1996, by and among the Company and certain holders of securities of the Company (the "1996 Agreement"), and (iii) third, the Registrable Securities requested to be included in such registration, the securities requested to be included in such registration by AEW Partners III, L.P., a Delaware limited partnership ("AEW"), pursuant to the Registration Rights Agreement, dated as of February 1, 1999 (the "AEW Agreement"), by and between the Company and AEW and all other securities requested to be included in such registration, prorated among the holders thereof on the basis of the number of securities requested to be included in such registration. 3.3 Priority on Secondary Registrations. If a Piggyback Registration is an underwritten secondary offering on behalf of holders of the Company's securities other than the Holders of Registrable Securities (the "Other Holders"), and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number that can be sold in such offering, the Company will limit the number of securities included in such registration to the number that in the opinion of the underwriters can be sold in such offering. The securities registered shall be selected in the following order of priority: (i) first, the securities held by the Other Holders, (ii) second, the securities requested to be included in such registration by holders of securities party to the 1996 Agreement, and (iii) third, the Registrable Securities requested to be included in such registration, the securities requested to be included in such registration by AEW pursuant to the AEW Agreement, and any other securities requested to be included in such registration, prorated among the holders thereof on the basis of the number of securities requested to be included in such registration. 3.4 Lockup Agreements. (a) Restrictions on Public Sale of Registrable Securities. Each Holder, if the Company or the managing underwriters so request in connection with any underwritten registration on behalf of the Company, shall not, without the prior written consent of the Company or such underwriters, effect any public sale or other distribution of any equity securities of the Company, including any sale pursuant to Rule 144, during the fifteen (15) days prior to, and during the ninety (90) day period commencing on, the effective date of the registration statement for such underwritten registration, except in connection with such underwritten registration (or during such shorter period or periods as the Company or such underwriters may in writing permit). (b) Restrictions on Public Sale by the Company. The Company agrees not to effect any public sale or other distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such equity securities, during the period commencing on the fifteenth day prior to, and ending on the ninetieth day -5- following, the effective date of the registration statement for any underwritten Piggyback Registration, except in connection with any such underwritten registration and except for (i) any offering (A) pursuant to an employee benefit plan and registered on Form S-8 (or any comparable form adopted by the Commission) or (B) on Form S-4 (or any comparable form adopted by the Commission) or (ii) any sales of equity securities pursuant to the Dividend Reinvestment and Optional Share Purchase Plan of the Company. 3.5 Changes in Registrable Securities. If, and as often as, there are any changes in the Exchange Shares by way of share split, share dividend, combination or reclassification, or through merger, consolidation, reorganization or recapitalization, or by any other means, appropriate adjustment shall be made in the provisions of this Agreement, as may be required, so that the rights and privileges granted hereby shall continue with respect to the Registrable Securities as so changed. Without limiting the generality of the foregoing, the Company will require any successor by merger or consolidation to assume and agree to be bound by the terms of this Agreement, as a condition to any such merger or consolidation. SECTION 4. REGISTRATION PROCEDURES Whenever the Company is required to effect the registration of Exchange Shares under the Act pursuant to this Agreement, the Company shall promptly: (a) prepare and file with the Commission (i) a Registration Statement with respect to such Exchange Shares and use its commercially reasonable efforts to cause such Registration Statement to become effective and (ii) such amendments and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary (A) to keep such Registration Statement effective and (B) to comply with the provisions of the Act with respect to the disposition of the Exchange Shares covered by such Registration Statement, in each case until such time as all of such Exchange Shares have been disposed of in accordance with the intended methods of disposition by the seller(s) thereof set forth in such Registration Statement; provided, that such period shall terminate on the earlier of (i) one hundred eighty (180) days after the date on which the Registration Statement becomes effective or (ii) the completion of the sales of all the Exchange Shares covered by such Registration Statement; provided that before filing such Registration Statement or any amendments thereto, the Company will furnish to the Holder copies of all such documents proposed to be filed; (b) furnish, without charge, to the Holder and each underwriter, if any, of the securities covered by such Registration Statement, such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits), and the Prospectus included in such Registration Statement (including each preliminary Prospectus, any summary prospectus and any other prospectus filed under Rule 424 under the Act) in conformity with the requirements of the Act, and other documents, as the Holder and such underwriter may reasonably request in order to -6- facilitate the public sale or other disposition of the Exchange Shares covered by that Registration Statement; (c) use its best efforts to register or qualify the Exchange Shares covered by such Registration Statement under such other securities or blue sky laws of such jurisdictions as the Holder or the sole or lead managing underwriter, if any, may reasonably request in writing to enable the Holder to consummate the disposition in such jurisdictions of the Exchange Shares owned by the Holder and to continue such registration or qualification in effect in each such jurisdiction for as long as such Registration Statement remains in effect (including through new filings or amendments or renewals), and do any and all other acts and things which may be reasonably necessary or advisable to enable the Holder to consummate the disposition in such jurisdictions of the Exchange Shares owned by it; provided, however, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section, (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction; (d) use diligent efforts to cause all Exchange Shares covered by such Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the Company's business or operations to enable the Holder to consummate the disposition of such Exchange Shares; (e) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter or underwriters of such offering; (f) promptly notify the Holder and the sole or lead managing underwriter, if any: (i) when the Registration Statement, any pre-effective amendment, the Prospectus or any prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or any state securities or blue sky authority for amendments or supplements to the Registration Statement or the Prospectus related thereto or for additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threat of any proceedings for that purpose, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Exchange Shares for sale under the securities or blue sky laws of any jurisdiction or the initiation of any proceeding for such purpose, (v) of the existence of any fact of which the Company becomes aware or the happening of any event which results in (A) the Registration Statement containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statements therein not misleading or (B) the Prospectus included in such Registration Statement containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statements therein, in the light of the circumstances under which they were made, not misleading and (vi) of the Company's reasonable determination that a post-effective -7- amendment to a Registration Statement would be appropriate or that there exist circumstances not yet disclosed to the public which make further sales under such Registration Statement inadvisable pending such disclosure and post-effective amendment; and, if the notification relates to an event described in clause (v) or (vi) of this Section 4(f), subject to Section 2.2, the Company shall promptly prepare a supplement or post-effective amendment to such Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document so that (1) such Registration Statement shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (2) as thereafter delivered to the purchasers of the Exchange Shares being sold thereunder, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (and shall furnish to the Holder and each underwriter, if any, a reasonable number of copies of such Prospectus as so supplemented or amended); and if the notification relates to an event described in any of clauses (ii) through (iv) of this Section 4(f), the Company shall use its commercially reasonable efforts to remedy such matters; (g) make reasonably available for inspection by the Holder, any sole or lead managing underwriter participating in any disposition pursuant to such Registration Statement, the Holder's counsel and any attorney, accountant or other agent retained by any such seller or underwriter material financial and other relevant information concerning the business and operations of the Company and the properties of the Company and any subsidiaries thereof as may be in existence at such time as shall be necessary, in the reasonable opinion of such Holder's and such underwriters' respective counsel, to enable them to conduct a reasonable investigation within the meaning of the Act, and cause the Company's and any subsidiaries' officers, directors and employees, and the independent public accountants of the Company, to supply such information as may be reasonably requested by any such parties in connection with such Registration Statement; (h) obtain an opinion from the Company's counsel and a "comfort" letter from the Company's independent public accountants who have certified the Company's financial statements included or incorporated by reference in such Registration Statement in customary form and covering such matters as are customarily covered by such opinions and "comfort" letters delivered to underwriters in underwritten public offerings, which opinion and letter shall be reasonably satisfactory to the sole or lead managing underwriter, if any, and to the Holder, and furnish to the Holder participating in the offering and to each underwriter, if any, a copy of such opinion and letter addressed to the underwriter; (i) in the case of an underwritten offering, make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158(c)), an earnings statement of the Company and its subsidiaries (which need not be audited) -8- complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Securities Exchange Act of 1934, as amended (the " Exchange Act"), and otherwise complies with Rule 158 under the Act; (j) use its reasonable best efforts to cause all such Exchange Shares to be listed (i) on the national securities exchange on which the Company's common shares are then listed or (ii) if common shares of the Company are not at the time listed on any national securities exchange (or if the listing of Exchange Shares is not permitted under the rules of such national securities exchange on which the Company's common shares are then listed), on another national securities exchange; (k) furnish to the Holder and the sole or lead managing underwriter, if any, without charge, at least one manually signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those deemed to be incorporated by reference); (l) if requested by the sole or lead managing underwriter or the Holder of Exchange Shares, incorporate in a prospectus supplement or post-effective amendment such information concerning the Holder, the underwriters or the intended method of distribution as the sole or lead managing underwriter or the Holder reasonably requests to be included therein and as is appropriate in the reasonable judgment of the Company, including, without limitation, information with respect to the number of Exchange Shares being sold to the underwriters, the purchase price being paid therefor by such underwriters and any other terms of the underwritten offering of the Exchange Shares to be sold in such offering; and (m) use its commercially reasonable efforts to take all other steps necessary to expedite or facilitate the registration and disposition of the Exchange Shares contemplated hereby, including obtaining necessary governmental approvals and effecting required filings; entering into customary agreements (including customary underwriting agreements, if the public offering is underwritten); cooperating with the Holder and any underwriters in connection with any filings required by the National Association of Securities Dealers, Inc. (the "NASD"); providing appropriate certificates not bearing restrictive legends representing the Exchange Shares; and providing a CUSIP number and maintaining a transfer agent and registrar for the Exchange Shares. -9- SECTION 5. INDEMNIFICATION 5.1 Indemnification by the Company. The Company agrees to indemnify and hold harmless the Holder, each of its assigns, managers, officers and employees and each person, if any, who controls the Holder within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever (or actions in respect thereof), as incurred, arising out of or based upon (A) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (including any preliminary prospectus or final prospectus contained therein or any amendment thereto) pursuant to which the Registrable Securities were registered under the Act, including all documents incorporated therein by reference, or (B) the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever (or actions in respect thereof), as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Company; and (iii) against any and all expense whatsoever, as incurred (including reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not a party, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that the indemnity provided pursuant to this Section 5.1 does not apply with respect to any loss, liability, claim, damage or expense to the extent arising out of (A) any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by -10- the Holder expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) or (B) the Holder's failure to deliver an amended or supplemental Prospectus previously provided to the Holder by the Company if such loss, liability, claim, damage or expense would not have arisen had such delivery occurred. 5.2 Indemnification by the Holder. The Holder (and each permitted assignee of the Holder, on a several basis) agrees to indemnify and hold harmless the Company, and each of its directors, officers and employees (including each director and officer of the Company who signed a Registration Statement), and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever (or actions in respect thereof), as incurred, arising out of or based upon (A) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (including any preliminary prospectus or final prospectus contained therein or any amendment thereto) pursuant to which the Registrable Securities were registered under the Act, including all documents incorporated therein by reference, or (B) the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (or any amendment or supplement thereto), including all documents incorporated therein by reference, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (ii) against any and all loss, liability, claim, damage and expense whatsoever (or actions in respect thereof), as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, if such settlement is effected with the written consent of the Holder; and (iii) against any and all expense whatsoever, as incurred (including reasonable fees and disbursements of counsel), reasonably incurred in investigating, preparing or defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, in each case whether or not a party, or any claim whatsoever based upon any such untrue statement or omission, or -11- any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above; provided, however, that the indemnity provided pursuant to this Section 5.2 shall only apply with respect to any loss, liability, claim, damage or expense to the extent arising out of (A) any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by the Holder expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto) or (B) the Holder's failure to deliver an amended or supplemental Prospectus previously provided to the Holder by the Company if such loss, liability, claim, damage or expense would not have arisen had such delivery occurred; and provided further that in no event shall the liability of the Holder under this Section 5.2 exceed the net proceeds from the offering received by the Holder. 5.3 Conduct of Indemnification Proceedings. An indemnified party hereunder shall give reasonably prompt notice to the indemnifying party of any action or proceeding commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify the indemnifying party (i) shall not relieve it from any liability which it may have under the indemnity agreement provided in Section 5.1 or 5.2 above, unless and to the extent it did not otherwise learn of such action and the lack of notice by the indemnified party results in the forfeiture by the indemnifying party of substantial rights and defenses, and (ii) shall not, in any event, relieve the indemnifying party from any obligations to the indemnified party other than the indemnification obligation provided under Section 5.1 or 5.2 above. If the indemnifying party so elects within a reasonable time after receipt of such notice, the indemnifying party may assume the defense of such action or proceeding at such indemnifying party's own expense with counsel chosen by the indemnifying party and approved by the indemnified party, which approval shall not be unreasonably withheld; provided, however, that the indemnifying party will not settle any such action or proceeding without the written consent of the indemnified party unless, as a condition to such settlement, the indemnifying party secures the unconditional release of the indemnified party; and provided further, that if the indemnified party reasonably determines that a conflict of interest exists in connection with which it is advisable for the indemnified party to be represented by separate counsel or that, upon advice of counsel, there may be legal defenses available to it which are different from or in addition to those available to the indemnifying party, then the indemnifying party shall not be entitled to assume such defense and the indemnified party shall be entitled to separate counsel at the indemnifying party's expense. If the indemnifying party is not entitled to assume the defense of such action or proceeding as a result of the second proviso to the preceding sentence, the indemnifying party's counsel shall be entitled to conduct the indemnifying party's defense and counsel for the indemnified party shall be entitled to conduct the defense of the indemnified party, it being understood that both such counsel will cooperate with each other to conduct the defense of such action or proceeding as efficiently as possible. If the indemnifying party is not so entitled to assume the defense of such action or does not assume such defense, after having received the notice referred to in the first sentence of this paragraph, the -12- indemnifying party will pay the reasonable fees and expenses of counsel for the indemnified party. In such event, however, the indemnifying party will not be liable for any settlement effected without the written consent of the indemnifying party. If an indemnifying party is entitled to assume, and assumes, the defense of such action or proceeding in accordance with this paragraph, the indemnifying party shall not be liable for any fees and expenses of counsel for the indemnified party incurred thereafter in connection with such action or proceeding. 5.4 Survival of Obligations. The obligations of the Company and the Holder under this Section 5 shall survive the completion of any offering of Exchange Shares in a Registration Statement under this Agreement, and otherwise. 5.5 Other Rights. Any indemnity agreements contained herein shall be in addition to any other rights to indemnification or contribution which any indemnified party may have pursuant to law or contract and shall remain operative and in full effect regardless of any investigation made or omitted by or on behalf of any indemnified party. 5.6 Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Sections 5.1 and 5.2 above is for any reason held to be unenforceable by the indemnified party although applicable in accordance with its terms, the Company and the Holder shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by such indemnity agreement incurred by the Company and the Holder, (i) in such proportion as is appropriate to reflect the relative fault of the Company on the one hand and the Holder on the other, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative fault of, but also the relative benefits to, the Company on the one hand and the Holder on the other, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits to the indemnifying party and indemnified party shall be determined by reference to, among other things, the gross proceeds received by the indemnifying party and indemnified party in connection with the offering to which such losses, claims, damages, liabilities or expenses relate. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether the action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, the indemnifying party or the indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The parties hereto agree that it would not be just or equitable if contribution pursuant to this Section 5.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. -13- Notwithstanding the foregoing, no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 5.4, each person, if any, who controls the Holder within the meaning of Section 15 of the Act shall have the same rights to contribution as the Holder, and each director of the Company, each officer of the Company who signed a Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Act shall have the same rights to contribution as the Company. SECTION 6. EXPENSES The Company shall pay all expenses incident to the performance by the Company of the Company's registration obligations under Sections 2, 3 and 4, including (i) all stock exchange, Commission and state securities registration, listing and filing fees, (ii) all expenses incurred in connection with the preparation, printing and distributing of any Issuer Registration Statement or Registration Statement and Prospectus, (iii) fees and disbursements of counsel for the Company and of the independent public accountants of the Company and (iv) reasonable fees and disbursements of one counsel for the Holder. The Holder shall be responsible for the payment of any underwriting discounts and commissions, fees and disbursements of the Holder's accountants and other advisors (other than one counsel) and any transfer taxes relating to the sale or disposition of the Registrable Securities by the Holder pursuant to Sections 2 and 3 or otherwise. SECTION 7. RULE 144 COMPLIANCE The Company covenants that it will use its commercially reasonable efforts to timely file the reports required to be filed by the Company under the Act and the Exchange Act so as to enable the Holder to sell Registrable Securities pursuant to Rule 144 under the Act. In connection with any sale, transfer or other disposition by the Holder of any Registrable Securities pursuant to Rule 144 under the Act, the Company shall cooperate with the Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any Act legend, and enable certificates for such Registrable Securities to be for such number of shares and registered in such names as the Holder may reasonably request at least ten (10) Business Days prior to any sale of Registrable Securities hereunder. SECTION 8. MISCELLANEOUS 8.1 No Inconsistent Agreements. While this Agreement is in effect, the Company will not enter into any agreement that is inconsistent with the rights granted to the Holder in this Agreement or that otherwise conflicts with the provisions hereof. 8.2 Integration; Amendment. This Agreement constitutes the entire agreement among the parties hereto with respect to the matters set forth herein and supersedes and renders of no force and effect all prior oral or written agreements, -14- commitments and understandings among the parties with respect to the matters set forth herein. Except as otherwise expressly provided in this Agreement, no amendment, modification or discharge of this Agreement shall be valid or binding unless set forth in writing and duly executed by the Company and the Holder. 8.3 Waivers. No waiver by a party hereto shall be effective unless made in a written instrument duly executed by the party against whom such waiver is sought to be enforced, and only to the extent set forth in such instrument. Neither the waiver by any of the parties hereto of a breach or a default under any of the provisions of this Agreement, nor the failure of any of the parties, on one or more occasions, to enforce any of the provisions of this Agreement or to exercise any right or privilege hereunder shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such provisions, rights or privileges hereunder. 8.4 Assignment; Successors and Assigns. The Holder may not assign this Agreement or any of the Holder's rights or obligations hereunder without the written consent of the Company except to a transferee of the Registrable Securities covered under this Agreement. If any transferee of the Holder shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Securities such person shall be conclusively deemed to have agreed to be bound by all of the terms and provisions of this Agreement and such person shall be entitled to receive the benefits hereof. 8.5 Burden and Benefit. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, personal and legal representatives, successors and, subject to Section 8.4 above, assigns. 8.6 Notices. All notices called for under this Agreement shall be in writing and shall be deemed given upon receipt if delivered personally or by overnight courier, or by facsimile transmission and followed promptly by mail, or mailed by registered or certified mail (return receipt requested), postage prepaid, to the parties at the addresses set forth below their names in Schedule A hereto, or to any other address or addressee as any party entitled to receive notice under this Agreement shall designate, from time to time, to the others in the manner provided in this Section 8.6 for the service of notices; provided, however, that notices of a change of address shall be effective only upon receipt thereof. Any notice delivered to the party hereto to whom it is addressed shall be deemed to have been given and received on the day it was received; provided, however, that if such day is not a Business Day then the notice shall be deemed to have been given and received on the Business Day next following such day and if any party rejects delivery of any notice attempted to be given hereunder, delivery shall be deemed given on the date of such rejection. Any notice sent by facsimile transmission shall be deemed to have been given and received on the Business Day next following the transmission. -15- 8.7 Specific Performance. The parties hereto acknowledge that the obligations undertaken by them hereunder are unique and that there would be no adequate remedy at law if either party fails to perform any of its obligations hereunder, and accordingly agree that each party, in addition to any other remedy to which it may be entitled at law or in equity, shall be entitled to (i) compel specific performance of the obligations, covenants and agreements of the other party under this Agreement in accordance with the terms and conditions of this Agreement and (ii) obtain preliminary injunctive relief to secure specific performance and to prevent a breach or contemplated breach of this Agreement in any court of the United States or any State thereof having jurisdiction. 8.8 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 in accordance with the laws of the State of Ohio, but not including the choice of law rules thereof. 8.9 Pronouns. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person or entity may require. 8.10 Execution in Counterparts. To facilitate execution, this Agreement may be executed in as many counterparts as may be required. It shall not be necessary that the signature of or on behalf of each party appears on each counterpart, but it shall be sufficient that the signature of or on behalf of each party appears on one or more of the counterparts. All counterparts shall collectively constitute a single agreement. It shall not be necessary in any proof of this Agreement to produce or account for more than a number of counterparts containing the respective signatures of or on behalf of both of the parties. 8.11 Severability. If fulfillment of any provision of this Agreement, at the time such fulfillment shall be due, shall transcend the limit of validity prescribed by law, then the obligation to be fulfilled shall be reduced to the limit of such validity; and if any clause or provision contained in this Agreement operates or would operate to invalidate this Agreement, in whole or in part, then such clause or provision only shall be held ineffective, as though not herein contained, and the remainder of this Agreement shall remain operative and in full force and effect. -16- IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed on its behalf as of the date first hereinabove set forth. BOYKIN LODGING COMPANY By: /s/ Richard C. Conti -------------------- Name: Richard C. Conti Title: President JABO LLC By: /s/ John E. Boykin ------------------ Name: John E. Boykin Title: Secretary -17- SCHEDULE A Boykin Lodging Company - ------------------------------------ - ------------------------------------ Attention: -------------------------- Facsimile: -------------------------- JABO LLC - ------------------------------------ - ------------------------------------ Attention: -------------------------- Facsimile: -------------------------- EX-99.6 9 l92251aex99-6.txt EXHIBIT 99.6 - 2ND AMEND TO AGRMT OF LTD PRTNERSHP Exhibit 99.6 SECOND AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF BOYKIN HOTEL PROPERTIES, L.P. --------------------------------------------- Dated as of January 1, 2002 --------------------------------------------- THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF BOYKIN HOTEL PROPERTIES, L.P. (this "AMENDMENT") is hereby adopted by Boykin Lodging Company, an Ohio corporation (the "GENERAL PARTNER" or the "COMPANY"), as the general partner of Boykin Hotel Properties, L.P., an Ohio limited partnership (the "PARTNERSHIP"). For ease of reference, capitalized terms used herein and not otherwise defined have the meanings assigned to them in the Second Amended and Restated Agreement of Limited Partnership of Boykin Hotel Properties, L.P., dated May 20, 1998, as amended by that certain Amendment to Second Amended and Restated Agreement of Limited Partnership, dated February 1, 1999 (the "AGREEMENT"). WHEREAS, Article IV, Section 4.3(a) of the Agreement grants the General Partner authority to cause the Partnership to issue Partnership Interests in the Partnership to any Person in one or more classes or one or more series of any of such classes, with such designations, preferences and relative, participating, optional or other special rights, powers and duties including rights, powers and duties senior to Limited Partnership Interests as shall be determined by the General Partner in its sole and absolute discretion and without the approval of any Limited Partner, subject to Ohio law. WHEREAS, the Partnership is a party to that certain Master Contribution Agreement, dated as of December 31, 2001, among the General Partner, the Partnership, Boykin Management Company Limited Liability Company, an Ohio limited liabilities, and JABO LLC, a Delaware limited liability company ("JABO") (as the same may be amended, supplemented or modified, the "MASTER CONTRIBUTION AGREEMENT"), pursuant to which the Partnership will issue additional Partnership Units. WHEREAS, Sections 2.3(a) and 11.1(b) of the Agreement grant the General Partner power and authority to amend the Agreement without the consent of any of the Partnership's Limited Partners if such amendment is for the purpose of adding or substituting Limited Partners. WHEREAS, the General Partner desires to amend the Agreement to, among other things, admit JABO as a Limited Partner. NOW, THEREFORE, the General Partner hereby amends the Agreement as follows: 1. Article I of the Agreement is hereby amended by deleting the definition of "PARTNERSHIP UNITS" and replacing it in its entirety with the following: "PARTNERSHIP UNIT" shall mean a fractional, undivided share of the Partnership Interests of all Partners issued hereunder. As of January 1, 2002, there shall be considered to be 18,108,946 Partnership Units outstanding, with each 1,000 Partnership Units representing a 0.00552 percent Percentage Interest in the Partnership. At all times there shall be maintained an equivalency of Partnership Units and REIT shares, except as otherwise provided herein, and except that the conversion of the Subordinated Convertible Debt shall be effected without the issuance of additional REIT Shares. 2. Section 7.4(a) of the Agreement is hereby amended by adding the following to the end of such section: "Notwithstanding anything contained in this Section 7.4(a), unless the REIT receives an opinion from the REIT's counsel that the status of the REIT shall not be jeopardized, any Limited Partner that owns directly or indirectly, or is deemed to own, directly or indirectly any Person (other than an individual), that is serving as an eligible independent contractor (as defined in the Code) of the Partnership or of the general Partner, shall be entitled to exercise a Redemption Right only with respect to such number of Partnership Units that, if redeemed for only the REIT Shares Amount pursuant to Section 7.4(b) hereof, such Limited Partner would Beneficially Own (as hereinafter defined) no more than 9.9% of the total number of issued and outstanding REIT shares;" provided, however, that in the event of one or more transfers that result in a sale of all or substantially all of the REIT's or the Partnership's assets, or a sale, merger, reorganization or restructuring as described in Sections 9.1(c) and 9.1(d) hereof, this provision shall not apply. 3. Section 7.4(b) of the Agreement is hereby amended by adding the following to the end of such section: "Notwithstanding the foregoing in Section 7.1(a) or this Section 7.4(b), unless the REIT receives an opinion from the REIT's counsel that the status of the REIT shall not be jeopardized, should the General Partner elect to satisfy a Redemption Right by paying the Redeeming Partner the REIT Shares Amount, and it is necessary to obtain shareholder approval in order to issue sufficient REIT Shares to satisfy the such Redemption Right in full, then the General Partner shall have one hundred twenty (120) days beyond the Specified Redemption Date in which to obtain such shareholder approval and to pay the REIT Shares Amount and the Specified Redemption Date shall be deemed to occur: (i) ten days after a shareholder meeting will have been held; (ii) the date on which the General Partner elects to pay such Redeeming Partner the Cash Amount; or (iii) one hundred and thirty (130) days after such Partnership Units are presented for redemption, whichever is earlier. Should such shareholder approval not be obtained, then the General Partner and/or the Partnership shall be obligated to pay to the Redeeming Partner the Cash Amount no later than the end of what would have been the Payout Period had the General Partner not elected to pay the Cash Amount upon the redemption, together with interest on such Cash Amount as specified in Section 7.4(a) hereof." 4. EXHIBIT A of the Agreement is hereby deleted and is replaced in its entirety by new EXHIBIT A attached hereto as ATTACHMENT 1. On and after the effective date of this Amendment, each reference in the Agreement to "this Agreement", "hereunder", "hereof", or words of like import referring to the Agreement shall mean and refer to the Agreement as amended hereby. The terms of this Amendment shall modify and amend the terms of the Agreement to the extent expressed herein; but every other term, condition, covenant, representation and warranty contained in the Agreement is hereby ratified and affirmed and shall remain unchanged unless expressly modified or amended hereby. IN WITNESS WHEREOF, the General Partner has executed this Amendment as of the date first written above. Boykin Lodging Company By: /s/ Richard C. Conti -------------------- Name: Richard C. Conti Title: President ATTACHMENT 1 EXHIBIT A (as of January 1, 2002) LIST OF PARTNERS

PERCENTAGE PARTNERS UNITS INTEREST GENERAL PARTNER Boykin Lodging Company 15,390,690 84.990% 45 W. Prospect Street Suite 1500 Cleveland, Ohio 44115 LIMITED PARTNERS JABO, LLC 1,427,142 7.881% The Boykin Group, Inc. 779,941 4.307% John E. Boykin, Original Independent Trustee of The John E. Boykin 1997 Amended and 124,438 0.687% Restated Revocable Trust Indenture, dated November 19, 1997 Robert W. Boykin, Original Independent Trustee of The Robert W. Boykin Second 1997 157,114 0.868% Amended and Restated Revocable Trust Indenture, dated July 23, 1997 William J. Boykin, John E. Boykin, Robert W. Boykin, Trustees under the William J. 150,000 0.828% Boykin Trust Agreement originally dated March 9, 1988, as most recently modified by a Fourth Restatement Thereof dated May 23, 1993 and a Third Modification thereof dated September 17, 1997 R.F. Coffin, Trustee of the Robert F. Coffin Revocable Trust under Agreement dated 17,201 0.095% as of October 31, 1995 Edward H. Crane, Trustee of the Edward H. Crane Revocable Living Trust under 17,201 0.095% Agreement dated as of September 11, 1992 Barbara L. Hall, Trustee of the 10,650 0.059% Barbara L. Hall Trust dated December 20, 1995 Raymond P. Heitland, Trustee of The Raymond P. Heitland Trust, dated November 1, 2000 10,650 0.059%

PERCENTAGE LIMITED PARTNERS M & P Partners (Martin J. Cleary, Trustee of The Martin J. Cleary Revocable Trust 2,591 0.014% dated March 4, 1993, Managing Partner) Paul A. O'Neil 1,400 0.008% Albert E. Pawlisch, Trustee of the Albert E. Pawlisch Revocable Living Trust under 8,601 0.047% Agreement dated March 4, 1992 Dominic A. Visconsi, Trustee of the DAV-JVJ Trust under Agreement dated 2,726 0.015% January 4, 1993 Anthony W. Weigand, Trustee of the Anthony W. Weigand Revocable Living Trust Under 8,601 0.047% Agreement dated October 6, 1987 TOTAL 18,108,946 100.000% ========== ========

-----END PRIVACY-ENHANCED MESSAGE-----

EX-23.1

                                                                    Exhibit 23.1


                    CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS



         As independent public accountants, we hereby consent to the
         incorporation by reference in this Current Report on Form 8-K of our
         report dated February 9, 2001 included in the Company's Form 10-K for
         the year ended December 31, 2000.







/s/ Arthur Andersen LLP
Cleveland, Ohio,
January 14, 2002.

EX-99.1

                                                                    Exhibit 99.1


FOR IMMEDIATE RELEASE           CONTACT:   Paul A. O'Neil
                                           Chief Financial Officer and Treasurer
                                           Boykin Lodging Company
                                           (216) 430-1200


                  BOYKIN LODGING ACQUIRES HOTEL LEASE INTERESTS


Cleveland, Ohio, January 14, 2002. Boykin Lodging Company (NYSE: BOY), a hotel
real estate investment trust ("REIT"), today announced that it has acquired
leasehold interests for 28 of its hotels from two of its operators, Boykin
Management Company ("BMC") and Meristar Hotels & Resorts (NYSE: MMH)
("Meristar"). The structural change was made under the REIT Modernization Act,
which became effective January 1, 2001. Under the Act, REIT's are now permitted
to lease hotels to a subsidiary that qualifies as a taxable REIT subsidiary
("TRS").

The company acquired leasehold interests in 25 of the hotels by issuing BMC 1.4
million limited partnership units of Boykin's operating partnership, and
assuming from BMC $1.6 million of liabilities in excess of assets related to one
of the lessee entities. The company entered into management agreements for BMC
to operate 15 of the 25 hotels, and took over BMC's contract with Hilton Hotels
Corporation (NYSE: HLT) for Hilton's operation of the remaining 10 Doubletree
branded hotels.

The company also restructured its relationship with Meristar by acquiring or
canceling Meristar's leasehold interests for 3 hotels and signing management
agreements with Meristar to operate those hotels.

Following the transaction, 31 of Boykin Lodging's 33 hotel properties now have
management contracts under the TRS structure. The company expects to record a
$15 million primarily non-cash charge to earnings in the fourth quarter of 2001
relating to the acquisition and termination of the leases.

"We are very pleased to have completed this transaction in our continuing effort
to augment long-term shareholder value," stated Richard Conti, President and
Chief Operating Officer. "The key benefit is that our operators now have a
greater alignment of financial interests with ours. In addition, we believe that
our flexibility has been significantly enhanced because the new management
agreements with BMC and Meristar are terminable by us without penalty (e.g.,
upon a sale of the property), whereas the previous percentage leases provided
for significant termination penalties. Over the long run, the new structure will
improve profitability, but we do expect a short-term earnings dilution. We
believe this structure is critical to improve our long-term financial
performance."

Because the company's chairman, Robert Boykin, controls BMC, the board of
directors established a special committee of independent directors to evaluate
and negotiate the terms of the transactions with BMC. The special committee was
advised by independent counsel and financial advisors, and received the opinion
of Houlihan, Lokey, Howard & Zukin Financial Advisors, Inc. that the
transactions with BMC are fair to the company from a financial point of view.
The special committee also received advice from the HVS International division
of Hotel Appraisals LLC as to the prevailing terms and conditions of hotel
management contracts.

Additional details related to the transactions can be obtained from the
Company's 8-K filing made today with the Securities and Exchange Commission.

Boykin Lodging Company is a real estate investment trust that focuses on the
ownership of full-service, upscale commercial and resort hotels. The company
currently owns 33 hotels containing a total of 9,249 rooms located in nineteen
states, and operating under such internationally known brands as Doubletree,
Marriott, Hilton, Radisson and Embassy Suites, among others. For more
information about Boykin Lodging Company, visit the company's web site at
www.boykinlodging.com.

- --------------------------------------------------------------------------------
This news release contains "forward-looking statements" within the meaning of
Section 21E of the Securities Exchange Act of 1934 regarding the Company,
including those statements regarding the Company's and management's beliefs and
expectations concerning the expected benefits from the new TRS structure,
Company's future performance or anticipated financial results, among others.
Except for historical information, the matters discussed in this release are
forward-looking statements that involve risks and uncertainties that may cause
results to differ materially from those set forth in those statements. Among
other things, factors that could cause actual results to differ materially from
those expressed in such forward-looking statements include financial
performance, real estate conditions, execution of hotel acquisition programs,
changes in local or national economic conditions, and other similar variables
and other matters disclosed in the Company's filings with the SEC, which can be
found on the SEC's website at http://www.sec.gov.
- --------------------------------------------------------------------------------

EX-99.2

                                                                    Exhibit 99.2



                          MASTER CONTRIBUTION AGREEMENT

                          dated as of December 31, 2001

                                  by and among

              BOYKIN MANAGEMENT COMPANY LIMITED LIABILITY COMPANY,

                                    JABO LLC,

                             BOYKIN LODGING COMPANY

                                       and

                          BOYKIN HOTEL PROPERTIES, L.P.


IN RELIANCE UPON CERTAIN EXEMPTIONS FROM REGISTRATION, THE SECURITIES TO BE
ISSUED PURSUANT TO THIS AGREEMENT WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
ACCORDINGLY, NO PARTNERSHIP INTERESTS IN BOYKIN HOTEL PROPERTIES, L.P. MAY BE
SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS SUBSEQUENTLY
REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR
UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE, AND UNLESS THE OTHER
TRANSFER RESTRICTIONS ON SUCH INTERESTS HAVE BEEN SATISFIED. THE BMC PARTIES (AS
DEFINED HEREIN) SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE FINANCIAL
RISKS OF THEIR OWNERSHIP OF PARTNERSHIP INTERESTS IN BOYKIN HOTEL PROPERTIES,
L.P. FOR AN INDEFINITE PERIOD OF TIME.

IN MAKING AN INVESTMENT DECISION THE BMC PARTIES MUST RELY ON THEIR OWN
EXAMINATION OF BOYKIN HOTEL PROPERTIES, L.P. AND THE TERMS OF THE OFFERING,
INCLUDING THE MERITS AND RISKS INVOLVED. THE PARTNERSHIP INTERESTS HAVE NOT BEEN
RECOMMENDED BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY
AUTHORITY. FURTHERMORE, THE FOREGOING AUTHORITIES HAVE NOT CONFIRMED THE
ACCURACY OR DETERMINED THE ADEQUACY OF THIS DOCUMENT. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.







                                TABLE OF CONTENTS




                                                                                     PAGE
                                                                               
ARTICLE 1     DEFINITIONS.............................................................1

     1.1      Definitions.............................................................1

ARTICLE 2     CONTRIBUTIONS OF INTERESTS; CONSENTS....................................6

     2.1      Contributions of Interests..............................................6

ARTICLE 3     CONSIDERATION...........................................................7

     3.1      Consideration...........................................................7

ARTICLE 4     COVENANTS...............................................................7

     4.1      Amendment to the OP Partnership Agreement...............................7

     4.2      Registration Rights Agreement...........................................7

     4.3      Amendment to Rights Agreement...........................................7

     4.4      Expenses................................................................7

     4.5      Reservation of REIT Shares..............................................8

     4.6      Resignation of Officers.................................................8

     4.7      Financial Statements....................................................8

     4.8      HSR Act.................................................................8

     4.9      [INTENTIONALLY OMITTED].................................................8

     4.10     Assumption of Westboy Note..............................................8

     4.11     Liquor Licenses.........................................................8

     4.12     Franchise Agreements....................................................9

     4.13     Post-Closing Cooperation................................................9

ARTICLE 5     CLOSING.................................................................9

     5.1      Closing.................................................................9

     5.2      Closing Deliveries by the BMC Parties...................................9

     5.3      Closing Deliveries by the BLC Parties..................................12

ARTICLE 6     CONDITIONS PRECEDENT TO CLOSING........................................14

     6.1      Conditions Precedent to Obligation of the REIT and the Operating
              Partnership............................................................14



                                      -i-







                                                                               


ARTICLE 7     REPRESENTATIONS AND WARRANTIES..........................................16

     7.1      Representations and Warranties of the BLC Parties.......................16

     7.2      Representations and Warranties of the BMC Parties.......................21

     7.3      Survival................................................................28

ARTICLE 8     INDEMNIFICATION.........................................................28

     8.1      Obligation of the BLC Parties to Indemnify..............................28

     8.2      Obligation of the BMC Parties to Indemnify..............................30

     8.3      Net Claims..............................................................32

ARTICLE 9     APPORTIONMENTS AND PAYMENTS.............................................32

     9.1      Payments - Lessee Properties............................................32

     9.2      Settlement Procedures...................................................34

ARTICLE 10    MISCELLANEOUS...........................................................35

     10.1     Broker..................................................................35

     10.2     Further Assurances......................................................35

     10.3     Payment of Expenses.....................................................35

     10.4     Notices.................................................................36

     10.5     Assignment; Binding Effect..............................................37

     10.6     Waiver..................................................................37

     10.7     Incorporation of Recitals and Schedules.................................37

     10.8     Confidentiality; Press Releases.........................................37

     10.9     Merger..................................................................38

     10.10    GOVERNING LAW...........................................................38

     10.11    Jurisdiction............................................................38

     10.12    Captions................................................................39

     10.13    Counterparts............................................................39

     10.14    Severability............................................................39

     10.15    No Recordation..........................................................39

     10.16    WAIVER OF TRIAL BY JURY.................................................39

     10.17    Survival................................................................39



                                -ii-





EXHIBITS

EXHIBIT A                LESSEES AND LESSEE PROPERTIES
EXHIBIT B                WESTBOY PROPERTIES
EXHIBIT C                OP PARTNERSHIP AMENDMENT
EXHIBIT D                REGISTRATION RIGHTS AGREEMENT
EXHIBIT E                AMENDMENT TO RIGHTS AGREEMENT
EXHIBIT F                WESTBOY NOTE ASSUMPTION
EXHIBIT G                MANAGEMENT AGREEMENTS
EXHIBIT H                INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT
EXHIBIT I                WESTBOY INTERESTS ASSIGNMENT AND ASSUMPTION
                         AGREEMENT
EXHIBIT J                FORM OF OPINION OF COUNSEL TO THE BMC PARTIES
EXHIBIT K                FIRPTA AFFIDAVIT
EXHIBIT L                FORM OF OPINION OF COUNSEL TO THE BLC PARTIES
EXHIBIT M                FORM OF ALIGNMENT OF INTERESTS CONSENT

SCHEDULES

SCHEDULE 4.6             FORM OF RELEASE OF RESIGNING OFFICERS
SCHEDULE 4.11(i)         TRANSFERRED LIQUOR LICENSES
SCHEDULE 4.11(ii)        LIQUOR LICENSES REQUIRING NOTIFICATION OF
                         OWNERSHIP CHANGE
SCHEDULE 4.12(i)         ASSIGNED FRANCHISE LICENSE AGREEMENTS
SCHEDULE 4.12(ii)        TERMINATED AND NEW FRANCHISE LICENSE AGREEMENTS
SCHEDULE 4.12(iii)       RETAINED FRANCHISE LICENSE AGREEMENTS
SCHEDULE 6.1(e)          BLC PARTIES' CONSENTS, WAIVERS, AUTHORIZATIONS
                         AND APPROVALS
SCHEDULE 6.2(g)          BMC PARTIES' CONSENTS, WAIVERS, AUTHORIZATIONS
                         AND APPROVALS
SCHEDULE 7.1(f)(i)       BLC PARTIES' PENDING LITIGATION
SCHEDULE 7.1(f)(ii)      BLC PARTIES' DEFAULTS AND OTHER VIOLATIONS
SCHEDULE 7.1(h)          BLC PARTIES' VIOLATIONS OF LAWS
SCHEDULE 7.1(i)(a)       COMMITMENTS REGARDING ISSUANCE AND
                         REGISTRATION OF OP UNITS
SCHEDULE 7.1(i)(b)       COMMITMENTS REGARDING ISSUANCE AND
                         REGISTRATION OF REIT SHARES
SCHEDULE 7.2(a)          BMC PARTIES' CONFLICTING AGREEMENTS
SCHEDULE 7.2(b)          BMC PARTIES' ORGANIZATIONAL DOCUMENTS
SCHEDULE 7.2(d)          BMC PARTIES' NON-COMPLIANCE WITH LAWS
SCHEDULE 7.2(g)(iv)      LESSEE AND WESTBOY FORMATION DOCUMENTS
SCHEDULE 7.2(g)(vi)      AFFILIATE LOANS
SCHEDULE 7.2(h)          OPERATING CONTRACTS
SCHEDULE 7.2(i)          EXCEPTIONS TO WESTBOY FINANCIAL STATEMENTS AND
                         EXTRAORDINARY BUSINESS


                                     -iii-






                          MASTER CONTRIBUTION AGREEMENT

     THIS MASTER CONTRIBUTION AGREEMENT (this "AGREEMENT") is made as of the
31st day of December, 2001, by and among BOYKIN MANAGEMENT COMPANY LIMITED
LIABILITY COMPANY, an Ohio limited liability company, having an address at
Guildhall Building, 45 West Prospect Avenue, Suite 1515, Cleveland, Ohio 44115
("BMC"), JABO LLC, a Delaware limited liability company ("JABO"; BMC and JABO
are referred to herein collectively as the "BMC Parties"), BOYKIN LODGING
COMPANY, an Ohio corporation (the "REIT"), and BOYKIN HOTEL PROPERTIES, L.P., an
Ohio limited partnership (the "OPERATING PARTNERSHIP"; the Operating Partnership
and the REIT are referred to herein collectively as the "BLC PARTIES"), each
having an address at 45 West Prospect Avenue, Suite 1500, Cleveland, Ohio 44115.

                              W I T N E S S E T H:
                               - - - - - - - - - -

     WHEREAS, BMC owns ninety-nine percent (99%) of the membership interests in
JABO, which owns (i) all of the membership interests (the "WESTBOY INTERESTS")
in Westboy, LLC, a Delaware limited liability company ("WESTBOY"), and (ii) all
of the membership interests (the "INTERESTS") in each of the fifteen (15)
limited liability companies identified on EXHIBIT A (each, a "LESSEE" and,
collectively, the "LESSEES");

     WHEREAS, each Lessee is the owner of a leasehold interest in one of the
fifteen (15) hotel properties identified on EXHIBIT A (collectively, the "LESSEE
PROPERTIES");

     WHEREAS, Westboy is the owner of the leasehold interests in the ten (10)
hotel properties identified on EXHIBIT B (collectively, the "WESTBOY
PROPERTIES"; each of the Lessee Properties and Westboy Properties, a "PROPERTY"
and, collectively, the "PROPERTIES");

     WHEREAS, at the Closing, the BMC Parties have agreed to cause JABO to
contribute the Interests and Westboy Interests to the Operating Partnership, in
each case in exchange for partnership interests in the Operating Partnership on
the terms set forth below;

     NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants, conditions and agreements contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:

                                   ARTICLE 1

                                   DEFINITIONS

     1.1 DEFINITIONS. For purposes of this Agreement, the following terms have
the meanings indicated below:

     "ACCRUED VACATION TIME" has the meaning set forth in Section 9.1(c).

     "ACTUAL KNOWLEDGE" means, with respect to a Person who is any of the BMC
Parties (other than an individual) the actual, not imputed, knowledge of any
officer, director or





employee at the level of a general manager (other than a general manager at any
of the Westboy Properties) and above, and with respect to a Person who is any of
the BLC Parties, the actual, not imputed, knowledge of any director, senior
executive or officer of such Person.

     "ADJUSTED CLOSING STATEMENT" has the meaning set forth in Section 9.3.

     "AFFILIATE" means, with respect to the applicable party, any corporation,
partnership, sole proprietorship or other entity or individual which (a) is
owned or controlled by such party, (b) owns or controls such party, or (c) is
under common ownership or control with such party; provided that the BLC Parties
shall not be deemed Affiliates of the BMC Parties and the BMC Parties shall not
be deemed Affiliates of the BLC Parties; and provided further that (i) The John
E. Boykin 1997 Amended and Restated Revocable Trust, The Robert W. Boykin Second
1997 Amended and Restated Revocable Trust, Robert W. Boykin and John E. Boykin
and any entity controlled by the foregoing Persons, and (ii) the BLC Parties,
shall not in any event be considered Affiliates of each other.

     "AGREEMENT" has the meaning set forth in the preamble.

     "ALIGNMENT OF INTERESTS CONSENT" has the meaning set forth in Section
5.3(n).

     "AMENDMENT TO RIGHTS AGREEMENT" has the meaning set forth in Section 4.3.

     "ASSIGNED PROPERTY" means all of the tangible personal property, contracts,
permits, tenant leases, personal property leases and other assets owned by the
Lessees pursuant to those certain General Assignment and Assumption Agreements,
by and between BMC and the Lessees, dated as of the date hereof.

     "BLC INDEMNITEES" has the meaning set forth in Section 8.2(a).

     "BLC MATERIAL ADVERSE EFFECT" has the meaning set forth in Section 7.1(b).

     "BLC PARTIES" has the meaning set forth in the preamble.

     "BMC" has the meaning set forth in the preamble.

     "BMC HILTON CLAIMS" has the meaning set forth in Section 9.4.

     "BMC INDEMNITEES" has the meaning set forth in Section 8.1(a).

     "BMC OPERATING AGREEMENT" means all documents comprising the operating
agreement of BMC including, without limitation, all amendments, supplements and
modifications thereof.

     "BMC PARTIES" has the meaning set forth in the preamble.

     "BUSINESS DAY" means any day of the year, other than a Saturday or Sunday
or any other day that the Federal Reserve Bank of Cleveland recognizes as a
federal holiday.

     "CLOSING" and "CLOSING DATE" have the meanings set forth in Section 5.1
hereof.



                                      -2-


     "CLOSING STATEMENT" has the meaning set forth in Section 9.3.

     "CONSIDERATION" has the meaning set forth in 3.1 hereof.

     "CUTOFF TIME" means 3:01 a.m. on the Closing Date.

     "EMPLOYEE BENEFIT PLAN" has the meaning set forth in Section 7.2(k).

     "ENVIRONMENTAL LIABILITIES" means any reasonable cost, liability, damage or
expense (including, without limitation, any attorneys' fees or expenses) that
arise out of any violation or non-compliance, with respect to any Property, with
any Federal, State or local law, rule or regulation or any written judicial or
administrative order, in each case, in effect on or prior to the Closing Date,
relating to the protection of the environment (including, without limitation, a
violation or non-compliance relating to Hazardous Materials located at, on,
under or in any Property or migrating from any Property) caused by any failure
by BMC, the relevant Lessee or Westboy to perform any obligation under the
relevant Lease that resulted in such violation or non-compliance, during the
period in which BMC, the relevant Lessee or Westboy held the relevant Lease to
the Property prior to the date hereof.

     "ENVIRONMENTAL LIABILITIES SURVIVAL PERIOD" has the meaning set forth in
Section 7.3.

     "FOREIGN OWNER" has the meaning set forth in Section 7.2(l).

     "FRANCHISE DOCUMENTS" has the meaning set forth in Section 4.12.

     "GAAP" means generally accepted accounting principles consistently applied.

     "GENERAL ASSIGNMENT AGREEMENTS" means the Assignment and Assumption
Agreements between BMC and each of the Lessees dated as of January 1, 2002.

     "GENERAL SURVIVAL PERIOD" has the meaning set forth in Section 7.3.

     "GOVERNMENTAL AUTHORITY" means any agency, bureau, commission, court,
department, official, political subdivision, tribunal or other instrumentality
of any government, whether federal, state or local, domestic or foreign.

     "GROUND LEASE" means that certain lease, by and between the City of
Berkeley, as lessor, and William J. Boykin, as lessee, dated August 7, 1969, as
amended and assigned by mesne assignments to Boykin Berkeley LLC.

     "HAZARDOUS MATERIALS" means any substance, chemical, compound, product,
solid, gas, liquid, waste, byproduct, pollutant, contaminant or other material
that is hazardous, toxic, ignitable, corrosive, carcinogenic or otherwise
presents a risk of danger to human, plant or animal life or the environment or
that is defined, determined or identified as such in any federal, state or local
law, rule or regulation and any written judicial or administrative order or
final judgment in effect on or prior to the Closing Date, in each case relating
to the protection of human health, safety and/or the environment, including but
not limited to, any materials, wastes or substances that are included within the
definition of (a) "hazardous waste" in the federal



                                      -3-


Resource Conservation and Recovery Act; (b) "hazardous substances" in the
federal Comprehensive Environmental Response, Compensation, and Liability Act;
(c) "pollutants" in the federal Clean Water Act; (d) "toxic substances" in the
federal Toxic Substances Control Act; and (e) "oil or hazardous materials" in
the laws or regulations of any state.

     "HILTON" means Hilton Hotel Corporation and any of its Affiliates.

     "HSR ACT" has the meaning set forth in Section 4.8.

     "INDEPENDENT ACCOUNTANTS" has the meaning set forth in Section 9.3.

     "INQUIRY" has the meaning set forth in Section 8.1(c).

     "INTERESTS" has the meaning set forth in the recitals.

     "INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT" has the meaning set forth
in Section 5.2(c).

     "JABO" has the meaning set forth in the preamble.

     "JABO OPERATING AGREEMENT" means all documents comprising the operating
agreement of JABO including, without limitation, all amendments, supplements and
modifications thereof.

     "JABO'S ACCOUNTANTS" has the meaning set forth in Section 9.3.

     "LAWS" means applicable laws, ordinances, rules, regulations, orders and
requirements of any Governmental Authorities having jurisdiction.

     "LEASE" means, with respect to each Lessee Property, the particular lease
between the Operating Partnership and BMC or an Affiliate of BMC as such was
assigned on December 31, 2001, to that particular Lessee.

     "LEASE ASSIGNMENT AGREEMENTS" means the Lease Assignment Agreements between
BMC and each of the Lessees, dated as of December 31, 2001.

     "LESSEE" and "LESSEES" have the meaning set forth in the recitals.

     "LESSEE PROPERTIES" has the meaning set forth in the recitals.

     "LESSEE ORGANIZATIONAL DOCUMENTS" means all documents comprising the
constituent organizational documents of each of the Lessees including, without
limitation, operating agreements, articles of incorporation and all amendments,
supplements and modifications thereof and all assignments with respect thereto.

     "LIABILITY CAP" has the meaning set forth in Section 8.2(c).

     "LIQUOR LICENSE DOCUMENTS" has the meaning set forth in Section 4.11.

     "MANAGEMENT AGREEMENTS" has the meaning set forth in Section 5.2(b).



                                      -4-


     "NET CURRENT ASSETS AND LIABILITIES AMOUNT" has the meaning set forth in
Section 9.1.

     "NOTICES" means all notices, demands or requests made pursuant to or
otherwise in connection with this Agreement.

     "OPERATING CONTRACTS" has the meaning set forth in Section 7.2(h).

     "OPERATING PARTNERSHIP" has the meaning set forth in the preamble.

     "OP PARTNERSHIP AGREEMENT" means the Second Amended and Restated Agreement
of Limited Partnership of the Operating Partnership, dated as of May 20, 1998,
as amended by that certain Amendment to Second Amended and Restated Agreement of
Limited Partnership, dated as of February 1, 1999.

     "OP PARTNERSHIP AMENDMENT" has the meaning set forth in Section 4.1.

     "OP UNITS" means those Partnership Units issued to JABO pursuant to Section
3.1.

     "PARTNERSHIP INTERESTS" has the meaning set forth in the OP Partnership
Agreement.

     "PARTNERSHIP UNITS" means the non-preferred Partnership Interests of the
Operating Partnership.

     "PERCENTAGE LEASES" means those certain leases pursuant to which the
Lessees and Westboy hold leasehold interests in the Properties.

     "PER PROPERTY LIABILITY CAP" has the meaning set forth in Section 8.2(c).

     "PERSON" means an individual, a partnership (general or limited), limited
liability company, corporation, joint venture, business trust, cooperative,
association or other form of business organization, whether or not regarded as a
legal entity under applicable law, a trust (inter vivos or testamentary), an
estate of a deceased, insane or incompetent person or any other entity.

     "PROPERTY" and "PROPERTIES" have the meaning set forth in the recitals.

     "PROPERTY MATERIAL ADVERSE EFFECT" has the meaning set forth in Section
7.2(a)(vii).

     "PROPERTY SURVIVAL PERIOD" has the meaning set forth in Section 7.3.

     "REGISTRATION RIGHTS AGREEMENT" has the meaning set forth in Section 4.2.

     "REIT" has the meaning set forth in the preamble.

     "REIT SHARES" has the meaning set forth in Section 4.5.

     "SEC DOCUMENTS" has the meaning set forth in Section 7.1(i)(ii).

     "SECURITIES ACT" means the Securities Act of 1933, as amended.



                                      -5-



     "SHARED HILTON CLAIMS" has the meaning set forth in Section 9.4.

     "SPACE LEASES" means any existing leases, tenancies, concessions, licenses
and other use or occupancy agreements affecting or relating to any portion of
the Properties, together with any renewals of, additions to, modifications of or
substitutions for such leases entered into by or on behalf of the Lessees or
Westboy prior to the Closing Date.

     "SURVIVAL PERIOD" has the meaning set forth in Section 7.3.

     "TBG" means The Boykin Group, Inc., an Ohio corporation.

     "TRANSACTION DOCUMENTS" means this Agreement, the Registration Rights
Agreement, the Amendment to Rights Agreement, the Management Agreements, the
Interests Assignment and Assumption Agreement, the Westboy Interests Assignment
and Assumption Agreement, the Westboy Note Assumption, the Liquor License
Documents, the Franchise Documents, the OP Partnership Amendment, the Alignment
of Interests Consent, the Lease Assignment Agreements, and the General
Assignment Agreement.

     "WESTBOY" has the meaning set forth in the recitals.

     "WESTBOY INTERESTS" has the meaning set forth in the recitals.

     "WESTBOY INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT" has the meaning set
forth in Section 5.2(d).

     "WESTBOY MATERIAL ADVERSE EFFECT" has the meaning set forth in Section
7.2(a)(vii).

     "WESTBOY MEMBER'S EQUITY" means the member's equity of Westboy as shall be
reflected on Westboy's balance sheet as of December 31, 2001, determined under
GAAP consistently applied; but without considering the Westboy Note as an asset
of Westboy, or the BMC Hilton Claims or the Shared Hilton Claims as either an
asset or a liability.

     "WESTBOY NOTE" has the meaning set forth in Section 4.10.

     "WESTBOY NOTE ASSUMPTION" has the meaning set forth in Section 4.10.

     "WESTBOY PROPERTIES" has the meaning set forth in the recitals.

     "WIND UP DATE" has the meaning set forth in Section 9.3.

                                   ARTICLE 2

                      CONTRIBUTIONS OF INTERESTS; CONSENTS

     2.1 CONTRIBUTIONS OF INTERESTS. Subject to and on the terms and conditions
hereinafter set forth, assuming satisfaction by the BMC Parties and/or waiver by
the BLC Parties and satisfaction by the BLC Parties and/or waiver by the BMC
Parties of all conditions set forth in




                                      -6-


Sections 6.1 and 6.2, respectively, on the date and at the time and place
provided for in Section 5.1:

          (a) JABO shall contribute, transfer, assign and deliver all of its
right, title and interest in and to the Interests to the Operating Partnership;
and

          (b) JABO shall contribute all of its right, title and interest in and
to the Westboy Interests to the Operating Partnership.

                                   ARTICLE 3

                                  CONSIDERATION

     3.1 CONSIDERATION. On the Closing Date, assuming satisfaction by the BMC
Parties and/or waiver by the BLC Parties and satisfaction by the BLC Parties
and/or waiver by the BMC Parties of all conditions set forth in Sections 6.1 and
6.2, respectively, as consideration (the "CONSIDERATION") for the contributions
described in Section 2.1, the Operating Partnership agrees and the REIT shall
cause the Operating Partnership to admit JABO as an additional limited partner
of the Operating Partnership and to issue to JABO 1,427,142 OP Units as set
forth in the OP Partnership Amendment.

                                   ARTICLE 4

                                    COVENANTS

     4.1 AMENDMENT TO THE OP PARTNERSHIP AGREEMENT. At or prior to the Closing,
the Operating Partnership agrees to adopt an amendment, in the form attached
hereto as EXHIBIT C (the "OP PARTNERSHIP AMENDMENT"), to the OP Partnership
Agreement reflecting the admission of JABO as an additional limited partner to
the Operating Partnership and the issuance of the OP Units in accordance with
the provisions of Section 3.1 of this Agreement.

     4.2 REGISTRATION RIGHTS AGREEMENT. At or prior to the Closing, the REIT and
JABO agree to enter into and deliver the registration rights agreement, in the
form attached hereto as EXHIBIT D (the "REGISTRATION RIGHTS AGREEMENT").

     4.3 AMENDMENT TO RIGHTS AGREEMENT. At or prior to the Closing Date, the
REIT agrees to adopt an amendment to the Shareholder Rights Agreement between
the REIT and National City Bank, dated May 25, 1999, in the form attached hereto
as EXHIBIT E (the "AMENDMENT TO RIGHTS AGREEMENT").

     4.4 EXPENSES. Each party agrees to pay its own expenses (including the fees
and expenses of its own attorneys, accountants and other advisers) in connection
with its due diligence activities, negotiating this Agreement and any related
agreements, obtaining any required approvals and otherwise preparing for the
Closing. The parties agree to cooperate with one another to prepare and file
with the relevant authorities all sales, use and transfer tax returns,
affidavits and other similar instruments, if any, required in connection with
the payment of the foregoing expenses. The REIT agrees to prepare and file with
the relevant authorities all necessary sales, use and transfer tax returns and
related instruments in connection with the




                                      -7-


transfer to the Operating Partnership of the Interests and Westboy Interest, if
any, and to pay all sales, use or transfer taxes, if any, required in connection
therewith. The BLC Parties agree to pay any fees, costs and charges due in
connection with the transfer of any liquor licenses and franchise license
agreements or the retention of any liquor licenses or franchise license
agreements by BMC for the benefit of the Lessees pursuant to Sections 4.11 and
4.12, including such fees, costs and charges arising after the date hereof.

     4.5 RESERVATION OF REIT SHARES. The REIT agrees that commencing on or prior
to the Closing and at all times thereafter it will reserve and keep available,
free from preemptive rights, out of its authorized but unissued common shares,
solely for the purpose of issuance upon redemption of the OP Units, the full
number of the common shares of the REIT without a par value per share ("REIT
SHARES") then deliverable upon redemption in full of all of the OP Units should
the REIT as general partner of the Operating Partnership elect to issue all such
REIT shares upon any such redemption request.

     4.6 RESIGNATION OF OFFICERS. At or prior to the Closing, JABO agrees to
cause Robert W. Boykin and each family member of Robert W. Boykin that is then
an officer or director of any Lessee or Westboy to resign from such position.
Each such resigning officer and director shall receive a release from the
relevant Lessee or Westboy in the form attached hereto as SCHEDULE 4.6.

     4.7 FINANCIAL STATEMENTS. BMC agrees that, at its expense, it will provide
the REIT with (i) a combined statement of operations that will include its
operations with respect to each Property for the year ended December 31, 2001,
audited by Arthur Andersen LLP, before March 31, 2002, and (ii) a "management's
discussion and analysis" comparing and explaining specific line items in the
foregoing statements. The foregoing statements and analysis will be delivered in
a form and format that will facilitate their inclusion in any filing required to
be made by the BLC Parties with any Governmental Authority.

     4.8 HSR ACT. The BMC Parties and the BLC Parties agree that they have
mutually concluded that no filing under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended ("HSR ACT"), is required with respect to
the transactions contemplated hereby.

     4.9 [INTENTIONALLY OMITTED]

     4.10 ASSUMPTION OF WESTBOY NOTE. At Closing, BMC agrees to assign to the
Operating Partnership its obligations under that certain promissory note dated
as of December 31, 1997, and all requests for payment thereunder subsequently
executed, which in the aggregate obligate BMC to make additional capital
contributions to Westboy in the amount of Nine Hundred Thousand Dollars
($900,000) (collectively, the "WESTBOY NOTE"), and the Operating Partnership
agrees to assume such obligations in the form attached hereto as EXHIBIT F (the
"WESTBOY NOTE ASSUMPTION") and, immediately following the Closing, the BLC
Parties shall cause Westboy to release BMC from its obligations under the
Westboy Note.

     4.11 LIQUOR LICENSES. The BMC Parties agree to assign to the applicable
Lessee and each such Lessee shall agree to assume on, prior to or after the
Closing the liquor licenses set forth in SCHEDULE 4.11(i). At, prior to or after
the Closing, the BMC Parties agree to notify the




                                      -8-


relevant liquor commissions on or before the Closing Date of the change in the
membership of Westboy with regard to the liquor licenses for the Properties set
forth in SCHEDULE 4.11(II). Except as set forth on SCHEDULE 4.11(i) or Schedule
4.11(ii), all liquor licenses shall remain with the applicable holder of record
as of December 31, 2001. All documents executed pursuant to this Section 4.11,
shall be referred to herein as the "LIQUOR LICENSE DOCUMENTS".

     4.12 FRANCHISE AGREEMENTS. At or prior to the Closing, the BMC Parties
agree to assign to the applicable Lessee and each such Lessee shall agree to
assume the franchise license agreements for the Properties set forth on SCHEDULE
4.12(i). At or prior to the Closing, the BMC Parties agree to terminate the
franchise license agreements for the Properties set forth on SCHEDULE 4.12(ii)
and the BLC Parties agree that the Lessees shall enter into new franchise
license agreements for such Properties effective immediately after the Closing.
The BMC Parties agree to retain the franchise license agreements set forth on
SCHEDULE 4.12(iii). All documents executed pursuant to this Section 4.12, shall
be referred to herein as the "FRANCHISE DOCUMENTS".

     4.13 POST-CLOSING COOPERATION. Each party agrees that it will cooperate
with the other party for a reasonable period after the Closing by, where
practical, providing the other party with information that it presently
possesses with respect to the current status of pending litigation and insurance
claims relating to the Properties or circumstances underlying such litigation or
claims to the extent the litigation or underlying circumstances arose prior to
the Closing.


                                   ARTICLE 2

                                     CLOSING

     5.1 CLOSING. Subject to the terms and conditions of this Agreement, the
Closing shall take place at the office of Thompson Hine LLP, 3900 Key Center,
127 Public Square, Cleveland, Ohio 44114, at 9:00 A.M., E.S.T. on January 2,
2002, but be deemed effective as of 3:01 A.M., E.S.T. on January 1, 2002, or at
such other place, time and date as may hereafter be mutually agreed between the
BMC Parties and the BLC Parties (the "CLOSING DATE"). As used in this Agreement,
the term "CLOSING" means the transfer and assignment of the Interests and
Westboy Interests to the Operating Partnership in exchange for the Consideration
and the performance by each party hereto of the obligations on its part then to
be performed under and in accordance with this Agreement.

     5.2 CLOSING DELIVERIES BY THE BMC PARTIES. At the Closing, the respective
BMC Parties will deliver to the respective BLC Parties each of the following
instruments and documents:

          (a) REGISTRATION RIGHTS AGREEMENT. The Registration Rights Agreement,
duly executed by JABO.

          (b) MANAGEMENT AGREEMENTS. Management agreements with respect to each
of the Lessee Properties in the form attached hereto as EXHIBIT G (the
"MANAGEMENT AGREEMENTS"), duly executed by BMC.



                                      -9-


          (c) INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT. An assignment and
assumption agreement for the Interests in the form of EXHIBIT H attached hereto
(the "INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT"), duly executed by JABO.

          (d) WESTBOY INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT. An
assignment and assumption agreement for the Westboy Interests in the form of
EXHIBIT I attached hereto (the "WESTBOY INTERESTS ASSIGNMENT AND ASSUMPTION
AGREEMENT"), duly executed by JABO.

          (e) CERTIFICATES.

               (i) A certificate, issued by the Secretary of State of the State
     of Ohio and dated not earlier than thirty (30) Business Days prior to the
     Closing Date, certifying as to the good standing of BMC, JABO and Westboy
     under the laws of Ohio.

               (ii) A certificate, issued by the Secretary of State of the State
     of Delaware and dated not earlier than thirty (30) Business Days prior to
     the Closing Date, certifying as to the good standing of JABO, Westboy and
     each of the Lessees under the laws of Delaware.

               (iii) A certificate, issued by the Secretary of State of the
     State where each Property is located and dated not earlier than thirty (30)
     Business Days prior to the Closing Date, certifying as to the good standing
     of such Lessee or Westboy which owns the leasehold interest in such
     Property under the laws of such State to the extent not covered in (i) or
     (ii) above.

               (iv) A duly executed certificate of the secretary of BMC, dated
     as of such Closing Date, certifying:

               (A) that (i) attached to such certificate is a true and complete
          copy of resolutions adopted by the board of directors of BMC, which
          resolutions approve the transactions contemplated hereunder and
          authorize the officers of BMC to execute and deliver, for and on
          behalf of BMC, this Agreement, the Management Agreements and each
          other agreement or instrument necessary for the consummation of the
          transactions contemplated by this Agreement and the Management
          Agreements to be executed and delivered by BMC, (ii) the adoption of
          the attached resolutions by the board of directors constitutes the
          only authorization required for the aforementioned execution, delivery
          and consummation by BMC of the transactions contemplated hereunder,
          and (iii) such authorization has not been revoked or otherwise
          withdrawn and remains in full force and effect.

               (v) A duly executed certificate of BMC as the managing member of
     JABO, dated as of such Closing Date, certifying:

               (A) that (i) attached to such certificate is a true and complete
          copy of the resolutions adopted by the board of directors of BMC,
          which resolutions approve the transactions contemplated hereunder and
          authorize the officers of




                                      -10-


          BMC to execute and deliver, for and on behalf of JABO, this Agreement
          and the other Transaction Documents or any instruments necessary for
          the consummation of the transactions contemplated hereunder and
          thereunder to be executed and delivered by JABO, (ii) the adoption of
          the attached resolutions by the board of directors of BMC constitutes
          the only authorization required for the aforementioned execution,
          delivery and consummation by JABO of the transactions contemplated
          hereunder, and (iii) such authorization has not been revoked or
          otherwise withdrawn and remains in full force and effect;

               (B) that (i) attached to such certificate is a true and complete
          copy of the BMC Operating Agreement and BMC's articles of
          organization, (ii) such instruments have not been amended (except as
          noted therein) and (iii) such instruments are in full force and effect
          as of the Closing Date.

               (C) that (i) attached to such certificate is a true and complete
          copy of the JABO Operating Agreement and JABO's certificate of
          formation (certified by the Secretary of State of the State of
          Delaware), (ii) such instruments have not been amended (except as
          noted therein) and (iii) such instruments are in full force and effect
          as of the Closing Date;

               (D) that (i) attached to such certificate is a true and complete
          copy of each Lessee's operating agreement and certificate of formation
          (certified by the Secretary of State of the State of Delaware), (ii)
          such instruments have not been amended (except as noted therein) and
          (iii) such instruments are in full force and effect as of the Closing
          Date; and

               (E) that (i) attached to such certificate is a true and complete
          copy of Westboy's operating agreement and certificate of formation
          (certified by the Secretary of State of the State of Delaware), (ii)
          such instruments have not been amended (except as noted therein) and
          (iii) such instruments are in full force and effect as of the Closing.

          (f) OPINION. An opinion of counsel to BMC in substantially the form
attached hereto as EXHIBIT J.

          (g) LIQUOR LICENSES. An assignment and assumption of the liquor
licenses listed on SCHEDULE 4.11, duly executed by BMC, and such other
agreements necessary to satisfy Section 4.11, duly executed by BMC.

          (h) FRANCHISE AGREEMENTS. An assignment and assumption of the
franchise license agreements listed on SCHEDULE 4.12, duly executed by BMC, and
such other agreements necessary to satisfy the requirements of Section 4.12,
duly executed by BMC.

          (i) FIRPTA AFFIDAVIT. An affidavit of JABO , in the form of EXHIBIT K
attached hereto, stating the U.S. taxpayer identification number of JABO and
that JABO is a "United States person", as defined by the Internal Revenue Code
Section 7701(a)(30).



                                      -11-


          (j) RECORDS. At the Closing, the BMC Parties shall deliver hard copies
(originals, to the extent they exist) in their existing file folders (to the
extent they exist in such folders), and to the extent available in electronic
format on computer disk or other comparable storage medium, to, or at the
direction of, the Operating Partnership (a) all documents, records and books of
account, or copies thereof, relating to the construction, ownership, management,
leasing and operation of the Properties which are in the BMC Parties' possession
or in the possession of their agents and owned by BMC on the Closing Date,
including original Percentage Leases, Space Leases, the Ground Lease and other
ground leases, if any, and all associated lease files, (b) any other financial
information in the BMC Parties' possession or in the possession of their agents
and owned by BMC relating to the Properties, and (c) to the extent available and
in the possession of the BMC Parties, copies of all litigation files and
information on claims and insurance claims relating to the Properties, the
Lessees or Westboy; provided, however, that the BMC Parties shall retain
possession of such documents, records, books and other information that BMC has
a right to possess, as agent for a Lessee under a Management Agreement, subject
to the terms and conditions of such Management Agreement. The BMC Parties shall
also deliver to, or at the direction of, the Operating Partnership, both prior
to and after the Closing, copies of any documents in the possession of the BMC
Parties or their agents and owned by BMC that may be necessary or helpful to the
Operating Partnership in adjusting losses or claims or otherwise enforcing or
settling claims with respect to all Percentage Leases, Space Leases, insurance
policies or contracts relating to the Properties.

          (k) OTHER DOCUMENTS, ETC. All other instruments and documents, if any,
required to be executed, acknowledged and/or delivered by the BMC Parties to the
Operating Partnership and/or the REIT pursuant to and in accordance with any of
the other provisions of this Agreement and the other Transaction Documents or
instruments as the Operating Partnership or the REIT may reasonably request to
effect the transactions contemplated in the aforementioned agreements.

     5.3 CLOSING DELIVERIES BY THE BLC PARTIES. At the Closing, the respective
BLC Parties will deliver to the respective BMC Parties each of the following
instruments, documents and payments:

          (a) CONSIDERATION. The Consideration as provided for in Section 3.1 of
this Agreement by execution of the OP Partnership Amendment.

          (b) OP PARTNERSHIP AMENDMENT. The OP Partnership Amendment, duly
executed by the REIT, as general partner of the Operating Partnership.

          (c) REGISTRATION RIGHTS AGREEMENT. The Registration Rights Agreement,
duly executed by the REIT.

          (d) AMENDMENT TO RIGHTS AGREEMENT. The Amendment to Rights Agreement,
duly executed by the REIT and National City Bank.

          (e) MANAGEMENT AGREEMENTS. The Management Agreements with respect to
each of the Lessee Properties, duly executed by the applicable Lessee.



                                      -12-


          (f) INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT. The Interests
Assignment and Assumption Agreement, duly executed by the Operating Partnership.

          (g) WESTBOY INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT. The Westboy
Interests Assignment and Assumption Agreement, duly executed by the Operating
Partnership.

          (h) CERTIFICATES.

               (i) A certificate issued by the Secretary of State of the State
     of Ohio and dated not earlier than thirty (30) days prior to the Closing
     Date, certifying as to the good standing of the REIT and the full force and
     effect of the Operating Partnership under the laws of the State of Ohio.

               (ii) A duly executed certificate of the Secretary of the REIT,
     dated as of the Closing Date, certifying:

               (A) that (i) attached to such certificate is a true and complete
          copy of the resolutions adopted by the board of directors of the REIT,
          which resolutions approve the transactions contemplated hereunder and
          authorize the REIT on its own behalf and as general partner of the
          Operating Partnership to execute and deliver this Agreement and the
          other Transaction Documents or any instrument necessary for the
          consummation of the transactions contemplated hereunder and
          thereunder, and which provide for the reservation of the full number
          of REIT Shares that will be deliverable upon redemption in full of all
          the OP Units issued pursuant to Section 3.1 should the REIT elect to
          issue such REIT Shares upon any redemption request, (ii) the adoption
          of the attached resolutions by the board of directors of the REIT
          constitutes the only authorization required for the aforementioned
          execution, delivery and consummation by the REIT on its own behalf and
          on behalf of the Operating Partnership, and (iii) such authorization
          has not been revoked or otherwise withdrawn and remains in full force
          and effect;

               (B) that (i) attached to such certificate is a true and complete
          copy of the OP Partnership Agreement, the certificate of limited
          partnership of the Operating Partnership and the articles of
          incorporation and code of regulations of the REIT, (ii) such
          instruments have not been amended (except as noted therein) and (iii)
          such instruments are in full force and effect as of such Closing Date.

               (i) OPINION. An opinion of counsel to the BLC Parties in
substantially the form attached as EXHIBIT L.

               (j) WESTBOY NOTE. The Westboy Note Assumption, duly executed by
the Operating Partnership and Westboy.

               (k) TRANSFER TAXES. All necessary sales, use and transfer tax
reports and related instruments required to be filed with any Governmental
Authority in connection with the transfer to the Operating Partnership of the
Interests and Westboy Interests, duly executed by the




                                      -13-


BLC Parties, and payment of or provisions for any amounts due to any
Governmental Authority in connection therewith.

               (l) LIQUOR LICENSES. An assignment and assumption of the liquor
licenses listed on SCHEDULE 4.11, duly executed by the Operating Partnership and
the applicable Lessee in each case and such other agreements necessary to
satisfy Section 4.11, duly executed by the Operating Partnership and the
applicable Lessee.

               (m) FRANCHISE AGREEMENTS. An assignment and assumption of the
franchise license agreements listed on SCHEDULE 4.12, duly executed by the
Operating Partnership or the applicable Lessee and such other agreements
necessary to satisfy the requirements of Section 4.12, duly executed by the
Operating Partnership and the applicable Lessee.

               (n) ALIGNMENT OF INTERESTS CONSENT. The Operating Partnership's
consent in the form of EXHIBIT M attached hereto (the "ALIGNMENT OF INTERESTS
CONSENT"), as required under the Alignment of Interests Agreement, dated
November 4, 1996, among the REIT, the Operating Partnership, BMC, TBG,
Purchasing Concepts, Inc., Robert J. Boykin and John E. Boykin.

               (o) OTHER DOCUMENTS, ETC. All other instruments and documents, if
any, required to be executed, acknowledged and/or delivered by the Operating
Partnership and/or the REIT to the BMC Parties pursuant to and in accordance
with any of the other provisions of this Agreement, the other Transaction
Documents and such other agreements or instruments as the BMC Parties may
reasonably request to effect the transactions contemplated in the aforementioned
agreements.


                                   ARTICLE 6

                         CONDITIONS PRECEDENT TO CLOSING

     6.1 CONDITIONS PRECEDENT TO OBLIGATION OF THE REIT AND THE OPERATING
PARTNERSHIP. The obligation of the REIT and the Operating Partnership to
consummate the transactions contemplated herein shall be subject to the
fulfillment on or before the Closing Date of all of the following conditions,
any or all of which may be waived by the REIT and/or the Operating Partnership
in their sole discretion:

          (a) DELIVERY OF DOCUMENTS. The BMC Parties shall have delivered all of
the items required to be delivered to the BLC Parties pursuant to Section 5.2.

          (b) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the BMC Parties in Section 7.2 of this Agreement shall be true
and correct in all material respects as originally made and, if applicable, as
remade on and as of the Closing Date (or, if made as of a specified date, as of
such date).

          (c) OBSERVANCE OF COVENANTS. The BMC Parties shall have performed and
observed, in all material respects, all covenants and agreements in this
Agreement to be performed and observed by the BMC Parties as of the Closing
Date.


                                      -14-



          (d) TRANSACTIONS NOT PROHIBITED. No statute, temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation by the BMC Parties or any of the Lessees of the transactions
contemplated by this Agreement, and the other Transaction Documents shall be in
effect or, if applicable, have been threatened in writing by any Governmental
Authority, other than any such order or other legal restraint or prohibition or
written threat thereof obtained or instituted by or on behalf of the REIT, the
Operating Partnership or any of their Affiliates.

          (e) CONSENTS AND WAIVERS. The BLC Parties shall have obtained the
lender, franchisor and other third-party consents and waivers, consents,
authorizations and approvals from the limited partners of the Operating
Partnership necessary to consummate the transactions contemplated herein, which
consents, waivers, authorizations and approvals are set forth on SCHEDULE
6.1(e). The BLC Parties agree to use commercially reasonable efforts to obtain
such consents, waivers, authorizations and approvals.

     6.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BMC PARTIES. The obligation
of the BMC Parties to consummate the transactions contemplated herein shall be
subject to the fulfillment on or before the Closing Date of all of the following
conditions, any or all of which may be waived by the BMC Parties in their sole
discretion:

          (a) RECEIPT OF CONSIDERATION. The Operating Partnership shall have
delivered the Consideration.

          (b) DELIVERY OF DOCUMENTS. The BLC Parties shall have delivered all of
the items required to be delivered to the BMC Parties pursuant to Section 5.3.

          (c) ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the BLC Parties contained in Section 7.1 of this Agreement
shall be true and correct in all material respects as originally made and as
remade on and as of the Closing Date (or, if made as of a specified date, as of
that date).

          (d) OBSERVANCE OF COVENANTS. The BLC Parties shall have performed and
observed, in all material respects, all covenants and agreements in this
Agreement to be performed and observed by the BLC Parties as of the Closing
Date.

          (e) TRANSACTIONS NOT PROHIBITED. No statute, temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation by the BLC Parties of the transactions contemplated by this
Agreement and the other Transaction Documents shall be in effect, or, if
applicable, have been threatened in writing by any Governmental Authority, other
than any such order or other legal restraint or prohibition or written threat
thereof obtained or initiated by or on behalf of the BMC Parties or any of their
Affiliates.

          (f) REIT SHARES. The REIT shall have reserved for issuance and made
available, free from preemptive rights, out of the REIT's authorized but
unissued common shares, solely for the purpose of issuance upon redemption of
the OP Units, the full number of



                                      -15-


REIT Shares then deliverable upon redemption in full of all of the OP Units
should the REIT elect to issue all such REIT Shares upon any such redemption
request.

          (g) CONSENTS AND WAIVERS. The BMC Parties shall have obtained the
lender, franchisor and other third-party consents, waivers, authorizations and
approvals necessary to consummate the transactions contemplated herein, which
consents, waivers, authorizations and approvals are set forth in SCHEDULE
6.2(g). The BMC Parties agree to use commercially reasonable efforts to obtain
such consents, waivers, authorizations, and approvals, and any other
requirements and conditions precedent with respect to such consents, waivers,
authorizations and approvals.

          (h) TRANSFER TAXES. All necessary sales, use and transfer tax reports
and related instruments required to be filed with any Governmental Authority in
connection with the transfer to the Operating Partnership of the Interests and
Westboy Interests shall have been prepared by the BLC Parties, and payment of or
provisions for any amounts due to any Governmental Authority in connection
herewith shall have been made by the BLC Parties.

                                   ARTICLE 7

                         REPRESENTATIONS AND WARRANTIES

     7.1 REPRESENTATIONS AND WARRANTIES OF THE BLC PARTIES. In order to induce
the BMC Parties to carry out the transactions contemplated by this Agreement,
the REIT and the Operating Partnership, jointly and severally, make the
following representations and warranties to the BMC Parties:

          (a) ORGANIZATION, GOOD STANDING AND AUTHORITY OF THE REIT. The REIT is
a corporation, duly organized, validly existing and in good standing under the
laws of the State of Ohio, is duly qualified to do business in all jurisdictions
where such qualification is necessary to carry on its business as now conducted,
except where failure to so qualify would not interfere in any material respect
with the ability of the REIT to consummate any of the transactions contemplated
in this Agreement, and the REIT is authorized to consummate the transactions
contemplated hereby, to fulfill all of its respective obligations hereunder and
under all documents contemplated hereunder to be executed by the REIT and to
execute and deliver this Agreement, the other Transaction Documents and all
documents contemplated hereunder and thereunder to which it is a party, and to
perform all of its respective obligations hereunder and thereunder. The REIT has
delivered to the BMC Parties true, correct and complete copies of the articles
of incorporation of the REIT and the code of regulations of the REIT.

          (b) ORGANIZATION, FULL FORCE AND EFFECT AND AUTHORITY OF THE OPERATING
PARTNERSHIP. The Operating Partnership is a limited partnership, duly organized,
validly existing and in full force and effect under the laws of the State of
Ohio, is duly qualified to do business in all jurisdictions where such
qualification is necessary to carry on its business as now conducted, except
where failure to so qualify would not interfere in any material respect with the
ability of the Operating Partnership, the REIT or, with regard to the Management
Agreements, the Lessees to complete any of the transactions contemplated in this
Agreement or to issue the OP Units and comply with their terms or materially and
adversely affect the business, operations, financial




                                      -16-


conditions or assets of the Operating Partnership or any of the Lessees,
determined either (i) without giving effect in whole or in part to the
transactions contemplated herein, or (ii) after giving such effect (any such
interference or adverse effect, a "BLC MATERIAL ADVERSE EFFECT"), and the
Operating Partnership is authorized to consummate the transactions contemplated
hereby and under any of the Transaction Documents to which it is a party and to
fulfill all of its respective obligations hereunder and thereunder and under all
documents contemplated hereunder and thereunder to be executed by the Operating
Partnership, and has all necessary power to issue the OP Units and to execute
and deliver this Agreement and the other Transaction Documents to which it is a
party all documents contemplated hereunder and thereunder to be executed by the
Operating Partnership and to perform all of its respective obligations hereunder
and thereunder. The Operating Partnership has delivered to the BMC Parties true,
correct and complete copies of the OP Partnership Agreement and the certificate
of limited partnership of the Operating Partnership.

          (c) THE BLC PARTIES' AUTHORIZATION AND BINDING EFFECT. This Agreement
and the other Transaction Documents have been, and all documents contemplated
hereunder and thereunder to be executed by or at the direction of the Operating
Partnership and/or the REIT, when executed and delivered will have been, duly
authorized and approved by all requisite partnership or corporate action on the
part of the Operating Partnership and the REIT and each is, or will be, upon
execution and delivery, as applicable, a legal, valid and binding obligation of
the Operating Partnership and/or the REIT, as the case may be, enforceable
against each such party in accordance with each of its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors' rights generally and to general
principles of equity (including concepts of materiality, reasonableness, good
faith and fair dealing), regardless of whether considered in a proceeding in
equity or at law. Neither the execution and delivery of this Agreement, the
other Transaction Documents or any document contemplated hereunder and
thereunder to be executed by or at the direction of the Operating Partnership or
the REIT, nor the issuance of the OP Units and performance of the obligations of
the Operating Partnership or the REIT or the Lessees hereunder or thereunder,
will (i) result in the violation of any provision of the OP Partnership
Agreement, the articles of limited partnership of the Operating Partnership or
the certificate of incorporation or code of regulations of the REIT or the
Lessee Organizational Documents, or (ii) conflict with any order or decree of
any court or governmental instrumentality of any nature by which the Operating
Partnership or the REIT is bound or to which it is subject.

          (d) THE LESSEES AUTHORIZATION AND BINDING EFFECT. The Management
Agreements and all documents contemplated thereunder to be executed by the
Lessees, when executed and delivered, will have been duly authorized by all
requisite corporate action on the part of each of the Lessees and each is, or
will be, upon execution and delivery, a legal, valid and binding obligation of
each such Lessee, enforceable in accordance with its respective terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors' rights generally and to general
principles of equity (including concepts of materiality, reasonableness, good
faith and fair dealing), regardless of whether considered in a proceeding in
equity or at law. Neither the execution and delivery of the Management
Agreements or any document contemplated thereunder to be executed by the Lessees
nor performance of the obligations of the Lessees thereunder, will result in the
violation





                                      -17-


of any provision of the OP Partnership Agreement, the articles of limited
partnership of the Operating Partnership or the certificate of incorporation or
code of regulations of the REIT.

          (e) CONFLICTING AGREEMENTS AND OTHER MATTERS. The execution, delivery
and performance of this Agreement and the other Transaction Documents by the
REIT and the Operating Partnership (and the Lessees, solely with respect to
performance of obligations after the date hereof) and fulfillment of and
compliance with the terms and provisions hereof and thereof, the issuance of the
OP Units to be issued to JABO pursuant to this Agreement, and the issuance of
the REIT Shares upon redemption, will not (i) violate any provision of any law
presently in effect having applicability to the REIT or the Operating
Partnership or any of their properties, except such violations as could not
reasonably be expected to have a BLC Material Adverse Effect, (ii) conflict with
or result in a breach of or constitute a default under the OP Partnership
Agreement, as amended by the OP Partnership Amendment, charter or bylaws or any
other organizational document of either the REIT or the Operating Partnership,
(iii) require any consent, approval (other than shareholder approval of the
issuance of REIT Shares upon redemption of the OP Units issued to JABO pursuant
to this Agreement) or notice (not received and/or given prior to the Closing)
under, or conflict with or result in a breach of, constitute a default or
accelerate any right under, any note, bond, mortgage, license, indenture or loan
or credit agreement, or any other agreement or instrument, to which the REIT or
the Operating Partnership is a party or by which any of its respective
properties is bound, (iv) require any of the BLC Parties to obtain any consent,
approval or action of, or make any filing with or give any notice to, any
Governmental Authority or any other Person, (v) violate any order or decree of
any court, arbitrator or other Governmental Authority against or binding upon
any of the BLC Parties or, to the Actual Knowledge of the REIT or the Operating
Partnership, any of its assets, or (vi) result in, or require the creation or
imposition of, any lien upon or with respect to any of the Interests, other than
as contemplated herein, except such consents, approvals, notices, conflicts,
breaches, defaults, results or requirements as could not reasonably be expected
to have a BLC Material Adverse Effect or impair or interfere with consummation
of the transactions contemplated herein. In addition, to each of the BLC
Parties' Actual Knowledge, excluding facts or circumstances generally affecting
the lodging industry, no facts or circumstances exist that, individually or in
the aggregate, could reasonably be expected to have a BLC Material Adverse
Effect or impair or interfere in any material respect with the consummation of
the transactions contemplated herein.

          (f) LITIGATION, PROCEEDING, ETC. Except to the extent set forth in
SCHEDULE 7.1(f)(i), there is no action, suit, notice of violation, proceeding or
investigation pending or, to the Actual Knowledge of the REIT and the Operating
Partnership, threatened in writing against or affecting the REIT or the
Operating Partnership or any of their respective properties before or by any
Governmental Authority which (i) challenges the legality, validity or
enforceability of the transactions contemplated herein or of any of the
documents relating to the transactions contemplated herein, or (ii) could
(individually or in the aggregate) reasonably be expected to have a BLC Material
Adverse Effect or (iii) would (individually or in the aggregate) impair the
ability of either the REIT or the Operating Partnership to perform fully on a
timely basis any obligations which it has under any of the documents relating to
the transactions contemplated herein. Except to the extent set forth in SCHEDULE
7.1(f)(ii), none of the BLC Parties have received written notice or have Actual
Knowledge that it is (x) in default under or in violation of any indenture, loan
or credit agreement or any other agreement or instrument to which any of the




                                      -18-


BLC Parties is a party or by which the BLC Parties or any Property are bound,
(y) in violation of any order of any Governmental Authority, or (z) in violation
of any law, in each case of (x)-(z), which could reasonably be expected to (1)
adversely affect the legality, validity or enforceability of the documents
relating to the transactions contemplated herein, (2) adversely and materially
impair any of the BLC Parties' ability or obligation to perform fully on a
timely basis any obligation which it has under the documents relating to the
transactions contemplated herein, or (3) have any BLC Material Adverse Effect.

          (g) GOVERNMENTAL CONSENTS, ETC. Except as may be required under any
federal or applicable state securities laws in connection with the performance
by the BLC Parties of their obligations under the OP Partnership Agreement with
respect to certain registration rights granted thereunder and assuming the
accuracy of the representations and warranties of, and the performance of the
agreements of, the BMC Parties under this Agreement and any other Transaction
Document, no authorization, consent, approval, waiver, license, qualification or
formal exemption from, nor any filing, declaration, qualification or
registration with, any Governmental Authority or any securities exchange is
required in connection with (a) the execution, delivery or performance by the
BLC Parties of this Agreement and any other Transaction Document, or (b) the
issuance of the OP Units pursuant to this Agreement. At the Closing Date, the
BLC Parties will have made all filings and given all notices to Governmental
Authorities and obtained all necessary registrations, declarations, approvals,
orders, consents, qualifications, franchises, certificates, permits and
authorizations from any Governmental Authorities, to own or lease its properties
and to conduct its businesses as currently owned, leased or conducted, or as
contemplated hereby, except where failure to do so could not reasonably be
expected to have a BLC Material Adverse Effect.

          (h) COMPLIANCE WITH LAWS.

               (i) None of the BLC Parties is in violation of any law,
     regulation, order or decree of any Governmental Authority, court order,
     decision, ruling, order or award of any arbitration other than a violation
     which, individually or in the aggregate with other such violations, would
     not impair or interfere in any material respect with the BLC Parties'
     ability to consummate the transactions contemplated herein or have a BLC
     Material Adverse Effect. None of the BLC Parties has received any written
     notice of violation or claimed violation of any such law, regulation or
     decree, or pending regulatory proceeding, action or investigation with
     respect thereto, or any written threat by any Governmental Authority to
     take regulatory action against any of the BLC Parties or any of the
     Properties by reason of any such violation or claimed violation other than
     such of the foregoing as, individually or in the aggregate, would not
     impair or interfere in any material respect with the BLC Parties' ability
     to consummate the transactions contemplated herein or have a BLC Material
     Adverse Effect.

               (ii) Except as set forth on SCHEDULE 7.1(h) hereto, no BLC Party
     has Actual Knowledge or has received any written notice within the past
     twelve (12) months from any Governmental Authority having jurisdiction over
     any of the BLC Parties of any violation of any employment or other
     regulatory law, order, regulation or requirement that remains uncured and
     which, individually or in the aggregate with other such violations which
     remain uncured, would impair or interfere in any material respect with




                                      -19-


     the BLC Parties' ability to consummate the transactions contemplated herein
     or have a BLC Material Adverse Effect.

          (i) CAPITALIZATION.

               (i) OP UNITS AND PARTNERSHIP UNITS. The capitalization of the
     Operating Partnership is as set forth in EXHIBIT A of the OP Partnership
     Agreement. As of the date hereof, an aggregate of 16,681,804 Partnership
     Units are issued and outstanding, of which none are 1999-A Preferred Units
     and 16,681,804 are Partnership Units. The "conversion factor" as defined in
     the OP Partnership Agreement equals one (1) and prior to the date hereof no
     event has occurred which could cause it to be changed. There are no
     restrictions on the transfer of the OP Units to be issued hereunder other
     than those contained in the OP Partnership Agreement (as amended by the OP
     Partnership Amendment) or those arising out of federal and applicable state
     securities laws. All currently issued and outstanding Partnership Units
     were, and all of the OP Units to be issued in connection with the
     transactions contemplated herein are duly authorized and validly issued in
     accordance with the terms of the OP Partnership Agreement and in compliance
     with federal and applicable state securities laws, and, are fully paid and
     non-assessable with no pre-emptive rights and the OP Units to be issued in
     connection with the transactions contemplated herein will be issued upon
     the terms provided in the OP Partnership Agreement, as the same is to be
     amended as permitted or required hereunder. Except as set forth on SCHEDULE
     7.1(i)(a) and except for the OP Units to be issued pursuant to this
     Agreement, as of the date hereof, there are no outstanding subscriptions,
     options, warrants, preemptive or other rights or other security interests
     or other arrangements or commitments obligating the Operating Partnership
     to issue any OP Units or any other security interests, or to acquire or
     redeem any of them. Except as described on SCHEDULE 7.1(i)(a), there are no
     obligations to register any OP Units for any member of the Operating
     Partnership for trading. At the Closing, upon receipt of the Interests and
     Westboy Interests being contributed in exchange for OP Units, the Operating
     Partnership will issue the OP Units to be issued hereunder free and clear
     of all liens other than those suffered or permitted or granted by the BMC
     Parties and, as of the Closing, JABO will be admitted as a limited partner
     of the Operating Partnership. The issuance of the OP Units to JABO at the
     Closing will not require any approval or consent of any Person, except any
     such approval as shall have been obtained on or prior to the date hereof.
     Assuming each of the BMC Parties is either an "accredited investor" as
     defined in Rule 501 under the Securities Act or a person who is not an
     accredited investor but was advised by a qualified purchaser's
     representative (and there are no more than thirty-five (35) such
     non-accredited investors), the issuance of the OP Units hereunder is exempt
     from registration under the Securities Act and the applicable state
     securities laws.

               (ii) REIT SHARES. The SEC Documents set forth (i) the authorized
     capital shares of the REIT, and (ii) for each class and series of capital
     stock of the REIT, the total number of options and warrants to acquire such
     capital stock and any commitments to issue or grant any of the foregoing.
     As of December 31, 2001, the total number of shares of such capital shares
     outstanding is 17,390,690, of which none are preferred shares and
     17,390,690 are REIT Shares. All of the outstanding REIT Shares are duly and
     validly issued, fully paid and non-assessable and not subject to any





                                      -20-


     preemptive rights. Except as set forth on SCHEDULE 7.1(i)(b) and except for
     REIT Shares that may be issued upon redemption of the OP Units issued under
     this Agreement as Consideration, as of the date hereof, there are no
     outstanding subscriptions, options, warrants, preemptive or other rights or
     other security interests or other arrangements or commitments obligating
     the REIT to issue any REIT Shares, any other shares of capital stock or any
     other security interests, or to acquire or redeem any of them. Except as
     described on SCHEDULE 7.1(i)(b), there are no obligations to register for
     trading any REIT Shares or other equity interests in the REIT for any
     person. The REIT Shares to be issued upon redemption of the OP Units issued
     herein as Consideration will be issued free and clear of all liens other
     than those suffered or permitted or granted by the BMC Parties and the
     issuance of such REIT Shares to JABO will not require any approval or
     consent of any Person, except for shareholder approval required for the
     issuance of over 1% of the REIT's capital stock at any one instance,
     assuming such issuance were to occur on the Closing Date. For the purposes
     hereof, "SEC DOCUMENTS" shall mean all reports, schedules, forms,
     statements, proxy information and solicitation materials and other
     documents required by the Securities Act or the Securities Exchange Act of
     1934, as amended, or the rules or regulations promulgated thereunder, filed
     by the REIT in each case in the form and with the substance prescribed by
     either such act or such rules or regulations, including, without limitation
     the most recent filings by the REIT, which were made on November 14, 2001.

     7.2 REPRESENTATIONS AND WARRANTIES OF THE BMC PARTIES. In order to induce
the BLC Parties to carry out the transactions contemplated by this Agreement, as
of the date of this Agreement, the BMC Parties represent and warrant to and
agree with each of the BLC Parties, as follows:

          (a) ORGANIZATION, GOOD STANDING AND AUTHORITY; BINDING EFFECT.

               (i) BMC is a limited liability company duly organized, validly
     existing and in good standing under the laws of the State of Ohio, is duly
     qualified to do business in all jurisdictions where such qualification is
     necessary to carry on its business as now conducted, except where failure
     to so qualify would not interfere in any material respect with the ability
     of BMC to consummate any of the transactions contemplated in this
     Agreement.

               (ii) JABO is a limited liability company duly organized, validly
     existing and in good standing under the laws of the State of Delaware, is
     duly qualified to do business in all jurisdictions where such qualification
     is necessary to carry on its business as now conducted, except where
     failure to so qualify would not interfere in any material respect with the
     ability of JABO to complete any of the transactions contemplated in this
     Agreement.

               (iii) BMC owns 99% of the membership interests in JABO and is the
     managing member of JABO. The John E. Boykin 1997 Amended and Restated
     Revocable Trust Indenture, dated November 19, 1997, owns 0.4615% of the
     membership interests in JABO. The Robert W. Boykin Second 1997 Amended and
     Restated




                                      -21-


     Revocable Trust Indenture, dated July 23, 1997, owns 0.5385% of the
     membership interests in JABO.

               (iv) Each of the BMC Parties is authorized to consummate the
     transactions contemplated hereby, to fulfill all of their respective
     obligations hereunder and under all documents contemplated hereunder to be
     executed by the BMC Parties and to execute and deliver this Agreement and
     the other Transaction Documents and all documents contemplated hereunder
     and thereunder to be executed by any of the BMC Parties, and to perform all
     of its respective obligations hereunder and thereunder. The BMC Parties
     have delivered to the BLC Parties true, correct and complete copies of the
     certificate of formation of BMC and JABO and the operating agreements of
     BMC and JABO.

               (v) JABO has the power to, and is duly authorized and otherwise
     duly qualified to, purchase and hold securities such as Partnership Units
     and common shares of the REIT.

               (vi) This Agreement and the other Transaction Documents have
     been, and all documents contemplated hereunder and thereunder to be
     executed by the BMC Parties, when executed and delivered will have been,
     duly authorized and approved by all necessary action of BMC or JABO, as
     applicable, and are, or will be upon execution and delivery, a legal, valid
     and binding obligation of each such party as the case may be, enforceable
     against each party in accordance with its terms, subject to applicable
     bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
     other similar laws relating to or affecting creditors' rights generally and
     to general principles of equity (including concepts of materiality,
     reasonableness, good faith and fair dealing), regardless of whether
     considered in a proceeding in equity or at law.

               (vii) Except to the extent set forth in SCHEDULE 7.2(a), the
     execution, delivery, and performance by each of the BMC Parties of this
     Agreement and each of the Transaction Documents and the consummation of the
     transactions contemplated hereby and thereby (including the transfer of the
     Interests and the Westboy Interests to the Operating Partnership) will not
     (A) subject to receipt of the consents and approvals described in clause
     (B), violate any provision of the governing documents of any of the BMC
     Parties or any Lessee Organizational Documents, except where failure to do
     so would not interfere in any material respect with the ability of the BMC
     Parties or the Lessees (other than with respect to the Management
     Agreements) to complete any of the transactions contemplated in this
     Agreement or any other Transaction Document and comply with their terms or
     materially and adversely affect the business, operations, financial
     condition or assets of the BMC Parties or the Lessees, determined either
     (i) without giving effect in whole or in part to the transactions
     contemplated herein, or (ii) after giving such effect, (B) require any of
     the BMC Parties to obtain any consent, approval, or action of, or make any
     filing with or give any notice to, any Governmental Authority or any other
     Person, (C) conflict with, result in the breach of or constitute a default
     under any lease, note, mortgage, or other binding agreement to which any of
     the BMC Parties, any Lessee or Westboy is a party or by or to which any of
     the BMC Parties, Westboy or any of the Lessees may be bound, (D) violate
     any order or decree of any




                                      -22-


     court, arbitrator or other Governmental Authority against or binding upon
     any of the BMC Parties or any of the Lessees or, to the Actual Knowledge of
     BMC, any of the Properties, (E) violate any law or regulation of any
     Governmental Authority presently in effect to which any of the BMC Parties
     or any of the Lessees is subject, or (F) result in, or require the creation
     or imposition of, any lien upon or with respect to any of the Interests,
     other than as contemplated herein; except, in the case of the preceding
     clauses (B), (C), (D), (E), and (F), where the failure to obtain a consent,
     approval or action or to make any filing where the occurrence of such a
     conflict, breach, default, violation, results or requirements individually
     or in the aggregate, would not have a material adverse effect on the
     business, results of operations or financial operation of (x) a Lessee
     and/or its related Property (a "PROPERTY MATERIAL ADVERSE EFFECT"), or (y)
     Westboy or the Westboy Properties on an aggregate basis (a "WESTBOY
     MATERIAL ADVERSE EFFECT") or impair or interfere in any material respect
     with the consummation of the transactions contemplated herein. In addition,
     to the Actual Knowledge of the BMC Parties, excluding facts or
     circumstances generally affecting the lodging industry, no facts or
     circumstances exist that, individually or in the aggregate, could
     reasonably be expected to have a Property Material Adverse Effect or impair
     or interfere in material respect with the consummation of the transactions
     contemplated herein.

          (b) TITLE TO INTERESTS AND WESTBOY INTERESTS.

               (i) The Interests have been duly authorized and validly issued in
     accordance with the constituent organizational documents of the issuers
     thereof and applicable law. JABO, immediately preceding the Closing, will
     own 100% of the Interests to be contributed, free and clear of all rights,
     liens, claims and encumbrances other than claims or encumbrances arising
     pursuant to the organizational documents of the relevant issuer of those
     Interests and claims arising pursuant to this Agreement, and subject to
     restrictions on transfer under federal and state securities laws. Neither
     BMC nor JABO has pledged any of the Interests or consented to the pledge or
     encumbrance of any of the Interests.

               (ii) The Westboy Interests have been duly authorized and validly
     issued in accordance with the articles of organization and operating
     agreement of Westboy and applicable law. JABO, immediately prior to the
     Closing, will own 100% of the Westboy Interests to be contributed, and are
     free and clear of all rights, liens, claims and encumbrances other than
     claims or encumbrances arising pursuant to the articles of organization or
     operating agreement of Westboy and applicable law and pursuant to this
     Agreement and restrictions on transfer under federal and state securities
     laws. Neither BMC nor JABO has pledged any of the Westboy Interests or
     consented to the pledge or encumbrance of any of the Westboy Interests.

               (iii) The BMC Operating Agreement, the JABO Operating Agreement,
     and the Lessee Organizational Documents are described on SCHEDULE 7.2(b)
     attached hereto, and, prior to the date hereof, a true, correct and
     complete copy of the Lessee Organization Documents have been delivered to
     the Operating Partnership or its counsel. The BMC Operating Agreement, the
     JABO Operating Agreement and the Lessee Organizational Documents are in
     full force and effect.




                                      -23-


          (c) LITIGATION, PROCEEDING, ETC. There is no action, suit, notice of
violation, or proceeding or, to the Actual Knowledge of the BMC Parties,
investigation pending or threatened in writing against any of the BMC Parties,
any of the Lessees or Westboy before or by any Governmental Authority which (i)
challenges the legality, validity or enforceability of the transactions
contemplated herein or of any of the documents relating to the transactions
contemplated herein, or (ii) could (individually or in the aggregate) reasonably
be expected to have a Property Material Adverse Effect or a Westboy Material
Adverse Effect, or (iii) would (individually or in the aggregate) impair the
ability of the BMC Parties to perform fully on a timely basis any obligations
which it has under any of the documents relating to the transactions
contemplated herein, other than those which, individually or in the aggregate
would neither impair or interfere in any material respect with BMC's ability to
consummate the transactions contemplated herein nor have a Property Material
Adverse Effect or a Westboy Material Adverse Effect. None of the BMC Parties has
received written notice or has Actual Knowledge that it is (x) in default under
or in violation of any indenture, loan or credit agreement or any other
agreement or instrument to which it, Westboy or any Lessee is a party or by
which any of the BMC Parties, Westboy, any Lessee or any Property are bound, (y)
in violation of any order of any Governmental Authority, or (z) in violation of
any law, in each case of (x)-(z), which could reasonably be expected to (1)
adversely affect the legality, validity or enforceability of the documents
relating to the transactions contemplated herein, (2) adversely and materially
impair any of the BMC Parties' ability or obligation to perform fully on a
timely basis any obligation which it has under the documents relating to the
transactions contemplated herein, or (3) have any Property Material Adverse
Effect or any Westboy Material Adverse Effect.

          (d) COMPLIANCE WITH LAWS.

               (i) None of the BMC Parties, Westboy or Lessees is in violation
     of any law, regulation, order or decree of any Governmental Authority,
     court order, decision, ruling, order or award of any arbitration other than
     a violation which, individually or in the aggregate with other such
     violations, would not impair or interfere in any material respect with
     BMC's ability to consummate the transactions contemplated herein or have a
     Property Material Adverse Effect or a Westboy Material Adverse Effect.
     Neither BMC, nor Westboy, nor any Lessee has received any written notice of
     violation or claimed violation of any such law, regulation or decree, or
     pending regulatory proceeding, action or investigation with respect
     thereto, or any written threat by any Governmental Authority to take
     regulatory action against BMC or any of the Properties by reason of any
     such violation or claimed violation other than such of the foregoing as,
     individually or in the aggregate, would not impair or interfere in any
     material respect with the BMC Parties' ability to consummate the
     transactions contemplated herein or have a Property Material Adverse Effect
     or a Westboy Material Adverse Effect.

               (ii) Except as set forth on SCHEDULE 7.2(d) hereto, neither BMC,
     nor Westboy, nor any Lessee has Actual Knowledge or has received any
     written notice within the past twelve (12) months from any Governmental
     Authority having jurisdiction over any of the BMC Parties, Westboy or the
     Lessees of any violation of any employment or other regulatory law, order,
     regulation or requirement relating to the management of the Properties that
     remains uncured and which, individually or in the aggregate with other such
     violations which remain uncured, would impair or interfere in any material
     respect




                                      -24-


     with the BMC Parties' ability to consummate the transactions contemplated
     herein or have a Property Material Adverse Effect or a Westboy Material
     Adverse Effect.

          (e) PERMITS. Each of the Lessees and Westboy have all material permits
that are necessary for the use, operation and licensing of the management of
their respective Properties and are not in material violation of any such
permits.

          (f) INSOLVENCY. There are no attachments, executions or assignments
for the benefit of creditors, or voluntary or involuntary proceedings in
bankruptcy, or under any other debtor relief laws, pending or, to the Actual
Knowledge of BMC, threatened in writing against any of the BMC Parties, the
Lessees or Westboy.

          (g) LESSEES AND WESTBOY.

               (i) each of the Lessees and Westboy is duly organized and validly
     existing under the laws of its jurisdiction of organization and has the
     power and authority to carry on its business as now being conducted;

               (ii) each Lessee and Westboy is duly qualified to do business and
     is in good standing in each jurisdiction in which the nature of its
     business or the ownership and/or leasing of its properties makes such
     qualification necessary, other than in such jurisdictions where the failure
     to be so qualified or licensed, individually or in the aggregate, could not
     reasonably be expected to have a Property Material Adverse Effect or a
     Westboy Material Adverse Effect;

               (iii) none of the Lessees or Westboy has conducted or currently
     conducts any business or has owned or owns any assets other than cash and
     investment securities and direct or indirect leasehold interests in a
     Property and assets relating thereto;

               (iv) SCHEDULE 7.2(g)(iv) attached hereto identifies for each
     Lessee and Westboy the relevant certificate of formation, the relevant
     operating agreement, as applicable, and in each case all amendments thereto
     through the date of this Agreement, and the BMC Parties have delivered to
     the Operating Partnership complete and correct copies of each of such
     instruments, agreements and amendments;

               (v) none of the Lessees or Westboy is in breach of, or in default
     under, the constituent organizational documents of such entity, no member
     of any Lessee or Westboy is in breach of, or default under, the
     organizational documents of such Lessee or Westboy and no event has
     occurred that, with the giving of notice or the passage of time, or both,
     would constitute a default under the constituent organizational documents
     of any of the Lessees or Westboy, except for such breach or violation that
     would not result in a Property Material Adverse Effect or a Westboy
     Material Adverse Effect;

               (vi) Except as identified on SCHEDULE 7.2(g)(vi) no member or
     other affiliate of any of the Lessees or Westboy has made a loan to such
     Lessee or Westboy that is outstanding on the date hereof and none of the
     BMC Parties has any outstanding capital commitments to any of the Lessees
     or Westboy, except for the Westboy Note,




                                      -25-


     which the Operating Partnership will assume pursuant to the Westboy Note
     Assumption as contemplated by this Agreement.

               (vii) none of the Lessees or Westboy is in default under, or in
     breach of, any of the Percentage Leases or Space Leases, and to the Actual
     Knowledge of the BMC Parties no event has occurred which, with the giving
     of notice or the passage of time or both, would constitute a default under
     any of the Percentage Leases or Space Leases, which in each case could
     reasonably be expected to constitute a Property Material Adverse Effect or
     a Westboy Material Adverse Effect, as the case may be.

          (h) OPERATING CONTRACTS. Except as set forth on SCHEDULE 7.2(h)
("OPERATING CONTRACTS"), there are no management, service, operating, listing,
brokerage, supply and maintenance agreements, equipment leases, or other
contracts or agreements between Westboy or any Lessee, or any of their
Affiliates and any other party relating to operations at the Property leased by
it as of the date hereof, other than those that (i) involve total payment of not
more than $25,000 per annum or are terminable by the relevant Lessee or Westboy
without a penalty in excess of $1,000 upon six (6) months prior written notice
or less or (ii) are terminable by the relevant Lessee or Westboy without penalty
upon the sale of the Property. Each of the Operating Contracts is in full force
and effect and, except as set forth on SCHEDULE 7.2 (h), has not been amended,
modified or supplemented.

          (i) FINANCIAL STATEMENTS. The financial statements for Westboy as of
and for the year ended December 31, 2000, which were previously made available
to the BLC Parties, were prepared in accordance with GAAP, and, except as
disclosed on SCHEDULE 7.2(i), to the Actual Knowledge of the BMC Parties, fairly
present in all material respects and in accordance with applicable accounting
principles the financial position and results of operations of Westboy at or as
of the date or period specified therein. Since December 31, 2000, except as set
forth on SCHEDULE 7.2(I), Westboy has conducted its business in the ordinary
course consistent in all material respects with past practice.

          (j) NO OTHER LIABILITIES. Except as described in any of the
Transaction Documents, or any exhibits or schedules hereto and thereto or as
otherwise disclosed in writing to the BLC Parties, with the exception of the
applicable Lease, none of the Lessees has incurred any material liability,
whether absolute, accrued, contingent or otherwise. To the Actual Knowledge of
the BMC Parties, Westboy has not incurred any liability, whether absolute,
accrued, contingent or otherwise that could reasonably be expected to result in
a Westboy Material Adverse Effect, except as set forth in the financial
statements for Westboy, which were previously made available to the BLC Parties,
and except for liabilities incurred in the ordinary course of business or that
are not required by GAAP consistently applied to be reflected on such financial
statements.

          (k) EMPLOYEES. Neither Westboy nor any Lessee has any employees or
maintains any "EMPLOYEE BENEFIT PLAN" as that term is defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended, and neither
Westboy nor any of the Lessees has ever had any employees or maintained any such
Employee Benefit Plan.




                                      -26-


          (l) NO FOREIGN OWNERS. None of the BMC Parties, Lessees or Westboy is
or will become, directly or indirectly, a Foreign Owner (as hereinafter defined)
in the Operating Partnership as a result of the transactions contemplated by
this Agreement. "FOREIGN OWNER" as used herein, means a foreign person or a
person that is directly or indirectly owned, in whole or in part, by a foreign
person as determined in accordance with Section 897(h)(4) of the Internal
Revenue Code of 1986 as amended and the regulations promulgated thereunder.

          (m) PRIVATE OFFERING. None of the BMC Parties, nor any Person acting
on their behalf has taken, or will prior to the applicable Closing Date take,
any action that could reasonably be expected to subject the OP Units issued on
such Closing Date to the registration requirements of Section 5 of the
Securities Act of 1933, as amended.

          (n) PARTNERSHIP STATUS; OWNERSHIP OF CORPORATIONS. JABO is treated as
a partnership and the Lessees and Westboy are treated as a single-member limited
liability companies that are disregarded as entities separate from their
respective owners, for federal income tax purposes. Neither JABO, any the
Lessees nor Westboy have made any election to be taxed as a corporation for
federal income tax purposes. None of the Lessees owns any of the stock of any
entity that is treated as a corporation or an association taxed as a corporation
for federal income tax purposes.

          (o) INVESTMENT REPRESENTATIONS. JABO, for itself, and for each member
or other equity holder of JABO, hereby acknowledges that it (i) has been given
full and complete access to the Operating Partnership and its management in
connection with this Agreement and the transactions contemplated hereby, (ii)
has had the opportunity to review all documents relevant to its decision to
enter into this Agreement, and (iii) has had the opportunity to ask questions of
the Operating Partnership and its management concerning its investment in the
Operating Partnership and the transactions contemplated hereby. JABO, for itself
and for each member of JABO, acknowledges that it understands that the OP Units
to be purchased or received by it hereunder will not be registered under the
Securities Act in reliance upon the exemption afforded by Section 4(2) thereof
for transactions by an issuer not involving any public offering and will not be
registered or qualified under any applicable state securities laws. JABO
represents that (i) it is acquiring such OP Units for investment only and
without any view toward distribution thereof in violation of any applicable
securities or other laws, and it will not sell or otherwise dispose of such OP
Units except in compliance with the registration requirements or exemption
provisions of any applicable federal or state securities laws and in accordance
with the terms of such securities set forth in the OP Partnership Agreement,
(ii) its economic circumstances are such that it is able to bear all risks of
the investment in the Partnership Units for an indefinite period of time,
including the risk of a complete loss of its investment in the Partnership
Units, (iii) it has knowledge and experience in financial and business matters
sufficient to evaluate the risks of investment in the OP Units, and (iv) it has
consulted with its own counsel and tax advisor, to the extent deemed necessary
by it, as to all legal and taxation matters covered by this Agreement and has
not relied upon the Operating Partnership for any explanation of the application
of the various federal or state securities laws or tax laws with regard to its
acquisition of the OP Units. JABO further acknowledges and represents that it
has made its own independent investigation of the Operating Partnership and the
business proposed to be conducted by the Operating Partnership and that any
information relating thereto furnished to JABO was supplied by or on behalf of
the Operating Partnership.



                                      -27-


          (p) OWNERSHIP OF ASSETS. The Lessees have good right, title and
interest in and to the Assigned Property and to the leasehold interests in the
Percentage Leases, free and clear of all liens or encumbrances.

     7.3 SURVIVAL. The representations and warranties in this Article VII shall
survive the Closing for two (2) years following the Closing Date (the "GENERAL
SURVIVAL PERIOD"); provided, however, that the representations and warranties
set forth in Section 7.2(g)(vii) and Sections 7.2(c)(ii), 7.2(d), 7.2(e) and
7.2(j) to the extent they apply to a claim relating to the condition or
maintenance of the Properties shall survive the Closing for one (1) year
following the Closing Date (the "PROPERTY SURVIVAL PERIOD"), except for
representations and warranties regarding any Environmental Liabilities, which
shall survive until the expiration of the relevant statutes of limitation
applicable to the relevant Environmental Liabilities (the "ENVIRONMENTAL
LIABILITIES SURVIVAL PERIOD"; each of the Environmental Liabilities Survival
Period, the General Survival Period and Property Survival Period, a "SURVIVAL
PERIOD").

                                   ARTICLE 8

                                 INDEMNIFICATION

     8.1 OBLIGATION OF THE BLC PARTIES TO INDEMNIFY.

          (a) The BLC Parties hereby jointly and severally agree to indemnify,
defend and hold harmless each of the BMC Parties and their respective directors,
officers, employees, representatives, members, stockholders, partners, and
Affiliates (the "BMC INDEMNITEES") from and against all costs, liabilities,
damages and expenses (including, without limitation, reasonable attorneys' fees
and disbursements) imposed upon, incurred by (whether by way of judgment, award,
decree, settlement payment or otherwise) or suffered by any of the BMC Parties
by reason of any (i) breach or inaccuracy of any representation or warranty of
the BLC Parties contained in Section 7.1 or in any certificate delivered
pursuant to Section 5.3, (ii) breach of any covenant of the BLC Parties (by
them, or, with respect to actions taken after the Closing Date, by the Lessees)
and their Affiliates contained herein or in any Transaction Document, (iii) any
failure (by them or, with respect to actions taken after the Closing Date, by
the Lessees) to comply with the terms of any Transaction Document provided
hereunder or thereunder, including, without limitation, the failure to issue any
OP Units at the Closing as provided herein; or (iv) any Environmental
Liabilities for which BMC would have been indemnified under the terms of the
Lease as of the date hereof.

          (b) In addition, the BLC Parties, jointly and severally, agree to
indemnify, protect, defend, and hold each of the BMC Indemnities harmless from
and against any and all claims, causes of action, demands, obligations, losses,
damages, liabilities, judgments, costs and expenses (including, without
limitation, reasonable attorneys' fees, charges and disbursements) relating to
or arising in respect of (i) any liabilities, costs and charges in connection
with any of the liquor licenses for any of the Properties, including, without
limitation the costs involved in connection with the transfer of such licenses
to any of the BLC Parties or the Lessees or any payments or obligations to be
performed pursuant to such liquor licenses (whether or not assigned by BMC to a
Lessee) after the date hereof; (ii) any liabilities, costs and charges in
connection with any of the franchise license agreements for any of the
Properties, including,




                                      -28-


without limitation, the costs involved in connection with the transfer of such
franchise license agreements to any of the BLC Parties or the Lessees or any
payments to be made or obligations to be performed pursuant to such franchise
license agreements (whether or not assigned by BMC to a Lessee) after the date
hereof; and (iii) any obligations of BMC to Westboy pursuant to the Westboy
Note. Notwithstanding any of the foregoing provisions of this Section 8.1(b),
the BLC Parties shall have no obligation to indemnify the BMC Indemnitees with
respect to any matter for which any of the BLC Indemnitees is entitled to
indemnification pursuant to either the Management Agreements or this Agreement.

          (c) In the case of any claim asserted by a third party against the BMC
Indemnitees, including without limitation, any claim by a Governmental Authority
and any request by such Governmental Authority to audit or otherwise inquire
into or examine (an "INQUIRY") any matters as to which a claim might arise
hereunder, and for which the BLC Parties have agreed to indemnify the BMC
Indemnitees pursuant to Section 8.1(a) and (b), the BMC Indemnitees shall notify
the BLC Parties for the purpose of representing their collective interests in
the event of a claim against the BMC Indemnitees promptly after the BMC
Indemnitees have Actual Knowledge of any claim as to which indemnity may be
sought or as to any such Inquiry, and the BMC Indemnitees shall permit the BLC
Parties to assume the defense of any claim or any litigation resulting therefrom
or administer such Inquiry, provided, that, (i) counsel to the BLC Parties, who
shall conduct the defense of such claim or litigation or the administration of
such Inquiry, shall be reasonably satisfactory to the BMC Indemnitees, and the
BMC Parties may participate in such defense at their expense, and (ii) the
omission by the BMC Indemnitees to give notice as provided herein shall not
relieve the BLC Parties of their indemnification obligation under this Agreement
except to the extent that the BLC Parties are materially damaged as a result of
such failure to give such notice. The BLC Parties, in the defense of any such
claim or litigation, shall not, except with the consent of the BMC Parties (x)
consent to entry of any judgment or enter into any settlement that provides for
injunctive or other non-monetary relief affecting the BMC Indemnitees or that
does not include as a term thereof the giving by the claimant or plaintiff to
the BMC Indemnitees of an unconditional release from all liability with respect
to such claim or litigation, or (y) pursue any course of defense of any claim
subject to indemnification hereunder, if the BMC Parties shall reasonably and in
good faith determine that the conduct of such defense might be expected to
affect the BMC Parties in any material respect. In the event that the BMC
Parties shall reasonably and in good faith determine that any proposed
settlement of any claim subject to indemnification hereunder by the BLC Parties
might be expected to affect materially and adversely the BMC Parties or that the
BMC Parties may have available one or more defenses or counterclaims that are
inconsistent with one or more of those that may be available to the BLC Parties
in respect of such claims or litigation relating thereto, the BMC Parties shall
have the right at all times to take over and assume control over the settlement,
negotiations and litigation relating to any such claim at the sole cost of the
BLC Parties, provided, that, if the BMC Parties do so take over and assume
control, the BMC Parties shall not settle such claim or litigation without the
written consent of the BLC Parties, such consent not to be unreasonably
withheld, and the liability of the BLC Parties with respect to such claim or
litigation shall in no event exceed the amount the BLC Parties would have paid
in settlement thereof. In the event that the BLC Parties do not accept the
defense of any matter as above provided, the BMC Parties shall have the full
right to defend against any such claim or demand, and shall be entitled to
settle or agree to pay in full such claim or demand with the consent of the BLC
Parties, which shall not be unreasonably withheld. In any event, the BLC




                                      -29-


Parties and the BMC Parties shall cooperate fully, to the extent reasonably
required, in the defense of any action or claim subject to this Agreement and
the records of each shall be available to the other with respect to such
defense. Acceptance of the defense of any claim or litigation or of the
administration of any Inquiry by the BLC Parties shall be without prejudice to
the BLC Parties' right to assert at any time before or after accepting such
defense or administration that they are not obligated to provide indemnity,
either in whole or in part, with respect to such claim or litigation for which
such defense is accepted or which might subsequently arise from such Inquiry.

     8.2 OBLIGATION OF THE BMC PARTIES TO INDEMNIFY.

          (a) The BMC Parties hereby jointly and severally agree to indemnify,
defend and hold harmless each of the BLC Parties and their respective directors,
officers, employees, representatives, members, stockholders, partners, and
Affiliates (the "BLC INDEMNITEES") from and against all costs, liabilities,
damages and expenses (including, without limitation, reasonable attorneys' fees
and disbursements) imposed upon, incurred by (whether by way of judgment, award,
decree, settlement payment or otherwise) or suffered by the BLC Parties by
reason of any (i) breach or inaccuracy of any representation or warranty of BMC
contained in Section 7.2 or in any certificate delivered by BMC pursuant to
Section 5.2, (ii) breach of any covenant of BMC or its Affiliates contained
herein or in any Transaction Document, or (iii) any failure to comply with the
terms of any Transaction Document or any other document provided hereunder or
thereunder.

          (b) In the case of any claim asserted by a third party against the BLC
Indemnitees, including without limitation, any claim by a Governmental Authority
and any Inquiry and for which the BMC Parties have agreed to indemnify the BLC
Indemnitees pursuant to Section 8.2(a), the BLC Indemnitees shall notify the BMC
Parties for the purpose of representing their collective interests in the event
of a claim against the BLC Indemnitees promptly after the BLC Indemnitees have
Actual Knowledge of any claim as to which indemnity may be sought or as to any
such Inquiry, and the BLC Indemnitees shall permit the BMC Parties to assume the
defense of any claim or any litigation resulting therefrom or administer such
Inquiry, provided, that, (i) counsel to the BMC Parties, who shall conduct the
defense of such claim or litigation or the administration of such Inquiry, shall
be reasonably satisfactory to the BLC Indemnitees, and the BLC Parties may
participate in such defense at the expense of the BLC Parties, and (ii) the
omission by the BLC Indemnitees to give notice as provided herein shall not
relieve the BMC Parties of their indemnification obligation under this Agreement
except to the extent that the BMC Parties are materially damaged as a result of
such failure to give such notice. The BMC Parties, in the defense of any such
claim or litigation, shall not, except with the consent of the BLC Parties (x)
consent to entry of any judgment or enter into any settlement that provides for
injunctive or other non-monetary relief affecting the BLC Indemnitees or that
does not include as a term thereof the giving by the claimant or plaintiff to
the BLC Indemnitees of an unconditional release from all liability with respect
to such claim or litigation, or (y) pursue any course of defense of any claim
subject to indemnification hereunder, if the BLC Parties shall reasonably and in
good faith determine that the conduct of such defense might be expected to
affect materially and adversely the tax liability of the BLC Parties or ability
to conduct their business or adversely affect the use of the Properties in any
material respect. In the event that the BLC Parties shall reasonably and in good
faith determine that any proposed




                                      -30-


settlement of any claim subject to indemnification hereunder by the BMC Parties
might be expected to affect adversely the BLC Parties or that the BLC Parties
may have available one or more defenses or counterclaims that are inconsistent
with one or more of those that may be available to the BMC Parties in respect of
such claims or litigation relating thereto, the BLC Parties shall have the right
at all times to take over and assume control over the settlement, negotiations
and litigation relating to any such claim at the sole cost of BMC, provided,
that, if the BLC Parties do so take over and assume control, the BLC Parties
shall not settle such claim or litigation without the written consent of BMC,
such consent not to be unreasonably withheld, and the liability of the BMC
Parties with respect to such claim or litigation shall in no event exceed the
amount BMC would have paid in settlement thereof. In the event that the BMC
Parties do not accept the defense of any matter as above provided, the BLC
Parties shall have the full right to defend against any such claim or demand,
and shall be entitled to settle or agree to pay in full such claim or demand
with the consent of the BMC Parties, which shall not be unreasonably withheld.
In any event, the BMC Parties and the BLC Parties shall cooperate fully, to the
extent reasonably required, in the defense of any action or claim subject to
this Agreement and the records of each shall be available to the other with
respect to such defense. Acceptance of the defense of any claim or litigation or
of the administration of any Inquiry by the BMC Parties shall be without
prejudice to the BMC Parties' right to assert at any time before or after
accepting such defense or administration that they are not obligated to provide
indemnity, either in whole or in part, with respect to such claim or litigation
for which such defense is accepted or which might subsequently arise from such
Inquiry.

          (c) LIMITATIONS ON RECOVERY. Notwithstanding anything to the contrary
in this Article VIII or any other provision of this Agreement, it is expressly
understood and agreed by the parties that, without limiting or affecting any
other obligation of either party to defend and indemnify contained in this
Article VIII or otherwise in this Agreement, the BLC Parties shall not be
entitled to indemnification unless (A) the amounts to which the BLC Parties are
entitled for indemnification hereunder for all such breaches collectively
aggregate more than $250,000, it being understood and agreed that the BLC
Parties shall only be entitled to indemnification for amounts in excess of the
foregoing threshold, and (B) the BLC Parties have given the BMC Parties written
notice of such claim on or prior to the expiration of the relevant Survival
Period, it being understood and agreed that the BMC Parties shall have no
further liability under or in respect of such warranties and representations
after the expiration of such Survival Period, except to the extent of any breach
thereof of which the BLC Parties give the BMC Parties written notice on or prior
to the expiration of such Survival Period. Notwithstanding anything to the
contrary contained herein, in no event shall BMC be liable under this Article
VIII for any amount in excess of $1,000,000 with respect to claims for
indemnification for any single Property (the "PER PROPERTY LIABILITY CAP") and
$10,000,000 (the "LIABILITY CAP") in the aggregate for all claims for
indemnification thereunder, provided, however, that the Environmental
Liabilities will not be subject to either the Per Property Liability Cap or the
Liability Cap. Notwithstanding anything herein to the contrary, the BLC
Indemnitees shall not be entitled to any indemnification under this Agreement
with respect to any claim which is adjusted pursuant to Article IX herein. Any
such adjustments shall not be included in the calculation of either the Per
Property Liability Cap or the Liability Cap.

          (d) AVAILABLE REMEDIES. Notwithstanding anything herein to the
contrary, the parties hereto agree that their sole remedy with respect to the
matters addressed by Articles IV,




                                      -31-


VI, VII and VIII shall be the remedies provided in this Article VIII. Except to
the extent covered in this Agreement, the BLC Parties hereby release the BMC
Parties with respect to all obligations or liabilities, relating to matters or
events that occurred on or prior to the date hereof, under (i) the Percentage
Leases , and (ii) the Westboy Note.

     8.3 NET CLAIMS. Notwithstanding anything herein to the contrary, all claims
for indemnification under this Article VIII shall be net of (i) all insurance
proceeds received by the party seeking indemnification and (ii) the after-tax
cost of such claim.

                                   ARTICLE 9

                           APPORTIONMENTS AND PAYMENTS

     9.1 PAYMENTS - LESSEE PROPERTIES. The parties shall effect a cash
adjustment within five (5) days of their receipt of the Closing Statement, as
described in Section 9.3. Such cash adjustment shall be equal to the amount
representing the difference between the credits received by JABO pursuant to
Section 9.1(a) and the credits received by the Operating Partnership pursuant to
Section 9.1(b) (such amount to be referred to herein as the "NET CURRENT ASSETS
AND LIABILITIES AMOUNT"). To the extent the aggregate credits received by JABO
pursuant to Section 9.1(a) exceeds the aggregate credits received by the
Operating Partnership pursuant to Section 9.1(b), the Operating Partnership
shall pay JABO an amount equal to the Net Current Assets and Liabilities Amount;
and to the extent the aggregate credits received by the Operating Partnership
pursuant to Section 9.1(b) exceeds the aggregate credits received by JABO
pursuant to Section 9.1(a), JABO shall pay the Operating Partnership an amount
equal to the Net Current Assets and Liabilities Amount.

          (a) To the extent assigned by BMC to the Lessees (or held by BMC for
the Lessees' benefit under the Management Agreements), JABO shall receive a
credit for the following working capital assets used in the operation of the
Lessee Properties, calculated and accrued and valued as of the Cutoff Time
determined in accordance with GAAP, consistently applied:

               (i) The amount of all petty cash funds and cash in house banks;

               (ii) The book value of all bank deposits held in financial
     institutions for depository, merchant, credit card, payroll, disbursement
     or other purposes relating to the operation of the Lessee Properties, but
     excluding cash concentration or other corporate or pooled accounts of JABO;

               (iii) The net collectable value (determined after deducting a
     reserve for doubtful accounts consistent with prior practice) of trade
     accounts receivable and other accounts receivable relating to the ordinary
     operation of the Lessee Properties (i.e., guest ledger, city ledger, other
     trade accounts receivable and rents, leases and concessions receivable, but
     excluding JABO's or BMC's intercompany accounts receivable);

               (iv) The net book value of food, beverage, gift shop and other
     inventories (but excluding inventories of china, glassware, silverware,
     linen, consumable supplies, or other items not historically inventoried
     under BMC's accounting procedures);




                                      -32-


               (v) Prepaid expenses and assignable deposits and deposits made by
     BMC for the benefit of the Lessees; and

               (vi) Any other assets in connection with the Lessee Properties
     assigned by BMC to the Lessees on the date hereof, but excluding assets
     considered fixed assets or amortizable assets under GAAP.

          (b) To the extent assumed by the Lessees (or payable by BMC for the
Lessees' account under the Management Agreements), the Operating Partnership
shall receive a credit for the following working capital liabilities relating to
the operation of the Lessee Properties, calculated in accordance with GAAP
consistently applied and accrued and valued as of the Cutoff Time:

               (i) The amount of trade or other accounts payable at the Cutoff
     Time relating to the operation of the Lessee Properties, excluding amounts
     payable to JABO or its Affiliates;

               (ii) Advance payments (including obligations under gift
     certificates), if any, under bookings to the extent the bookings relate in
     whole or in part to a period after the Cutoff Time;

               (iii) All security and other deposits held by JABO as of the
     Cutoff Time with respect to Space Leases, personal property leases and
     contracts;

               (iv) Accrued expenses at the Cutoff Time relating to the
     operation of the Lessee Properties, including accrued rent under the
     Percentage Leases whereunder percentage rent is payable;

               (v) Accrued payroll and benefits (including vacation and holiday
     time, retirement plan contributions, and insurance, but excluding the
     matters addressed by Section 9.1(c) below) relating to the Lessee
     Properties' employees as of the Cutoff Time; and

               (vi) Any other liabilities and obligations assumed by the Lessees
     from BMC on the date hereof, provided, however, that any contingent
     liability shall be allocated the amount agreed upon by the parties or, if
     the parties are unable to reach an agreement, such contingent liability
     will not be allocated any amount until a final, non-appealable judgment or
     settlement is reached, and the control of any claim in connection thereof
     shall be managed as described in Section 8.2(b).

          (c) In addition to the payments provided for in (a) and (b) above,
JABO shall pay to the Operating Partnership the amount accrued for vacation
liabilities (calculated in accordance with GAAP consistently applied and accrued
and valued as of the Cutoff Time, but subject to adjustment as provided herein)
for employees at the Lessee Properties (the "ACCRUED VACATION TIME") in twelve
equal installments without interest, commencing on the first day of the calendar
month following the Cutoff Time, and continuing on the first day of each
calendar month thereafter until paid in full.



                                      -33-


     9.2 ADJUSTMENTS AND PRORATIONS - WESTBOY. The parties shall effect a cash
adjustment within 5 days of their receipt of the Closing Statement, as described
in Section 9.3. If the Westboy Member's Equity is an amount which is a larger
deficit than a $1,600,000 deficit, the difference between the Member's Equity
and negative $1,600,000 shall be paid by JABO to the Operating Partnership in
cash within five (5) days of the receipt of the Closing Statement, as described
in Section 9.3 herein. If the Westboy Member's Equity is determined to be a
smaller deficit than a $1,600,000 deficit or is determined to be a positive
amount, the difference between the Member's Equity and negative $1,600,000 shall
be paid by the Operating Partnership to JABO in cash within five (5) days of the
receipt of the Closing Statement, as described in Section 9.3 herein. Any
contingent liability shall be allocated the amount agreed upon by the parties
or, if the parties are unable to reach an agreement, such contingent liability
will not be allocated any amount until a final, non-appealable judgment or
settlement is reached, and the control of any claim in connection thereof shall
be managed as described in Section 8.2(b).

     9.3 SETTLEMENT PROCEDURES. JABO shall cause its accounting staff ("JABO'S
ACCOUNTANTS") to make such examinations and audits of the Properties, and of the
books and records of the Lessee Properties, Westboy and the Westboy Properties
as JABO's Accountants may deem necessary to make the adjustments and prorations
required under this Article 9. The Operating Partnership or its designated
representatives may be present at such examinations and audits of the Lessee
Properties. Based upon such audits and inventories, JABO's Accountants will
prepare and deliver to the Operating Partnership no later than twenty-five (25)
days after the Cutoff Time a closing statement (the "CLOSING STATEMENT"). The
Closing Statement shall contain JABO's calculation of the Net Current Assets and
Liabilities Amount, the Accrued Vacation Time and the Westboy Member's Equity
and shall be subject to the concurrence therewith of the Operating Partnership.
The amounts set forth on the Closing Statement shall be the basis upon which the
payments described in Sections 9.1 and 9.2 shall be made. Fifteen (15) months
after the Cutoff Time (the "WIND UP DATE"), the parties shall cause JABO's
Accountants to make a revised calculation of the Net Current Assets and
Liabilities and the Westboy Member's Equity (the "ADJUSTED CLOSING STATEMENT").
Either party shall pay the other any amounts due as a result of the Adjusted
Closing Statement, within five (5) days of the receipt thereof. The Adjusted
Closing Statement shall serve to adjust and correct the Closing Statement. If
the parties are unable to agree on the Closing Statement or the Adjusted Closing
Statement, then any undisputed amounts shall be paid as provided herein and the
parties shall submit the dispute to Arthur Andersen (the "INDEPENDENT
ACCOUNTANTS") not later than ten (10) days after the receipt of the Closing
Statement or the Adjusted Closing Statement by the parties and the determination
of the Independent Accountants, which shall be made within a period of fifteen
(15) days after such submittal by the parties, shall be conclusive and there
shall be no further adjustments to the Closing Statement or the Adjusted Closing
Statement. The fees and expenses of the Independent Accountants shall be paid
equally by the Operating Partnership and the BMC Parties. For purposes of
clarification, the Net Current Assets and Liabilities Amount, the Accrued
Vacation Time and the Westboy Member's Equity shall be calculated on the
Adjusted Closing Statement by taking into account facts known at the time of the
preparation of the Adjusted Closing Statement, which had they been known at the
time that the Closing Statement was prepared, would have changed the carrying
amount of any underlying asset or liability reflected on the Closing Statement,
or otherwise required that an amount be reflected on the Closing Statement, all
to be calculated in accordance with GAAP consistently applied and accrued and
valued as of the Cutoff Time.



                                      -34-


     9.4 HILTON CLAIMS. Notwithstanding anything to the contrary contained in
this Agreement, in the event that on or prior to the Wind Up Date Hilton asserts
any claim or claims against Westboy or Westboy asserts any claim or claims
(existing or otherwise) against Hilton (i) arising from or in connection with
the respective party's obligations under the existing management agreements
between Westboy and Hilton for the Westboy Properties, and (ii) relating (a)
only to the period prior to the Closing Date ("BMC HILTON CLAIMS") or (b) to
both the period prior to and after the Closing Date ("SHARED HILTON CLAIMS"),
then the parties agree, and shall cause their respective Affiliates, to
cooperate with each other to prosecute and defend such claims vigorously and to
take all steps reasonably necessary in connection therewith. The REIT shall have
sole control of the prosecution and defense of both the BMC Hilton Claims and
the Shared Hilton Claims, but shall keep BMC regularly informed with respect to
such prosecution or defense and consult with BMC on an ongoing basis with
respect thereto. Any BMC Hilton Claims or Shared Hilton Claims may only be
settled with the prior consent of both the Operating Partnership and BMC. The
costs and expenses of prosecuting and defending any BMC Hilton Claims and any
recovery or payment received or due thereon, shall be borne or retained in full
by BMC. The costs and expense of prosecuting and defending any Shared Hilton
Claims shall be funded by Westboy pending a final non-appealable judgment or
settlement of such claims. After the determination of a final non-appealable
judgment or settlement of any Shared Hilton Claim, the costs and expense of any
recovery or payment received due thereon shall be shared by BMC and the
Operating Partnership in proportion to their respective Interest in each such
Shared Hilton Claim (and the parties shall reimburse Westboy as and to the
extent required). All BMC Hilton Claims and Shared Hilton Claims and all amounts
recovered or paid thereof shall not be included in the determination of Westboy
Member's Equity.

                                   ARTICLE 10

                                  MISCELLANEOUS

     10.1 BROKER. Each of the BMC Parties and the BLC Parties represent and
warrant to the other that it has not dealt with any broker in this transaction
and each agrees to hold harmless the other party and to indemnify the other
party from and against any and all damages, costs or expenses (including, but
not limited to, reasonable attorneys' fees and disbursements) suffered by the
indemnified party as a result of acts of the indemnifying party that would
constitute a breach of its representation and warranty in this Section.

     10.2 FURTHER ASSURANCES. The BMC Parties and the BLC Parties agree, at any
time and from time to time after the Closing, to execute, acknowledge where
appropriate and deliver such further instruments and documents and to take such
other action as the other party may reasonably request in order to carry out the
intent and purpose of this Agreement, at the expense of the party making such
request, provided, however, that neither the BMC Parties nor the BLC Parties
shall, in connection with the foregoing, be obligated to incur any liabilities
or obligations in addition to their respective liabilities or obligations
otherwise contemplated in this Agreement.

     10.3 PAYMENT OF EXPENSES. Each party will pay the expenses provided for in
this Agreement to be paid by it (including pursuant to Section 4.4 above) and
the fees and disbursements of its attorneys, accountants and other professionals
and experts incurred in connection with the negotiation of this Agreement and in
preparation for the Closing.



                                      -35-


     10.4 NOTICES. All notices, demands, consents, requests or other
communications provided for or permitted to be given hereunder by a party hereto
must be in writing and shall be deemed to have been properly given or served (i)
if sent by facsimile upon electronic confirmation of receipt, (ii) if delivered
by registered or certified mail, postage prepaid, return receipt requested, upon
receipt, (iii) if delivered by a reputable national overnight air courier
service, prepaid and addressed to such party, upon receipt, or (iv) if not sent
by facsimile, deposited in the United States mail or delivered to a national
overnight air courier service as aforesaid, shall be deemed to be properly given
or served upon actual receipt (with rejection of delivery by addressee to
constitute receipt), as follows:

                  If to any of the BMC Parties:

                           c/o Boykin Management Company
                           Limited Liability Company
                           Guildhall Building
                           45 West Prospect Avenue, Suite 1515
                           Cleveland, Ohio  44115
                           Fax No.: (216) 241-1329

                  with a copy sent simultaneously to BMC's attorneys:

                           Proskauer Rose LLP
                           1585 Broadway
                           New York, New York  10036-8299
                           Attention:  Michael E. Feldman
                           Fax No.: (212) 969-2900

                  If to the REIT:

                           Boykin Lodging Company
                           Guildhall Building
                           45 West Prospect Avenue, Suite 1500
                           Cleveland, Ohio  44115
                           Attention:  President
                           Fax No.: (216) 430-1201



                                      -36-



                  with a copy sent simultaneously to the REIT's attorneys:

                           Thompson Hine LLP
                           3900 Key Center
                           127 Public Square
                           Cleveland, Ohio 44114-1291
                           Attention:  James B. Aronoff
                           Fax No.: (216) 566-5800

                           and

                           Baker & Hostetler LLP
                           1900 East Ninth Street, Suite 3200
                           Cleveland, Ohio 44114
                           Attention: Phillip M. Callesen
                           Fax No.: (216) 696-0740

Any of the aforementioned parties may change its address for the receipt of
notices, demands, consents, requests and other communications by giving written
notice to the others in the manner provided for above.

     10.5 ASSIGNMENT; BINDING EFFECT. None of the parties to this Agreement
shall have the right to assign, transfer, convey and/or otherwise sell (or enter
into any agreement to do the same), directly or indirectly, any interest it may
have in or under this Agreement without first having obtained the written
consent of the other parties, which consent may be withheld in such party's sole
and absolute discretion. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective legal
representatives, successors and permitted assigns, but shall not inure to the
benefit of, or be enforceable by any other Person.

     10.6 WAIVER. Neither this Agreement nor any term hereof may be changed,
waived, discharged or terminated orally, and may be changed, waived, disregarded
or terminated only by an instrument in writing signed by the party against whom
the enforcement of the change, waiver, discharge or termination is sought or, in
the case of a default, by the non-defaulting party or parties.

     10.7 INCORPORATION OF RECITALS AND SCHEDULES. The Recitals to this
Agreement and the Exhibits and Schedules attached hereto are hereby incorporated
by reference into the body of this Agreement and made a part hereof.

     10.8 CONFIDENTIALITY; PRESS RELEASES. The BLC Parties and the BMC Parties
agree that they will not disclose the contents of this Agreement to any third
parties or issue any press release with respect thereto or any Closing hereunder
without the consent of the other parties, except (i) as may be required or,
based on the advice of counsel, advisable to ensure compliance with any
applicable laws, rules or regulations of any Governmental Authority having
jurisdiction over such party, (ii) as is expressly authorized or required by the
terms of this Agreement (e.g., in connection with soliciting or obtaining any
required third-party consents or approvals), or (iii) if and to the extent such
contents have already been placed in the public domain (other than by




                                      -37-


the party seeking to disclose and in a manner not permitted by this Section
10.8). Nothing contained in this Section 10.8 shall be construed as prohibiting
(x) the BMC Parties from disclosing the contents of this Agreement (A) on a
confidential basis to the BMC Parties' counsel, accountants, consultants,
property managers and other agents, or (B) (if necessary or appropriate in BMC's
reasonable judgment) to regulatory authorities having jurisdiction over the BMC
Parties (which authorities, by law, may not be bound by any confidentiality
restrictions), or (C) to parties from which the BMC Parties are seeking
financing, or (y) the BLC Parties from disclosing the contents of this Agreement
(A) on a confidential basis to its counsel, accountants, consultants, property
managers and other agents, or (B) (if necessary or appropriate in the reasonable
judgment of the BLC Parties) to regulatory authorities having jurisdiction over
the BLC Parties (which authorities, by law, may not be bound by any
confidentiality restrictions), or (C) to parties from which it seeks financing.
The BMC Parties and the BLC Parties each agree (I) to consult with and cooperate
with the other parties on the content and timing of all press releases and other
public announcements relating to the transactions contemplated by this
Agreement, and (II) that the initial press release to be issued with respect to
the transactions contemplated by this Agreement will be in the form agreed to by
the parties hereto prior to the execution of this Agreement.

     10.9 MERGER. All understandings and agreements heretofore had between the
parties hereto are merged in this Agreement and the instruments and documents
referred to herein, which fully and completely express their agreements with
respect to the transactions contemplated herein, and supersede all prior
agreements, written or oral, with respect thereto.

     10.10 GOVERNING LAW. THE PARTIES HERETO AGREE THAT THIS AGREEMENT SHALL IN
ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF OHIO.

     10.11 JURISDICTION. Each of the BMC Parties and the BLC Parties hereby
irrevocably and unconditionally submits to the jurisdiction of any Ohio State
Court or Federal Court of the United States of America sitting in the City of
Cleveland, and any appellate court from any such court, in any suit, action or
proceeding arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment, and each hereby irrevocably and unconditionally
agrees that all claims in respect of any such suit, action or proceeding shall
be brought in and may be heard and determined in such Ohio State Court or, to
the extent permitted by law, in such Federal Court. Each of BMC and the BLC
Parties agrees that a final judgment in any such suit, action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Each of the BMC Parties and the
BLC Parties hereby irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement in any Ohio State Court or Federal Court
sitting in the City of Cleveland. Each of the BMC Parties and the BLC Parties
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such suit, action or proceeding
in any such court. Nothing contained in this Section 10.11 shall be construed as
preventing any of the BMC Parties and the BLC Parties, or any of their
respective Affiliates, from (i) objecting to the jurisdiction of any Ohio State
Court on the ground that the matter involved exceeds the statutory jurisdiction
of such court, or




                                      -38-


(ii) from seeking to remove any suit, action or proceeding from an Ohio State
Court to a Federal Court sitting in the City of Cleveland, or vice versa.

     10.12 CAPTIONS. The captions and Article headings included in this
Agreement and the table of contents are for convenience only, do not constitute
part of this Agreement and shall not be considered or referred to in
interpreting the provisions of this Agreement.

     10.13 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument. The submission of a signature page
transmitted by facsimile (or similar electronic transmission facility) shall be
considered as an original signature page for purposes of this Agreement so long
as the original signature page is thereafter transmitted by mail or by other
delivery service and the original signature page is substituted for the
facsimile signature page in the original and duplicate originals of this
Agreement.

     10.14 SEVERABILITY. If any provision hereof is held invalid or not
enforceable to its fullest extent, such provision shall be enforced to the
extent permitted by law, and the validity of the remaining provisions hereof
shall not be affected thereby.

     10.15 NO RECORDATION. The BMC Parties and the BLC Parties agree that
neither this Agreement nor any memorandum or notice hereof shall be recorded and
the BLC Parties agreed (a) not to file any notice of pendency or other
instrument (other than a judgment or lis pendens filed by the BLC Parties in
connection with the BLC Parties' enforcement of its rights hereunder) against
any of the Properties or any portion thereof in connection herewith, and (b) to
indemnify the BMC Parties against all costs, expenses and damages, including,
without limitation, reasonable attorneys' fees and disbursements, incurred by
the BMC Parties by reason of the filing by the BLC Parties of such notice of
pendency or other instrument.

     10.16 WAIVER OF TRIAL BY JURY. THE BMC PARTIES AND THE BLC PARTIES HEREBY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM FILED BY THE BMC PARTIES OR THE BLC PARTIES,
WHETHER IN CONTRACT, TORT OR OTHERWISE, WHICH RIGHT OR CLAIM RELATES DIRECTLY OR
INDIRECTLY TO THIS AGREEMENT, ANY DOCUMENTATION RELATED THERETO, OR ANY ACTS OR
OMISSIONS IN CONNECTION WITH THIS AGREEMENT. THIS WAIVER HAS BEEN AGREED TO
AFTER CONSULTATION WITH LEGAL COUNSEL SELECTED BY THE BLC PARTIES AND THE BMC
PARTIES.

     10.17 SURVIVAL. The provisions of this Agreement survive the Closing,
except to the extent set forth otherwise herein.



              [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]






                                      -39-




          IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.

                                           BMC:

                                           BOYKIN MANAGEMENT COMPANY LIMITED
                                           LIABILITY COMPANY

                                           By: /S/ John E. Boykin
                                               ------------------
                                               Name: John E. Boykin
                                               Title: Secretary


                                           JABO:
                                           JABO LLC

                                           By: Boykin Management Company Limited
                                               Liability Company,
                                               its Managing Member

                                           By: /S/ John E. Boykin
                                               ------------------
                                               Name: John E. Boykin
                                               Title: Secretary


                                           OPERATING PARTNERSHIP:
                                           BOYKIN HOTEL PROPERTIES, L.P.

                                           By:  Boykin Lodging Company,
                                                its General Partner


                                           By: /S/ Richard C. Conti
                                               --------------------
                                               Name: Richard C. Conti
                                               Title: President


                                           REIT:
                                           BOYKIN LODGING COMPANY

                                           By: /S/ Richard C. Conti
                                               --------------------
                                               Name: Richard C. Conti
                                               Title: President







                                    EXHIBIT A

                          LESSEES AND LESSEE PROPERTIES

                                [see attachment]
















LESSEE                                      PROPERTY
Berkeley Leasing I LLC                      Berkeley Marina Radisson
                                            200 Marina Boulevard
                                            Berkeley, CA 94710

Buffalo Leasing LLC                         Buffalo Marriott
                                            1340 Millersport Highway
                                            Amherst, NY 14221

Cleveland Leasing LLC                       Cleveland Airport Marriott
                                            4277 West 150th Street
                                            Cleveland, OH 44135

Columbus Leasing LLC                        Columbus Marriott
                                            6500 Doubletree Avenue
                                            Southfield, MI  48034

Crabtree Leasing LLC                        Holiday Inn Crabtree
                                            4100 Glenwood Avenue
                                            Raleigh, NC 27612

French Lick Leasing LLC                     French Lick Springs Resort
                                            8670 West State Road 56
                                            French Lick, IN 47432

Fort Myers Leasing LLC                      Fort Myers Radisson
                                            20091 Summerlin Road
                                            Ft. Myers, FL 33908

Highpoint Leasing LLC                       Radisson Hotel High Point
                                            135 South Main Street
                                            High Point, NC 27260

Knoxville Leasing LLC                       Knoxville Hilton
                                            501 Church Avenue Southwest
                                            Knoxville, TN 37902

Lake Norman I Leasing LLC                   Lake Norman Hampton Inn
                                            19501 Statesville Road
                                            Cornelius, NC 28031

Lake Norman II Leasing LLC                  Lake Norman Holiday Inn
                                            19901 Holiday Lane
                                            Cornelius, NC 28031


Melbourne H Leasing LLC                     Melbourne Beach Hilton
                                            3003 North Highway A1A
                                            Melbourne, FL  32903





Melbourne Q Leasing LLC                     Melbourne Quality Suites
                                            1665 State Road A1A North
                                            Melbourne, FL  32903

San Antonio Leasing LLC                     San Antonio Doubletree
                                            37 Northeast Loop 410
                                            San Antonio, TX  78216

Southfield Leasing LLC                      Southfield Embassy Suites
                                            28100 Franklin Road
                                            Southfield, MI 48034











                                    EXHIBIT B

                               WESTBOY PROPERTIES

                                [see attachment]













Doubletree Hotel Bellevue Center
818-112th Avenue NE
Bellevue, Washington

Doubletree Hotel Riverside
29th & Chinden Blvd.
Boise, Idaho

Doubletree Hotel Colorado Springs - World Arena
1775 E. Cheyenne Mountain Blvd.
Colorado Springs, Colorado

Doubletree Hotel Omaha Downtown
1616 Dodge Street
Omaha, Nebraska

Doubletree Hotel Portland Downtown
310 SW Lincoln
Portland, Oregon

Doubletree Hotel Sacramento
2001 Point West Way
Sacramento, California

Doubletree Hotel Spokane Valley
I-90 at Sullivan Road
Spokane, Washington

Doubletree Hotel Eugene/Springfield
3280 Gateway Road
Springfield, Oregon

Doubletree Hotel Yakima Valley
1507 North First Street
Yakima, Washington

Doubletree Hotel Lloyd Center
1000 N.E. Multnomah
Portland, Oregon









                                    EXHIBIT H

                  INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT

                                [see attachment]













                ASSIGNMENT OF LIMITED LIABILITY COMPANY INTERESTS

     This Assignment of Limited Liability Company Interests, dated as of
December 31, 2001 (the "ASSIGNMENT"), is entered into by and between JABO LLC, a
Delaware limited liability company (the "ASSIGNOR"), and Boykin Hotel
Properties, L.P., an Ohio limited partnership, as assignee (the "ASSIGNEE").

                                   WITNESSETH:

     WHEREAS, the Assignor holds the limited liability company interests (each,
an "INTEREST" and, collectively, the "INTERESTS") in the limited liability
companies organized under the laws of the State of Delaware identified on
SCHEDULE 1 (the "COMPANIES");

     WHEREAS, pursuant to that certain Master Contribution Agreement, dated as
of December 31, 2001 (the "MASTER CONTRIBUTION AGREEMENT"), by and among the
Assignor, the Assignee, Boykin Management Company Limited Liability Company, and
Boykin Lodging Company, the Assignor has agreed to sell, transfer, assign and
deliver all of its right, title and interest in and to the Interests identified
on SCHEDULE 1 to the Assignee.

     NOW, THEREFORE, in consideration of the premises, covenants and agreements
contained herein and in the Master Contribution Agreement, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned hereby agree as follows:

     1. ASSIGNMENT AND ASSUMPTION. The Assignor hereby assigns, transfers and
conveys to the Assignee the Interests identified on SCHEDULE 1, and the Assignee
hereby agrees to assume and accept all such Interests and all of the duties and
responsibilities related thereto accruing from and after the date hereof.

     2. INDEMNIFICATION. The Assignee shall indemnify, protect, defend, and hold
the Assignors harmless from and against any and all claims, causes of action,
demands, obligations, losses, damages, liabilities, judgments, costs and
expenses (including, without limitation, reasonable attorneys' fees, charges and
disbursements) relating to or arising in respect of the Interests and/or the
Companies accruing from and after the date hereof, other than claims for which
the Assignee is entitled to express indemnification pursuant to the terms of the
Master Contribution Agreement.

     3. ADMISSION. Each of the signatories hereto acknowledges and agrees that
contemporaneously with the assignments described in paragraph 1 hereof, the
Assignee shall be admitted to each of the Companies as a substitute member.

     4. WITHDRAWAL. Effective upon the admission of the Assignee to each of the
Companies, the Assignor hereby withdraws from each of the Companies as a member.

     5. CONTINUATION OF THE COMPANIES. The parties hereto agree that the
assignment of the Interests, the admission of the Assignee to the Companies and
the withdrawal of the Assignor from the Companies shall not dissolve the
Companies, and that the business of the Companies shall continue.






     6. BOOKS AND RECORDS. The Assignee agrees to cause the Companies to take
all actions necessary under the limited liability company laws of the State of
Delaware and the Companies' limited liability agreement, including causing the
amendment of the Company's limited liability agreement and certificate of
formation, to evidence the admission of the Assignee to the Companies and the
withdrawal of the Assignor from the Companies.

     7. FUTURE COOPERATION. Each of the parties hereto agrees to cooperate at
all times from and after the date hereof with respect to all of the matters
described herein, and to execute such further assignments, releases,
assumptions, amendments of the Agreement, notifications, and other documents as
may be reasonably requested for the purpose of giving effect to, or evidencing
or giving notice of, the assignments contemplated by this Assignment.

     8. BINDING EFFECT. This Assignment shall be binding upon, and shall inure
to the benefit of, the parties hereto and their respective permitted successors
and assigns.

     9. EXECUTION IN COUNTERPARTS. This Assignment may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.

     10. GOVERNING LAW. This Assignment shall be governed by, and interpreted in
accordance with, the laws of the State of Delaware.

             [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]







     IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
duly executed as of the day and year first above written.


                                          ASSIGNOR:

                                          JABO LLC

                                          By:  Boykin Management Company Limited
                                               Liability Company,
                                               its Managing Member

                                          By:  /S/ John E. Boykin
                                               ------------------
                                               Name: John E. Boykin
                                               Title: Secretary


                                          ASSIGNEE:

                                          Boykin Hotel Properties, L.P.


                                          By: /S/ Richard C. Conti
                                              --------------------
                                              Name: Richard C. Conti
                                              Title: President










                                                                      SCHEDULE 1


                             CONTRIBUTED INTERESTS:



PERCENTAGE INTEREST      LESSEE                      PROPERTY OWNED BY LESSEE
IN LESSEE
100%                     Berkeley Leasing I LLC      Berkeley Marina Radisson
                                                     200 Marina Boulevard
                                                     Berkeley, CA 94710

100%                     Buffalo Leasing LLC         Buffalo Marriott
                                                     1340 Millersport Highway
                                                     Amherst, NY 14221

100%                     Cleveland Leasing LLC       Cleveland Airport Marriott
                                                     4277 West 150th Street
                                                     Cleveland, OH 44135

100%                     Columbus Leasing LLC        Columbus Marriott
                                                     6500 Doubletree Avenue
                                                     Southfield, MI  48034

100%                     Crabtree Leasing LLC        Holiday Inn Crabtree
                                                     4100 Glenwood Avenue
                                                     Raleigh, NC 27612

100%                     French Lick Leasing LLC     French Lick Springs Resort
                                                     8670 West State Road 56
                                                     French Lick, IN 47432

100%                     Fort Myers Leasing LLC      Fort Myers Radisson
                                                     20091 Summerlin Road
                                                     Ft. Myers, FL 33908

100%                     Highpoint Leasing LLC       Radisson Hotel High Point
                                                     135 South Main Street
                                                     High Point, NC 27260

100%                     Knoxville Leasing LLC       Knoxville Hilton
                                                     501 Church Avenue Southwest
                                                     Knoxville, TN 37902

100%                     Lake Norman I Leasing LLC   Lake Norman Hampton Inn
                                                     19501 Statesville Road
                                                     Cornelius, NC 28031

100%                     Lake Norman II Leasing LLC  Lake Norman Holiday Inn
                                                     19901 Holiday Lane
                                                     Cornelius, NC 28031






100%                     Melbourne H Leasing LLC     Melbourne Beach Hilton
                                                     3003 North Highway A1A
                                                     Melbourne, FL  32903

100%                     Melbourne Q Leasing LLC     Melbourne Quality Suites
                                                     1665 State Road A1A North
                                                     Melbourne, FL  32903

100%                     San Antonio Leasing LLC     San Antonio Doubletree
                                                     37 Northeast Loop 410
                                                     San Antonio, TX  78216

100%                     Southfield Leasing LLC      Southfield Embassy Suites
                                                     28100 Franklin Road
                                                     Columbus, OH 43229










For transfer of interests in limited liability companies


                                    EXHIBIT I

              WESTBOY INTERESTS ASSIGNMENT AND ASSUMPTION AGREEMENT

                                [see attachment]







                                      -1-






                ASSIGNMENT OF LIMITED LIABILITY COMPANY INTERESTS

     This Assignment of Limited Liability Company Interests, dated as of January
1, 2002 (the "ASSIGNMENT"), is entered into by and between JABO LLC, a Delaware
limited liability company (the "ASSIGNOR"), and Boykin Hotel Properties, L.P.,
an Ohio limited partnership, as assignee (the "ASSIGNEE").

                                   WITNESSETH:

     WHEREAS, the Assignor holds all the membership interests (the "INTERESTS")
in Westboy LLC, a limited liability company organized under the laws of the
State of Delaware ("WESTBOY"), which is the owner of the leasehold interests in
the hotel properties identified on SCHEDULE 1 (the "PROPERTIES");

     WHEREAS, pursuant to that certain Master Contribution Agreement, dated as
of December 31, 2001 (the "MASTER CONTRIBUTION AGREEMENT"), by and among the
Assignor, the Assignee, Boykin Management Company Limited Liability Company, and
Boykin Lodging Company, the Assignor has agreed to sell, transfer, assign and
deliver all of its right, title and interest in and to the Interests to the
Assignee.

     NOW, THEREFORE, in consideration of the premises, covenants and agreements
contained herein and in the Master Contribution Agreement, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned hereby agree as follows:

     1. ASSIGNMENT AND ASSUMPTION. The Assignor hereby assigns, transfers and
conveys to the Assignee the Interests identified on Schedule 1, and the Assignee
hereby agrees to assume and accept all such Interests. The Assignee agrees to be
bound by the terms and conditions of the Amended and Restated Limited Liability
Company Agreement of Westboy, dated as of May 22, 1998 (the "WESTBOY
AGREEMENT").

     2. REPRESENTATIONS AND WARRANTIES. The Assignor hereby represents and
warrants to the Assignee that the assignment of the Interests is made in
accordance with the Westboy Agreement and all applicable laws and regulations.

     3. INDEMNIFICATION. The Assignee shall indemnify, protect, defend, and hold
each of the Assignors harmless from and against any and all claims, causes of
action, demands, obligations, losses, damages, liabilities, judgments, costs and
expenses (including, without limitation, reasonable attorneys' fees, charges and
disbursements) relating to or arising in respect of the Interests and Westboy
accruing from and after the date hereof, other than claims for which the
Assignee is entitled to express indemnification pursuant to the terms of the
Master Contribution Agreement.

     4. ADMISSION. Each of the signatories hereto acknowledges and agrees that
contemporaneously with the assignments described in paragraph 1 hereof, the
Assignee shall be admitted to Westboy as a substitute member.





     5. WITHDRAWAL. Effective upon the admission of the Assignee to Westboy, the
Assignor hereby withdraws from Westboy as a member.

     6. CONTINUATION OF WESTBOY. The parties hereto agree that the assignment of
the Interests, the admission of the Assignee to Westboy, and the withdrawal of
the Assignor from Westboy shall not dissolve Westboy, and that the business of
Westboy shall continue.

     7. BOOKS AND RECORDS. The Assignee agrees to cause Westboy to take all
actions necessary under the limited liability company laws of the State of
Delaware and Westboy's limited liability agreement, including causing the
amendment of Westboy's limited liability agreement and certificate of formation,
to evidence the admission of the Assignee to Westboy and the withdrawal of the
Assignor from Westboy.

     8. FUTURE COOPERATION. Each of the parties hereto agrees to cooperate at
all times from and after the date hereof with respect to all of the matters
described herein, and to execute such further assignments, releases,
assumptions, amendments of the Agreement, notifications, and other documents as
may be reasonably requested for the purpose of giving effect to, or evidencing
or giving notice of, the assignments contemplated by this Assignment.

     9. BINDING EFFECT. This Assignment shall be binding upon, and shall inure
to the benefit of, the parties hereto and their respective permitted successors
and assigns.

     10. EXECUTION IN COUNTERPARTS. This Assignment may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.

     11. GOVERNING LAW. This Assignment shall be governed by, and interpreted in
accordance with, the laws of the State of Delaware.

     12. NOTICES. All notices, demands, consents, requests or other
communications provided for or permitted to be given hereunder by a party hereto
must be in writing and shall be deemed to have been properly given or served (i)
if sent by facsimile upon electronic confirmation of receipt, (ii) if delivered
by registered or certified mail, postage prepaid, return receipt requested, upon
receipt, (iii) if delivered by a reputable national overnight air courier
service, prepaid and addressed to such party, upon receipt, or (iv) if not sent
by facsimile, deposited in the United States mail or delivered to a national
overnight air courier service as aforesaid, shall be deemed to be properly given
or received or served upon actual receipt (with rejection of delivery by
addressee to constitute receipt), as follows:

                  If to Assignor:

                  JABO LLC

                  Guildhall Building
                  45 West Prospect Avenue, Suite 1515
                  Cleveland, Ohio 44115
                  Fax No.: (216) 241-1329






                  If to Assignee:

                  Boykin Hotel Properties, L.P.
                  c/o Boykin Lodging Company
                  Guildhall Building
                  45 West Prospect Avenue, Suite 1500
                  Cleveland, Ohio 44115
                  Fax No.: (216) 430-1201

     Any of the aforementioned parties may change its address for the receipt of
notices, demands, consents, requests or other communications by giving written
notice to the others in the manner provided above.

              [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]










     IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
duly executed as of the day and year first above written.


                                     ASSIGNOR:

                                     JABO LLC

                                     By: Boykin Management Company Limited
                                         Liability Company,
                                         its Managing Member

                                     By: /s/ John E. Boykin
                                         ------------------
                                         Name: John E. Boykin
                                         Title: Secretary

                                     ASSIGNEE:

                                     Boykin Hotel Properties, L.P.


                                     By: /s/ Richard C. Conti
                                         --------------------
                                         Name: Richard C. Conti
                                         Title: President









                                                                      SCHEDULE 1


                               WESTBOY PROPERTIES

Doubletree Hotel Bellevue Center
818-112th Avenue NE
Bellevue, Washington

Doubletree Hotel Riverside
29th & Chinden Blvd.
Boise, Idaho

Doubletree Hotel Colorado Springs - World Arena
1775 E. Cheyenne Mountain Blvd.
Colorado Springs, Colorado

Doubletree Hotel Omaha Downtown
1616 Dodge Street
Omaha, Nebraska

Doubletree Hotel Portland Downtown
310 SW Lincoln
Portland, Oregon

Doubletree Hotel Sacramento
2001 Point West Way
Sacramento, California

Doubletree Hotel Spokane Valley
I-90 at Sullivan Road
Spokane, Washington

Doubletree Hotel Eugene/Springfield
3280 Gateway Road
Springfield, Oregon

Doubletree Hotel Yakima Valley
1507 North First Street
Yakima, Washington

Doubletree Hotel Lloyd Center
1000 N.E. Multnomah
Portland, Oregon

EX-99.3

                                                                    Exhibit 99.3


                           HOTEL MANAGEMENT AGREEMENT

                            (----------------------)


     HOTEL MANAGEMENT AGREEMENT (this "AGREEMENT") made as of the 1st day of
January, 2002, between ___________ ("OWNER"), a Delaware limited liability
company, and Boykin Management Company Limited Liability Company ("OPERATOR"),
an Ohio limited liability company.

                                    RECITALS

     A. Owner is the lessee of a full-service hotel (the "HOTEL") known as the
_______________ located at ____________________; and

     B. Owner and Operator desire to evidence their agreement with respect to
the operation, direction, management, and supervision of the Hotel as more
particularly set forth below.

     NOW, THEREFORE, for and in consideration of the premises, and other good
and valuable consideration, Owner and Operator agree as follows:

                                   ARTICLE I

                                    THE HOTEL

1.1. Owner and Operator acknowledge that the Hotel consists of and contains:

     A.   A Building (the "BUILDING") with _____ guest rooms, restaurant(s),
          lounge(s), conference facilities and meeting rooms together with the
          parcel of land described in EXHIBIT A attached hereto (the "LAND") and
          made a part hereof on which the Building is located and any outdoor
          parking areas or other facilities located on such Land;

     B.   Mechanical systems and built-in installations (the "INSTALLATIONS") of
          the Building including, but not limited to, heating, ventilation, air
          conditioning, electrical and plumbing systems, elevators and
          escalators, and built-in laundry, refrigeration and kitchen equipment;

     C.   Furniture, furnishings, wall coverings, floor coverings, window
          treatments, fixtures and hotel equipment and vehicles (the "FF&E");

     D.   Chinaware, glassware, silverware, linens, and other items of a similar
          nature, but excluding the FF&E (the "OPERATING EQUIPMENT"); and

     E.   Stock and inventories of paper supplies, cleaning materials and
          similar consumable items and food and beverage (the "OPERATING
          SUPPLIES").







                                   ARTICLE II

                                 OPERATING TERM

2.1. This Agreement shall have a term (the "OPERATING TERM" or "TERM")
commencing on January 1, 2002 (the "COMMENCEMENT DATE") and expiring on
___________________, unless sooner terminated in accordance with the provisions
of this Agreement or unless extended by the written agreement of Owner and
Operator.

                                  ARTICLE III

                          GENERAL SERVICES BY OPERATOR

3.1. Owner hereby engages Operator as the exclusive operator and manager of the
Hotel during the Operating Term and Operator hereby accepts such engagement. In
exercising its duties hereunder Operator shall act as agent and for the account
of Owner and, subject to the terms of this Agreement, the Major Agreements and
the applicable Budgets, Operator shall have control and discretion in the
operation, direction, management and supervision of the Hotel. Such control and
discretion of Operator shall include, without limitation, the determination of
credit policies (including entering into agreements with credit card
organizations), terms of admittance, charges for rooms, food and beverage
policies, entertainment and amusement policies, leasing, licensing and granting
of concessions for commercial space at the Hotel, and all phases of advertising,
promotion and publicity relating to the Hotel. All services and goods provided
by Operator hereunder shall be provided at cost and without additional charge or
mark-up for profit, except as otherwise expressly provided in this Agreement.
Without derogating from the generality of the above statements, Operator's
duties shall include the following:

     A.   Recruit, train, direct, supervise, employ and dismiss on-site staff
          (the "HOTEL EMPLOYEES") for the operation of the Hotel;

     B.   Develop and implement advertising, marketing, promotion, publicity and
          other similar programs for the Hotel;

     C.   On and after the date hereof, (i) on behalf of Owner, negotiate and
          enter into leases, licenses and concession agreements (collectively,
          the "LEASES") for stores, office space and lobby space at the Hotel,
          collect the rent under such Leases and otherwise administer the Leases
          and (ii) negotiate and enter into contracts for the provision of
          services to the Hotel; provided, however, that without Owner's prior
          written approval, which shall not be unreasonably withheld,
          conditioned or delayed, Operator shall not enter into or renew (other
          than with respect to mandatory renewals) (a) any contract for the
          provision of services to the Hotel unless the same (x) is terminable
          upon not more than thirty (30) days' notice without payment of premium
          and penalty and requires payments of not more than $10,000 annually,
          or (y) is provided for in the applicable Budget, or (b) any new Lease.

     D.   Apply for, process and take all necessary steps to procure and keep in
          effect in Owner's name (or, if required by the licensing authority, in
          Operator's name or both) all licenses and permits required for the
          operation of the Hotel;

     E.   Purchase all FF&E, Operating Equipment and Operating Supplies
          necessary for the operation of the Hotel;



                                      -2-


     F.   Provide routine accounting and purchasing services as required in the
          ordinary course of business;

     G.   Maintain the Hotel in a good state of repair and in accordance with
          the Hotel Standards (as hereinafter defined) and all applicable laws,
          ordinances, regulations, rulings and orders of governmental
          authorities applicable to the Hotel or its operation (collectively,
          "APPLICABLE LAWS");

     H.   Subject to Section 3.2 below, use reasonable efforts to operate the
          Hotel in accordance with any applicable deed of trust, mortgage,
          franchise agreement or loan agreement relating to the Hotel, as well
          as Owner's lease of the Hotel (the "PERCENTAGE LEASE") from the fee
          owner or ground lessee of the Hotel, as applicable (collectively,
          "MAJOR AGREEMENTS"); and

     I.   Provide such other services as are required under the terms of this
          Agreement or as are customarily performed without additional fee by
          management companies of similar properties in the area of the Hotel
          with fee structures similar to that provided herein.

Operator's compensation for the foregoing services shall be the Base Fee and the
Incentive Fee (as each such term is hereinafter defined) and shall not charge
Owner any additional charge or mark-up to perform such services except as
otherwise expressly provided in this Agreement.

3.2. Notwithstanding any other provision of this Agreement to the contrary,
Operator's obligations with respect to any Major Agreement shall be limited to
the extent (i) true and complete copies of the relevant provisions thereof have
been delivered to Operator sufficiently in advance to allow Operator to perform
such obligations and (ii) the provisions thereof and/or compliance with such
provisions by Operator (1) are applicable to the day-to-day operation,
maintenance and non-capital repair and replacement of the Hotel or any portion
thereof, (2) do not require contribution of capital or payments of Operator's
own funds, (3) do not materially increase Operator's obligations hereunder or
materially decrease Operator's other rights hereunder, (4) do not limit or
purport to limit any corporate activity or transaction with respect to Operator
or its Affiliates or any other activity, transfer, transaction, property or
other matter involving Operator or its Affiliates other than at the site of the
Hotel, and (5) are otherwise within the scope of Operator's duties under this
Agreement. Owner acknowledges and agrees, without limiting the foregoing, that
any failure of (x) Owner to comply with the provisions of any Major Agreements
or Applicable Laws, or (y) Operator to comply with the provisions of any Major
Agreement arising out of (A) the condition of the Hotel, and/or the failure of
the Hotel to comply with the provisions of such Major Agreement, prior to
Operator's assuming the day-to-day management thereof, (B) construction
activities at the Hotel, (C) inherent limitations in the design and/or
construction of, location of the Hotel and/or parking at the Hotel, (D) failure
of Owner to provide funds, from operations or otherwise, sufficient to allow
timely compliance with the provisions of the Hotel Standards or any Major
Agreement through reasonable and customary business practices and/or (E) Owner's
failure to approve any matter requested by Operator in Operator's good faith
business judgment as necessary or appropriate to achieve compliance with the
Hotel Standards or any Major Agreement, shall not be deemed a breach by Operator
of its obligations under this Agreement.



                                      -3-


                                   ARTICLE IV

                         GENERAL OPERATION OF THE HOTEL

4.1. Operator shall operate the Hotel and all of its facilities and activities
in accordance with the standards established by the franchisors of the Hotel
from time to time or, if no franchise is applicable to the Hotel, in accordance
with past practice and operations at the Hotel (the "HOTEL STANDARDS").

4.2. Operator will be available to consult with and advise Owner, at Owner's
reasonable request, concerning all policies and procedures affecting all phases
of the conduct of business at the Hotel. Operator shall in all events consult
with Owner before implementing any material changes in policies and procedures
relating to the Hotel.

                                   ARTICLE V

                             AGENCY; HOTEL EMPLOYEES

5.1. In the performance of its duties as Operator of the Hotel, Operator shall
act solely as agent of Owner. Nothing in this Agreement shall constitute or be
construed to be or create a partnership or joint venture between Owner and
Operator. Except as otherwise provided in this Agreement (including without
limitation Article 21 below), (a) all debts and liabilities to third persons
incurred by Operator in the course of its operation and management of the Hotel
in accordance with the provisions of this Agreement shall be the debts and
liabilities of Owner only and (b) Operator shall not be liable for any such
obligations by reason of its management, supervision, direction and operation of
the Hotel as agent for Owner. Operator may so inform third parties with whom it
deals on behalf of Owner and may take any other reasonable steps to carry out
the intent of this paragraph.

5.2. All Hotel Employees shall be employees of Operator. All compensation
(including without limitation all wages and fringe benefits) of the Hotel
Employees shall, subject to the Budgets, be an Operating Expense (as defined in
Section 11.2) and shall be borne by Owner and paid out of the Agency Account (as
hereinafter defined), or if the amounts therein are insufficient, by Owner upon
demand therefor by Operator. Operator may consistent with the Budgets enroll the
Hotel Employees in pension, medical and health, life insurance and similar
employee benefit plans ("BENEFIT PLANS") substantially similar to plans
reasonably necessary to attract and retain employees and generally remain
competitive. Owner agrees that the Benefit Plans in effect as of the date hereof
satisfy the foregoing standard. The Benefits Plans may be joint plans for the
benefit of employees at more than one hotel or motel owned, leased or managed by
Operator or its Affiliates. Employer contributions to such plans (including any
withdrawal liability incurred upon termination of this Agreement) and reasonable
administrative fees (but without further mark-up by Operator), which Operator
may expend in connection therewith, shall be the responsibility of Owner and
shall be an Operating Expense. The administrative expenses of any joint plans
will be equitably apportioned by Operator among properties covered by such plan.

5.3. Operator, in its discretion, may (i) provide lodging for Operator's
executive employees and corporate staff visiting the Hotel in connection with
the performance of Operator's services and allow them the use of the Hotel
facilities and (ii) provide the management of the Hotel with temporary living
quarters within the Hotel and the use of all Hotel facilities, in either case at
a discounted price or without charge as the case may be. Operator shall, on a
space available basis provide lodging at the Hotel for Owner's employees and
directors visiting the Hotel and allow them the use of all Hotel facilities in
either case without charge, except for recreational facilities for which a
charge will apply.



                                      -4-


5.4. During the term of this Agreement and for a period of two (2) years
thereafter, Owner agrees that it (and its Affiliates) will not, without the
prior written consent of Operator, either directly or indirectly, alone or in
conjunction with any other person or entity, (a) solicit or attempt to solicit
any general manager (each, a "GENERAL MANAGER" and, collectively, "GENERAL
MANAGERS") of the Hotel or any other hotels managed by Operator (provided that
in the event Manager or its Affiliates manage one hundred (100) or more hotels
for third parties that are not Affiliates of Owner, the foregoing shall only
apply to General Managers of hotels managed by Operator for Owner) or any of
Operator's corporate level (i.e., not engaged full time in the operation of the
Hotel) employees or staff (the "EXECUTIVE EMPLOYEES"; collectively, the General
Manager and Executive Employees, the "KEY EMPLOYEES") to terminate, alter or
lessen Key Employees' employment or affiliation with Operator or to violate the
terms of any agreement or understanding between any such Key Employee and
Operator, as the case may be, or (b) employ, retain or contract with any Key
Employee, unless in each case of the actions described in (a) or (b) it will pay
Operator, within thirty (30) days of taking any of the actions described in (a)
or (b) above, an amount equal to 2.5 times the aggregate base salary and cash
bonus paid to the relevant Key Employee over the twelve (12) month period
immediately preceding such action; provided that the restrictions set forth in
clauses (a) and (b) above shall not apply to the employment, retention of or
contracting with a Key Employee if (i) Operator has not offered such Key
Employee employment prior to the termination of this Agreement pursuant to
Section 17.1 hereof, (ii) Operator has not offered such Key Employee employment
within thirty (30) days from Operator's receipt of notice of the termination of
this Agreement other than pursuant to Section 17.1 hereof, (iii) if Operator has
otherwise waived in writing such restriction, or (iv) if this Agreement is
terminated by Owner as a result of the commission of any theft, embezzlement or
other criminal misappropriation of Hotel or Owner funds or any fraud or felony
by any executive of Operator that relates to or materially affects the operation
or reputation of the Hotel. The parties agree that Operator's damages resulting
from Owner's violation of the restrictions set forth in clauses (a) and (b)
above are not readily determined and that the compensation payable to Operator
by Owner as provided by this Section 5.4 is a fair and reasonable estimation
thereof.

5.5. Except to the extent provided otherwise in Article VIII of the Master
Contribution Agreement, by and between Operator, JABO LLC, Boykin Lodging
Company, and Boykin Hotel Properties, L.P., dated as of December 31, 2001 (the
"MASTER CONTRIBUTION AGREEMENT"), Operator shall not be liable for any failure
of the Hotel to comply, prior to the Commencement Date, with all federal, state,
local and foreign statutes, laws, ordinances, regulations, rules, permits,
judgments, orders and decrees affecting labor union activities, civil rights or
employment in the United States, including, without limitation, the Civil Rights
Act of 1870, 42 U.S.C. Sec.1981, the Civil Rights Acts of 1871, 42 U.S.C. Sec.
1983 the Fair Labor Standards Act, 29 U.S.C. Sec.201, ET SEQ., the Civil Rights
Act of 1964, 42 U.S.C. Sec.2000e, ET SEQ., as amended, the Age Discrimination in
Employment Act of 1967, 29 U.S.C. Sec.621, ET SEQ.,the Rehabilitation Act, 29
U.S.C. Sec.701, ET SEQ., the Americans With Disabilities Act of 1990, 29 U.S.C.
Sec.706, 42 U.S.C. Sec.12101, ET SEQ., the Employee Retirement Income Security
Act of 1974, 29 U.S.C. Sec.301, ET SEQ., the Equal Pay Act, 29 U.S.C. Sec. 201,
ET SEQ., the National Labor Relations Act, 29 U.S.C. Sec.151, et SEQ., and any
regulations promulgated pursuant to such statutes (collectively, as amended from
time to time, and together with any similar laws now or hereafter enacted, the
"EMPLOYMENT LAWS").

5.6. Operator shall from time to time develop and implement policies, procedures
and programs for the Hotel (collectively, the "EMPLOYMENT POLICIES") reasonably
designed to effect compliance with the Employment Laws. The Employment Policies
shall be consistent with industry standards from time to time for reputable
hotel management companies.

5.7. Operator shall not hire a General Manager without the prior approval of
Owner. Owner shall, within fifteen (15) days after notice from Operator,
interview a General Manager candidate and grant or withhold its approval;
provided Operator has made the General Manager candidate reasonably available





                                      -5-


within such fifteen (15)-day period. Operator shall allow Owner, at Owner's
election, to interview the General Manager candidate; provided, however, that
Operator shall have the right to participate in any such interview.

                                   ARTICLE VI

                               PROVISION OF FUNDS

6.1. In performing its services under this Agreement, Operator shall act solely
as agent and for the account of Owner. Operator shall not be in default of its
obligations under this Agreement to the extent it is unable to perform any
obligation due to the lack of available funds from the operation of the Hotel or
otherwise due to Owner's failure to provide required working capital.

6.2. Operator shall in no event be required to advance any of its funds (whether
by waiver or deferral of its management fees or otherwise) for the operation of
the Hotel.


                                  ARTICLE VII

                              CENTRALIZED SERVICES

7.1. Operator may provide or cause its Affiliates to provide for the Hotel and
its guests the full benefit of any reservations system hereafter established by
Operator or its Affiliates and provide, or cause its Affiliates to provide, such
aspects of any accounting or purchasing services, other group benefits and
services, revenue management services, on-site sales training, associate
satisfaction surveys, training and other training as are made available
generally to properties managed by Operator, all of which are collectively
referred to as "CENTRALIZED SERVICES." The Centralized Services being provided
on the date hereof, and the approximate cost thereof as of December 31, 2001,
are set forth on EXHIBIT B attached hereto. Owner shall not have the right to
reject the Centralized Services set forth on EXHIBIT B unless in any given year
either (i) the cost charged Owner for Operator's actual out-of-pocket, unrelated
third-party costs to provide any Centralized Services increases in excess of the
increase in Operator's actual out-of-pocket, unrelated third-party costs to
provide such Centralized Services, or (ii) Operator's costs with respect to
Centralized Services increases because of a change in the scope of such
Centralized Services or the corporate staff devoted to such Centralized
Services. Operator shall advise Owner in writing of any Centralized Service not
set forth on EXHIBIT B, which Operator proposes to provide to the Hotel and the
approximate cost thereof. Owner shall have the right to reject, in its sole and
absolute discretion, any and all such other Centralized Services that are
proposed by Operator after the date of this Agreement and/or which are not set
forth on EXHIBIT B, in which case Operator shall not provide such rejected
Centralized Services and no portion of the cost of such rejected Centralized
Services shall be incurred by Owner or included in Operating Expenses.

7.2. Subject to the provisions of the applicable Budget and Section 7.1,
Operator or such of Operator's Affiliates as provide Centralized Services shall
be entitled to be reimbursed for the Hotel's share of the total costs that are
reasonably incurred in providing such Centralized Services on a system-wide
basis to hotels and motels managed by Operator or its Affiliates, which costs
may include, without limitation, salaries (including payroll taxes and employee
benefits) of employees and officers of Operator and its Affiliates, costs of all
equipment employed in the provision of such services and a reasonable charge for
overhead. The Hotel's share of such costs shall be determined in an equitable
manner by Operator (which shall be approved by Owner in its reasonable
discretion) and substantiated to Owner after each Fiscal Year end and shall be
an Operating Expense of the Hotel.




                                      -6-


7.3. Owner acknowledges that Operator may enter into purchasing, maintenance or
service contracts with respect to the Hotel as are made available generally to
properties managed by Operator pursuant to which Operator or Affiliates of
Operator receive rebates, cash incentives, administration fees, concessions,
profit participations, stock or stock options, investment rights or similar
payments or economic consideration from or in, as applicable, vendors or
suppliers of goods or services. Operator agrees that any such amounts or
benefits derived from the following six (6) categories, are equally the property
of Operator and Owner and shall be allocated on an equal (50/50) basis between
Operator and Owner; (1) food and beverage purchases, (2) telecommunications, (3)
insurance, (4) electronic purchases, (5) early payment discounts or payments and
(6) vendor advertising contributions. In addition, the terms of any contract or
agreement for such goods or services, when taken as a whole, shall not be
materially less favorable to the Hotel than the prevailing terms of contracts to
provide similar goods or services on a single-property basis obtainable on a
commercially reasonable basis from unrelated parties in the area of the Hotel.

                                  ARTICLE VIII

                        WORKING CAPITAL AND BANK ACCOUNTS

8.1. Owner will maintain working capital funds on a system-wide basis sufficient
in amount to constitute reasonable working capital for the uninterrupted and
efficient operation of the Hotel, and provide Operator with such funds, as and
when reasonably required by Operator.

8.2. All funds received by Operator in the operation of the Hotel, and funds for
working capital provided by Owner, shall be deposited in an account bearing the
name of Owner and the Hotel established by Owner at such financial institution
as may from time to time be selected by Owner (the "AGENCY ACCOUNT"); provided,
however, that, except as otherwise provided in this Agreement, no signature or
other approval of Owner or any representative thereof shall be required for any
withdrawal by Operator therefrom. Amounts in the Agency Account may be
temporarily withdrawn and invested by Operator in any Permitted Investments,
having due regard for the timing of the Hotel's cash needs. From the Agency
Account, Operator shall pay all Operating Expenses and reimburse itself for any
reimbursable expenses in accordance with this Agreement, pay to itself the Base
Fee and Incentive Fee and remit any excess amounts to Owner. In addition, Owner
may, at its option, from time to time, instruct Operator to withhold specified
amounts from Owner's share as accruals against real estate taxes, debt service
and insurance costs, for the benefit of Owner. All interest earned or accrued on
amounts invested from the Agency Account shall be added to the Agency Account
and shall not constitute Gross Revenues or be included therein. The Agency
Account shall be owned by Owner and shall be controlled and operated by Operator
as provided herein and in its capacity hereunder. For the purposes of this
Agreement, "PERMITTED INVESTMENTS" shall mean insured demand deposits,
certificates of deposit, bankers' acceptances and time deposits of United States
banks which (i) issue (or the parent company of which issues) commercial paper
rated by Moody's Investors Service, Inc. or by Standard & Poor's Rating Services
at not less than "1" if then rated by Moody's and not less than "A1" if then
rated by Standard & Poor's, (ii) are organized under the laws of the United
States or any state thereof, and (iii) have combined capital and surplus in
excess of $100,000,000; provided, however, that the aggregate amount at any time
so invested with any single bank having combined assets of less than
$1,000,000,000 will not exceed $200,000.

8.3. The Agency Account shall be in the name of Operator as agent for Owner and
shall be under the control of Operator. Checks or other documents of withdrawal
shall be signed only by representatives of Operator, provided that such
representatives shall be bonded or otherwise insured in a manner reasonably





                                      -7-


satisfactory to Owner. The premiums for bonding or other insurance shall be an
Operating Expense except for premiums for bonding off-site executive employees
of Operator, if, and to the extent, of increased costs associated therewith.
Upon the expiration or termination of this Agreement all remaining amounts in
the Agency Account shall be transferred to Owner, subject to Owner's remaining
obligations, if any, to Operator and its Affiliates under this Agreement.

8.4. In the event the franchisor provides written notice of a default under the
franchise agreement, then Owner shall be obligated within thirty (30) days of
receipt of such notice, to enter into a negotiation process with the franchisor
to cure such default. If, after ninety (90) days of negotiation, Owner and
franchisor are unable to reach an agreement on a cure of the default and
franchisor proceeds in exercising its right of termination of the franchise
agreement, then Owner shall be obligated to pay Operator a fee on the twentieth
(20th) day following the end of each of the four (4) full calendar quarters
following the end of the aforementioned ninety (90) days, which fee in each case
shall be an amount equal to 1.125% of Total Revenues for the corresponding
calendar quarter of the preceding calendar year (collectively, the "SPECIAL
FEE"), which Special Fee shall be in lieu of the Incentive Fee for that period,
as provided for in Section 10. 2 hereof. Notwithstanding the foregoing, Operator
shall not be entitled to the Special Fee (i) if within the aforementioned ninety
(90) days Owner informs Operator in writing that it is Owner's intention to
change the Hotel's franchise affiliation, (ii) Owner terminates this Agreement
in accordance the terms of this Agreement, unless Operator earns the Incentive
Fee in accordance with Section 10.2 hereof, or (iii) if (a) defaults (as set
forth in the notice of default) exist under the franchise agreement other than
defaults which occurred as a result of Owner's failure to provide sufficient
funds to permit the Hotel and its operations to satisfy the Hotel Standards
(such other defaults, the "OTHER DEFAULTS"), and (b) if the Other Defaults did
not exist, then the franchisor would not have provided the written notice of
default described in the first sentence of this Section 8.4. In no event shall
Owner's failure to pay the Special Fee required in this Section 8.4 give rise to
any remedy for that period except for the claim for the amounts described
herein, except that Operator shall also have a right to terminate this Agreement
pursuant to Section 16.2. Subject to the foregoing, the provisions of this
Section 8.4 shall not limit either party's rights and remedies set forth
elsewhere in this Agreement.

                                   ARTICLE IX

                     BOOKS, RECORDS AND STATEMENTS; BUDGETS

9.1. Operator shall keep full and accurate books of account and other records
reflecting the results of the operation of the Hotel in accordance with
generally accepted accounting principles ("GAAP") and the Uniform System of
Accounts (Ninth Revised Edition 1996, as further revised from time to time) as
adopted by the American Hotel and Motel Association of the United States and
Canada (the "UNIFORM SYSTEM") with such exceptions as may be required by the
provisions of this Agreement; provided, however, that Operator may, with prior
notice to Owner, make such modifications to the methodology in the Uniform
System as are consistent with Operator's standard practice in accounting for its
operations under management contracts generally, so long as such modifications
do not affect the determination of Total Revenues, Operating Expenses or Fixed
Charges under Article XI. Except for the books and records which may be kept in
Operator's home office or other accessible location pursuant to the adoption of
a central billing system or other centralized service, the books of account and
all other records relating to or reflecting the operation of the Hotel shall be
kept at the Hotel and shall be available to Owner and its representatives at all
reasonable times for examination, audit, inspection and transcription. All of
such books and records including, without limitation, books of account, guest
records and front office records, shall be the property of Owner, but shall be
available to Operator for use during the terms of this Agreement in connection
with the operation of the Hotel. Upon any termination of this




                                      -8-


Agreement, all of such books and records shall thereafter be available to
Operator at all reasonable times for inspection, audit, examination and
transcription for a period of three (3) years.

9.2. Operator shall deliver to Owner within twenty (20) days after the end of
each month, the following items (collectively, the "MONTHLY REPORTS"):

     A.   An executive summary noting highlights of operations for such month;

     B.   A balance sheet as of the last day of such month;

     C.   A source and use of funds statement for such month;

     D.   An income and expense statement for such month;

     E.   A twelve-month summary and forecast of operations for the current
          Fiscal Year utilizing (i) actual year-to-date figures, (ii) forecasts
          for the next thirty (30), sixty (60) and ninety (90)-day periods and
          (iii) budgeted amounts for the balance of the Fiscal Year;

     F.   A twelve-month summary and forecast of cash flow for the current
          Fiscal Year utilizing (i) actual year-to-date figures, (ii) forecasts
          for the next thirty (30), sixty (60) and ninety (90)-day periods and
          (iii) budgeted amounts for the balance of the Fiscal Year;

     G.   A summary of year-to-date capital expenditures and budgeted amounts
          for the balance of the year; and

     H.   Such other monthly reports as Owner may reasonably request and as are
          customarily provided without additional fee by managers of similar
          hotels in the area of the Hotel.

The Monthly Reports shall be prepared in accordance with GAAP and the Uniform
System to the extent applicable and shall otherwise be prepared in accordance
with Operator's standard financial reporting and budgeting practices.

9.3. Year-end financial statements for the Hotel (including a balance sheet,
income statement and statement of sources and uses of funds) shall be prepared
in accordance with GAAP and the Uniform System and certified by an independent
national certified public accounting firm with hospitality experience selected
by Owner. Operator shall cooperate in all respects with such accountant in the
preparation of such statements.

9.4. On or before each December 1 during the Operating Term, Operator shall
submit to Owner for Owner's approval in Owner's sole discretion, the following
items (collectively, the "BUDGETS") for the next Fiscal Year:

     A.   An operating budget (the "OPERATING BUDGET") setting forth in
          reasonable line-item detail the projected income from and expenses of
          all aspects of the operations of the Hotel with comparison to the
          Operating Budgets for the two previous fiscal years;

     B.   A capital budget (the "CAPITAL BUDGET") setting forth in reasonable
          line-item detail proposed capital projects and expenditures for the
          Hotel, including, but not limited to, FF&E expenditures, ordinary and
          non-structural repairs, and other alterations, additions



                                      -9-


          and improvements, with comparison to the Capital Budgets for the two
          previous fiscal years;

     C.   A cash flow forecast (the "CASH FLOW FORECAST") on a monthly basis;

     D.   A plan (the "MARKETING PLAN") describing the proposed advertising,
          marketing, promotion, publicity and other like programs for the Hotel;

     E.   Such other reports or projections as Owner may reasonably request and
          as are customarily provided without additional fee by similar sized
          management companies.

The Budgets shall be prepared in accordance with GAAP and the Uniform System to
the extent applicable and shall otherwise be prepared in accordance with
Operator's standard financial reporting and budgeting practices.

9.5. Owner shall approve or reject, in whole or in part, the Budgets within
twenty (20) days of submission by Operator. If Owner does not respond within
such twenty (20)-day period, Owner shall be deemed to have not approved the
Budgets in their entirety. Operator shall operate the Hotel substantially
subject to the Budgets. Operator shall not, without Owner's prior approval:

     A.   Incur any expense for any line-item in the Operating Budget which
          causes the aggregate expenditures for such line-item to exceed the
          budgeted amount by the greater of (i) 10% or (ii) $5,000 for the
          applicable fiscal period set forth in the Operating Budget, not to
          exceed, except to the extent such expenditures vary in correlation
          with Total Revenues and/or occupancy in the aggregate, five percent
          (5%) of the Operating Budget for any such Fiscal Year, provided that
          Operator may, without Owner's approval (a) pay any expenses (the
          "NECESSARY EXPENSES") regardless of amount, which are necessary for
          the continued operation of the Hotel in accordance with Applicable
          Laws and the Hotel Standard and which are not within the reasonable
          control of Operator (including, but not limited to, those for taxes,
          utility charges, licensing and permits), or (b) pay any expenses (the
          "EMERGENCY EXPENSES") regardless of amount which, in Operator's good
          faith judgment, are immediately necessary to protect the physical
          integrity or lawful operation of the Hotel or the health or safety of
          its occupants; or

     B.   Incur any expense for any line-item in the Capital Budget which causes
          the aggregate expenditures for such line-item to exceed the budgeted
          amount by the greater of (i) 10% or (ii) $5,000 for the applicable
          fiscal period set forth in the Capital Budget, not to exceed, in the
          aggregate, five percent (5%) of the Capital Budget for such Fiscal
          Year, provided that Operator may, without Owner's approval, pay any
          Emergency Expenses which are capital in nature.

9.6. If the Budgets (or any component of the Budgets), have not been approved by
Owner prior to any applicable Fiscal Year, then, until approval of the Budgets
(or such components) by Owner, Operator shall operate the Hotel substantially in
accordance with the prior year's Budgets except for, or as modified by, (a)
those components of the Budgets for the applicable Fiscal Year approved by
Owner, (b) the Necessary Expenses which shall be paid as required, (c) the
Emergency Expenses which shall be paid as required, and (d) those expenses that
vary in correlation with Total Revenues and/or occupancy in the aggregate.




                                      -10-


9.7. Subject to the express limitations set forth in this Agreement, Owner
acknowledges that (a) the Budget is an estimate of income and expenditures only,
(b) Operator does not give any guarantee, warranty or representation whatsoever
in connection with any Budget, (c) Operator does not guarantee the accuracy of
the information contained in the Budget or the results predicted therein, (d)
Operator shall not be held responsible for any divergence between the
projections contained in the Budget and the actual results achieved, and (e)
failure of the Hotel to achieve the projections for any Fiscal Year shall not
constitute an event of default.

                                   ARTICLE X

                                 MANAGEMENT FEES

                       AND PAYMENTS TO OPERATOR AND OWNER

10.1. Owner shall pay to Operator, on a monthly basis, for services rendered
under this Agreement a management fee (the "BASE FEE") equal to three percent
(3%) of Total Revenues.

10.2. Owner shall pay to Operator on an annual basis an incentive management fee
(the "INCENTIVE FEE") equal to thirteen and one half percent (13.5%) of Gross
Operating Profit in excess of the Gross Operating Profit agreed to in the
Operating Budget for each Fiscal Year. In no event shall the Incentive Fee
exceed one and one-eighth percent (1.125%) of Total Revenues for any Fiscal
Year.

10.3. [INTENTIONALLY OMITTED]

10.4. In each month during the Operating Term, Operator shall be paid out of the
Agency Account the Base Fee for the preceding month, as determined from the
monthly income and expense statement, such payment to be made upon delivery of
the income and expense statement for such month showing the computation of Total
Revenues and the Base Fee for such month. Partial advance payments of the
Incentive Fee shall be payable quarterly on the twentieth (20th) day following
the end of each quarter. The amount of each such advance payment of the
Incentive Fee shall be equal to fifty percent (50%) of the Incentive Fee that
would be payable against budget and on a cumulative basis for a partial Fiscal
Year which ended on the last day of such quarter, less any previous advance
payments for such Fiscal Year. Within ten (10) days after receipt by Owner of
the audited financial statements of the Hotel for such Fiscal Year but no later
than ninety (90) days after the end of each Fiscal Year or partial Fiscal Year,
Owner shall pay to Operator the excess of the Incentive Fee over any advance
payments or Operator shall pay to Owner the excess of any advance payments over
the Incentive Fee. The Incentive Fee shall be subject to adjustment as provided
in Section 10.6.

10.5. On or before the twentieth (20th) day following the last day of each
calendar month (or such other fiscal period as Owner and Operator may determine)
of each Fiscal Year during the Operating Term, after (a) payment of Operating
Expenses and other amounts required to be paid under this Agreement and (b)
retention of working capital sufficient to assure the uninterrupted and
efficient operation of the Hotel in accordance with the Hotel Standard and the
Major Agreement and most recent Cash Flow Forecast, all funds in the Agency
Account shall be paid to Owner.

10.6. At the end of each Fiscal Year and following receipt by Owner of the
annual audit set forth in Section 9.3, an adjustment will be made, if necessary,
based on the audit so that Operator shall have received the accurate Base Fee
and Incentive Fee for such Fiscal Year. Within thirty (30) days of receipt by
Owner and Operator of such audit, Operator shall either (a) place in the Agency
Account or remit to Owner, as appropriate, any excess amounts Operator may have
received for such fees during such




                                      -11-


calendar year or (b) be paid out of the Agency Account or by Owner, as
appropriate, any deficiency in the amounts due Operator for the Base Fee and
Incentive Fee.

10.7. Operator agrees to provide an incentive to its corporate executive team by
allocating annually to a bonus pool a portion of the Incentive Fee received by
Operator for such Fiscal Year, which amount shall be the first amounts received
by Operator as the Incentive Fee for such Fiscal Year up to a maximum amount
equal to the first one-eighth of one percent (.125%) of Total Revenues (the
"MINIMUM POOL ALLOCATION"). The allocation by the Operator to the bonus pool
shall be made prior to making any other payments or distributions by Operator of
the Incentive Fee for such Fiscal Year. In addition, no less than twenty-five
percent (25%) of the corporate executive team's bonus for any year during the
Term applicable to all hotels managed by Operator on behalf of Owner or any of
its Affiliates shall be based upon achieving the aggregate Gross Operating
Profit set forth in the approved Operating Budgets for such hotels for any
Fiscal Year during the Term. Operator agrees to distribute to its corporate
executive team the Minimum Pool Allocation each Fiscal Year during the Term.
Bonus and other incentive payments made to Operator's corporate staff and
executives is not an Operating Expense. Nothing in this Section 10.7 shall
prohibit the Operator from allocating more than the Minimum Pool Allocation to
the bonus pool.

10.8. Any bonus or other incentive payment paid to executive committee members
at the Hotel will be based upon the Gross Operating Profit of the Hotel. Such
incentives will be deemed earned on a sliding scale commencing upon achievement
of ninety percent (90%) of the Gross Operating Profit set forth in the approved
Operating Budget. The details of this incentive plan will be developed by
Operator and will be subject to Owner's approval. In no case will less than
twenty-five percent (25%) of the executive committee members' bonus be based
upon achieving the Gross Operating Profit set forth in the approved Operating
Budget.

                                   ARTICLE XI

                               CERTAIN DEFINITIONS

11.1. A. The term "TOTAL REVENUES" shall mean, for any period, all income,
revenue, receipts and proceeds resulting from the operation of the Hotel and all
of its facilities (net of refunds and credits to guests and other items deemed
"Allowances" under the Uniform System) which are properly attributable under
GAAP and the Uniform System to the period in question. Subject to Section
11.1(B), Total Revenues shall include, without limitation, all amounts derived
from:

         (i)   The rentals of rooms, banquet facilities and conference
               facilities;

         (ii)  The sale of food and beverage whether sold in a bar, lounge or
               restaurant, delivered to a guest room, sold through an in-room
               facility or vending machines, provided in meeting or banquet
               rooms or sold through catering operations;

         (iii) Charges for admittance to or the use of any parking facilities,
               recreational facilities or any entertainment events at the Hotel;

         (iv)  Rentals paid under Leases;

         (v)   Charges for other Hotel services or amenities, including, but not
               limited to, telephone service, in-room movies, and laundry
               services; and



                                      -12-


         (vi)  The gross income amount on which the proceeds of business
               interruption or similar insurance are determined, with respect to
               any period for which such proceeds are received.

          Notwithstanding the foregoing, the receipts or proceeds derived from
          the Land or Building or activities thereon or therein unrelated to the
          operation of the Hotel or for which Operator has minimal or no
          involvement shall be excluded from Total Revenues.

     B.   Total Revenues shall not include:

          (i)    Sales or use taxes or similar governmental impositions
                 collected by Owner or Operator;

          (ii)   Tips, service charges and other gratuities received by the
                 Hotel Employees;

          (iii)  Proceeds of insurance except as set forth in Section 11.1(A);

          (iv)   Proceeds of the sale or condemnation of the Hotel, any interest
                 therein or any other asset of Owner not sold in the ordinary
                 course of business, or the proceeds of any loans or financings;

          (v)    Capital contributed by Owner to the Hotel;

          (vi)   The repayment to Owner of any loans or interest thereon made by
                 Owner;

          (vii)  The receipts of any tenant, licensee or concessionaire under a
                 Lease; and

          (viii) Interest Income.

11.2. A. The term "OPERATING EXPENSES" shall mean all costs and expenses for any
period of maintaining, conducting and supervising the operation of the Hotel and
all of its facilities which are properly attributable under GAAP and the Uniform
System and GAAP to the period in question. Operating Expenses shall include,
without limitation:

          (i)  The cost of all Operating Equipment and Operating Supplies;

          (ii) Salaries and wages of the Hotel personnel, including costs of
               payroll taxes and employee benefits. The salaries or wages of
               off-site employees or executives of Operator shall not be
               Operating Expenses, provided that if it becomes necessary for an
               off-site employee or executive of Operator to temporarily perform
               services at the Hotel of a nature normally performed by the Hotel
               Employees, his salary (including payroll taxes and employee
               benefits) for such period only as well as his traveling expenses
               shall be Operating Expenses and reimbursed to Operator;

          (iii) The cost of all other goods and services obtained in connection
                with the operation of the Hotel, including, without limitation,
                heat and utilities, laundry, landscaping and exterminating
                services and office supplies;

          (iv)  The cost of all non-capital repairs to and maintenance of the
                Hotel;



                                      -13-


         (v)    Insurance premiums (or the allocable portion thereof in the case
                of blanket policies) for all insurance maintained under Article
                XIII (other than insurance against physical damage to the Hotel)
                and losses incurred on any self-insured risks (including
                deductibles, but excluding deductibles and co-payments for
                losses for physical damage to the Hotel);

         (vi)   All taxes, assessments, permit fees, inspection fees, and water
                and sewer charges and other charges (other than income or
                franchise taxes) payable by or assessed against Owner with
                respect to the operation of the Hotel, excluding Property Taxes
                (as defined in Section 11.3);

         (vii)  All costs and fees of accountants, attorneys and other third
                parties who render professional services related to the
                operation of the Hotel, which under GAAP are expensed currently
                rather than capitalized;

         (viii) All expenses for advertising the Hotel and all expenses of
                sales promotion and public relations activities;

         (ix)   All out-of-pocket expenses and disbursements reasonably incurred
                by Operator, pursuant to, in the course of, and directly related
                to, the management and operation of the Hotel under this
                Agreement, which fees and disbursements shall be paid out of the
                Agency Account or reimbursed by Owner to Operator upon demand.
                Without limiting the generality of the foregoing, such charges
                may include all reasonable travel, telephone, telegram,
                facsimile, air express and other incidental expenses, but,
                except as otherwise provided in this Agreement, shall not
                include any of the regular expenses of the central offices
                maintained by Operator, other than offices maintained at the
                Hotel for the management of the Hotel. Operator shall maintain
                and make available to Owner invoices or other evidence
                supporting such charges;

         (x)    The Base Fee;

         (xi)   Payments under any applicable franchise agreement;

         (xii)  Any other item specified as an Operating Expense in this
                Agreement;

         (xiii) Fees for Centralized Services; and

         (xiv)  Any other cost or charge classified as an Operating Expense or
                an Administrative and General Expense under the Uniform System
                unless specifically excluded under the provisions of this
                Agreement.

     B. Operating Expenses shall not include:

         (i)    Amortization and depreciation;

         (ii)   the making of or the repayment of any loans or any interest,
                fees and charges, thereon;



                                      -14-


          (iii)  The costs of any alterations, additions or improvements which
                 for Federal income tax purposes or under GAAP must be
                 capitalized and amortized over the life of such alteration
                 addition or improvement;

          (iv)   Payments on account of any equipment lease that are to be
                 capitalized under GAAP;

          (v)    Payments under any ground lease, space lease or easement
                 agreement;

          (vi)   Any item defined as a Fixed Charge in Section 11.3; or

          (vii)  Any federal, state, local or franchise tax based upon net
                 income, capital or capitalization.

11.3. "FIXED CHARGES" shall mean the cost of the following items relating to the
Hotel or its facilities which are properly attributable under GAAP and the
Uniform System to the period in question:

          (i)    Real estate taxes, assessments, personal property taxes and any
                 other ad valorem taxes imposed on or levied in connection with
                 the Hotel, the Installations and the FF&E (collectively,
                 "PROPERTY TAXES");

          (ii)   Insurance against physical damage to the Hotel; and

          (iii)   Ground lease payments and charges, if any.

11.4. "GROSS OPERATING PROFIT" for any period shall mean the amount, if any, by
which Total Revenues for such period exceed Operating Expenses for such period.

11.5. "FISCAL YEAR" shall mean each twelve (12) consecutive calendar month
period or partial twelve (12) consecutive calendar month period within the
Operating Term commencing on January 1st (or, with respect to the first year of
the Operating Term, January 1, 2002 (the "OPENING DATE")) and ending on December
31st (or, with respect to the last year of the Operating Term, the expiration or
earlier termination of the Operating Term) unless Owner and Operator otherwise
agree.

11.6. "AFFILIATE" shall mean any corporation, partnership, sole proprietorship
or other entity or individual which (a) is owned or Controlled by such party,
(b) owns or Controls such party, or (c) is under common ownership or Control
with such party; provided that Operator shall not be deemed an Affiliate of
Owner and Owner shall not be deemed an Affiliate of Operator; and provided,
further, that (i) JABO LLC, The John E. Boykin 1997 Amended and Restated
Revocable Trust, The Robert W. Boykin Second 1997 Amended and Restated Revocable
Trust, Robert W. Boykin, John E. Boykin, and any entity Controlled by such
persons, and (ii) Owner, shall not be deemed to be Affiliates of each other.

11.7. "CONTROL" or "CONTROLLING" shall mean ownership of over fifty percent
(50%) of the voting stock, membership interests, partnership interests or other
equity interest of an entity or the ability to designate or cause to be elected
the managing member, general partner or over fifty percent (50%) of the board of
directors or the governing body of such entity.



                                      -15-


                                  ARTICLE XII

                         REPRESENTATIONS AND WARRANTIES

12.1. Owner, in order to induce Operator to enter into this Agreement, hereby
makes the following representations and warranties:

     A.   The execution of this Agreement is permitted by the Certificate of
          Formation and Operating Agreement of Owner and this Agreement has been
          duly authorized, executed and delivered on behalf of Owner and
          constitutes the legal, valid and binding obligation of Owner
          enforceable in accordance with the terms hereof;

     B.   There is no claim, litigation, proceeding or governmental
          investigation pending, or, as far as is known to Owner, threatened,
          against or relating to such party, the properties or business of Owner
          or the transactions contemplated by this Agreement which does, or may
          reasonably be expected to, materially or adversely affect the ability
          of Owner to enter into this Agreement or to carry out its obligations
          hereunder, and, to the best of Owner's knowledge, there is no basis
          for any such claim, litigation, proceedings or governmental
          investigation, except as has been fully disclosed in writing to
          Operator;

     C.   Neither the consummation of the transactions contemplated by this
          Agreement of the part of such party to be performed, nor the
          fulfillment of the terms, conditions and provisions of this Agreement,
          conflicts with or will result in the breach of any of the terms,
          conditions or provisions of, or constitute a default under, any
          agreement, indenture, instrument or undertaking to which Owner is a
          party or by which it is bound;

     D.   No approval of any third party (including any ground lessor or the
          holder of any Mortgage in effect as of the date of this Agreement) is
          required for Owner's execution and performance of this Agreement that
          has not been obtained prior to the execution of this Agreement; and

     E.   Owner holds all material governmental approvals required to be held by
          it to own the Hotel.

12.2. Operator, in order to induce Owner to enter into this Agreement, hereby
makes the following representations and warranties:

     A.   The execution of this Agreement is permitted by the Articles of
          Organizations and Operating Agreement of Operator and this Agreement
          has been duly authorized, executed and delivered on behalf of Operator
          and constitutes the legal, valid and binding obligation of Operator
          enforceable in accordance with the terms hereof;

     B.   There is no claim, litigation, proceeding or governmental
          investigation pending, or, as far as is known to Operator, threatened,
          against or relating to such party, the properties or business of
          Operator or the transactions contemplated by this Agreement which
          does, or may reasonably be expected to, materially or adversely affect
          the ability of Operator to enter into this Agreement or to carry out
          its obligations hereunder, and, to the best of Operator's knowledge,
          there is no basis for any such claim, litigation, proceedings or
          governmental investigation, except as has been fully disclosed in
          writing to Owner;



                                      -16-


     C.   Neither the consummation of the transactions contemplated by this
          Agreement of the part of such party to be performed, nor the
          fulfillment of the terms, conditions and provisions of this Agreement,
          conflicts with or will result in the breach of any of the terms,
          conditions or provisions of, or constitute a default under, any
          agreement, indenture, instrument or undertaking to which Operator is a
          party or by which it is bound;

     D.   No approval of any third party is required for Operator's execution
          and performance of this Agreement that has not been obtained prior to
          the execution of this Agreement; and

     E.   Operator holds all material governmental approvals required to be held
          by it to perform its obligations under this Agreement.

                                  ARTICLE XIII

                                    INSURANCE

13.1. The following insurance with respect to the Hotel shall be placed by
Operator (without charge or mark-up by Operator) and maintained throughout the
Operating Term at Owner's sole cost and expense:

     A.   Insurance covering the Building, the Installations and the FF&E on an
          all-risk, broad form basis, against such risks as are customarily
          covered by such insurance (including, without limitation, boiler and
          machinery insurance, but excluding damage resulting from earthquake,
          war, and nuclear energy), in aggregate amounts which shall be not less
          than the full replacement cost of the Building, the Installations and
          the FF&E (exclusive of foundations and footings);

     B.   Commercial general liability insurance with a combined single limit of
          not less than $1,000,000 for each occurrence, together with excess
          liability coverage of not less than $20,000,000, covering each of the
          following: (i) bodily injury, (ii) death, (iii) property damage, (iv)
          assault and battery, (v) false arrest, detention or imprisonment or
          malicious prosecution, (vi) libel, slander, defamation or violation of
          the right of privacy, (vii) wrongful entry or eviction, (viii) liquor
          law or dram shop liability, (ix) "all risk legal liability"; (x)
          products and completed operations, (xi) general aggregate, and (xii)
          personal and advertising injury.

     C.   Worker's compensation insurance or insurance required by similar
          employee benefit acts having a minimum per occurrence limit as
          Operator may reasonably deem advisable against all claims which may be
          brought for personal injury or death of the Hotel Employees, but in
          any event not less than amounts prescribed by applicable state law;

     D.   Fidelity insurance, in such amounts and with such deductibles as Owner
          may require, covering Operator's employees at the Hotel (other than
          executive employees of Operator) or in job classifications normally
          bonded in other hotels it manages in the United States or otherwise
          required by law;

     E.   Business interruption insurance/rent insurance covering loss of income
          (including gross rent and other charges) for a minimum period of one
          (1) year resulting from interruption of business caused by the
          occurrence of any of the risks insured against under "all-risk" policy
          referred to in Section 13.1(A);




                                      -17-


     F.   Employment Practices Liability Insurance ("EMPLOYMENT INSURANCE") with
          reasonable limits and deductibles;

     G.   If the Hotel is located within an area designated "flood prone"
          pursuant to the National Flood Insurance Act of 1968 and the Flood
          Disaster Protection Act of 1973, as the same may be amended from time
          to time, flood insurance in such amount as Owner may reasonably
          require;

     H.   Vehicle liability and physical damage insurance for owned, non-owned
          and hired vehicles in the amount of $10,000,000; and

     I.   Such other or additional insurance as may be (i) required under the
          provisions of the applicable Major Agreements, as the same may change
          from time to time (provided Operator has been given detailed written
          notice of such requirements) or (ii) reasonably requested by Owner.

13.2. All insurance policies shall name Operator as the insured party and shall
name as additional insureds Owner and such other parties as may be required by
the terms of any mortgage, deed of trust or franchise agreement as appropriate.
Upon thirty (30) days' prior written notice to Operator, Owner shall have the
right to obtain any insurance required under Sections 13.1 (A), (B), (E), (G)
and/or (H) above; provided, however, that in the event that Owner shall obtain
any insurance with respect to the Hotel other than through the program
established by Operator, such insurance policy shall name Operator as an
additional named insured party. Early cancellation penalties shall be borne by
Owner.

13.3. All insurance policies shall be in such form and with such companies as
shall be reasonably satisfactory to Owner and provided Owner has given Operator
a written copy of such requirements, shall comply with the requirements of any
mortgage or deed of trust encumbering the Hotel. Insurance may be provided under
blanket or master policies covering one or more other hotels operated by
Operator. The portion of the premium for any blanket or master policy which is
allocated to the Hotel as an Operating Expense or Fixed Charge shall be
determined in an equitable manner by Operator and reasonably approved by Owner.

13.4. All insurance policies shall specify that they cannot be canceled or
modified on less than twenty (20) days' prior written notice to both Owner and
Operator and any additional insureds (or such longer period as may be required
under any applicable mortgage or deed of trust, provided that Operator has been
advised in writing of such period), and shall provide that claims shall be paid
notwithstanding any act or negligence of Owner or Operator or their respective
agents or employees.

13.5. All insurance policies shall provide, to the extent customarily obtainable
from the insurance company providing such insurance, that the insurance company
will have no right of subrogation against Owner, Operator, any party to a
mortgage or deed of trust encumbering the Hotel, or any of their respective
agents, employees, partners, members, officers, directors or beneficial owners.

13.6. Owner and Operator hereby release one another from any and all liability,
to the extent of the waivers of subrogation obtained under Section 13.5,
associated with any damage, loss or liability with respect to which property
insurance coverage is provided pursuant to this Article or otherwise.

13.7. The proceeds of any insurance claim (other than proceeds payable to third
parties under the terms of the applicable policy) shall be paid into the Agency
Account to the extent of Owner's interest therein unless otherwise required by
the terms of any mortgage or deed of trust encumbering the Hotel.



                                      -18-


13.8. Provided Operator has given Owner at least ten (10) days' prior written
notice of the need for such funds and Owner has not paid the same, Operator
shall have the right to pay for, or reimburse itself for, insurance required
under this Article XIII out of the Agency Account. Operator shall have no
obligation to maintain any of the foregoing insurance if funds from Total
Revenues or funds otherwise provided by Owner are not available.

13.9. The term "full replacement cost" as used herein shall mean the actual
replacement cost of the Hotel requiring replacement from time to time including
an increased cost of construction endorsement in the amount of $5,000,000, if
available, and the cost of debris removal in an amount not to exceed 25% of the
cost of construction. In the event either party believes that full replacement
cost has increased or decreased at any time during the Term, it shall have the
right to have such full replacement cost re-determined. Operator shall obtain
such additional insurance as may be required as a result of such
re-determination as full replacement cost.

13.10. All insurance policies covering the Hotel (including the Installations,
FF&E or any personal property), and all insurance covering loss of income and
business interruption, shall expressly waive any coinsurance penalty and
resulting reduction in insurance proceeds, provided that a waiver of coinsurance
is applicable with respect to a given insurance policy.

13.11. Operator shall promptly investigate and make a written report to the
appropriate insurance company as to all accidents, claims for damage relating to
the ownership, operation, and maintenance of the Hotel, any damage or
destruction to the Hotel and the estimated cost of repair thereof and shall
prepare any and all reports required by any insurance company in connection
therewith. Operator shall submit such proposed filings and reports relating to
such claims to Owner for its review and approval, which approval shall not be
unreasonably withheld or delayed, prior to submitting same to the appropriate
insurance company. All other adjustments, settlements and compromises shall be
made only with the prior written consent of Owner.

                                  ARTICLE XIV

                        PROPERTY TAXES; LEGAL PROCEEDINGS

14.1. If required under the Percentage Lease, provided that funds from Total
Revenues or funds otherwise provided by Owner are available after payment of
Operating Expenses and the Incentive Fee, if any, Operator shall pay all
Property Taxes on behalf of Owner not less than ten (10) days prior to the
applicable due dates. Upon Owner's request, Operator shall promptly furnish
Owner with proof of payment of Property Taxes.

14.2. Upon Owner's request, Operator shall from time to time advise Owner of the
desirability of contesting the validity or amount of any Property Tax (a "TAX
CONTEST"). Owner may, whether or not Operator so recommends, pursue a Tax
Contest, and Operator agrees to cooperate with Owner in a Tax Contest and
execute any documents or pleadings required for such purpose, provided that the
facts set forth in such documents or pleadings are accurate and that such
cooperation or execution does not impose any liability on Operator. All costs
and expenses incurred by Owner and Operator in connection with a Tax Contest
shall be Operating Expenses.

14.3. All legal proceedings of any type or nature involving or relating to the
Hotel (other than as between Owner and Operator) or the operation thereof
("LEGAL PROCEEDINGS") shall be overseen by Operator. Such oversight shall
include referring any Legal Proceedings to the appropriate insurance carrier for
the defense thereof, to the extent covered by insurance ("INSURED CLAIMS").
Operator's




                                      -19-


oversight shall also include (i) providing Owner with prior (or simultaneous)
written notice of all Legal Proceedings, (ii) instituting or defending Legal
Proceedings, (iii) selecting outside counsel in connection with such Legal
Proceedings, subject to the reasonable approval of Owner, (iv) directing and
supervising such outside counsel, (v) furnishing to Owner any information
reasonably requested by Owner regarding any Legal Proceedings, and (vi)
providing quarterly status reports on any Legal Proceedings to Owner.
Notwithstanding the foregoing, Owner shall have a right, exercisable by
delivering written notice to Operator at any time, to direct and control all
Legal Proceedings (including the selection of outside counsel) regarding Major
Insured Claims, Uninsured Claims, and Non-Operational Claims and, if Owner
exercises such right, Operator shall not commence or participate in any such
proceeding without Owner's prior and continuing approval of both the proceeding,
the conduct thereof and the counsel therefor. Operator shall provide all
cooperation reasonably requested by Owner or its counsel in connection with all
Legal Proceedings under the direction and control of Owner.

14.4. The term "MAJOR INSURED CLAIMS" shall mean all Insured Claims to the
extent the claim exceeds $200,000. The term "UNINSURED CLAIMS" shall mean any
Legal Proceedings that are not Insured Claims, where the claim exceeds $10,000.
The term "NON-OPERATIONAL CLAIMS" shall mean any Legal Proceedings that are not
Operational Claims. The term "OPERATIONAL CLAIMS" shall mean any and all claims
to collect charges, rents or other income derived from the Hotel's operations or
to dispossess guests, tenants or other persons in possession of all or any
portion of the Hotel, or to cancel or terminate any lease, license, service
contract or possession agreement for the breach thereof or default thereunder by
the other party thereto and any other claim relating to the operation (as
distinguished from the ownership) of the Hotel, excluding any claim relating to,
arising out of or in connection with any agreement, arrangement or understanding
(i) having a term of more than one year that cannot be cancelled by Owner
without penalty on no more than 90 days' prior written notice or (ii) by
Operator or its Affiliates that affects that Hotel and any other property.

14.5. Notwithstanding anything herein to the contrary, Operator shall be
entitled to participate in the conduct of any Legal Proceeding under the
direction and control of Owner in which Operator is a named defendant or which
affects any agreement of Operator or its Affiliates regarding any property other
than the Hotel, at Operator's sole expense if not otherwise being defended by
Owner's counsel, provided that Operator's participation shall not interfere with
the conduct of such action by Owner. Notwithstanding the foregoing, Operator's
legal counsel shall be at the expense of Owner if in the reasonable opinion of
Owner's legal counsel such counsel cannot ethically represent both Owner and
Operator because of a conflict of interest.

                                   ARTICLE XV

                       DAMAGE OR DESTRUCTION; CONDEMNATION

15.1. If the Hotel is damaged by fire or other casualty, Operator shall promptly
notify Owner. This Agreement shall remain in full force and effect subsequent to
such casualty provided that either party may terminate this Agreement upon
thirty (30) days' prior notice to the other party if (a) Owner shall elect to
close the Hotel as a result of such casualty (except on a temporary basis for
repairs or restoration) or (b) Owner shall determine in good faith not to
proceed with the restoration of the Hotel and provided further that Operator may
terminate this Agreement upon thirty (30) days' prior notice to Owner if 20% or
more of the rooms in the Hotel are unavailable for rental for a period of sixty
(60) days or more as a result of such casualty.

15.2. If all or any portion of the Hotel becomes the subject of a condemnation
proceeding or if Operator learns that any such proceeding may be commenced,
Operator shall promptly notify Owner.




                                      -20-


Either party may terminate this Agreement on thirty (30) days' notice to the
other party if (a) all or substantially all of the Hotel is taken through
condemnation or (b) less than all or substantially all of the Hotel is taken,
but, in the reasonable judgment of the party giving the termination notice, the
Hotel cannot, after giving effect to any restoration as might be reasonably
accomplished through available funds from the condemnation award, be profitably
operated as a first-class, full-service hotel. Additionally, Operator may
terminate this Agreement upon thirty (30) days' prior notice to Owner if 20% or
more of the rooms in the Hotel are unavailable for rental for a period of sixty
(60) days or more as a result of a condemnation.

15.3. Any condemnation award or similar compensation shall be the property of
Owner, provided that Operator shall have the right to bring a separate
proceeding against the condemning authority for any damages and expenses
specifically incurred by Operator as a result of such condemnation.

15.4. Neither Owner nor Operator shall be liable for any termination fee,
penalty or liability made in connection with a termination of this agreement
pursuant to the provisions of this Article XV.

                                  ARTICLE XVI

                                EVENTS OF DEFAULT

16.1. The following shall constitute events of default:

     A.   If either party shall be in default in the payment of any amount
          required to be paid under the terms of this Agreement, and such
          default continues for a period of ten (10) days after written notice
          from the other party;

     B.   If either party shall be in material default in the performance of its
          other obligations under this Agreement, and such default continues for
          a period of thirty (30) days after written notice from the other
          party, provided that if such default cannot by its nature reasonably
          be cured within such thirty (30)-day period, an event of default shall
          not occur if and so long as the defaulting party promptly commences
          and diligently pursues the curing of such default;

     C.   If either party shall (i) make an assignment for the benefit of
          creditors, (ii) institute any proceeding seeking relief under any
          federal or state bankruptcy or insolvency laws, (iii) institute any
          proceeding seeking the appointment of a receiver, trustee, custodian
          or similar official for its business or assets or (iv) consent to the
          institution against it of any such proceeding by any other person or
          entity (an "INVOLUNTARY PROCEEDING"); or

     D.   If an Involuntary Proceeding shall be commenced against either party
          and shall remain undismissed for a period of sixty (60) days.

16.2. If any event of default shall occur, the non-defaulting party may
terminate this Agreement on five (5) days' prior notice to the defaulting party.
Except as otherwise provided in Section 21.2(d), neither Owner nor Operator
shall be liable to the other for any termination fee, penalty or liability in
connection with the rightful termination of the other party in accordance with
this Section 16.2, but each party shall remain responsible for all fees and
expenses then due and payable hereunder to the other party and its Affiliates.
No termination pursuant to this Section 16.2 shall be effective unless and until
Owner shall pay to Operator and its Affiliates all amounts then due and owing at
the time of such termination to Operator and its Affiliates, excluding such
amounts about which there is a good faith dispute, provided




                                      -21-


that Owner shall be entitled to offset against such amounts any amounts due and
owing at the time of such termination to Owner and its Affiliates by Operator
and its Affiliates, excluding such amounts about which there is a good faith
dispute.

16.3. The right of termination set forth in Section 16.2 shall not be in
substitution for, but shall be in addition to, any and all rights and remedies
for breach of contract or otherwise available in law or at equity.

16.4. Neither party shall be deemed to be in default of its obligations under
this Agreement if and to the extent that such party is unable to perform such
obligation as a result of fire or other casualty, act of God, strike or other
labor unrest, unavailability of materials, terrorist act, war, riot or other
civil commotion or any other cause beyond the control of such party, which shall
not include the inability of such party to meet its financial obligations
(collectively, "FORCE MAJEURE EVENTS").

                                  ARTICLE XVII

                               TERMINATION RIGHTS

17.1. Owner may terminate this Agreement at any time upon ninety (90) days'
prior written notice to Operator; provided, however, that no such termination
shall be effective unless and until Owner shall pay to Operator and its
Affiliates all amounts then due and owing to Operator and its Affiliates.

17.2. Owner shall not be liable for any termination fee, penalty or liability in
connection with a termination of this Agreement pursuant to the provisions of
this Article XVII.

                                 ARTICLE XVIII

                                   ASSIGNMENT

18.1. Operator shall not assign, pledge or encumber this Agreement or its
interest in this Agreement without the prior consent of Owner, provided that
Operator may, without the consent of Owner, assign this Agreement to (a) any
entity directly or indirectly controlling, controlled by or under common control
with Operator (control being deemed to mean the ownership of 50% or more of the
stock or other beneficial interest in such entity and/or the power to direct the
day-today operations of such entity), (b) any entity which is the successor by
merger, consolidation or reorganization of Operator or Operator's general
partner or parent corporation, or (c) the purchaser of all or substantially all
of the hotel management business of Operator or Operator's general partner,
managing member or parent corporation.

18.2. Owner may transfer or assign its rights and obligations under this
Agreement without the consent of Operator, but shall deliver to Operator written
notice of such transfer or assignment not less than thirty (30) days prior to
the effective date thereof; provided, however, that Operator shall have the
right within thirty (30) days following receipt of such notice to terminate this
Agreement, which right shall be exercised by the delivery of notice by Operator
to Owner within such thirty (30) days. In the event that Operator exercises its
right to terminate this Agreement pursuant to this Section 18.2, such
termination shall not be effective any earlier than ninety (90) days after
delivery of Operator's notice to terminate to Owner.

18.3. Upon any permitted assignment of this Agreement and the assumption of this
Agreement by the assignee, the assignor shall be relieved of any obligation or
liability under this Agreement arising after the effective date of the
assignment.



                                      -22-


                                  ARTICLE XIX

                                     NOTICES

19.1. Any notice, statement or demand required to be given under this Agreement
shall be in writing, sent by certified mail, postage prepaid, return receipt
requested, or by facsimile transmission, receipt electronically or verbally
confirmed, or by nationally-recognized overnight courier, receipt confirmed,
addressed if to:

             Owner:          __________________
                             45 W. Prospect Avenue
                             Guildhall Building #1500
                             Cleveland, Ohio 44115
                             Attn:  President

             and Operator:   Boykin Management Company Limited Liability Company
                             45 W. Prospect Avenue
                             Guildhall Bldg. #1515
                             Cleveland, Ohio 44115
                             Attention:   President
                             Facsimile No.: (216) 241-1329

or to such other addresses as Operator and Owner shall designate in the manner
provided in this Section 19.1. Any notice or other communication shall be deemed
given (a) on the date on which it is received, if sent by certified mail, (b) on
the business day it shall have been sent by facsimile transmission (unless sent
on a non-business day or after business hours in which event it shall be deemed
given on the following business day), or (c) on the date received if it shall
have been given to a nationally-recognized overnight courier service.

                                   ARTICLE XX

                                    ESTOPPELS

20.1. Owner and Operator agree that from time to time upon the request of the
other party or from the lender under any mortgage or deed of trust encumbering
the Hotel), it shall execute and deliver within ten (10) days after the request
a certificate confirming that this Agreement is in full force and effect,
stating whether this Agreement has been modified and supplying such other
information as the requesting party may reasonably require.

                                  ARTICLE XXI

                                 INDEMNIFICATION

21.1. Operator shall indemnify and hold Owner (and Owner's agents, principals,
shareholders, partners, members, officers, directors and employees) harmless
from and against all liabilities, losses, claims, damages, costs and expenses
(including, but not limited to, reasonable attorneys' fees and expenses) that
may be incurred by or asserted against any such party and that arise from (a)
the fraud, willful misconduct or gross negligence of Operator, (b) the breach by
Operator of any provision of this Agreement, including, without limitation, any
action taken by Operator which is beyond the scope of




                                      -23-


Operator's authority under this Agreement. Owner shall promptly provide Operator
with written notice of any claim or suit brought against it by a third party
which might result in such indemnification.

21.2. Except as provided in Section 21.1, Owner shall indemnify and hold
Operator (and Operator's agents, principals, shareholders, partners, members,
officers, directors and employees) harmless from and against all liabilities,
losses, claims, damages, costs and expenses (including, but not limited to,
reasonable attorneys' fees and expenses) that may be incurred by or asserted
against such party and that arise from or in connection with (a) the performance
of Operator's services under this Agreement, (b) any act or omission (whether or
not willful, tortious, or negligent) of Owner or any third party, (c) or any
other occurrence related to the Hotel whether arising before, during or after
the Operating Term, or (d) any liability to which Operator is subjected pursuant
to WARN in connection with the termination of this Agreement, provided that
Operator has provided notices in the form (other than any reference to the time
period) required by WARN within five (5) Business Days of Operator's receipt of
a notice of the termination of this Agreement, excluding any termination of this
Agreement which results from the commission of any theft, embezzlement or other
criminal misappropriation of Hotel or Owner funds or any fraud or felony by any
executive of Operator that relates to or materially affects the operation or
reputation of the Hotel. Operator shall promptly provide Owner with written
notice of any claim or suit brought against it by a third party which might
result in such indemnification.

21.3. Any party obligated to indemnify the other party under this Agreement (the
"INDEMNIFYING PARTY") shall have the right, by notice to the other party, to
assume the defense of any claim with respect to which the other party is
entitled to indemnification hereunder; provided that the Indemnifying Party
expressly acknowledges its obligation to provide indemnity hereunder. If the
Indemnifying Party gives such notice, (i) such defense shall be conducted by
counsel selected by the Indemnifying Party and approved by the other party, such
approval not to be unreasonably withheld or delayed (provided, however, that the
other party's approval shall not be required with respect to counsel designated
by the Indemnifying Party's insurer); (ii) so long as the Indemnifying Party is
conducting such defense with reasonable diligence, the Indemnifying Party shall
have the right to control said defense and shall not be required to pay the fees
or disbursements of any counsel engaged by the other party for services rendered
after the Indemnifying Party has given the notice provided for above to the
other party, except if there is a conflict of interest between the parties with
respect to such claim or defense; and (iii) the Indemnifying Party shall have
the right, without the consent of the other party, to settle such claim, but
only provided that such settlement involves only the payment of money, the
Indemnifying Party pays all amounts due in connection with or by reason of such
settlement and, as part thereof, the other party is unconditionally released
from all liability in respect of such claim. The other party shall have the
right to participate in the defense of any claim being defended by the
Indemnifying Party at the expense of the other party, but the Indemnifying Party
shall have the right to control such defense (other than in the event of a
conflict of interest between the parties with respect to such claim or defense).
In no event shall (i) the other party settle any claim without the consent of
the Indemnifying Party so long as the Indemnifying Party is conducting the
defense thereof in accordance with this Agreement; or (ii) if a claim is covered
by the Indemnifying Party's liability insurance, take or omit to take any action
which would cause the insurer not to defend such claim or to disclaim liability
in respect thereof.

21.4. The provisions of this Article shall survive the termination of this
Agreement with respect to acts, omissions and occurrences arising during the
Operating Term.



                                      -24-


                                  ARTICLE XXII

                                  SUBORDINATION

22.1. It is mutually agreed that this Agreement is subject and subordinate to
the lien of all and any Mortgages held by mortgagees that are not Affiliates of
Owner. The term "MORTGAGES" shall include both construction and permanent
financing as well as secondary or junior financings and personal property
financing and shall include deeds of trust and similar security instruments that
may now or hereafter encumber or otherwise affect the Hotel and to all and any
renewals, extensions, modifications, recastings or refinancings thereof. This
clause shall be self-operative and no further instrument of subordination shall
be required by any mortgagee, trustee, beneficiary, or secured party. At Owner's
request, Operator shall promptly execute any requisite or appropriate
certificate or other documents to reflect that this Agreement is subject and
subordinate to the lien described above.

22.2. After the occurrence of, and during the continuation of, a default under
any Mortgages of mortgagees that are not Affiliated with Owner, the Incentive
Fee shall be accrued and not paid to Operator, provided that upon the curing of
such default, the accrued but unpaid Incentive Fee, together with interest
(calculated at eight percent (8%) per annum) accrued thereon from the date such
Incentive Fee should have been paid in accordance with the terms of this
Agreement to the date of such payment, shall be immediately paid to Operator.

22.3. Operator agrees to negotiate in good faith with Owner with respect to any
modifications to this Agreement or any ancillary agreement that may reasonably
be required or requested by any such construction or permanent institutional
first mortgagee not Affiliated with Owner. Operator agrees that the operation is
expressly conditioned upon the approval hereof by such mortgagee and the
satisfaction by Owner and Operator of such additional conditions and
requirements as may be imposed by such construction or permanent institutional
first mortgagee, provided, however, that Operator shall not be required to
accept modifications other than the aforementioned subordination that materially
and adversely affect its rights and obligations hereunder.

22.4. It is agreed that in the event any party shall succeed to the interest of
Owner through foreclosure or through a deed in lieu thereof, no liability or
outstanding obligation of Owner to Operator that arose prior to such foreclosure
or deed shall bind, obligate, or become a liability of such party, but Owner
shall remain liable therefore.

22.5. If requested to do so by any mortgagee not Affiliated with Owner, Operator
shall furnish to such mortgagee a copy of any financial report, statement,
schedule, or plan required under this Agreement, to be submitted by Operator to
Owner.

22.6. A copy of all notices of default under this Agreement shall be provided to
any mortgagee of the Hotel, and such mortgages shall be given a reasonable
opportunity to cure such default. In addition, upon the request of any mortgagee
or of either party hereto, Owner and/or Operator shall provide for such
requesting party or such mortgagee estoppel certificates that shall state that
this Agreement is in full force and shall specify any known defaults, if any,
thereunder. Operator shall certify to such mortgagee, and/or to Owner, that all
preconditions and the full effectiveness of the Agreement have been satisfied
and that the Operating Term has commenced.



                                      -25-


                                 ARTICLE XXIII

                                  MISCELLANEOUS

23.1. Owner and Operator shall execute and deliver any additional documents and
instruments and take any other action that may be necessary or appropriate to
effectuate the intent and purpose of this Agreement.

23.2. Operator may engage one or more of its Affiliates or other related parties
to furnish goods or services to the Hotel; provided, however, that the terms of
any such arrangement, when taken as a whole, shall not be materially less
favorable to the Hotel than the prevailing terms of similar such arrangements
obtainable on a commercially reasonable basis from unrelated parties in the area
of the Hotel. Operator shall promptly notify Owner of any such engagement of
Operator's Affiliates to the extent such engagement and affiliation are not
included in the applicable Budgets.

23.3. During the Operating Term,  Operator shall qualify as an "eligible
independent  contractor" as defined in Section  856(d)(9)  of the  Internal
Revenue  Code of 1986,  as  amended  (the  "CODE").  To that end,  during the
Operating Term:

     (a) Operator shall not permit wagering activities to be conducted at or in
connection with the Hotel;

     (b) Operator shall not own, directly or indirectly (within the meaning of
Section 856(d)(5) of the Code), more than 35% of the shares of Boykin Lodging
Company;

     (c) no more than 35% of the total combined voting power of Operator's
outstanding stock (or 35% of the total shares of all classes of its outstanding
stock) shall be owned, directly or indirectly, by one or more persons owning 35%
or more of the outstanding stock of Boykin Lodging Company; and

     (d) Operator (or a person who is a "related person" within the meaning of
Section 856(d)(9)(F) of the Code (a "RELATED PERSON") with respect to Operator))
shall be actively engaged in the trade or business of operating "qualified
lodging facilities" (defined below) for one or ore persons who are not Related
Persons with respect to Boykin Lodging Company or Owner ("UNRELATED PERSONS").

A "qualified lodging facility" is defined in Section 856(d)(9)(D) of the Code
and means a "lodging facility" (defined below), unless wagering activities are
conducted at or in connection with such facility by any person who is engaged in
the business of accepting wagers and who is legally authorized to engage in such
business at or in connection with such facility. A "LODGING FACILITY" is a
hotel, motel or other establishment more than one-half of the dwelling units in
which are used on a transient basis, and includes customary amenities and
facilities operated as part of, or associated with, the lodging facility so long
as such amenities and facilities are customary for other properties of a
comparable size and class owned by other owners unrelated to Boykin Lodging
Company.

23.4. This Agreement constitutes the entire agreement between the parties
relating to the subject matter hereof, superseding all prior agreements or
undertakings, oral or written. Owner acknowledges that in entering into this
Agreement Owner has not relied on any projection of earnings, statements as to
the possibility of future success or other similar matter which may have been
prepared by Operator.



                                      -26-


23.5. The headings of the titles to the several articles of this Agreement are
inserted for convenience only and are not intended to affect the meaning of any
of the provisions hereof.

23.6. A waiver of any of the terms and conditions of this Agreement may be made
only in writing and shall not be deemed a waiver of such terms and conditions on
any future occasion.

23.7. This Agreement shall be binding upon and inure to the benefit of Owner and
Operator and their respective successors and permitted assigns.

23.8. This Agreement shall be construed, both as to its validity and as to the
performance of the parties, in accordance with the laws of the state of Ohio.







                                      -27-




     IN WITNESS WHEREOF, Operator and Owner have duly executed this Agreement
the day and year first above written.


                                     "OWNER"




                                     -----------------------

                                     By:    BellBoy, Inc., Sole Member

                                            By: /s/ Richard C. Conti
                                                --------------------
                                                Name: Richard C. Conti
                                                Title: President


                                     "OPERATOR"


                                     By:  BOYKIN MANAGEMENT COMPANY
                                          LIMITED LIABILITY COMPANY

                                            By: /s/ John E. Boykin
                                                ------------------
                                                Name: John E. Boykin
                                                Title: Secretary

EX-99.4

                                                                    Exhibit 99.4


                    AMENDMENT TO SHAREHOLDER RIGHTS AGREEMENT

     This Amendment to SHAREHOLDER RIGHTS Agreement (this "Amendment"), dated as
of December 31, 2001, is between BOYKIN LODGING COMPANY, an Ohio corporation
(the "Company"), and NATIONAL CITY BANK, a national banking association (the
"Rights Agent").

                                    RECITALS:

     WHEREAS, the Company and the Rights Agent are parties to that certain
Shareholder Rights Agreement, dated as of May 25, 1999 (the "Shareholder Rights
Agreement"), which was authorized by the Company's Board of Directors to provide
shareholders of the Company with the opportunity to benefit from the long-term
prospects and value of the Company and to ensure that shareholders of the
Company receive fair and equal treatment in the event of any proposed takeover
of the Company; and

     WHEREAS, the Company desires to amend the Shareholder Rights Agreement in
connection with the execution of the Master Contribution Agreement, dated as of
December 31, 2001, by and among Boykin Management Company Limited Liability
Company, an Ohio limited liability company, JABO LLC, a Delaware limited
liability company, the Company and Boykin Hotel Properties, L.P., an Ohio
limited partnership, and the consummation of the transactions contemplated
thereby.

                                   AGREEMENTS

     1. DEFINED TERMS. Unless otherwise defined herein, capitalized terms used
in this Amendment shall have the meanings ascribed thereto in the Shareholder
Rights Agreement.

     2. ACQUIRING PERSON. The definition of the term "Acquiring Person" in
Section 1(a) of the Shareholder Rights Agreement is hereby deleted in its
entirety and replaced with the following:

     "Acquiring Person" means any Person (as defined herein) who, together with
all Affiliates (as defined herein) and Associates (as defined herein) of such
Person, is the Beneficial Owner (as defined herein) of 15% or more of the Common
Shares then outstanding, but does not include (i) the Company, (ii) any
Subsidiary (as defined herein) of the Company, (iii) any employee benefit plan
or compensation arrangement of the Company or of any Subsidiary of the Company,
or (iv) any Person holding Common Shares organized, appointed or established by
the Company or by any Subsidiary of the Company for or pursuant to the terms of
any employee benefit plan or compensation arrangement described in Section
1(a)(iii), (the Persons described in clauses (i) through (iv) above are referred
to herein as "Exempt Persons"). In addition, (i) AEW Partners III, L.P., a
Delaware limited partnership ("AEW"), is not an Acquiring Person with respect to
Common Shares (the "AEW Shares") acquired or to be acquired under the Stock
Purchase Agreement dated as of February 1, 1999 (the "Purchase Agreement") among
the Company, Boykin Hotel Properties, L.P., an Ohio limited partnership ("BHP"),
and AEW, and on exercise of the Initial Warrant or the Expansion Warrant (each
as defined in the Purchase Agreement), except to the extent that any acquisition
or series of acquisitions under the Purchase Agreement, the Initial Warrant and
the Expansion Warrant of less than 15% of the Common Shares, when combined with
Common Shares then beneficially owned by AEW (within the meaning of Section
1(d)(i) hereof, but excluding Common Shares beneficially owned by an Affiliate
that is not an Associate of AEW and without giving effect to Rule 13d-3(d) of
the Rules under the Exchange Act), results in AEW beneficially owning (as
defined in the immediately preceding clause of this sentence)






15% or more of the Common Shares then outstanding and (ii) the Common Shares
acquired or to be acquired by JABO LLC, a Delaware limited liability company
("JABO"), upon redemption by the Company of BHP partnership units issued to JABO
pursuant to the Master Contribution Agreement (the "Contribution Agreement"),
dated as of December 31, 2001, by and among Boykin Management Company Limited
Liability Company, an Ohio limited liability company, JABO, the Company and BHP
(the "JABO Shares"), shall not be included in the calculation of the beneficial
ownership of Common Shares of JABO or any of JABO's Affiliates or Associates,
except (A) to the extent that any issuance of JABO Shares to JABO of less than
15% of the issued and outstanding Common Shares, when combined with Common
Shares then beneficially owned by JABO (within the meaning of Section 1(d)(i)
hereof), results in JABO beneficially owning (as defined in the immediately
preceding clause of this sentence) 20% or more of the Common Shares then issued
and outstanding, and (B) if, at the time of any issuance of JABO Shares to JABO,
JABO is not controlled (as that term is defined in Rule 12b-2 of the Exchange
Act) by Robert W. Boykin or John E. Boykin.

     Notwithstanding the foregoing, (i) no Person will become an "Acquiring
Person" as a result of an acquisition by the Company of Common Shares that, by
reducing the number of shares outstanding, increases the proportionate number of
shares beneficially owned by such Person from below 15% to 15% or more of the
Common Shares then outstanding; however, if a Person becomes a Beneficial Owner
of 15% or more of the Common Shares then outstanding by reason of share
purchases by the Company and, after those share purchases are made, becomes the
Beneficial Owner of any additional Common Shares (other than pursuant to a share
split, share dividend or similar transaction) and immediately thereafter is the
Beneficial Owner of 15% or more of the Common Shares then outstanding, then that
Person will be an "Acquiring Person" and (ii) neither JABO nor any of its
Affiliates and Associates (collectively, the "JABO Parties") will become an
"Acquiring Person" as a result of an acquisition by the Company of Common Shares
that, by reducing the number of shares outstanding, increases the proportionate
number of shares beneficially owned by such JABO Party from below 20% to 20% or
more of the Common Shares then outstanding; however, if a JABO Party becomes a
Beneficial Owner of 20% or more of the Common Shares then outstanding by reason
of share purchases by the Company and, after those share purchases are made,
becomes the Beneficial Owner of any additional Common Shares (other than
pursuant to a share split, share dividend or similar transaction) and
immediately thereafter is the Beneficial Owner of 20% or more of the Common
Shares then outstanding, then that Person will be an "Acquiring Person."

     In addition, notwithstanding the foregoing, a Person is not an "Acquiring
Person" if the Board of Directors determines that a Person who would otherwise
be an "Acquiring Person," inadvertently acquired the Common Shares that would
otherwise make the Person an "Acquiring Person," if that Person as promptly as
practicable divests a sufficient number of Common Shares so that that Person is
a Beneficial Owner of less than 15% (or, in the case of the JABO Parties, less
than 20%) of the Common Shares then outstanding.

     3. COUNTERPARTS. This Amendment may be executed in multiple counterparts,
each of which shall be deemed an original and all of which together shall
constitute one action. The signature page of any individual or entity, or copies
or facsimiles thereof, may be appended to any counterparts of this action and
when so appended shall constitute an original.

     4. FULL FORCE AND EFFECT. Except as expressly amended by this Amendment,
all other terms and conditions of the Shareholder Rights Agreement shall remain
in full force and effect and unmodified hereby.

     5. GOVERNING LAW. This Amendment is governed by and construed in accordance
with the laws of the State of Ohio, without regard to principles of conflicts of
law.




                                     Page 2






                  [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]















                                     Page 3







     IN WITNESS WHEREOF, this Amendment has been executed in one or more
counterparts by or on behalf of each of the parties hereto as of the date first
written above.

                                         BOYKIN LODGING COMPANY,
                                         an Ohio corporation


                                         By: /s/ Richard C. Conti
                                             --------------------
                                         Name: Richard C. Conti
                                         Title: President



                                         NATIONAL CITY BANK, a national banking
                                         Association, as Rights Agent


                                         By: /s/ Laura Kress
                                             ---------------
                                         Name: Laura Kress
                                         Title: Vice President










                                     Page 4

EX-99.5

                                                                    Exhibit 99.5


                          REGISTRATION RIGHTS AGREEMENT

     THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of January 1, 2002 by and between BOYKIN LODGING COMPANY, an Ohio
corporation (the "Company"), and JABO LLC, a Delaware limited liability company
(the "Holder").

     WHEREAS, the Holder is receiving on the date hereof Partnership Units
("Units") in Boykin Hotel Properties, L.P., an Ohio limited partnership (the
"BHP");

     WHEREAS, the Holder may exchange the Units for cash or, at the Company's
election, the Company may issue its common shares (the "Exchange Shares") to
satisfy the Holder's rights pursuant to the terms of the Second Amended and
Restated Agreement of Limited Partnership of BHP, dated as of May 20, 1998,
among the Company and certain limited partners named therein, as amended by
Amendment to Second Amended and Restated Agreement of Limited Partnership of
BHP, dated as of February 1, 1999, and Second Amendment to Second Amended and
Restated Agreement of Limited Partnership of BHP, dated as of January 1, 2002
(the "Partnership Agreement");

     WHEREAS, in connection therewith, the Company has agreed to grant to the
Holder the Registration Rights (as defined in Section 1 hereof);

     NOW, THEREFORE, the parties hereto, in consideration of the foregoing and
the mutual covenants and agreements hereinafter set forth, hereby agree as
follows:

SECTION 1. REGISTRATION RIGHTS

     If the Holder receives any Exchange Shares upon any exchange of Units, then
the Holder shall be entitled to offer for sale pursuant to an effective
registration statement filed with the Securities and Exchange Commission (the
"Commission"), the Exchange Shares, subject to the terms and conditions set
forth in this Agreement (the "Registration Rights").

SECTION 2. DEMAND REGISTRATION RIGHTS

     2.1 (a) Registration Procedure. Subject to Sections 2.1(c) and 2.2 hereof,
if the Holder desires to exercise its Registration Rights with respect to the
Exchange Shares, the Holder shall deliver to the Company a written notice (a
"Registration Notice") informing the Company of such exercise and specifying the
number of shares to be offered by the Holder (such shares to be offered being
referred to herein as the "Registrable Securities", and such registration, a
"Demand Registration").






Such notice may be given at any time on or after the date a notice of exchange
is delivered by the Holder to BHP pursuant to the Partnership Agreement, but
must be given at least twenty (20) Business Days prior to the desired
consummation of the sale of Registrable Securities. As used in this Agreement, a
"Business Day" is any Monday, Tuesday, Wednesday, Thursday or Friday other than
a day on which banks and other financial institutions are authorized or required
to be closed for business in the State of Ohio. Upon receipt of the Registration
Notice, the Company will cause to be filed with the Commission as soon as
reasonably practicable after receiving the Registration Notice a registration
statement and related prospectus that complies as to form in all material
respects with the requirements of the Securities Act of 1933, as amended (the
"Act"), and of the rules and regulations thereunder providing for the sale by
the Holder of the Registrable Securities, and agrees (subject to Section 3.2
hereof) to use its commercially reasonable efforts to cause such registration
statement to be declared effective by the Commission as soon as practicable. (As
used herein, "Registration Statement" and "Prospectus" refer to the registration
statement and related prospectus (including any preliminary prospectus),
including any documents incorporated therein by reference.) Prior to filing a
Registration Statement or Prospectus or any amendments or supplements thereto,
the Company shall (i) provide the Holder with an adequate and appropriate
opportunity to participate in the preparation of such Registration Statement and
each Prospectus included therein (and each amendment or supplement thereto or
comparable statement) to be filed with the Commission and (ii) not file any such
Registration Statement or Prospectus (or amendment or supplement thereto or
comparable statement) with the Commission to which the Holder's counsel or any
underwriter shall have reasonably objected on the grounds that such filing does
not comply in all material respects with the requirements of the Act and of the
rules and regulations thereunder. The Holder agrees to provide in a timely
manner information regarding the proposed distribution by the Holder of the
Registrable Securities and all other information reasonably requested by the
Company in connection with the preparation of and for inclusion in the
Registration Statement. In connection with any Registration Statement utilized
by the Company to satisfy the Holder's Registration Rights pursuant to this
Section 2, the Holder agrees that it will respond within ten (10) Business Days
to any request by the Company to provide or verify information regarding the
Holder or the Holder's Registrable Securities as may be required to be included
in such Registration Statement pursuant to the requirements of the Act and of
the rules and regulations thereunder.

     (b) Offers and Sales. All offers and sales by the Holder under the
Registration Statement referred to in this Section 2 shall be completed within
the period during which the Registration Statement is required to remain
effective pursuant to Section 4(a), and upon expiration of such period the
Holder will not offer or sell any Registrable Securities under the Registration
Statement. If directed by the Company, the Holder will return all undistributed
copies of the Prospectus in its possession upon the expiration of such period.



                                      -2-


     (c) Limitations on Registration Rights. Each exercise of a demand
registration right shall be with respect to a minimum of the lesser of (i) a
number of Exchange Shares with an aggregate value of $3,000,000, calculated
based on the closing price for the common shares of the Company on the day
before the date of the Registration Notice, or (ii) the total number of Exchange
Shares held by the Holder at such time. The Company shall be obligated to effect
no more than two (2) Demand Registrations under this Agreement; provided,
however, that if any Demand Registration is not consummated other than by reason
of any action of or failure to act by the Holder (a "Failed Registration"), such
Failed Registration shall not be deemed to constitute a Demand Registration
under this Section 2.1(c) and shall not reduce the Company's obligations
hereunder. The right of the Holder to deliver a Registration Notice commences
upon the date the Holder first receives Exchange Shares from the Company in
exchange for the Units, or any of them, pursuant to the Partnership Agreement.
The right of the Holder to deliver a Registration Notice shall expire on the
third anniversary of the date the Holder first receives Exchange Shares from the
Company in exchange for the Units, or any of them. The Registration Rights
granted pursuant to this Section 2.1 may be exercised in connection with an
underwritten public offering; provided, that the Company shall have the right to
select the underwriter or underwriters in connection with such public offering,
which shall be subject to the reasonable approval of the Holder.

     (d) Priority on Demand Registrations. If a Demand Registration is an
underwritten secondary offering on behalf of the Holder and the managing
underwriters advise the Company in writing that in their opinion the number of
Registrable Securities and other securities requested to be included in such
registration exceeds the number of Registrable Securities and other securities
that can be sold in such offering, the Company shall include in such
registration, prior to the inclusion of any securities that are not Registrable
Securities, the number of Registrable Securities requested to be included that,
in the opinion of the underwriters, can be sold in such offering.

     2.2 Suspension of Offering. Upon any notice by the Company, either before
or after the Holder has delivered a Registration Notice, that a negotiation or
consummation of a transaction by the Company or any of its subsidiaries is
pending or an event has occurred, which negotiation, consummation or event would
require disclosure by the Company in a Registration Statement of material
information which the Company has a bona fide business purpose for keeping
confidential or the nondisclosure of which in the Registration Statement might
cause the Registration Statement to fail to comply with applicable disclosure
requirements (a "Materiality Notice"), the Holder agrees that it will
immediately discontinue offers and sales of the Registrable Securities under the
Registration Statement until the Holder receives copies of a supplemented or
amended Prospectus that corrects the misstatement(s) or omission(s) referred to
above and receives notice that any post-effective amendment has become
effective; provided, that the Company may delay, suspend or withdraw the
Registration Statement for such reason for no more than ninety (90) days after
delivery of the Materiality Notice; and provided further, that the Company
during such delay, suspension or withdrawal may not file a registration
statement for securities to be issued and sold for its own account or that of
other stockholders. If the Company suspends the Registration Statement, the
period for




                                      -3-


which the Company is required to keep the Registration Statement effective under
Section 4(a) shall be extended by the number of days the Registration Statement
would have been effective during such suspension absent such suspension. If so
directed by the Company, the Holder will deliver to the Company all copies of
the Prospectus covering the Registrable Securities current at the time of
receipt of any Materiality Notice. The Company may not exercise its rights
pursuant to this Section 2.2 more than twice in any (12) month period.

SECTION 3. PIGGYBACK REGISTRATIONS.

     3.1 Rights to Piggyback.

     (a) Each time the Company proposes to register any of its securities under
the Act (other than (i) a registration on Form S-4 or S-8 (or any substitute
form that is adopted by the Commission) or (ii) a registration in connection
with an exchange offer or the offering of securities solely to the Company's
existing security holders) either for the Company's own account or for the
account of any of its security holders (each such registration not withdrawn or
abandoned prior to the effective date thereof being herein called a "Piggyback
Registration"), then the Company will give written notice to the Holder of such
proposal as soon as practicable (but in no event less than thirty (30) days
prior to the anticipated filing date for such Piggyback Registration).

     (b) Subject to Sections 3.2 and 3.3 and the last sentence of this
subparagraph (b), (i) the Company will include in each Piggyback Registration
all Registrable Securities with respect to which the Company shall receive,
within 20 days after the date on which the Company shall have given written
notice of such Piggyback Registration to the Holder pursuant to Section 3.1(a)
hereof, a written request from the Holder for inclusion in such Piggyback
Registration, and (ii) the Company will use its commercially reasonable efforts
to effect promptly the registration of all such Registrable Securities. The
Company shall not be required to include Registrable Securities in the
securities to be registered pursuant to a registration statement on any form
which limits the amount of securities which may be registered by the issuer and
selling security holders if, and to the extent that, such inclusion would make
the use of such form unavailable. The Holder will be permitted to withdraw all
or any part of the Registrable Securities of the Holder from any Piggyback
Registration at any time prior to the effective date of such Piggyback
Registration unless the Holder shall have entered into a written agreement with
the Company's underwriters establishing the terms and conditions under which the
Holder would be obligated to sell such securities in such Piggyback
Registration. The Company is not required to give the Holder more than three (3)
opportunities to have Registrable Securities included in a Piggyback
Registration.

     3.2 Priority on Primary Registration. If a Piggyback Registration is an
underwritten primary offering on behalf of the Company, and the managing
underwriters for the offering advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number that can be sold in such offering, the Company will limit the
number of securities included in such



                                      -4-


registration to the number that in the opinion of the underwriters can be sold
in such offering. The securities registered shall be selected in the following
order of priority: (i) first, the securities the Company proposes to sell, (ii)
second, the securities requested to be included in such registration by holders
of securities party to the Registration Rights Agreement, dated as of November
4, 1996, by and among the Company and certain holders of securities of the
Company (the "1996 Agreement"), and (iii) third, the Registrable Securities
requested to be included in such registration, the securities requested to be
included in such registration by AEW Partners III, L.P., a Delaware limited
partnership ("AEW"), pursuant to the Registration Rights Agreement, dated as of
February 1, 1999 (the "AEW Agreement"), by and between the Company and AEW and
all other securities requested to be included in such registration, prorated
among the holders thereof on the basis of the number of securities requested to
be included in such registration.

     3.3 Priority on Secondary Registrations. If a Piggyback Registration is an
underwritten secondary offering on behalf of holders of the Company's securities
other than the Holders of Registrable Securities (the "Other Holders"), and the
managing underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number that can be sold in such offering, the Company will limit the number of
securities included in such registration to the number that in the opinion of
the underwriters can be sold in such offering. The securities registered shall
be selected in the following order of priority: (i) first, the securities held
by the Other Holders, (ii) second, the securities requested to be included in
such registration by holders of securities party to the 1996 Agreement, and
(iii) third, the Registrable Securities requested to be included in such
registration, the securities requested to be included in such registration by
AEW pursuant to the AEW Agreement, and any other securities requested to be
included in such registration, prorated among the holders thereof on the basis
of the number of securities requested to be included in such registration.

     3.4 Lockup Agreements.

     (a) Restrictions on Public Sale of Registrable Securities. Each Holder, if
the Company or the managing underwriters so request in connection with any
underwritten registration on behalf of the Company, shall not, without the prior
written consent of the Company or such underwriters, effect any public sale or
other distribution of any equity securities of the Company, including any sale
pursuant to Rule 144, during the fifteen (15) days prior to, and during the
ninety (90) day period commencing on, the effective date of the registration
statement for such underwritten registration, except in connection with such
underwritten registration (or during such shorter period or periods as the
Company or such underwriters may in writing permit).

     (b) Restrictions on Public Sale by the Company. The Company agrees not to
effect any public sale or other distribution of its equity securities, or any
securities convertible into or exchangeable or exercisable for such equity
securities, during the period commencing on the fifteenth day prior to, and
ending on the ninetieth day




                                      -5-


following, the effective date of the registration statement for any underwritten
Piggyback Registration, except in connection with any such underwritten
registration and except for (i) any offering (A) pursuant to an employee benefit
plan and registered on Form S-8 (or any comparable form adopted by the
Commission) or (B) on Form S-4 (or any comparable form adopted by the
Commission) or (ii) any sales of equity securities pursuant to the Dividend
Reinvestment and Optional Share Purchase Plan of the Company.

     3.5 Changes in Registrable Securities. If, and as often as, there are any
changes in the Exchange Shares by way of share split, share dividend,
combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions of this Agreement, as may be
required, so that the rights and privileges granted hereby shall continue with
respect to the Registrable Securities as so changed. Without limiting the
generality of the foregoing, the Company will require any successor by merger or
consolidation to assume and agree to be bound by the terms of this Agreement, as
a condition to any such merger or consolidation.

SECTION 4. REGISTRATION PROCEDURES

     Whenever the Company is required to effect the registration of Exchange
Shares under the Act pursuant to this Agreement, the Company shall promptly:

     (a) prepare and file with the Commission (i) a Registration Statement with
respect to such Exchange Shares and use its commercially reasonable efforts to
cause such Registration Statement to become effective and (ii) such amendments
and supplements to the Registration Statement and the Prospectus used in
connection therewith as may be necessary (A) to keep such Registration Statement
effective and (B) to comply with the provisions of the Act with respect to the
disposition of the Exchange Shares covered by such Registration Statement, in
each case until such time as all of such Exchange Shares have been disposed of
in accordance with the intended methods of disposition by the seller(s) thereof
set forth in such Registration Statement; provided, that such period shall
terminate on the earlier of (i) one hundred eighty (180) days after the date on
which the Registration Statement becomes effective or (ii) the completion of the
sales of all the Exchange Shares covered by such Registration Statement;
provided that before filing such Registration Statement or any amendments
thereto, the Company will furnish to the Holder copies of all such documents
proposed to be filed;

     (b) furnish, without charge, to the Holder and each underwriter, if any, of
the securities covered by such Registration Statement, such number of copies of
such Registration Statement, each amendment and supplement thereto (in each case
including all exhibits), and the Prospectus included in such Registration
Statement (including each preliminary Prospectus, any summary prospectus and any
other prospectus filed under Rule 424 under the Act) in conformity with the
requirements of the Act, and other documents, as the Holder and such underwriter
may reasonably request in order to




                                      -6-


facilitate the public sale or other disposition of the Exchange Shares covered
by that Registration Statement;

     (c) use its best efforts to register or qualify the Exchange Shares covered
by such Registration Statement under such other securities or blue sky laws of
such jurisdictions as the Holder or the sole or lead managing underwriter, if
any, may reasonably request in writing to enable the Holder to consummate the
disposition in such jurisdictions of the Exchange Shares owned by the Holder and
to continue such registration or qualification in effect in each such
jurisdiction for as long as such Registration Statement remains in effect
(including through new filings or amendments or renewals), and do any and all
other acts and things which may be reasonably necessary or advisable to enable
the Holder to consummate the disposition in such jurisdictions of the Exchange
Shares owned by it; provided, however, that the Company shall not be required to
(i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section, (ii) subject itself to
taxation in any such jurisdiction or (iii) consent to general service of process
in any such jurisdiction;

     (d) use diligent efforts to cause all Exchange Shares covered by such
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
Company's business or operations to enable the Holder to consummate the
disposition of such Exchange Shares;

     (e) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter or underwriters of such offering;

     (f) promptly notify the Holder and the sole or lead managing underwriter,
if any: (i) when the Registration Statement, any pre-effective amendment, the
Prospectus or any prospectus supplement related thereto or post-effective
amendment to the Registration Statement has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the Commission or any state securities or blue
sky authority for amendments or supplements to the Registration Statement or the
Prospectus related thereto or for additional information, (iii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threat of any proceedings for that
purpose, (iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification of any Exchange Shares for sale under the
securities or blue sky laws of any jurisdiction or the initiation of any
proceeding for such purpose, (v) of the existence of any fact of which the
Company becomes aware or the happening of any event which results in (A) the
Registration Statement containing an untrue statement of a material fact or
omitting to state a material fact required to be stated therein or necessary to
make any statements therein not misleading or (B) the Prospectus included in
such Registration Statement containing an untrue statement of a material fact or
omitting to state a material fact required to be stated therein or necessary to
make any statements therein, in the light of the circumstances under which they
were made, not misleading and (vi) of the Company's reasonable determination
that a post-effective




                                      -7-


amendment to a Registration Statement would be appropriate or that there exist
circumstances not yet disclosed to the public which make further sales under
such Registration Statement inadvisable pending such disclosure and
post-effective amendment; and, if the notification relates to an event described
in clause (v) or (vi) of this Section 4(f), subject to Section 2.2, the Company
shall promptly prepare a supplement or post-effective amendment to such
Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that (1) such
Registration Statement shall not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (2) as thereafter delivered to
the purchasers of the Exchange Shares being sold thereunder, such Prospectus
shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (and shall furnish to the Holder and each underwriter, if any, a
reasonable number of copies of such Prospectus as so supplemented or amended);
and if the notification relates to an event described in any of clauses (ii)
through (iv) of this Section 4(f), the Company shall use its commercially
reasonable efforts to remedy such matters;

     (g) make reasonably available for inspection by the Holder, any sole or
lead managing underwriter participating in any disposition pursuant to such
Registration Statement, the Holder's counsel and any attorney, accountant or
other agent retained by any such seller or underwriter material financial and
other relevant information concerning the business and operations of the Company
and the properties of the Company and any subsidiaries thereof as may be in
existence at such time as shall be necessary, in the reasonable opinion of such
Holder's and such underwriters' respective counsel, to enable them to conduct a
reasonable investigation within the meaning of the Act, and cause the Company's
and any subsidiaries' officers, directors and employees, and the independent
public accountants of the Company, to supply such information as may be
reasonably requested by any such parties in connection with such Registration
Statement;

     (h) obtain an opinion from the Company's counsel and a "comfort" letter
from the Company's independent public accountants who have certified the
Company's financial statements included or incorporated by reference in such
Registration Statement in customary form and covering such matters as are
customarily covered by such opinions and "comfort" letters delivered to
underwriters in underwritten public offerings, which opinion and letter shall be
reasonably satisfactory to the sole or lead managing underwriter, if any, and to
the Holder, and furnish to the Holder participating in the offering and to each
underwriter, if any, a copy of such opinion and letter addressed to the
underwriter;

     (i) in the case of an underwritten offering, make generally available to
its security holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration Statement (as
defined in Rule 158(c)), an earnings statement of the Company and its
subsidiaries (which need not be audited)




                                      -8-


complying with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder which requirement will be deemed to be satisfied if the
Company timely files complete and accurate information on Forms 10-Q, 10-K and
8-K under the Securities Exchange Act of 1934, as amended (the " Exchange Act"),
and otherwise complies with Rule 158 under the Act;

     (j) use its reasonable best efforts to cause all such Exchange Shares to be
listed (i) on the national securities exchange on which the Company's common
shares are then listed or (ii) if common shares of the Company are not at the
time listed on any national securities exchange (or if the listing of Exchange
Shares is not permitted under the rules of such national securities exchange on
which the Company's common shares are then listed), on another national
securities exchange;

     (k) furnish to the Holder and the sole or lead managing underwriter, if
any, without charge, at least one manually signed copy of the Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference and
all exhibits (including those deemed to be incorporated by reference);

     (l) if requested by the sole or lead managing underwriter or the Holder of
Exchange Shares, incorporate in a prospectus supplement or post-effective
amendment such information concerning the Holder, the underwriters or the
intended method of distribution as the sole or lead managing underwriter or the
Holder reasonably requests to be included therein and as is appropriate in the
reasonable judgment of the Company, including, without limitation, information
with respect to the number of Exchange Shares being sold to the underwriters,
the purchase price being paid therefor by such underwriters and any other terms
of the underwritten offering of the Exchange Shares to be sold in such offering;
and

     (m) use its commercially reasonable efforts to take all other steps
necessary to expedite or facilitate the registration and disposition of the
Exchange Shares contemplated hereby, including obtaining necessary governmental
approvals and effecting required filings; entering into customary agreements
(including customary underwriting agreements, if the public offering is
underwritten); cooperating with the Holder and any underwriters in connection
with any filings required by the National Association of Securities Dealers,
Inc. (the "NASD"); providing appropriate certificates not bearing restrictive
legends representing the Exchange Shares; and providing a CUSIP number and
maintaining a transfer agent and registrar for the Exchange Shares.



                                      -9-


SECTION 5. INDEMNIFICATION

     5.1 Indemnification by the Company. The Company agrees to indemnify and
hold harmless the Holder, each of its assigns, managers, officers and employees
and each person, if any, who controls the Holder within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, as follows:

          (i) against any and all loss, liability, claim, damage and expense
     whatsoever (or actions in respect thereof), as incurred, arising out of or
     based upon (A) any untrue statement or alleged untrue statement of a
     material fact contained in any Registration Statement (including any
     preliminary prospectus or final prospectus contained therein or any
     amendment thereto) pursuant to which the Registrable Securities were
     registered under the Act, including all documents incorporated therein by
     reference, or (B) the omission or alleged omission therefrom of a material
     fact required to be stated therein or necessary to make the statements
     therein not misleading or arising out of or based upon any untrue statement
     or alleged untrue statement of a material fact contained in any Prospectus
     (or any amendment or supplement thereto), including all documents
     incorporated therein by reference, or the omission or alleged omission
     therefrom of a material fact necessary in order to make the statements
     therein, in the light of the circumstances under which they were made, not
     misleading;

          (ii) against any and all loss, liability, claim, damage and expense
     whatsoever (or actions in respect thereof), as incurred, to the extent of
     the aggregate amount paid in settlement of any litigation, or investigation
     or proceeding by any governmental agency or body, commenced or threatened,
     or of any claim whatsoever based upon any such untrue statement or
     omission, or any such alleged untrue statement or omission, if such
     settlement is effected with the written consent of the Company; and

          (iii) against any and all expense whatsoever, as incurred (including
     reasonable fees and disbursements of counsel), reasonably incurred in
     investigating, preparing or defending against any litigation, or
     investigation or proceeding by any governmental agency or body, commenced
     or threatened, in each case whether or not a party, or any claim whatsoever
     based upon any such untrue statement or omission, or any such alleged
     untrue statement or omission, to the extent that any such expense is not
     paid under subparagraph (i) or (ii) above;

provided, however, that the indemnity provided pursuant to this Section 5.1 does
not apply with respect to any loss, liability, claim, damage or expense to the
extent arising out of (A) any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Company by




                                      -10-


the Holder expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) or (B) the
Holder's failure to deliver an amended or supplemental Prospectus previously
provided to the Holder by the Company if such loss, liability, claim, damage or
expense would not have arisen had such delivery occurred.

     5.2 Indemnification by the Holder. The Holder (and each permitted assignee
of the Holder, on a several basis) agrees to indemnify and hold harmless the
Company, and each of its directors, officers and employees (including each
director and officer of the Company who signed a Registration Statement), and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, as follows:

          (i) against any and all loss, liability, claim, damage and expense
     whatsoever (or actions in respect thereof), as incurred, arising out of or
     based upon (A) any untrue statement or alleged untrue statement of a
     material fact contained in any Registration Statement (including any
     preliminary prospectus or final prospectus contained therein or any
     amendment thereto) pursuant to which the Registrable Securities were
     registered under the Act, including all documents incorporated therein by
     reference, or (B) the omission or alleged omission therefrom of a material
     fact required to be stated therein or necessary to make the statements
     therein not misleading or arising out of or based upon any untrue statement
     or alleged untrue statement of a material fact contained in any Prospectus
     (or any amendment or supplement thereto), including all documents
     incorporated therein by reference, or the omission or alleged omission
     therefrom of a material fact necessary in order to make the statements
     therein, in the light of the circumstances under which they were made, not
     misleading;

          (ii) against any and all loss, liability, claim, damage and expense
     whatsoever (or actions in respect thereof), as incurred, to the extent of
     the aggregate amount paid in settlement of any litigation, or investigation
     or proceeding by any governmental agency or body, commenced or threatened,
     or of any claim whatsoever based upon any such untrue statement or
     omission, or any such alleged untrue statement or omission, if such
     settlement is effected with the written consent of the Holder; and

          (iii) against any and all expense whatsoever, as incurred (including
     reasonable fees and disbursements of counsel), reasonably incurred in
     investigating, preparing or defending against any litigation, or
     investigation or proceeding by any governmental agency or body, commenced
     or threatened, in each case whether or not a party, or any claim whatsoever
     based upon any such untrue statement or omission, or




                                      -11-


     any such alleged untrue statement or omission, to the extent that any such
     expense is not paid under subparagraph (i) or (ii) above;

provided, however, that the indemnity provided pursuant to this Section 5.2
shall only apply with respect to any loss, liability, claim, damage or expense
to the extent arising out of (A) any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by the Holder expressly for use in
the Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto) or (B) the Holder's failure to deliver an
amended or supplemental Prospectus previously provided to the Holder by the
Company if such loss, liability, claim, damage or expense would not have arisen
had such delivery occurred; and provided further that in no event shall the
liability of the Holder under this Section 5.2 exceed the net proceeds from the
offering received by the Holder.

     5.3 Conduct of Indemnification Proceedings. An indemnified party hereunder
shall give reasonably prompt notice to the indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify the indemnifying party (i) shall not relieve
it from any liability which it may have under the indemnity agreement provided
in Section 5.1 or 5.2 above, unless and to the extent it did not otherwise learn
of such action and the lack of notice by the indemnified party results in the
forfeiture by the indemnifying party of substantial rights and defenses, and
(ii) shall not, in any event, relieve the indemnifying party from any
obligations to the indemnified party other than the indemnification obligation
provided under Section 5.1 or 5.2 above. If the indemnifying party so elects
within a reasonable time after receipt of such notice, the indemnifying party
may assume the defense of such action or proceeding at such indemnifying party's
own expense with counsel chosen by the indemnifying party and approved by the
indemnified party, which approval shall not be unreasonably withheld; provided,
however, that the indemnifying party will not settle any such action or
proceeding without the written consent of the indemnified party unless, as a
condition to such settlement, the indemnifying party secures the unconditional
release of the indemnified party; and provided further, that if the indemnified
party reasonably determines that a conflict of interest exists in connection
with which it is advisable for the indemnified party to be represented by
separate counsel or that, upon advice of counsel, there may be legal defenses
available to it which are different from or in addition to those available to
the indemnifying party, then the indemnifying party shall not be entitled to
assume such defense and the indemnified party shall be entitled to separate
counsel at the indemnifying party's expense. If the indemnifying party is not
entitled to assume the defense of such action or proceeding as a result of the
second proviso to the preceding sentence, the indemnifying party's counsel shall
be entitled to conduct the indemnifying party's defense and counsel for the
indemnified party shall be entitled to conduct the defense of the indemnified
party, it being understood that both such counsel will cooperate with each other
to conduct the defense of such action or proceeding as efficiently as possible.
If the indemnifying party is not so entitled to assume the defense of such
action or does not assume such defense, after having received the notice
referred to in the first sentence of this paragraph, the




                                      -12-


indemnifying party will pay the reasonable fees and expenses of counsel for the
indemnified party. In such event, however, the indemnifying party will not be
liable for any settlement effected without the written consent of the
indemnifying party. If an indemnifying party is entitled to assume, and assumes,
the defense of such action or proceeding in accordance with this paragraph, the
indemnifying party shall not be liable for any fees and expenses of counsel for
the indemnified party incurred thereafter in connection with such action or
proceeding.

     5.4 Survival of Obligations. The obligations of the Company and the Holder
under this Section 5 shall survive the completion of any offering of Exchange
Shares in a Registration Statement under this Agreement, and otherwise.

     5.5 Other Rights. Any indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full effect regardless of any investigation made or omitted by
or on behalf of any indemnified party.

     5.6 Contribution. In order to provide for just and equitable contribution
in circumstances in which the indemnity agreement provided for in Sections 5.1
and 5.2 above is for any reason held to be unenforceable by the indemnified
party although applicable in accordance with its terms, the Company and the
Holder shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement incurred by
the Company and the Holder, (i) in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Holder on the other,
in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative fault of, but also the relative
benefits to, the Company on the one hand and the Holder on the other, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits to the indemnifying party and
indemnified party shall be determined by reference to, among other things, the
gross proceeds received by the indemnifying party and indemnified party in
connection with the offering to which such losses, claims, damages, liabilities
or expenses relate. The relative fault of the indemnifying party and indemnified
party shall be determined by reference to, among other things, whether the
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, the indemnifying party or the
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action.

     The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 5.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.



                                      -13-


     Notwithstanding the foregoing, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5.4, each person, if any, who
controls the Holder within the meaning of Section 15 of the Act shall have the
same rights to contribution as the Holder, and each director of the Company,
each officer of the Company who signed a Registration Statement and each person,
if any, who controls the Company within the meaning of Section 15 of the Act
shall have the same rights to contribution as the Company.

SECTION 6. EXPENSES

     The Company shall pay all expenses incident to the performance by the
Company of the Company's registration obligations under Sections 2, 3 and 4,
including (i) all stock exchange, Commission and state securities registration,
listing and filing fees, (ii) all expenses incurred in connection with the
preparation, printing and distributing of any Issuer Registration Statement or
Registration Statement and Prospectus, (iii) fees and disbursements of counsel
for the Company and of the independent public accountants of the Company and
(iv) reasonable fees and disbursements of one counsel for the Holder. The Holder
shall be responsible for the payment of any underwriting discounts and
commissions, fees and disbursements of the Holder's accountants and other
advisors (other than one counsel) and any transfer taxes relating to the sale or
disposition of the Registrable Securities by the Holder pursuant to Sections 2
and 3 or otherwise.

SECTION 7. RULE 144 COMPLIANCE

     The Company covenants that it will use its commercially reasonable efforts
to timely file the reports required to be filed by the Company under the Act and
the Exchange Act so as to enable the Holder to sell Registrable Securities
pursuant to Rule 144 under the Act. In connection with any sale, transfer or
other disposition by the Holder of any Registrable Securities pursuant to Rule
144 under the Act, the Company shall cooperate with the Holder to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any Act legend, and enable certificates
for such Registrable Securities to be for such number of shares and registered
in such names as the Holder may reasonably request at least ten (10) Business
Days prior to any sale of Registrable Securities hereunder.

SECTION 8. MISCELLANEOUS

     8.1 No Inconsistent Agreements. While this Agreement is in effect, the
Company will not enter into any agreement that is inconsistent with the rights
granted to the Holder in this Agreement or that otherwise conflicts with the
provisions hereof.

     8.2 Integration; Amendment. This Agreement constitutes the entire agreement
among the parties hereto with respect to the matters set forth herein and
supersedes and renders of no force and effect all prior oral or written
agreements,




                                      -14-


commitments and understandings among the parties with respect to the matters set
forth herein. Except as otherwise expressly provided in this Agreement, no
amendment, modification or discharge of this Agreement shall be valid or binding
unless set forth in writing and duly executed by the Company and the Holder.

     8.3 Waivers. No waiver by a party hereto shall be effective unless made in
a written instrument duly executed by the party against whom such waiver is
sought to be enforced, and only to the extent set forth in such instrument.
Neither the waiver by any of the parties hereto of a breach or a default under
any of the provisions of this Agreement, nor the failure of any of the parties,
on one or more occasions, to enforce any of the provisions of this Agreement or
to exercise any right or privilege hereunder shall thereafter be construed as a
waiver of any subsequent breach or default of a similar nature, or as a waiver
of any such provisions, rights or privileges hereunder.

     8.4 Assignment; Successors and Assigns. The Holder may not assign this
Agreement or any of the Holder's rights or obligations hereunder without the
written consent of the Company except to a transferee of the Registrable
Securities covered under this Agreement. If any transferee of the Holder shall
acquire Registrable Securities in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable Securities such
person shall be conclusively deemed to have agreed to be bound by all of the
terms and provisions of this Agreement and such person shall be entitled to
receive the benefits hereof.

     8.5 Burden and Benefit. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, executors,
personal and legal representatives, successors and, subject to Section 8.4
above, assigns.

     8.6 Notices. All notices called for under this Agreement shall be in
writing and shall be deemed given upon receipt if delivered personally or by
overnight courier, or by facsimile transmission and followed promptly by mail,
or mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the addresses set forth below their names in Schedule
A hereto, or to any other address or addressee as any party entitled to receive
notice under this Agreement shall designate, from time to time, to the others in
the manner provided in this Section 8.6 for the service of notices; provided,
however, that notices of a change of address shall be effective only upon
receipt thereof. Any notice delivered to the party hereto to whom it is
addressed shall be deemed to have been given and received on the day it was
received; provided, however, that if such day is not a Business Day then the
notice shall be deemed to have been given and received on the Business Day next
following such day and if any party rejects delivery of any notice attempted to
be given hereunder, delivery shall be deemed given on the date of such
rejection. Any notice sent by facsimile transmission shall be deemed to have
been given and received on the Business Day next following the transmission.



                                      -15-


     8.7 Specific Performance. The parties hereto acknowledge that the
obligations undertaken by them hereunder are unique and that there would be no
adequate remedy at law if either party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to (i)
compel specific performance of the obligations, covenants and agreements of the
other party under this Agreement in accordance with the terms and conditions of
this Agreement and (ii) obtain preliminary injunctive relief to secure specific
performance and to prevent a breach or contemplated breach of this Agreement in
any court of the United States or any State thereof having jurisdiction.

     8.8 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 in accordance with the laws of the State of Ohio, but not
including the choice of law rules thereof.

     8.9 Pronouns. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular or plural, as the identity of
the person or entity may require.

     8.10 Execution in Counterparts. To facilitate execution, this Agreement may
be executed in as many counterparts as may be required. It shall not be
necessary that the signature of or on behalf of each party appears on each
counterpart, but it shall be sufficient that the signature of or on behalf of
each party appears on one or more of the counterparts. All counterparts shall
collectively constitute a single agreement. It shall not be necessary in any
proof of this Agreement to produce or account for more than a number of
counterparts containing the respective signatures of or on behalf of both of the
parties.

     8.11 Severability. If fulfillment of any provision of this Agreement, at
the time such fulfillment shall be due, shall transcend the limit of validity
prescribed by law, then the obligation to be fulfilled shall be reduced to the
limit of such validity; and if any clause or provision contained in this
Agreement operates or would operate to invalidate this Agreement, in whole or in
part, then such clause or provision only shall be held ineffective, as though
not herein contained, and the remainder of this Agreement shall remain operative
and in full force and effect.




                                      -16-


     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed on its behalf as of the date first hereinabove set forth.

                                              BOYKIN LODGING COMPANY


                                              By: /s/ Richard C. Conti
                                                  --------------------
                                                  Name: Richard C. Conti
                                                  Title: President




                                              JABO LLC

                                              By: /s/ John E. Boykin
                                                  ------------------
                                                  Name: John E. Boykin
                                                  Title: Secretary









                                      -17-




                                   SCHEDULE A


Boykin Lodging Company

- ------------------------------------

- ------------------------------------
Attention:
          --------------------------
Facsimile:
          --------------------------



JABO LLC

- ------------------------------------

- ------------------------------------
Attention:
          --------------------------
Facsimile:
          --------------------------

EX-99.6

                                                                    Exhibit 99.6

                                     SECOND
                                    AMENDMENT
                                       TO
                           SECOND AMENDED AND RESTATED
                        AGREEMENT OF LIMITED PARTNERSHIP
                                       OF
                          BOYKIN HOTEL PROPERTIES, L.P.
                  ---------------------------------------------

                           Dated as of January 1, 2002

                  ---------------------------------------------

     THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP OF BOYKIN HOTEL PROPERTIES, L.P. (this "AMENDMENT") is hereby
adopted by Boykin Lodging Company, an Ohio corporation (the "GENERAL PARTNER" or
the "COMPANY"), as the general partner of Boykin Hotel Properties, L.P., an Ohio
limited partnership (the "PARTNERSHIP"). For ease of reference, capitalized
terms used herein and not otherwise defined have the meanings assigned to them
in the Second Amended and Restated Agreement of Limited Partnership of Boykin
Hotel Properties, L.P., dated May 20, 1998, as amended by that certain Amendment
to Second Amended and Restated Agreement of Limited Partnership, dated February
1, 1999 (the "AGREEMENT").

     WHEREAS, Article IV, Section 4.3(a) of the Agreement grants the General
Partner authority to cause the Partnership to issue Partnership Interests in the
Partnership to any Person in one or more classes or one or more series of any of
such classes, with such designations, preferences and relative, participating,
optional or other special rights, powers and duties including rights, powers and
duties senior to Limited Partnership Interests as shall be determined by the
General Partner in its sole and absolute discretion and without the approval of
any Limited Partner, subject to Ohio law.

     WHEREAS, the Partnership is a party to that certain Master Contribution
Agreement, dated as of December 31, 2001, among the General Partner, the
Partnership, Boykin Management Company Limited Liability Company, an Ohio
limited liabilities, and JABO LLC, a Delaware limited liability company ("JABO")
(as the same may be amended, supplemented or modified, the "MASTER CONTRIBUTION
AGREEMENT"), pursuant to which the Partnership will issue additional Partnership
Units.

     WHEREAS, Sections 2.3(a) and 11.1(b) of the Agreement grant the General
Partner power and authority to amend the Agreement without the consent of any of
the Partnership's Limited Partners if such amendment is for the purpose of
adding or substituting Limited Partners.

     WHEREAS, the General Partner desires to amend the Agreement to, among other
things, admit JABO as a Limited Partner.

     NOW, THEREFORE, the General Partner hereby amends the Agreement as follows:





          1. Article I of the Agreement is hereby amended by deleting the
     definition of "PARTNERSHIP UNITS" and replacing it in its entirety with the
     following:

               "PARTNERSHIP UNIT" shall mean a fractional, undivided share of
          the Partnership Interests of all Partners issued hereunder. As of
          January 1, 2002, there shall be considered to be 18,108,946
          Partnership Units outstanding, with each 1,000 Partnership Units
          representing a 0.00552 percent Percentage Interest in the Partnership.
          At all times there shall be maintained an equivalency of Partnership
          Units and REIT shares, except as otherwise provided herein, and except
          that the conversion of the Subordinated Convertible Debt shall be
          effected without the issuance of additional REIT Shares.

     2. Section 7.4(a) of the Agreement is hereby amended by adding the
following to the end of such section:

               "Notwithstanding anything contained in this Section 7.4(a),
unless the REIT receives an opinion from the REIT's counsel that the status of
the REIT shall not be jeopardized, any Limited Partner that owns directly or
indirectly, or is deemed to own, directly or indirectly any Person (other than
an individual), that is serving as an eligible independent contractor (as
defined in the Code) of the Partnership or of the general Partner, shall be
entitled to exercise a Redemption Right only with respect to such number of
Partnership Units that, if redeemed for only the REIT Shares Amount pursuant to
Section 7.4(b) hereof, such Limited Partner would Beneficially Own (as
hereinafter defined) no more than 9.9% of the total number of issued and
outstanding REIT shares;" provided, however, that in the event of one or more
transfers that result in a sale of all or substantially all of the REIT's or the
Partnership's assets, or a sale, merger, reorganization or restructuring as
described in Sections 9.1(c) and 9.1(d) hereof, this provision shall not apply.

     3. Section 7.4(b) of the Agreement is hereby amended by adding the
following to the end of such section:

               "Notwithstanding the foregoing in Section 7.1(a) or this Section
7.4(b), unless the REIT receives an opinion from the REIT's counsel that the
status of the REIT shall not be jeopardized, should the General Partner elect to
satisfy a Redemption Right by paying the Redeeming Partner the REIT Shares
Amount, and it is necessary to obtain shareholder approval in order to issue
sufficient REIT Shares to satisfy the such Redemption Right in full, then the
General Partner shall have one hundred twenty (120) days beyond the Specified
Redemption Date in which to obtain such shareholder approval and to pay the REIT
Shares Amount and the Specified Redemption Date shall be deemed to occur: (i)
ten days after a shareholder meeting will have been held; (ii) the date on which
the General Partner elects to pay such Redeeming Partner the Cash Amount; or
(iii) one hundred and thirty (130) days after such Partnership Units are
presented for redemption, whichever is earlier. Should such shareholder approval
not be obtained, then the General Partner and/or the Partnership shall be
obligated to pay to the Redeeming Partner the Cash Amount no later than the end
of what would have been the Payout Period had the General Partner not elected to
pay the Cash Amount upon the redemption, together with interest on such Cash
Amount as specified in Section 7.4(a) hereof."





     4. EXHIBIT A of the Agreement is hereby deleted and is replaced in its
entirety by new EXHIBIT A attached hereto as ATTACHMENT 1.

     On and after the effective date of this Amendment, each reference in the
Agreement to "this Agreement", "hereunder", "hereof", or words of like import
referring to the Agreement shall mean and refer to the Agreement as amended
hereby. The terms of this Amendment shall modify and amend the terms of the
Agreement to the extent expressed herein; but every other term, condition,
covenant, representation and warranty contained in the Agreement is hereby
ratified and affirmed and shall remain unchanged unless expressly modified or
amended hereby.










     IN WITNESS WHEREOF, the General Partner has executed this Amendment as of
the date first written above.



                                            Boykin Lodging Company




                                            By: /s/ Richard C. Conti
                                                --------------------
                                                Name: Richard C. Conti
                                                Title: President














                                  ATTACHMENT 1

                                    EXHIBIT A
                             (as of January 1, 2002)

                                LIST OF PARTNERS




                                                                                                       PERCENTAGE
PARTNERS                                                                               UNITS           INTEREST

GENERAL PARTNER

                                                                                                        
Boykin Lodging Company                                                                     15,390,690         84.990%
45 W. Prospect Street
Suite 1500
Cleveland, Ohio  44115

LIMITED PARTNERS

JABO, LLC                                                                                   1,427,142          7.881%
The Boykin Group, Inc.                                                                        779,941          4.307%

John E. Boykin, Original Independent Trustee of The John E. Boykin 1997 Amended and           124,438          0.687%
Restated Revocable Trust Indenture, dated November 19, 1997


Robert W. Boykin, Original Independent Trustee of The Robert W. Boykin Second 1997            157,114          0.868%
Amended and Restated Revocable Trust Indenture, dated July 23, 1997


William J. Boykin, John E. Boykin, Robert W. Boykin, Trustees under the William J.            150,000          0.828%
Boykin Trust Agreement originally dated March 9, 1988, as most recently modified by
a Fourth Restatement Thereof dated May 23, 1993 and a Third Modification thereof
dated September 17, 1997


R.F. Coffin, Trustee of the Robert F. Coffin Revocable Trust under Agreement dated             17,201          0.095%
as of October 31, 1995


Edward H. Crane, Trustee of the Edward H. Crane Revocable Living Trust under                   17,201          0.095%
Agreement dated as of September 11, 1992


Barbara L. Hall, Trustee of the                                                                10,650          0.059%
Barbara L. Hall Trust dated December 20, 1995


Raymond P. Heitland, Trustee of The Raymond P. Heitland Trust, dated November 1, 2000          10,650          0.059%












                                                                                                       PERCENTAGE

LIMITED PARTNERS

                                                                                                        
M & P Partners (Martin J. Cleary, Trustee of The Martin J. Cleary Revocable Trust               2,591          0.014%
dated March 4, 1993, Managing Partner)


Paul A. O'Neil                                                                                  1,400          0.008%

Albert E. Pawlisch, Trustee of the Albert E. Pawlisch Revocable Living Trust under              8,601          0.047%
Agreement dated March 4, 1992


Dominic A. Visconsi, Trustee of the DAV-JVJ Trust under Agreement dated                         2,726          0.015%
January 4, 1993

Anthony W. Weigand, Trustee of the Anthony W. Weigand Revocable Living Trust Under              8,601          0.047%
Agreement dated October 6, 1987


TOTAL                                                                                      18,108,946        100.000%
                                                                                           ==========        ========