8-K

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549

FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): October 4, 2002

Boykin Lodging Company

(Exact Name of Registrant as Specified in Charter)

Ohio	001-11975	34-1824586
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(I.R.S. Employer Identification No.)

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

(216) 430-1200

(Registrant’s telephone number,
including area code)

Item 5. Other Events.

     This report is being filed to file certain material contracts of the Company as exhibits.

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 hereunto duly authorized.

	Boykin Lodging Company
	By:
Date:  October 3, 2002	/s/ SHEREEN P. JONES Shereen P. Jones Chief Financial Officer and Chief Investment Officer

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Exhibit Index

Exhibit   4.4	Form of Preferred Share Certificate*
Exhibit   4.5	Form of Depositary Receipt*
Exhibit   10.1b	Third Amended and Restated Agreement of Limited Partnership of Boykin Hotel Properties, L.P.
Exhibit   10.17	Underwriting Agreement, dated October 1, 2002, between the Company and A.G. Edwards & Sons, Inc., Legg Mason Wood Walker Incorporated, Friedman Billings Ramsey & Co., Inc. and Wells Fargo Securities, LLC
Exhibit   10.18	Form of Deposit Agreement among the Company, National City Bank, as Depositary, and the holders from time to time of Depositary Receipts*

*     Incorporated by reference from the Company’s Registration Statement on Form 8-A filed with the SEC on October 3, 2002

-2- EX-10.1.B 3 l96539aexv10w1wb.txt EX-10.1(B)AMENDMENT TO LIMITED PARTNERSHIP Exhibit 10.1b THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF BOYKIN HOTEL PROPERTIES, L.P. DATED: SEPTEMBER 30, 2002 TABLE OF CONTENTS

PAGE ---- RECITALS ............................................................................................1 ARTICLE I DEFINED TERMS...............................................................................1 ARTICLE II PARTNERSHIP CONTINUATION; ADMISSION OF LIMITED PARTNERS; NAME; PLACE OF BUSINESS AND REGISTERED AGENT............................................................................8 Section 2.1 Continuation...........................................................................8 Section 2.2 Restated Certificate of Limited Partnership; Other Filings.............................8 Section 2.3 Limited Partners; Additional Limited Partners..........................................8 Section 2.4 Name, Office and Registered Agent......................................................8 ARTICLE III BUSINESS AND TERM OF PARTNERSHIP............................................................8 Section 3.1 Business...............................................................................9 Section 3.2 Term...................................................................................9 ARTICLE IV CAPITAL CONTRIBUTIONS.......................................................................9 Section 4.1 General Partner........................................................................9 Section 4.3 Additional Capital Contributions and Issuances of Additional Partnership Interests.....9 Section 4.4 Additional Funding....................................................................12 Section 4.5 Interest..............................................................................12 Section 4.6 Return of Capital.....................................................................12 ARTICLE V PROFITS, LOSSES AND ACCOUNTING.............................................................12 Section 5.1 Allocation of Profits and Losses......................................................12 Section 5.2 Accounting............................................................................13 Section 5.3 Partners' Accounts....................................................................14 Section 5.4 Section 754 Elections.................................................................15 ARTICLE VI POWERS, DUTIES, LIABILITIES, COMPENSATION AND VOTING OF GENERAL PARTNER....................15 Section 6.1 Powers of General Partner.............................................................15 Section 6.2 Delegation of Authority...............................................................16 Section 6.3 Duties of General Partner.............................................................16 Section 6.4 Liabilities of General Partner; Indemnification.......................................17 Section 6.5 Compensation of General Partner; Reimbursement........................................19 Section 6.6 Reliance on Act of General Partner....................................................19 Section 6.7 Outside Services; Dealings with Affiliates; Outside Activities........................19

i Section 6.8 Initial Loan to the Partnership; Additional Loans to the Partnership..................20 Section 6.9 Contribution of Assets................................................................20 ARTICLE VII RIGHTS, PROHIBITIONS AND REPRESENTATIONS WITH RESPECT TO LIMITED PARTNERS..................20 Section 7.1 Rights of Limited Partners............................................................20 Section 7.2 Prohibitions with Respect to the Limited Partners.....................................21 Section 7.3 Ownership by Limited Partner of Corporate General Partner or Affiliate................21 Section 7.4 Redemption Right......................................................................21 Section 7.5 Warranties and Representations of the Limited Partners................................23 Section 7.6 Indemnification by Limited Partners...................................................23 Section 7.7 Notice of Sale or Refinancing.........................................................24 Section 7.8 Basis Analysis and Limited Partner Guarantees.........................................24 ARTICLE VIII DISTRIBUTIONS AND PAYMENTS TO PARTNERS.....................................................24 Section 8.1 Distributions of Cash Flow............................................................24 Section 8.2 REIT Distribution Requirements........................................................24 Section 8.3 No Right to Distributions in Kind.....................................................25 Section 8.4 Disposition Proceeds..................................................................25 Section 8.5 Withdrawals...........................................................................25 ARTICLE IX TRANSFERS OF INTEREST......................................................................25 Section 9.1 General Partner.......................................................................25 Section 9.2 Admission of a Substitute or Additional General Partner...............................26 Section 9.3 Effect of Bankruptcy, Withdrawal, Death or Dissolution of a General Partner...........26 Section 9.4 Removal of a General Partner..........................................................27 Section 9.5 Restrictions on Transfer of Limited Partnership Interests.............................27 Section 9.6 Admission of Substitute Limited Partner...............................................28 Section 9.7 Rights of Assignees of Partnership Interests..........................................28 Section 9.8 Effect of Bankruptcy, Death, Incompetence or Termination of a Limited Partner.........29 Section 9.9 Joint Ownership of Interests..........................................................29 Section 9.10 Transferees...........................................................................29 Section 9.11 Absolute Restriction..................................................................29 Section 9.12 Investment Representation.............................................................29 ARTICLE X TERMINATION OF THE PARTNERSHIP.............................................................30 Section 10.1 Termination...........................................................................30 ii Section 10.2 Payment of Debts......................................................................30 Section 10.3 Debts to Partners.....................................................................30 Section 10.4 Remaining Distribution................................................................30 Section 10.5 Reserve...............................................................................30 Section 10.6 Final Accounting......................................................................30 ARTICLE XI AMENDMENTS................................................................................31 Section 11.1 Authority to Amend....................................................................31 Section 11.2 Notice of Amendments..................................................................31 ARTICLE XII POWER OF ATTORNEY.........................................................................31 Section 12.1 Power.................................................................................31 Section 12.2 Survival of Power.....................................................................32 ARTICLE XIII CONSENTS, APPROVALS, VOTING AND MEETINGS..................................................32 Section 13.1 Method of Giving Consent or Approval..................................................32 Section 13.2 Meetings of Limited Partners..........................................................33 Section 13.3 Opinion...............................................................................33 Section 13.4 Submissions to Partners...............................................................33 ARTICLE XIV MISCELLANEOUS.............................................................................33 Section 14.1 Governing Law.........................................................................33 Section 14.2 Agreement for Further Execution.......................................................33 Section 14.3 Entire Agreement......................................................................33 Section 14.4 Severability..........................................................................33 Section 14.5 Notices...............................................................................33 Section 14.6 Titles and Captions...................................................................34 Section 14.7 Counterparts..........................................................................34 Section 14.8 Pronouns..............................................................................34 Section 14.9 Survival of Rights....................................................................34 EXHIBIT A FEDERAL INCOME TAX MATTERS EXHIBIT C EXHIBIT D EXHIBIT E iii THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF BOYKIN HOTEL PROPERTIES, L.P. RECITALS: Boykin Hotel Properties, L.P. (the "Partnership"), was formed as a limited partnership under the laws of the State of Ohio by the filing of a Certificate of Limited Partnership with the Secretary of State of Ohio on February 12, 1996. The Partnership's original Limited Partnership Agreement was superseded by an Amended and Restated Agreement of Limited Partnership on November 4, 1996 (the "Amended Agreement"), which was superseded by a Second Amended and Restated Agreement of Limited Partnership on May 20, 1998 (the "Second Amended Agreement"). The Second Amended Agreement was amended on February 1, 1999 and further amended on January 1, 2002. The General Partner and the Original Limited Partner desire to, with the Limited Partners, amend and restate the Second Amended Agreement, as amended, in its entirety. This Third Amended and Restated Agreement of Limited Partnership is entered into by the parties as of September , 2002. NOW, THEREFORE, in consideration of the foregoing, of the mutual covenants between the parties hereto, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to amend and restate the Second Amended Agreement, as amended, to read in its entirety as follows: ARTICLE I DEFINED TERMS Whenever used in this Agreement, the following terms shall have the meanings respectively assigned to them in this Article I, unless otherwise expressly provided herein or unless the context otherwise requires: ACT: "Act" shall mean the Uniform Limited Partnership Act, Ohio Revised Code ss.ss. 1782.01 ET SEQ., as in effect from time to time in the State of Ohio. ADDITIONAL FUNDS: "Additional Funds" has the meaning set forth in Section 4.4 hereof. ADDITIONAL LIMITED PARTNER: "Additional Limited Partner" shall mean a Person admitted to this Partnership as a Limited Partner pursuant to and in accordance with Section 2.3(b) of this Agreement. ADDITIONAL SECURITIES: "Additional Securities" means any additional REIT Shares (other than REIT Shares issued in connection with a redemption pursuant to Section 7.4 hereof) or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase REIT Shares, as set forth in Section 4.3(a)(ii). AFFILIATE: "Affiliate" of another Person shall mean (a) any Person directly or indirectly owning, controlling or holding with power to vote ten percent (10%) or more of the outstanding voting securities of such other Person; (b) any Person ten percent (10%) or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by such other Person; (c) any Person directly or indirectly controlling, controlled by, or under common control with, such other Person; (d) any officer, director, member or partner of such other Person; and (e) if such other Person is an officer, director, member or partner in a company, the company for which such Person acts in any such capacity. AGREED VALUE: "Agreed Value" shall mean the fair market value of Contributed Property as agreed to by the Contributing Partner and the Partnership, using such reasonable method of valuation as they may adopt. AGREEMENT: "Agreement" shall mean this Agreement of Limited Partnership of Boykin Hotel Properties, L.P., as amended from time to time. ARTICLES OF INCORPORATION: "Articles of Incorporation" means the Amended and Restated Articles of Incorporation of the General Partner filed with the Secretary of State of the State of Ohio, as amended or restated from time to time. BANKRUPTCY CODE: "Bankruptcy Code" shall mean the United States Bankruptcy Code, as amended, 11 U.S.C. ss.ss. 101 ET SEQ., and as hereafter amended from time to time. BOYKINS: "Boykins" shall mean Robert W. Boykin and John E. Boykin, their spouses and lineal ascendants and lineal descendants, and any person employed on a full-time basis at any time during the five (5) year period ending on November 4, 1996 by any entity owned (directly or indirectly) more than fifty percent (50%) by Robert W. Boykin or John E. Boykin or both. BUSINESS DAY: "Business Day" shall mean any day when the New York Stock Exchange is open for trading. CAPITAL ACCOUNT: "Capital Account" shall mean, as to any Partner, the account established and maintained for such Partner pursuant to Section 5.3 hereof. CAPITAL CONTRIBUTION: "Capital Contribution" shall mean the amount in cash or the Agreed Value of Contributed Property contributed by each Partner (or his original predecessor in interest) to the capital of the Partnership for his interest in the Partnership. CASH AMOUNT: "Cash Amount" means an amount of cash per Common Partnership Unit equal to the Value on the Valuation Date of the REIT Common Shares Amount. CASH FLOW: "Cash Flow" shall mean the excess of cash revenues actually received by the Partnership in respect of Partnership operations for any period, less Operating Expenses for such period. Cash Flow shall not include Disposition Proceeds. CODE: "Code" shall mean the Internal Revenue Code of 1986, as amended, and as hereafter amended from time to time. Reference to any particular provision of the Code shall mean that provision in the Code at the date hereof and any succeeding provision of the Code. COMMISSION: "Commission" shall mean the U.S. Securities and Exchange Commission. COMMON PARTNERSHIP INTEREST: "Common Partnership Interest" shall mean an ownership interest in the Partnership, other than a Preferred Partnership Interest, representing a Capital Contribution by either a Limited Partner or the General Partner and includes any and all benefits to which the holder of -2- such an ownership interest may be entitled as provided in this Agreement or the Act, together with all obligations of such Person to comply with the terms and provisions of this Agreement and the Act. COMMON PARTNERSHIP UNIT: "Common Partnership Unit" shall mean a fractional, undivided share of the Common Partnership Interests of all Partners issued hereunder. As of September 30, 2002, there shall be considered to be _________________________ Common Partnership Units outstanding, with each Common Partnership Unit representing a ____ percent (____%) Common Percentage Interest in the Partnership. At all times there shall be maintained an equivalency of Common Partnership Units and REIT Common 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 Common Shares. COMMON PERCENTAGE INTEREST: "Common Percentage Interest" shall mean the percentage ownership interest in the Common Partnership Units of each Partner, as determined by dividing the Common Partnership Units owned by a Partner by the total number of Common Partnership Units then outstanding. CONTRIBUTED PARTNERSHIPS: "Contributed Partnerships" shall mean the various limited partnerships that own the Initial Hotels prior to the formation transaction. CONTRIBUTED PROPERTY: "Contributed Property" shall mean a Partner's interest in property or other consideration (excluding services and cash) contributed to the Partnership by such Partner. CONVERSION FACTOR: "Conversion Factor" shall mean 1.0; provided, however, that in the event the General Partner (i) declares or pays a dividend on its outstanding REIT Common Shares in REIT Common Shares or makes a distribution to all holders of its outstanding REIT Common Shares in REIT Common Shares, (ii) subdivides its outstanding REIT Common Shares, or (iii) combines its outstanding REIT Common Shares into a smaller number of REIT Common Shares, the Conversion Factor shall be adjusted by multiplying the Conversion Factor by a fraction, the numerator of which shall be the number of REIT Common Shares issued and outstanding on the record date for such dividend, distribution, subdivision or combination (assuming for such purposes that such dividend, distribution, subdivision or combination has occurred as of such time), and the denominator of which shall be the actual number of REIT Common Shares (determined without the above assumption) issued and outstanding on the record date for such dividend, distribution, subdivision or combination. Any adjustment to the Conversion Factor shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event; PROVIDED, HOWEVER, that if the General Partner receives a Notice of Redemption after the record date, but prior to the effective date of such dividend, distribution, subdivision or combination, the Conversion Factor shall be determined as if the General Partner had received the Notice of Redemption immediately prior to the record date for such dividend, distribution, subdivision or combination. DISPOSITION PROCEEDS: "Disposition Proceeds" shall mean the excess of the proceeds received by the Partnership from the sale, exchange or other disposition of all or substantially all of the Partnership's Property less any expenses incurred or paid by the Partnership in connection with such transaction. EVENT OF BANKRUPTCY: "Event of Bankruptcy" shall mean as to any Person the filing of a petition for relief as to such Person as debtor or bankrupt under the Bankruptcy Code or similar provision of law of any jurisdiction (except if such petition is contested by such Person and has been dismissed within ninety (90) days of the filing thereof); insolvency of such Person as finally determined by a court of competent jurisdiction; filing by such Person of a petition or application to accomplish the same or for the appointment of a receiver or a trustee for such Person or a substantial part of such Person's assets; commencement of any proceedings relating to such Person as a debtor under any other reorganization, arrangement, insolvency, adjustment of debt or liquidation law of any jurisdiction, whether now in -3- existence or hereinafter in effect, either by such Person or by another, but if such proceeding is commenced by another, only if such Person indicates his approval of such proceeding, or such proceeding is contested by such Person and has not been finally dismissed within ninety (90) days. GENERAL PARTNER: "General Partner" shall mean Boykin Lodging Company and any Person who becomes a substitute or additional General Partner as provided herein, and any of their successors as General Partner. GENERAL PARTNERSHIP INTEREST: "General Partnership Interest" shall mean the ownership interest of a General Partner in the Partnership. GOVERNMENT OBLIGATIONS: "Government Obligations" shall mean securities that are (i) direct obligations of the United States of America, for the payment of which its full faith and credit is pledged, or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, that are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust as custodian with respect to any such obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of the Government Obligation evidenced by such depository receipt. INDEMNITEE: "Indemnitee" shall mean (i) any Person made a party to a proceeding by reason of its status as (A) the General Partner, or (B) a director or officer of the General Partner, and (ii) such other Persons (including Affiliates of the General Partner or the Partnership) as the General Partner may designate from time to time, in its sole and absolute discretion. INDEPENDENT DIRECTOR: "Independent Director" shall mean a director of the General Partner who is not (i) an officer or employee of the General Partner, (ii) an Affiliate of an officer or employee of the General Partner (iii) an Affiliate of (w) any lessee of any property of the General Partner or of any Subsidiary of the General Partner, (x) any Subsidiary of the General Partner, or (y) any partnership that is an Affiliate of the General Partner, or (iv) a Person who acts on a regular basis as an individual or as a representative of an organization serving as a professional advisor, legal counsel or consultant to management if, in the opinion of the Board of Directors of the General Partner, that relationship is material to the General Partner or the Partnership, that Person, or the organization represented. INITIAL HOTELS: "Initial Hotels" shall mean those properties listed on Exhibit C hereto. INITIAL LOAN: "Initial Loan" shall have the meaning provided in Section 6.8(a) hereof. INTERCOMPANY CONVERTIBLE NOTE: "Intercompany Convertible Note" shall mean that certain Loan Agreement dated as of November 4, 1996, between the General Partner and the Partnership, a copy of which is attached as Exhibit E hereto, as it may be amended from time to time. IRS: "IRS" shall mean the Internal Revenue Service. LIMITED PARTNER: "Limited Partner" shall mean any Person named as a Limited Partner on Exhibit A attached hereto and any Person who becomes a Substitute Limited Partner pursuant to Section 9.6 hereof or an Additional Limited Partner pursuant to Section 2.3(b) hereof, in such Person's capacity as a Limited Partner in the Partnership. -4- LIMITED PARTNERSHIP INTEREST: "Limited Partnership Interest" shall mean the ownership interest of a Limited Partner in the Partnership at any particular time, including the right of such Limited Partner to any and all benefits to which such Limited Partner may be entitled as provided in this Agreement and in the Act, together with the obligations of such Limited Partner to comply with all the provisions of this Agreement and of the Act. MINIMUM LIMITED PARTNERSHIP INTEREST: "Minimum Limited Partnership Interest" means a one percent (1%) Limited Partnership Interest. NOTICE OF REDEMPTION: "Notice of Redemption" shall mean the Notice of Exercise of Redemption Right substantially in the form attached as Exhibit D hereto. OFFERING: "Offering" shall mean the offer and sale by the General Partner and the purchase by the Underwriters (as defined in the Prospectus) of REIT Common Shares for sale to the public, consummated November 4, 1996. OPERATING EXPENSES: "Operating Expenses" shall mean (i) all administrative and operating costs and expenses incurred by the Partnership, (ii) those administrative costs and expenses of the General Partner, including any salaries or other payments to directors, officers or employees of the General Partner, and any accounting and legal expense of the General Partner, which expenses, the Partners have agreed, are expenses of the Partnership and not the General Partner, and (iii) to the extent not included in clause (ii) above, REIT Expenses; PROVIDED, HOWEVER, that Operating Expenses shall not include any administrative costs and expenses incurred by the General Partner that are attributable to Properties or partnership interests in a Subsidiary that are owned by the General Partner directly. ORIGINAL LIMITED PARTNER: "Original Limited Partner" shall mean Robert W. Boykin. PARTNER: "Partner" shall mean the General Partner or any Limited Partner. PARTNERSHIP: "Partnership" shall mean Boykin Hotel Properties, L.P., an Ohio limited partnership. PARTNERSHIP INTEREST: "Partnership Interest" shall mean an ownership interest in the Partnership representing a Capital Contribution by either a Limited Partner or the General Partner and includes any and all benefits to which the holder of such an ownership interest may be entitled as provided in this Agreement or the Act, together with all obligations of such Person to comply with the terms and provisions of this Agreement and the Act. PARTNERSHIP RECORD DATE: "Partnership Record Date" shall mean the record date established by the General Partner for the distribution of Cash Flow pursuant to Section 8.1 hereof, which record date shall be the same as the record date established by the General Partner for a distribution to its shareholders of some or all of its portion of such distribution. PERSON: "Person" shall mean any individual, partnership, corporation, limited liability company, trust or other entity. PREFERRED PARTNERSHIP INTEREST: "Preferred Partnership Interest" shall mean an ownership interest in the Partnership, having a preference in payment of distributions or on liquidation, representing a Capital Contribution by either a Limited Partner or the General Partner and includes any and all benefits to which the holder of such an ownership interest may be entitled as provided in this Agreement or the Act, together with all obligations of such Person to comply with the terms and provisions of this Agreement and the Act. -5- PREFERRED PARTNERSHIP UNIT: "Preferred Partnership Unit" shall mean a fractional, undivided share of the Preferred Partnership Interests of all Partners issued hereunder. As of September , 2002, there shall be considered to be _____________________ Preferred Partnership Units outstanding, with each Preferred Partnership Unit representing a ___ percent (___%) Preferred Percentage Interest in the Partnership. PREFERRED PERCENTAGE INTEREST: "Preferred Percentage Interest" shall mean the percentage ownership interest in the Preferred Partnership Units of each Partner, as determined by dividing the Preferred Partnership Units owned by a Partner by the total number of Preferred Partnership Units then outstanding. PREFERRED RETURN: "Preferred Return" shall mean any payment made or to be made on any Preferred Partnership Unit corresponding to any dividend paid or to be paid on any preferred shares issued by the General Partner, in accordance with Section 4.3 hereof. PROPERTY: "Property" shall mean any hotel property or other investment in which the Partnership holds an ownership interest. PROSPECTUS: "Prospectus" shall mean the final prospectus, dated October 29, 1996, delivered to purchasers of REIT Shares in the Offering. PUBLIC OFFERING PRICE: "Public Offering Price" shall mean the price set forth in the Prospectus. REDEEMING PARTNER: "Redeeming Partner" shall have the meaning provided in Section 7.4(a) hereof. REDEMPTION RIGHT: "Redemption Right" shall have the meaning provided in Section 7.4(a) hereof. REIT: "REIT" shall mean a real estate investment trust under Sections 856 through 860, inclusive, of the Code. REIT COMMON SHARE: "REIT Common Share" shall mean a share of the common shares of the General Partner. REIT COMMON SHARES AMOUNT: "REIT Common Shares Amount" shall mean a whole number of REIT Common Shares equal to the product of the number of Common Partnership Units offered for redemption by a Redeeming Partner, multiplied by the Conversion Factor (rounded down to the nearest whole number in the event such product is not a whole number); provided, however, that in the event the General Partner at any time issues to all holders of REIT Common Shares rights, options, warrants or convertible or exchangeable securities entitling the shareholders to subscribe for or purchase REIT Common Shares, or any other securities or property (collectively, the "Rights"), which Rights have not expired pursuant to their terms, then the REIT Common Shares Amount thereafter shall also include such Rights that a holder of that number of REIT Common Shares would be entitled to receive. REIT EXPENSES: "REIT Expenses" means (i) costs and expenses relating to the formation and continuity of existence of the General Partner and any Subsidiaries thereof (which Subsidiaries shall, for purposes hereof, be included within the definition of General Partner), including taxes, fees and assessments associated therewith, any and all costs, expenses or fees payable to any director, officer, or employee of the General Partner, (ii) costs and expenses relating to the public offering and registration of securities or private offering of securities by the General Partner and all statements, reports, fees and expenses incidental thereto, including underwriting discounts and selling commissions applicable to any such offering of securities, (iii) costs and expenses associated with the preparation and filing of any -6- periodic reports by the General Partner under federal, state or local laws or regulations, including filings with the Commission, (iv) costs and expenses associated with compliance by the General Partner with laws, rules and regulations promulgated by any regulatory body, including the Commission, and (v) all other operating or administrative costs of the General Partner, including, without limitation, insurance premiums, and legal, accounting and directors' fees, incurred in the ordinary course of its business on behalf of or in connection with the Partnership. REIT PREFERRED SHARE: "REIT Preferred Share" shall mean a share of the preferred shares of the General Partner. REIT SHARE: "REIT Share" shall mean a REIT Common Share or a REIT Preferred Share. SPECIFIED REDEMPTION DATE: "Specified Redemption Date" shall mean, with respect to a given Partner, the tenth (10th) Business Day after receipt by the General Partner of a Notice of Redemption; provided, however, that no Specified Redemption Date shall occur with respect to the Boykins (as defined herein) before three (3) years from November 4, 1996; provided, further, that if the General Partner combines its outstanding REIT Common Shares, no Specified Redemption Date shall occur after the record date and prior to the effective date of such combination. SUBORDINATED CONVERTIBLE DEBT: "Subordinated Convertible Debt" shall mean the indebtedness of the Partnership to the General Partner evidenced by the Intercompany Convertible Note. SUBSIDIARY: "Subsidiary" shall mean, with respect to any Person, any corporation or other entity of which a majority of (i) the voting power of the voting equity securities, or (ii) the outstanding equity interests, are owned, directly or indirectly, by such Person. SUBSTITUTE GENERAL PARTNER: "Substitute General Partner" has the meaning set forth in Section 9.2. SUBSTITUTE LIMITED PARTNER: "Substitute Limited Partner" shall mean any Person admitted to the Partnership as a Limited Partner pursuant to Section 9.6 hereof. SURVIVING GENERAL PARTNER: "Surviving General Partner" has the meaning set forth in Section 9.1(d) hereof. TRANSACTION: "Transaction" has the meaning set forth in Section 9.1(c) hereof. TRANSFER: "Transfer" has the meaning set forth in Section 9.5(a) hereof. VALUATION DATE: "Valuation Date" shall mean the date of receipt by the General Partner of a Notice of Redemption or, if such date is not a Business Day, the first Business Day thereafter. VALUE: "Value" shall mean, with respect to a REIT Common Share, the average of the daily market price for the ten (10) consecutive trading days immediately preceding the Valuation Date. The market price for each such trading day shall be: (i) if the REIT Common Shares are listed or admitted to trading on any securities exchange or the NASDAQ National Market System, the closing price, regular way, on such day, or if no such sale takes place on such day, the average of the closing bid and asked prices on such day; (ii) if the REIT Common Shares are not listed or admitted to trading on any securities exchange or the NASDAQ National Market System, the last reported sale price on such day or, if no sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a reliable quotation source designated by the General Partner; or (iii) if the REIT Common Shares are not listed or admitted to trading on any securities exchange or the NASDAQ National Market System and no such last reported sale price or closing bid and asked prices are available, the average of the reported high -7- bid and low asked prices on such day, as reported by a reliable quotation source designated by the General Partner, or if there shall be no bid and asked prices on such day, the average of the high bid and low asked prices, as so reported, on the most recent day (not more than ten (10) days prior to the date in question) for which prices have been so reported; provided, however, that if there are no bid and asked prices reported during the ten (10) days prior to the date in question, the Value of the REIT Common Shares shall be determined by the General Partner acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate. In the event the REIT Common Shares Amount includes rights that a holder of REIT Common Shares would be entitled to receive, and the General Partner acting in good faith determines that the value of such rights is not reflected in the Value of the REIT Common Shares determined as aforesaid, then the Value of such rights shall be determined by the General Partner acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate. ARTICLE II PARTNERSHIP CONTINUATION; ADMISSION OF LIMITED PARTNERS; NAME; PLACE OF BUSINESS AND REGISTERED AGENT Section 2.1 CONTINUATION. The Partners hereby agree to continue the Partnership pursuant to the Act and upon the terms and conditions set forth in this Agreement. Section 2.2 RESTATED CERTIFICATE OF LIMITED PARTNERSHIP; OTHER FILINGS. The General Partner shall prepare (or caused to be prepared), execute, acknowledge, record and file at the expense of the Partnership, a Restated Certificate of Limited Partnership and all requisite fictitious name statements and notices in such places and jurisdictions as may be required by the Act or necessary to cause the Partnership to be treated as a limited partnership under, and otherwise to comply with, the laws of each state or other jurisdiction in which the Partnership conducts business. Section 2.3 LIMITED PARTNERS; ADDITIONAL LIMITED PARTNERS. (a) The Limited Partners shall be those Persons identified as Limited Partners on Exhibit A attached hereto, as amended from time to time pursuant to the terms of this Agreement, and such Persons are hereby admitted to the Partnership as Limited Partners. (b) The General Partner shall in timely fashion amend this Agreement and, if required by the Act, the Certificate of Limited Partnership filed for record to reflect the admission pursuant to the terms of this Agreement of a Person as a Limited Partner. Section 2.4 NAME, OFFICE AND REGISTERED AGENT. The name of the Partnership shall be Boykin Hotel Properties, L.P. The principal place of business of the Partnership shall be at Guildhall Building, Suite 1500, 45 West Prospect Avenue, Cleveland, Ohio, 44115. The General Partner may at any time change the location of such office, provided the General Partner gives notice to the Partners of any such change. The name and address of the Partnership's statutory agent for service of process on the Partnership is Boykin Lodging Company, Guildhall Building, Suite 1500, 45 West Prospect Avenue, Cleveland, Ohio, 44115. ARTICLE III -8- BUSINESS AND TERM OF PARTNERSHIP Section 3.1 BUSINESS. The purpose and nature of the business of the Partnership is to conduct any business that may lawfully be conducted by a limited partnership organized pursuant to the Act; provided, however, that such business shall be limited to and conducted in such a manner as to permit the General Partner at all times to be classified as a REIT, unless the Board of the General Partner determines to cease to qualify as a REIT. To consummate the foregoing and to carry out the obligations of the Partnership in connection therewith or incidental thereto, the General Partner shall have the authority, in accordance with and subject to the limitations set forth elsewhere in this Agreement, to make, enter into, perform and carry out any arrangements, contracts or agreements of every kind for any lawful purpose, without limit as to amount or otherwise, with any corporation, association, partnership, limited liability company, firm, trustee, syndicate, individual or any political or governmental division, subdivision or agency, domestic or foreign, and generally to make and perform agreements and contracts of every kind and description and to do any and all things necessary or incidental to the foregoing for the protection and enhancement of the assets of the Partnership. Section 3.2 TERM. The Partnership as herein constituted shall continue until December 31, 2050, unless earlier dissolved or terminated pursuant to law or the provisions of this Agreement. ARTICLE IV CAPITAL CONTRIBUTIONS Section 4.1 GENERAL PARTNER. (a) The General Partner has contributed cash to the capital of the Partnership in the amount set forth opposite the name of the General Partner on Exhibit A attached hereto. (b) Upon the termination and dissolution of the Partnership, the General Partner shall contribute an amount equal to the lesser of (i) the aggregate deficit balance in the General Partner's Capital Account, and (ii) the excess of 1.01% of the aggregate capital previously contributed by the Limited Partners over the aggregate amount of capital previously contributed by the General Partner, to the Partnership. Section 4.2 LIMITED PARTNERS. The Limited Partners have contributed their respective ownership interests in the Contributed Partnerships to the capital of the Partnership. The Agreed Values of the Limited Partners' proportionate ownership interests in the Contributed Partnerships are set forth on Exhibit A attached hereto. Section 4.3 ADDITIONAL CAPITAL CONTRIBUTIONS AND ISSUANCES OF ADDITIONAL PARTNERSHIP Interests. Except as provided in this Section 4.3 or in Section 4.4, the Partners shall have no right or obligation to make any additional Capital Contributions or loans to the Partnership. The General Partner may contribute additional capital or property to the Partnership, from time to time, and receive additional Partnership Interests in respect thereof, in the manner contemplated in this Section 4.3. (a) ISSUANCES OF ADDITIONAL PARTNERSHIP INTERESTS. (i) GENERAL. The General Partner is hereby authorized to cause the Partnership to issue such additional Partnership Interests in the form of Common Partnership Units and Preferred Partnership Units for any Partnership purpose at any time or from time to time, to the Partners or to other Persons for such consideration and on such terms and conditions -9- as shall be established by the General Partner in its sole and absolute discretion, all without the approval of any of the Limited Partners. Any additional Partnership Interest issued thereby may be issued 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, all 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, including, without limitation, (i) the allocations of items of Partnership income, gain, loss, deduction and credit to each such class or series of Partnership Interests; (ii) the right of each such class or series of Partnership Interests to share in Partnership distributions; and (iii) the rights of each class or series of Partnership Interests upon dissolution and liquidation of the Partnership; PROVIDED, HOWEVER, that no additional Partnership Interests shall be issued to the General Partner unless: (1) (A) The additional Partnership Interests are issued in connection with an issuance of REIT Shares of or other interests in the General Partner, which shares or interests have designations, preferences and other rights, all such that the economic interests are substantially similar to the designations, preferences and other rights of the additional Partnership Interests issued to the General Partner by the Partnership in accordance with this Section 4.3 and (B) the General Partner shall make, directly or through one or more Affiliates, a Capital Contribution to the Partnership in an amount equal to the proceeds raised or other property received by the General Partner, directly or through one or more Affiliates, in connection with the issuance of such shares or other interests in the General Partner, or (2) the additional Partnership Interests are issued in connection with the conversion of the Subordinated Convertible Debt at a conversion rate of twenty and 00/100 Dollars ($20.00) of principal amount of such debt per one Common Partnership Unit, or (3) the additional Partnership Interests are issued to all Partners in proportion to their respective Common Percentage Interests or Preferred Percentage Interests, as applicable. Without limiting the foregoing, the General Partner is expressly authorized to cause the Partnership to issue Common Partnership Units or Preferred Partnership Units for less than fair market value, so long as the General Partner concludes in good faith that such issuance is in the best interests of the General Partner and the Partnership. (ii) UPON ISSUANCE OF ADDITIONAL SECURITIES. After the Offering, the Company shall not issue any additional REIT Shares (other than REIT Shares issued in connection with a redemption pursuant to Section 7.4 hereof) or rights, options, warrants or convertible or exchangeable securities containing the right to subscribe for or purchase REIT Shares (collectively, "Additional Securities") other than to all holders of REIT Shares, unless (A) the General Partner shall cause the Partnership to issue to the General Partner Partnership Interests or rights, options, warrants or convertible or exchangeable securities of the Partnership having designations, preferences and other rights, all such that the economic interests are substantially similar to those of the Additional Securities, and (B) the General Partner contributes, directly or through one or more Affiliates, the proceeds or other property received from the issuance of such Additional Securities and from any exercise of rights contained in such Additional Securities to the Partnership. Without limiting the foregoing, the General Partner is expressly authorized to issue Additional Securities for less than fair market value, and to cause the Partnership to issue to the General Partner corresponding Partnership Interests, so long as (x) the General Partner concludes in good faith that such issuance is in the best interests of the General -10- Partner and the Partnership, and (y) the General Partner contributes all proceeds or other property received from such issuance to the Partnership. For example, in the event the General Partner issues REIT Common Shares for a cash purchase price and contributes all of the proceeds of such issuance to the Partnership as required hereunder, the General Partner shall be issued a number of additional Common Partnership Units equal to the product of (A) the number of such REIT Common Shares issued by the General Partner, the proceeds of which were so contributed, multiplied by (B) a fraction, the numerator of which is 100%, and the denominator of which is the Conversion Factor in effect on the date of such contribution. (b) CERTAIN DEEMED CONTRIBUTIONS OF PROCEEDS OF ISSUANCE OF REIT SHARES. In connection with any and all issuances of REIT Shares, the General Partner shall contribute all of the proceeds raised in connection with such issuance to the Partnership as Capital Contributions, PROVIDED THAT if the proceeds actually received and contributed by the General Partner are less than the gross proceeds of such issuance as a result of any underwriter's discount or other expenses paid or incurred in connection with such issuance, then the General Partner shall be deemed to have made Capital Contributions to the Partnership in the aggregate amount of the gross proceeds of such issuance and the Partnership shall be deemed simultaneously to have paid such offering expenses in connection with the required issuance of additional Partnership Units to the General Partner for such Capital Contributions pursuant to Section 4.3(a) hereof. (c) MINIMUM LIMITED PARTNERSHIP INTEREST. In the event that either a redemption pursuant to Section 7.4 hereof or additional Capital Contributions by the General Partner would result in the Limited Partners, in the aggregate, owning less than the Minimum Limited Partnership Interest, the General Partner and the Limited Partners shall form another partnership and contribute sufficient Limited Partnership Interests together with such other Limited Partners so that the limited partners of such partnership own at least the Minimum Limited Partnership Interest. (d) SERIES 1999-A PREFERRED PARTNERSHIP UNITS. Without limiting the generality of this Section 4.3, the Partnership is authorized to issue to the General Partner Series 1999-A Preferred Partnership Units (the "Series 1999-A Preferred Units"). Upon any issuance by the General Partner of any of its Class A Cumulative Preferred Shares, Series 1999-A (the "Series 1999-A Preferred Shares"), the General Partner shall contribute to the Partnership the net proceeds from that issuance in exchange for a number of Series 1999-A Preferred Units equal to the number of Series 1999-A Preferred Shares issued by the General Partner. If and when the holders of Series 1999-A Preferred Shares are entitled to receive any payment from the General Partner of any dividend or amount payable on redemption, liquidation or conversion, the holders of the Series 1999-A Preferred Units will be entitled to receive from the Partnership an amount of cash equal to the value to be paid to the holders of the Series 1999-A Preferred Shares prior to the payment of any such amount to the holders of Common Partnership Units, all such payments being made to the extent necessary to cause the holders of Series 1999-A Preferred Shares and the holders of Series 1999-A Preferred Units to have the same economic rights and preferences on a per-share and per-unit basis. Upon redemption, purchase or other acquisition by the General Partner of any of the Series 1999-A Preferred Shares, the Partnership shall redeem, purchase or otherwise acquire an equal number of Series 1999-A Preferred Units. Upon any conversion of Series 1999-A Preferred Shares into REIT Common Shares, an equal number of Series 1999-A Preferred Units will automatically be converted into a number of Common Partnership Units equal to the number of REIT Common Shares issued on the conversion of the Series 1999-A Preferred Shares. Upon the issuance of Series 1999-A Preferred Shares at any time and from time to time, the General Partner shall take all actions necessary to ensure that the Series 1999-A Preferred Units held by the General Partner have the same economic rights and preferences as the outstanding Series 1999-A Preferred Shares, all as set forth in the Certificate of Amendment to the Articles of Incorporation dated as of February 1, 1999. (e) SERIES 2002-A PREFERRED PARTNERSHIP UNITS. Without limiting the generality of this Section 4.3, the Partnership is authorized to issue to the General Partner Series 2002-A Preferred -11- Partnership Units (the "Series 2002-A Preferred Units"). Upon any issuance by the General Partner of any of its Class A Cumulative Preferred Shares, Series 2002-A (the "Series 2002-A Preferred Shares"), the General Partner shall contribute to the Partnership the net proceeds from that issuance in exchange for a number of Series 2002-A Preferred Units equal to the number of Series 2002-A Preferred Shares issued by the General Partner. If and when the holders of Series 2002-A Preferred Shares are entitled to receive any payment from the General Partner of any dividend or amount payable on redemption or liquidation, the holders of the Series 2002-A Preferred Units will be entitled to receive from the Partnership an amount of cash equal to the value to be paid to the holders of the Series 2002-A Preferred Shares prior to the payment of any such amount to the holders of Common Partnership Units, all such payments being made to the extent necessary to cause the holders of Series 2002-A Preferred Shares and the holders of Series 2002-A Preferred Units to have the same economic rights and preferences on a per-share and per-unit basis. Upon redemption, purchase or other acquisition by the General Partner of any of the Series 2002-A Preferred Shares, the Partnership shall redeem, purchase or otherwise acquire an equal number of Series 2002-A Preferred Units. Upon the issuance of Series 2002-A Preferred Shares at any time and from time to time, the General Partner shall take all actions necessary to ensure that the Series 2002-A Preferred Units held by the General Partner have the same economic rights and preferences as the outstanding Series 2002-A Preferred Shares, all as set forth in the Certificate of Amendment to the Articles of Incorporation dated as of September , 2002. Section 4.4 ADDITIONAL FUNDING. If the General Partner determines that it is in the best interests of the Partnership to provide for additional Partnership funds ("Additional Funds") for any Partnership purpose, the General Partner may (i) cause the Partnership to obtain such funds from outside borrowings, or (ii) elect to have the General Partner provide such Additional Funds to the Partnership through loans or otherwise. Section 4.5 INTEREST. No interest shall be paid on the Capital Contribution of any Partner. Section 4.6 RETURN OF CAPITAL. Except as expressly provided in this Agreement, no Partner shall be entitled to demand or receive the return of his Capital Contribution. ARTICLE V PROFITS, LOSSES AND ACCOUNTING Section 5.1 ALLOCATION OF PROFITS AND LOSSES. Except as otherwise provided herein or in Exhibit B, profits earned and losses incurred by the Partnership shall be allocated among the Partners as follows: (a) Profits for each year shall be allocated among the Partners, and shall be credited to the respective Capital Accounts of the Partners, in the following order and priority: (i) First, to the Partners to the extent of losses, in the proportions and in the reverse order in which losses were allocated to them pursuant to Section 7.1(b), until the cumulative amounts allocated to each Partner pursuant to this Section 7.1(a)(i) are equal to the cumulative losses so allocated to such Partner; (ii) Second, to the holders of Preferred Partnership Units, if any, until the cumulative amount of profits allocated to each such holder pursuant to this Section 5.1(a)(ii) and Section 5.1(a)(iv) below for the current and all prior taxable years is equal to the sum of the cumulative amount distributed to each such holder pursuant to Section 8.1(a)(i) for the current and all prior taxable years; -12- (iii) Third, to the holders of Common Partnership Units in accordance with their Common Percentage Interests, until the cumulative amount of profits allocated to each such holder pursuant to this Section 5.1(a)(iii) and Section 5.1(a)(v) below for the current and all prior taxable years is equal to the sum of the cumulative amount distributed to each such holder pursuant to Section 8.1(a)(ii) for the current and all prior taxable years; (iv) Fourth, to the holders of Preferred Partnership Units, if any, in accordance with their Preferred Percentage Interests to the extent there exists any accrued but unpaid Preferred Return for which profits have not previously been allocated pursuant to this Section 5.1(iv); and (v) Fifth, any remaining profits shall be allocated to the holders of Common Partnership Units in accordance with their Common Partnership Interests. (b) Losses for each year shall be allocated among the Partners, and shall be debited to the respective Capital Accounts of the Partners, in the following order and priority: (i) First, to the holders of Common Partnership Units pro rata in accordance with the positive balances in their Adjusted Capital Account Balances attributable to Common Partnership Units; (ii) Second to the holders of Preferred Partnership Units pro rata in accordance with the positive balances in their Adjusted Capital Account Balances attributable to Preferred Partnership Units; and (iii) Thereafter any remaining losses will be allocated to the General Partner. Section 5.2 ACCOUNTING. (a) The books of the Partnership shall be kept on the accrual basis and in accordance with generally accepted accounting principles consistently applied. (b) The fiscal year of the Partnership shall be the calendar year. (c) The terms "profits" and "losses," as used herein, shall mean all items of income, gain, expense or loss as determined utilizing federal income tax accounting principles and shall also include each Partner's share of income described in Section 705(a)(1)(B) of the Code, any expenditures described in Section 705(a)(2)(B) of the Code, any expenditures described in Section 709(a) of the Code which are not deducted or amortized in accordance with Section 709(b) of the Code, losses not deductible pursuant to Sections 267(a) and 707(b) of the Code and adjustments made pursuant to Exhibit B attached hereto. (d) The General Partner shall be the Tax Matters Partner of the Partnership within the meaning of Section 6231(a)(7) of the Code. As Tax Matters Partner, the General Partner shall have the right and obligation to take all actions authorized and required, respectively, by the Code for the Tax Matters Partner. The General Partner shall have the right to retain professional assistance in respect of any audit of the Partnership by the IRS, and all out-of-pocket expenses and fees incurred by the General Partner on behalf of the Partnership as Tax Matters Partner shall constitute Operating Expenses of the Partnership. In the event the General Partner receives notice of a final Partnership adjustment under Section 6223(a)(2) of the Code, the General Partner shall either (i) file a court petition for judicial review of such final adjustment within the period provided under Section 6226(a) of the Code, a copy of which petition shall be mailed to each Limited Partner on the date such petition is filed, or (ii) mail a -13- written notice to each Limited Partner, within such period, that describes the General Partner's reasons for determining not to file such a petition. (e) Except as specifically provided herein, all elections required or permitted to be made by the Partnership under the Code shall be made by the General Partner in its sole discretion. (f) Any Partner shall have the right to a private audit of the books and records of the Partnership, provided such audit is made at the expense of the Partner desiring it, and it is made during normal business hours. Section 5.3 PARTNERS' ACCOUNTS. (a) There shall be maintained a Capital Account for each Partner in accordance with this Section 5.3 and the principles set forth in Exhibit B attached hereto and made a part hereof. The amount of cash and the net fair market value of property contributed to the Partnership by each Partner, net of liabilities assumed by the Partnership, shall be credited to its Capital Account, and from time to time, but not less often than annually, the share of each Partner in profits, losses and fair market value of distributions shall be credited or charged to its Capital Account. The determination of Partners' Capital Accounts, and any adjustments thereto, shall be made consistent with tax accounting and other principles set forth in Section 704(b) of the Code and applicable regulations thereunder and Exhibit B attached hereto. (b) Except as otherwise specifically provided herein or in a guarantee of a Partnership liability, signed by a Limited Partner, no Limited Partner shall be required to make any further contribution to the capital of the Partnership to restore a loss, to discharge any liability of the Partnership or for any other purpose, nor shall any Limited Partner personally be liable for any liabilities of the Partnership or of the General Partner except as provided by law or this Agreement. All Limited Partners hereby waive their right of contribution which they may have against other Partners in respect of any payments made by them under any guarantee of Partnership debt. (c) Immediately following the transfer of any Partnership Interest, the Capital Account of the transferee Partner shall be equal to the Capital Account of the transferor Partner attributable to the transferred interest, and such Capital Account shall not be adjusted to reflect any basis adjustment under Section 743 of the Code. (d) For purposes of computing the amount of any item of income, gain, deduction or loss to be reflected in the Partners' Capital Accounts, the determination, recognition and classification of any such item shall be the same as its determination, recognition and classification for federal income tax purposes, taking into account any adjustments required pursuant to Section 704(b) of the Code and the applicable regulations thereunder as more fully described in Exhibit B attached hereto. Section 5.4 SECTION 754 ELECTIONS. The General Partner shall elect, pursuant to Section 754 of the Code, to adjust the basis of the Partnership's assets for all transfers of Partnership interests if such election would benefit any Partner or the Partnership. ARTICLE VI POWERS, DUTIES, LIABILITIES, COMPENSATION AND VOTING OF GENERAL PARTNER Section 6.1 POWERS OF GENERAL PARTNER. Notwithstanding any provision of this Agreement to the contrary, the General Partner's discretion and authority are subject to the limitations -14- imposed by law, and by the General Partner's articles of incorporation and code of regulations. Subject to the foregoing and to other limitations imposed by this Agreement, the General Partner shall have full, complete and exclusive discretion to manage and control the business and affairs of the Partnership and make all decisions affecting the business and assets of the Partnership. Without limiting the generality of the foregoing (but subject to the restrictions specifically contained in this Agreement), the General Partner shall have the power and authority to take the following actions on behalf of the Partnership: (a) to acquire, purchase, own, lease and dispose of any real property and any other property or assets that the General Partner determines are necessary or appropriate or in the best interests of conducting the business of the Partnership; (b) to construct buildings and make other improvements (including renovations) on or to the properties owned or leased by the Partnership; (c) to borrow money for the Partnership, issue evidences of indebtedness in connection therewith, refinance, guarantee, increase the amount of, modify, amend or change the terms of, or extend the time for the payment of, any indebtedness or obligation of or to the Partnership, and secure such indebtedness by mortgage, deed of trust, pledge or other lien on the Partnership's assets; (d) to pay, either directly or by reimbursement, for all Operating Expenses to third parties or to the General Partner (as set forth in this Agreement); (e) to lease all or any portion of any of the Partnership's assets, whether or not the terms of such leases extend beyond the termination date of the Partnership and whether or not any portion of the Partnership's assets so leased are to be occupied by the lessee, or, in turn, subleased in whole or in part to others, for such consideration and on such terms as the General Partner may determine; (f) to prosecute, defend, arbitrate, or compromise any and all claims or liabilities in favor of or against the Partnership, on such terms and in such manner as the General Partner may reasonably determine, and similarly to prosecute, settle or defend litigation with respect to the Partners, the Partnership, or the Partnership's assets; provided, however, that the General Partner may not, without the consent of all of the Partners, confess a judgment against the Partnership; (g) to file applications, communicate, and otherwise deal with any and all governmental agencies having jurisdiction over, or in any way affecting, the Partnership's assets or any other aspect of the Partnership business; (h) to make or revoke any election permitted or required of the Partnership by any taxing authority; (i) to maintain such insurance coverage for public liability, fire and casualty, and any and all other insurance for the protection of the Partnership, for the conservation of Partnership assets, or for any other purpose convenient or beneficial to the Partnership, in such amounts and such types as the General Partner shall determine from time to time; (j) to determine whether or not to apply any insurance proceeds for any Property to the restoration of such Property or to distribute the same; (k) to retain providers of services of any kind or nature in connection with the Partnership business and to pay therefor such reasonable remuneration as the General Partner may deem proper; -15- (l) to negotiate and conclude agreements on behalf of the Partnership with respect to any of the rights, powers and authority conferred upon the General Partner, including, without limitation, management agreements, franchise agreements, agreements with federal, state or local liquor licensing agencies and agreements with operators of restaurants and bars; (m) to maintain accurate accounting records and to file promptly all federal, state and local income tax returns on behalf of the Partnership; (n) to form or acquire an interest in, and contribute property to, any further limited or general partnerships, joint ventures or other relationships that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to, its Subsidiaries and any other Person in which it has an equity interest from time to time); (o) to distribute Partnership cash or other Partnership assets in accordance with this Agreement; (p) to establish Partnership reserves for working capital, capital expenditures, contingent liabilities or any other valid Partnership purpose; (q) to take whatever action the General Partner deems appropriate to maintain the economic equivalency of Common Partnership Units and REIT Common Shares and Preferred Partnership Units and REIT Preferred Shares, respectively; and (r) to take such other action, execute, acknowledge, swear to or deliver such other documents and instruments, and perform any and all other acts the General Partner deems necessary or appropriate for the formation, continuation and conduct of the business and affairs of the Partnership (including, without limitation, all actions consistent with qualification of the General Partner as a REIT) and to possess and enjoy all of the rights and powers of a general partner as provided by the Act. Except as otherwise provided herein, to the extent the duties of the General Partner require expenditures of funds to be paid to third parties, the General Partner shall not have any obligations hereunder except to the extent that Partnership funds are reasonably available to it for the performance of such duties, and nothing herein contained shall be deemed to authorize or require the General Partner, in its capacity as such, to expend its individual funds for payment to third parties or to undertake any individual liability or obligation on behalf of the Partnership. Section 6.2 DELEGATION OF AUTHORITY. The General Partner may delegate any or all of its powers, rights and obligations hereunder, and may appoint, employ, contract or otherwise deal with any Person for the transaction of the business of the Partnership, which Person may, under supervision of the General Partner, perform any acts or services for the Partnership as the General Partner may approve. Section 6.3 DUTIES OF GENERAL PARTNER. (a) The General Partner, subject to the limitations contained elsewhere in this Agreement, shall manage or cause to be managed the affairs of the Partnership in a prudent and businesslike manner and shall devote sufficient time and effort to the Partnership affairs. (b) In carrying out its obligations, the General Partner shall: (i) Render annual reports to all Partners with respect to the operations of the Partnership; (ii) On or before March 31st of every year, mail to all persons who were Partners at any time during the Partnership's prior fiscal year an annual report of the -16- Partnership, including all necessary tax information, and any other information regarding the Partnership and its operations during the prior fiscal year deemed by the General Partner to be material; (iii) Maintain complete and accurate records of all business conducted by the Partnership and complete and accurate books of account (containing such information as shall be necessary to record allocations and distributions), and make such records and books of account available for inspection and audit by any Partner or such Partner's duly authorized representative (at the sole expense of such Partner) during regular business hours and at the principal office of the Partnership; and (iv) Cause to be filed such certificates and do such other acts as may be required by law to qualify and maintain the Partnership as a limited partnership under the laws of the State of Ohio. (c) The General Partner shall take such actions as it deems necessary to maintain the economic equivalency of Common Partnership Units and REIT Common Shares and Preferred Partnership Units and REIT Preferred Shares, respectively, required by this Agreement. Section 6.4 LIABILITIES OF GENERAL PARTNER; INDEMNIFICATION. (a) The General Partner shall not be liable for the return of all or any part of the Capital Contributions of the Limited Partners. Any returns shall be made solely from the assets of the Partnership according to the terms of this Agreement. (b) In carrying out its duties hereunder, the General Partner shall not be liable to the Partnership or to any other Partner for any actions taken in good faith and reasonably believed to be in the best interests of the Partnership, or for errors of judgment, but shall be liable only for fraud, gross negligence or breach of its fiduciary duties. The Limited Partners expressly acknowledge that the General Partner is acting on behalf of the Partnership, the General Partner and the General Partner's shareholders collectively, and that the General Partner is under no obligation to consider the separate interests of the Limited Partners (including, without limitation, the tax consequences to Limited Partners) in deciding whether to cause the Partnership to take (or decline to take) any actions. In the event of a conflict between the interests of the shareholders of the General Partner on one hand and the Limited Partners on the other, the General Partner shall endeavor in good faith to resolve the conflict in a manner not adverse to either the shareholders of the General Partner or the Limited Partners; provided, however, that for so long as the General Partner owns a controlling interest in the Partnership, any such conflict that cannot be resolved in a manner not adverse to either the shareholders of the General Partner or the Limited Partners shall be resolved in favor of the shareholders. The General Partner shall not be liable for monetary damages for losses sustained, liabilities incurred, or benefits not derived by Limited Partners in connection with such decisions, provided that the General Partner has acted in good faith. Any amendment, modification or repeal of this Section 6.4 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the General Partner's liability to the Partnership and the Limited Partners under this Section 6.4 as in effect immediately prior to such amendment, modification or repeal with respect to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when claims relating to such matters may arise or be asserted. (c) The Partnership shall indemnify an Indemnitee to the fullest extent permitted by law, and save and hold it harmless from and against, and in respect of, all: (i) fees, costs and expenses (including reasonable attorney fees) incurred in connection with or resulting from any claim, action or demand against any Indemnitee or the Partnership that arises out of or in any way relates to the Partnership, (ii) claims, actions and demands arising out of or in any way related to the Partnership, and any losses or damages resulting from such claims, actions and demands, including, without limitation, reasonable costs and expenses of litigation and appeal and amounts paid in settlement or compromise of -17- any such claim, action or demand; provided, however, that this indemnification shall not apply if: (A) the act or omission of the Indemnitee was material to the matter giving rise to the proceeding and either was committed in bad faith or was the result of active and deliberate dishonesty; (B) the Indemnitee actually received an improper personal benefit in money, property or services; or (C) in the case of any criminal proceeding, the Indemnitee had reasonable cause to believe that the act or omission was unlawful. The termination of any proceeding by judgment, order or settlement does not create a presumption that the Indemnitee did not meet the requisite standard of conduct set forth in this Section 6.4(c). The termination of any proceeding by conviction or upon a plea of nolo contendere or its equivalent, or an entry of an order of probation prior to judgment, creates a rebuttable presumption that the Indemnitee acted in a manner contrary to that specified in this Section 6.4(c). Any indemnification pursuant to this Section 6.4 shall be made only out of the assets of the Partnership. (d) The Partnership may reimburse an Indemnitee for reasonable expenses incurred by an Indemnitee who is a party to a proceeding in advance of the final disposition of the proceeding upon receipt by the Partnership of (i) a written affirmation by the Indemnitee of the Indemnitee's good faith belief that the standard of conduct necessary for indemnification by the Partnership as authorized in this Section 6.4 has been met, and (ii) a written undertaking by or on behalf of the Indemnitee to repay the amount if it shall ultimately be determined that the standard of conduct has not been met. (e) The indemnification provided by this Section 6.4 shall be in addition to any other rights to which an Indemnitee or any other Person may be entitled under any agreement, pursuant to any vote of the Partners, as a matter of law or otherwise, and shall continue as to an Indemnitee who has ceased to serve in such capacity. (f) The Partnership may purchase and maintain insurance on behalf of the Indemnitees, and such other Persons as the General Partner shall determine, against any liability that may be asserted against or expenses that may be incurred by such Person in connection with the Partnership's activities, regardless of whether the Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement. (g) For purposes of this Section 6.4, the Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by the Indemnitee of its duties to the Partnership also imposes duties on, or otherwise involves services by, the Indemnitee to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute fines within the meaning of this Section 6.4; and actions taken or omitted by the Indemnitee with respect to an employee benefit plan in the performance of its duties for a purpose reasonably believed by the Indemnitee to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Partnership. (h) In no event may an Indemnitee subject the Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement. (i) An Indemnitee shall not be denied indemnification in whole or in part under this Section 6.4 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (j) The provisions of this Section 6.4 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other persons. (k) Notwithstanding any other provisions of this Agreement or the Act, any action of the General Partner on behalf of the Partnership or any decision of the General Partner to refrain -18- from acting on behalf of the Partnership, undertaken in the good faith belief that such action or omission is necessary or advisable in order (i) to protect the ability of the General Partner to continue to qualify as a REIT, or (ii) to prevent the General Partner from incurring any taxes under Section 857 or Section 4981 of the Code, is expressly authorized under this Agreement and is deemed approved by all of the Limited Partners. Further, any provision of this Agreement that might jeopardize the General Partner's REIT status shall be (i) void and of no effect, or (ii) reformed, as necessary, to avoid the General Partner's loss of REIT status. Section 6.5 COMPENSATION OF GENERAL PARTNER; REIMBURSEMENT. The General Partner, as such, shall not receive any compensation for services rendered to the Partnership. Notwithstanding the preceding sentence, the General Partner shall be entitled to its allocable share of the profits and distributable Cash Flow of the Partnership and shall be entitled, in accordance with the provisions of Section 6.7 below, to pay reasonable compensation to its Affiliates and other entities in which it may be associated for services performed. The General Partner shall be reimbursed on a monthly basis, or such other basis as the General Partner may determine in its sole and absolute discretion, for all REIT Expenses. Section 6.6 RELIANCE ON ACT OF GENERAL PARTNER. No financial institution or any other person, firm or corporation dealing with the General Partner or the Partnership shall be required to ascertain whether the General Partner is acting in accordance with this Agreement, but such financial institution or such other person, firm or corporation shall be protected in relying solely upon the assurance of and the execution of any instrument or instruments by the General Partner. Section 6.7 OUTSIDE SERVICES; DEALINGS WITH AFFILIATES; OUTSIDE ACTIVITIES. (a) Notwithstanding any provision of this Article VI to the contrary, the General Partner may employ such agents, accountants, attorneys and others as it shall deem advisable, including its directors, officers, shareholders, and its Affiliates and entities with which the General Partner, any Limited Partner or their respective Affiliates may be associated, and may pay them reasonable compensation from Partnership funds for services performed, which compensation shall be reasonably believed by the General Partner to be comparable to and competitive with fees charged by unrelated Persons who render comparable services which could reasonably be made available to the Partnership. The General Partner shall not be liable for the neglect, omission or wrongdoing of any such Person so long as it was not grossly negligent in appointing such Person. (b) The Partnership may lend or contribute to its Subsidiaries or other Persons in which it has an equity investment Partnership funds on terms and conditions established in the sole and absolute discretion of the General Partner. The foregoing authority shall not create any right or benefit in favor of any Subsidiary or any other Person. (c) The Partnership may transfer assets to joint ventures, other partnerships, corporations or other business entities in which it is or thereby becomes a participant upon such terms and subject to such conditions as are consistent with this Agreement and applicable law. (d) Except as expressly permitted by this Agreement, neither the General Partner nor any of its Affiliates nor any Limited Partner shall sell, transfer or convey any property to, or purchase any property from, the Partnership, directly or indirectly, except pursuant to transactions that are on terms that are fair and reasonable to the Partnership. (e) Subject to the Articles of Incorporation and any agreements entered into by the General Partner or its Affiliates with the Partnership or a Subsidiary, any officer, director, employee, agent, trustee, Affiliate or shareholder of the General Partner shall be entitled to and may have business interests and engage in business activities in addition to those relating to the Partnership, including business interests and activities substantially similar or identical to those of the Partnership. Neither the -19- Partnership nor any of the Limited Partners shall have any rights by virtue of this Agreement in any business ventures of such person. (f) In the event the General Partner exercises its rights under its Articles of Incorporation to redeem REIT Common Shares, then the General Partner shall cause the Partnership to purchase from it a number of Common Partnership Units determined based on the application of the Conversion Factor on the same terms as those on which the General Partner redeemed such REIT Common Shares. Section 6.8 INITIAL LOAN TO THE PARTNERSHIP; ADDITIONAL LOANS TO THE PARTNERSHIP. (a) Upon its receipt of the proceeds from the closing of the Offering, the General Partner shall make a loan to the Partnership in accordance with and on the terms and conditions set forth in the Intercompany Convertible Note (the "Initial Loan"). (b) If additional funds are required by the Partnership for any purpose relating to the business of the Partnership or for any of its obligations, expenses, costs, or expenditures, including operating deficits, the Partnership may borrow such funds as are needed from time to time from any Person (including, without limitation, the General Partner or any Affiliate of the General Partner; provided, however, that the terms of any loan from the General Partner or any Affiliate of the General Partner shall be substantially equivalent to the terms that could be obtained from a third party on an arm's-length basis) on such terms as the General Partner and such other Person may agree. Section 6.9 CONTRIBUTION OF ASSETS. The General Partner shall contribute to the capital of the Partnership from time to time each asset it owns from time to time during the existence of the Partnership, but it is not required to so contribute: (a) its General Partnership Interest in the Partnership; (b) the Initial Loan; (c) interest on the Initial Loan; (d) its direct or indirect interest in any entity in a chain of entities of which the General Partner is the sole beneficial owner, so long as all of the assets or other ownership interests in the entity in that chain furthest removed from the General Partner are contributed directly or indirectly to the Partnership; or (e) any equity interest in any entity of which the General Partner is the sole beneficial owner that is created or used solely by the General Partner in connection with any borrowing transaction in whole or in part for the benefit of the Partnership. ARTICLE VII RIGHTS, PROHIBITIONS AND REPRESENTATIONS WITH RESPECT TO LIMITED PARTNERS Section 7.1 RIGHTS OF LIMITED PARTNERS. (a) The Partnership may engage the Limited Partners or persons or firms associated with them for specific purposes and may otherwise deal with such Partners on terms and for compensation to be agreed upon by any such Partner and the Partnership; provided, however, that no -20- Limited Partner shall be entitled to participate in the management or control of the business of the Partnership. (b) Each Limited Partner shall be entitled to have the Partnership books kept at the principal place of business of the Partnership and at all times, during reasonable business hours and at such Partner's sole expense, shall be entitled to inspect and copy any of them and have on demand true and full information of all things affecting the Partnership and a formal accounting of Partnership affairs whenever circumstances render it just and reasonable. (c) No Limited Partner shall be liable for any debts, liabilities, contracts or obligations of the Partnership. A Limited Partner shall be liable to the Partnership only to make payments of its Capital Contribution, if any, as and when due hereunder. After its Capital Contribution is fully paid, no Limited Partner shall, except as otherwise required by the Act, be required to make any further Capital Contributions or other payments or lend any funds to the Partnership. Section 7.2 PROHIBITIONS WITH RESPECT TO THE LIMITED PARTNERS. No Limited Partner shall have the right: (a) To take part in the control or management of the Partnership business, to transact business for or on behalf of the Partnership or to sign for or to bind the Partnership, such powers being vested solely in the General Partner as set forth herein; (b) To have such Partner's Capital Contributions repaid except to the extent provided in this Agreement; (c) To require partition of Partnership property or to compel any sale or appraisement of Partnership assets or sale of a deceased Partner's interests therein, notwithstanding any provisions of law to the contrary; or (d) To sell or assign all or any portion of such Partner's Limited Partnership Interest in the Partnership or to constitute the vendee or assignee thereunder a Substitute Limited Partner, except as provided in Article IX hereof. Section 7.3 OWNERSHIP BY LIMITED PARTNER OF CORPORATE GENERAL PARTNER OR AFFILIATE. No Limited Partner shall at any time, either directly or indirectly, own any shares or other interest in the General Partner or in any Affiliate thereof if such ownership by itself or in conjunction with other shares or other interests owned by other Limited Partners would, in the opinion of counsel for the Partnership, jeopardize the classification of the Partnership as a partnership or the General Partner as a REIT for federal income tax purposes. The General Partner shall be entitled to make such reasonable inquiry of the Limited Partners as is required to establish compliance by the Limited Partners with the provisions of this Section 7.3 and the Limited Partners shall promptly and fully respond to such inquiries. Section 7.4 REDEMPTION RIGHT. (a) Subject to Section 7.4(c), on or after a Limited Partner's Specified Redemption Date, such Limited Partner, other than the General Partner, shall have the right (the "Redemption Right") to require the Partnership to redeem on a Specified Redemption Date all or a portion of the Common Partnership Units held by such Limited Partner at a redemption price equal to and in the form of the Cash Amount to be paid by the Partnership. The Partnership shall have up to one (1) year (the "Payout Period") following exercise of a Redemption Right to pay the Cash Amount to the Limited Partner who is exercising the redemption right (the "Redeeming Partner"). From and after the Specified Redemption Date, the Cash Amount (or portion thereof) due and payable to a Redeeming Partner with respect to such Redeeming Partner's exercise of its Redemption Right shall bear interest at the rate equal to the lower of (i) the General Partner's annual dividend rate on REIT Common Shares for -21- the prior twelve (12) month period, and (ii) eight percent (8%) per annum, until the Cash Amount (or portion thereof) shall be paid in full by the Partnership. The Redemption Right shall be exercised pursuant to a Notice of Redemption delivered to the Partnership (with a copy to the General Partner) by the Redeeming Partner. A Limited Partner may not exercise the Redemption Right for less than one thousand (1,000) Common Partnership Units or, if such Limited Partner holds less than one thousand (1,000) Common Partnership Units, all of the Common Partnership Units held by such Partner. Neither the Redeeming Partner nor any Assignee of any Limited Partner shall have any right with respect to any Common Partnership Units so redeemed to receive any distributions paid after the Specified Redemption Date. The Assignee of any Limited Partner may exercise the rights of such Limited Partner pursuant to this Section 7.4, and such Limited Partner shall be deemed to have assigned such rights to such Assignee and shall be bound by the exercise of such rights by such Limited Partner's Assignee. In connection with any exercise of such rights by such Assignee on behalf of such Limited Partner, the Cash Amount shall be paid by the Partnership directly to such Assignee and not to such Limited Partner. Neither the Redeeming Partner nor any Assignee of any Limited Partner shall have any right, with respect to any Common Partnership Units so redeemed, to receive any distributions paid after the Specified Redemption Date. Each Redeeming Partner agrees to provide such representations and related indemnities regarding good and unencumbered title, and to execute such documents, as the General Partner may reasonably require in connection with any redemption. Notwithstanding anything to the contrary contained in this Section 7.4(a), 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 that number of Common Partnership Units such that, if redeemed for only the REIT Common 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 Common Shares; but the limitation set forth in this paragraph will not apply if either (i) the General Partner receives an opinion from its counsel that violation of this limitation will not jeopardize the REIT status of the General Partner or (ii) a transfer or series of related transfers result in a sale of all or substantially all of the General Partner's or the Partnership's assets, or result in a sale, merger, reorganization or restructuring, as described in Sections 9.1(c) and 9.1(d) hereof. (b) Notwithstanding the provisions of Section 7.4(a), in the event a Limited Partner elects to exercise the Redemption Right, the General Partner may, in its sole and absolute discretion, elect to assume directly and satisfy a Redemption Right by paying to the Redeeming Partner either (i) the Cash Amount, as provided for in Section 7.4(a), or (ii) the REIT Common Shares Amount, as elected by the General Partner (in its sole and absolute discretion) on the Specified Redemption Date. On any such election, the General Partner shall acquire the Common Partnership Units offered for redemption by the Redeeming Partner and shall be treated for all purposes of this Agreement as the owner of such Common Partnership Units. Unless the General Partner (in its sole and absolute discretion) shall exercise its right to assume directly and satisfy the Redemption Right, the General Partner itself shall have no obligation to the Redeeming Partner or to the Partnership with respect to the Redeeming Partner's exercise of the Redemption Right. In the event the General Partner shall exercise its right to satisfy the Redemption Right in the manner described in the first sentence of this Section 7.4(b), the Partnership shall have no obligation to pay any amount to the Redeeming Partner with respect to such Redeeming Partner's exercise of the Redemption Right, and each of the Redeeming Partner, the Partnership, and the General Partner shall treat the transaction between the General Partner and the Redeeming Partner for federal income tax purposes as a sale of the Redeeming Partner's Common Partnership Units to the General Partner. Each Redeeming Partner agrees to provide such representations and related indemnities regarding good title, and to execute such documents, as the General Partner may reasonably require in connection with the issuance of REIT Common Shares upon exercise of the Redemption Right. If the Redemption Right is satisfied by the delivery of REIT Common Shares, the Redeeming Partner shall be deemed to become a holder of REIT Common Shares as of the close of business on the Specified Redemption Date. -22- Notwithstanding anything to the contrary in Section 7.1(a) or this Section 7.4(b), should the General Partner elect to satisfy a Redemption Right by paying the Redeeming Partner the REIT Common Shares Amount, and it is necessary to obtain shareholder approval in order for it to issue sufficient REIT Common Shares to satisfy 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 Common Shares Amount, and the redemption Date shall be required to occur by the earliest of: (i) ten days after shareholder approval of the issuance of the REIT Common Shares has been obtained, if it is obtained; (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 Common Partnership Units are presented for redemption. If such shareholder approval is not obtained, the General Partner or the Partnership shall pay to the Redeeming Partner the Cash Amount no later than the end of what the Payout Period would have been had the General Partner not elected to pay the REIT Common Share Amount upon the redemption, together with interest on such Cash Amount as specified in Section 7.4(a) hereof. (c) Notwithstanding the provisions of Section 7.4(a) and Section 7.4(b), a Limited Partner shall not be entitled to receive REIT Common Shares if the delivery of REIT Common Shares to such Partner on the Specified Redemption Date by the General Partner pursuant to Section 7.4(b) would be prohibited under the Articles of Incorporation of the General Partner. Without limiting the effect of the preceding sentence, no Person shall be permitted to receive REIT Common Shares if as a result of, and after giving effect to, such exercise any Person would Beneficially Own (as defined in the Articles of Incorporation of the General Partner) more than 9.9% of the total number of issued and outstanding REIT Common Shares. The Cash Amount shall be paid in such instances, in accordance with the terms set forth in Section 7.4(a). (d) Each Limited Partner covenants and agrees with the General Partner that all Common Partnership Units delivered for redemption shall be delivered to the Partnership or the General Partner, as the case may be, free and clear of all liens and, notwithstanding anything herein contained to the contrary, neither the General Partner nor the Partnership shall be under any obligation to acquire Common Partnership Units which are or may be subject to any liens. Each Limited Partner further agrees that, in the event any state or local property transfer tax is payable as a result of the transfer of its Common Partnership Units to the Partnership or the General Partner, such Limited Partner shall assume and pay such transfer tax. Section 7.5 WARRANTIES AND REPRESENTATIONS OF THE LIMITED PARTNERS. Each Limited Partner hereby warrants and represents to and for the benefit of the General Partner and the Partnership that, as of November 4, 1996, such Limited Partner owned good, valid and marketable title to the ownership interests in the Contributed Partnerships being contributed to the capital of the Partnership by such Limited Partner (the "Ownership Interests") and that such Ownership Interests were free and clear of all mortgages, pledges, liens, security interests, encumbrances and restrictions of any nature whatsoever. Each Limited Partner further warrants and represents to and for the benefit of the General Partner and the Partnership that such Limited Partner had all necessary power and authority to transfer the Ownership Interests to the Partnership without the consent or authorization of, or notice to, any third party, except those third parties from whom such consents or authorizations were obtained. Section 7.6 INDEMNIFICATION BY LIMITED PARTNERS. Each Limited Partner hereby agrees to indemnify the General Partner and the Partnership and hold the General Partner, its officers and directors and the Partnership and its partners and each of their respective representatives, successors and assigns harmless from and against any and all claims, demands, losses, liabilities, damages and expenses (including reasonable attorneys' fees) arising out of or in connection with (i) the inaccuracy of the warranties and representations made by such Limited Partner under Section 7.5 above, or (ii) the ownership of the Ownership Interests by such Limited Partner and any activities, obligations or liabilities of the Contributed Partnership to which such Ownership Interest relates for all periods prior to the date of this Agreement. -23- Section 7.7 NOTICE OF SALE OR REFINANCING. The General Partner shall notify the Limited Partners no less than thirty (30) days prior to any sale, refinancing, reduction (other than scheduled periodic amortization of principal) of debt or other event that will reduce the amount of any nonrecourse liabilities of the Partnership that a Limited Partner may include in the tax basis of his or its Partnership Interests. Section 7.8 BASIS ANALYSIS AND LIMITED PARTNER GUARANTEES. (a) Upon the request of any Limited Partner but subject to the General Partner's agreement, which may be withheld in the General Partner's sole discretion, the General Partner may, prior to the end of each calendar year, beginning in 1997, cause accountants to prepare and provide to the Limited Partners a study analyzing each refinancing, reduction (other than scheduled periodic amortization of principal) of debt or other event that occurred during that year that reduced the amount of any nonrecourse liabilities of the Partnership that a Limited Partner may include in the tax basis of their Partnership Interests. (b) Upon the request of the General Partner, or upon its own election, a Limited Partner (the "Initiating Limited Partner") from time to time, may, but shall not be required to, guarantee or otherwise provide credit support for Partnership indebtedness as such Limited Partner may elect; provided, however, that the Limited Partner shall be entitled to take such action only if the General Partner determines that any such action would not have a material adverse effect on the tax position of the General Partner. All Partners are entitled to notice of any such guarantee or credit support, and shall have the right to provide guarantees or credit support on the same terms and conditions as the Initiating Limited Partner does, and all Limited Partners interested in providing such guarantee or credit support shall cooperate with the General Partner and each other in considering any guarantee or credit support proposal, and the General Partner will cooperate in permitting or obtaining any consents for such guarantees or credit support. ARTICLE VIII DISTRIBUTIONS AND PAYMENTS TO PARTNERS Section 8.1 DISTRIBUTIONS OF CASH FLOW. (a) The General Partner shall distribute on a quarterly basis such portion of the Cash Flow of the Partnership as the General Partner shall determine in its sole discretion. Except as provided in Section 10.4, all such distributions of Cash Flow shall be made to Partners who are Partners on the Partnership Record Date (i) first, to the Partners holding Preferred Partnership Interests on such Partnership Record Date to the extent of any accrued but unpaid Preferred Return, and (ii) next, to the Partners holding Common Partnership Interests on such Partnership Record Date in accordance with such Partners' respective Common Percentage Interests on such Partnership Record Date. (b) In no event may a Partner receive a distribution of Cash Flow with respect to a Partnership Unit if such Partner is entitled to receive a dividend out of the General Partner's share of such Cash Flow with respect to a REIT Share for which all or part of such Partnership Unit has been exchanged. Section 8.2 REIT DISTRIBUTION REQUIREMENTS. Unless the General Partner determines that such a distribution would not be in the best interests of the Partnership, the Partnership shall make a distribution of Cash Flow for each fiscal year of the Partnership to enable the General Partner (i) to meet its distribution requirement for qualification as a REIT as set forth in Section 857(a)(1) of the Code, and (ii) to avoid the excise tax imposed by Section 4981 of the Code. -24- Section 8.3 NO RIGHT TO DISTRIBUTIONS IN KIND. No Partner shall be entitled to demand property other than cash in connection with any distribution by the Partnership. Section 8.4 DISPOSITION PROCEEDS. Disposition Proceeds (less reasonable reserves set aside by the General Partner for reasonably anticipated expenses or needs of the Partnership) shall be distributed (i) first, to the holders of Preferred Partnership Interests, (a) in an amount of money, or (b) in Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment on such Preferred Partnership Interests, money in an amount, or (c) in a combination thereof, in any case, in an amount sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accounts expressed in a written certification thereof delivered to the General Partner, to pay and discharge, all amounts that are or may become due and payable with respect to the Preferred Partnership Interests, and (2) next, to the holders of Common Partnership Interests, all remaining Disposition Proceeds (less such reserves) in accordance with their respective Common Percentage Interests in the Partnership. Section 8.5 WITHDRAWALS. No Partner shall be entitled to make withdrawals from its Capital Account except as provided herein. ARTICLE IX TRANSFERS OF INTERESTS Section 9.1 GENERAL PARTNER. (a) The General Partner may not transfer any of its General Partnership Interest or Limited Partnership interests or withdraw as General Partner except as provided in Section 9.1(c) or in connection with a transaction described in Section 9.1(d). (b) The General Partner agrees that it will at all times own at least twenty percent (20%) of the Common Partnership Interests in the form of a General Partnership Interest. (c) Except as otherwise provided in Section 6.7 or Section 9.1(d), the General Partner shall not engage in any merger, consolidation or other combination with or into another Person or in any sale of all or substantially all of its assets, or any reclassification, or recapitalization or change of outstanding REIT Common Shares (other than a change in par value, or from par value to no par value, or as a result of a subdivision or combination as described in the definition of "Conversion Factor") (each of the foregoing being herein referred to as a "Transaction"), unless the Transaction also includes a merger of the Partnership or sale of substantially all of the assets of the Partnership or other transaction as a result of which all Limited Partners will receive for each Common Partnership Unit an amount of cash, securities, or other property equal to the product of the Conversion Factor and the greatest amount of cash, securities or other property paid to a holder of one REIT Common Share in consideration of one REIT Common Share as a result of the Transaction; provided, however, that if, in connection with the Transaction, a purchase, tender or exchange offer shall have been made to and accepted by the holders of more than fifty percent (50%) of the outstanding REIT Common Shares, the holders of Common Partnership Units shall receive the greatest amount of cash, securities, or other property which a Limited -25- Partner would have received had it exercised the Redemption Right and the Company had exercised its election to satisfy the Redemption Right by the issuance of REIT Common Shares immediately prior to the expiration of such purchase, tender or exchange offer. (d) Notwithstanding Section 9.1(c), the General Partner may merge into or consolidate with another entity if immediately after such merger or consolidation (i) substantially all of the assets of the successor or surviving entity (the "Surviving General Partner"), other than Partnership Units held by the General Partner, are contributed to the Partnership as a Capital Contribution in exchange for Partnership Units with a fair market value equal to the value of the assets so contributed as determined by the Surviving General Partner in good faith and (ii) the Surviving General Partner expressly agrees to assume all obligations of the General Partner hereunder. Upon such contribution and assumption, the Surviving General Partner shall have the right and duty to amend this Agreement as set forth in this Section 9.1(d). The Surviving General Partner shall in good faith arrive at a new method for the calculation of the Cash Amount and Conversion Factor for a Common Partnership Unit after any such merger or consolidation so as to approximate the existing method for such calculation as closely as reasonably possible. Such calculation shall take into account, among other things, the kind and amount of securities, cash and other property that was receivable upon such merger or consolidation by a holder of REIT Shares or options, warrants or other rights relating thereto, and which a holder of Common Partnership Units could have acquired had such Common Partnership Units been redeemed immediately prior to such merger or consolidation. Such amendment to this Agreement shall provide for adjustment to such method of calculation, which shall be as nearly equivalent as may be practicable to the adjustments provided for with respect to the Conversion Factor. The above provisions of this Section 9.1(d) shall similarly apply to successive mergers or consolidations permitted hereunder. Section 9.2 ADMISSION OF A SUBSTITUTE OR ADDITIONAL GENERAL PARTNER. A Person shall be admitted as a Substitute or Additional General Partner of the Partnership only if the transaction giving rise to such substitution or admission is otherwise permitted under this Agreement and the following terms and conditions are satisfied: (a) the Person to be admitted as a Substitute or Additional General Partner shall have accepted and agreed to be bound by all the terms and provisions of this Agreement by executing a counterpart thereof and such other documents or instruments as may be required or appropriate in order to effect the admission of such Person as a General Partner, and a certificate evidencing the admission of such Person as a General Partner shall have been filed for recordation and all other actions required by the Act in connection with such admission shall have been performed; (b) if the Person to be admitted as a Substitute or Additional General Partner is a corporation or a partnership, it shall have provided the Partnership with evidence satisfactory to counsel for the Partnership of such Person's authority to become a General Partner and to be bound by the terms and provisions of this Agreement; and (c) counsel for the Partnership shall have rendered an opinion (relying on such opinions from counsel of the state or any other jurisdiction as may be necessary) that the admission of the Person to be admitted as a Substitute or Additional General Partner is in conformity with the Act and that none of the actions taken in connection with the admission of such Person as a Substitute or Additional General Partner will cause the termination of the Partnership under Section 708 of the Code, or will cause it to be classified as other than a partnership for federal income tax purposes, or will result in the loss of any Limited Partner's limited liability status. Section 9.3 EFFECT OF BANKRUPTCY, WITHDRAWAL, DEATH OR DISSOLUTION OF A GENERAL PARTNER. (a) Upon the occurrence of an Event of Bankruptcy as to a General Partner or the withdrawal, removal or dissolution of a General Partner (except that, if a General Partner is on the date of -26- such occurrence a partnership, the withdrawal, death, dissolution, Event of Bankruptcy as to or removal of a partner in such partnership shall be deemed not to be a dissolution of such General Partner if the business of such General Partner is continued within ninety (90) days by the remaining general partners or all remaining members of such partnership), the Partnership shall be dissolved and terminated unless the Partnership is continued pursuant to Section 9.3(b). (b) Following the occurrence of an Event of Bankruptcy as to a General Partner or the withdrawal, removal or dissolution of a General Partner (except that, if a General Partner is on the date of such occurrence a partnership, the withdrawal, death, dissolution, Event of Bankruptcy as to or removal of a partner in such partnership shall be deemed not be a dissolution of such General Partner if the business of such General Partner is continued within ninety (90) days by all remaining general partners or all remaining members of such partnership), persons holding at least a majority of the Limited Partnership interests, within ninety (90) days after such occurrence, may elect to continue the business of the Partnership for the balance of the term specified in Section 3.2 by selecting, subject to Section 9.2 and any other applicable provisions of this Agreement, a Substitute General Partner by majority consent of the Limited Partners. If the Limited Partners elect to reconstitute the Partnership and admit a Substitute General Partner, the relationship between the Partners and any Person who has acquired an interest of a Partner in the Partnership shall be governed by this Agreement. Section 9.4 REMOVAL OF A GENERAL PARTNER. (a) Upon the occurrence of an Event of Bankruptcy as to, or the dissolution of, a General Partner, such General Partner shall be deemed to be removed automatically; provided, however, that if a General Partner is on the date of such occurrence a partnership, the withdrawal, death, dissolution, Event of Bankruptcy as to or removal of a partner in such partnership shall be deemed not to be a dissolution of the General Partner if the business of such General Partner is continued within ninety (90) days by the remaining general partners or all remaining members of such Partnership. (b) If a General Partner has been removed pursuant to this Section 9.4 and the Partnership is not continued pursuant to Section 9.3(b), the partnership shall be dissolved. Section 9.5 RESTRICTIONS ON TRANSFER OF LIMITED PARTNERSHIP INTERESTS. (a) Except as otherwise provided in this Article IX, no Limited Partner may offer, sell, assign, hypothecate, pledge or otherwise transfer its Limited Partnership Interest, in whole or in part, whether voluntarily or by operation of law or at judicial sale or otherwise (collectively, a "Transfer"), without the written consent of the General Partner, which consent may be withheld in the sole and absolute discretion of the General Partner. The General Partner may require, as a condition of any Transfer, that the transferor assume all costs incurred by the Partnership in connection therewith. (b) No Limited Partner may effect a Transfer of its Limited Partnership Interest if, in the opinion of legal counsel for the Partnership, such proposed Transfer would require the registration of the Limited Partnership Interest under the Securities Act of 1933, as amended, or would otherwise violate any applicable federal or state securities or "Blue Sky" law (including investment suitability standards). (c) No Transfer by a Limited Partner of its Partnership Units may be made to any Person if (i) in the opinion of legal counsel for the Partnership, the Transfer would result in the Partnership's being treated as an association taxable as a corporation (other than a qualified REIT subsidiary within the meaning of Section 856(i) of the Code), (ii) such transfer is effectuated through an "established securities market" or a "secondary market" (or the substantial equivalent thereof) within the meaning of Section 7704 of the Code, or (iii) the Transfer would create a risk that the General Partner would not be taxed as a REIT for federal income tax purposes. -27- (d) Section 9.5(a) shall not prevent any donative Transfer by an individual Limited Partner to his immediate family members or any trust in which the individual or his immediate family members own, collectively, one hundred percent (100%) of the beneficial interests, provided that the transferor assumes all costs of the Partnership in connection therewith and any such transferee shall not have the rights of a Substitute Limited Partner (unless and until admitted as a Substitute Limited Partner pursuant to this Section 9.5 and Section 9.6 of this Agreement). (e) Any Transfer in contravention of any of the provisions of this Article IX shall be void and ineffectual and shall not be binding upon, or recognized by, the Partnership. Section 9.6 ADMISSION OF SUBSTITUTE LIMITED PARTNER. (a) Subject to the other provisions of this Article IX (including, without limitation, the provisions of Section 9.5(a) regarding consent of the General Partner), an assignee of the Limited Partnership Interest of a Limited Partner (including, without limitation, any purchaser, transferee, donee, or other recipient of any disposition of such Limited Partnership Interest) shall be deemed admitted as a Limited Partner of the Partnership only upon the satisfactory completion of the following: (i) the assignee shall have accepted and agreed to be bound by the terms and provisions of this Agreement by executing a counterpart or an amendment thereof, including a revised Exhibit A, and such other documents or instruments as the General Partner may require in order to effect the admission of such Person as a Limited Partner; (ii) to the extent required, an amended certificate of limited partnership evidencing the admission of such Person as a Limited Partner shall have been signed, acknowledged and filed for record in accordance with the Act; (iii) the assignee shall have delivered a letter containing the representation and warranty set forth in Section 9.12 and the agreement set forth in Section 9.12; (iv) if the assignee is a corporation, partnership or trust, the assignee shall have provided the General Partner with evidence satisfactory to counsel for the Partnership of the assignee's authority to become a Limited Partner under the terms and provisions of this Agreement; (v) the assignee shall have executed a power of attorney containing the terms and provisions set forth in Article XII; and (vi) the assignee shall have paid all reasonable legal fees of the Partnership and the General Partner and all filing and publication costs incurred in connection with its substitution as a Limited Partner. (b) For the purpose of allocating profits and losses and distributing cash received by the Partnership, a Substitute Limited Partner shall be treated as having become, and appearing in the records of the Partnership as, a Partner upon the filing of the certificate described in Section 9.6(a)(ii) or, if no such filing is required, the later of the date specified in the transfer documents, or the date on which the General Partner has received all necessary instruments of transfer and substitution. (c) The General Partner shall as promptly as practicable take all action required to effectuate the admission of the Person seeking to become a Substitute Limited Partner, including preparing the documentation required by this Section and making all official filings and publications. Section 9.7 RIGHTS OF ASSIGNEES OF PARTNERSHIP INTERESTS. -28- (a) Subject to the provisions of Sections 9.5 and 9.6 hereof, except as required by operation of law, the Partnership shall not be obligated for any purposes whatsoever to recognize the assignment by any Limited Partner of his Partnership Interest until the Partnership has received notice thereof. (b) Any Person who is the assignee of all or any portion of a Limited Partner's Limited Partnership Interest, but does not become a Substitute Limited Partner and desires to make a further assignment of such Limited Partnership Interest, shall be subject to all of the provisions of this Article IX to the same extent and in the same manner as any Limited Partner desiring to make an assignment of its Limited Partnership Interest. Section 9.8 EFFECT OF BANKRUPTCY, DEATH, INCOMPETENCE OR TERMINATION OF A LIMITED PARTNER. The occurrence of an Event of Bankruptcy as to a Limited Partner, the death of a Limited Partner or a final adjudication that a Limited Partner is incompetent (which term shall include, but not be limited to, insanity) shall not cause the termination or dissolution of the Partnership, and the business of the Partnership shall continue. If an order for relief in a bankruptcy proceeding is entered against an individual Limited Partner, the trustee or receiver of his estate or, if he dies, his executor, administrator or trustee, or, if he is finally adjudicated incompetent, his committee, guardian or conservator, shall have the rights of such Limited Partner for the purpose of settling or managing his estate property and such power as the bankrupt, deceased or incompetent Limited Partner possessed to assign all or any part of his Partnership Interest and to join with the assignee in satisfying conditions precedent to the admission of the assignee as a Substitute Limited Partner. Section 9.9 JOINT OWNERSHIP OF INTERESTS. A Partnership Interest may be acquired by two (2) individuals as joint tenants with right of survivorship (but not as tenants in common), provided that such individuals either are married or are related and share the same home as tenants in common. The written consent or vote of both owners of any such jointly held Partnership Interest shall be required to constitute the action of the owners of such Partnership Interest; provided, however, that the written consent of only one (1) joint owner will be required if the Partnership has been provided with evidence satisfactory to counsel for the Partnership that the actions of a single joint owner can bind both owners under the applicable laws of the state of residence of such joint owners. Upon the death of one (1) owner of a Partnership Interest held in a joint tenancy with a right of survivorship, the Partnership Interest shall become owned solely by the survivor as a Limited Partner and not as an assignee. The Partnership need not recognize the death of one (1) of the owners of a jointly held Partnership Interest until it shall have received notice of such death. Upon notice to the General Partner from either owner, the General Partner shall cause the Partnership Interest to be divided into two (2) equal Partnership Interests, which shall thereafter be owned separately by each of the former owners. Section 9.10 TRANSFEREES. Any Partnership Interests owned by the Partners and transferred pursuant to this Article IX shall be and remain subject to all of the provisions of this Agreement. Section 9.11 ABSOLUTE RESTRICTION. Notwithstanding any provision of this Agreement to the contrary, the sale or exchange of any interest in the Partnership will not be permitted if the interest sought to be sold or exchanged, when added to the total of all other interests sold or exchanged within the period of twelve (12) consecutive months ending with the proposed date of the sale or exchange, would result in the termination of the Partnership under Section 708 of the Code, if such termination would materially and adversely affect the Partnership or any Partner. Section 9.12 INVESTMENT REPRESENTATION. Each Limited Partner hereby represents and warrants to the General Partner and to the Partnership that the acquisition of his Partnership Interest is made as a principal for his account for investment purposes only and not with a view to the resale or distribution of such Partnership Interest. Each Limited Partner agrees that he will not sell, assign or otherwise transfer his Partnership Interest or any fraction thereof, whether voluntarily or by operation of -29- law or at judicial sale or otherwise, to any Person who does not similarly represent and warrant and similarly agree not to sell, assign or transfer such Partnership Interest or fraction thereof to any Person who does not similarly represent, warrant and agree. ARTICLE X TERMINATION OF THE PARTNERSHIP Section 10.1 TERMINATION. The Partnership shall be dissolved upon (i) an Event of Bankruptcy as to the General Partner or the dissolution or withdrawal of the General Partner (unless within ninety (90) days thereafter Limited Partners holding more than fifty percent (50%) of the Limited Partnership Interests in the Partnership elect to continue the Partnership and to elect one or more persons to serve as the General Partner or General Partners of the Partnership), (ii) ninety (90) days following the sale of all or substantially all of the Partnership's assets (provided that if the Partnership receives an installment obligation as consideration for such sale or other disposition, the Partnership shall continue, unless sooner dissolved under the provisions of this Agreement, until such time as such obligation is paid in full), (iii) the expiration of the term specified in Section 3.2, (iv) the redemption of all Limited Partnership Interests (other than any of such interests held by the General Partner), or (v) the election by the General Partner (but only in accordance with and as permitted by applicable law) that the Partnership should be dissolved. Upon dissolution of the Partnership (unless the business of the Partnership is continued as set forth above), the General Partner (or its trustee, receiver, successor or legal representative) shall proceed with the winding up of the Partnership, and its assets shall be applied and distributed as herein provided. Section 10.2 PAYMENT OF DEBTS. The assets shall first be applied to the payment of the liabilities of the Partnership (other than any loans or advances that may have been made by Partners to the Partnership) and the expenses of liquidation. A reasonable time shall be allowed for the orderly liquidation of the assets of the Partnership and the discharge of liabilities to creditors so as to enable the General Partner to minimize any losses resulting from liquidation. Section 10.3 DEBTS TO PARTNERS. The remaining assets shall next be applied to the repayment of any loans made by any Partner to the Partnership. Section 10.4 REMAINING DISTRIBUTION. The remaining assets shall then be distributed, first to the holders of Preferred Partnership Interests in accordance with their positive Capital Account balances, and then to the holders of Common Partnership Interests in accordance with their positive Capital Account balances, in each case after making the adjustments for allocations under Article V hereof. Section 10.5 RESERVE. Notwithstanding the provisions of Sections 10.3 and 10.4, the General Partner may retain such amount as it deems necessary as a reserve for any contingent liabilities or obligations of the Partnership, which reserve, after the passage of a reasonable period of time, shall be distributed pursuant to the provisions of this Article X. Section 10.6 FINAL ACCOUNTING. Each of the Partners shall be furnished with a statement examined by the Partnership's independent accountants, which shall set forth the assets and liabilities of the Partnership as of the date of the complete liquidation. Upon the compliance by the General Partner with the foregoing distribution plan, the Limited Partners shall cease to be such, and the General Partner, as the sole remaining Partner of the Partnership, shall execute and cause to be filed a Certificate of Cancellation of the Partnership and any and all other documents necessary with respect to termination and cancellation of the Partnership. -30- ARTICLE XI AMENDMENTS Section 11.1 AUTHORITY TO AMEND. (a) This Agreement may be amended by the General Partner without the approval of any other Partner if such amendment is solely for the purpose of clarification and does not change the substance hereof and the Partnership has obtained an opinion of counsel to that effect. (b) This Agreement may be amended by the General Partner without the approval of any other Partner if such amendment is for the purpose of adding or substituting Limited Partners. (c) This Agreement may be amended by the General Partner without the approval of any other Partner if such amendment is, in the opinion of counsel for the Partnership, necessary or appropriate to satisfy requirements of the Code with respect to partnerships or REITs or of any federal or state securities laws or regulations. Any amendment made pursuant to this Section 11.1(c) may be made effective as of the date of this Agreement. (d) Notwithstanding any contrary provision of this Agreement, any amendment to this Agreement or other act which would (i) adversely affect the limited liabilities of the Limited Partners, (ii) change the method of allocation of profit and loss as provided in Article V or the distribution provisions of Articles VIII and X hereof, (iii) seek to impose personal liability on the Limited Partners, or (iv) affect the operation of the Conversion Factor of the Redemption Right shall require the consent and approval of Limited Partners holding more than sixty-six and two-thirds percent (66 2/3%) of the Common Percentage Interests of the Limited Partners. (e) Except as otherwise specifically provided in this Section 11.1, amendments to this Agreement shall require the approval of the General Partner and Limited Partners holding more than fifty percent (50%) of the Common Percentage Interests of the Limited Partners. Section 11.2 NOTICE OF AMENDMENTS. A copy of any amendment to be approved by the Partners pursuant to Sections 11.1(d) or 11.1(e) shall be mailed in advance to such Partners. Partners shall be notified as to the substance of any amendment pursuant to Sections 11.1(a), (b) or (c), and upon request shall be furnished a copy thereof. ARTICLE XII POWER OF ATTORNEY Section 12.1 POWER. Each of the Limited Partners irrevocably constitutes and appoints the General Partner as such Limited Partner's true and lawful attorney in such Limited Partner's name, place and stead to make, execute, swear to, acknowledge, deliver and file: (a) Any certificates or other instruments which may be required to be filed by the Partnership under the laws of the State of Ohio or of any other state or jurisdiction in which the General Partner shall deem it advisable to file; (b) Any documents, certificates or other instruments, including, but not limited to, any and all amendments and modifications of this Agreement or of the instruments described in Section 12.1(a) which may be required or deemed desirable by the General Partner to effectuate the -31- provisions of any part of this Agreement and, by way of extension and not in limitation, to do all such other things as shall be necessary to continue and to carry on the business of the Partnership; and (c) All documents, certificates or other instruments which may be required to effectuate the dissolution and termination of the Partnership, to the extent such dissolution and termination is authorized hereby. The power of attorney granted hereby shall not constitute a waiver of, or be used to avoid, the rights of the Partners to approve certain amendments to this Agreement pursuant to Sections 11.1(d) and 11.1(e) or be used in any other manner inconsistent with the status of the Partnership as a limited partnership or inconsistent with the provisions of this Agreement. Section 12.2 SURVIVAL OF POWER. It is expressly intended by each of the Partners that the foregoing power of attorney is coupled with an interest, is irrevocable and shall survive the death, incompetence, dissolution, liquidation or adjudication of insanity or bankruptcy or insolvency of each such Partner. The foregoing power of attorney shall survive the delivery of an assignment by any of the Partners of such Partner's entire interest in the Partnership, except that where an assignee of such entire interest has become a substitute Limited Partner, then the foregoing power of attorney of the assignor Partner shall survive the delivery of such assignment for the sole purpose of enabling the General Partner to execute, acknowledge and file any and all instruments necessary to effectuate such substitution. ARTICLE XIII CONSENTS, APPROVALS, VOTING AND MEETINGS Section 13.1 METHOD OF GIVING CONSENT OR APPROVAL. Any consent or approval required by this Agreement may be given as follows: (a) by a written consent given by the consenting Partner and received by the General Partner at or prior to the doing of the act or thing for which the consent is solicited, provided that such consent shall not have been nullified by: (i) Notice to the General Partner of such nullification by the consenting Partner prior to the doing of any act or thing, the doing of which is not subject to approval at a meeting called pursuant to Section 13.2, or (ii) Notice to the General Partner of such nullification by the consenting Partner prior to the time of any meeting called pursuant to Section 13.2 to consider the doing of such act or thing, or (iii) The negative vote by such consenting Partner at any meeting called pursuant to Section 13.2 to consider the doing of such act or thing; (b) by the affirmative vote by the consenting Partner for the doing of the act or thing for which the consent is solicited at any meeting called pursuant to Section 13.2 to consider the doing of such act or thing; or (c) by the failure of the Partner to respond or object to a request from the General Partner for such Partner's consent within thirty (30) days from its receipt of such request (or such shorter period of time as the General Partner may indicate in such request in order to ensure that the General Partner has sufficient time to respond, if required, to any third party with respect to the subject matter of such request). -32- Section 13.2 MEETINGS OF LIMITED PARTNERS. Any matter requiring the consent or vote of all or any of the Partners may be considered at a meeting of the Partners held not less than five (5) nor more than sixty (60) days after notice thereof shall have been given by the General Partner to all Partners. Such notice (i) may be given by the General Partner, in its discretion, at any time, or (ii) shall be given by the General Partner within fifteen (15) days after receipt from Limited Partners holding more than fifty percent (50%) of the Percentage Interests of the Limited Partners of a request for such meeting. Section 13.3 OPINION. Except for Consents obtained pursuant to Sections 13.1 or 13.2, no Limited Partner shall exercise any consent or voting rights unless either (a) at the time of the giving of consent or casting of any vote by the Partners hereunder, counsel for the Partnership or counsel employed by the Limited Partners shall have delivered to the Partnership an opinion satisfactory to the Partners to the effect that such conduct (i) is permitted by the Act, (ii) will not impair the limited liability of the Limited Partners, and (iii) will not adversely affect the classification of the Partnership as a partnership for federal income tax purposes, or (b) irrespective of the delivery or nondelivery of such opinion of counsel, Limited Partners holding more than seventy-five percent (75%) of the Percentage Interests of the Limited Partners determine to exercise their consent or voting rights. Section 13.4 SUBMISSIONS TO PARTNERS. The General Partner shall give the Partners notice of any proposal or other matter required by any provision of this Agreement, or by law, to be submitted for consideration and approval of the Partners. Such notice shall include any information required by the relevant provision or by law. ARTICLE XIV MISCELLANEOUS Section 14.1 GOVERNING LAW. The Partnership and this Agreement shall be governed by and construed in accordance with the laws of the State of Ohio. Section 14.2 AGREEMENT FOR FURTHER EXECUTION. At any time or times upon the request of the General Partner, the Limited Partners hereby agree to sign, swear to, acknowledge and deliver all further documents and certificates required by the laws of Ohio, or any other jurisdiction in which the Partnership does, or proposes to do, business, or which may be reasonable, necessary, appropriate or desirable to carry out the provisions of this Agreement or the Act. This Section 14.2 shall not prejudice or affect the rights of the Limited Partners to approve certain amendments to this Agreement pursuant to Sections 11.1(d) and 11.1(e). Section 14.3 ENTIRE AGREEMENT. This Agreement and the exhibits attached hereto contain the entire understanding among the parties and supersede any prior understandings or agreements among them respecting the within subject matter. There are no representations, agreements, arrangements or understandings, oral or written, between or among the parties hereto relating to the subject matter of this Agreement which are not fully expressed herein. Section 14.4 SEVERABILITY. This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations of the jurisdictions in which the Partnership does business. If any provision of this Agreement, or the application thereof to any person or circumstance, shall, for any reason and to any extent, be invalid or unenforceable, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law. Section 14.5 NOTICES. Notices to Partners or to the Partnership shall be deemed to have been given when personally delivered or mailed, by prepaid registered or certified mail, addressed as set forth in Exhibit A attached hereto, unless a notice of change of address has previously been given in -33- writing by the addressee to the addressor, in which case such notice shall be addressed to the address set forth in such notice of change of address. Section 14.6 TITLES AND CAPTIONS. All titles and captions are for convenience only, do not form a substantive part of this Agreement, and shall not restrict or enlarge any substantive provisions of this Agreement. Section 14.7 COUNTERPARTS. This Agreement may be executed in multiple counterparts, each one of which shall constitute an original executed copy of this Agreement. Section 14.8 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 persons may require. Section 14.9 SURVIVAL OF RIGHTS. Subject to the provisions hereof limiting transfers, this Agreement shall be binding upon and inure to the benefit of the Partners and the Partnership and their respective legal representatives, successors, transferees and assigns. IN WITNESS WHEREOF, the parties have hereunto set their hands as of the day and year first above written. GENERAL PARTNER: BOYKIN LODGING COMPANY, an Ohio corporation By:/s/ ROBERT W. BOYKIN ----------------------------------- Robert W. Boykin, President -34- EXHIBIT A LIST OF PARTNERS AS OF SEPTEMBER 30, 2002

Percentage Partners Units Interest -------- ----- ------------ General Partner: - --------------- Boykin Lodging Company 15,268,902 84.8878% Terminal Tower, Suite 1500 50 Public Square Cleveland, Ohio 44113 Limited Partners: - ----------------- The Boykin Group, Inc. 779,941 4.3361% John E. Boykin 124,438 .6918% Robert W. Boykin 157,114 .8735% William J. Boykin, Trustee of the 150,000 .8339% trusts held under Declaration of William J. Boykin Trust Agreement No. 3 dated October 14, 1987 R.F. Coffin, Trustee of the Robert F. Coffin 17,201 .0956% Revocable Trust under Agreement Dated as of October 31, 1995 Edward H. Crane, Trustee of the Edward H 17,201 .0956% Crane Revocable Living Trust under Agreement Dated as of September 11, 1992 Barbara L. Hall, Trustee of the 10,650 .0592% Barbara L. Hall Trust dated December 20, 1995 Raymond P. Heitland 10,650 .0592% M & P Partners (Martin J. Cleary, Trustee of 2,591 .0144% The Martin J. Cleary Revocable Trust Dated March 4, 1993, Managing Partner) Paul A. O'Neil 1,400 .0078%

Percentage Partners Units Interest -------- ----- ------------ Albert E. Pawlisch, Trustee of the Albert E 8,601 .0478% Pawlisch Revocable Living Trust under Agreement Dated March 4, 1992 Dominic A. Visconsi, Trustee of the DAV-JVJ 2,726 2,726 .0152% Trust under Agreement Dated January 4, 1993 Anthony W. Weigand, Trustee of the 8,601 .0478% Anthony W. Weigand Revocable Living Trust under Agreement Dated October 6, 1987 JABO LLC 1,427,142 7.9342% ---------- ------ TOTAL 17,987,158 100.00% ========== ======

-2- EXHIBIT B FEDERAL INCOME TAX MATTERS For purposes of interpreting and implementing Article V of the Partnership Agreement, the following rules shall apply and shall be treated as part of the terms of the Partnership Agreement: A. SPECIAL ALLOCATION PROVISIONS. 1. For purposes of determining the amount of gain or loss to be allocated pursuant to Article V of the Partnership Agreement, any basis adjustments permitted pursuant to Section 743 of the Code shall be disregarded. 2. When Partnership Interests are transferred during any taxable year, the General Partner intends to allocate Partnership income, loss, deductions and credits using the closing of the books method. 3. Notwithstanding any other provision of the Partnership Agreement, to the extent required by law, income, gain, loss and deduction attributable to property contributed to the Partnership by a Partner shall be shared among the Partners so as to take into account any variation between the basis of the property and the fair market value of the property at the time of contribution in accordance with the requirements of Section 704(c) of the Code and the applicable regulations thereunder as more fully described in Part B hereof. Treasury regulations under Section 704(c) of the Code allow partnerships to use any reasonable method for accounting for Book-Tax Differences for contributions of property so that a contributing partner receives the tax benefits and burdens of any built-in gain or loss associated with contributed property. The Operating Partnership shall account for Book-Tax Differences using a method specifically approved in the regulations, the traditional method. An allocation of remaining built-in gain under Section 704(c) will be made when Section 704(c) property is sold. 4. Notwithstanding any other provision of the Partnership Agreement, in the event the Partnership is entitled to a deduction for interest imputed under any provision of the Code on any loan or advance from a Partner (whether such interest is currently deducted, capitalized or amortized), such deduction shall be allocated solely to such Partner. 5. Notwithstanding any provision of the Partnership Agreement to the contrary, to the extent any payments in the nature of fees made to a Partner or reimbursements of expenses to any Partner are finally determined by the Internal Revenue Service to be distributions to a Partner for federal income tax purposes, there will be a gross income allocation to such Partner in the amount of such distribution. 6. (a) Notwithstanding any provision of the Partnership Agreement to the contrary and subject to the exceptions set forth in Section 1.704-2(f)(2)-(5) of the Treasury Regulations, if there is a net decrease in Partnership Minimum Gain during any Partnership fiscal year, each Partner shall be specially allocated items of Partnership income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Partner's share of the net decrease in Partnership Minimum Gain determined in accordance with Section 1.704-2(g)(2) of the Treasury Regulations. Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Partner pursuant thereto. The items to be so allocated shall be determined in accordance with Section 1.704-2(f) of the Treasury Regulations. This paragraph 6(a) is intended to comply with the minimum gain chargeback requirement in such Section of the Regulations and shall be interpreted consistently therewith. To the extent permitted by such Section of the Regulations and for purposes of this paragraph 6(a) only, each Partner's Adjusted Capital Account Balance shall be determined prior to any other allocations pursuant to Article V of the Partnership Agreement with respect to such fiscal year and without regard to any net decrease in Partner Minimum Gain during such fiscal year. (b) Notwithstanding any provision of the Partnership Agreement to the contrary, except paragraph 6(a) of this Exhibit and subject to the exceptions set forth in Section 1.704-2(i)(4) of the Treasury Regulations, if there is a net decrease in Partner Nonrecourse Debt Minimum Gain during any Partnership fiscal year, each Partner who has a share of the Partner Nonrecourse Debt Minimum Gain, determined in accordance with Section 1.704-2(i)(3) of the Treasury Regulations, shall be specially allocated items of Partnership income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Partner's share of the net decrease in Partner Nonrecourse Debt Minimum Gain, determined in accordance with Section 1.704-2(i)(5) of the Treasury Regulations. Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Partner pursuant thereto. The items to be so allocated shall be determined in accordance with Section 1.704-2(i)(4) of the Treasury Regulations. This paragraph 6(b) is intended to comply with the minimum gain chargeback requirement in such Section of the Treasury Regulations and shall be interpreted consistently therewith. Solely for purposes of this paragraph 6(b), each Partner's Adjusted Capital Account Balance shall be determined prior to any other allocations pursuant to Article V of the Partnership Agreement with respect to such fiscal year, other than allocations pursuant to paragraph 6(a) hereof. 7. Notwithstanding any provision of the Partnership Agreement to the contrary, in the event any Partners unexpectedly receive any adjustments, allocations or distributions described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or 1.704-1(b)(2)(ii)(d)(6), items of Partnership income and gain shall be specially allocated to such Partners in an amount and manner sufficient to eliminate the deficits in their Adjusted Capital Account Balances created by such adjustments, allocations or distributions as quickly as possible. 8. No loss shall be allocated to any Partner to the extent that such allocation would result in a deficit in its Adjusted Capital Account Balance while any other Partner continues to have a positive Adjusted Capital Account Balance; in such event, losses shall first be allocated to any Partners with positive Adjusted Capital Account Balances, and in proportion to such balances, to the extent necessary to reduce their positive Adjusted Capital Account Balances to zero. Any excess shall be allocated to the General Partner. 9. Any special allocations of items pursuant to this Part A shall be taken into account in computing subsequent allocations so that the net amount of any items so allocated and the profits, losses and all other items allocated to each such Partner pursuant to Article V of the Partnership Agreement shall, to the extent possible, be equal to the net amount that would have been allocated to each such Partner pursuant to the provisions of Article V of the Partnership Agreement if such special allocations had not occurred. 10. Notwithstanding any provision of the Partnership Agreement to the contrary, Nonrecourse Deductions for any fiscal year or other period shall be specially allocated to the Partners in the manner and in accordance with the percentages set forth in Section 5.1 of the Partnership Agreement. 11. Notwithstanding any provision of the Partnership Agreement to the contrary, any Partner Nonrecourse Deduction for any fiscal year or other period shall be specially allocated to the Partner who bears the economic risk of loss with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable in accordance with Section 1.704-2(i) of the Treasury Regulations. B. CAPITAL ACCOUNT ADJUSTMENTS AND 704(c) TAX ALLOCATIONS. 1. For purposes of computing the amount of any item of income, gain, deduction or loss to be reflected in the Partners' capital accounts, the determination, recognition and -2- classification of any such item shall be the same as its determination, recognition and classification for federal income tax purposes; provided, however, that: (a) Any income, gain or loss attributable to the taxable disposition of any property shall be determined by the Partnership as if the adjusted basis of such property as of such date of disposition was equal in amount to (i) the Agreed Value in the case of the Initial Hotels or other contributed properties, or (ii) the Carrying Value with respect to property subsequently purchased. (b) The computation of all items of income, gain, loss and deduction shall be made by the Partnership and, as to those items described in Section 705(a)(1)(B) or Section 705(a)(2)(B) of the Code, without regard to the fact that such items are not includable in gross income or are neither currently deductible nor capitalizable for federal income tax purposes. 2. A transferee of a Partnership interest will succeed to the capital account relating to the Partnership interest transferred; provided, however, that if the transfer causes a termination of the Partnership under Section 708(b)(1)(B) of the Code, the Partnership properties shall be deemed to have been distributed in liquidation of the Partnership to the Partners (including the transferee of a Partnership interest) and recontributed by such Partners and transferees in reconstitution of the Partnership. The capital accounts of such reconstituted Partnership shall be maintained in accordance with the principles set forth herein. 3. Upon an issuance of additional Partnership interests for cash, the capital accounts of all Partners (and the Agreed Values of all Partnership properties) shall, immediately prior to such issuance, be adjusted (consistent with the provisions hereof) upward or downward to reflect any unrealized gain or unrealized loss attributable to each Partnership property (as if such unrealized gain or unrealized loss had been recognized upon an actual sale of such property at the fair market value thereof, immediately prior to such issuance, and had been allocated to the Partners, at such time, pursuant to Article V of the Partnership Agreement). In determining such unrealized gain or unrealized loss attributable to the properties, the fair market value of Partnership properties shall be determined by the General Partner using such reasonable methods of valuation as it may adopt. 4. Immediately prior to the distribution of any Partnership property in liquidation of the Partnership, the capital accounts of all Partners shall be adjusted (consistent with the provisions hereof and Section 704 of the Code) upward or downward to reflect any unrealized gain or unrealized loss attributable to the Partnership property (as if such unrealized gain or unrealized loss had been recognized upon an actual sale of each such property, immediately prior to such distribution, and had been allocated to the Partners, at such time, pursuant to Article V of the Partnership Agreement). In determining such unrealized gain or unrealized loss attributable to property, the fair market value of Partnership property shall be determined by the General Partner using such reasonable methods of valuation as it may adopt. 5. In accordance with Section 704(c) of the Code and the regulations thereunder, income, gain, loss and deduction with respect to any property shall, solely for tax purposes, and not for capital account purposes, be allocated among the Partners so as to take account of any variation between the adjusted basis of such property to the Partnership for federal income tax purposes. 6. In the event the Agreed Value of any Partnership asset is adjusted as described in paragraph 3 above, subsequent allocations of income, gain, loss and deduction with respect to such asset shall take account of any variation between the adjusted basis of such asset for federal income tax purposes and its Agreed Value in the same manner as under Section 704(c) of the Code and the regulations thereunder. -3- 7. Any elections or other decisions relating to such allocations shall be made by the General Partner in any manner that reasonably reflects the purpose and intention of this Agreement. C. DEFINITIONS. For the purposes of this Exhibit, the following terms shall have the meanings indicated unless the context clearly indicates otherwise: "ADJUSTED CAPITAL ACCOUNT BALANCE": means the balance in the capital account of a Partner as of the end of the relevant fiscal year of the Partnership, after giving effect to the following: (i) credit to such capital account any amounts the Partner is obligated to restore, pursuant to the terms of this Agreement or otherwise, or is deemed obligated to restore pursuant to the penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the Treasury Regulations, and (ii) debit to such capital account the items described in Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations. "AGREED VALUE": means the net fair market value of Contributed Property as agreed to by the Contributing Partner and the Partnership (or other property subsequently adjusted to reflect contributions), using such reasonable method of valuation as they may adopt. "CARRYING VALUE": means the adjusted basis of such property for federal income tax purposes as of the time of determination. "NONRECOURSE DEDUCTIONS": shall have the meaning set forth in Section 1.704-2(b)(1) of the Treasury Regulations. The amount of Nonrecourse Deductions for a Partnership fiscal year equals the excess, if any, of the net increase, if any, in the amount of Partnership Minimum Gain during that fiscal year over the aggregate amount of any distributions during that fiscal year of proceeds of a Nonrecourse Liability, that are allocable to an increase in Partnership Minimum Gain, determined according to the provisions of Section 1.704-2(c) of the Treasury Regulations. "NONRECOURSE LIABILITY": shall have the meaning set forth in Section 1.704-2(b)(3) of the Treasury Regulations. "PARTNER NONRECOURSE DEBT MINIMUM GAIN": means an amount, with respect to each Partner Nonrecourse Debt, determined in accordance with Section 1.704-2(i) of the Treasury Regulations. "PARTNER NONRECOURSE DEBT": shall have the meaning set forth in Section 1.704-2(b)(4) of the Treasury Regulations. "PARTNER NONRECOURSE DEDUCTIONS": shall have the meaning set forth in Section 1.704-2(i)(2) of the Treasury Regulations. For any Partnership taxable year, the amount of Partner Nonrecourse Deductions with respect to a Partner Nonrecourse Debt equal the net increase during the year, if any, in the amount of Partner Nonrecourse Debt Minimum Gain reduced (but not below zero) by proceeds of the liability that are both attributable to the liability and allocable to an increase in the Partner Nonrecourse Debt Minimum Gain. "PARTNERSHIP AGREEMENT": shall mean this Amended and Restated Limited Partnership Agreement of Boykin Hotel Properties, L.P. "PARTNERSHIP MINIMUM GAIN": shall have the meaning set forth in Sections 1.704-2(b)(2) and 1.704-2(d) of the Treasury Regulations. For purposes of this Exhibit, all other capitalized terms will have the same definition as in the Partnership Agreement. -4- EXHIBIT C INITIAL HOTELS

Number Hotel of Rooms Location ----- -------- -------- Berkeley Marina Marriott 373 Berkeley, CA Buffalo Marriott 356 Buffalo, NY Cleveland Airport Marriott 375 Cleveland, OH Cleveland Marriott East 403 Cleveland, OH Columbus North Marriott 300 Columbus, OH Lake Norman Hampton Inn 117 Charlotte, NC Lake Norman Holiday Inn 119 Charlotte, NC Melbourne Quality Suites 208 Melbourne, FL Radisson Inn Sanibel Gateway 157 Fort Myers, FL

EXHIBIT D NOTICE OF EXERCISE OF REDEMPTION RIGHT The undersigned hereby irrevocably (i) presents for redemption _________ Partnership Units (as defined in the Partnership Agreement defined below) in Boykin Hotel Properties, L.P., in accordance with the terms of the Agreement of Limited Partnership of Boykin Hotel Properties, L.P. (the "Partnership Agreement"), and the Redemption Right (as defined in the Partnership Agreement) referred to therein, (ii) surrenders such Partnership Units and all right, title and interest therein, and (iii) directs that the Cash Amount or REIT Shares (both as defined in the Partnership Agreement) deliverable upon exercise of the Redemption Right be delivered to the address specified below, and if REIT Shares are to be delivered, such REIT Shares be registered or placed in the name(s) and at the addresses specified below. Dated: Name of Limited Partner: ------------------- --------------------------------------- --------------------------------------- (Signature of Limited Partner) --------------------------------------- (Street Address) --------------------------------------- (City State Zip Code) IF REIT Shares are to be issued, issue to: - ----------------------------- (Name) - ----------------------------- (Social Security or Identifying Number) EXHIBIT E INTERCOMPANY CONVERTIBLE NOTE EX-10.17 4 l96539aexv10w17.txt EX-10.17 UNDERWRITING AGREEMENT Exhibit 10.17 DEPOSITARY SHARES EACH REPRESENTING 1/10 OF A SHARE OF 101/2% CLASS A CUMULATIVE PREFERRED SHARES, SERIES 2002-A (LIQUIDATION PREFERENCE $250, OR $25 PER DEPOSITARY SHARE UNDERWRITING AGREEMENT STANDARD PROVISIONS October 1, 2002 A.G. EDWARDS & SONS, INC. One North Jefferson Avenue St. Louis, Missouri 63103 The undersigned, Boykin Lodging Company, an Ohio corporation that has elected to be taxed as a real estate investment trust (the "Company"), hereby confirms the Company's agreement with you as follows: From time to time the Company proposes to enter into one or more Pricing Agreements (each a "Pricing Agreement") in the form of Annex A hereto, with such additions and deletions as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue and sell to you (the "Underwriters") and if applicable, to the firms named in the applicable Pricing Agreement (in such case, such firms and you shall be referred to as the "Underwriters" and you and any other Underwriters designated by you shall be referred to as the "Representatives" of the several Underwriters and shall act on behalf of the Underwriters) certain depositary shares each representing 1/10 of a share in 10 1/2% Class A Cumulative Preferred Shares, Series 2002-A, without par value, (the "Depositary Shares"), specified in such Pricing Agreement (with respect to such Pricing Agreement, the "Designated Shares"). The Pricing Agreement, including the provisions incorporated therein by reference, is herein referred to as the "Underwriting Agreement." Unless otherwise defined herein, terms defined in the Pricing Agreement are used herein as therein defined. This Underwriting Agreement Standard Provisions shall not be construed as an obligation of the Company to sell any Depositary Shares or as an obligation of the Underwriters to purchase any Depositary Shares. The obligation of the Company to issue and sell any Depositary Shares and the obligation of the Underwriters to purchase any Depositary Shares shall be evidenced by the Pricing Agreement with respect to the Designated Shares specified therein. Each Pricing Agreement shall specify the aggregate number of such Designated Shares, the initial public offering price of such Designated Shares, the purchase price to the Underwriters of such Designated Shares, the other Underwriters, if any, and any Representatives of the Underwriters, and the number of Option Shares (as defined herein), and shall set forth the date of delivery of such Designated Shares. The Pricing Agreement shall also specify any additional terms of the offering to which it pertains. A Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of facsimile communications or other electronic communications satisfactory to the parties which produce a record of communications transmitted. 1. DESCRIPTION OF DESIGNATED SHARES. The Company proposes to issue and sell to the Underwriters the number of Designated Shares designated as "Firm Shares" in any applicable Pricing Agreement (the "Firm Shares"), as provided in Section 2 of this Agreement. Solely for the purpose of covering over-allotments in the sale of the Firm Shares, the Company further proposes to grant to the Underwriters the right to purchase up to the additional number of Designated Shares designated as "Option Shares" in the Pricing Agreement (the "Option Shares"), as provided in Section 3 of this Agreement. 2. PURCHASE, SALE AND DELIVERY OF FIRM SHARES. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, pursuant to each Pricing Agreement the Company will agree to sell to each of the Underwriters, and each of the Underwriters, severally and not jointly, will agree (a) to purchase from the Company at the purchase price per share set forth in the Pricing 1 Agreement, the number of Firm Shares set forth opposite the name of the Underwriter in a schedule to the applicable Pricing Agreement and (b) to purchase from the Company any additional number of Option Shares which the Underwriters may become obligated to purchase pursuant to Section 3 hereof. The Company will deliver definitive certificates for the Firm Shares at the office of A.G. Edwards & Sons, Inc., 77 Water Street, New York, New York ("Edwards' Office"), or such other place as you and the Company may mutually agree upon, for the accounts of the Underwriters against payment to the Company of the purchase price for the Firm Shares sold by it to the several Underwriters by wire transfer of immediately available funds payable to the order of the Company as specified in such Pricing Agreement, at 9:00 a.m. St. Louis time on the date specified in such Pricing Agreement or at such other place and time and date as the Underwriters and the Company may agree upon in writing, such date being herein called the "Closing Date." The certificates for the Firm Shares so to be delivered will be made available to you for inspection at Edwards' Office (or such other place as you and the Company may mutually agree upon) at least one full business day prior to the Closing Date and will be in such names and denominations as you may request at least forty-eight hours prior to the Closing Date. The Company shall deliver the items required to be delivered by it by Section 6 of this Agreement at 9:00 a.m. St. Louis time on the Closing Date at the offices of Bryan Cave LLP, 211 North Broadway, Suite 3600, St. Louis, Missouri 63102 or at such other place, time and date as the Underwriters and the Company may agree upon in writing. Upon the execution of the Pricing Agreement applicable to any Designated Shares and authorization by the Underwriters of the release of such Designated Shares it is understood that the Underwriters propose to offer the Designated Shares to the public upon the terms and conditions set forth in the Prospectus (hereinafter defined), as amended or supplemented. 3. PURCHASE, SALE AND DELIVERY OF THE OPTION SHARES. If set forth in the applicable Pricing Agreement, the Company will grant options to the Underwriters to purchase from it the Option Shares, respectively, on the same terms and conditions as the Firm Shares; provided, however, that such options may be exercised only for the purpose of covering any over-allotments that may be made by them in the sale of the Firm Shares. No Option Shares shall be sold or delivered unless the Firm Shares previously have been, or simultaneously are, sold and delivered. The options will be exercisable by the Underwriter, or in the case of multiple Underwriters, by the several Underwriters by the Representatives, at any time, and from time to time, before the expiration of 30 days from the date of the applicable Pricing Agreement (or, if such day shall be a Saturday or Sunday or a holiday, on the next day thereafter when the New York Stock Exchange is open for trading), for the purchase of all or part of the Option Shares covered thereby, by notice given by you to the Company in the manner provided in Section 11 hereof, setting forth the number of Option Shares as to which you are exercising the options. The date of delivery of said Option Shares shall be three business days after such notice unless otherwise agreed to by the parties. You may terminate the options at any time, as to any unexercised portion thereof, by giving written notice to the Company to such effect. In the case of multiple Underwriters, the Representatives shall make such allocation of the Option Shares as required to eliminate fractional shares. Delivery of the Option Shares with respect to which the options shall have been exercised shall be made to or upon your order at Edwards' Office, or at such other place as you and the Company may mutually agree upon, against payment by you of the per share purchase price to the Company by wire transfer of immediately available funds payable to the order of the Company as specified in such Pricing Agreement, at 9:00 a.m. St. Louis time on the date of delivery of the Option Shares or at such other place and time and date as the Underwriters and the Company may agree upon in writing, such date being herein called the "Option Closing Date." 2 The certificates for the Option Shares so to be delivered will be made available to you for inspection at Edwards' Office at least one full business day prior to the Option Closing Date and will be in such names and denominations as you may request at least forty-eight hours prior to the Option Closing Date. At 9:00 a.m. on the Option Closing Date, the Company shall provide the Underwriters such representations, warranties, agreements, opinions, letters, certificates and covenants required to be delivered with respect to the Option Shares as are required to be delivered on the Closing Date with respect to the Firm Shares or as otherwise required to be delivered by Section 6 of this Agreement at the offices of Bryan Cave LLP, 211 North Broadway, Suite 3600, St. Louis, Missouri 63102 or at such other place, time and date as the Underwriters and the Company may agree upon in writing. 4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. (a) The Company represents and warrants to and agrees with each Underwriter that (it being understood that such representations, warranties and agreements shall be deemed to relate to the Registration Statement and the Prospectus, each as amended or supplemented to each such date) as of each date of any Pricing Agreement, as of each date the Company issues and delivers Designated Shares (including Option Shares) and as of each date the Registration Statement or the Prospectus is amended or supplemented with respect to offerings of securities pursuant to this Agreement. (i) The Company has prepared, pursuant to and in conformity in all material respects with the requirements of the Securities Act 1933, as amended (the "1933 Act"), and the rules and regulations thereunder (the "1933 Act Rules and Regulations") of the Securities and Exchange Commission (the "SEC"), and has filed with the SEC a registration statement on Form S-3 (File No. 333-39369) which has been declared effective, including a prospectus relating to common shares, warrants, preferred shares and depositary shares of the Company, for registration of the Depositary Shares under the 1933 Act and the offering thereof from time to time in accordance with Rule 415 of the 1933 Act Rules and Regulations. The Company and the offering of the Depositary Shares in the registration statement meet the requirements for use of Form S-3 under the 1933 Act. Such registration statement (and any further registration statements which may be filed by the Company for the purpose of registering additional Depositary Shares and in connection with which this Agreement is included or incorporated therein by reference as an exhibit) including all documents incorporated therein by reference, as from time to time amended or supplemented by the filing of documents pursuant to the Securities Exchange Act of 1934, as amended, the 1933 Act or otherwise, are referred to herein as the "Registration Statement." The term "Registration Statement" also means the registration statement as amended by a post-effective amendment and includes any abbreviated registration statement prepared and filed with the SEC in accordance with Rule 462(b) under the 1933 Act (an "Abbreviated Registration Statement"). The time at which the Registration Statement became effective is referred to herein as the "Effective Date." The Company proposes to prepare and file with the SEC from time to time, pursuant to Rule 424 under the 1933 Act, supplements to the prospectus (each a "Prospectus Supplement") included in the Registration Statement that will describe the issuances of Designated Shares pursuant to Pricing Agreements, the sale and plan of distribution of the Designated Shares and additional information concerning the Company and its business. The Company may, from time to time, prepare and file with the SEC, pursuant to Rule 430 or 430A under the 1933 Act Rules and Regulations, a preliminary Prospectus Supplement (each a "Preliminary Prospectus") containing the prospectus included as part of the Registration Statement, as supplemented by a preliminary Prospectus Supplement, and including the documents incorporated in such prospectus by reference, relating to the Depositary Shares. The prospectus, including all documents incorporated therein by reference, included in the Registration Statement, as supplemented by any Preliminary Prospectus or Prospectus Supplement, in the form filed by the Company with the SEC is herein called the "Prospectus." For purposes of this Agreement, the words "amend," "amendment," "amended," "supplement" or "supplemented" with respect to the Registration Statement or the Prospectus shall mean amendments or supplements to the Registration Statement or the Prospectus, as the case may be as well as documents filed after the date of this Agreement and incorporated by reference therein as described above. 3 (ii) Neither the SEC nor any state or other jurisdiction or other regulatory body has issued, and neither is, to the knowledge of the Company, threatening to issue, any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or supplemented) or preventing or suspending the use of any Prospectus Supplement, Preliminary Prospectus or the Prospectus or suspending the qualification or registration of the Depositary Shares for offering or sale in any jurisdiction nor, to the knowledge of the Company, instituted or threatened to institute proceedings for any such purpose. The Prospectus and each Prospectus Supplement or Preliminary Prospectus, as of the applicable date of issue, and the Registration Statement and any amendments thereto as of the applicable effective date, contain or will contain, as the case may be, all statements which are required to be stated therein by, and in all material respects conform or will conform, as the case may be, to the requirements of, the 1933 Act and the 1933 Act Rules and Regulations. Neither the Registration Statement nor any amendment thereto, as of the applicable effective date, contains or will contain, as the case may be, any untrue statement of a material fact or omits or will omit to state any material fact required to be stated therein or necessary to make the statements therein, not misleading, and neither the Prospectus, any Prospectus Supplement, nor Preliminary Prospectus, at the applicable date of issue, contains or will contain, as the case may be, any untrue statement of a material fact or omits or will omit to state any 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; provided, however, that the Company makes no representation or warranty as to information contained in or omitted from the Registration Statement, any Preliminary Prospectus, any Prospectus Supplement, or the Prospectus, or any such amendment or supplement, in reliance upon, and in conformity with, written information furnished to the Company relating to the Underwriters by or on behalf of the Underwriters expressly for use in the preparation thereof (as provided in the Pricing Agreement). There is no contract or document required to be described in the Registration Statement or Prospectus or to be filed as an exhibit to the Registration Statement which is not described or filed as required. The documents incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were filed with the SEC, complied in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the rules and regulations adopted by the SEC thereunder (the "1934 Act Rules and Regulations"), except for the untimely filing of two material contract exhibits (the Second Amended and Restated Agreement of Limited Partnership of Boykin Hotel Properties, L.P. and the Amendment to Second Amended and Restated Agreement of Limited Partnership of Boykin Hotel Properties, L.P.) which exhibits were filed with the SEC on From 8-K on August 29, 2002 and which do not adversely affect the Company's eligibility to use of Form S-3 for the offering of the Designated Shares. Any future documents incorporated by reference so filed, when they are filed, will comply in all material respects with the requirements of the 1934 Act and the 1934 Act Rules and Regulations; no such incorporated document contained or will 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, when read together and with the other information in the Prospectus, at the time the Registration Statement became effective and at the Closing Date, each such incorporated document did not or will not, as the case may be, contain 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 not misleading. (iii) This Agreement has been and any applicable Pricing Agreement shall be duly authorized, executed and delivered by the Company and this Agreement constitutes and any Pricing Agreement shall constitute a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and by general principles of equity (the "Exceptions"). (iv) The Company and its "subsidiaries" (as defined in Section 4(a)(vii) hereof) have been duly incorporated or organized and are validly existing as corporations or organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate and other) to own, lease and operate their properties and conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and 4 perform the Company's obligations under, this Agreement and under any applicable Pricing Agreement; the Company and its subsidiaries are duly qualified to do business as foreign corporations or organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such qualification, except where the failure to be so qualified, individually or in the aggregate, would not have a Material Adverse Effect. The term "Material Adverse Effect" as used herein means any material adverse effect on the financial condition, net worth, business, affairs, management, results of operations or cash flow of the Company and its subsidiaries, taken as a whole. (v) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree otherwise than as set forth in the Prospectus and, since the respective dates as of which information is given in the Prospectus, there has not been any change in the capital stock or long-term debt of the Company or any of its subsidiaries which would give rise to a Material Adverse Effect, or any development involving a prospective Material Adverse Effect, otherwise than as set forth in the Prospectus. (vi) The issuance and sale of the Depositary Shares pursuant to a Pricing Agreement and the execution, delivery and performance by the Company of this Agreement and the applicable Pricing Agreement, and the consummation of the transactions herein or therein contemplated, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the properties or assets of the Company or any of its subsidiaries is subject or violate any statute, rule, regulation or other law, or any order or judgment, of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except to such extent as, individually or in the aggregate, does not have a Material Adverse Effect, nor will such action result in any violation of the provisions of the Company's articles of incorporation or code of regulations; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement and the applicable Pricing Agreement, the issuance and sale of the Depositary Shares pursuant to a Pricing Agreement or the consummation of the transactions contemplated hereby or thereby, except such as have been, or will be prior to an applicable Closing Date, obtained under the 1933 Act or as may be required by the New York Stock Exchange ("NYSE") and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or blue sky laws in connection with the purchase and distribution of the Designated Shares by the Underwriters. (vii) The Company has duly and validly authorized capital stock as set forth in the Prospectus; the Designated Shares, when issued, will conform, to the description thereof in the Prospectus and the Preferred Shares underlying the Depositary Shares have been, or, when issued and paid for in the manner described herein and in the applicable Pricing Agreement will be, duly authorized, validly issued, fully paid and non-assessable; and the issuance of the Depositary Shares to be purchased from the Company hereunder is not subject to registration, preemptive or other similar rights, or any restriction upon the voting or transfer thereof (except for those rights and restrictions relating primarily to the Company's status as a REIT as described in Section 4(a)(xxiii) hereof, as set forth in the Company's articles of incorporation or in the Company's shareholder rights plan) pursuant to applicable law or the Company's articles of incorporation, code of regulations or other governing documents or any agreement to which the Company or any of its subsidiaries is a party or by which any of them may be bound. All corporate action required to be taken by the Company for the authorization, issuance and sale of the Depositary Shares pursuant to a Pricing Agreement will have been duly and validly taken prior to the date of the applicable Pricing Agreement. Except as disclosed in the Prospectus, there are no outstanding subscriptions, rights, warrants, 5 options, calls, convertible securities, commitments of sale or rights related to or entitling any person to purchase or otherwise to acquire any shares of, or any security convertible into or exchangeable or exercisable for, the capital stock of, or other ownership interest in, the Company. The Company has no subsidiaries (collectively, "subsidiaries") other than Hunt Valley Leasing, Inc. and those identified in Exhibit 21 to the Company's last filed Annual Report on Form 10-K ("Exhibit 21"). The Company owns all of the outstanding capital stock of or other equity interests in each such subsidiary except as set forth in Exhibit 21. Other than the subsidiaries referred to above, the Company does not own, directly or indirectly, any material shares of stock or any other material equity or long-term debt of any other corporation or have any material direct or indirect equity interest or ownership of long-term debt in any firm, partnership, joint venture, limited liability company, association or other entity, except as described in the Prospectus. The outstanding shares of capital stock of or other equity interests in the Company's subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and, except as set forth in Schedule 4.7 hereto, are owned by the Company free and clear of any mortgage, pledge, lien, encumbrance, charge or adverse claim and are not the subject of any agreement or understanding with any person and were not issued in violation of any preemptive or similar rights; and there are no outstanding subscriptions, rights, warrants, options, calls, convertible securities, commitments of sale or instruments related to or entitling any person to purchase or otherwise acquire any shares of, or any security convertible into or exchangeable or exercisable for, the capital stock of, or other ownership interest in any of the subsidiaries. As of June 30, 2002, other than as set forth on Annex D, the Company did not have any subsidiaries that constitute "significant subsidiaries" as defined in Section 1-02(w) of Regulation S-X. (viii) The statements set forth in the Prospectus, as of its date of issue, describing the capital stock and the Designated Shares and this Agreement and any Pricing Agreement, insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate in all material respects, and fairly present the information required to be presented. (ix) Each of the Company and its subsidiaries is in possession of and is operating in compliance with all franchises, grants, authorizations, licenses, certificates, permits, easements, consents, orders and approvals ("Permits") from all state, federal, foreign and other regulatory authorities, and has satisfied the requirements imposed by regulatory bodies, administrative agencies or other governmental bodies, agencies or officials, that are required for the Company and its subsidiaries lawfully to own, lease and operate their properties and conduct their businesses as described in the Prospectus, and, each of the Company and its subsidiaries is conducting its business in compliance with all of the laws, rules and regulations of each jurisdiction in which it conducts its business, in each case with such exceptions, individually or in the aggregate, as would not have a Material Adverse Effect; each of the Company and its subsidiaries has filed all notices, reports, documents or other information ("Notices") required to be filed under applicable laws, rules and regulations, in each case, with such exceptions, individually or in the aggregate, as would not have a Material Adverse Effect; and, except as otherwise specifically described in the Prospectus, neither the Company nor any of its subsidiaries has received any notification from any court or governmental body, authority or agency, relating to the revocation or modification of any such Permit or, to the effect that any additional authorization, approval, order, consent, license, certificate, permit, registration or qualification ("Approvals") from such regulatory authority is needed to be obtained by any of them, in any case where it could be reasonably expected that obtaining such Approvals or the failure to obtain such Approvals, individually or in the aggregate, would have a Material Adverse Effect. (x) Except to such extent as would not have a Material Adverse Effect, the Company and its subsidiaries have filed all necessary federal, state and foreign income and franchise tax returns and paid all taxes shown as due thereon; all such tax returns are complete and correct in all material respects; all tax liabilities are adequately provided for on the books of the Company and its subsidiaries except to such extent as would not have a Material Adverse Effect; the Company and its subsidiaries have made all necessary payroll tax payments and are current and up-to-date in all material respects; and the Company and its subsidiaries have no knowledge of any tax proceeding or action pending or threatened against the Company or its subsidiaries which, individually or in the aggregate, would have a Material Adverse Effect. 6 (xi) Except as described in the Prospectus, the Company and its subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent licenses, trademarks, service marks and trade names necessary to conduct the business now operated by them, and neither the Company nor any of its subsidiaries has received any notice of infringement of or conflict with asserted rights of others with respect to any patents, patent licenses, trademarks, service marks or trade names which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect. (xii) Except in each case such as would not have a Material Adverse Effect, or except in each case where such real property is pledged or mortgaged to secure borrowings described in the Prospectus, the Company and its subsidiaries have good and marketable title in fee simple, or have valid ground leases, to all items of real property and good and marketable title to all personal property owned by them or disclosed to be owned by them in the Prospectus, in each case free and clear of all liens, encumbrances, restrictions and defects except such as do not materially affect the value of such property or do not interfere with the use made and proposed to be made of such property; and any property held under lease or sublease by the Company or any of its subsidiaries is held under valid, duly authorized, subsisting and enforceable leases or subleases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; the Company and its subsidiaries have title insurance on all real properties described in the Prospectus as having been financed by them pursuant to a mortgage loan in an amount at least equal to the aggregate principal amount of each such mortgage loan or in an amount at least equal to the aggregate acquisition price paid by the Company or its subsidiaries for such properties and the cost of construction of the improvements located on such properties; and neither the Company nor any of its subsidiaries has any notice or knowledge of any material claim of any sort which has been, or may be, asserted by anyone adverse to the Company's or any of its subsidiaries rights as lessee or sublessee under any lease or sublease described above, or affecting or questioning the Company's or any of its subsidiaries' rights to the continued possession of the leased or subleased premises under any such lease or sublease in conflict with the terms thereof. To the knowledge of the Company, no lessee of any portion of any of the properties described in the Prospectus is in default under its respective lease and there is no event which, but for the passage of time or the giving of notice or both, would constitute a default under any such lease, except such defaults that would, individually or in the aggregate, not have a Material Adverse Effect. (xiii) No labor disturbance exists with the employees of the Company or any of its subsidiaries or, to the Company's knowledge, is imminent which, individually or in the aggregate, would have a Material Adverse Effect. None of the employees of the Company or any of its subsidiaries is represented by a union and, to the knowledge of the Company and its subsidiaries, no union organizing activities are taking place. Neither the Company nor any of its subsidiaries has violated any federal, state or local law or foreign law relating to discrimination in hiring, promotion or pay of employees, nor any applicable wage or hour laws, or the rules and regulations thereunder, which might, individually or in the aggregate, result in a Material Adverse Effect. (xiv) The Company and its subsidiaries are in compliance in all material respects with all presently applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred with respect to any "pension plan" (as defined in ERISA) for which the Company and its subsidiaries would have any liability; the Company and its subsidiaries have not incurred and do not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended, including the regulations thereunder (the "Code") for failure to meet minimum funding standards; and to the Company's knowledge, each "pension plan" for which the Company or any of its subsidiaries would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects, and, to the Company's knowledge, nothing has occurred, whether by action or by failure to act, which would cause the loss of such qualification. 7 (xv) Except as set forth in the Prospectus, the Company and its subsidiaries maintain insurance of the types and in the amounts generally deemed adequate for its business, including, but not limited to, directors' and officers' insurance, insurance covering real and personal property owned or leased by the Company and its subsidiaries against theft, damage, destruction, acts of vandalism and all other risks customarily insured against, all of which insurance is in full force and effect. Neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for, and the Company has no reason to believe that it and its subsidiaries will not be able to renew their existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect. (xvi) Neither the Company nor any of its subsidiaries is, or with the giving of notice or lapse of time or both would be, in default or violation with respect to its articles of incorporation or by-laws (or code of regulations). Neither the Company nor any of its subsidiaries is, or with the giving of notice or lapse of time or both would be, in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the properties or assets of the Company or any of its subsidiaries is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject, including, without limitation, Section 13 of the 1934 Act, which default or violation, individually or in the aggregate, would have a Material Adverse Effect. Neither the Company nor any of its subsidiaries has, at any time during the past five years, (A) made any unlawful contributions to any candidate for any political office, or failed fully to disclose any contribution in violation of law, or (B) made any payment to any state, federal or foreign government official, or other person charged with similar public or quasi-public duty (other than payment required or permitted by applicable law). (xvii) Other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject, or any lessee, sublessee or operator of any such property or portion thereof is a party, that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a Material Adverse Effect or which would materially and adversely affect the consummation of the transactions contemplated hereby or which is required to be disclosed in the Prospectus; to the Company's knowledge, no such proceedings are threatened or contemplated. Neither the Company nor any of its subsidiaries has, nor, to the Company's knowledge, any seller, lessee, sublessee or operator of any such properties, or portion thereof or any previous owner thereof has, received from any governmental authority notice of any material violation of any municipal, state or federal law, rule or regulation (including without limitation any such law, rule or regulation applicable to the hotel lodging industry) and including federal, state or local law or regulation relating to human health or safety or the environment or hazardous substances or materials concerning such properties that has not been cured to the complete satisfaction of applicable regulatory authorities, and neither the Company nor any of its subsidiaries knows of any such violation, or any factual basis, occurrence or circumstance that would give rise to a valid claim under or pursuant to any such laws, rules or regulations which would, individually or in the aggregate, have a Material Adverse Effect. Except as described in the Prospectus, none of the property owned or leased by the Company or any of its subsidiaries is contaminated in any material respect with any waste or hazardous substances, and neither the Company nor any of its subsidiaries may be deemed an "owner or operator" of a "facility" or "vessel" which owns, possesses, transports, generates or disposes of a "hazardous substance" as those terms are defined in Section 9601 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 ET SEQ. Neither the Company nor any of its subsidiaries, nor, to the Company's knowledge, any seller, lessee, sublessee or operator of any such property, or portion thereof, has received from any governmental authority any written notice of any condemnation of or zoning change that remains outstanding or unresolved to the complete satisfaction of any applicable regulatory authorities affecting such properties, or any part thereof and the Company does not know of any such condemnation or zoning change which is threatened and which if consummated would have a Material Adverse Effect. No contract or document of a character 8 required to be described in the Registration Statement, the Prospectus or any document incorporated by reference therein or to be filed as an exhibit to the Registration Statement or any document incorporated therein is not so described, filed or incorporated by reference as required. (xviii) The Company is not and, after giving effect to the offering and sale of the Depositary Shares, will not be an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended (the "1940 Act"). (xix) The accounting firms which have certified the financial statements filed with or incorporated by reference in and as a part of the Registration Statement, are (or were at the time) independent public accounting firms within the meaning of the 1933 Act and the 1933 Act Rules and Regulations. The consolidated financial statements and schedules of the Company, including the notes thereto, filed with or incorporated by reference and as a part of the Registration Statement or Prospectus, present fairly in all material respects the financial condition of the Company and its subsidiaries as of the respective dates thereof and the consolidated results of operations and changes in financial position and consolidated statements of cash flow for the respective periods covered thereby, all in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved except as otherwise disclosed therein. All adjustments necessary for a fair presentation of results for such periods have been made. The selected financial data included or incorporated by reference in the Registration Statement and Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent with that of the audited financial statements. Any operating or other statistical data included or incorporated by reference in the Registration Statement and Prospectus comply in all material respects with the 1933 Act and the 1933 Act Rules and Regulations and present fairly in all material respects the information shown therein. (xx) No holder of any security of the Company has any right to require registration of Depositary Shares or any other security of the Company because of the filing of the Registration Statement, the execution of a Pricing Agreement, or the consummation of the transactions contemplated hereby. No person has the right, contractual or otherwise, to cause the Company to permit such person to underwrite the sale of any of the Depositary Shares. Except for this Agreement and any applicable Pricing Agreement, there are no contracts, agreements or understandings between the Company or any of its subsidiaries and any person that would give rise to a valid claim against the Company, its subsidiaries or any Underwriter for a brokerage commission, finder's fee or like payment in connection with the issuance, purchase and sale of the Depositary Shares pursuant to a Pricing Agreement. (xxi) The Company has not distributed and, prior to the later to occur of (i) the Closing Date or the Option Closing Date, if any, relating to a particular issuance of Designated Shares and (ii) completion of the distribution of the Designated Shares, will not distribute, any offering material in connection with the offering and sale of the Designated Shares other than the Registration Statement, the Prospectus Supplement, Preliminary Prospectus or the Prospectus relating to such issuance. (xxii) The Company has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in stabilization or manipulation of the price of the Company's Depositary Shares, and the Company is not aware of any such action taken or to be taken by affiliates of the Company. (xxiii) (i) The Company is organized and operates in conformity with the requirements for qualification as a real estate investment trust ("REIT") under Sections 856 and 857 of the Code, (ii) the Company qualified as a REIT for all taxable years prior to 2002, and (iii) the Company's method of operation will enable it to meet the requirements for taxation as a REIT under the Code for 2002 and all subsequent taxable years, and the Company intends to qualify as a REIT for all such years. With respect to the Company's qualification as a REIT for its taxable years ended December 31, 2000 and December 31, 2001, the Company did not meet the requirements of Section 856(c)(2) of the Code for such taxable years. Pursuant to Section 856(c)(6) of the Code, the Company shall be considered to have satisfied the 9 requirements of Sections 856(c)(2) for its taxable years 2000 and 2001 because (A) the nature and amount of each item of its gross income described in such Section is set forth in a schedule attached to its income tax return for such taxable years; (B) the inclusion of any incorrect information in the schedule referred to in (A) was not due to fraud with the intent to evade tax; and (C) the failure to meet the requirements of Section 856(c)(2) was due to reasonable cause and not due to willful neglect. (xxiv) Except as described in the Prospectus, neither the Company nor any of its subsidiaries has either given or received any communication regarding the termination of, or intent not to renew, any of the leasehold interests of lessees in the Company's and its subsidiaries' properties held under lease, any property managing or operating agreement or any other agreement between the Company or its subsidiaries and the operators of its properties or facilities, and no such termination or non-renewal has been threatened by the Company, any of its subsidiaries or, to the Company's knowledge, any other party to any such lease, other than as would not have, individually or in the aggregate, a Material Adverse Effect. (xxv) No relationship, direct or indirect, exists between or among the Company on the one hand, and the directors, officers or stockholders of the Company on the other hand, which is required to be described in the Prospectus which is not so described. (xxvi) All the securities of the Company issued since November 1, 1997 were issued and sold in compliance with all applicable federal and state securities laws, other than as would not have, individually or in the aggregate, a Material Adverse Effect. (b) Any certificate signed by any officer of the Company and delivered to the Underwriters or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each of the Underwriters as to the matters covered thereby. 5. ADDITIONAL COVENANTS. The Company covenants and agrees with the several Underwriters that: (a) The Company will timely transmit copies of the Prospectus, and any amendments or supplements thereto, or a term sheet or abbreviated term sheet, as applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules and Regulations. (b) The Company will deliver to the Underwriters, or in the case of multiple Underwriters, the Representatives, as soon as practicable after the date of this Agreement as many copies of the Prospectus (including all documents incorporated by reference therein) as the Underwriters may reasonably request for the purposes contemplated by the 1933 Act; the Company will promptly advise the Underwriters of any request of the SEC for amendment of the Registration Statement or for supplement to the Prospectus or for any additional information, and of the issuance by the SEC or any state or other jurisdiction or other regulatory body of any stop order under the 1933 Act or other order suspending the effectiveness of the Registration Statement (as amended or supplemented) or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending the qualification or registration of the Depositary Shares for offering or sale in any jurisdiction, and of the institution or threat of any proceedings therefor, of which the Company shall have received notice or otherwise have knowledge prior to the completion of a particular distribution of Designated Shares; and the Company will use its reasonable best efforts to prevent the issuance of any such stop order or other order and, if issued, to secure the prompt removal thereof. (c) After the date of the Pricing Agreement relating to an issuance of Designated Shares and prior to the Closing Date relating to that particular issuance of Designated Shares, the Company will not file any amendment or supplement to the Registration Statement, the Prospectus (or any other prospectus relating to the Depositary Shares filed pursuant to Rule 424(b) of the 1933 Act Rules and Regulations that differs from the Prospectus as filed pursuant to such Rule 424(b)) and will not file any document under the 1934 Act before the termination of the offering of the Designated Shares by the Underwriters if the document would be deemed to be incorporated by reference into the Registration Statement or the Prospectus, of which the Underwriters shall not previously have been advised and furnished with a copy or to which the Underwriters shall have reasonably objected or which is not 10 in compliance with the 1933 Act Rules and Regulations; and the Company will promptly notify you after it shall have received notice thereof of the time when any amendment to the Registration Statement becomes effective or when any supplement to the Prospectus has been filed. (d) During the period when the Prospectus relating to any of the Designated Shares is required to be delivered under the 1933 Act by any Underwriter or dealer, the Company will comply, at its own expense, with all requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as now and hereafter amended, and by the rules and regulations of the SEC thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Designated Shares during such period in accordance with the provisions hereof and as contemplated by the Prospectus. (e) If, during the period when the Prospectus relating to any of the Designated Shares is required to be delivered under the 1933 Act by any Underwriter or dealer, (i) any event relating to or affecting the Company or of which the Company shall be advised in writing by the Underwriters, or in the case of multiple Underwriters, the Representatives, shall occur as a result of which, in the opinion of the Company or the Underwriters, or in the case of multiple Underwriters, the Representatives, the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) it shall be necessary to amend or supplement the Registration Statement or the Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the 1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at its expense prepare and file with the SEC, and furnish to the Underwriters, or in the case of multiple Underwriters, the Representatives, a reasonable number of copies of, such amendment or supplement or other filing that will correct such statement or omission or effect such compliance. Each time the Registration Statement or the Prospectus is amended or supplemented in accordance with this Section 5(e) and such amendment or supplement sets forth amended or supplemental financial information or such amended or supplemental information is incorporated by reference in the Prospectus (except with respect to offerings of securities not pursuant to this Agreement), the Company shall cause its independent public accountants forthwith to furnish you with a letter, dated the date of such amendment or supplement, as the case may be, in form satisfactory to you, of the same tenor as the letter referred to in Section 6(e), with regard to the amended or supplemental financial information included or incorporated by reference in the Registration Statement or Prospectus as amended or supplemented to the date of such letter; provided, however, that each time amended or supplemental financial information is incorporated by reference in the Prospectus to the Company's Quarterly Report on Form 10-Q or a Current Report on Form 8-K, the letter required to be delivered pursuant to this Section 5(e) shall be delivered to you only upon reasonable request. (f) From time to time as requested by the Underwriters, or in the case of multiple Underwriters, the Representatives, and during the period when the Prospectus relating to the Designated Shares is required to be delivered under the 1933 Act by any Underwriter or dealer, the Company will furnish such proper information as may be lawfully required and otherwise cooperate in qualifying Designated Shares for offer and sale under the securities or blue sky laws of such jurisdictions as the Underwriters may reasonably designate and will file and make in each year such statements or reports as are or may be reasonably required by the laws of such jurisdictions; provided, however, that the Company shall not be required to qualify as a foreign corporation or shall be required to qualify as a dealer in securities or to file a general consent to service of process under the laws of any jurisdiction. (g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of the 1933 Act Rules and Regulations, the Company will make generally available to the holders of Designated Shares, as soon as practicable, an earning statement (which need not be audited) in reasonable detail covering the 12 months beginning not later than the first day of the month next succeeding the month in which occurred the effective date (within the meaning of Rule 158) of the Pricing Agreement. (h) The Company will file timely all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The Company will furnish to its security holders annual reports containing financial statements audited by independent public accountants. 11 (i) During the period beginning from the date of the Pricing Agreement for such Designated Shares and continuing through 30 days after the Closing Date (and, if applicable, the Option Closing Date) relating to such Designated Shares, the Company will not, without the prior written consent of the Underwriters, or in the case of multiple Underwriters, the Representatives, offer for sale, sell or enter into any agreement to sell, grant any option for the sale of, or otherwise dispose of, or publicly announce an intention to effect any such transactions, in any of the depositary shares or any preferred shares ranking on parity with or superior to the Depositary Shares or the preferred shares underlying the Depositary Shares, except for the Designated Shares. (j) The Company will apply the proceeds from the sale of the Depositary Shares as set forth in the description under "Use of Proceeds" in the Prospectus, as amended or supplemented, which description complies and will comply in all respects with the requirements of Item 504 of Regulation S-K. (k) The Company will promptly provide you with copies of all correspondence to and from, and all documents issued to and by, the SEC in connection with the registration of the Depositary Shares, or any other securities registered by the Company in connection therewith under the 1933 Act. (l) After the date of the Pricing Agreement and prior to the Closing Date (and, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares, the Company will furnish to you, as soon as they have been prepared, and prior to any filing with the SEC or public disclosure, copies of any unaudited interim consolidated financial statements of the Company and its subsidiaries for any periods subsequent to the periods covered by the financial statements appearing in the Registration Statement and the Prospectus. (m) After the date of the Pricing Agreement and prior to the Closing Date (and, if applicable, the Option Closing Date) relating to any particular issuance of Designated Shares, the Company will not issue any press releases or other communications directly or indirectly and will hold no press conferences with respect to the Company or any of its subsidiaries, the financial condition, results of operations, business, properties, assets or liabilities of the Company or any of its subsidiaries, or the offering of the Depositary Shares, without your prior written consent. (n) The Company will use its reasonable best efforts to obtain approval for, and maintain the listing of the Designated Shares on, the NYSE and to file with the NYSE all documents and notices required by the NYSE of companies that have securities listed or included on the NYSE. (o) The Company and its subsidiaries will maintain and keep accurate books and records reflecting their assets and maintain internal accounting controls which provide reasonable assurance that (1) transactions are executed in accordance with management's authorization, (2) transactions are recorded as necessary to permit the preparation of the Company's consolidated financial statements and to maintain accountability for the assets of the Company and its subsidiaries, (3) access to the assets of the Company and its subsidiaries is permitted only in accordance with management's authorization, and (4) the recorded accounts of the assets of the Company and its subsidiaries are compared with existing assets at reasonable intervals. (p) If the Company elects to rely on Rule 462(b) under the 1933 Act for the sale of any Designated Shares pursuant to a Pricing Agreement, the Company shall both file an Abbreviated Registration Statement with the SEC in compliance with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the 1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of the applicable Pricing Agreement, and (ii) the time that confirmations are given or sent, as specified by Rule 462(b)(2). (q) If at any time during the 90-day period after the date of the Pricing Agreement of any particular issuance of Designated Shares, any rumor, publication or event relating to or affecting the Company shall occur as a result of which in your opinion the market price of the Depositary Shares has been or is likely to be materially affected (regardless of whether such rumor, publication or event necessitates a supplement to or amendment of the Prospectus), the Company will, after written notice from you advising the Company to the effect set forth above, forthwith consult with you concerning the issuance of a press release or other public statement, responding to or commenting on such rumor, publication or event, provided, that nothing herein shall prevent the Company from 12 complying with the Company's disclosure or other obligations, in the Company's sole judgment, under the federal securities laws or the NYSE listing rules. (r) The Company will continue to qualify as a REIT under the Code for the 2002 taxable year. (s) During the period beginning from the date of the Pricing Agreement for a particular issuance of Designated Shares and continuing through the Closing Date (and, if applicable, the Option Closing Date) relating to such Designated Shares, the Company agrees to not, and to use its reasonable best efforts to cause its officers, directors and affiliates not to, (i) take, directly or indirectly any action designed to stabilize or manipulate the price of any security of the Company, or which may cause or result in, or which might in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the Company, to facilitate the sale or resale of any security of the Company, (ii) sell, bid for, purchase or pay anyone any compensation for soliciting purchases of Depositary Shares other than pursuant to this Agreement or (iii) pay or agree to pay to any person any compensation for soliciting any order to purchase any other securities of the Company. 6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of the Underwriters to purchase and pay for the Designated Shares under any Pricing Agreement shall be subject to the accuracy, as of the date of the Pricing Agreement and as of the Closing Date (and, if applicable, the Option Closing Date) relating to that particular issuance of Designated Shares, of the representations and warranties of the Company contained herein, to the performance by the Company of its covenants and obligations hereunder, and to the following additional conditions: (a) If the Registration Statement has not previously become effective, the Registration Statement and all post-effective amendments theretofore filed shall have become effective not later than 1:00 p.m., St. Louis time, on the date of the Pricing Agreement, or at such later date and time as may be approved by the Underwriters, or in the case of multiple Underwriters, the Representatives; if the Company has elected to rely on Rule 462(b) under the 1933 Act, the Abbreviated Registration Statement shall have become effective not later than the earlier of (x) 9:00 p.m. St. Louis time, on the date of the Pricing Agreement, or (y) at such later date and time as may be approved by the Underwriters, or in the case of multiple Underwriters, the Representatives. All filings required by Rule 424 and Rule 430A of the 1933 Act Rules and Regulations shall have been made. No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Company or any Underwriter, threatened or contemplated by the SEC, and any request of the SEC for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Underwriters. (b) No Underwriter shall have advised the Company on or prior to the Closing Date (and, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares, that the Registration Statement or Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of counsel to the Underwriters, is material, or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (c) On the Closing Date (and, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares, you shall have received one or more opinions of counsel for the Company, addressed to you and dated the Closing Date (and, if applicable, the Option Closing Date) for such Designated Shares, in substantially the forms of Annex B and Annex C. In rendering the opinion, such counsel may rely, (1) as to matters involving the application of laws of any jurisdiction other than Ohio or the United States, upon opinions addressed to the Underwriters of other counsel satisfactory to it and Bryan Cave LLP, and (2) as to all matters of fact, upon certificates and written statements of the executive officers of, and accountants for, the Company, provided, in either case, that such counsel shall state in their opinion that they believe that and the Underwriters are justified in relying thereon, and (3) as to the date of 13 qualification of the Company and its subsidiaries to do business in any state or jurisdiction, upon certificates of appropriate governmental officials, telephonic confirmation by representatives of such states or confirmation from information contained on websites of such states. Such counsel shall also confirm that during the preparation of the Registration Statement and Prospectus, such counsel participated in conferences with officers and representatives of the Company and its independent accountants, at which conferences the contents of the Registration Statement and the Prospectus were discussed, reviewed and revised. Such counsel shall also confirm that such counsel regularly reviews the Company's periodic and current reports prior to filing with the SEC. On the basis of the information which was developed in the course of the preparation of the Registration Statement and Prospectus and review of the Company's periodic and current reports, considered in light of such counsel's understanding of applicable law and the experience gained by such counsel through their practice thereunder, without such counsel assuming responsibility for the accuracy and completeness of such statements except to the extent expressly provided above, such counsel shall confirm that nothing came to their attention that would lead them to believe that either the Registration Statement (including any document filed under the 1934 Act and deemed incorporated by reference therein), as of the Effective Date, contained an untrue statement of a material fact or omitted 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, or the Prospectus or any amendment or supplement thereto (including any document filed under the 1934 Act and deemed incorporated by reference therein) as of its respective issue date and as of the Closing Date (or, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares, contained or contains any untrue statement of a material fact or omitted or omits 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 (other than the financial statements or other financial data as to which such counsel need express no opinion). (d) You shall have received on the Closing Date (and, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares, from Bryan Cave LLP, counsel to the Underwriters, such opinion or opinions, dated the Closing Date (and, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares with respect to such matters as you may reasonably require; and the Company shall have furnished to such counsel such documents as they reasonably request for the purposes of enabling them to review or pass on the matters referred to in this Section 6 and in order to evidence the accuracy, completeness and satisfaction of the representations, warranties and conditions herein contained. (e) On the date of the applicable Pricing Agreement and on the Closing Date (and, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares, you shall have received from Deloitte & Touche LLP, a letter or letters, dated the date of the applicable Pricing Agreement and the Closing Date (and, if applicable, the Option Closing Date) relating to that particular issuance of Designated Shares, respectively, in form and substance satisfactory to you, confirming that they are independent public accountants with respect to the Company within the meaning of the 1933 Act and the 1933 Act Rules and Regulations, and containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information relating to the Company contained in the Registration Statement and Prospectus. (f) Except as contemplated in the Prospectus, (i) neither the Company nor any of its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree; and (ii) subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries shall have incurred any liability or obligation, direct or contingent, or entered into any transactions, and there shall not have been any change in the capital stock or short-term or long-term debt of the Company and its subsidiaries or any change, or any development involving or which might reasonably be expected to involve a prospective change in the condition (financial or other), net worth, business, affairs, management, results of operations or cash flow of the Company or its subsidiaries, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material or adverse as to make it 14 impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Shares being delivered on such Closing Date (and, if applicable, the Option Closing Date) relating to that particular issuance of Designated Shares on the terms and in the manner contemplated in the Prospectus. (g) There shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the NYSE or the establishing on such exchange by the SEC or by such exchange, or market, of minimum or maximum prices which are not in force and effect on the date hereof; (ii) a suspension or material limitation in trading in the Company's securities on the NYSE or the establishing on such exchange by the SEC or by such exchange of minimum or maximum prices which are not in force and effect on the date hereof; (iii) a general moratorium on commercial banking activities declared by either federal or any State of New York authorities; (iv) the outbreak or escalation of hostilities or terrorism involving or affecting the United States or the declaration by the United States of a national emergency or war, which in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Shares in the manner contemplated in the Prospectus; or (v) any calamity or crisis, change in national, international or world affairs, act of God, change in the international or domestic markets, or change in the existing financial, political or economic conditions in the United States or elsewhere, which in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Shares in the manner contemplated in the Prospectus. (h) You shall have received certificates, dated the Closing Date (and, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares and signed by the President and the Chief Financial Officer of the Company, in their capacities as such, stating that: (i) the condition set forth in Section 6(a) has been fully satisfied; (ii) they have carefully examined the Registration Statement and the Prospectus as amended or supplemented and all documents incorporated by reference therein and nothing has come to their attention that would lead them to believe that either the Registration Statement or the Prospectus, or any amendment or supplement thereto or any documents incorporated by reference therein as of their respective effective, issue or filing dates, contained, or the Prospectus as amended or supplemented and all documents incorporated by reference therein and when read together with the documents incorporated by reference therein, at such Closing Date, contains, any untrue statement of a material fact, or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (iii) since the date of the applicable Pricing Agreement, there has occurred no event required to be set forth in an amendment or supplement to the Registration Statement or the Prospectus which has not been so set forth and there has been no document required to be filed under the 1934 Act and the 1934 Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Prospectus that has not been so filed; (iv) all representations and warranties made herein by the Company are true and correct at such Closing Date, with the same effect as if made on and as of such Closing Date, and all agreements herein to be performed or complied with by the Company on or prior to such Closing Date have been duly performed and complied with by the Company; (v) except as disclosed in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, neither the Company nor any of its subsidiaries has incurred any liabilities or obligations, direct or contingent, other than in the ordinary course of business, or entered into any transactions not in the ordinary course of business, which in either case are material to the Company or such subsidiary; and there has been no dividend or distribution of any kind, paid or made by the Company on any class of its capital stock; and (vi) covering such other matters as you may reasonably request. 15 (j) The Company shall have furnished to you at the Closing Date (and, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares such further information, opinions, certificates, letters and documents as you may have reasonably requested. (k) The Designated Shares shall have been approved for trading upon official notice of issuance on the New York Stock Exchange. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and to Bryan Cave LLP, counsel for the Underwriters, in the exercise of reasonable judgment. If any of the conditions specified above in this Section 6 shall not have been satisfied at or prior to the Closing Date (and, if applicable, the Option Closing Date) relating to a particular issuance of Designated Shares or waived by you in writing, the Pricing Agreement may be terminated by you on notice to the Company. 7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and hold harmless each Underwriter from and against any losses, damages or liabilities, joint or several, to which such Underwriter may become subject, under the 1933 Act or otherwise, insofar as such losses, damages or liabilities (or actions or claims in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in any Prospectus Supplement, Preliminary Prospectus, the Registration Statement, the Prospectus or any other prospectus relating to the Depositary Shares, or any amendment or supplement thereto, or in any blue sky application or other document executed by the Company or based on any information furnished in writing by the Company, filed in any state or other jurisdiction in order to qualify any or all of the Depositary Shares under the securities laws thereof (the "Blue Sky Application"), or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement made by the Company in Section 4 of this Agreement or in any representation or warranty by the Company to the Underwriters of the failure by the Company to perform when and as required by any agreement or covenant contained herein and will reimburse each Underwriter for any legal or other expenses incurred by such Underwriter in connection with investigating, preparing, pursuing or defending against any such loss, damage, liability or action or claim, including, without limitation, any investigation or proceeding by any governmental agency or body, commenced or threatened, including the reasonable fees and expenses of counsel to the indemnified party, as such expenses are incurred (including such losses, damages, liabilities or expenses to the extent of the aggregate amount paid in settlement of any such action or claim, provided that (subject to Section 7(d) hereof) any such settlement is effected with the written consent of the Company); provided, however, that the Company shall not be liable in any such case to the extent, but only to the extent, that any such loss, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any Prospectus Supplement, Preliminary Prospectus, the Registration Statement, the Prospectus or any other prospectus relating to the Depositary Shares, or any such amendment or supplement, in reliance upon and in conformity with written information relating to the Underwriter furnished to the Company by you, expressly for use in the preparation thereof (as provided in the Pricing Agreement). The foregoing indemnity agreement with respect to any Prospectus Supplement, Preliminary Prospectus, Registration Statement, or Prospectus shall not inure to the benefit of any Underwriter (or its officers and employees or any person who controls such Underwriter within the meaning of the 1933 Act) from whom the person asserting any such loss, claims, damages or liabilities purchased Depositary Shares if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if such is required by law, at or prior to the written confirmation of the sale of such Depositary Shares to such person and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage or liability; provided, that the Company has complied with its obligation under Section 5(b) of this Agreement to provide copies of the Prospectus to such Underwriter and has so complied within a reasonable amount of time prior to written confirmation. 16 (b) Each Underwriter, severally and not jointly, will indemnify and hold harmless the Company from and against any losses, damages or liabilities to which the Company may become subject, under the 1933 Act or otherwise, insofar as such losses, damages or liabilities (or actions or claims in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Prospectus Supplement, Preliminary Prospectus, the Registration Statement, the Prospectus or any other prospectus relating to the Depositary Shares, or any amendment or supplement thereto, or in any other document executed by the Company, or arise out of are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Prospectus Supplement, Preliminary Prospectus, the Registration Statement, the Prospectus or any other prospectus relating to the Depositary Shares, or any such amendment or supplement, or other document executed by the Company, in reliance upon and in conformity with written information relating to the Underwriter furnished to the Company by you, or by any Underwriter through you, expressly for use in the preparation thereof (as provided in the Pricing Agreement), and will reimburse the Company for any legal or other expenses incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred (including such losses, damages, liabilities or expenses to the extent of the aggregate amount paid in settlement of any such action or claim, provided that (subject to Section 7(d) hereof) any such settlement is effected with the written consent of the Underwriters. (c) Promptly after receipt by an indemnified party under Section 7(a) or 7(b) hereof of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under Section 7(a) or 7(b) hereof, notify each such indemnifying party in writing of the commencement thereof, but the failure so to notify such indemnifying party shall not relieve such indemnifying party from any liability except to the extent that it has been prejudiced in any material respect by such failure or from any liability that it may have to any such indemnified party otherwise than under Section 7(a) or 7(b) hereof. In case any such action shall be brought against any such indemnified party and it shall notify each indemnifying party of the commencement thereof, each such indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party under Section 7(a) or 7(b) hereof similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and, after notice from such indemnifying party to such indemnified party of its election so to assume the defense thereof, such indemnifying party shall not be liable to such indemnified party under Section 7(a) or 7(b) hereof for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. The indemnified party shall have the right to employ its own counsel in any such action, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the employment of counsel by such indemnified party at the expense of the indemnifying party has been authorized by the indemnifying party, (ii) the indemnified party shall have been advised by such counsel that there may be a conflict of interest between the indemnifying party and the indemnified party in the conduct of the defense, or certain aspects of the defense, of such action (in which case the indemnifying party shall not have the right to direct the defense of such action with respect to those matters or aspects of the defense on which a conflict exists or may exist on behalf of the indemnified party) or (iii) the indemnifying party shall not in fact have employed counsel reasonably satisfactory to such indemnified party to assume the defense of such action, in any of which events such fees and expenses to the extent applicable shall be borne, and shall be paid as incurred, by the indemnifying party. If at any time such indemnified party shall have requested such indemnifying party under Section 7(a) or 7(b) hereof to reimburse such indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 7(a) or 7(b) hereof effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of such request for reimbursement, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request for reimbursement prior to the date of such settlement. No such indemnifying party shall, without the written consent of such indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not such indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (A) includes an unconditional release of such indemnified party 17 from all liability arising out of such action or claim and (B) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any such indemnified party. In no event shall such indemnifying parties be liable for the fees and expenses of more than one counsel, including any local counsel, for all such indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. (d) If the indemnification provided for in this Section 7 is unavailable to or insufficient to indemnify or hold harmless an indemnified party under Section 7(a) or 7(b) hereof in respect of any losses, damages or liabilities (or actions or claims in respect thereof) referred to therein, then each indemnifying party under Section 7(a) or 7(b) hereof shall contribute to the amount paid or payable by such indemnified party as a result of such losses, damages or liabilities (or actions or claims in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and the Underwriter, on the other hand, from the offering of the Designated Shares. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under Section 7(c) hereof and such indemnifying party was prejudiced in a material respect by such failure, then each such indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault, as applicable, of the Company, on the one hand, and the Underwriter, on the other hand, in connection with the statements or omissions that resulted in such losses, damages or liabilities (or actions or claims in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by, as applicable, the Company, on the one hand, and the Underwriter, on the other hand, shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriter. The relative fault, as applicable, of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company, on the one hand, or the Underwriters, on the other hand, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7(d) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to above in this Section 7(d). The amount paid or payable by such an indemnified party as a result of the losses, damages or liabilities (or actions or claims in respect thereof) referred to above in this Section 7(d) shall be deemed to include any legal or other expenses incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 7(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Designated Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligation of the Underwriters in this Section 7(d) to contribute are several in proportion to their respective underwriting obligations with respect to the Designated Shares and are not joint. (e) The obligations of the Company under this Section 7 shall be in addition to any liability that the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer, director, employee, agent or other representative and to each person, if any, who controls any Underwriters within the meaning of the 1933 Act; and the obligations of the Underwriters under this Section 7 shall be in addition to any liability that the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company who signed the Registration Statement and to each person, if any, who controls the Company within the meaning of the 1933 Act. 8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. The respective representations, warranties, agreements and statements of the Company and the Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain operative and in full force and effect 18 regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, the Company or any of its officers, directors or any controlling persons, and shall survive delivery of and payment for the Depositary Shares hereunder. 9. TERMINATION. (a) A Pricing Agreement may be terminated by you at any time at or prior to the Closing Date by notice to the Company if any condition specified in Section 6 hereof shall not have been satisfied on or prior to the Closing Date. Any such termination shall be without liability of any party to any other party except as provided in Sections 7 and 10 hereof. (b) A Pricing Agreement also may be terminated by you, by notice to the Company, as to any obligation of the Underwriters to purchase the Option Shares, if any condition specified in Section 6 hereof shall not have been satisfied at or prior to the Option Closing Date. (c) This Agreement may be terminated at any time by the Company or you upon the giving of written notice of such termination, but without prejudice to any rights, obligations or liabilities of any party hereto accrued or incurred prior to such termination. The termination of this Agreement shall not require termination of any Pricing Agreement, and the termination of any Pricing Agreement shall not require termination of this Agreement. If you terminate a Pricing Agreement as provided in Sections 9(a) or 9(b) or terminate this Agreement as provided in Section 9(c), you shall notify the Company by telephone or telegram, confirmed in writing as provided in Section 11. 10. COSTS AND EXPENSES. The Company, whether or not the transactions contemplated hereby are consummated or this Agreement or any Pricing Agreement is terminated, will bear and pay the costs and expenses incident to the registration of the Depositary Shares and public offering thereof, including, without limitation, (a) all expenses (including stock transfer taxes) incurred in connection with the delivery to the several Underwriters of the Depositary Shares, the filing fees of the SEC, and the fees and expenses of the Company's counsel and accountants, (b) the preparation, printing, filing, delivery and shipping of the Registration Statement, each Prospectus Supplement, Preliminary Prospectus, the Prospectus and any amendments or supplements thereto, (c) the furnishing of copies of such documents to the Underwriters, (d) the registration or qualification of the Designated Shares for offering and sale under the securities laws of the various states and other jurisdictions, including the reasonable fees and disbursements of counsel to the Underwriters relating to such registration or qualification and in connection with preparing any Blue Sky Memoranda or related analysis, (e) all printing and engraving costs related to preparation of the certificates for the Depositary Shares, including transfer agent and registrar fees, (f) all fees and expenses relating to the authorization of the Depositary Shares and the Designated Shares for trading on the NYSE, (g) all travel expenses, including air fare and accommodation expenses, of representatives of the Company in connection with the offering of the Depositary Shares (except for ground transportation), and (h) all of the other costs and expenses incident to the performance by the Company of the registration and offering of the Depositary Shares; provided, that the Underwriters will bear and pay the fees and expenses of the Underwriters' counsel (except as specifically provided in this Section 10(d)), the Underwriters' out-of-pocket expenses, and any advertising costs and expenses incurred by the Underwriters incident to the public offering of the Depositary Shares. 11. NOTICES. All notices or communications hereunder, except as herein otherwise specifically provided, shall be in writing and if sent to the Underwriters shall be mailed, delivered, sent by facsimile transmission, or telegraphed and confirmed c/o A.G. Edwards & Sons, Inc. at One North Jefferson Avenue, St. Louis, Missouri 63103, Attention: Director, Corporate Finance, facsimile number (314) 955-4775, with a copy to Bryan Cave LLP, attention: J. Mark Klamer, facsimile number (801) 751-0631, or if sent to the Company shall be mailed, delivered, sent by facsimile transmission, or telegraphed and confirmed to the Company at Guildhall Building, Suite 1500, 45 W. Prospect Avenue, Cleveland, Ohio 44115, facsimile number 216-430-1201, attention: Shereen P. Jones, with a copy to Robert A. Weible, Baker & Hostetler LLP, 3200 National City Center, 1900 East Ninth Street, Cleveland, Ohio 44114, facsimile number 216-696-0740. 12. PARTIES. This Agreement and each Pricing Agreement shall inure to the benefit of and be binding upon the Underwriters, the Company and, to the extent provided in Sections 7 and 8, the officers and directors of 19 the Company and each person who controls the Company or any Underwriter and their respective heirs, executors, administrators, successors and assigns. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, corporation or other entity any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained; this Agreement and all conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the parties hereto and their respective successors and assigns and said controlling persons and said officers and directors, and for the benefit of no other person, corporation or other entity. No purchaser of any of the Depositary Shares from any Underwriter shall be construed a successor or assign by reason merely of such purchase. In the case of multiple Underwriters for a particular offering pursuant to a Pricing Agreement, in all dealings hereunder, you, and any other Underwriter so designated as a Representative in the Pricing Agreement, shall act on behalf of each of the several Underwriters, and the parties to the Pricing Agreement shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of the Underwriters, made or given by you jointly or by A.G. Edwards & Sons, Inc. on behalf of you, and any other Representatives, as the Representatives, as if the same shall have been made or given in writing by the Underwriters. 13. SUBSTITUTION OF UNDERWRITERS. (a) If any Underwriter shall default in its obligation to purchase the Designated Shares which it has agreed to purchase hereunder, you may in your discretion arrange for you or another party or other parties to purchase such Designated Shares on the terms contained herein. If within thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such Designated Shares, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or parties reasonably satisfactory to you to purchase such Designated Shares on such terms. In the event that, within the respective prescribed periods, you notify the Company that you have so arranged for the purchase of such Designated Shares, or the Company notifies you that it has so arranged for the purchase of such Designated Shares, you or the Company shall have the right to postpone the Closing Date for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments to the Registration Statement or the Prospectus which in your opinion may thereby be made necessary. The term "Underwriter" as used in this Agreement shall include any persons substituted under this Section 9 with like effect as if such person had originally been a party to the applicable Pricing Agreement with respect to such Designated Shares. (b) If, after giving effect to any arrangements for the purchase of the Designated Shares of a defaulting Underwriter or Underwriters made by you and the Company as provided in subsection (a) above, the aggregate number of Designated Shares which remains unpurchased does not exceed one-eleventh of the total Designated Shares to be sold on the Closing Date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the Designated Shares which such Underwriter agreed to purchase hereunder and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Designated Shares which such Underwriter agreed to purchase in the applicable Pricing Agreement) of the Designated Shares of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Designated Shares of a defaulting Underwriter or Underwriters made by you and the Company as provided in subsection (a) above, the number of Designated Shares which remains unpurchased exceeds one-eleventh of the total Designated Shares to be sold on the Closing Date, or if the Company shall not exercise the right described in subsection (b) above to require the non-defaulting Underwriters to purchase Designated Shares of the defaulting Underwriter or Underwriters, then this Agreement (or, with respect to the Option Closing Date, the obligations of the Underwriters to purchase and of the Company to sell the Option Shares) shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company except for the expenses to be borne by the Company and the Underwriters as provided in Section 11 hereof and the indemnity and contribution agreements in Section 7 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 20 14. MISCELLANEOUS. The Underwriters shall not advertise or publish any document concerning the public offering of the Depositary Shares without the prior written consent and approval of the Company, which consent and approval shall not be unreasonably withheld. 15. COUNTERPARTS. This Agreement and each Pricing Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. 16. PRONOUNS. Whenever a pronoun of any gender or number is used herein, it shall, where appropriate, be deemed to include any other gender and number. 17. TIME OF ESSENCE. Time shall be of the essence of the Pricing Agreement. 18. APPLICABLE LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the choice of law or conflict of laws principles thereof. 21 If the foregoing is in accordance with your understanding, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement among the Company and the Underwriters. BOYKIN LODGING COMPANY By: /s/ SHEREEN P. JONES --------------------------------------------- Name: Shereen P. Jones Title: Executive Vice President, Chief Financial and Investment Officer Accepted in St. Louis, Missouri as of the date first above written, A.G. EDWARDS & SONS, INC. By /s/ MICHAEL L. ESSEX -------------------------------------- Name: Michael L. Essex Title: Vice President 22 ANNEX A PRICING AGREEMENT October 1, 2002 A.G. EDWARDS & SONS, INC. as Representatives of the several Underwriters named in Schedule I hereto c/o A.G. EDWARDS & SONS, INC. One North Jefferson Avenue St. Louis, Missouri 63103 Ladies and Gentlemen: Boykin Lodging Company, an Ohio corporation (the "Company"), proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement Standard Provisions, dated October 1, 2002 (the "Underwriting Agreement"), a copy of which is attached hereto, to issue and sell to A.G. Edwards & Sons, Inc. (the "Underwriters") and if applicable, to the firms named in Schedule I hereto (in such case, such firms and you shall be referred to as the "Underwriters"), the Depositary Shares of the Company set forth in Schedule II hereto (the "Designated Shares"). Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety and shall be deemed to be a part of this Pricing Agreement to the same extent as if such provisions had been set forth in full herein. Each reference to the "Registration Statement" in the Underwriting Agreement so incorporated by reference shall be deemed to refer to the Company's Registration Statement on Form S-3, File No. 333-39369. Each reference to the Underwriters herein and in the provisions of the Underwriting Agreement Standard Provisions shall be deemed to refer to the firms named in Schedule I hereto. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement Standard Provisions shall be deemed to refer to A.G. Edwards & Sons, Inc. Only the items, if any, expressly listed in Schedule II hereto constitute the information furnished by or on behalf of the Underwriters as such information is referred to in Section 4(a)(ii) and Section 7 of the Underwriting Agreement. Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to the Underwriters, and the Underwriters agree to purchase from the Company, at the time and place and at the purchase price set forth in Schedule II hereto, the Designated Shares set forth in Schedule II hereto. 23 If the foregoing is in accordance with your understanding, please sign and return to us a counterpart hereof, and upon acceptance hereof by you, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement among the Underwriters and the Company. Very truly yours, BOYKIN LODGING COMPANY By /s/ SHEREEN P. JONES -------------------------------------- Name: Shereen P. Jones Title: Executive Vice President, Chief Financial and Investment Officer Acceptance as of the date hereof: A.G. EDWARDS & SONS, INC. as Representatives of the several Underwriters named in Schedule I hereto By /s/ MICHAEL L. ESSEX -------------------------------------- Name: Michael L. Essex Title: Vice President 24 SCHEDULE I TO PRICING AGREEMENT Underwriters - ------------ Number of Firm Shares A.G. Edwards & Sons, Inc. 1,096,000 Legg Mason Wood Walker, Incorporated 470,000 Friedman Billings Ramsey & Co., Inc. 180,000 Wells Fargo Securities, LLC 54,000 Total 1,800,000 25 SCHEDULE II TO PRICING AGREEMENT DESIGNATED SHARES: Depositary Shares each representing 1/10 of a share in 10 1/2 % Class A Cumulative Preferred Shares, Series 2002-A, without par value, deposited with National City Bank, Cleveland, Ohio, as depositary, redeemable on or after October 7, 2007 at the option of the Company, with the terms as set forth in the Prospectus Supplement dated October 1, 2002. NUMBER OF FIRM SHARES: 1,800,000 Depositary Shares each representing 1/10 of a share in 10 1/2 % Class A Cumulative Preferred Shares, Series 2002-A, without par value, deposited with National City Bank, Cleveland, Ohio, as depositary, redeemable on or after October 7, 2007 at the option of the Company, with the terms as set forth in the Prospectus Supplement dated October 1, 2002. NUMBER OF OPTION SHARES: 270,000 Depositary Shares each representing 1/10 of a share in 10 1/2 % Class A Cumulative Preferred Shares, Series 2002-A, without par value, deposited with National City Bank, Cleveland, Ohio, as depositary, redeemable on or after October 7, 2007 at the option of Company, with the terms as set forth in the Prospectus Supplement dated October 1, 2002. PRICE TO PUBLIC: $25 per share, total price $45,000,000 (without Option Shares) PURCHASE PRICE BY THE UNDERWRITERS: $24.2125 per share; $0.7875 underwriting discount per share Underwriting discount total: $1,417,500 Discount with overallotment: $1,630,125 CLOSING DATE: October 7, 2002 DIVIDENDS: Dividends will be cumulative from the date of issuance and are payable quarterly, starting January 15, 2003 at the rate of 10 1/2% of the initial liquidation preference per annum, or $26.25 per preferred share (or $2.625 per Depositary Share). LIQUIDATION PREFERENCE: The liquidation preference is equivalent to $25 per Depositary Share, plus accumulated and unpaid dividends. OTHER TERMS: Proceeds to the Company (without Option Shares): $24.2125 per share; $43,582,500 total Redeemable at the option of the Company on or after October 7, 2007 See Prospectus Supplement of Company dated October 1, 2002 26 INFORMATION PROVIDED BY UNDERWRITERS: Certain paragraphs of the underwriting section of the prospectus supplement, as follows: 1. The second paragraph under the first table on page S-43 that begins "The underwriters initially propose to offer the depositary shares.." 2. The first, second, third and fourth full paragraphs on page S-44. 27 ANNEX B (i) The Registration Statement and all post-effective amendments thereto have become effective under the 1933 Act; any required filing of the Prospectus or any supplement thereto pursuant to Rule 424(b) or otherwise has been made in the manner and within the time period required thereby; and, to the knowledge of such counsel, no stop or other order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened by the SEC. (ii) The Registration Statement and the Prospectus, and each amendment or supplement thereto (including any document incorporated by reference into the Prospectus), as of their respective effective or issue date, comply as to form in all material respects to the requirements for registration statements on Form S-3 under the 1933 Act and the applicable 1933 Act Rules and Regulations (except that such counsel expresses no opinion as to the financial statements, related schedules and other financial data included in or incorporated by reference into the Registration Statement or the Prospectus); the conditions for use of Form S-3 have been satisfied; and, as of the date they were filed with the SEC, the documents incorporated by reference in the Prospectus appear on their face to comply as to form in all material respects with the requirements of the 1934 Act and the applicable 1934 Act Rules and Regulations, except for the untimely filing of two material contracts exhibits (the Second Amended and Restated Agreement of Limited Partnership of Boykin Hotel Properties, L.P. and the Amendment of Second Amended and Restated Agreement of Limited Partnership of Boykin Hotel Properties, L.P.), which exhibits were filed with the SEC on Form 8-K on August 29, 2002 and which do not adversely affect the Company's eligibility to use Form S-3 for the offering of the Designated Shares (except that such counsel need express no opinion as to the financial statements, related schedules or other financial data included therein). (iii) Each of the Agreement and the Pricing Agreement have been duly authorized, validly executed and delivered by the Company and each constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by the Exceptions and except to the extent the enforceability of the indemnification and contribution provisions of Section 7 of the Agreement may be limited by public policy considerations. (iv) The Company and the Company's subsidiaries set forth on Annex D hereto (each a "Significant Subsidiary" and collectively, "Significant Subsidiaries") are validly existing as corporations or other organizations in good standing under the laws of the states or other jurisdictions in which they are incorporated or organized, with full power and authority (corporate or similar power) to own, lease and operate their properties and to conduct their businesses as described in the Prospectus and, with respect to the Company, to execute and deliver, and perform the Company's obligations under, the Agreement. The Company and its Significant Subsidiaries are duly registered or qualified to transact business as foreign corporations or other organizations in good standing in each state or other jurisdiction in which their ownership or leasing of property or conduct of business legally requires such registration or qualification, except where the failure to be so registered or qualified, individually or in the aggregate, would not have a Material Adverse Effect. (Our opinions herein with respect to the Company's or any Significant Subsidiary's good standing and valid existence in any state or other jurisdiction and its registration or qualification to do business in such state or other jurisdiction is based solely on a certificate of good standing issued by such state or jurisdiction, telephonic confirmation by a representative of such state or jurisdiction or confirmation from information contained on the website of such state or jurisdiction.) The Company and its subsidiaries have been duly incorporated or organized as corporations or other entities in the states of their incorporation or organization, except for Red Lion Inns Operating L.P. as to which we express no opinion. (v) All of the outstanding shares of capital stock or other securities evidencing equity ownership of each of the Company's Significant Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and, to the knowledge of such counsel, except as set forth in the 28 Prospectus or on Exhibit 21 to the Company Annual Report on Form 10-K for the year ended December 31, 2001, are owned by the Company free and clear of any mortgage, pledge, lien, encumbrance, charge or adverse claim and, except as set forth on SCHEDULE A and except as provided in the Third Amended and Restated Agreement of Limited Partnership of Boykin Hotel Properties, L.P., are not the subject of any agreement or understanding with any person, and were not issued in violation of any preemptive or other similar rights arising by operation of law or under the Significant Subsidiary's articles of incorporation or other similar organizational document or agreement; and, to the knowledge of such counsel, except as disclosed in the Prospectus, or set forth on SCHEDULE A attached hereto, there are no outstanding subscriptions, rights, warrants, options, calls, convertible securities, commitments of sale, or instruments related to or entitling any person to purchase or otherwise acquire any shares of, or any security convertible into or exercisable or exchangeable for, any such shares of capital stock or other ownership interest of any of such subsidiaries. (vi) The issuance and sale of the Designated Shares including the issuance and sale of the Preferred Shares underlying the Designated Shares and the execution, delivery and performance by the Company of the Agreement, including the Pricing Agreement with respect to the Designated Shares, and the consummation of the transactions herein contemplated, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any properties or assets of the Company or any of its subsidiaries under, any material indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the properties or assets of the Company or any of its subsidiaries is subject, except to such extent as, individually or in the aggregate, does not have a Material Adverse Effect, nor will such action result in any violation of the provisions of the Company's articles of incorporation or code of regulations or any statute, rule, regulation or other law, or any order or judgment known to such counsel, of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties. (vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required in connection with the execution, delivery and performance of the Agreement, and the issuance and sale of the Designated Shares, and the consummation of the transactions contemplated hereby, except such as may be required under the 1933 Act or the 1933 Act Rules and Regulations and have been obtained, or as may be required by the NYSE in connection with the purchase and distribution of the Designated Shares by the Underwriters, except that counsel expresses no opinion with regard to state securities or blue sky laws. Each of the Company and its subsidiaries has filed all Notices pursuant to, and has obtained all Approvals required to be obtained under, and has otherwise complied with all requirements of, all applicable laws and regulations in connection with the issuance and sale of the Designated Shares, in each case with such exceptions, individually or in the aggregate, as would not affect the validity of the Designated Shares, their issuance or the transactions contemplated hereby or have a Material Adverse Effect. (viii) The Company has duly and validly authorized capital stock as set forth in the Prospectus; the Depositary Shares, when issued, will conform, as to legal matters, in all material respects to the description thereof in the Prospectus and the Preferred Shares underlying the Depositary Shares have been duly authorized, and when issued and paid for, will be validly issued, fully paid and non-assessable; and the Designated Shares to be sold by the Company have been duly authorized and, when delivered and paid for in accordance with the Agreement and any Pricing Agreement, will be validly issued, fully paid and non-assessable. All corporate action required to be taken by the Company for the authorization, issue and sale of the Designated Shares including the Preferred Shares underlying the Designated Shares has been duly and validly taken. The Designated Shares are duly authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the NYSE. The form of specimen certificate representing the Depositary Shares filed as an exhibit with the SEC is in due and proper form. The issuance of the Depositary Shares to be purchased from the Company under the Agreement is not subject to preemptive or other similar rights arising by operation of law or under the Company's articles of 29 incorporation or code of regulations or, to our knowledge, any agreement, or any restriction upon the voting or transfer thereof (except as set forth in the Company's articles of incorporation) pursuant to applicable law or the code of regulations of the Company or any agreement, known to us, to which the Company or any of its subsidiaries is a party or by which any of them may be bound; and, to such counsel's knowledge, except as described in the Prospectus, or set forth on Schedule B, there are no outstanding subscriptions, rights, warrants, options, calls, convertible securities, commitments of sale or rights related to or entitling any person to purchase or otherwise acquire any shares of, or any security convertible into or exercisable or exchangeable for, the capital stock of, or other ownership interest in, the Company. (ix) To the knowledge of such counsel, the Company and each of its Significant Subsidiaries hold all Permits from all state, federal and other regulatory authorities, and have satisfied in all material respects the requirements imposed by regulatory bodies, administrative agencies or other governmental bodies, agencies or officials, that are required for the Company and its Significant Subsidiaries lawfully to own, lease and operate its properties and conduct its business as described in the Prospectus, and, to the knowledge of such counsel, each of the Company and its Significant Subsidiaries is conducting its business in compliance in all material respects with all of the laws, rules and regulations of each jurisdiction in which it conducts its business. (x) The statements made in the Form 8-K dated December 30, 1997, the Registration Statement and in the Prospectus under the captions "The Company," "Description of Preferred Shares," "Description of Depositary Shares," "Federal Income Tax Consequences," "ERISA Considerations," and under Item 15 of Part II of the Registration Statement, and in the Prospectus Supplement under the captions "Prospectus Supplement Summary," "Risk Factors," "The Company," "Corporate Governance," "Description of Class A Cumulative Preferred Shares, Series 2002-A and Depositary Shares," and "Federal Income Tax Considerations," and in the Company's Annual Report on Form 10-K for the year ended December 31, 2001 under Items 1, 3, 11 and 13, to the extent that they constitute summaries of statutes, laws, ordinances, rules, regulations, legal or governmental proceedings, contracts and other documents referred to therein, have been reviewed by such counsel and fairly summarize and fairly present in all material respects the information called for by the 1933 Act and the 1933 Act Rules and Regulations. (xi) Neither the Company nor any of its Significant Subsidiaries is, or with the giving of notice or lapse of time or both would be, in default or violation with respect to its articles of incorporation or by-laws (or code of regulations). To the knowledge of such counsel, neither the Company nor any of its subsidiaries is, or with the giving of notice or lapse of time or both would be, in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the properties or assets of the Company or any of its subsidiaries is subject, or in violation of any statutes, laws, ordinances or governmental rules or regulations or any orders or decrees to which it is subject, including, without limitation, Section 13 of the 1934 Act, which default or violation, individually or in the aggregate, would have a Material Adverse Effect. (xii) To the knowledge of such counsel, (A) there are no legal, governmental or regulatory proceedings pending or threatened to which the Company or any of its subsidiaries is a party or of that the business or properties of the Company or any of its subsidiaries is the subject that are required to be disclosed which are not so disclosed in the Registration Statement and Prospectus; (B) there are no contracts or documents of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to the Registration Statement that are not described or filed as required; and (C) there are no statutes, ordinances, laws, rules or regulations required to be described in the Registration Statement or Prospectus which are not described as required. 30 (xiii) The Company is not and, after giving effect to the offering and sale of the Designated Shares, will not be, an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the 1940 Act. (xiv) To the knowledge of such counsel, and except as disclosed in the Prospectus, no holder of any security of the Company has any right to require registration of the Depositary Shares or any other security of the Company because of the filing of the Registration Statement or the consummation of the transactions contemplated hereby and, except as disclosed in the Prospectus, no person has the right to require registration under the 1933 Act of any shares of the Depositary Shares or other securities of the Company, except as set forth on SCHEDULE C. 31 SCHEDULE A Second and Amended and Restated Limited Partnership Agreement of Shawan Road Hotel Limited Partnership, dated July 24, 1997, between Boykin Hunt Valley, L.L.C. and Hunt Valley Associates, LLC. 32 SCHEDULE B Stock Purchase Option Agreement, dated as of February 1, 1999, by and among the Company, Boykin Hotel Properties, L.P. and AEW Partners III, L.P. Boykin Lodging Company Long Term Incentive Plan Dividend Reinvestment and Optional Share Purchase Plan 33 SCHEDULE C Registration Rights Agreement, dated as of November 4, 1996, by and among Boykin Lodging Company and certain holders of securities of Boykin Lodging Company Registration Rights Agreement, dated as of February 1, 1999, by and between Boykin Lodging Company and AEW Partners III, L.P. Registration Rights Agreement, dated as of January 1, 2002, between Boykin Lodging Company and JABO LLC 34 ANNEX C Boykin Lodging Company Terminal Tower, Suite 1500 50 Public Square Cleveland, Ohio 44113-2258 Re: Status as a REIT Ladies and Gentlemen: In connection with the prospectus supplement and prospectus (the "Prospectus") being filed by you on the date hereof with the Securities and Exchange Commission, you have requested our opinion regarding whether Boykin Lodging Company (the "Company") has qualified as a real estate investment trust ("REIT") for its taxable years ended December 31, 1996 through December 31, 2001, has been organized in conformity with the requirements for qualification as a REIT, and whether its method of operation has enabled the Company to meet, and will enable it to continue to meet, the requirements for qualification and taxation as a REIT under the Internal Revenue Code of 1986, as amended (the "Code"). This opinion is conditioned upon certain representations made by the Company as to factual matters as set forth in the Prospectus and the registration statements on Forms S-3 and S-11 previously filed with the Securities and Exchange Commission (the "Registrations"). In addition, the Company has provided a representation letter and certificate ("Representation Letter") certifying, among other items, that it has made a timely election to be taxed as a REIT under the Code commencing with its initial taxable year ended December 31, 1996, and that commencing with the first taxable year that the Company has elected to be taxed as a REIT, the Company has operated and will continue to operate in accordance with the terms and provisions of its Articles of Incorporation and in accordance with the method of operation described in the Prospectus and the Registrations. Based on such representations, it is our opinion that the Company has qualified as a REIT for its taxable years ended December 31, 1996 through December 31, 2001, the Company is organized in conformity with the requirements for qualification as a REIT, and the Company's current and proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ended December 31, 2002 and for all future taxable years. With respect to our opinion that the Company has qualified as a REIT for its taxable years ended December 31, 2000 and December 31, 2001, we note that the Company did not meet the requirements of Section 856(c)(2) of the Code for such taxable years. Pursuant to Section 856(c)(6) of the Code, the Company nevertheless is considered to have satisfied the requirements of Sections 856(c)(2) for its taxable years 2000 and 2001 if (A) the nature and amount of each item of its gross income described in such Section is set forth in a schedule attached to its income tax return for such taxable years; (B) the inclusion of any incorrect information in the schedule referred to in (A) is not due to fraud with intent to evade tax; and (C) the failure to meet the requirements of Section 856(c)(2) is due to reasonable cause and not due to willful neglect (collectively, the "Cure Provisions"). We are of the opinion that for the taxable years ended December 31, 2000 and December 31, 2001, the Company satisfied the Cure Provisions, and accordingly, the Company will be deemed to have satisfied the requirements of Section 856(c)(2) for such taxable years. This opinion is based on various statutory provisions and regulations promulgated thereunder, in effect on the date hereof, and the interpretations of such provisions and regulations by the Internal Revenue Service and the courts having jurisdiction over such matters, all of which are subject to change either prospectively or retroactively. Also, any variation from the factual statements set forth in the Prospectus, the Registrations or the Representation Letter may affect the conclusions stated herein. Moreover, the Company's qualification and taxation as a REIT depends upon the Company's ability to meet, through actual annual operating results, distribution levels 35 and diversity of stock ownership, the various qualification tests imposed under the Code, the results of which will not be reviewed by Baker & Hostetler LLP. Accordingly, no assurance can be given that the actual results of the Company's operations for any one taxable year will satisfy such requirements. We wish to point out that our opinion is not binding on the Internal Revenue Service and, without limiting our opinion, we note that there can be no assurance that all of the requirements for qualification as a REIT for any particular taxable year have in fact been met until the return for such taxable year has been reviewed by the Internal Revenue Service or the period for such review has expired. This opinion is limited to the federal income tax matters addressed herein, and no other opinions are rendered with respect to other federal tax matters or to any issues arising under the tax laws of any state or locality. We undertake no obligation to update the opinions expressed herein after the date of this letter. This opinion is rendered to the addressee of this letter solely for the purpose referred to in the first paragraph hereof, and may not be relied on or referred to by any other person or entity or by any addressee for any other purpose without the express written consent of this Firm. We hereby consent to the filing of this opinion as an Exhibit to the Prospectus. Very truly yours, Baker & Hostetler LLP 36 ANNEX D Boykin Hotel Properties LP Red Lion Inns Operating LP Boykin Holding LLC Boykin Buffalo LLC Boykin Berkeley LLC Bellboy, Inc. French Lick Leasing LLC Buffalo Leasing LLC Westboy LLC Shawan Road Hotel Limited Partnership Boykin Kansas City LLC Beachboy LLC 37 SCHEDULE 4.7 PLEDGES OF INTERESTS IN SUBSIDIARIES: 1. Security Agreement - Pledge and Assignment of Membership Interests, dated July 31, 2001, by and between Boykin Hotel Properties, L.P. and Concord Lodging Investment Partners (Lyndhurst) LLC and Nationwide Life Insurance. JOINT VENTURES CONTAINING RESTRICTIONS ON TRANSFER OF INTERESTS IN SUBSIDIARIES: 1. Limited Partnership Agreement of Boystar Ventures, L.P., dated July 15, 1997, between Boykin Hotel Properties, L.P. and Capstar BK Company L.L.C. 2. Second Amended and Restated Limited Partnership Agreement of Shawan Road Hotel Limited Partnership, dated July 24, 1997, between Boykin Hunt Valley, L.L.C. and Hunt Valley Associates, L.L.C. 3. Operating Agreement of Boykin San Diego, L.L.C., dated November 7, 1997, between Boykin Hotel Properties, L.P. and OLS San Diego, LLC. 4. Limited Liability Company Agreement of Boykin/AEW LLC, dated February 1, 1999, between AEW Partners III, L.P. and Boykin Hotel Properties, L.P. 5. 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M+.CE+1!@=!J7`%>*^U@3P7SZ7$#=A?A09T(3ER`EF5 M'Q4A[6Q$>X\45O211ABU&!]ACJK*J$[+X=(3A$PRG&5$^6I]3:X<[X:F5NO0 M0'/]?'-+0\FI(RZN\/$,6U%&MVNS9$F_N>\P@_9A(_LWOH1Q>*O/ZS%^5*=?2S.`$#E`A2V&K$"1E&YRLB2T@0=5&M+]$3=@@ M:QM1^:FSO<.Z/0X9T00II7*53!&O)>!YZ M>90$W(U98$R_V$6.TJ"S&F=@?3\#:U4X@<(3*/TS4$[]K^YJ#6DRC,**;)^6 M2+GFY5M\7_X0+5&)S`LF!4:&8"J9)>B\5$3><1?:,0452%B4E%`I:8$C"^>P5ZOW\553_7Y[WG.?$8;_%KZ(A=,];"V%3:+XW_W#) MA-QC+C:A@W$9,I>.>H_N"[,-Q1W+)`01A1,CY?.BK;4U?')&AR[&Q)>("Y4< MR1]><)G-:-I5U\G=6T1!;6T.EYD=KY5E.@:<$'SR$_YO!5/4`[.,\()1W>LB M!7<@G5B:MN)+T'6W.6U!Y#!/V1G57%*R.+58SN'V+*-T"3&J91JS.,:R9-HB M3KP!;EVMFF!CQWUM-NDWH+[F606KL`[+0@B6$?5-6K6BLL":C8TZ\GS:"1I% M0%UK)%DBOY'%N;.'9'M80Y>A.!M_L+.UO:OC9:E#M/[LZ1<:*Q"+JJ5;Y-B( M?9(2K#IG\LY:\.!94;^"']/NKW'MPP*N_7!(J.`G'1/G9HH]RQ^C=X1O41:7BJ[JI_IHF-L@?-KD[&7&U\)>0V$0QADDJ^!:*$S" MMS6/ZHK(:JVJ04DEHN13D,NK&](96\BA0?VXD6*044+8M"9=M[15/9IBO03> MZ%&`G0]1[)%!A]G`8+M#^4[V(^/;]QNZ]`]T56.U1DDEH8Q$2.'566OLG20S MK+<;_HD^&Z#(Y,D:*E)OBM2-W2:ZQ6CJ(&_7C(M3-5>JBH9SGF]8G!#HH.`H M&S3@Z#=8<025`SNQO4C9S0=+VZ[,2%29VE;3#`9T794E4^/_T M]@)ZO][;AVTZM!,F_`7-45C@"F5N9'-T'0@72`- M+T9O;G0@/#P@+T8R(#(U(#`@4B`O1C8@,C0@,"!2(#X^(`TO17AT1U-T871E M(#P\("]'4S$@,CD@,"!2(#X^(`T^/B`-96YD;V)J#3,@,"!O8FH-/#P@+TQE M;F=T:"`Q,S(X(#X^(`US=')E86T-"C$@9PHO1U,Q(&=S"C$@:2`*,3@N,C$@ M.3@Y+C@U(#4W-2XW-B`M,C&-H86YG92!!8W0@;V8@ M,3DS-"P@=&AE(%)E9VES=')A;G0@:&%S(&1U;'D@8V%U2!A=71H;W)I>F5D+B`I5&H*,3(@,"`P(#$R(#,Y M+C4W(#@S-BXP,2!4;0HQ+CDW(%1C"ELH("DM,S$R,"@@("DM.#0T,"@@("E= M5$H*,3`N,#2E4:@HO1C(@,2!49@HM M,C0N,S,U-R`M,2XQ-C8X(%1$"B@@*51J"C`@+3$N,3$Y,2!41`HR+C,Y,S$@ M5&,*6R@@*2TS-S$T+C'1'4W1A=&4@/#P@+T=3,2`R.2`P(%(@/CX@ M#3X^(`UE;F1O8FH--B`P(&]B:@T\/"`O3&5N9W1H(#$U-S@@/CX@#7-T&AI8FET($EN9&5X("E4 M:@HQ,B`P(#`@,3(@.34N-S,@.30P+C$W(%1M"C0N.#$@5&,*6R@@("DS-S0P M*"`I751*"C$P+C`W.2`P(#`@,3`N,#&AI8FET("`@-"XU*2TQ,#2!296-E:7!T*BE=5$H*-BXP,C0T("TQ+C$Q.3$@5$0*,2XS,C$V M(%1C"B@@("E4:@HM-BXP,C0T("TQ+C$Q.3(@5$0*,"!48PHH17AH:6)I="`@ M(#$P+C%B*51J"C8N,#(T-"`M,2XQ,3DR(%1$"B@@*51J"C$N-36MI;B!(;W1E;"`I5&H*,"`M M,2XQ,3DR(%1$"BA0&AI8FET("`@,3`N,32P@86YD('1H92!H;VQD97)S(&9R;VT@=&EM M92!T;R!T:6UE(&]F($1E<&]S:71A7!E("]086=EF4@,C`-+TE$6SQD861B,&(V-C1A,3(P86-C831C8S4V M,S!E,# -----END PRIVACY-ENHANCED MESSAGE-----

EX-10.1.B

                                                                   Exhibit 10.1b

                           THIRD AMENDED AND RESTATED

                        AGREEMENT OF LIMITED PARTNERSHIP

                                       OF

                          BOYKIN HOTEL PROPERTIES, L.P.











                            DATED: SEPTEMBER 30, 2002





                                TABLE OF CONTENTS



                                                                                                        PAGE
                                                                                                        ----

                                                                                                      
RECITALS      ............................................................................................1

ARTICLE I     DEFINED TERMS...............................................................................1

ARTICLE II    PARTNERSHIP CONTINUATION; ADMISSION OF LIMITED PARTNERS; NAME; PLACE OF BUSINESS AND
              REGISTERED AGENT............................................................................8

     Section 2.1   Continuation...........................................................................8

     Section 2.2   Restated Certificate of Limited Partnership; Other Filings.............................8

     Section 2.3   Limited Partners; Additional Limited Partners..........................................8

     Section 2.4   Name, Office and Registered Agent......................................................8

ARTICLE III   BUSINESS AND TERM OF PARTNERSHIP............................................................8

     Section 3.1   Business...............................................................................9

     Section 3.2   Term...................................................................................9

ARTICLE IV    CAPITAL CONTRIBUTIONS.......................................................................9

     Section 4.1   General Partner........................................................................9

     Section 4.3   Additional Capital Contributions and Issuances of Additional Partnership Interests.....9

     Section 4.4   Additional Funding....................................................................12

     Section 4.5   Interest..............................................................................12

     Section 4.6   Return of Capital.....................................................................12

ARTICLE V     PROFITS, LOSSES AND ACCOUNTING.............................................................12

     Section 5.1   Allocation of Profits and Losses......................................................12

     Section 5.2   Accounting............................................................................13

     Section 5.3   Partners' Accounts....................................................................14

     Section 5.4   Section 754 Elections.................................................................15

ARTICLE VI    POWERS, DUTIES, LIABILITIES, COMPENSATION AND VOTING OF GENERAL PARTNER....................15

     Section 6.1   Powers of General Partner.............................................................15

     Section 6.2   Delegation of Authority...............................................................16

     Section 6.3   Duties of General Partner.............................................................16

     Section 6.4   Liabilities of General Partner; Indemnification.......................................17

     Section 6.5   Compensation of General Partner; Reimbursement........................................19

     Section 6.6   Reliance on Act of General Partner....................................................19

     Section 6.7   Outside Services; Dealings with Affiliates; Outside Activities........................19


                                       i


                                                                                                     
     Section 6.8   Initial Loan to the Partnership; Additional Loans to the Partnership..................20

     Section 6.9   Contribution of Assets................................................................20

ARTICLE VII   RIGHTS, PROHIBITIONS AND REPRESENTATIONS WITH RESPECT TO LIMITED PARTNERS..................20

     Section 7.1   Rights of Limited Partners............................................................20

     Section 7.2   Prohibitions with Respect to the Limited Partners.....................................21

     Section 7.3   Ownership by Limited Partner of Corporate General Partner or Affiliate................21

     Section 7.4   Redemption Right......................................................................21

     Section 7.5   Warranties and Representations of the Limited Partners................................23

     Section 7.6   Indemnification by Limited Partners...................................................23

     Section 7.7   Notice of Sale or Refinancing.........................................................24

     Section 7.8   Basis Analysis and Limited Partner Guarantees.........................................24

ARTICLE VIII  DISTRIBUTIONS AND PAYMENTS TO PARTNERS.....................................................24

     Section 8.1   Distributions of Cash Flow............................................................24

     Section 8.2   REIT Distribution Requirements........................................................24

     Section 8.3   No Right to Distributions in Kind.....................................................25

     Section 8.4   Disposition Proceeds..................................................................25

     Section 8.5   Withdrawals...........................................................................25

ARTICLE IX    TRANSFERS OF INTEREST......................................................................25

     Section 9.1   General Partner.......................................................................25

     Section 9.2   Admission of a Substitute or Additional General Partner...............................26

     Section 9.3   Effect of Bankruptcy, Withdrawal, Death or Dissolution of a General Partner...........26

     Section 9.4   Removal of a General Partner..........................................................27

     Section 9.5   Restrictions on Transfer of Limited Partnership Interests.............................27

     Section 9.6   Admission of Substitute Limited Partner...............................................28

     Section 9.7   Rights of Assignees of Partnership Interests..........................................28

     Section 9.8   Effect of Bankruptcy, Death, Incompetence or Termination of a Limited Partner.........29

     Section 9.9   Joint Ownership of Interests..........................................................29

     Section 9.10  Transferees...........................................................................29

     Section 9.11  Absolute Restriction..................................................................29

     Section 9.12  Investment Representation.............................................................29

ARTICLE X     TERMINATION OF THE PARTNERSHIP.............................................................30

     Section 10.1  Termination...........................................................................30




                                       ii


                                                                                                     
     Section 10.2  Payment of Debts......................................................................30

     Section 10.3  Debts to Partners.....................................................................30

     Section 10.4  Remaining Distribution................................................................30

     Section 10.5  Reserve...............................................................................30

     Section 10.6  Final Accounting......................................................................30

ARTICLE XI     AMENDMENTS................................................................................31

     Section 11.1  Authority to Amend....................................................................31

     Section 11.2  Notice of Amendments..................................................................31

ARTICLE XII    POWER OF ATTORNEY.........................................................................31

     Section 12.1  Power.................................................................................31

     Section 12.2  Survival of Power.....................................................................32

ARTICLE XIII   CONSENTS, APPROVALS, VOTING AND MEETINGS..................................................32

     Section 13.1  Method of Giving Consent or Approval..................................................32

     Section 13.2  Meetings of Limited Partners..........................................................33

     Section 13.3  Opinion...............................................................................33

     Section 13.4  Submissions to Partners...............................................................33

ARTICLE XIV    MISCELLANEOUS.............................................................................33

     Section 14.1  Governing Law.........................................................................33

     Section 14.2  Agreement for Further Execution.......................................................33

     Section 14.3  Entire Agreement......................................................................33

     Section 14.4  Severability..........................................................................33

     Section 14.5  Notices...............................................................................33

     Section 14.6  Titles and Captions...................................................................34

     Section 14.7  Counterparts..........................................................................34

     Section 14.8  Pronouns..............................................................................34

     Section 14.9  Survival of Rights....................................................................34







EXHIBIT A
FEDERAL INCOME TAX MATTERS
EXHIBIT C
EXHIBIT D
EXHIBIT E

                                      iii





                           THIRD AMENDED AND RESTATED

                        AGREEMENT OF LIMITED PARTNERSHIP

                                       OF

                          BOYKIN HOTEL PROPERTIES, L.P.

                                    RECITALS:


                  Boykin Hotel Properties, L.P. (the "Partnership"), was formed
as a limited partnership under the laws of the State of Ohio by the filing of a
Certificate of Limited Partnership with the Secretary of State of Ohio on
February 12, 1996. The Partnership's original Limited Partnership Agreement was
superseded by an Amended and Restated Agreement of Limited Partnership on
November 4, 1996 (the "Amended Agreement"), which was superseded by a Second
Amended and Restated Agreement of Limited Partnership on May 20, 1998 (the
"Second Amended Agreement"). The Second Amended Agreement was amended on
February 1, 1999 and further amended on January 1, 2002.

                  The General Partner and the Original Limited Partner desire
to, with the Limited Partners, amend and restate the Second Amended Agreement,
as amended, in its entirety. This Third Amended and Restated Agreement of
Limited Partnership is entered into by the parties as of September , 2002.

                  NOW, THEREFORE, in consideration of the foregoing, of the
mutual covenants between the parties hereto, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree to amend and restate the Second Amended Agreement, as
amended, to read in its entirety as follows:


                                    ARTICLE I

                                  DEFINED TERMS

                  Whenever used in this Agreement, the following terms shall
have the meanings respectively assigned to them in this Article I, unless
otherwise expressly provided herein or unless the context otherwise requires:

                  ACT: "Act" shall mean the Uniform Limited Partnership Act,
Ohio Revised Code ss.ss. 1782.01 ET SEQ., as in effect from time to time in the
State of Ohio.

                  ADDITIONAL FUNDS: "Additional Funds" has the meaning set forth
in Section 4.4 hereof.

                  ADDITIONAL LIMITED PARTNER: "Additional Limited Partner" shall
mean a Person admitted to this Partnership as a Limited Partner pursuant to and
in accordance with Section 2.3(b) of this Agreement.

                  ADDITIONAL SECURITIES: "Additional Securities" means any
additional REIT Shares (other than REIT Shares issued in connection with a
redemption pursuant to Section 7.4 hereof) or rights, options, warrants or
convertible or exchangeable securities containing the right to subscribe for or
purchase REIT Shares, as set forth in Section 4.3(a)(ii).



                  AFFILIATE: "Affiliate" of another Person shall mean (a) any
Person directly or indirectly owning, controlling or holding with power to vote
ten percent (10%) or more of the outstanding voting securities of such other
Person; (b) any Person ten percent (10%) or more of whose outstanding voting
securities are directly or indirectly owned, controlled or held with power to
vote by such other Person; (c) any Person directly or indirectly controlling,
controlled by, or under common control with, such other Person; (d) any officer,
director, member or partner of such other Person; and (e) if such other Person
is an officer, director, member or partner in a company, the company for which
such Person acts in any such capacity.

                  AGREED VALUE: "Agreed Value" shall mean the fair market value
of Contributed Property as agreed to by the Contributing Partner and the
Partnership, using such reasonable method of valuation as they may adopt.

                  AGREEMENT: "Agreement" shall mean this Agreement of Limited
Partnership of Boykin Hotel Properties, L.P., as amended from time to time.

                  ARTICLES OF INCORPORATION: "Articles of Incorporation" means
the Amended and Restated Articles of Incorporation of the General Partner filed
with the Secretary of State of the State of Ohio, as amended or restated from
time to time.

                  BANKRUPTCY CODE: "Bankruptcy Code" shall mean the United
States Bankruptcy Code, as amended, 11 U.S.C. ss.ss. 101 ET SEQ., and as
hereafter amended from time to time.

                  BOYKINS: "Boykins" shall mean Robert W. Boykin and John E.
Boykin, their spouses and lineal ascendants and lineal descendants, and any
person employed on a full-time basis at any time during the five (5) year period
ending on November 4, 1996 by any entity owned (directly or indirectly) more
than fifty percent (50%) by Robert W. Boykin or John E. Boykin or both.

                  BUSINESS DAY: "Business Day" shall mean any day when the New
York Stock Exchange is open for trading.

                  CAPITAL ACCOUNT: "Capital Account" shall mean, as to any
Partner, the account established and maintained for such Partner pursuant to
Section 5.3 hereof.

                  CAPITAL CONTRIBUTION: "Capital Contribution" shall mean the
amount in cash or the Agreed Value of Contributed Property contributed by each
Partner (or his original predecessor in interest) to the capital of the
Partnership for his interest in the Partnership.

                  CASH AMOUNT: "Cash Amount" means an amount of cash per Common
Partnership Unit equal to the Value on the Valuation Date of the REIT Common
Shares Amount.

                  CASH FLOW: "Cash Flow" shall mean the excess of cash revenues
actually received by the Partnership in respect of Partnership operations for
any period, less Operating Expenses for such period. Cash Flow shall not include
Disposition Proceeds.

                  CODE: "Code" shall mean the Internal Revenue Code of 1986, as
amended, and as hereafter amended from time to time. Reference to any particular
provision of the Code shall mean that provision in the Code at the date hereof
and any succeeding provision of the Code.

                  COMMISSION: "Commission" shall mean the U.S. Securities and
Exchange Commission.

                  COMMON PARTNERSHIP INTEREST: "Common Partnership Interest"
shall mean an ownership interest in the Partnership, other than a Preferred
Partnership Interest, representing a Capital Contribution by either a Limited
Partner or the General Partner and includes any and all benefits to which the
holder of


                                      -2-


such an ownership interest may be entitled as provided in this Agreement or the
Act, together with all obligations of such Person to comply with the terms and
provisions of this Agreement and the Act.

                  COMMON PARTNERSHIP UNIT: "Common Partnership Unit" shall mean
a fractional, undivided share of the Common Partnership Interests of all
Partners issued hereunder. As of September 30, 2002, there shall be considered
to be _________________________ Common Partnership Units outstanding, with each
Common Partnership Unit representing a ____ percent (____%) Common Percentage
Interest in the Partnership. At all times there shall be maintained an
equivalency of Common Partnership Units and REIT Common 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
Common Shares.

                  COMMON PERCENTAGE INTEREST: "Common Percentage Interest" shall
mean the percentage ownership interest in the Common Partnership Units of each
Partner, as determined by dividing the Common Partnership Units owned by a
Partner by the total number of Common Partnership Units then outstanding.

                  CONTRIBUTED PARTNERSHIPS: "Contributed Partnerships" shall
mean the various limited partnerships that own the Initial Hotels prior to the
formation transaction.

                  CONTRIBUTED PROPERTY: "Contributed Property" shall mean a
Partner's interest in property or other consideration (excluding services and
cash) contributed to the Partnership by such Partner.

                  CONVERSION FACTOR: "Conversion Factor" shall mean 1.0;
provided, however, that in the event the General Partner (i) declares or pays a
dividend on its outstanding REIT Common Shares in REIT Common Shares or makes a
distribution to all holders of its outstanding REIT Common Shares in REIT Common
Shares, (ii) subdivides its outstanding REIT Common Shares, or (iii) combines
its outstanding REIT Common Shares into a smaller number of REIT Common Shares,
the Conversion Factor shall be adjusted by multiplying the Conversion Factor by
a fraction, the numerator of which shall be the number of REIT Common Shares
issued and outstanding on the record date for such dividend, distribution,
subdivision or combination (assuming for such purposes that such dividend,
distribution, subdivision or combination has occurred as of such time), and the
denominator of which shall be the actual number of REIT Common Shares
(determined without the above assumption) issued and outstanding on the record
date for such dividend, distribution, subdivision or combination. Any adjustment
to the Conversion Factor shall become effective immediately after the effective
date of such event retroactive to the record date, if any, for such event;
PROVIDED, HOWEVER, that if the General Partner receives a Notice of Redemption
after the record date, but prior to the effective date of such dividend,
distribution, subdivision or combination, the Conversion Factor shall be
determined as if the General Partner had received the Notice of Redemption
immediately prior to the record date for such dividend, distribution,
subdivision or combination.

                  DISPOSITION PROCEEDS: "Disposition Proceeds" shall mean the
excess of the proceeds received by the Partnership from the sale, exchange or
other disposition of all or substantially all of the Partnership's Property less
any expenses incurred or paid by the Partnership in connection with such
transaction.

                  EVENT OF BANKRUPTCY: "Event of Bankruptcy" shall mean as to
any Person the filing of a petition for relief as to such Person as debtor or
bankrupt under the Bankruptcy Code or similar provision of law of any
jurisdiction (except if such petition is contested by such Person and has been
dismissed within ninety (90) days of the filing thereof); insolvency of such
Person as finally determined by a court of competent jurisdiction; filing by
such Person of a petition or application to accomplish the same or for the
appointment of a receiver or a trustee for such Person or a substantial part of
such Person's assets; commencement of any proceedings relating to such Person as
a debtor under any other reorganization, arrangement, insolvency, adjustment of
debt or liquidation law of any jurisdiction, whether now in


                                      -3-


existence or hereinafter in effect, either by such Person or by another, but if
such proceeding is commenced by another, only if such Person indicates his
approval of such proceeding, or such proceeding is contested by such Person and
has not been finally dismissed within ninety (90) days.

                  GENERAL PARTNER: "General Partner" shall mean Boykin Lodging
Company and any Person who becomes a substitute or additional General Partner as
provided herein, and any of their successors as General Partner.

                  GENERAL PARTNERSHIP INTEREST: "General Partnership Interest"
shall mean the ownership interest of a General Partner in the Partnership.

                  GOVERNMENT OBLIGATIONS: "Government Obligations" shall mean
securities that are (i) direct obligations of the United States of America, for
the payment of which its full faith and credit is pledged, or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, that are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust as custodian with respect to any such obligation held by such custodian
for the account of the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the Government Obligation or the specific payment
of interest on or principal of the Government Obligation evidenced by such
depository receipt.

                  INDEMNITEE: "Indemnitee" shall mean (i) any Person made a
party to a proceeding by reason of its status as (A) the General Partner, or (B)
a director or officer of the General Partner, and (ii) such other Persons
(including Affiliates of the General Partner or the Partnership) as the General
Partner may designate from time to time, in its sole and absolute discretion.

                  INDEPENDENT DIRECTOR: "Independent Director" shall mean a
director of the General Partner who is not (i) an officer or employee of the
General Partner, (ii) an Affiliate of an officer or employee of the General
Partner (iii) an Affiliate of (w) any lessee of any property of the General
Partner or of any Subsidiary of the General Partner, (x) any Subsidiary of the
General Partner, or (y) any partnership that is an Affiliate of the General
Partner, or (iv) a Person who acts on a regular basis as an individual or as a
representative of an organization serving as a professional advisor, legal
counsel or consultant to management if, in the opinion of the Board of Directors
of the General Partner, that relationship is material to the General Partner or
the Partnership, that Person, or the organization represented.

                  INITIAL HOTELS: "Initial Hotels" shall mean those properties
listed on Exhibit C hereto.

                  INITIAL LOAN: "Initial Loan" shall have the meaning provided
in Section 6.8(a) hereof.

                  INTERCOMPANY CONVERTIBLE NOTE: "Intercompany Convertible Note"
shall mean that certain Loan Agreement dated as of November 4, 1996, between the
General Partner and the Partnership, a copy of which is attached as Exhibit E
hereto, as it may be amended from time to time.

                  IRS:  "IRS" shall mean the Internal Revenue Service.

                  LIMITED PARTNER: "Limited Partner" shall mean any Person named
as a Limited Partner on Exhibit A attached hereto and any Person who becomes a
Substitute Limited Partner pursuant to Section 9.6 hereof or an Additional
Limited Partner pursuant to Section 2.3(b) hereof, in such Person's capacity as
a Limited Partner in the Partnership.


                                      -4-


                  LIMITED PARTNERSHIP INTEREST: "Limited Partnership Interest"
shall mean the ownership interest of a Limited Partner in the Partnership at any
particular time, including the right of such Limited Partner to any and all
benefits to which such Limited Partner may be entitled as provided in this
Agreement and in the Act, together with the obligations of such Limited Partner
to comply with all the provisions of this Agreement and of the Act.

                  MINIMUM LIMITED PARTNERSHIP INTEREST: "Minimum Limited
Partnership Interest" means a one percent (1%) Limited Partnership Interest.

                  NOTICE OF REDEMPTION: "Notice of Redemption" shall mean the
Notice of Exercise of Redemption Right substantially in the form attached as
Exhibit D hereto.

                  OFFERING: "Offering" shall mean the offer and sale by the
General Partner and the purchase by the Underwriters (as defined in the
Prospectus) of REIT Common Shares for sale to the public, consummated November
4, 1996.

                  OPERATING EXPENSES: "Operating Expenses" shall mean (i) all
administrative and operating costs and expenses incurred by the Partnership,
(ii) those administrative costs and expenses of the General Partner, including
any salaries or other payments to directors, officers or employees of the
General Partner, and any accounting and legal expense of the General Partner,
which expenses, the Partners have agreed, are expenses of the Partnership and
not the General Partner, and (iii) to the extent not included in clause (ii)
above, REIT Expenses; PROVIDED, HOWEVER, that Operating Expenses shall not
include any administrative costs and expenses incurred by the General Partner
that are attributable to Properties or partnership interests in a Subsidiary
that are owned by the General Partner directly.

                  ORIGINAL LIMITED PARTNER: "Original Limited Partner" shall
mean Robert W. Boykin.

                  PARTNER: "Partner" shall mean the General Partner or any
Limited Partner.

                  PARTNERSHIP: "Partnership" shall mean Boykin Hotel Properties,
L.P., an Ohio limited partnership.

                  PARTNERSHIP INTEREST: "Partnership Interest" shall mean an
ownership interest in the Partnership representing a Capital Contribution by
either a Limited Partner or the General Partner and includes any and all
benefits to which the holder of such an ownership interest may be entitled as
provided in this Agreement or the Act, together with all obligations of such
Person to comply with the terms and provisions of this Agreement and the Act.

                  PARTNERSHIP RECORD DATE: "Partnership Record Date" shall mean
the record date established by the General Partner for the distribution of Cash
Flow pursuant to Section 8.1 hereof, which record date shall be the same as the
record date established by the General Partner for a distribution to its
shareholders of some or all of its portion of such distribution.

                  PERSON: "Person" shall mean any individual, partnership,
corporation, limited liability company, trust or other entity.

                  PREFERRED PARTNERSHIP INTEREST: "Preferred Partnership
Interest" shall mean an ownership interest in the Partnership, having a
preference in payment of distributions or on liquidation, representing a Capital
Contribution by either a Limited Partner or the General Partner and includes any
and all benefits to which the holder of such an ownership interest may be
entitled as provided in this Agreement or the Act, together with all obligations
of such Person to comply with the terms and provisions of this Agreement and the
Act.


                                      -5-


                  PREFERRED PARTNERSHIP UNIT: "Preferred Partnership Unit" shall
mean a fractional, undivided share of the Preferred Partnership Interests of all
Partners issued hereunder. As of September , 2002, there shall be considered to
be _____________________ Preferred Partnership Units outstanding, with each
Preferred Partnership Unit representing a ___ percent (___%) Preferred
Percentage Interest in the Partnership.

                  PREFERRED PERCENTAGE INTEREST: "Preferred Percentage Interest"
shall mean the percentage ownership interest in the Preferred Partnership Units
of each Partner, as determined by dividing the Preferred Partnership Units owned
by a Partner by the total number of Preferred Partnership Units then
outstanding.

                  PREFERRED RETURN: "Preferred Return" shall mean any payment
made or to be made on any Preferred Partnership Unit corresponding to any
dividend paid or to be paid on any preferred shares issued by the General
Partner, in accordance with Section 4.3 hereof.

                  PROPERTY: "Property" shall mean any hotel property or other
investment in which the Partnership holds an ownership interest.

                  PROSPECTUS: "Prospectus" shall mean the final prospectus,
dated October 29, 1996, delivered to purchasers of REIT Shares in the Offering.

                  PUBLIC OFFERING PRICE: "Public Offering Price" shall mean the
price set forth in the Prospectus.

                  REDEEMING PARTNER: "Redeeming Partner" shall have the meaning
provided in Section 7.4(a) hereof.

                  REDEMPTION RIGHT: "Redemption Right" shall have the meaning
provided in Section 7.4(a) hereof.

                  REIT: "REIT" shall mean a real estate investment trust under
Sections 856 through 860, inclusive, of the Code.

                  REIT COMMON SHARE: "REIT Common Share" shall mean a share of
the common shares of the General Partner.

                  REIT COMMON SHARES AMOUNT: "REIT Common Shares Amount" shall
mean a whole number of REIT Common Shares equal to the product of the number of
Common Partnership Units offered for redemption by a Redeeming Partner,
multiplied by the Conversion Factor (rounded down to the nearest whole number in
the event such product is not a whole number); provided, however, that in the
event the General Partner at any time issues to all holders of REIT Common
Shares rights, options, warrants or convertible or exchangeable securities
entitling the shareholders to subscribe for or purchase REIT Common Shares, or
any other securities or property (collectively, the "Rights"), which Rights have
not expired pursuant to their terms, then the REIT Common Shares Amount
thereafter shall also include such Rights that a holder of that number of REIT
Common Shares would be entitled to receive.

                  REIT EXPENSES: "REIT Expenses" means (i) costs and expenses
relating to the formation and continuity of existence of the General Partner and
any Subsidiaries thereof (which Subsidiaries shall, for purposes hereof, be
included within the definition of General Partner), including taxes, fees and
assessments associated therewith, any and all costs, expenses or fees payable to
any director, officer, or employee of the General Partner, (ii) costs and
expenses relating to the public offering and registration of securities or
private offering of securities by the General Partner and all statements,
reports, fees and expenses incidental thereto, including underwriting discounts
and selling commissions applicable to any such offering of securities, (iii)
costs and expenses associated with the preparation and filing of any


                                      -6-


periodic reports by the General Partner under federal, state or local laws or
regulations, including filings with the Commission, (iv) costs and expenses
associated with compliance by the General Partner with laws, rules and
regulations promulgated by any regulatory body, including the Commission, and
(v) all other operating or administrative costs of the General Partner,
including, without limitation, insurance premiums, and legal, accounting and
directors' fees, incurred in the ordinary course of its business on behalf of or
in connection with the Partnership.

                  REIT PREFERRED SHARE: "REIT Preferred Share" shall mean a
share of the preferred shares of the General Partner.

                  REIT SHARE: "REIT Share" shall mean a REIT Common Share or a
REIT Preferred Share.

                  SPECIFIED REDEMPTION DATE: "Specified Redemption Date" shall
mean, with respect to a given Partner, the tenth (10th) Business Day after
receipt by the General Partner of a Notice of Redemption; provided, however,
that no Specified Redemption Date shall occur with respect to the Boykins (as
defined herein) before three (3) years from November 4, 1996; provided, further,
that if the General Partner combines its outstanding REIT Common Shares, no
Specified Redemption Date shall occur after the record date and prior to the
effective date of such combination.

                  SUBORDINATED CONVERTIBLE DEBT: "Subordinated Convertible Debt"
shall mean the indebtedness of the Partnership to the General Partner evidenced
by the Intercompany Convertible Note.

                  SUBSIDIARY: "Subsidiary" shall mean, with respect to any
Person, any corporation or other entity of which a majority of (i) the voting
power of the voting equity securities, or (ii) the outstanding equity interests,
are owned, directly or indirectly, by such Person.

                  SUBSTITUTE GENERAL PARTNER: "Substitute General Partner" has
the meaning set forth in Section 9.2.

                  SUBSTITUTE LIMITED PARTNER: "Substitute Limited Partner" shall
mean any Person admitted to the Partnership as a Limited Partner pursuant to
Section 9.6 hereof.

                  SURVIVING GENERAL PARTNER: "Surviving General Partner" has the
meaning set forth in Section 9.1(d) hereof.

                  TRANSACTION: "Transaction" has the meaning set forth in
Section 9.1(c) hereof.

                  TRANSFER: "Transfer" has the meaning set forth in Section
9.5(a) hereof.

                  VALUATION DATE: "Valuation Date" shall mean the date of
receipt by the General Partner of a Notice of Redemption or, if such date is not
a Business Day, the first Business Day thereafter.

                  VALUE: "Value" shall mean, with respect to a REIT Common
Share, the average of the daily market price for the ten (10) consecutive
trading days immediately preceding the Valuation Date. The market price for each
such trading day shall be: (i) if the REIT Common Shares are listed or admitted
to trading on any securities exchange or the NASDAQ National Market System, the
closing price, regular way, on such day, or if no such sale takes place on such
day, the average of the closing bid and asked prices on such day; (ii) if the
REIT Common Shares are not listed or admitted to trading on any securities
exchange or the NASDAQ National Market System, the last reported sale price on
such day or, if no sale takes place on such day, the average of the closing bid
and asked prices on such day, as reported by a reliable quotation source
designated by the General Partner; or (iii) if the REIT Common Shares are not
listed or admitted to trading on any securities exchange or the NASDAQ National
Market System and no such last reported sale price or closing bid and asked
prices are available, the average of the reported high


                                      -7-


bid and low asked prices on such day, as reported by a reliable quotation source
designated by the General Partner, or if there shall be no bid and asked prices
on such day, the average of the high bid and low asked prices, as so reported,
on the most recent day (not more than ten (10) days prior to the date in
question) for which prices have been so reported; provided, however, that if
there are no bid and asked prices reported during the ten (10) days prior to the
date in question, the Value of the REIT Common Shares shall be determined by the
General Partner acting in good faith on the basis of such quotations and other
information as it considers, in its reasonable judgment, appropriate. In the
event the REIT Common Shares Amount includes rights that a holder of REIT Common
Shares would be entitled to receive, and the General Partner acting in good
faith determines that the value of such rights is not reflected in the Value of
the REIT Common Shares determined as aforesaid, then the Value of such rights
shall be determined by the General Partner acting in good faith on the basis of
such quotations and other information as it considers, in its reasonable
judgment, appropriate.


                                   ARTICLE II

                            PARTNERSHIP CONTINUATION;
                         ADMISSION OF LIMITED PARTNERS;
                  NAME; PLACE OF BUSINESS AND REGISTERED AGENT

                  Section 2.1 CONTINUATION. The Partners hereby agree to
continue the Partnership pursuant to the Act and upon the terms and conditions
set forth in this Agreement.

                  Section 2.2 RESTATED CERTIFICATE OF LIMITED PARTNERSHIP; OTHER
FILINGS. The General Partner shall prepare (or caused to be prepared), execute,
acknowledge, record and file at the expense of the Partnership, a Restated
Certificate of Limited Partnership and all requisite fictitious name statements
and notices in such places and jurisdictions as may be required by the Act or
necessary to cause the Partnership to be treated as a limited partnership under,
and otherwise to comply with, the laws of each state or other jurisdiction in
which the Partnership conducts business.

                  Section 2.3  LIMITED PARTNERS; ADDITIONAL LIMITED PARTNERS.

                           (a) The Limited Partners shall be those Persons
identified as Limited Partners on Exhibit A attached hereto, as amended from
time to time pursuant to the terms of this Agreement, and such Persons are
hereby admitted to the Partnership as Limited Partners.

                           (b) The General Partner shall in timely fashion amend
this Agreement and, if required by the Act, the Certificate of Limited
Partnership filed for record to reflect the admission pursuant to the terms of
this Agreement of a Person as a Limited Partner.

                  Section 2.4 NAME, OFFICE AND REGISTERED AGENT. The name of the
Partnership shall be Boykin Hotel Properties, L.P. The principal place of
business of the Partnership shall be at Guildhall Building, Suite 1500, 45 West
Prospect Avenue, Cleveland, Ohio, 44115. The General Partner may at any time
change the location of such office, provided the General Partner gives notice to
the Partners of any such change. The name and address of the Partnership's
statutory agent for service of process on the Partnership is Boykin Lodging
Company, Guildhall Building, Suite 1500, 45 West Prospect Avenue, Cleveland,
Ohio, 44115.





                                   ARTICLE III


                                      -8-


                        BUSINESS AND TERM OF PARTNERSHIP

                  Section 3.1 BUSINESS. The purpose and nature of the business
of the Partnership is to conduct any business that may lawfully be conducted by
a limited partnership organized pursuant to the Act; provided, however, that
such business shall be limited to and conducted in such a manner as to permit
the General Partner at all times to be classified as a REIT, unless the Board of
the General Partner determines to cease to qualify as a REIT. To consummate the
foregoing and to carry out the obligations of the Partnership in connection
therewith or incidental thereto, the General Partner shall have the authority,
in accordance with and subject to the limitations set forth elsewhere in this
Agreement, to make, enter into, perform and carry out any arrangements,
contracts or agreements of every kind for any lawful purpose, without limit as
to amount or otherwise, with any corporation, association, partnership, limited
liability company, firm, trustee, syndicate, individual or any political or
governmental division, subdivision or agency, domestic or foreign, and generally
to make and perform agreements and contracts of every kind and description and
to do any and all things necessary or incidental to the foregoing for the
protection and enhancement of the assets of the Partnership.

                  Section 3.2 TERM. The Partnership as herein constituted shall
continue until December 31, 2050, unless earlier dissolved or terminated
pursuant to law or the provisions of this Agreement.


                                   ARTICLE IV

                              CAPITAL CONTRIBUTIONS

                  Section 4.1  GENERAL PARTNER.

                           (a) The General Partner has contributed cash to the
capital of the Partnership in the amount set forth opposite the name of the
General Partner on Exhibit A attached hereto.

                           (b) Upon the termination and dissolution of the
Partnership, the General Partner shall contribute an amount equal to the lesser
of (i) the aggregate deficit balance in the General Partner's Capital Account,
and (ii) the excess of 1.01% of the aggregate capital previously contributed by
the Limited Partners over the aggregate amount of capital previously contributed
by the General Partner, to the Partnership.

                  Section 4.2 LIMITED PARTNERS. The Limited Partners have
contributed their respective ownership interests in the Contributed Partnerships
to the capital of the Partnership. The Agreed Values of the Limited Partners'
proportionate ownership interests in the Contributed Partnerships are set forth
on Exhibit A attached hereto.

                  Section 4.3 ADDITIONAL CAPITAL CONTRIBUTIONS AND ISSUANCES OF
ADDITIONAL PARTNERSHIP Interests. Except as provided in this Section 4.3 or in
Section 4.4, the Partners shall have no right or obligation to make any
additional Capital Contributions or loans to the Partnership. The General
Partner may contribute additional capital or property to the Partnership, from
time to time, and receive additional Partnership Interests in respect thereof,
in the manner contemplated in this Section 4.3.



                           (a) ISSUANCES OF ADDITIONAL PARTNERSHIP INTERESTS.

                                 (i) GENERAL. The General Partner is hereby
         authorized to cause the Partnership to issue such additional
         Partnership Interests in the form of Common Partnership Units and
         Preferred Partnership Units for any Partnership purpose at any time or
         from time to time, to the Partners or to other Persons for such
         consideration and on such terms and conditions


                                      -9-


         as shall be established by the General Partner in its sole and absolute
         discretion, all without the approval of any of the Limited Partners.
         Any additional Partnership Interest issued thereby may be issued 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, all 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,
         including, without limitation, (i) the allocations of items of
         Partnership income, gain, loss, deduction and credit to each such class
         or series of Partnership Interests; (ii) the right of each such class
         or series of Partnership Interests to share in Partnership
         distributions; and (iii) the rights of each class or series of
         Partnership Interests upon dissolution and liquidation of the
         Partnership; PROVIDED, HOWEVER, that no additional Partnership
         Interests shall be issued to the General Partner unless:

                           (1) (A) The additional Partnership Interests are
                  issued in connection with an issuance of REIT Shares of or
                  other interests in the General Partner, which shares or
                  interests have designations, preferences and other rights, all
                  such that the economic interests are substantially similar to
                  the designations, preferences and other rights of the
                  additional Partnership Interests issued to the General Partner
                  by the Partnership in accordance with this Section 4.3 and (B)
                  the General Partner shall make, directly or through one or
                  more Affiliates, a Capital Contribution to the Partnership in
                  an amount equal to the proceeds raised or other property
                  received by the General Partner, directly or through one or
                  more Affiliates, in connection with the issuance of such
                  shares or other interests in the General Partner, or

                           (2) the additional Partnership Interests are issued
                  in connection with the conversion of the Subordinated
                  Convertible Debt at a conversion rate of twenty and 00/100
                  Dollars ($20.00) of principal amount of such debt per one
                  Common Partnership Unit, or

                           (3) the additional Partnership Interests are issued
                  to all Partners in proportion to their respective Common
                  Percentage Interests or Preferred Percentage Interests, as
                  applicable.

         Without limiting the foregoing, the General Partner is expressly
         authorized to cause the Partnership to issue Common Partnership Units
         or Preferred Partnership Units for less than fair market value, so long
         as the General Partner concludes in good faith that such issuance is in
         the best interests of the General Partner and the Partnership.

                           (ii) UPON ISSUANCE OF ADDITIONAL SECURITIES. After
                  the Offering, the Company shall not issue any additional REIT
                  Shares (other than REIT Shares issued in connection with a
                  redemption pursuant to Section 7.4 hereof) or rights, options,
                  warrants or convertible or exchangeable securities containing
                  the right to subscribe for or purchase REIT Shares
                  (collectively, "Additional Securities") other than to all
                  holders of REIT Shares, unless (A) the General Partner shall
                  cause the Partnership to issue to the General Partner
                  Partnership Interests or rights, options, warrants or
                  convertible or exchangeable securities of the Partnership
                  having designations, preferences and other rights, all such
                  that the economic interests are substantially similar to those
                  of the Additional Securities, and (B) the General Partner
                  contributes, directly or through one or more Affiliates, the
                  proceeds or other property received from the issuance of such
                  Additional Securities and from any exercise of rights
                  contained in such Additional Securities to the Partnership.
                  Without limiting the foregoing, the General Partner is
                  expressly authorized to issue Additional Securities for less
                  than fair market value, and to cause the Partnership to issue
                  to the General Partner corresponding Partnership Interests, so
                  long as (x) the General Partner concludes in good faith that
                  such issuance is in the best interests of the General


                                      -10-


                  Partner and the Partnership, and (y) the General Partner
                  contributes all proceeds or other property received from such
                  issuance to the Partnership. For example, in the event the
                  General Partner issues REIT Common Shares for a cash purchase
                  price and contributes all of the proceeds of such issuance to
                  the Partnership as required hereunder, the General Partner
                  shall be issued a number of additional Common Partnership
                  Units equal to the product of (A) the number of such REIT
                  Common Shares issued by the General Partner, the proceeds of
                  which were so contributed, multiplied by (B) a fraction, the
                  numerator of which is 100%, and the denominator of which is
                  the Conversion Factor in effect on the date of such
                  contribution.

                           (b) CERTAIN DEEMED CONTRIBUTIONS OF PROCEEDS OF
ISSUANCE OF REIT SHARES. In connection with any and all issuances of REIT
Shares, the General Partner shall contribute all of the proceeds raised in
connection with such issuance to the Partnership as Capital Contributions,
PROVIDED THAT if the proceeds actually received and contributed by the General
Partner are less than the gross proceeds of such issuance as a result of any
underwriter's discount or other expenses paid or incurred in connection with
such issuance, then the General Partner shall be deemed to have made Capital
Contributions to the Partnership in the aggregate amount of the gross proceeds
of such issuance and the Partnership shall be deemed simultaneously to have paid
such offering expenses in connection with the required issuance of additional
Partnership Units to the General Partner for such Capital Contributions pursuant
to Section 4.3(a) hereof.

                           (c) MINIMUM LIMITED PARTNERSHIP INTEREST. In the
event that either a redemption pursuant to Section 7.4 hereof or additional
Capital Contributions by the General Partner would result in the Limited
Partners, in the aggregate, owning less than the Minimum Limited Partnership
Interest, the General Partner and the Limited Partners shall form another
partnership and contribute sufficient Limited Partnership Interests together
with such other Limited Partners so that the limited partners of such
partnership own at least the Minimum Limited Partnership Interest.

                           (d) SERIES 1999-A PREFERRED PARTNERSHIP UNITS.
Without limiting the generality of this Section 4.3, the Partnership is
authorized to issue to the General Partner Series 1999-A Preferred Partnership
Units (the "Series 1999-A Preferred Units"). Upon any issuance by the General
Partner of any of its Class A Cumulative Preferred Shares, Series 1999-A (the
"Series 1999-A Preferred Shares"), the General Partner shall contribute to the
Partnership the net proceeds from that issuance in exchange for a number of
Series 1999-A Preferred Units equal to the number of Series 1999-A Preferred
Shares issued by the General Partner. If and when the holders of Series 1999-A
Preferred Shares are entitled to receive any payment from the General Partner of
any dividend or amount payable on redemption, liquidation or conversion, the
holders of the Series 1999-A Preferred Units will be entitled to receive from
the Partnership an amount of cash equal to the value to be paid to the holders
of the Series 1999-A Preferred Shares prior to the payment of any such amount to
the holders of Common Partnership Units, all such payments being made to the
extent necessary to cause the holders of Series 1999-A Preferred Shares and the
holders of Series 1999-A Preferred Units to have the same economic rights and
preferences on a per-share and per-unit basis. Upon redemption, purchase or
other acquisition by the General Partner of any of the Series 1999-A Preferred
Shares, the Partnership shall redeem, purchase or otherwise acquire an equal
number of Series 1999-A Preferred Units. Upon any conversion of Series 1999-A
Preferred Shares into REIT Common Shares, an equal number of Series 1999-A
Preferred Units will automatically be converted into a number of Common
Partnership Units equal to the number of REIT Common Shares issued on the
conversion of the Series 1999-A Preferred Shares. Upon the issuance of Series
1999-A Preferred Shares at any time and from time to time, the General Partner
shall take all actions necessary to ensure that the Series 1999-A Preferred
Units held by the General Partner have the same economic rights and preferences
as the outstanding Series 1999-A Preferred Shares, all as set forth in the
Certificate of Amendment to the Articles of Incorporation dated as of February
1, 1999.

                           (e) SERIES 2002-A PREFERRED PARTNERSHIP UNITS.
Without limiting the generality of this Section 4.3, the Partnership is
authorized to issue to the General Partner Series 2002-A Preferred


                                      -11-


Partnership Units (the "Series 2002-A Preferred Units"). Upon any issuance by
the General Partner of any of its Class A Cumulative Preferred Shares, Series
2002-A (the "Series 2002-A Preferred Shares"), the General Partner shall
contribute to the Partnership the net proceeds from that issuance in exchange
for a number of Series 2002-A Preferred Units equal to the number of Series
2002-A Preferred Shares issued by the General Partner. If and when the holders
of Series 2002-A Preferred Shares are entitled to receive any payment from the
General Partner of any dividend or amount payable on redemption or liquidation,
the holders of the Series 2002-A Preferred Units will be entitled to receive
from the Partnership an amount of cash equal to the value to be paid to the
holders of the Series 2002-A Preferred Shares prior to the payment of any such
amount to the holders of Common Partnership Units, all such payments being made
to the extent necessary to cause the holders of Series 2002-A Preferred Shares
and the holders of Series 2002-A Preferred Units to have the same economic
rights and preferences on a per-share and per-unit basis. Upon redemption,
purchase or other acquisition by the General Partner of any of the Series 2002-A
Preferred Shares, the Partnership shall redeem, purchase or otherwise acquire an
equal number of Series 2002-A Preferred Units. Upon the issuance of Series
2002-A Preferred Shares at any time and from time to time, the General Partner
shall take all actions necessary to ensure that the Series 2002-A Preferred
Units held by the General Partner have the same economic rights and preferences
as the outstanding Series 2002-A Preferred Shares, all as set forth in the
Certificate of Amendment to the Articles of Incorporation dated as of September
, 2002.

                  Section 4.4 ADDITIONAL FUNDING. If the General Partner
determines that it is in the best interests of the Partnership to provide for
additional Partnership funds ("Additional Funds") for any Partnership purpose,
the General Partner may (i) cause the Partnership to obtain such funds from
outside borrowings, or (ii) elect to have the General Partner provide such
Additional Funds to the Partnership through loans or otherwise.

                  Section 4.5 INTEREST. No interest shall be paid on the Capital
Contribution of any Partner.

                  Section 4.6 RETURN OF CAPITAL. Except as expressly provided in
this Agreement, no Partner shall be entitled to demand or receive the return of
his Capital Contribution.


                                    ARTICLE V

                         PROFITS, LOSSES AND ACCOUNTING

                  Section 5.1 ALLOCATION OF PROFITS AND LOSSES. Except as
otherwise provided herein or in Exhibit B, profits earned and losses incurred by
the Partnership shall be allocated among the Partners as follows:

                           (a) Profits for each year shall be allocated among
the Partners, and shall be credited to the respective Capital Accounts of the
Partners, in the following order and priority:

                                 (i) First, to the Partners to the extent of
losses, in the proportions and in the reverse order in which losses were
allocated to them pursuant to Section 7.1(b), until the cumulative amounts
allocated to each Partner pursuant to this Section 7.1(a)(i) are equal to the
cumulative losses so allocated to such Partner;

                                 (ii) Second, to the holders of Preferred
Partnership Units, if any, until the cumulative amount of profits allocated to
each such holder pursuant to this Section 5.1(a)(ii) and Section 5.1(a)(iv)
below for the current and all prior taxable years is equal to the sum of the
cumulative amount distributed to each such holder pursuant to Section 8.1(a)(i)
for the current and all prior taxable years;


                                      -12-


                                 (iii) Third, to the holders of Common
Partnership Units in accordance with their Common Percentage Interests, until
the cumulative amount of profits allocated to each such holder pursuant to this
Section 5.1(a)(iii) and Section 5.1(a)(v) below for the current and all prior
taxable years is equal to the sum of the cumulative amount distributed to each
such holder pursuant to Section 8.1(a)(ii) for the current and all prior taxable
years;

                                 (iv) Fourth, to the holders of Preferred
Partnership Units, if any, in accordance with their Preferred Percentage
Interests to the extent there exists any accrued but unpaid Preferred Return for
which profits have not previously been allocated pursuant to this Section
5.1(iv); and

                                 (v) Fifth, any remaining profits shall be
allocated to the holders of Common Partnership Units in accordance with their
Common Partnership Interests.


                   (b) Losses for each year shall be allocated among the
Partners, and shall be debited to the respective Capital Accounts of the
Partners, in the following order and priority:

                                 (i) First, to the holders of Common Partnership
Units pro rata in accordance with the positive balances in their Adjusted
Capital Account Balances attributable to Common Partnership Units;

                                 (ii) Second to the holders of Preferred
Partnership Units pro rata in accordance with the positive balances in their
Adjusted Capital Account Balances attributable to Preferred Partnership Units;
and

                                 (iii) Thereafter any remaining losses will be
allocated to the General Partner.

                  Section 5.2  ACCOUNTING.

                           (a) The books of the Partnership shall be kept on the
accrual basis and in accordance with generally accepted accounting principles
consistently applied.

                           (b) The fiscal year of the Partnership shall be the
calendar year.

                           (c) The terms "profits" and "losses," as used herein,
shall mean all items of income, gain, expense or loss as determined utilizing
federal income tax accounting principles and shall also include each Partner's
share of income described in Section 705(a)(1)(B) of the Code, any expenditures
described in Section 705(a)(2)(B) of the Code, any expenditures described in
Section 709(a) of the Code which are not deducted or amortized in accordance
with Section 709(b) of the Code, losses not deductible pursuant to Sections
267(a) and 707(b) of the Code and adjustments made pursuant to Exhibit B
attached hereto.

                           (d) The General Partner shall be the Tax Matters
Partner of the Partnership within the meaning of Section 6231(a)(7) of the Code.
As Tax Matters Partner, the General Partner shall have the right and obligation
to take all actions authorized and required, respectively, by the Code for the
Tax Matters Partner. The General Partner shall have the right to retain
professional assistance in respect of any audit of the Partnership by the IRS,
and all out-of-pocket expenses and fees incurred by the General Partner on
behalf of the Partnership as Tax Matters Partner shall constitute Operating
Expenses of the Partnership. In the event the General Partner receives notice of
a final Partnership adjustment under Section 6223(a)(2) of the Code, the General
Partner shall either (i) file a court petition for judicial review of such final
adjustment within the period provided under Section 6226(a) of the Code, a copy
of which petition shall be mailed to each Limited Partner on the date such
petition is filed, or (ii) mail a


                                      -13-


written notice to each Limited Partner, within such period, that describes the
General Partner's reasons for determining not to file such a petition.

                           (e) Except as specifically provided herein, all
elections required or permitted to be made by the Partnership under the Code
shall be made by the General Partner in its sole discretion.

                           (f) Any Partner shall have the right to a private
audit of the books and records of the Partnership, provided such audit is made
at the expense of the Partner desiring it, and it is made during normal business
hours.

                  Section 5.3  PARTNERS' ACCOUNTS.

                           (a) There shall be maintained a Capital Account for
each Partner in accordance with this Section 5.3 and the principles set forth in
Exhibit B attached hereto and made a part hereof. The amount of cash and the net
fair market value of property contributed to the Partnership by each Partner,
net of liabilities assumed by the Partnership, shall be credited to its Capital
Account, and from time to time, but not less often than annually, the share of
each Partner in profits, losses and fair market value of distributions shall be
credited or charged to its Capital Account. The determination of Partners'
Capital Accounts, and any adjustments thereto, shall be made consistent with tax
accounting and other principles set forth in Section 704(b) of the Code and
applicable regulations thereunder and Exhibit B attached hereto.

                           (b) Except as otherwise specifically provided herein
or in a guarantee of a Partnership liability, signed by a Limited Partner, no
Limited Partner shall be required to make any further contribution to the
capital of the Partnership to restore a loss, to discharge any liability of the
Partnership or for any other purpose, nor shall any Limited Partner personally
be liable for any liabilities of the Partnership or of the General Partner
except as provided by law or this Agreement. All Limited Partners hereby waive
their right of contribution which they may have against other Partners in
respect of any payments made by them under any guarantee of Partnership debt.

                           (c) Immediately following the transfer of any
Partnership Interest, the Capital Account of the transferee Partner shall be
equal to the Capital Account of the transferor Partner attributable to the
transferred interest, and such Capital Account shall not be adjusted to reflect
any basis adjustment under Section 743 of the Code.

                           (d) For purposes of computing the amount of any item
of income, gain, deduction or loss to be reflected in the Partners' Capital
Accounts, the determination, recognition and classification of any such item
shall be the same as its determination, recognition and classification for
federal income tax purposes, taking into account any adjustments required
pursuant to Section 704(b) of the Code and the applicable regulations thereunder
as more fully described in Exhibit B attached hereto.

                  Section 5.4 SECTION 754 ELECTIONS. The General Partner shall
elect, pursuant to Section 754 of the Code, to adjust the basis of the
Partnership's assets for all transfers of Partnership interests if such election
would benefit any Partner or the Partnership.



                                   ARTICLE VI

                          POWERS, DUTIES, LIABILITIES,
                   COMPENSATION AND VOTING OF GENERAL PARTNER

                  Section 6.1 POWERS OF GENERAL PARTNER. Notwithstanding any
provision of this Agreement to the contrary, the General Partner's discretion
and authority are subject to the limitations


                                      -14-


imposed by law, and by the General Partner's articles of incorporation and code
of regulations. Subject to the foregoing and to other limitations imposed by
this Agreement, the General Partner shall have full, complete and exclusive
discretion to manage and control the business and affairs of the Partnership and
make all decisions affecting the business and assets of the Partnership. Without
limiting the generality of the foregoing (but subject to the restrictions
specifically contained in this Agreement), the General Partner shall have the
power and authority to take the following actions on behalf of the Partnership:

                           (a) to acquire, purchase, own, lease and dispose of
any real property and any other property or assets that the General Partner
determines are necessary or appropriate or in the best interests of conducting
the business of the Partnership;

                           (b) to construct buildings and make other
improvements (including renovations) on or to the properties owned or leased by
the Partnership;

                           (c) to borrow money for the Partnership, issue
evidences of indebtedness in connection therewith, refinance, guarantee,
increase the amount of, modify, amend or change the terms of, or extend the time
for the payment of, any indebtedness or obligation of or to the Partnership, and
secure such indebtedness by mortgage, deed of trust, pledge or other lien on the
Partnership's assets;

                           (d) to pay, either directly or by reimbursement, for
all Operating Expenses to third parties or to the General Partner (as set forth
in this Agreement);

                           (e) to lease all or any portion of any of the
Partnership's assets, whether or not the terms of such leases extend beyond the
termination date of the Partnership and whether or not any portion of the
Partnership's assets so leased are to be occupied by the lessee, or, in turn,
subleased in whole or in part to others, for such consideration and on such
terms as the General Partner may determine;

                           (f) to prosecute, defend, arbitrate, or compromise
any and all claims or liabilities in favor of or against the Partnership, on
such terms and in such manner as the General Partner may reasonably determine,
and similarly to prosecute, settle or defend litigation with respect to the
Partners, the Partnership, or the Partnership's assets; provided, however, that
the General Partner may not, without the consent of all of the Partners, confess
a judgment against the Partnership;

                           (g) to file applications, communicate, and otherwise
deal with any and all governmental agencies having jurisdiction over, or in any
way affecting, the Partnership's assets or any other aspect of the Partnership
business;

                           (h) to make or revoke any election permitted or
required of the Partnership by any taxing authority;

                           (i) to maintain such insurance coverage for public
liability, fire and casualty, and any and all other insurance for the protection
of the Partnership, for the conservation of Partnership assets, or for any other
purpose convenient or beneficial to the Partnership, in such amounts and such
types as the General Partner shall determine from time to time;

                           (j) to determine whether or not to apply any
insurance proceeds for any Property to the restoration of such Property or to
distribute the same;

                           (k) to retain providers of services of any kind or
nature in connection with the Partnership business and to pay therefor such
reasonable remuneration as the General Partner may deem proper;


                                      -15-


                           (l) to negotiate and conclude agreements on behalf of
the Partnership with respect to any of the rights, powers and authority
conferred upon the General Partner, including, without limitation, management
agreements, franchise agreements, agreements with federal, state or local liquor
licensing agencies and agreements with operators of restaurants and bars;

                           (m) to maintain accurate accounting records and to
file promptly all federal, state and local income tax returns on behalf of the
Partnership;

                           (n) to form or acquire an interest in, and contribute
property to, any further limited or general partnerships, joint ventures or
other relationships that it deems desirable (including, without limitation, the
acquisition of interests in, and the contributions of property to, its
Subsidiaries and any other Person in which it has an equity interest from time
to time);

                           (o) to distribute Partnership cash or other
Partnership assets in accordance with this Agreement;

                           (p) to establish Partnership reserves for working
capital, capital expenditures, contingent liabilities or any other valid
Partnership purpose;

                           (q) to take whatever action the General Partner deems
appropriate to maintain the economic equivalency of Common Partnership Units and
REIT Common Shares and Preferred Partnership Units and REIT Preferred Shares,
respectively; and

                           (r) to take such other action, execute, acknowledge,
swear to or deliver such other documents and instruments, and perform any and
all other acts the General Partner deems necessary or appropriate for the
formation, continuation and conduct of the business and affairs of the
Partnership (including, without limitation, all actions consistent with
qualification of the General Partner as a REIT) and to possess and enjoy all of
the rights and powers of a general partner as provided by the Act.

Except as otherwise provided herein, to the extent the duties of the General
Partner require expenditures of funds to be paid to third parties, the General
Partner shall not have any obligations hereunder except to the extent that
Partnership funds are reasonably available to it for the performance of such
duties, and nothing herein contained shall be deemed to authorize or require the
General Partner, in its capacity as such, to expend its individual funds for
payment to third parties or to undertake any individual liability or obligation
on behalf of the Partnership.

                  Section 6.2 DELEGATION OF AUTHORITY. The General Partner may
delegate any or all of its powers, rights and obligations hereunder, and may
appoint, employ, contract or otherwise deal with any Person for the transaction
of the business of the Partnership, which Person may, under supervision of the
General Partner, perform any acts or services for the Partnership as the General
Partner may approve.

                  Section 6.3  DUTIES OF GENERAL PARTNER.

                           (a) The General Partner, subject to the limitations
contained elsewhere in this Agreement, shall manage or cause to be managed the
affairs of the Partnership in a prudent and businesslike manner and shall devote
sufficient time and effort to the Partnership affairs.

                           (b) In carrying out its obligations, the General
Partner shall:

                              (i) Render annual reports to all Partners with
                  respect to the operations of the Partnership;

                              (ii) On or before March 31st of every year, mail
                  to all persons who were Partners at any time during the
                  Partnership's prior fiscal year an annual report of the



                                      -16-


                  Partnership, including all necessary tax information, and any
                  other information regarding the Partnership and its operations
                  during the prior fiscal year deemed by the General Partner to
                  be material;

                              (iii) Maintain complete and accurate records of
                  all business conducted by the Partnership and complete and
                  accurate books of account (containing such information as
                  shall be necessary to record allocations and distributions),
                  and make such records and books of account available for
                  inspection and audit by any Partner or such Partner's duly
                  authorized representative (at the sole expense of such
                  Partner) during regular business hours and at the principal
                  office of the Partnership; and

                              (iv) Cause to be filed such certificates and do
                  such other acts as may be required by law to qualify and
                  maintain the Partnership as a limited partnership under the
                  laws of the State of Ohio.

                           (c) The General Partner shall take such actions as it
deems necessary to maintain the economic equivalency of Common Partnership Units
and REIT Common Shares and Preferred Partnership Units and REIT Preferred
Shares, respectively, required by this Agreement.

                  Section 6.4  LIABILITIES OF GENERAL PARTNER; INDEMNIFICATION.

                           (a) The General Partner shall not be liable for the
return of all or any part of the Capital Contributions of the Limited Partners.
Any returns shall be made solely from the assets of the Partnership according to
the terms of this Agreement.

                           (b) In carrying out its duties hereunder, the General
Partner shall not be liable to the Partnership or to any other Partner for any
actions taken in good faith and reasonably believed to be in the best interests
of the Partnership, or for errors of judgment, but shall be liable only for
fraud, gross negligence or breach of its fiduciary duties. The Limited Partners
expressly acknowledge that the General Partner is acting on behalf of the
Partnership, the General Partner and the General Partner's shareholders
collectively, and that the General Partner is under no obligation to consider
the separate interests of the Limited Partners (including, without limitation,
the tax consequences to Limited Partners) in deciding whether to cause the
Partnership to take (or decline to take) any actions. In the event of a conflict
between the interests of the shareholders of the General Partner on one hand and
the Limited Partners on the other, the General Partner shall endeavor in good
faith to resolve the conflict in a manner not adverse to either the shareholders
of the General Partner or the Limited Partners; provided, however, that for so
long as the General Partner owns a controlling interest in the Partnership, any
such conflict that cannot be resolved in a manner not adverse to either the
shareholders of the General Partner or the Limited Partners shall be resolved in
favor of the shareholders. The General Partner shall not be liable for monetary
damages for losses sustained, liabilities incurred, or benefits not derived by
Limited Partners in connection with such decisions, provided that the General
Partner has acted in good faith. Any amendment, modification or repeal of this
Section 6.4 or any provision hereof shall be prospective only and shall not in
any way affect the limitations on the General Partner's liability to the
Partnership and the Limited Partners under this Section 6.4 as in effect
immediately prior to such amendment, modification or repeal with respect to
matters occurring, in whole or in part, prior to such amendment, modification or
repeal, regardless of when claims relating to such matters may arise or be
asserted.

                           (c) The Partnership shall indemnify an Indemnitee to
the fullest extent permitted by law, and save and hold it harmless from and
against, and in respect of, all: (i) fees, costs and expenses (including
reasonable attorney fees) incurred in connection with or resulting from any
claim, action or demand against any Indemnitee or the Partnership that arises
out of or in any way relates to the Partnership, (ii) claims, actions and
demands arising out of or in any way related to the Partnership, and any losses
or damages resulting from such claims, actions and demands, including, without
limitation, reasonable costs and expenses of litigation and appeal and amounts
paid in settlement or compromise of


                                      -17-


any such claim, action or demand; provided, however, that this indemnification
shall not apply if: (A) the act or omission of the Indemnitee was material to
the matter giving rise to the proceeding and either was committed in bad faith
or was the result of active and deliberate dishonesty; (B) the Indemnitee
actually received an improper personal benefit in money, property or services;
or (C) in the case of any criminal proceeding, the Indemnitee had reasonable
cause to believe that the act or omission was unlawful. The termination of any
proceeding by judgment, order or settlement does not create a presumption that
the Indemnitee did not meet the requisite standard of conduct set forth in this
Section 6.4(c). The termination of any proceeding by conviction or upon a plea
of nolo contendere or its equivalent, or an entry of an order of probation prior
to judgment, creates a rebuttable presumption that the Indemnitee acted in a
manner contrary to that specified in this Section 6.4(c). Any indemnification
pursuant to this Section 6.4 shall be made only out of the assets of the
Partnership.

                           (d) The Partnership may reimburse an Indemnitee for
reasonable expenses incurred by an Indemnitee who is a party to a proceeding in
advance of the final disposition of the proceeding upon receipt by the
Partnership of (i) a written affirmation by the Indemnitee of the Indemnitee's
good faith belief that the standard of conduct necessary for indemnification by
the Partnership as authorized in this Section 6.4 has been met, and (ii) a
written undertaking by or on behalf of the Indemnitee to repay the amount if it
shall ultimately be determined that the standard of conduct has not been met.

                           (e) The indemnification provided by this Section 6.4
shall be in addition to any other rights to which an Indemnitee or any other
Person may be entitled under any agreement, pursuant to any vote of the
Partners, as a matter of law or otherwise, and shall continue as to an
Indemnitee who has ceased to serve in such capacity.

                           (f) The Partnership may purchase and maintain
insurance on behalf of the Indemnitees, and such other Persons as the General
Partner shall determine, against any liability that may be asserted against or
expenses that may be incurred by such Person in connection with the
Partnership's activities, regardless of whether the Partnership would have the
power to indemnify such Person against such liability under the provisions of
this Agreement.

                           (g) For purposes of this Section 6.4, the Partnership
shall be deemed to have requested an Indemnitee to serve as fiduciary of an
employee benefit plan whenever the performance by the Indemnitee of its duties
to the Partnership also imposes duties on, or otherwise involves services by,
the Indemnitee to the plan or participants or beneficiaries of the plan; excise
taxes assessed on an Indemnitee with respect to an employee benefit plan
pursuant to applicable law shall constitute fines within the meaning of this
Section 6.4; and actions taken or omitted by the Indemnitee with respect to an
employee benefit plan in the performance of its duties for a purpose reasonably
believed by the Indemnitee to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is not
opposed to the best interests of the Partnership.

                           (h) In no event may an Indemnitee subject the Limited
Partners to personal liability by reason of the indemnification provisions set
forth in this Agreement.

                           (i) An Indemnitee shall not be denied indemnification
in whole or in part under this Section 6.4 because the Indemnitee had an
interest in the transaction with respect to which the indemnification applies if
the transaction was otherwise permitted by the terms of this Agreement.

                           (j) The provisions of this Section 6.4 are for the
benefit of the Indemnitees, their heirs, successors, assigns and administrators
and shall not be deemed to create any rights for the benefit of any other
persons.

                           (k) Notwithstanding any other provisions of this
Agreement or the Act, any action of the General Partner on behalf of the
Partnership or any decision of the General Partner to refrain


                                      -18-


from acting on behalf of the Partnership, undertaken in the good faith belief
that such action or omission is necessary or advisable in order (i) to protect
the ability of the General Partner to continue to qualify as a REIT, or (ii) to
prevent the General Partner from incurring any taxes under Section 857 or
Section 4981 of the Code, is expressly authorized under this Agreement and is
deemed approved by all of the Limited Partners. Further, any provision of this
Agreement that might jeopardize the General Partner's REIT status shall be (i)
void and of no effect, or (ii) reformed, as necessary, to avoid the General
Partner's loss of REIT status.

                  Section 6.5 COMPENSATION OF GENERAL PARTNER; REIMBURSEMENT.
The General Partner, as such, shall not receive any compensation for services
rendered to the Partnership. Notwithstanding the preceding sentence, the General
Partner shall be entitled to its allocable share of the profits and
distributable Cash Flow of the Partnership and shall be entitled, in accordance
with the provisions of Section 6.7 below, to pay reasonable compensation to its
Affiliates and other entities in which it may be associated for services
performed. The General Partner shall be reimbursed on a monthly basis, or such
other basis as the General Partner may determine in its sole and absolute
discretion, for all REIT Expenses.

                  Section 6.6 RELIANCE ON ACT OF GENERAL PARTNER. No financial
institution or any other person, firm or corporation dealing with the General
Partner or the Partnership shall be required to ascertain whether the General
Partner is acting in accordance with this Agreement, but such financial
institution or such other person, firm or corporation shall be protected in
relying solely upon the assurance of and the execution of any instrument or
instruments by the General Partner.

                  Section 6.7 OUTSIDE SERVICES; DEALINGS WITH AFFILIATES;
OUTSIDE ACTIVITIES.

                           (a) Notwithstanding any provision of this Article VI
to the contrary, the General Partner may employ such agents, accountants,
attorneys and others as it shall deem advisable, including its directors,
officers, shareholders, and its Affiliates and entities with which the General
Partner, any Limited Partner or their respective Affiliates may be associated,
and may pay them reasonable compensation from Partnership funds for services
performed, which compensation shall be reasonably believed by the General
Partner to be comparable to and competitive with fees charged by unrelated
Persons who render comparable services which could reasonably be made available
to the Partnership. The General Partner shall not be liable for the neglect,
omission or wrongdoing of any such Person so long as it was not grossly
negligent in appointing such Person.

                           (b) The Partnership may lend or contribute to its
Subsidiaries or other Persons in which it has an equity investment Partnership
funds on terms and conditions established in the sole and absolute discretion of
the General Partner. The foregoing authority shall not create any right or
benefit in favor of any Subsidiary or any other Person.

                           (c) The Partnership may transfer assets to joint
ventures, other partnerships, corporations or other business entities in which
it is or thereby becomes a participant upon such terms and subject to such
conditions as are consistent with this Agreement and applicable law.

                           (d) Except as expressly permitted by this Agreement,
neither the General Partner nor any of its Affiliates nor any Limited Partner
shall sell, transfer or convey any property to, or purchase any property from,
the Partnership, directly or indirectly, except pursuant to transactions that
are on terms that are fair and reasonable to the Partnership.

                           (e) Subject to the Articles of Incorporation and any
agreements entered into by the General Partner or its Affiliates with the
Partnership or a Subsidiary, any officer, director, employee, agent, trustee,
Affiliate or shareholder of the General Partner shall be entitled to and may
have business interests and engage in business activities in addition to those
relating to the Partnership, including business interests and activities
substantially similar or identical to those of the Partnership. Neither the


                                      -19-


Partnership nor any of the Limited Partners shall have any rights by virtue of
this Agreement in any business ventures of such person.

                           (f) In the event the General Partner exercises its
rights under its Articles of Incorporation to redeem REIT Common Shares, then
the General Partner shall cause the Partnership to purchase from it a number of
Common Partnership Units determined based on the application of the Conversion
Factor on the same terms as those on which the General Partner redeemed such
REIT Common Shares.

                  Section 6.8 INITIAL LOAN TO THE PARTNERSHIP; ADDITIONAL LOANS
TO THE PARTNERSHIP.

                           (a) Upon its receipt of the proceeds from the closing
of the Offering, the General Partner shall make a loan to the Partnership in
accordance with and on the terms and conditions set forth in the Intercompany
Convertible Note (the "Initial Loan").

                           (b) If additional funds are required by the
Partnership for any purpose relating to the business of the Partnership or for
any of its obligations, expenses, costs, or expenditures, including operating
deficits, the Partnership may borrow such funds as are needed from time to time
from any Person (including, without limitation, the General Partner or any
Affiliate of the General Partner; provided, however, that the terms of any loan
from the General Partner or any Affiliate of the General Partner shall be
substantially equivalent to the terms that could be obtained from a third party
on an arm's-length basis) on such terms as the General Partner and such other
Person may agree.

                  Section 6.9 CONTRIBUTION OF ASSETS. The General Partner shall
contribute to the capital of the Partnership from time to time each asset it
owns from time to time during the existence of the Partnership, but it is not
required to so contribute:

                           (a) its General Partnership Interest in the
Partnership;

                           (b) the Initial Loan;

                           (c) interest on the Initial Loan;

                           (d) its direct or indirect interest in any entity in
a chain of entities of which the General Partner is the sole beneficial owner,
so long as all of the assets or other ownership interests in the entity in that
chain furthest removed from the General Partner are contributed directly or
indirectly to the Partnership; or

                           (e) any equity interest in any entity of which the
General Partner is the sole beneficial owner that is created or used solely by
the General Partner in connection with any borrowing transaction in whole or in
part for the benefit of the Partnership.



                                   ARTICLE VII

              RIGHTS, PROHIBITIONS AND REPRESENTATIONS WITH RESPECT
                               TO LIMITED PARTNERS

                  Section 7.1  RIGHTS OF LIMITED PARTNERS.

                           (a) The Partnership may engage the Limited Partners
or persons or firms associated with them for specific purposes and may otherwise
deal with such Partners on terms and for compensation to be agreed upon by any
such Partner and the Partnership; provided, however, that no


                                      -20-


Limited Partner shall be entitled to participate in the management or control of
the business of the Partnership.

                           (b) Each Limited Partner shall be entitled to have
the Partnership books kept at the principal place of business of the Partnership
and at all times, during reasonable business hours and at such Partner's sole
expense, shall be entitled to inspect and copy any of them and have on demand
true and full information of all things affecting the Partnership and a formal
accounting of Partnership affairs whenever circumstances render it just and
reasonable.

                           (c) No Limited Partner shall be liable for any debts,
liabilities, contracts or obligations of the Partnership. A Limited Partner
shall be liable to the Partnership only to make payments of its Capital
Contribution, if any, as and when due hereunder. After its Capital Contribution
is fully paid, no Limited Partner shall, except as otherwise required by the
Act, be required to make any further Capital Contributions or other payments or
lend any funds to the Partnership.

                  Section 7.2 PROHIBITIONS WITH RESPECT TO THE LIMITED PARTNERS.
No Limited Partner shall have the right:

                           (a) To take part in the control or management of the
Partnership business, to transact business for or on behalf of the Partnership
or to sign for or to bind the Partnership, such powers being vested solely in
the General Partner as set forth herein;

                           (b) To have such Partner's Capital Contributions
repaid except to the extent provided in this Agreement;

                           (c) To require partition of Partnership property or
to compel any sale or appraisement of Partnership assets or sale of a deceased
Partner's interests therein, notwithstanding any provisions of law to the
contrary; or

                           (d) To sell or assign all or any portion of such
Partner's Limited Partnership Interest in the Partnership or to constitute the
vendee or assignee thereunder a Substitute Limited Partner, except as provided
in Article IX hereof.

                  Section 7.3 OWNERSHIP BY LIMITED PARTNER OF CORPORATE GENERAL
PARTNER OR AFFILIATE. No Limited Partner shall at any time, either directly or
indirectly, own any shares or other interest in the General Partner or in any
Affiliate thereof if such ownership by itself or in conjunction with other
shares or other interests owned by other Limited Partners would, in the opinion
of counsel for the Partnership, jeopardize the classification of the Partnership
as a partnership or the General Partner as a REIT for federal income tax
purposes. The General Partner shall be entitled to make such reasonable inquiry
of the Limited Partners as is required to establish compliance by the Limited
Partners with the provisions of this Section 7.3 and the Limited Partners shall
promptly and fully respond to such inquiries.

                  Section 7.4  REDEMPTION RIGHT.

                           (a) Subject to Section 7.4(c), on or after a Limited
Partner's Specified Redemption Date, such Limited Partner, other than the
General Partner, shall have the right (the "Redemption Right") to require the
Partnership to redeem on a Specified Redemption Date all or a portion of the
Common Partnership Units held by such Limited Partner at a redemption price
equal to and in the form of the Cash Amount to be paid by the Partnership. The
Partnership shall have up to one (1) year (the "Payout Period") following
exercise of a Redemption Right to pay the Cash Amount to the Limited Partner who
is exercising the redemption right (the "Redeeming Partner"). From and after the
Specified Redemption Date, the Cash Amount (or portion thereof) due and payable
to a Redeeming Partner with respect to such Redeeming Partner's exercise of its
Redemption Right shall bear interest at the rate equal to the lower of (i) the
General Partner's annual dividend rate on REIT Common Shares for


                                      -21-


the prior twelve (12) month period, and (ii) eight percent (8%) per annum, until
the Cash Amount (or portion thereof) shall be paid in full by the Partnership.
The Redemption Right shall be exercised pursuant to a Notice of Redemption
delivered to the Partnership (with a copy to the General Partner) by the
Redeeming Partner. A Limited Partner may not exercise the Redemption Right for
less than one thousand (1,000) Common Partnership Units or, if such Limited
Partner holds less than one thousand (1,000) Common Partnership Units, all of
the Common Partnership Units held by such Partner. Neither the Redeeming Partner
nor any Assignee of any Limited Partner shall have any right with respect to any
Common Partnership Units so redeemed to receive any distributions paid after the
Specified Redemption Date. The Assignee of any Limited Partner may exercise the
rights of such Limited Partner pursuant to this Section 7.4, and such Limited
Partner shall be deemed to have assigned such rights to such Assignee and shall
be bound by the exercise of such rights by such Limited Partner's Assignee. In
connection with any exercise of such rights by such Assignee on behalf of such
Limited Partner, the Cash Amount shall be paid by the Partnership directly to
such Assignee and not to such Limited Partner. Neither the Redeeming Partner nor
any Assignee of any Limited Partner shall have any right, with respect to any
Common Partnership Units so redeemed, to receive any distributions paid after
the Specified Redemption Date. Each Redeeming Partner agrees to provide such
representations and related indemnities regarding good and unencumbered title,
and to execute such documents, as the General Partner may reasonably require in
connection with any redemption.

                           Notwithstanding anything to the contrary contained in
this Section 7.4(a), 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 that number of Common Partnership Units
such that, if redeemed for only the REIT Common 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 Common Shares; but the limitation set forth in this paragraph
will not apply if either (i) the General Partner receives an opinion from its
counsel that violation of this limitation will not jeopardize the REIT status of
the General Partner or (ii) a transfer or series of related transfers result in
a sale of all or substantially all of the General Partner's or the Partnership's
assets, or result in a sale, merger, reorganization or restructuring, as
described in Sections 9.1(c) and 9.1(d) hereof.

                           (b) Notwithstanding the provisions of Section 7.4(a),
in the event a Limited Partner elects to exercise the Redemption Right, the
General Partner may, in its sole and absolute discretion, elect to assume
directly and satisfy a Redemption Right by paying to the Redeeming Partner
either (i) the Cash Amount, as provided for in Section 7.4(a), or (ii) the REIT
Common Shares Amount, as elected by the General Partner (in its sole and
absolute discretion) on the Specified Redemption Date. On any such election, the
General Partner shall acquire the Common Partnership Units offered for
redemption by the Redeeming Partner and shall be treated for all purposes of
this Agreement as the owner of such Common Partnership Units. Unless the General
Partner (in its sole and absolute discretion) shall exercise its right to assume
directly and satisfy the Redemption Right, the General Partner itself shall have
no obligation to the Redeeming Partner or to the Partnership with respect to the
Redeeming Partner's exercise of the Redemption Right. In the event the General
Partner shall exercise its right to satisfy the Redemption Right in the manner
described in the first sentence of this Section 7.4(b), the Partnership shall
have no obligation to pay any amount to the Redeeming Partner with respect to
such Redeeming Partner's exercise of the Redemption Right, and each of the
Redeeming Partner, the Partnership, and the General Partner shall treat the
transaction between the General Partner and the Redeeming Partner for federal
income tax purposes as a sale of the Redeeming Partner's Common Partnership
Units to the General Partner. Each Redeeming Partner agrees to provide such
representations and related indemnities regarding good title, and to execute
such documents, as the General Partner may reasonably require in connection with
the issuance of REIT Common Shares upon exercise of the Redemption Right. If the
Redemption Right is satisfied by the delivery of REIT Common Shares, the
Redeeming Partner shall be deemed to become a holder of REIT Common Shares as of
the close of business on the Specified Redemption Date.


                                      -22-


                           Notwithstanding anything to the contrary in Section
7.1(a) or this Section 7.4(b), should the General Partner elect to satisfy a
Redemption Right by paying the Redeeming Partner the REIT Common Shares Amount,
and it is necessary to obtain shareholder approval in order for it to issue
sufficient REIT Common Shares to satisfy 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
Common Shares Amount, and the redemption Date shall be required to occur by the
earliest of: (i) ten days after shareholder approval of the issuance of the REIT
Common Shares has been obtained, if it is obtained; (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 Common Partnership Units are
presented for redemption. If such shareholder approval is not obtained, the
General Partner or the Partnership shall pay to the Redeeming Partner the Cash
Amount no later than the end of what the Payout Period would have been had the
General Partner not elected to pay the REIT Common Share Amount upon the
redemption, together with interest on such Cash Amount as specified in Section
7.4(a) hereof.

                           (c) Notwithstanding the provisions of Section 7.4(a)
and Section 7.4(b), a Limited Partner shall not be entitled to receive REIT
Common Shares if the delivery of REIT Common Shares to such Partner on the
Specified Redemption Date by the General Partner pursuant to Section 7.4(b)
would be prohibited under the Articles of Incorporation of the General Partner.
Without limiting the effect of the preceding sentence, no Person shall be
permitted to receive REIT Common Shares if as a result of, and after giving
effect to, such exercise any Person would Beneficially Own (as defined in the
Articles of Incorporation of the General Partner) more than 9.9% of the total
number of issued and outstanding REIT Common Shares. The Cash Amount shall be
paid in such instances, in accordance with the terms set forth in Section
7.4(a).

                           (d) Each Limited Partner covenants and agrees with
the General Partner that all Common Partnership Units delivered for redemption
shall be delivered to the Partnership or the General Partner, as the case may
be, free and clear of all liens and, notwithstanding anything herein contained
to the contrary, neither the General Partner nor the Partnership shall be under
any obligation to acquire Common Partnership Units which are or may be subject
to any liens. Each Limited Partner further agrees that, in the event any state
or local property transfer tax is payable as a result of the transfer of its
Common Partnership Units to the Partnership or the General Partner, such Limited
Partner shall assume and pay such transfer tax.

                  Section 7.5 WARRANTIES AND REPRESENTATIONS OF THE LIMITED
PARTNERS. Each Limited Partner hereby warrants and represents to and for the
benefit of the General Partner and the Partnership that, as of November 4, 1996,
such Limited Partner owned good, valid and marketable title to the ownership
interests in the Contributed Partnerships being contributed to the capital of
the Partnership by such Limited Partner (the "Ownership Interests") and that
such Ownership Interests were free and clear of all mortgages, pledges, liens,
security interests, encumbrances and restrictions of any nature whatsoever. Each
Limited Partner further warrants and represents to and for the benefit of the
General Partner and the Partnership that such Limited Partner had all necessary
power and authority to transfer the Ownership Interests to the Partnership
without the consent or authorization of, or notice to, any third party, except
those third parties from whom such consents or authorizations were obtained.

                  Section 7.6 INDEMNIFICATION BY LIMITED PARTNERS. Each Limited
Partner hereby agrees to indemnify the General Partner and the Partnership and
hold the General Partner, its officers and directors and the Partnership and its
partners and each of their respective representatives, successors and assigns
harmless from and against any and all claims, demands, losses, liabilities,
damages and expenses (including reasonable attorneys' fees) arising out of or in
connection with (i) the inaccuracy of the warranties and representations made by
such Limited Partner under Section 7.5 above, or (ii) the ownership of the
Ownership Interests by such Limited Partner and any activities, obligations or
liabilities of the Contributed Partnership to which such Ownership Interest
relates for all periods prior to the date of this Agreement.


                                      -23-


                  Section 7.7 NOTICE OF SALE OR REFINANCING. The General Partner
shall notify the Limited Partners no less than thirty (30) days prior to any
sale, refinancing, reduction (other than scheduled periodic amortization of
principal) of debt or other event that will reduce the amount of any nonrecourse
liabilities of the Partnership that a Limited Partner may include in the tax
basis of his or its Partnership Interests.

                  Section 7.8  BASIS ANALYSIS AND LIMITED PARTNER GUARANTEES.

                           (a) Upon the request of any Limited Partner but
subject to the General Partner's agreement, which may be withheld in the General
Partner's sole discretion, the General Partner may, prior to the end of each
calendar year, beginning in 1997, cause accountants to prepare and provide to
the Limited Partners a study analyzing each refinancing, reduction (other than
scheduled periodic amortization of principal) of debt or other event that
occurred during that year that reduced the amount of any nonrecourse liabilities
of the Partnership that a Limited Partner may include in the tax basis of their
Partnership Interests.

                           (b) Upon the request of the General Partner, or upon
its own election, a Limited Partner (the "Initiating Limited Partner") from time
to time, may, but shall not be required to, guarantee or otherwise provide
credit support for Partnership indebtedness as such Limited Partner may elect;
provided, however, that the Limited Partner shall be entitled to take such
action only if the General Partner determines that any such action would not
have a material adverse effect on the tax position of the General Partner. All
Partners are entitled to notice of any such guarantee or credit support, and
shall have the right to provide guarantees or credit support on the same terms
and conditions as the Initiating Limited Partner does, and all Limited Partners
interested in providing such guarantee or credit support shall cooperate with
the General Partner and each other in considering any guarantee or credit
support proposal, and the General Partner will cooperate in permitting or
obtaining any consents for such guarantees or credit support.


                                  ARTICLE VIII

                     DISTRIBUTIONS AND PAYMENTS TO PARTNERS

                  Section 8.1  DISTRIBUTIONS OF CASH FLOW.

                           (a) The General Partner shall distribute on a
quarterly basis such portion of the Cash Flow of the Partnership as the General
Partner shall determine in its sole discretion. Except as provided in Section
10.4, all such distributions of Cash Flow shall be made to Partners who are
Partners on the Partnership Record Date (i) first, to the Partners holding
Preferred Partnership Interests on such Partnership Record Date to the extent of
any accrued but unpaid Preferred Return, and (ii) next, to the Partners holding
Common Partnership Interests on such Partnership Record Date in accordance with
such Partners' respective Common Percentage Interests on such Partnership Record
Date.

                           (b) In no event may a Partner receive a distribution
of Cash Flow with respect to a Partnership Unit if such Partner is entitled to
receive a dividend out of the General Partner's share of such Cash Flow with
respect to a REIT Share for which all or part of such Partnership Unit has been
exchanged.

                  Section 8.2 REIT DISTRIBUTION REQUIREMENTS. Unless the General
Partner determines that such a distribution would not be in the best interests
of the Partnership, the Partnership shall make a distribution of Cash Flow for
each fiscal year of the Partnership to enable the General Partner (i) to meet
its distribution requirement for qualification as a REIT as set forth in Section
857(a)(1) of the Code, and (ii) to avoid the excise tax imposed by Section 4981
of the Code.


                                      -24-


                  Section 8.3 NO RIGHT TO DISTRIBUTIONS IN KIND. No Partner
shall be entitled to demand property other than cash in connection with any
distribution by the Partnership.

                  Section 8.4 DISPOSITION PROCEEDS. Disposition Proceeds (less
reasonable reserves set aside by the General Partner for reasonably anticipated
expenses or needs of the Partnership) shall be distributed (i) first, to the
holders of Preferred Partnership Interests, (a) in an amount of money, or (b) in
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment on such Preferred
Partnership Interests, money in an amount, or (c) in a combination thereof, in
any case, in an amount sufficient, without consideration of any reinvestment of
such principal and interest, in the opinion of a nationally recognized firm of
independent public accounts expressed in a written certification thereof
delivered to the General Partner, to pay and discharge, all amounts that are or
may become due and payable with respect to the Preferred Partnership Interests,
and (2) next, to the holders of Common Partnership Interests, all remaining
Disposition Proceeds (less such reserves) in accordance with their respective
Common Percentage Interests in the Partnership.

                  Section 8.5 WITHDRAWALS. No Partner shall be entitled to make
withdrawals from its Capital Account except as provided herein.









                                   ARTICLE IX

                             TRANSFERS OF INTERESTS

                  Section 9.1  GENERAL PARTNER.

                           (a) The General Partner may not transfer any of its
General Partnership Interest or Limited Partnership interests or withdraw as
General Partner except as provided in Section 9.1(c) or in connection with a
transaction described in Section 9.1(d).

                           (b) The General Partner agrees that it will at all
times own at least twenty percent (20%) of the Common Partnership Interests in
the form of a General Partnership Interest.

                           (c) Except as otherwise provided in Section 6.7 or
Section 9.1(d), the General Partner shall not engage in any merger,
consolidation or other combination with or into another Person or in any sale of
all or substantially all of its assets, or any reclassification, or
recapitalization or change of outstanding REIT Common Shares (other than a
change in par value, or from par value to no par value, or as a result of a
subdivision or combination as described in the definition of "Conversion
Factor") (each of the foregoing being herein referred to as a "Transaction"),
unless the Transaction also includes a merger of the Partnership or sale of
substantially all of the assets of the Partnership or other transaction as a
result of which all Limited Partners will receive for each Common Partnership
Unit an amount of cash, securities, or other property equal to the product of
the Conversion Factor and the greatest amount of cash, securities or other
property paid to a holder of one REIT Common Share in consideration of one REIT
Common Share as a result of the Transaction; provided, however, that if, in
connection with the Transaction, a purchase, tender or exchange offer shall have
been made to and accepted by the holders of more than fifty percent (50%) of the
outstanding REIT Common Shares, the holders of Common Partnership Units shall
receive the greatest amount of cash, securities, or other property which a
Limited


                                      -25-


Partner would have received had it exercised the Redemption Right and the
Company had exercised its election to satisfy the Redemption Right by the
issuance of REIT Common Shares immediately prior to the expiration of such
purchase, tender or exchange offer.

                           (d) Notwithstanding Section 9.1(c), the General
Partner may merge into or consolidate with another entity if immediately after
such merger or consolidation (i) substantially all of the assets of the
successor or surviving entity (the "Surviving General Partner"), other than
Partnership Units held by the General Partner, are contributed to the
Partnership as a Capital Contribution in exchange for Partnership Units with a
fair market value equal to the value of the assets so contributed as determined
by the Surviving General Partner in good faith and (ii) the Surviving General
Partner expressly agrees to assume all obligations of the General Partner
hereunder. Upon such contribution and assumption, the Surviving General Partner
shall have the right and duty to amend this Agreement as set forth in this
Section 9.1(d). The Surviving General Partner shall in good faith arrive at a
new method for the calculation of the Cash Amount and Conversion Factor for a
Common Partnership Unit after any such merger or consolidation so as to
approximate the existing method for such calculation as closely as reasonably
possible. Such calculation shall take into account, among other things, the kind
and amount of securities, cash and other property that was receivable upon such
merger or consolidation by a holder of REIT Shares or options, warrants or other
rights relating thereto, and which a holder of Common Partnership Units could
have acquired had such Common Partnership Units been redeemed immediately prior
to such merger or consolidation. Such amendment to this Agreement shall provide
for adjustment to such method of calculation, which shall be as nearly
equivalent as may be practicable to the adjustments provided for with respect to
the Conversion Factor. The above provisions of this Section 9.1(d) shall
similarly apply to successive mergers or consolidations permitted hereunder.

                  Section 9.2 ADMISSION OF A SUBSTITUTE OR ADDITIONAL GENERAL
PARTNER. A Person shall be admitted as a Substitute or Additional General
Partner of the Partnership only if the transaction giving rise to such
substitution or admission is otherwise permitted under this Agreement and the
following terms and conditions are satisfied:

                           (a) the Person to be admitted as a Substitute or
Additional General Partner shall have accepted and agreed to be bound by all the
terms and provisions of this Agreement by executing a counterpart thereof and
such other documents or instruments as may be required or appropriate in order
to effect the admission of such Person as a General Partner, and a certificate
evidencing the admission of such Person as a General Partner shall have been
filed for recordation and all other actions required by the Act in connection
with such admission shall have been performed;

                           (b) if the Person to be admitted as a Substitute or
Additional General Partner is a corporation or a partnership, it shall have
provided the Partnership with evidence satisfactory to counsel for the
Partnership of such Person's authority to become a General Partner and to be
bound by the terms and provisions of this Agreement; and

                           (c) counsel for the Partnership shall have rendered
an opinion (relying on such opinions from counsel of the state or any other
jurisdiction as may be necessary) that the admission of the Person to be
admitted as a Substitute or Additional General Partner is in conformity with the
Act and that none of the actions taken in connection with the admission of such
Person as a Substitute or Additional General Partner will cause the termination
of the Partnership under Section 708 of the Code, or will cause it to be
classified as other than a partnership for federal income tax purposes, or will
result in the loss of any Limited Partner's limited liability status.

                  Section 9.3 EFFECT OF BANKRUPTCY, WITHDRAWAL, DEATH OR
DISSOLUTION OF A GENERAL PARTNER.

                           (a) Upon the occurrence of an Event of Bankruptcy as
to a General Partner or the withdrawal, removal or dissolution of a General
Partner (except that, if a General Partner is on the date of


                                      -26-


such occurrence a partnership, the withdrawal, death, dissolution, Event of
Bankruptcy as to or removal of a partner in such partnership shall be deemed not
to be a dissolution of such General Partner if the business of such General
Partner is continued within ninety (90) days by the remaining general partners
or all remaining members of such partnership), the Partnership shall be
dissolved and terminated unless the Partnership is continued pursuant to Section
9.3(b).

                           (b) Following the occurrence of an Event of
Bankruptcy as to a General Partner or the withdrawal, removal or dissolution of
a General Partner (except that, if a General Partner is on the date of such
occurrence a partnership, the withdrawal, death, dissolution, Event of
Bankruptcy as to or removal of a partner in such partnership shall be deemed not
be a dissolution of such General Partner if the business of such General Partner
is continued within ninety (90) days by all remaining general partners or all
remaining members of such partnership), persons holding at least a majority of
the Limited Partnership interests, within ninety (90) days after such
occurrence, may elect to continue the business of the Partnership for the
balance of the term specified in Section 3.2 by selecting, subject to Section
9.2 and any other applicable provisions of this Agreement, a Substitute General
Partner by majority consent of the Limited Partners. If the Limited Partners
elect to reconstitute the Partnership and admit a Substitute General Partner,
the relationship between the Partners and any Person who has acquired an
interest of a Partner in the Partnership shall be governed by this Agreement.

                  Section 9.4  REMOVAL OF A GENERAL PARTNER.

                           (a) Upon the occurrence of an Event of Bankruptcy as
to, or the dissolution of, a General Partner, such General Partner shall be
deemed to be removed automatically; provided, however, that if a General Partner
is on the date of such occurrence a partnership, the withdrawal, death,
dissolution, Event of Bankruptcy as to or removal of a partner in such
partnership shall be deemed not to be a dissolution of the General Partner if
the business of such General Partner is continued within ninety (90) days by the
remaining general partners or all remaining members of such Partnership.

                           (b) If a General Partner has been removed pursuant to
this Section 9.4 and the Partnership is not continued pursuant to Section
9.3(b), the partnership shall be dissolved.

                  Section 9.5 RESTRICTIONS ON TRANSFER OF LIMITED PARTNERSHIP
INTERESTS.

                           (a) Except as otherwise provided in this Article IX,
no Limited Partner may offer, sell, assign, hypothecate, pledge or otherwise
transfer its Limited Partnership Interest, in whole or in part, whether
voluntarily or by operation of law or at judicial sale or otherwise
(collectively, a "Transfer"), without the written consent of the General
Partner, which consent may be withheld in the sole and absolute discretion of
the General Partner. The General Partner may require, as a condition of any
Transfer, that the transferor assume all costs incurred by the Partnership in
connection therewith.

                           (b) No Limited Partner may effect a Transfer of its
Limited Partnership Interest if, in the opinion of legal counsel for the
Partnership, such proposed Transfer would require the registration of the
Limited Partnership Interest under the Securities Act of 1933, as amended, or
would otherwise violate any applicable federal or state securities or "Blue Sky"
law (including investment suitability standards).

                           (c) No Transfer by a Limited Partner of its
Partnership Units may be made to any Person if (i) in the opinion of legal
counsel for the Partnership, the Transfer would result in the Partnership's
being treated as an association taxable as a corporation (other than a qualified
REIT subsidiary within the meaning of Section 856(i) of the Code), (ii) such
transfer is effectuated through an "established securities market" or a
"secondary market" (or the substantial equivalent thereof) within the meaning of
Section 7704 of the Code, or (iii) the Transfer would create a risk that the
General Partner would not be taxed as a REIT for federal income tax purposes.


                                      -27-


                           (d) Section 9.5(a) shall not prevent any donative
Transfer by an individual Limited Partner to his immediate family members or any
trust in which the individual or his immediate family members own, collectively,
one hundred percent (100%) of the beneficial interests, provided that the
transferor assumes all costs of the Partnership in connection therewith and any
such transferee shall not have the rights of a Substitute Limited Partner
(unless and until admitted as a Substitute Limited Partner pursuant to this
Section 9.5 and Section 9.6 of this Agreement).

                           (e) Any Transfer in contravention of any of the
provisions of this Article IX shall be void and ineffectual and shall not be
binding upon, or recognized by, the Partnership.

                  Section 9.6  ADMISSION OF SUBSTITUTE LIMITED PARTNER.

                           (a) Subject to the other provisions of this Article
IX (including, without limitation, the provisions of Section 9.5(a) regarding
consent of the General Partner), an assignee of the Limited Partnership Interest
of a Limited Partner (including, without limitation, any purchaser, transferee,
donee, or other recipient of any disposition of such Limited Partnership
Interest) shall be deemed admitted as a Limited Partner of the Partnership only
upon the satisfactory completion of the following:

                              (i) the assignee shall have accepted and agreed to
                  be bound by the terms and provisions of this Agreement by
                  executing a counterpart or an amendment thereof, including a
                  revised Exhibit A, and such other documents or instruments as
                  the General Partner may require in order to effect the
                  admission of such Person as a Limited Partner;

                             (ii) to the extent required, an amended certificate
         of limited partnership evidencing the admission of such Person as a
         Limited Partner shall have been signed, acknowledged and filed for
         record in accordance with the Act;

                            (iii) the assignee shall have delivered a letter
         containing the representation and warranty set forth in Section 9.12
         and the agreement set forth in Section 9.12;

                             (iv) if the assignee is a corporation, partnership
         or trust, the assignee shall have provided the General Partner with
         evidence satisfactory to counsel for the Partnership of the assignee's
         authority to become a Limited Partner under the terms and provisions of
         this Agreement;

                             (v) the assignee shall have executed a power of
         attorney containing the terms and provisions set forth in Article XII;
         and

                             (vi) the assignee shall have paid all reasonable
                  legal fees of the Partnership and the General Partner and all
                  filing and publication costs incurred in connection with its
                  substitution as a Limited Partner.

                           (b) For the purpose of allocating profits and losses
and distributing cash received by the Partnership, a Substitute Limited Partner
shall be treated as having become, and appearing in the records of the
Partnership as, a Partner upon the filing of the certificate described in
Section 9.6(a)(ii) or, if no such filing is required, the later of the date
specified in the transfer documents, or the date on which the General Partner
has received all necessary instruments of transfer and substitution.

                           (c) The General Partner shall as promptly as
practicable take all action required to effectuate the admission of the Person
seeking to become a Substitute Limited Partner, including preparing the
documentation required by this Section and making all official filings and
publications.

                  Section 9.7  RIGHTS OF ASSIGNEES OF PARTNERSHIP INTERESTS.


                                      -28-


                           (a) Subject to the provisions of Sections 9.5 and 9.6
hereof, except as required by operation of law, the Partnership shall not be
obligated for any purposes whatsoever to recognize the assignment by any Limited
Partner of his Partnership Interest until the Partnership has received notice
thereof.

                           (b) Any Person who is the assignee of all or any
portion of a Limited Partner's Limited Partnership Interest, but does not become
a Substitute Limited Partner and desires to make a further assignment of such
Limited Partnership Interest, shall be subject to all of the provisions of this
Article IX to the same extent and in the same manner as any Limited Partner
desiring to make an assignment of its Limited Partnership Interest.

                  Section 9.8 EFFECT OF BANKRUPTCY, DEATH, INCOMPETENCE OR
TERMINATION OF A LIMITED PARTNER. The occurrence of an Event of Bankruptcy as to
a Limited Partner, the death of a Limited Partner or a final adjudication that a
Limited Partner is incompetent (which term shall include, but not be limited to,
insanity) shall not cause the termination or dissolution of the Partnership, and
the business of the Partnership shall continue. If an order for relief in a
bankruptcy proceeding is entered against an individual Limited Partner, the
trustee or receiver of his estate or, if he dies, his executor, administrator or
trustee, or, if he is finally adjudicated incompetent, his committee, guardian
or conservator, shall have the rights of such Limited Partner for the purpose of
settling or managing his estate property and such power as the bankrupt,
deceased or incompetent Limited Partner possessed to assign all or any part of
his Partnership Interest and to join with the assignee in satisfying conditions
precedent to the admission of the assignee as a Substitute Limited Partner.

                  Section 9.9 JOINT OWNERSHIP OF INTERESTS. A Partnership
Interest may be acquired by two (2) individuals as joint tenants with right of
survivorship (but not as tenants in common), provided that such individuals
either are married or are related and share the same home as tenants in common.
The written consent or vote of both owners of any such jointly held Partnership
Interest shall be required to constitute the action of the owners of such
Partnership Interest; provided, however, that the written consent of only one
(1) joint owner will be required if the Partnership has been provided with
evidence satisfactory to counsel for the Partnership that the actions of a
single joint owner can bind both owners under the applicable laws of the state
of residence of such joint owners. Upon the death of one (1) owner of a
Partnership Interest held in a joint tenancy with a right of survivorship, the
Partnership Interest shall become owned solely by the survivor as a Limited
Partner and not as an assignee. The Partnership need not recognize the death of
one (1) of the owners of a jointly held Partnership Interest until it shall have
received notice of such death. Upon notice to the General Partner from either
owner, the General Partner shall cause the Partnership Interest to be divided
into two (2) equal Partnership Interests, which shall thereafter be owned
separately by each of the former owners.

                  Section 9.10 TRANSFEREES. Any Partnership Interests owned by
the Partners and transferred pursuant to this Article IX shall be and remain
subject to all of the provisions of this Agreement.

                  Section 9.11 ABSOLUTE RESTRICTION. Notwithstanding any
provision of this Agreement to the contrary, the sale or exchange of any
interest in the Partnership will not be permitted if the interest sought to be
sold or exchanged, when added to the total of all other interests sold or
exchanged within the period of twelve (12) consecutive months ending with the
proposed date of the sale or exchange, would result in the termination of the
Partnership under Section 708 of the Code, if such termination would materially
and adversely affect the Partnership or any Partner.

                  Section 9.12 INVESTMENT REPRESENTATION. Each Limited Partner
hereby represents and warrants to the General Partner and to the Partnership
that the acquisition of his Partnership Interest is made as a principal for his
account for investment purposes only and not with a view to the resale or
distribution of such Partnership Interest. Each Limited Partner agrees that he
will not sell, assign or otherwise transfer his Partnership Interest or any
fraction thereof, whether voluntarily or by operation of


                                      -29-


law or at judicial sale or otherwise, to any Person who does not similarly
represent and warrant and similarly agree not to sell, assign or transfer such
Partnership Interest or fraction thereof to any Person who does not similarly
represent, warrant and agree.


                                    ARTICLE X

                         TERMINATION OF THE PARTNERSHIP

                  Section 10.1 TERMINATION. The Partnership shall be dissolved
upon (i) an Event of Bankruptcy as to the General Partner or the dissolution or
withdrawal of the General Partner (unless within ninety (90) days thereafter
Limited Partners holding more than fifty percent (50%) of the Limited
Partnership Interests in the Partnership elect to continue the Partnership and
to elect one or more persons to serve as the General Partner or General Partners
of the Partnership), (ii) ninety (90) days following the sale of all or
substantially all of the Partnership's assets (provided that if the Partnership
receives an installment obligation as consideration for such sale or other
disposition, the Partnership shall continue, unless sooner dissolved under the
provisions of this Agreement, until such time as such obligation is paid in
full), (iii) the expiration of the term specified in Section 3.2, (iv) the
redemption of all Limited Partnership Interests (other than any of such
interests held by the General Partner), or (v) the election by the General
Partner (but only in accordance with and as permitted by applicable law) that
the Partnership should be dissolved. Upon dissolution of the Partnership (unless
the business of the Partnership is continued as set forth above), the General
Partner (or its trustee, receiver, successor or legal representative) shall
proceed with the winding up of the Partnership, and its assets shall be applied
and distributed as herein provided.

                  Section 10.2 PAYMENT OF DEBTS. The assets shall first be
applied to the payment of the liabilities of the Partnership (other than any
loans or advances that may have been made by Partners to the Partnership) and
the expenses of liquidation. A reasonable time shall be allowed for the orderly
liquidation of the assets of the Partnership and the discharge of liabilities to
creditors so as to enable the General Partner to minimize any losses resulting
from liquidation.

                  Section 10.3 DEBTS TO PARTNERS. The remaining assets shall
next be applied to the repayment of any loans made by any Partner to the
Partnership.

                  Section 10.4 REMAINING DISTRIBUTION. The remaining assets
shall then be distributed, first to the holders of Preferred Partnership
Interests in accordance with their positive Capital Account balances, and then
to the holders of Common Partnership Interests in accordance with their positive
Capital Account balances, in each case after making the adjustments for
allocations under Article V hereof.

                  Section 10.5 RESERVE. Notwithstanding the provisions of
Sections 10.3 and 10.4, the General Partner may retain such amount as it deems
necessary as a reserve for any contingent liabilities or obligations of the
Partnership, which reserve, after the passage of a reasonable period of time,
shall be distributed pursuant to the provisions of this Article X.

                  Section 10.6 FINAL ACCOUNTING. Each of the Partners shall be
furnished with a statement examined by the Partnership's independent
accountants, which shall set forth the assets and liabilities of the Partnership
as of the date of the complete liquidation. Upon the compliance by the General
Partner with the foregoing distribution plan, the Limited Partners shall cease
to be such, and the General Partner, as the sole remaining Partner of the
Partnership, shall execute and cause to be filed a Certificate of Cancellation
of the Partnership and any and all other documents necessary with respect to
termination and cancellation of the Partnership.



                                      -30-


                                   ARTICLE XI

                                   AMENDMENTS

                  Section 11.1  AUTHORITY TO AMEND.

                           (a) This Agreement may be amended by the General
Partner without the approval of any other Partner if such amendment is solely
for the purpose of clarification and does not change the substance hereof and
the Partnership has obtained an opinion of counsel to that effect.

                           (b) This Agreement may be amended by the General
Partner without the approval of any other Partner if such amendment is for the
purpose of adding or substituting Limited Partners.

                           (c) This Agreement may be amended by the General
Partner without the approval of any other Partner if such amendment is, in the
opinion of counsel for the Partnership, necessary or appropriate to satisfy
requirements of the Code with respect to partnerships or REITs or of any federal
or state securities laws or regulations. Any amendment made pursuant to this
Section 11.1(c) may be made effective as of the date of this Agreement.

                           (d) Notwithstanding any contrary provision of this
Agreement, any amendment to this Agreement or other act which would (i)
adversely affect the limited liabilities of the Limited Partners, (ii) change
the method of allocation of profit and loss as provided in Article V or the
distribution provisions of Articles VIII and X hereof, (iii) seek to impose
personal liability on the Limited Partners, or (iv) affect the operation of the
Conversion Factor of the Redemption Right shall require the consent and approval
of Limited Partners holding more than sixty-six and two-thirds percent (66 2/3%)
of the Common Percentage Interests of the Limited Partners.

                           (e) Except as otherwise specifically provided in this
Section 11.1, amendments to this Agreement shall require the approval of the
General Partner and Limited Partners holding more than fifty percent (50%) of
the Common Percentage Interests of the Limited Partners.

                  Section 11.2 NOTICE OF AMENDMENTS. A copy of any amendment to
be approved by the Partners pursuant to Sections 11.1(d) or 11.1(e) shall be
mailed in advance to such Partners. Partners shall be notified as to the
substance of any amendment pursuant to Sections 11.1(a), (b) or (c), and upon
request shall be furnished a copy thereof.


                                   ARTICLE XII

                                POWER OF ATTORNEY

                  Section 12.1 POWER. Each of the Limited Partners irrevocably
constitutes and appoints the General Partner as such Limited Partner's true and
lawful attorney in such Limited Partner's name, place and stead to make,
execute, swear to, acknowledge, deliver and file:

                           (a) Any certificates or other instruments which may
be required to be filed by the Partnership under the laws of the State of Ohio
or of any other state or jurisdiction in which the General Partner shall deem it
advisable to file;

                           (b) Any documents, certificates or other instruments,
including, but not limited to, any and all amendments and modifications of this
Agreement or of the instruments described in Section 12.1(a) which may be
required or deemed desirable by the General Partner to effectuate the


                                      -31-


provisions of any part of this Agreement and, by way of extension and not in
limitation, to do all such other things as shall be necessary to continue and to
carry on the business of the Partnership; and

                           (c) All documents, certificates or other instruments
which may be required to effectuate the dissolution and termination of the
Partnership, to the extent such dissolution and termination is authorized
hereby. The power of attorney granted hereby shall not constitute a waiver of,
or be used to avoid, the rights of the Partners to approve certain amendments to
this Agreement pursuant to Sections 11.1(d) and 11.1(e) or be used in any other
manner inconsistent with the status of the Partnership as a limited partnership
or inconsistent with the provisions of this Agreement.

                  Section 12.2 SURVIVAL OF POWER. It is expressly intended by
each of the Partners that the foregoing power of attorney is coupled with an
interest, is irrevocable and shall survive the death, incompetence, dissolution,
liquidation or adjudication of insanity or bankruptcy or insolvency of each such
Partner. The foregoing power of attorney shall survive the delivery of an
assignment by any of the Partners of such Partner's entire interest in the
Partnership, except that where an assignee of such entire interest has become a
substitute Limited Partner, then the foregoing power of attorney of the assignor
Partner shall survive the delivery of such assignment for the sole purpose of
enabling the General Partner to execute, acknowledge and file any and all
instruments necessary to effectuate such substitution.




                                  ARTICLE XIII

                    CONSENTS, APPROVALS, VOTING AND MEETINGS

                  Section 13.1 METHOD OF GIVING CONSENT OR APPROVAL. Any consent
or approval required by this Agreement may be given as follows:

                           (a) by a written consent given by the consenting
Partner and received by the General Partner at or prior to the doing of the act
or thing for which the consent is solicited, provided that such consent shall
not have been nullified by:

                              (i) Notice to the General Partner of such
                  nullification by the consenting Partner prior to the doing of
                  any act or thing, the doing of which is not subject to
                  approval at a meeting called pursuant to Section 13.2, or

                             (ii) Notice to the General Partner of such
                  nullification by the consenting Partner prior to the time of
                  any meeting called pursuant to Section 13.2 to consider the
                  doing of such act or thing, or

                            (iii) The negative vote by such consenting Partner
                  at any meeting called pursuant to Section 13.2 to consider the
                  doing of such act or thing;

                           (b) by the affirmative vote by the consenting Partner
for the doing of the act or thing for which the consent is solicited at any
meeting called pursuant to Section 13.2 to consider the doing of such act or
thing; or

                           (c) by the failure of the Partner to respond or
object to a request from the General Partner for such Partner's consent within
thirty (30) days from its receipt of such request (or such shorter period of
time as the General Partner may indicate in such request in order to ensure that
the General Partner has sufficient time to respond, if required, to any third
party with respect to the subject matter of such request).


                                      -32-


                  Section 13.2 MEETINGS OF LIMITED PARTNERS. Any matter
requiring the consent or vote of all or any of the Partners may be considered at
a meeting of the Partners held not less than five (5) nor more than sixty (60)
days after notice thereof shall have been given by the General Partner to all
Partners. Such notice (i) may be given by the General Partner, in its
discretion, at any time, or (ii) shall be given by the General Partner within
fifteen (15) days after receipt from Limited Partners holding more than fifty
percent (50%) of the Percentage Interests of the Limited Partners of a request
for such meeting.

                  Section 13.3 OPINION. Except for Consents obtained pursuant to
Sections 13.1 or 13.2, no Limited Partner shall exercise any consent or voting
rights unless either (a) at the time of the giving of consent or casting of any
vote by the Partners hereunder, counsel for the Partnership or counsel employed
by the Limited Partners shall have delivered to the Partnership an opinion
satisfactory to the Partners to the effect that such conduct (i) is permitted by
the Act, (ii) will not impair the limited liability of the Limited Partners, and
(iii) will not adversely affect the classification of the Partnership as a
partnership for federal income tax purposes, or (b) irrespective of the delivery
or nondelivery of such opinion of counsel, Limited Partners holding more than
seventy-five percent (75%) of the Percentage Interests of the Limited Partners
determine to exercise their consent or voting rights.

                  Section 13.4 SUBMISSIONS TO PARTNERS. The General Partner
shall give the Partners notice of any proposal or other matter required by any
provision of this Agreement, or by law, to be submitted for consideration and
approval of the Partners. Such notice shall include any information required by
the relevant provision or by law.

                                   ARTICLE XIV

                                  MISCELLANEOUS

                  Section 14.1 GOVERNING LAW. The Partnership and this Agreement
shall be governed by and construed in accordance with the laws of the State of
Ohio.

                  Section 14.2 AGREEMENT FOR FURTHER EXECUTION. At any time or
times upon the request of the General Partner, the Limited Partners hereby agree
to sign, swear to, acknowledge and deliver all further documents and
certificates required by the laws of Ohio, or any other jurisdiction in which
the Partnership does, or proposes to do, business, or which may be reasonable,
necessary, appropriate or desirable to carry out the provisions of this
Agreement or the Act. This Section 14.2 shall not prejudice or affect the rights
of the Limited Partners to approve certain amendments to this Agreement pursuant
to Sections 11.1(d) and 11.1(e).

                  Section 14.3 ENTIRE AGREEMENT. This Agreement and the exhibits
attached hereto contain the entire understanding among the parties and supersede
any prior understandings or agreements among them respecting the within subject
matter. There are no representations, agreements, arrangements or
understandings, oral or written, between or among the parties hereto relating to
the subject matter of this Agreement which are not fully expressed herein.

                  Section 14.4 SEVERABILITY. This Agreement is intended to be
performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules and regulations of the jurisdictions in which
the Partnership does business. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent, be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby, but rather shall be enforced to the greatest extent permitted
by law.

                  Section 14.5 NOTICES. Notices to Partners or to the
Partnership shall be deemed to have been given when personally delivered or
mailed, by prepaid registered or certified mail, addressed as set forth in
Exhibit A attached hereto, unless a notice of change of address has previously
been given in


                                      -33-


writing by the addressee to the addressor, in which case such notice shall be
addressed to the address set forth in such notice of change of address.

                  Section 14.6 TITLES AND CAPTIONS. All titles and captions are
for convenience only, do not form a substantive part of this Agreement, and
shall not restrict or enlarge any substantive provisions of this Agreement.

                  Section 14.7 COUNTERPARTS. This Agreement may be executed in
multiple counterparts, each one of which shall constitute an original executed
copy of this Agreement.

                  Section 14.8 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 persons may require.

                  Section 14.9 SURVIVAL OF RIGHTS. Subject to the provisions
hereof limiting transfers, this Agreement shall be binding upon and inure to the
benefit of the Partners and the Partnership and their respective legal
representatives, successors, transferees and assigns.





                  IN WITNESS WHEREOF, the parties have hereunto set their hands
as of the day and year first above written.

                                   GENERAL PARTNER:

                                   BOYKIN LODGING COMPANY,
                                   an Ohio corporation


                                   By:/s/ ROBERT W. BOYKIN
                                      -----------------------------------
                                       Robert W. Boykin, President




                                      -34-



                                    EXHIBIT A

                                LIST OF PARTNERS

                            AS OF SEPTEMBER 30, 2002



                                                                                Percentage
        Partners                                         Units                   Interest
        --------                                         -----                 ------------

                                                                          
General Partner:
- ---------------

Boykin Lodging Company                                 15,268,902               84.8878%
Terminal Tower, Suite 1500
50 Public Square
Cleveland, Ohio 44113


Limited Partners:
- -----------------

The Boykin Group, Inc.                                    779,941                4.3361%

John E. Boykin                                            124,438                 .6918%

Robert W. Boykin                                          157,114                 .8735%

William J. Boykin, Trustee of the                         150,000                 .8339%
trusts held under Declaration of
William J. Boykin Trust Agreement
No. 3 dated October 14, 1987

R.F. Coffin, Trustee of the Robert F. Coffin               17,201                 .0956%
Revocable Trust under Agreement Dated
as of October 31, 1995

Edward H. Crane, Trustee of the Edward H                   17,201                 .0956%
Crane Revocable Living Trust under Agreement
Dated as of September 11, 1992

Barbara L. Hall, Trustee of the                            10,650                 .0592%
Barbara L. Hall Trust dated December 20, 1995

Raymond P. Heitland                                        10,650                 .0592%

M & P Partners (Martin J. Cleary, Trustee of                2,591                 .0144%
The Martin J. Cleary Revocable Trust Dated
March 4, 1993, Managing Partner)

Paul A. O'Neil                                              1,400                 .0078%








                                                                                    Percentage
        Partners                                            Units                    Interest
        --------                                            -----                  ------------


                                                                               
Albert E. Pawlisch, Trustee of the Albert E                     8,601                 .0478%
Pawlisch Revocable Living Trust under
Agreement Dated March 4, 1992

Dominic A. Visconsi, Trustee of the DAV-JVJ 2,726               2,726                 .0152%
Trust under Agreement Dated January 4, 1993

Anthony W. Weigand, Trustee of the                              8,601                 .0478%
Anthony W. Weigand Revocable Living Trust
under Agreement Dated October 6, 1987

JABO LLC                                                    1,427,142                7.9342%
                                                           ----------                ------
         TOTAL                                             17,987,158                100.00%
                                                           ==========                ======



                                      -2-



                                    EXHIBIT B
                           FEDERAL INCOME TAX MATTERS

                  For purposes of interpreting and implementing Article V of the
Partnership Agreement, the following rules shall apply and shall be treated as
part of the terms of the Partnership Agreement:

                  A.       SPECIAL ALLOCATION PROVISIONS.

                           1.       For purposes of determining the amount of
gain or loss to be allocated pursuant to Article V of the Partnership Agreement,
any basis adjustments permitted pursuant to Section 743 of the Code shall be
disregarded.

                           2.       When Partnership Interests are transferred
during any taxable year, the General Partner intends to allocate Partnership
income, loss, deductions and credits using the closing of the books method.

                           3.       Notwithstanding any other provision of the
Partnership Agreement, to the extent required by law, income, gain, loss and
deduction attributable to property contributed to the Partnership by a Partner
shall be shared among the Partners so as to take into account any variation
between the basis of the property and the fair market value of the property at
the time of contribution in accordance with the requirements of Section 704(c)
of the Code and the applicable regulations thereunder as more fully described in
Part B hereof. Treasury regulations under Section 704(c) of the Code allow
partnerships to use any reasonable method for accounting for Book-Tax
Differences for contributions of property so that a contributing partner
receives the tax benefits and burdens of any built-in gain or loss associated
with contributed property. The Operating Partnership shall account for Book-Tax
Differences using a method specifically approved in the regulations, the
traditional method. An allocation of remaining built-in gain under Section
704(c) will be made when Section 704(c) property is sold.

                           4.       Notwithstanding any other provision of the
Partnership Agreement, in the event the Partnership is entitled to a deduction
for interest imputed under any provision of the Code on any loan or advance from
a Partner (whether such interest is currently deducted, capitalized or
amortized), such deduction shall be allocated solely to such Partner.

                           5.       Notwithstanding any provision of the
Partnership Agreement to the contrary, to the extent any payments in the nature
of fees made to a Partner or reimbursements of expenses to any Partner are
finally determined by the Internal Revenue Service to be distributions to a
Partner for federal income tax purposes, there will be a gross income allocation
to such Partner in the amount of such distribution.

                           6.       (a) Notwithstanding any provision of the
Partnership Agreement to the contrary and subject to the exceptions set forth in
Section 1.704-2(f)(2)-(5) of the Treasury Regulations, if there is a net
decrease in Partnership Minimum Gain during any Partnership fiscal year, each
Partner shall be specially allocated items of Partnership income and gain for
such year (and, if necessary, subsequent years) in an amount equal to such
Partner's share of the net decrease in Partnership Minimum Gain determined in
accordance with Section 1.704-2(g)(2) of the Treasury Regulations. Allocations
pursuant to the previous sentence shall be made in proportion to the respective
amounts required to be allocated to each Partner pursuant thereto. The items to
be so allocated shall be determined in accordance with Section 1.704-2(f) of the
Treasury Regulations. This paragraph 6(a) is intended to comply with the minimum
gain chargeback requirement in such Section of the Regulations and shall be
interpreted consistently therewith. To the extent permitted by such Section of
the Regulations and for purposes of this paragraph 6(a) only, each Partner's
Adjusted Capital Account Balance shall be determined prior to any other
allocations pursuant to Article V of the Partnership Agreement with respect to
such fiscal year and without regard to any net decrease in Partner Minimum Gain
during such fiscal year.



                                    (b) Notwithstanding any provision of the
Partnership Agreement to the contrary, except paragraph 6(a) of this Exhibit and
subject to the exceptions set forth in Section 1.704-2(i)(4) of the Treasury
Regulations, if there is a net decrease in Partner Nonrecourse Debt Minimum Gain
during any Partnership fiscal year, each Partner who has a share of the Partner
Nonrecourse Debt Minimum Gain, determined in accordance with Section
1.704-2(i)(3) of the Treasury Regulations, shall be specially allocated items of
Partnership income and gain for such year (and, if necessary, subsequent years)
in an amount equal to such Partner's share of the net decrease in Partner
Nonrecourse Debt Minimum Gain, determined in accordance with Section
1.704-2(i)(5) of the Treasury Regulations. Allocations pursuant to the previous
sentence shall be made in proportion to the respective amounts required to be
allocated to each Partner pursuant thereto. The items to be so allocated shall
be determined in accordance with Section 1.704-2(i)(4) of the Treasury
Regulations. This paragraph 6(b) is intended to comply with the minimum gain
chargeback requirement in such Section of the Treasury Regulations and shall be
interpreted consistently therewith. Solely for purposes of this paragraph 6(b),
each Partner's Adjusted Capital Account Balance shall be determined prior to any
other allocations pursuant to Article V of the Partnership Agreement with
respect to such fiscal year, other than allocations pursuant to paragraph 6(a)
hereof.

                           7.       Notwithstanding any provision of the
Partnership Agreement to the contrary, in the event any Partners unexpectedly
receive any adjustments, allocations or distributions described in Treasury
Regulation Section 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or
1.704-1(b)(2)(ii)(d)(6), items of Partnership income and gain shall be specially
allocated to such Partners in an amount and manner sufficient to eliminate the
deficits in their Adjusted Capital Account Balances created by such adjustments,
allocations or distributions as quickly as possible.

                           8.       No loss shall be allocated to any Partner to
the extent that such allocation would result in a deficit in its Adjusted
Capital Account Balance while any other Partner continues to have a positive
Adjusted Capital Account Balance; in such event, losses shall first be allocated
to any Partners with positive Adjusted Capital Account Balances, and in
proportion to such balances, to the extent necessary to reduce their positive
Adjusted Capital Account Balances to zero. Any excess shall be allocated to the
General Partner.

                           9.       Any special allocations of items pursuant to
this Part A shall be taken into account in computing subsequent allocations so
that the net amount of any items so allocated and the profits, losses and all
other items allocated to each such Partner pursuant to Article V of the
Partnership Agreement shall, to the extent possible, be equal to the net amount
that would have been allocated to each such Partner pursuant to the provisions
of Article V of the Partnership Agreement if such special allocations had not
occurred.

                           10.      Notwithstanding any provision of the
Partnership Agreement to the contrary, Nonrecourse Deductions for any fiscal
year or other period shall be specially allocated to the Partners in the manner
and in accordance with the percentages set forth in Section 5.1 of the
Partnership Agreement.

                           11.      Notwithstanding any provision of the
Partnership Agreement to the contrary, any Partner Nonrecourse Deduction for any
fiscal year or other period shall be specially allocated to the Partner who
bears the economic risk of loss with respect to the Partner Nonrecourse Debt to
which such Partner Nonrecourse Deductions are attributable in accordance with
Section 1.704-2(i) of the Treasury Regulations.

                  B.       CAPITAL ACCOUNT ADJUSTMENTS AND 704(c) TAX
ALLOCATIONS.

                           1.       For purposes of computing the amount of any
item of income, gain, deduction or loss to be reflected in the Partners' capital
accounts, the determination, recognition and


                                      -2-


classification of any such item shall be the same as its determination,
recognition and classification for federal income tax purposes; provided,
however, that:

                                    (a) Any income, gain or loss attributable to
         the taxable disposition of any property shall be determined by the
         Partnership as if the adjusted basis of such property as of such date
         of disposition was equal in amount to (i) the Agreed Value in the case
         of the Initial Hotels or other contributed properties, or (ii) the
         Carrying Value with respect to property subsequently purchased.

                                    (b) The computation of all items of income,
         gain, loss and deduction shall be made by the Partnership and, as to
         those items described in Section 705(a)(1)(B) or Section 705(a)(2)(B)
         of the Code, without regard to the fact that such items are not
         includable in gross income or are neither currently deductible nor
         capitalizable for federal income tax purposes.

                           2.       A transferee of a Partnership interest will
succeed to the capital account relating to the Partnership interest transferred;
provided, however, that if the transfer causes a termination of the Partnership
under Section 708(b)(1)(B) of the Code, the Partnership properties shall be
deemed to have been distributed in liquidation of the Partnership to the
Partners (including the transferee of a Partnership interest) and recontributed
by such Partners and transferees in reconstitution of the Partnership. The
capital accounts of such reconstituted Partnership shall be maintained in
accordance with the principles set forth herein.

                           3.       Upon an issuance of additional Partnership
interests for cash, the capital accounts of all Partners (and the Agreed Values
of all Partnership properties) shall, immediately prior to such issuance, be
adjusted (consistent with the provisions hereof) upward or downward to reflect
any unrealized gain or unrealized loss attributable to each Partnership property
(as if such unrealized gain or unrealized loss had been recognized upon an
actual sale of such property at the fair market value thereof, immediately prior
to such issuance, and had been allocated to the Partners, at such time, pursuant
to Article V of the Partnership Agreement). In determining such unrealized gain
or unrealized loss attributable to the properties, the fair market value of
Partnership properties shall be determined by the General Partner using such
reasonable methods of valuation as it may adopt.

                           4.       Immediately prior to the distribution of any
Partnership property in liquidation of the Partnership, the capital accounts of
all Partners shall be adjusted (consistent with the provisions hereof and
Section 704 of the Code) upward or downward to reflect any unrealized gain or
unrealized loss attributable to the Partnership property (as if such unrealized
gain or unrealized loss had been recognized upon an actual sale of each such
property, immediately prior to such distribution, and had been allocated to the
Partners, at such time, pursuant to Article V of the Partnership Agreement). In
determining such unrealized gain or unrealized loss attributable to property,
the fair market value of Partnership property shall be determined by the General
Partner using such reasonable methods of valuation as it may adopt.

                           5.       In accordance with Section 704(c) of the
Code and the regulations thereunder, income, gain, loss and deduction with
respect to any property shall, solely for tax purposes, and not for capital
account purposes, be allocated among the Partners so as to take account of any
variation between the adjusted basis of such property to the Partnership for
federal income tax purposes.

                           6.       In the event the Agreed Value of any
Partnership asset is adjusted as described in paragraph 3 above, subsequent
allocations of income, gain, loss and deduction with respect to such asset shall
take account of any variation between the adjusted basis of such asset for
federal income tax purposes and its Agreed Value in the same manner as under
Section 704(c) of the Code and the regulations thereunder.


                                      -3-


                           7.       Any elections or other decisions relating to
such allocations shall be made by the General Partner in any manner that
reasonably reflects the purpose and intention of this Agreement.

                  C.       DEFINITIONS. For the purposes of this Exhibit, the
following terms shall have the meanings indicated unless the context clearly
indicates otherwise:

                            "ADJUSTED CAPITAL ACCOUNT BALANCE": means the
balance in the capital account of a Partner as of the end of the relevant fiscal
year of the Partnership, after giving effect to the following: (i) credit to
such capital account any amounts the Partner is obligated to restore, pursuant
to the terms of this Agreement or otherwise, or is deemed obligated to restore
pursuant to the penultimate sentences of Sections 1.704-2(g)(1) and
1.704-2(i)(5) of the Treasury Regulations, and (ii) debit to such capital
account the items described in Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6) of
the Regulations.

                            "AGREED VALUE": means the net fair market value of
Contributed Property as agreed to by the Contributing Partner and the
Partnership (or other property subsequently adjusted to reflect contributions),
using such reasonable method of valuation as they may adopt.

                            "CARRYING VALUE": means the adjusted basis of such
property for federal income tax purposes as of the time of determination.

                            "NONRECOURSE DEDUCTIONS": shall have the meaning set
forth in Section 1.704-2(b)(1) of the Treasury Regulations. The amount of
Nonrecourse Deductions for a Partnership fiscal year equals the excess, if any,
of the net increase, if any, in the amount of Partnership Minimum Gain during
that fiscal year over the aggregate amount of any distributions during that
fiscal year of proceeds of a Nonrecourse Liability, that are allocable to an
increase in Partnership Minimum Gain, determined according to the provisions of
Section 1.704-2(c) of the Treasury Regulations.

                            "NONRECOURSE LIABILITY": shall have the meaning set
forth in Section 1.704-2(b)(3) of the Treasury Regulations.

                            "PARTNER NONRECOURSE DEBT MINIMUM GAIN": means an
amount, with respect to each Partner Nonrecourse Debt, determined in accordance
with Section 1.704-2(i) of the Treasury Regulations.

                            "PARTNER NONRECOURSE DEBT": shall have the meaning
set forth in Section 1.704-2(b)(4) of the Treasury Regulations.

                            "PARTNER NONRECOURSE DEDUCTIONS": shall have the
meaning set forth in Section 1.704-2(i)(2) of the Treasury Regulations. For any
Partnership taxable year, the amount of Partner Nonrecourse Deductions with
respect to a Partner Nonrecourse Debt equal the net increase during the year, if
any, in the amount of Partner Nonrecourse Debt Minimum Gain reduced (but not
below zero) by proceeds of the liability that are both attributable to the
liability and allocable to an increase in the Partner Nonrecourse Debt Minimum
Gain.

                            "PARTNERSHIP AGREEMENT": shall mean this Amended and
Restated Limited Partnership Agreement of Boykin Hotel Properties, L.P.

                            "PARTNERSHIP MINIMUM GAIN": shall have the meaning
set forth in Sections 1.704-2(b)(2) and 1.704-2(d) of the Treasury Regulations.

         For purposes of this Exhibit, all other capitalized terms will have the
same definition as in the Partnership Agreement.



                                      -4-


                                    EXHIBIT C

                                 INITIAL HOTELS




                                          Number
         Hotel                           of Rooms                                 Location
         -----                           --------                                 --------


                                                                          
Berkeley Marina Marriott                    373                                 Berkeley, CA

Buffalo Marriott                            356                                 Buffalo, NY

Cleveland Airport Marriott                  375                                 Cleveland, OH

Cleveland Marriott East                     403                                 Cleveland, OH

Columbus North Marriott                     300                                 Columbus, OH

Lake Norman Hampton Inn                     117                                 Charlotte, NC

Lake Norman Holiday Inn                     119                                 Charlotte, NC

Melbourne Quality Suites                    208                                 Melbourne, FL

Radisson Inn Sanibel Gateway                157                                 Fort Myers, FL





                                    EXHIBIT D

                     NOTICE OF EXERCISE OF REDEMPTION RIGHT


                  The undersigned hereby irrevocably (i) presents for redemption
_________ Partnership Units (as defined in the Partnership Agreement defined
below) in Boykin Hotel Properties, L.P., in accordance with the terms of the
Agreement of Limited Partnership of Boykin Hotel Properties, L.P. (the
"Partnership Agreement"), and the Redemption Right (as defined in the
Partnership Agreement) referred to therein, (ii) surrenders such Partnership
Units and all right, title and interest therein, and (iii) directs that the Cash
Amount or REIT Shares (both as defined in the Partnership Agreement) deliverable
upon exercise of the Redemption Right be delivered to the address specified
below, and if REIT Shares are to be delivered, such REIT Shares be registered or
placed in the name(s) and at the addresses specified below.


Dated:                                   Name of Limited Partner:
        -------------------
                                         ---------------------------------------


                                         ---------------------------------------
                                         (Signature of Limited Partner)

                                         ---------------------------------------
                                         (Street Address)


                                         ---------------------------------------
                                         (City           State         Zip Code)


IF REIT Shares are to be issued, issue to:

- -----------------------------
(Name)

- -----------------------------
(Social Security or
Identifying Number)






                                    EXHIBIT E

                          INTERCOMPANY CONVERTIBLE NOTE

EX-10.17

                                                                   Exhibit 10.17


                                DEPOSITARY SHARES
EACH REPRESENTING 1/10 OF A SHARE OF 101/2% CLASS A CUMULATIVE PREFERRED SHARES,
     SERIES 2002-A (LIQUIDATION PREFERENCE $250, OR $25 PER DEPOSITARY SHARE

                             UNDERWRITING AGREEMENT
                               STANDARD PROVISIONS

                                                                 October 1, 2002

A.G. EDWARDS & SONS, INC.
One North Jefferson Avenue
St. Louis, Missouri 63103

         The undersigned, Boykin Lodging Company, an Ohio corporation that has
elected to be taxed as a real estate investment trust (the "Company"), hereby
confirms the Company's agreement with you as follows:

         From time to time the Company proposes to enter into one or more
Pricing Agreements (each a "Pricing Agreement") in the form of Annex A hereto,
with such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, to issue and sell
to you (the "Underwriters") and if applicable, to the firms named in the
applicable Pricing Agreement (in such case, such firms and you shall be referred
to as the "Underwriters" and you and any other Underwriters designated by you
shall be referred to as the "Representatives" of the several Underwriters and
shall act on behalf of the Underwriters) certain depositary shares each
representing 1/10 of a share in 10 1/2% Class A Cumulative Preferred Shares,
Series 2002-A, without par value, (the "Depositary Shares"), specified in such
Pricing Agreement (with respect to such Pricing Agreement, the "Designated
Shares").

         The Pricing Agreement, including the provisions incorporated therein by
reference, is herein referred to as the "Underwriting Agreement." Unless
otherwise defined herein, terms defined in the Pricing Agreement are used herein
as therein defined.

         This Underwriting Agreement Standard Provisions shall not be construed
as an obligation of the Company to sell any Depositary Shares or as an
obligation of the Underwriters to purchase any Depositary Shares. The obligation
of the Company to issue and sell any Depositary Shares and the obligation of the
Underwriters to purchase any Depositary Shares shall be evidenced by the Pricing
Agreement with respect to the Designated Shares specified therein. Each Pricing
Agreement shall specify the aggregate number of such Designated Shares, the
initial public offering price of such Designated Shares, the purchase price to
the Underwriters of such Designated Shares, the other Underwriters, if any, and
any Representatives of the Underwriters, and the number of Option Shares (as
defined herein), and shall set forth the date of delivery of such Designated
Shares. The Pricing Agreement shall also specify any additional terms of the
offering to which it pertains. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of facsimile communications or other electronic communications
satisfactory to the parties which produce a record of communications
transmitted.

         1. DESCRIPTION OF DESIGNATED SHARES. The Company proposes to issue and
sell to the Underwriters the number of Designated Shares designated as "Firm
Shares" in any applicable Pricing Agreement (the "Firm Shares"), as provided in
Section 2 of this Agreement. Solely for the purpose of covering over-allotments
in the sale of the Firm Shares, the Company further proposes to grant to the
Underwriters the right to purchase up to the additional number of Designated
Shares designated as "Option Shares" in the Pricing Agreement (the "Option
Shares"), as provided in Section 3 of this Agreement.

         2. PURCHASE, SALE AND DELIVERY OF FIRM SHARES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, pursuant to each Pricing Agreement the
Company will agree to sell to each of the Underwriters, and each of the
Underwriters, severally and not jointly, will agree (a) to purchase from the
Company at the purchase price per share set forth in the Pricing



                                       1


Agreement, the number of Firm Shares set forth opposite the name of the
Underwriter in a schedule to the applicable Pricing Agreement and (b) to
purchase from the Company any additional number of Option Shares which the
Underwriters may become obligated to purchase pursuant to Section 3 hereof.

         The Company will deliver definitive certificates for the Firm Shares at
the office of A.G. Edwards & Sons, Inc., 77 Water Street, New York, New York
("Edwards' Office"), or such other place as you and the Company may mutually
agree upon, for the accounts of the Underwriters against payment to the Company
of the purchase price for the Firm Shares sold by it to the several Underwriters
by wire transfer of immediately available funds payable to the order of the
Company as specified in such Pricing Agreement, at 9:00 a.m. St. Louis time on
the date specified in such Pricing Agreement or at such other place and time and
date as the Underwriters and the Company may agree upon in writing, such date
being herein called the "Closing Date."

         The certificates for the Firm Shares so to be delivered will be made
available to you for inspection at Edwards' Office (or such other place as you
and the Company may mutually agree upon) at least one full business day prior to
the Closing Date and will be in such names and denominations as you may request
at least forty-eight hours prior to the Closing Date.

         The Company shall deliver the items required to be delivered by it by
Section 6 of this Agreement at 9:00 a.m. St. Louis time on the Closing Date at
the offices of Bryan Cave LLP, 211 North Broadway, Suite 3600, St. Louis,
Missouri 63102 or at such other place, time and date as the Underwriters and the
Company may agree upon in writing.

         Upon the execution of the Pricing Agreement applicable to any
Designated Shares and authorization by the Underwriters of the release of such
Designated Shares it is understood that the Underwriters propose to offer the
Designated Shares to the public upon the terms and conditions set forth in the
Prospectus (hereinafter defined), as amended or supplemented.

         3. PURCHASE, SALE AND DELIVERY OF THE OPTION SHARES. If set forth in
the applicable Pricing Agreement, the Company will grant options to the
Underwriters to purchase from it the Option Shares, respectively, on the same
terms and conditions as the Firm Shares; provided, however, that such options
may be exercised only for the purpose of covering any over-allotments that may
be made by them in the sale of the Firm Shares. No Option Shares shall be sold
or delivered unless the Firm Shares previously have been, or simultaneously are,
sold and delivered.

         The options will be exercisable by the Underwriter, or in the case of
multiple Underwriters, by the several Underwriters by the Representatives, at
any time, and from time to time, before the expiration of 30 days from the date
of the applicable Pricing Agreement (or, if such day shall be a Saturday or
Sunday or a holiday, on the next day thereafter when the New York Stock Exchange
is open for trading), for the purchase of all or part of the Option Shares
covered thereby, by notice given by you to the Company in the manner provided in
Section 11 hereof, setting forth the number of Option Shares as to which you are
exercising the options. The date of delivery of said Option Shares shall be
three business days after such notice unless otherwise agreed to by the parties.
You may terminate the options at any time, as to any unexercised portion
thereof, by giving written notice to the Company to such effect.

         In the case of multiple Underwriters, the Representatives shall make
such allocation of the Option Shares as required to eliminate fractional shares.
Delivery of the Option Shares with respect to which the options shall have been
exercised shall be made to or upon your order at Edwards' Office, or at such
other place as you and the Company may mutually agree upon, against payment by
you of the per share purchase price to the Company by wire transfer of
immediately available funds payable to the order of the Company as specified in
such Pricing Agreement, at 9:00 a.m. St. Louis time on the date of delivery of
the Option Shares or at such other place and time and date as the Underwriters
and the Company may agree upon in writing, such date being herein called the
"Option Closing Date."


                                       2


         The certificates for the Option Shares so to be delivered will be made
available to you for inspection at Edwards' Office at least one full business
day prior to the Option Closing Date and will be in such names and denominations
as you may request at least forty-eight hours prior to the Option Closing Date.

         At 9:00 a.m. on the Option Closing Date, the Company shall provide the
Underwriters such representations, warranties, agreements, opinions, letters,
certificates and covenants required to be delivered with respect to the Option
Shares as are required to be delivered on the Closing Date with respect to the
Firm Shares or as otherwise required to be delivered by Section 6 of this
Agreement at the offices of Bryan Cave LLP, 211 North Broadway, Suite 3600, St.
Louis, Missouri 63102 or at such other place, time and date as the Underwriters
and the Company may agree upon in writing.


         4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. (a) The
Company represents and warrants to and agrees with each Underwriter that (it
being understood that such representations, warranties and agreements shall be
deemed to relate to the Registration Statement and the Prospectus, each as
amended or supplemented to each such date) as of each date of any Pricing
Agreement, as of each date the Company issues and delivers Designated Shares
(including Option Shares) and as of each date the Registration Statement or the
Prospectus is amended or supplemented with respect to offerings of securities
pursuant to this Agreement.

            (i) The Company has prepared, pursuant to and in conformity in all
         material respects with the requirements of the Securities Act 1933, as
         amended (the "1933 Act"), and the rules and regulations thereunder (the
         "1933 Act Rules and Regulations") of the Securities and Exchange
         Commission (the "SEC"), and has filed with the SEC a registration
         statement on Form S-3 (File No. 333-39369) which has been declared
         effective, including a prospectus relating to common shares, warrants,
         preferred shares and depositary shares of the Company, for registration
         of the Depositary Shares under the 1933 Act and the offering thereof
         from time to time in accordance with Rule 415 of the 1933 Act Rules and
         Regulations. The Company and the offering of the Depositary Shares in
         the registration statement meet the requirements for use of Form S-3
         under the 1933 Act. Such registration statement (and any further
         registration statements which may be filed by the Company for the
         purpose of registering additional Depositary Shares and in connection
         with which this Agreement is included or incorporated therein by
         reference as an exhibit) including all documents incorporated therein
         by reference, as from time to time amended or supplemented by the
         filing of documents pursuant to the Securities Exchange Act of 1934, as
         amended, the 1933 Act or otherwise, are referred to herein as the
         "Registration Statement." The term "Registration Statement" also means
         the registration statement as amended by a post-effective amendment and
         includes any abbreviated registration statement prepared and filed with
         the SEC in accordance with Rule 462(b) under the 1933 Act (an
         "Abbreviated Registration Statement"). The time at which the
         Registration Statement became effective is referred to herein as the
         "Effective Date." The Company proposes to prepare and file with the SEC
         from time to time, pursuant to Rule 424 under the 1933 Act, supplements
         to the prospectus (each a "Prospectus Supplement") included in the
         Registration Statement that will describe the issuances of Designated
         Shares pursuant to Pricing Agreements, the sale and plan of
         distribution of the Designated Shares and additional information
         concerning the Company and its business. The Company may, from time to
         time, prepare and file with the SEC, pursuant to Rule 430 or 430A under
         the 1933 Act Rules and Regulations, a preliminary Prospectus Supplement
         (each a "Preliminary Prospectus") containing the prospectus included as
         part of the Registration Statement, as supplemented by a preliminary
         Prospectus Supplement, and including the documents incorporated in such
         prospectus by reference, relating to the Depositary Shares. The
         prospectus, including all documents incorporated therein by reference,
         included in the Registration Statement, as supplemented by any
         Preliminary Prospectus or Prospectus Supplement, in the form filed by
         the Company with the SEC is herein called the "Prospectus." For
         purposes of this Agreement, the words "amend," "amendment," "amended,"
         "supplement" or "supplemented" with respect to the Registration
         Statement or the Prospectus shall mean amendments or supplements to the
         Registration Statement or the Prospectus, as the case may be as well as
         documents filed after the date of this Agreement and incorporated by
         reference therein as described above.


                                       3


            (ii) Neither the SEC nor any state or other jurisdiction or other
         regulatory body has issued, and neither is, to the knowledge of the
         Company, threatening to issue, any stop order under the 1933 Act or
         other order suspending the effectiveness of the Registration Statement
         (as amended or supplemented) or preventing or suspending the use of any
         Prospectus Supplement, Preliminary Prospectus or the Prospectus or
         suspending the qualification or registration of the Depositary Shares
         for offering or sale in any jurisdiction nor, to the knowledge of the
         Company, instituted or threatened to institute proceedings for any such
         purpose. The Prospectus and each Prospectus Supplement or Preliminary
         Prospectus, as of the applicable date of issue, and the Registration
         Statement and any amendments thereto as of the applicable effective
         date, contain or will contain, as the case may be, all statements which
         are required to be stated therein by, and in all material respects
         conform or will conform, as the case may be, to the requirements of,
         the 1933 Act and the 1933 Act Rules and Regulations. Neither the
         Registration Statement nor any amendment thereto, as of the applicable
         effective date, contains or will contain, as the case may be, any
         untrue statement of a material fact or omits or will omit to state any
         material fact required to be stated therein or necessary to make the
         statements therein, not misleading, and neither the Prospectus, any
         Prospectus Supplement, nor Preliminary Prospectus, at the applicable
         date of issue, contains or will contain, as the case may be, any untrue
         statement of a material fact or omits or will omit to state any
         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; provided, however, that the Company makes no
         representation or warranty as to information contained in or omitted
         from the Registration Statement, any Preliminary Prospectus, any
         Prospectus Supplement, or the Prospectus, or any such amendment or
         supplement, in reliance upon, and in conformity with, written
         information furnished to the Company relating to the Underwriters by or
         on behalf of the Underwriters expressly for use in the preparation
         thereof (as provided in the Pricing Agreement). There is no contract or
         document required to be described in the Registration Statement or
         Prospectus or to be filed as an exhibit to the Registration Statement
         which is not described or filed as required. The documents incorporated
         by reference in the Prospectus pursuant to Item 12 of Form S-3 under
         the 1933 Act, at the time they were filed with the SEC, complied in all
         material respects with the requirements of the Securities Exchange Act
         of 1934, as amended (the "1934 Act"), and the rules and regulations
         adopted by the SEC thereunder (the "1934 Act Rules and Regulations"),
         except for the untimely filing of two material contract exhibits (the
         Second Amended and Restated Agreement of Limited Partnership of Boykin
         Hotel Properties, L.P. and the Amendment to Second Amended and Restated
         Agreement of Limited Partnership of Boykin Hotel Properties, L.P.)
         which exhibits were filed with the SEC on From 8-K on August 29, 2002
         and which do not adversely affect the Company's eligibility to use of
         Form S-3 for the offering of the Designated Shares. Any future
         documents incorporated by reference so filed, when they are filed, will
         comply in all material respects with the requirements of the 1934 Act
         and the 1934 Act Rules and Regulations; no such incorporated document
         contained or will 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, when read
         together and with the other information in the Prospectus, at the time
         the Registration Statement became effective and at the Closing Date,
         each such incorporated document did not or will not, as the case may
         be, contain 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 not misleading.

            (iii) This Agreement has been and any applicable Pricing Agreement
         shall be duly authorized, executed and delivered by the Company and
         this Agreement constitutes and any Pricing Agreement shall constitute a
         valid and legally binding obligation of the Company enforceable against
         the Company in accordance with its terms, except as enforceability may
         be limited by bankruptcy, insolvency, fraudulent conveyance,
         reorganization, moratorium and other similar laws relating to or
         affecting creditors' rights generally and by general principles of
         equity (the "Exceptions").

            (iv) The Company and its "subsidiaries" (as defined in Section
         4(a)(vii) hereof) have been duly incorporated or organized and are
         validly existing as corporations or organizations in good standing
         under the laws of the states or other jurisdictions in which they are
         incorporated or organized, with full power and authority (corporate and
         other) to own, lease and operate their properties and conduct their
         businesses as described in the Prospectus and, with respect to the
         Company, to execute and deliver, and


                                       4


         perform the Company's obligations under, this Agreement and under any
         applicable Pricing Agreement; the Company and its subsidiaries are duly
         qualified to do business as foreign corporations or organizations in
         good standing in each state or other jurisdiction in which their
         ownership or leasing of property or conduct of business legally
         requires such qualification, except where the failure to be so
         qualified, individually or in the aggregate, would not have a Material
         Adverse Effect. The term "Material Adverse Effect" as used herein means
         any material adverse effect on the financial condition, net worth,
         business, affairs, management, results of operations or cash flow of
         the Company and its subsidiaries, taken as a whole.

            (v) Neither the Company nor any of its subsidiaries has sustained
         since the date of the latest audited financial statements included or
         incorporated by reference in the Prospectus any material loss or
         interference with its business from fire, explosion, flood or other
         calamity, whether or not covered by insurance, or from any labor
         dispute or court or governmental action, order or decree otherwise than
         as set forth in the Prospectus and, since the respective dates as of
         which information is given in the Prospectus, there has not been any
         change in the capital stock or long-term debt of the Company or any of
         its subsidiaries which would give rise to a Material Adverse Effect, or
         any development involving a prospective Material Adverse Effect,
         otherwise than as set forth in the Prospectus.

            (vi) The issuance and sale of the Depositary Shares pursuant to a
         Pricing Agreement and the execution, delivery and performance by the
         Company of this Agreement and the applicable Pricing Agreement, and the
         consummation of the transactions herein or therein contemplated, will
         not conflict with or result in a breach or violation of any of the
         terms or provisions of, or constitute a default under, or result in the
         creation or imposition of any lien, charge or encumbrance upon any
         properties or assets of the Company or any of its subsidiaries under,
         any indenture, mortgage, deed of trust, loan agreement or other
         agreement or instrument to which the Company or any of its subsidiaries
         is a party or by which the Company or any of its subsidiaries is bound
         or to which any of the properties or assets of the Company or any of
         its subsidiaries is subject or violate any statute, rule, regulation or
         other law, or any order or judgment, of any court or governmental
         agency or body having jurisdiction over the Company or any of its
         subsidiaries or any of their properties, except to such extent as,
         individually or in the aggregate, does not have a Material Adverse
         Effect, nor will such action result in any violation of the provisions
         of the Company's articles of incorporation or code of regulations; and
         no consent, approval, authorization, order, registration or
         qualification of or with any such court or governmental agency or body
         is required for the execution, delivery and performance of this
         Agreement and the applicable Pricing Agreement, the issuance and sale
         of the Depositary Shares pursuant to a Pricing Agreement or the
         consummation of the transactions contemplated hereby or thereby, except
         such as have been, or will be prior to an applicable Closing Date,
         obtained under the 1933 Act or as may be required by the New York Stock
         Exchange ("NYSE") and such consents, approvals, authorizations,
         registrations or qualifications as may be required under state
         securities or blue sky laws in connection with the purchase and
         distribution of the Designated Shares by the Underwriters.

            (vii) The Company has duly and validly authorized capital stock as
         set forth in the Prospectus; the Designated Shares, when issued, will
         conform, to the description thereof in the Prospectus and the Preferred
         Shares underlying the Depositary Shares have been, or, when issued and
         paid for in the manner described herein and in the applicable Pricing
         Agreement will be, duly authorized, validly issued, fully paid and
         non-assessable; and the issuance of the Depositary Shares to be
         purchased from the Company hereunder is not subject to registration,
         preemptive or other similar rights, or any restriction upon the voting
         or transfer thereof (except for those rights and restrictions relating
         primarily to the Company's status as a REIT as described in Section
         4(a)(xxiii) hereof, as set forth in the Company's articles of
         incorporation or in the Company's shareholder rights plan) pursuant to
         applicable law or the Company's articles of incorporation, code of
         regulations or other governing documents or any agreement to which the
         Company or any of its subsidiaries is a party or by which any of them
         may be bound. All corporate action required to be taken by the Company
         for the authorization, issuance and sale of the Depositary Shares
         pursuant to a Pricing Agreement will have been duly and validly taken
         prior to the date of the applicable Pricing Agreement. Except as
         disclosed in the Prospectus, there are no outstanding subscriptions,
         rights, warrants,


                                       5


         options, calls, convertible securities, commitments of sale or rights
         related to or entitling any person to purchase or otherwise to acquire
         any shares of, or any security convertible into or exchangeable or
         exercisable for, the capital stock of, or other ownership interest in,
         the Company. The Company has no subsidiaries (collectively,
         "subsidiaries") other than Hunt Valley Leasing, Inc. and those
         identified in Exhibit 21 to the Company's last filed Annual Report on
         Form 10-K ("Exhibit 21"). The Company owns all of the outstanding
         capital stock of or other equity interests in each such subsidiary
         except as set forth in Exhibit 21. Other than the subsidiaries referred
         to above, the Company does not own, directly or indirectly, any
         material shares of stock or any other material equity or long-term debt
         of any other corporation or have any material direct or indirect equity
         interest or ownership of long-term debt in any firm, partnership, joint
         venture, limited liability company, association or other entity, except
         as described in the Prospectus. The outstanding shares of capital stock
         of or other equity interests in the Company's subsidiaries have been
         duly authorized and validly issued, are fully paid and non-assessable
         and, except as set forth in Schedule 4.7 hereto, are owned by the
         Company free and clear of any mortgage, pledge, lien, encumbrance,
         charge or adverse claim and are not the subject of any agreement or
         understanding with any person and were not issued in violation of any
         preemptive or similar rights; and there are no outstanding
         subscriptions, rights, warrants, options, calls, convertible
         securities, commitments of sale or instruments related to or entitling
         any person to purchase or otherwise acquire any shares of, or any
         security convertible into or exchangeable or exercisable for, the
         capital stock of, or other ownership interest in any of the
         subsidiaries. As of June 30, 2002, other than as set forth on Annex D,
         the Company did not have any subsidiaries that constitute "significant
         subsidiaries" as defined in Section 1-02(w) of Regulation S-X.

            (viii) The statements set forth in the Prospectus, as of its date of
         issue, describing the capital stock and the Designated Shares and this
         Agreement and any Pricing Agreement, insofar as they purport to
         describe the provisions of the laws and documents referred to therein,
         are accurate in all material respects, and fairly present the
         information required to be presented.

            (ix) Each of the Company and its subsidiaries is in possession of
         and is operating in compliance with all franchises, grants,
         authorizations, licenses, certificates, permits, easements, consents,
         orders and approvals ("Permits") from all state, federal, foreign and
         other regulatory authorities, and has satisfied the requirements
         imposed by regulatory bodies, administrative agencies or other
         governmental bodies, agencies or officials, that are required for the
         Company and its subsidiaries lawfully to own, lease and operate their
         properties and conduct their businesses as described in the Prospectus,
         and, each of the Company and its subsidiaries is conducting its
         business in compliance with all of the laws, rules and regulations of
         each jurisdiction in which it conducts its business, in each case with
         such exceptions, individually or in the aggregate, as would not have a
         Material Adverse Effect; each of the Company and its subsidiaries has
         filed all notices, reports, documents or other information ("Notices")
         required to be filed under applicable laws, rules and regulations, in
         each case, with such exceptions, individually or in the aggregate, as
         would not have a Material Adverse Effect; and, except as otherwise
         specifically described in the Prospectus, neither the Company nor any
         of its subsidiaries has received any notification from any court or
         governmental body, authority or agency, relating to the revocation or
         modification of any such Permit or, to the effect that any additional
         authorization, approval, order, consent, license, certificate, permit,
         registration or qualification ("Approvals") from such regulatory
         authority is needed to be obtained by any of them, in any case where it
         could be reasonably expected that obtaining such Approvals or the
         failure to obtain such Approvals, individually or in the aggregate,
         would have a Material Adverse Effect.

            (x) Except to such extent as would not have a Material Adverse
         Effect, the Company and its subsidiaries have filed all necessary
         federal, state and foreign income and franchise tax returns and paid
         all taxes shown as due thereon; all such tax returns are complete and
         correct in all material respects; all tax liabilities are adequately
         provided for on the books of the Company and its subsidiaries except to
         such extent as would not have a Material Adverse Effect; the Company
         and its subsidiaries have made all necessary payroll tax payments and
         are current and up-to-date in all material respects; and the Company
         and its subsidiaries have no knowledge of any tax proceeding or action
         pending or threatened against the Company or its subsidiaries which,
         individually or in the aggregate, would have a Material Adverse Effect.


                                       6


            (xi) Except as described in the Prospectus, the Company and its
         subsidiaries own or possess, or can acquire on reasonable terms,
         adequate patents, patent licenses, trademarks, service marks and trade
         names necessary to conduct the business now operated by them, and
         neither the Company nor any of its subsidiaries has received any notice
         of infringement of or conflict with asserted rights of others with
         respect to any patents, patent licenses, trademarks, service marks or
         trade names which, individually or in the aggregate, if the subject of
         an unfavorable decision, ruling or finding, would have a Material
         Adverse Effect.

            (xii) Except in each case such as would not have a Material Adverse
         Effect, or except in each case where such real property is pledged or
         mortgaged to secure borrowings described in the Prospectus, the Company
         and its subsidiaries have good and marketable title in fee simple, or
         have valid ground leases, to all items of real property and good and
         marketable title to all personal property owned by them or disclosed to
         be owned by them in the Prospectus, in each case free and clear of all
         liens, encumbrances, restrictions and defects except such as do not
         materially affect the value of such property or do not interfere with
         the use made and proposed to be made of such property; and any property
         held under lease or sublease by the Company or any of its subsidiaries
         is held under valid, duly authorized, subsisting and enforceable leases
         or subleases with such exceptions as are not material and do not
         interfere with the use made and proposed to be made of such property by
         the Company and its subsidiaries; the Company and its subsidiaries have
         title insurance on all real properties described in the Prospectus as
         having been financed by them pursuant to a mortgage loan in an amount
         at least equal to the aggregate principal amount of each such mortgage
         loan or in an amount at least equal to the aggregate acquisition price
         paid by the Company or its subsidiaries for such properties and the
         cost of construction of the improvements located on such properties;
         and neither the Company nor any of its subsidiaries has any notice or
         knowledge of any material claim of any sort which has been, or may be,
         asserted by anyone adverse to the Company's or any of its subsidiaries
         rights as lessee or sublessee under any lease or sublease described
         above, or affecting or questioning the Company's or any of its
         subsidiaries' rights to the continued possession of the leased or
         subleased premises under any such lease or sublease in conflict with
         the terms thereof. To the knowledge of the Company, no lessee of any
         portion of any of the properties described in the Prospectus is in
         default under its respective lease and there is no event which, but for
         the passage of time or the giving of notice or both, would constitute a
         default under any such lease, except such defaults that would,
         individually or in the aggregate, not have a Material Adverse Effect.

            (xiii) No labor disturbance exists with the employees of the Company
         or any of its subsidiaries or, to the Company's knowledge, is imminent
         which, individually or in the aggregate, would have a Material Adverse
         Effect. None of the employees of the Company or any of its subsidiaries
         is represented by a union and, to the knowledge of the Company and its
         subsidiaries, no union organizing activities are taking place. Neither
         the Company nor any of its subsidiaries has violated any federal, state
         or local law or foreign law relating to discrimination in hiring,
         promotion or pay of employees, nor any applicable wage or hour laws, or
         the rules and regulations thereunder, which might, individually or in
         the aggregate, result in a Material Adverse Effect.

            (xiv) The Company and its subsidiaries are in compliance in all
         material respects with all presently applicable provisions of the
         Employee Retirement Income Security Act of 1974, as amended, including
         the regulations thereunder ("ERISA"); no "reportable event" (as defined
         in ERISA) has occurred with respect to any "pension plan" (as defined
         in ERISA) for which the Company and its subsidiaries would have any
         liability; the Company and its subsidiaries have not incurred and do
         not expect to incur liability under (i) Title IV of ERISA with respect
         to termination of, or withdrawal from, any "pension plan" or (ii)
         Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
         including the regulations thereunder (the "Code") for failure to meet
         minimum funding standards; and to the Company's knowledge, each
         "pension plan" for which the Company or any of its subsidiaries would
         have any liability that is intended to be qualified under Section
         401(a) of the Code is so qualified in all material respects, and, to
         the Company's knowledge, nothing has occurred, whether by action or by
         failure to act, which would cause the loss of such qualification.


                                       7


            (xv) Except as set forth in the Prospectus, the Company and its
         subsidiaries maintain insurance of the types and in the amounts
         generally deemed adequate for its business, including, but not limited
         to, directors' and officers' insurance, insurance covering real and
         personal property owned or leased by the Company and its subsidiaries
         against theft, damage, destruction, acts of vandalism and all other
         risks customarily insured against, all of which insurance is in full
         force and effect. Neither the Company nor any of its subsidiaries has
         been refused any insurance coverage sought or applied for, and the
         Company has no reason to believe that it and its subsidiaries will not
         be able to renew their existing insurance coverage as and when such
         coverage expires or to obtain similar coverage from similar insurers as
         may be necessary to continue its business at a cost that would not have
         a Material Adverse Effect.

            (xvi) Neither the Company nor any of its subsidiaries is, or with
         the giving of notice or lapse of time or both would be, in default or
         violation with respect to its articles of incorporation or by-laws (or
         code of regulations). Neither the Company nor any of its subsidiaries
         is, or with the giving of notice or lapse of time or both would be, in
         default in the performance or observance of any material obligation,
         agreement, covenant or condition contained in any indenture, mortgage,
         deed of trust, loan agreement, lease or other agreement or instrument
         to which the Company or any of its subsidiaries is a party or by which
         the Company or any of its subsidiaries is bound or to which any of the
         properties or assets of the Company or any of its subsidiaries is
         subject, or in violation of any statutes, laws, ordinances or
         governmental rules or regulations or any orders or decrees to which it
         is subject, including, without limitation, Section 13 of the 1934 Act,
         which default or violation, individually or in the aggregate, would
         have a Material Adverse Effect. Neither the Company nor any of its
         subsidiaries has, at any time during the past five years, (A) made any
         unlawful contributions to any candidate for any political office, or
         failed fully to disclose any contribution in violation of law, or (B)
         made any payment to any state, federal or foreign government official,
         or other person charged with similar public or quasi-public duty (other
         than payment required or permitted by applicable law).

            (xvii) Other than as set forth in the Prospectus, there are no legal
         or governmental proceedings pending to which the Company or any of its
         subsidiaries is a party or of which any property of the Company or any
         of its subsidiaries is the subject, or any lessee, sublessee or
         operator of any such property or portion thereof is a party, that, if
         determined adversely to the Company or any of its subsidiaries, would
         individually or in the aggregate have a Material Adverse Effect or
         which would materially and adversely affect the consummation of the
         transactions contemplated hereby or which is required to be disclosed
         in the Prospectus; to the Company's knowledge, no such proceedings are
         threatened or contemplated. Neither the Company nor any of its
         subsidiaries has, nor, to the Company's knowledge, any seller, lessee,
         sublessee or operator of any such properties, or portion thereof or any
         previous owner thereof has, received from any governmental authority
         notice of any material violation of any municipal, state or federal
         law, rule or regulation (including without limitation any such law,
         rule or regulation applicable to the hotel lodging industry) and
         including federal, state or local law or regulation relating to human
         health or safety or the environment or hazardous substances or
         materials concerning such properties that has not been cured to the
         complete satisfaction of applicable regulatory authorities, and neither
         the Company nor any of its subsidiaries knows of any such violation, or
         any factual basis, occurrence or circumstance that would give rise to a
         valid claim under or pursuant to any such laws, rules or regulations
         which would, individually or in the aggregate, have a Material Adverse
         Effect. Except as described in the Prospectus, none of the property
         owned or leased by the Company or any of its subsidiaries is
         contaminated in any material respect with any waste or hazardous
         substances, and neither the Company nor any of its subsidiaries may be
         deemed an "owner or operator" of a "facility" or "vessel" which owns,
         possesses, transports, generates or disposes of a "hazardous substance"
         as those terms are defined in Section 9601 of the Comprehensive
         Environmental Response, Compensation and Liability Act of 1980, 42
         U.S.C. Section 9601 ET SEQ. Neither the Company nor any of its
         subsidiaries, nor, to the Company's knowledge, any seller, lessee,
         sublessee or operator of any such property, or portion thereof, has
         received from any governmental authority any written notice of any
         condemnation of or zoning change that remains outstanding or unresolved
         to the complete satisfaction of any applicable regulatory authorities
         affecting such properties, or any part thereof and the Company does not
         know of any such condemnation or zoning change which is threatened and
         which if consummated would have a Material Adverse Effect. No contract
         or document of a character


                                       8


         required to be described in the Registration Statement, the Prospectus
         or any document incorporated by reference therein or to be filed as an
         exhibit to the Registration Statement or any document incorporated
         therein is not so described, filed or incorporated by reference as
         required.

            (xviii) The Company is not and, after giving effect to the offering
         and sale of the Depositary Shares, will not be an "investment company"
         or an entity "controlled" by an "investment company," as such terms are
         defined in the Investment Company Act of 1940, as amended (the "1940
         Act").

            (xix) The accounting firms which have certified the financial
         statements filed with or incorporated by reference in and as a part of
         the Registration Statement, are (or were at the time) independent
         public accounting firms within the meaning of the 1933 Act and the 1933
         Act Rules and Regulations. The consolidated financial statements and
         schedules of the Company, including the notes thereto, filed with or
         incorporated by reference and as a part of the Registration Statement
         or Prospectus, present fairly in all material respects the financial
         condition of the Company and its subsidiaries as of the respective
         dates thereof and the consolidated results of operations and changes in
         financial position and consolidated statements of cash flow for the
         respective periods covered thereby, all in conformity with generally
         accepted accounting principles applied on a consistent basis throughout
         the periods involved except as otherwise disclosed therein. All
         adjustments necessary for a fair presentation of results for such
         periods have been made. The selected financial data included or
         incorporated by reference in the Registration Statement and Prospectus
         present fairly in all material respects the information shown therein
         and have been compiled on a basis consistent with that of the audited
         financial statements. Any operating or other statistical data included
         or incorporated by reference in the Registration Statement and
         Prospectus comply in all material respects with the 1933 Act and the
         1933 Act Rules and Regulations and present fairly in all material
         respects the information shown therein.

            (xx) No holder of any security of the Company has any right to
         require registration of Depositary Shares or any other security of the
         Company because of the filing of the Registration Statement, the
         execution of a Pricing Agreement, or the consummation of the
         transactions contemplated hereby. No person has the right, contractual
         or otherwise, to cause the Company to permit such person to underwrite
         the sale of any of the Depositary Shares. Except for this Agreement and
         any applicable Pricing Agreement, there are no contracts, agreements or
         understandings between the Company or any of its subsidiaries and any
         person that would give rise to a valid claim against the Company, its
         subsidiaries or any Underwriter for a brokerage commission, finder's
         fee or like payment in connection with the issuance, purchase and sale
         of the Depositary Shares pursuant to a Pricing Agreement.

            (xxi) The Company has not distributed and, prior to the later to
         occur of (i) the Closing Date or the Option Closing Date, if any,
         relating to a particular issuance of Designated Shares and (ii)
         completion of the distribution of the Designated Shares, will not
         distribute, any offering material in connection with the offering and
         sale of the Designated Shares other than the Registration Statement,
         the Prospectus Supplement, Preliminary Prospectus or the Prospectus
         relating to such issuance.

            (xxii) The Company has not taken and will not take, directly or
         indirectly, any action designed to or which might reasonably be
         expected to cause or result in stabilization or manipulation of the
         price of the Company's Depositary Shares, and the Company is not aware
         of any such action taken or to be taken by affiliates of the Company.

            (xxiii) (i) The Company is organized and operates in conformity with
         the requirements for qualification as a real estate investment trust
         ("REIT") under Sections 856 and 857 of the Code, (ii) the Company
         qualified as a REIT for all taxable years prior to 2002, and (iii) the
         Company's method of operation will enable it to meet the requirements
         for taxation as a REIT under the Code for 2002 and all subsequent
         taxable years, and the Company intends to qualify as a REIT for all
         such years. With respect to the Company's qualification as a REIT for
         its taxable years ended December 31, 2000 and December 31, 2001, the
         Company did not meet the requirements of Section 856(c)(2) of the Code
         for such taxable years. Pursuant to Section 856(c)(6) of the Code, the
         Company shall be considered to have satisfied the


                                       9


         requirements of Sections 856(c)(2) for its taxable years 2000 and 2001
         because (A) the nature and amount of each item of its gross income
         described in such Section is set forth in a schedule attached to its
         income tax return for such taxable years; (B) the inclusion of any
         incorrect information in the schedule referred to in (A) was not due to
         fraud with the intent to evade tax; and (C) the failure to meet the
         requirements of Section 856(c)(2) was due to reasonable cause and not
         due to willful neglect.

            (xxiv) Except as described in the Prospectus, neither the Company
         nor any of its subsidiaries has either given or received any
         communication regarding the termination of, or intent not to renew, any
         of the leasehold interests of lessees in the Company's and its
         subsidiaries' properties held under lease, any property managing or
         operating agreement or any other agreement between the Company or its
         subsidiaries and the operators of its properties or facilities, and no
         such termination or non-renewal has been threatened by the Company, any
         of its subsidiaries or, to the Company's knowledge, any other party to
         any such lease, other than as would not have, individually or in the
         aggregate, a Material Adverse Effect.

            (xxv) No relationship, direct or indirect, exists between or among
         the Company on the one hand, and the directors, officers or
         stockholders of the Company on the other hand, which is required to be
         described in the Prospectus which is not so described.

            (xxvi) All the securities of the Company issued since November 1,
         1997 were issued and sold in compliance with all applicable federal and
         state securities laws, other than as would not have, individually or in
         the aggregate, a Material Adverse Effect.


         (b) Any certificate signed by any officer of the Company and delivered
to the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each of the Underwriters as to the
matters covered thereby.

         5. ADDITIONAL COVENANTS. The Company covenants and agrees with the
several Underwriters that:

         (a) The Company will timely transmit copies of the Prospectus, and any
amendments or supplements thereto, or a term sheet or abbreviated term sheet, as
applicable, to the SEC for filing pursuant to Rule 424(b) of the 1933 Act Rules
and Regulations.

         (b) The Company will deliver to the Underwriters, or in the case of
multiple Underwriters, the Representatives, as soon as practicable after the
date of this Agreement as many copies of the Prospectus (including all documents
incorporated by reference therein) as the Underwriters may reasonably request
for the purposes contemplated by the 1933 Act; the Company will promptly advise
the Underwriters of any request of the SEC for amendment of the Registration
Statement or for supplement to the Prospectus or for any additional information,
and of the issuance by the SEC or any state or other jurisdiction or other
regulatory body of any stop order under the 1933 Act or other order suspending
the effectiveness of the Registration Statement (as amended or supplemented) or
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
or suspending the qualification or registration of the Depositary Shares for
offering or sale in any jurisdiction, and of the institution or threat of any
proceedings therefor, of which the Company shall have received notice or
otherwise have knowledge prior to the completion of a particular distribution of
Designated Shares; and the Company will use its reasonable best efforts to
prevent the issuance of any such stop order or other order and, if issued, to
secure the prompt removal thereof.

         (c) After the date of the Pricing Agreement relating to an issuance of
Designated Shares and prior to the Closing Date relating to that particular
issuance of Designated Shares, the Company will not file any amendment or
supplement to the Registration Statement, the Prospectus (or any other
prospectus relating to the Depositary Shares filed pursuant to Rule 424(b) of
the 1933 Act Rules and Regulations that differs from the Prospectus as filed
pursuant to such Rule 424(b)) and will not file any document under the 1934 Act
before the termination of the offering of the Designated Shares by the
Underwriters if the document would be deemed to be incorporated by reference
into the Registration Statement or the Prospectus, of which the Underwriters
shall not previously have been advised and furnished with a copy or to which the
Underwriters shall have reasonably objected or which is not


                                       10


in compliance with the 1933 Act Rules and Regulations; and the Company will
promptly notify you after it shall have received notice thereof of the time when
any amendment to the Registration Statement becomes effective or when any
supplement to the Prospectus has been filed.

         (d) During the period when the Prospectus relating to any of the
Designated Shares is required to be delivered under the 1933 Act by any
Underwriter or dealer, the Company will comply, at its own expense, with all
requirements imposed by the 1933 Act and the 1933 Act Rules and Regulations, as
now and hereafter amended, and by the rules and regulations of the SEC
thereunder, as from time to time in force, so far as necessary to permit the
continuance of sales of or dealing in the Designated Shares during such period
in accordance with the provisions hereof and as contemplated by the Prospectus.

         (e) If, during the period when the Prospectus relating to any of the
Designated Shares is required to be delivered under the 1933 Act by any
Underwriter or dealer, (i) any event relating to or affecting the Company or of
which the Company shall be advised in writing by the Underwriters, or in the
case of multiple Underwriters, the Representatives, shall occur as a result of
which, in the opinion of the Company or the Underwriters, or in the case of
multiple Underwriters, the Representatives, the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading or (ii) it
shall be necessary to amend or supplement the Registration Statement or the
Prospectus to comply with the 1933 Act, the 1933 Act Rules and Regulations, the
1934 Act or the 1934 Act Rules and Regulations, the Company will forthwith at
its expense prepare and file with the SEC, and furnish to the Underwriters, or
in the case of multiple Underwriters, the Representatives, a reasonable number
of copies of, such amendment or supplement or other filing that will correct
such statement or omission or effect such compliance. Each time the Registration
Statement or the Prospectus is amended or supplemented in accordance with this
Section 5(e) and such amendment or supplement sets forth amended or supplemental
financial information or such amended or supplemental information is
incorporated by reference in the Prospectus (except with respect to offerings of
securities not pursuant to this Agreement), the Company shall cause its
independent public accountants forthwith to furnish you with a letter, dated the
date of such amendment or supplement, as the case may be, in form satisfactory
to you, of the same tenor as the letter referred to in Section 6(e), with regard
to the amended or supplemental financial information included or incorporated by
reference in the Registration Statement or Prospectus as amended or supplemented
to the date of such letter; provided, however, that each time amended or
supplemental financial information is incorporated by reference in the
Prospectus to the Company's Quarterly Report on Form 10-Q or a Current Report on
Form 8-K, the letter required to be delivered pursuant to this Section 5(e)
shall be delivered to you only upon reasonable request.

         (f) From time to time as requested by the Underwriters, or in the case
of multiple Underwriters, the Representatives, and during the period when the
Prospectus relating to the Designated Shares is required to be delivered under
the 1933 Act by any Underwriter or dealer, the Company will furnish such proper
information as may be lawfully required and otherwise cooperate in qualifying
Designated Shares for offer and sale under the securities or blue sky laws of
such jurisdictions as the Underwriters may reasonably designate and will file
and make in each year such statements or reports as are or may be reasonably
required by the laws of such jurisdictions; provided, however, that the Company
shall not be required to qualify as a foreign corporation or shall be required
to qualify as a dealer in securities or to file a general consent to service of
process under the laws of any jurisdiction.

         (g) In accordance with Section 11(a) of the 1933 Act and Rule 158 of
the 1933 Act Rules and Regulations, the Company will make generally available to
the holders of Designated Shares, as soon as practicable, an earning statement
(which need not be audited) in reasonable detail covering the 12 months
beginning not later than the first day of the month next succeeding the month in
which occurred the effective date (within the meaning of Rule 158) of the
Pricing Agreement.

         (h) The Company will file timely all documents required to be filed
with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. The
Company will furnish to its security holders annual reports containing financial
statements audited by independent public accountants.


                                       11


         (i) During the period beginning from the date of the Pricing Agreement
for such Designated Shares and continuing through 30 days after the Closing Date
(and, if applicable, the Option Closing Date) relating to such Designated
Shares, the Company will not, without the prior written consent of the
Underwriters, or in the case of multiple Underwriters, the Representatives,
offer for sale, sell or enter into any agreement to sell, grant any option for
the sale of, or otherwise dispose of, or publicly announce an intention to
effect any such transactions, in any of the depositary shares or any preferred
shares ranking on parity with or superior to the Depositary Shares or the
preferred shares underlying the Depositary Shares, except for the Designated
Shares.

         (j) The Company will apply the proceeds from the sale of the Depositary
Shares as set forth in the description under "Use of Proceeds" in the
Prospectus, as amended or supplemented, which description complies and will
comply in all respects with the requirements of Item 504 of Regulation S-K.

         (k) The Company will promptly provide you with copies of all
correspondence to and from, and all documents issued to and by, the SEC in
connection with the registration of the Depositary Shares, or any other
securities registered by the Company in connection therewith under the 1933 Act.

         (l) After the date of the Pricing Agreement and prior to the Closing
Date (and, if applicable, the Option Closing Date) relating to a particular
issuance of Designated Shares, the Company will furnish to you, as soon as they
have been prepared, and prior to any filing with the SEC or public disclosure,
copies of any unaudited interim consolidated financial statements of the Company
and its subsidiaries for any periods subsequent to the periods covered by the
financial statements appearing in the Registration Statement and the Prospectus.

         (m) After the date of the Pricing Agreement and prior to the Closing
Date (and, if applicable, the Option Closing Date) relating to any particular
issuance of Designated Shares, the Company will not issue any press releases or
other communications directly or indirectly and will hold no press conferences
with respect to the Company or any of its subsidiaries, the financial condition,
results of operations, business, properties, assets or liabilities of the
Company or any of its subsidiaries, or the offering of the Depositary Shares,
without your prior written consent.

         (n) The Company will use its reasonable best efforts to obtain approval
for, and maintain the listing of the Designated Shares on, the NYSE and to file
with the NYSE all documents and notices required by the NYSE of companies that
have securities listed or included on the NYSE.

         (o) The Company and its subsidiaries will maintain and keep accurate
books and records reflecting their assets and maintain internal accounting
controls which provide reasonable assurance that (1) transactions are executed
in accordance with management's authorization, (2) transactions are recorded as
necessary to permit the preparation of the Company's consolidated financial
statements and to maintain accountability for the assets of the Company and its
subsidiaries, (3) access to the assets of the Company and its subsidiaries is
permitted only in accordance with management's authorization, and (4) the
recorded accounts of the assets of the Company and its subsidiaries are compared
with existing assets at reasonable intervals.

         (p) If the Company elects to rely on Rule 462(b) under the 1933 Act for
the sale of any Designated Shares pursuant to a Pricing Agreement, the Company
shall both file an Abbreviated Registration Statement with the SEC in compliance
with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the
1933 Act by the earlier of (i) 9:00 p.m., St. Louis time, on the date of the
applicable Pricing Agreement, and (ii) the time that confirmations are given or
sent, as specified by Rule 462(b)(2).

         (q) If at any time during the 90-day period after the date of the
Pricing Agreement of any particular issuance of Designated Shares, any rumor,
publication or event relating to or affecting the Company shall occur as a
result of which in your opinion the market price of the Depositary Shares has
been or is likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of the
Prospectus), the Company will, after written notice from you advising the
Company to the effect set forth above, forthwith consult with you concerning the
issuance of a press release or other public statement, responding to or
commenting on such rumor, publication or event, provided, that nothing herein
shall prevent the Company from


                                       12


complying with the Company's disclosure or other obligations, in the Company's
sole judgment, under the federal securities laws or the NYSE listing rules.

         (r) The Company will continue to qualify as a REIT under the Code for
the 2002 taxable year.

         (s) During the period beginning from the date of the Pricing Agreement
for a particular issuance of Designated Shares and continuing through the
Closing Date (and, if applicable, the Option Closing Date) relating to such
Designated Shares, the Company agrees to not, and to use its reasonable best
efforts to cause its officers, directors and affiliates not to, (i) take,
directly or indirectly any action designed to stabilize or manipulate the price
of any security of the Company, or which may cause or result in, or which might
in the future reasonably be expected to cause or result in, the stabilization or
manipulation of the price of any security of the Company, to facilitate the sale
or resale of any security of the Company, (ii) sell, bid for, purchase or pay
anyone any compensation for soliciting purchases of Depositary Shares other than
pursuant to this Agreement or (iii) pay or agree to pay to any person any
compensation for soliciting any order to purchase any other securities of the
Company.

         6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of
the Underwriters to purchase and pay for the Designated Shares under any Pricing
Agreement shall be subject to the accuracy, as of the date of the Pricing
Agreement and as of the Closing Date (and, if applicable, the Option Closing
Date) relating to that particular issuance of Designated Shares, of the
representations and warranties of the Company contained herein, to the
performance by the Company of its covenants and obligations hereunder, and to
the following additional conditions:

         (a) If the Registration Statement has not previously become effective,
the Registration Statement and all post-effective amendments theretofore filed
shall have become effective not later than 1:00 p.m., St. Louis time, on the
date of the Pricing Agreement, or at such later date and time as may be approved
by the Underwriters, or in the case of multiple Underwriters, the
Representatives; if the Company has elected to rely on Rule 462(b) under the
1933 Act, the Abbreviated Registration Statement shall have become effective not
later than the earlier of (x) 9:00 p.m. St. Louis time, on the date of the
Pricing Agreement, or (y) at such later date and time as may be approved by the
Underwriters, or in the case of multiple Underwriters, the Representatives. All
filings required by Rule 424 and Rule 430A of the 1933 Act Rules and Regulations
shall have been made. No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been issued and
no proceeding for that purpose shall have been initiated or, to the knowledge of
the Company or any Underwriter, threatened or contemplated by the SEC, and any
request of the SEC for additional information (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been complied
with to the reasonable satisfaction of the Underwriters.

         (b) No Underwriter shall have advised the Company on or prior to the
Closing Date (and, if applicable, the Option Closing Date) relating to a
particular issuance of Designated Shares, that the Registration Statement or
Prospectus or any amendment or supplement thereto contains an untrue statement
of fact which, in the opinion of counsel to the Underwriters, is material, or
omits to state a fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.

         (c) On the Closing Date (and, if applicable, the Option Closing Date)
relating to a particular issuance of Designated Shares, you shall have received
one or more opinions of counsel for the Company, addressed to you and dated the
Closing Date (and, if applicable, the Option Closing Date) for such Designated
Shares, in substantially the forms of Annex B and Annex C.

         In rendering the opinion, such counsel may rely, (1) as to matters
involving the application of laws of any jurisdiction other than Ohio or the
United States, upon opinions addressed to the Underwriters of other counsel
satisfactory to it and Bryan Cave LLP, and (2) as to all matters of fact, upon
certificates and written statements of the executive officers of, and
accountants for, the Company, provided, in either case, that such counsel shall
state in their opinion that they believe that and the Underwriters are justified
in relying thereon, and (3) as to the date of


                                       13


qualification of the Company and its subsidiaries to do business in any state or
jurisdiction, upon certificates of appropriate governmental officials,
telephonic confirmation by representatives of such states or confirmation from
information contained on websites of such states.

         Such counsel shall also confirm that during the preparation of the
Registration Statement and Prospectus, such counsel participated in conferences
with officers and representatives of the Company and its independent
accountants, at which conferences the contents of the Registration Statement and
the Prospectus were discussed, reviewed and revised. Such counsel shall also
confirm that such counsel regularly reviews the Company's periodic and current
reports prior to filing with the SEC. On the basis of the information which was
developed in the course of the preparation of the Registration Statement and
Prospectus and review of the Company's periodic and current reports, considered
in light of such counsel's understanding of applicable law and the experience
gained by such counsel through their practice thereunder, without such counsel
assuming responsibility for the accuracy and completeness of such statements
except to the extent expressly provided above, such counsel shall confirm that
nothing came to their attention that would lead them to believe that either the
Registration Statement (including any document filed under the 1934 Act and
deemed incorporated by reference therein), as of the Effective Date, contained
an untrue statement of a material fact or omitted 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, or
the Prospectus or any amendment or supplement thereto (including any document
filed under the 1934 Act and deemed incorporated by reference therein) as of its
respective issue date and as of the Closing Date (or, if applicable, the Option
Closing Date) relating to a particular issuance of Designated Shares, contained
or contains any untrue statement of a material fact or omitted or omits 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 (other than the financial statements or other financial
data as to which such counsel need express no opinion).

         (d) You shall have received on the Closing Date (and, if applicable,
the Option Closing Date) relating to a particular issuance of Designated Shares,
from Bryan Cave LLP, counsel to the Underwriters, such opinion or opinions,
dated the Closing Date (and, if applicable, the Option Closing Date) relating to
a particular issuance of Designated Shares with respect to such matters as you
may reasonably require; and the Company shall have furnished to such counsel
such documents as they reasonably request for the purposes of enabling them to
review or pass on the matters referred to in this Section 6 and in order to
evidence the accuracy, completeness and satisfaction of the representations,
warranties and conditions herein contained.

         (e) On the date of the applicable Pricing Agreement and on the Closing
Date (and, if applicable, the Option Closing Date) relating to a particular
issuance of Designated Shares, you shall have received from Deloitte & Touche
LLP, a letter or letters, dated the date of the applicable Pricing Agreement and
the Closing Date (and, if applicable, the Option Closing Date) relating to that
particular issuance of Designated Shares, respectively, in form and substance
satisfactory to you, confirming that they are independent public accountants
with respect to the Company within the meaning of the 1933 Act and the 1933 Act
Rules and Regulations, and containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information relating
to the Company contained in the Registration Statement and Prospectus.

         (f) Except as contemplated in the Prospectus, (i) neither the Company
nor any of its subsidiaries shall have sustained since the date of the latest
audited financial statements included or incorporated by reference in the
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree; and (ii)
subsequent to the respective dates as of which information is given in the
Registration Statement and the Prospectus, neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, or entered into any transactions, and there shall not have been any
change in the capital stock or short-term or long-term debt of the Company and
its subsidiaries or any change, or any development involving or which might
reasonably be expected to involve a prospective change in the condition
(financial or other), net worth, business, affairs, management, results of
operations or cash flow of the Company or its subsidiaries, the effect of which,
in any such case described in clause (i) or (ii), is in your judgment so
material or adverse as to make it


                                       14


impracticable or inadvisable to proceed with the public offering or the delivery
of the Designated Shares being delivered on such Closing Date (and, if
applicable, the Option Closing Date) relating to that particular issuance of
Designated Shares on the terms and in the manner contemplated in the Prospectus.

         (g) There shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the NYSE
or the establishing on such exchange by the SEC or by such exchange, or market,
of minimum or maximum prices which are not in force and effect on the date
hereof; (ii) a suspension or material limitation in trading in the Company's
securities on the NYSE or the establishing on such exchange by the SEC or by
such exchange of minimum or maximum prices which are not in force and effect on
the date hereof; (iii) a general moratorium on commercial banking activities
declared by either federal or any State of New York authorities; (iv) the
outbreak or escalation of hostilities or terrorism involving or affecting the
United States or the declaration by the United States of a national emergency or
war, which in your judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Designated Shares in the manner
contemplated in the Prospectus; or (v) any calamity or crisis, change in
national, international or world affairs, act of God, change in the
international or domestic markets, or change in the existing financial,
political or economic conditions in the United States or elsewhere, which in
your judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Shares in the manner contemplated in
the Prospectus.

         (h) You shall have received certificates, dated the Closing Date (and,
if applicable, the Option Closing Date) relating to a particular issuance of
Designated Shares and signed by the President and the Chief Financial Officer of
the Company, in their capacities as such, stating that:

             (i) the condition set forth in Section 6(a) has been fully
         satisfied;

             (ii) they have carefully examined the Registration Statement and
         the Prospectus as amended or supplemented and all documents
         incorporated by reference therein and nothing has come to their
         attention that would lead them to believe that either the Registration
         Statement or the Prospectus, or any amendment or supplement thereto or
         any documents incorporated by reference therein as of their respective
         effective, issue or filing dates, contained, or the Prospectus as
         amended or supplemented and all documents incorporated by reference
         therein and when read together with the documents incorporated by
         reference therein, at such Closing Date, contains, any untrue statement
         of a material fact, or omits to state a material fact required to be
         stated therein or necessary in order to make the statements therein, in
         light of the circumstances under which they were made, not misleading;

             (iii) since the date of the applicable Pricing Agreement, there has
         occurred no event required to be set forth in an amendment or
         supplement to the Registration Statement or the Prospectus which has
         not been so set forth and there has been no document required to be
         filed under the 1934 Act and the 1934 Act Rules and Regulations that
         upon such filing would be deemed to be incorporated by reference into
         the Prospectus that has not been so filed;

             (iv) all representations and warranties made herein by the Company
         are true and correct at such Closing Date, with the same effect as if
         made on and as of such Closing Date, and all agreements herein to be
         performed or complied with by the Company on or prior to such Closing
         Date have been duly performed and complied with by the Company;

             (v) except as disclosed in the Prospectus, subsequent to the
         respective dates as of which information is given in the Registration
         Statement and the Prospectus, neither the Company nor any of its
         subsidiaries has incurred any liabilities or obligations, direct or
         contingent, other than in the ordinary course of business, or entered
         into any transactions not in the ordinary course of business, which in
         either case are material to the Company or such subsidiary; and there
         has been no dividend or distribution of any kind, paid or made by the
         Company on any class of its capital stock; and

             (vi) covering such other matters as you may reasonably request.


                                       15


         (j) The Company shall have furnished to you at the Closing Date (and,
if applicable, the Option Closing Date) relating to a particular issuance of
Designated Shares such further information, opinions, certificates, letters and
documents as you may have reasonably requested.

         (k) The Designated Shares shall have been approved for trading upon
official notice of issuance on the New York Stock Exchange.

         All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and to Bryan Cave LLP, counsel for the Underwriters, in the
exercise of reasonable judgment.

         If any of the conditions specified above in this Section 6 shall not
have been satisfied at or prior to the Closing Date (and, if applicable, the
Option Closing Date) relating to a particular issuance of Designated Shares or
waived by you in writing, the Pricing Agreement may be terminated by you on
notice to the Company.

         7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Underwriter from and against any losses, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the 1933 Act or otherwise, insofar as such losses, damages or liabilities
(or actions or claims in respect thereof) arise out of or are based upon (i) an
untrue statement or alleged untrue statement of a material fact contained in any
Prospectus Supplement, Preliminary Prospectus, the Registration Statement, the
Prospectus or any other prospectus relating to the Depositary Shares, or any
amendment or supplement thereto, or in any blue sky application or other
document executed by the Company or based on any information furnished in
writing by the Company, filed in any state or other jurisdiction in order to
qualify any or all of the Depositary Shares under the securities laws thereof
(the "Blue Sky Application"), or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading or (ii) any untrue statement or alleged untrue
statement made by the Company in Section 4 of this Agreement or in any
representation or warranty by the Company to the Underwriters of the failure by
the Company to perform when and as required by any agreement or covenant
contained herein and will reimburse each Underwriter for any legal or other
expenses incurred by such Underwriter in connection with investigating,
preparing, pursuing or defending against any such loss, damage, liability or
action or claim, including, without limitation, any investigation or proceeding
by any governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to the indemnified party, as such
expenses are incurred (including such losses, damages, liabilities or expenses
to the extent of the aggregate amount paid in settlement of any such action or
claim, provided that (subject to Section 7(d) hereof) any such settlement is
effected with the written consent of the Company); provided, however, that the
Company shall not be liable in any such case to the extent, but only to the
extent, that any such loss, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in any Prospectus Supplement, Preliminary Prospectus, the Registration
Statement, the Prospectus or any other prospectus relating to the Depositary
Shares, or any such amendment or supplement, in reliance upon and in conformity
with written information relating to the Underwriter furnished to the Company by
you, expressly for use in the preparation thereof (as provided in the Pricing
Agreement).

            The foregoing indemnity agreement with respect to any Prospectus
Supplement, Preliminary Prospectus, Registration Statement, or Prospectus shall
not inure to the benefit of any Underwriter (or its officers and employees or
any person who controls such Underwriter within the meaning of the 1933 Act)
from whom the person asserting any such loss, claims, damages or liabilities
purchased Depositary Shares if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if such is required by law, at or prior to the written confirmation of
the sale of such Depositary Shares to such person and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such loss,
claim, damage or liability; provided, that the Company has complied with its
obligation under Section 5(b) of this Agreement to provide copies of the
Prospectus to such Underwriter and has so complied within a reasonable amount of
time prior to written confirmation.


                                       16


         (b) Each Underwriter, severally and not jointly, will indemnify and
hold harmless the Company from and against any losses, damages or liabilities to
which the Company may become subject, under the 1933 Act or otherwise, insofar
as such losses, damages or liabilities (or actions or claims in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Prospectus Supplement, Preliminary
Prospectus, the Registration Statement, the Prospectus or any other prospectus
relating to the Depositary Shares, or any amendment or supplement thereto, or in
any other document executed by the Company, or arise out of are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Prospectus Supplement, Preliminary Prospectus, the Registration Statement, the
Prospectus or any other prospectus relating to the Depositary Shares, or any
such amendment or supplement, or other document executed by the Company, in
reliance upon and in conformity with written information relating to the
Underwriter furnished to the Company by you, or by any Underwriter through you,
expressly for use in the preparation thereof (as provided in the Pricing
Agreement), and will reimburse the Company for any legal or other expenses
incurred by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred (including such losses, damages,
liabilities or expenses to the extent of the aggregate amount paid in settlement
of any such action or claim, provided that (subject to Section 7(d) hereof) any
such settlement is effected with the written consent of the Underwriters.

         (c) Promptly after receipt by an indemnified party under Section 7(a)
or 7(b) hereof of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying
party under Section 7(a) or 7(b) hereof, notify each such indemnifying party in
writing of the commencement thereof, but the failure so to notify such
indemnifying party shall not relieve such indemnifying party from any liability
except to the extent that it has been prejudiced in any material respect by such
failure or from any liability that it may have to any such indemnified party
otherwise than under Section 7(a) or 7(b) hereof. In case any such action shall
be brought against any such indemnified party and it shall notify each
indemnifying party of the commencement thereof, each such indemnifying party
shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party under Section 7(a) or 7(b) hereof
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and, after notice from such indemnifying
party to such indemnified party of its election so to assume the defense
thereof, such indemnifying party shall not be liable to such indemnified party
under Section 7(a) or 7(b) hereof for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. The indemnified party shall have the right to employ its own
counsel in any such action, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the employment of counsel by
such indemnified party at the expense of the indemnifying party has been
authorized by the indemnifying party, (ii) the indemnified party shall have been
advised by such counsel that there may be a conflict of interest between the
indemnifying party and the indemnified party in the conduct of the defense, or
certain aspects of the defense, of such action (in which case the indemnifying
party shall not have the right to direct the defense of such action with respect
to those matters or aspects of the defense on which a conflict exists or may
exist on behalf of the indemnified party) or (iii) the indemnifying party shall
not in fact have employed counsel reasonably satisfactory to such indemnified
party to assume the defense of such action, in any of which events such fees and
expenses to the extent applicable shall be borne, and shall be paid as incurred,
by the indemnifying party. If at any time such indemnified party shall have
requested such indemnifying party under Section 7(a) or 7(b) hereof to reimburse
such indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 7(a) or 7(b) hereof effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by such indemnifying
party of such request for reimbursement, (ii) such indemnifying party shall have
received notice of the terms of such settlement at least 30 days prior to such
settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request for
reimbursement prior to the date of such settlement. No such indemnifying party
shall, without the written consent of such indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not such
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (A) includes an unconditional
release of such indemnified party


                                       17


from all liability arising out of such action or claim and (B) does not include
a statement as to or an admission of fault, culpability or a failure to act, by
or on behalf of any such indemnified party. In no event shall such indemnifying
parties be liable for the fees and expenses of more than one counsel, including
any local counsel, for all such indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.

         (d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to indemnify or hold harmless an indemnified
party under Section 7(a) or 7(b) hereof in respect of any losses, damages or
liabilities (or actions or claims in respect thereof) referred to therein, then
each indemnifying party under Section 7(a) or 7(b) hereof shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
damages or liabilities (or actions or claims in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriter, on the other hand, from the
offering of the Designated Shares. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section 7(c) hereof
and such indemnifying party was prejudiced in a material respect by such
failure, then each such indemnifying party shall contribute to such amount paid
or payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault, as
applicable, of the Company, on the one hand, and the Underwriter, on the other
hand, in connection with the statements or omissions that resulted in such
losses, damages or liabilities (or actions or claims in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by, as applicable, the Company, on the one hand, and the Underwriter,
on the other hand, shall be deemed to be in the same proportion as the total net
proceeds from such offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriter. The relative fault, as applicable, of the Company, on the one hand,
and the Underwriters, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company, on the one hand, or the Underwriters, on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to above in this Section 7(d). The amount
paid or payable by such an indemnified party as a result of the losses, damages
or liabilities (or actions or claims in respect thereof) referred to above in
this Section 7(d) shall be deemed to include any legal or other expenses
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 7(d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Designated Shares underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The obligation
of the Underwriters in this Section 7(d) to contribute are several in proportion
to their respective underwriting obligations with respect to the Designated
Shares and are not joint.

         (e) The obligations of the Company under this Section 7 shall be in
addition to any liability that the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director, employee, agent
or other representative and to each person, if any, who controls any
Underwriters within the meaning of the 1933 Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability that the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company who signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the 1933 Act.


         8. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. The respective
representations, warranties, agreements and statements of the Company and the
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain operative and in full
force and effect


                                       18


regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, the Company or any of its officers, directors or any controlling
persons, and shall survive delivery of and payment for the Depositary Shares
hereunder.

         9. TERMINATION. (a) A Pricing Agreement may be terminated by you at any
time at or prior to the Closing Date by notice to the Company if any condition
specified in Section 6 hereof shall not have been satisfied on or prior to the
Closing Date. Any such termination shall be without liability of any party to
any other party except as provided in Sections 7 and 10 hereof.

         (b) A Pricing Agreement also may be terminated by you, by notice to the
Company, as to any obligation of the Underwriters to purchase the Option Shares,
if any condition specified in Section 6 hereof shall not have been satisfied at
or prior to the Option Closing Date.

         (c) This Agreement may be terminated at any time by the Company or you
upon the giving of written notice of such termination, but without prejudice to
any rights, obligations or liabilities of any party hereto accrued or incurred
prior to such termination. The termination of this Agreement shall not require
termination of any Pricing Agreement, and the termination of any Pricing
Agreement shall not require termination of this Agreement.

         If you terminate a Pricing Agreement as provided in Sections 9(a) or
9(b) or terminate this Agreement as provided in Section 9(c), you shall notify
the Company by telephone or telegram, confirmed in writing as provided in
Section 11.

         10. COSTS AND EXPENSES. The Company, whether or not the transactions
contemplated hereby are consummated or this Agreement or any Pricing Agreement
is terminated, will bear and pay the costs and expenses incident to the
registration of the Depositary Shares and public offering thereof, including,
without limitation, (a) all expenses (including stock transfer taxes) incurred
in connection with the delivery to the several Underwriters of the Depositary
Shares, the filing fees of the SEC, and the fees and expenses of the Company's
counsel and accountants, (b) the preparation, printing, filing, delivery and
shipping of the Registration Statement, each Prospectus Supplement, Preliminary
Prospectus, the Prospectus and any amendments or supplements thereto, (c) the
furnishing of copies of such documents to the Underwriters, (d) the registration
or qualification of the Designated Shares for offering and sale under the
securities laws of the various states and other jurisdictions, including the
reasonable fees and disbursements of counsel to the Underwriters relating to
such registration or qualification and in connection with preparing any Blue Sky
Memoranda or related analysis, (e) all printing and engraving costs related to
preparation of the certificates for the Depositary Shares, including transfer
agent and registrar fees, (f) all fees and expenses relating to the
authorization of the Depositary Shares and the Designated Shares for trading on
the NYSE, (g) all travel expenses, including air fare and accommodation
expenses, of representatives of the Company in connection with the offering of
the Depositary Shares (except for ground transportation), and (h) all of the
other costs and expenses incident to the performance by the Company of the
registration and offering of the Depositary Shares; provided, that the
Underwriters will bear and pay the fees and expenses of the Underwriters'
counsel (except as specifically provided in this Section 10(d)), the
Underwriters' out-of-pocket expenses, and any advertising costs and expenses
incurred by the Underwriters incident to the public offering of the Depositary
Shares.

         11. NOTICES. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and if sent to the
Underwriters shall be mailed, delivered, sent by facsimile transmission, or
telegraphed and confirmed c/o A.G. Edwards & Sons, Inc. at One North Jefferson
Avenue, St. Louis, Missouri 63103, Attention: Director, Corporate Finance,
facsimile number (314) 955-4775, with a copy to Bryan Cave LLP, attention: J.
Mark Klamer, facsimile number (801) 751-0631, or if sent to the Company shall be
mailed, delivered, sent by facsimile transmission, or telegraphed and confirmed
to the Company at Guildhall Building, Suite 1500, 45 W. Prospect Avenue,
Cleveland, Ohio 44115, facsimile number 216-430-1201, attention: Shereen P.
Jones, with a copy to Robert A. Weible, Baker & Hostetler LLP, 3200 National
City Center, 1900 East Ninth Street, Cleveland, Ohio 44114, facsimile number
216-696-0740.

         12. PARTIES. This Agreement and each Pricing Agreement shall inure to
the benefit of and be binding upon the Underwriters, the Company and, to the
extent provided in Sections 7 and 8, the officers and directors of


                                       19


the Company and each person who controls the Company or any Underwriter and
their respective heirs, executors, administrators, successors and assigns.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, corporation or other entity any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained; this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties
hereto and their respective successors and assigns and said controlling persons
and said officers and directors, and for the benefit of no other person,
corporation or other entity. No purchaser of any of the Depositary Shares from
any Underwriter shall be construed a successor or assign by reason merely of
such purchase.

         In the case of multiple Underwriters for a particular offering pursuant
to a Pricing Agreement, in all dealings hereunder, you, and any other
Underwriter so designated as a Representative in the Pricing Agreement, shall
act on behalf of each of the several Underwriters, and the parties to the
Pricing Agreement shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of the Underwriters, made or given by you jointly
or by A.G. Edwards & Sons, Inc. on behalf of you, and any other Representatives,
as the Representatives, as if the same shall have been made or given in writing
by the Underwriters.

         13. SUBSTITUTION OF UNDERWRITERS. (a) If any Underwriter shall default
in its obligation to purchase the Designated Shares which it has agreed to
purchase hereunder, you may in your discretion arrange for you or another party
or other parties to purchase such Designated Shares on the terms contained
herein. If within thirty-six hours after such default by any Underwriter you do
not arrange for the purchase of such Designated Shares, then the Company shall
be entitled to a further period of thirty-six hours within which to procure
another party or parties reasonably satisfactory to you to purchase such
Designated Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Designated Shares, or the Company notifies you that it has so
arranged for the purchase of such Designated Shares, you or the Company shall
have the right to postpone the Closing Date for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any persons substituted under this Section 9 with like effect as if such person
had originally been a party to the applicable Pricing Agreement with respect to
such Designated Shares.

         (b) If, after giving effect to any arrangements for the purchase of the
Designated Shares of a defaulting Underwriter or Underwriters made by you and
the Company as provided in subsection (a) above, the aggregate number of
Designated Shares which remains unpurchased does not exceed one-eleventh of the
total Designated Shares to be sold on the Closing Date, then the Company shall
have the right to require each non-defaulting Underwriter to purchase the
Designated Shares which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Designated Shares which such Underwriter agreed to
purchase in the applicable Pricing Agreement) of the Designated Shares of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.

         (c) If, after giving effect to any arrangements for the purchase of the
Designated Shares of a defaulting Underwriter or Underwriters made by you and
the Company as provided in subsection (a) above, the number of Designated Shares
which remains unpurchased exceeds one-eleventh of the total Designated Shares to
be sold on the Closing Date, or if the Company shall not exercise the right
described in subsection (b) above to require the non-defaulting Underwriters to
purchase Designated Shares of the defaulting Underwriter or Underwriters, then
this Agreement (or, with respect to the Option Closing Date, the obligations of
the Underwriters to purchase and of the Company to sell the Option Shares) shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company except for the expenses to be borne by the Company
and the Underwriters as provided in Section 11 hereof and the indemnity and
contribution agreements in Section 7 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.


                                       20


         14. MISCELLANEOUS. The Underwriters shall not advertise or publish any
document concerning the public offering of the Depositary Shares without the
prior written consent and approval of the Company, which consent and approval
shall not be unreasonably withheld.

         15. COUNTERPARTS. This Agreement and each Pricing Agreement may be
executed by any one or more of the parties hereto in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.

         16. PRONOUNS. Whenever a pronoun of any gender or number is used
herein, it shall, where appropriate, be deemed to include any other gender and
number.

         17. TIME OF ESSENCE. Time shall be of the essence of the Pricing
Agreement.

         18. APPLICABLE LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without giving effect to
the choice of law or conflict of laws principles thereof.



                                       21



         If the foregoing is in accordance with your understanding, please so
indicate in the space provided below for that purpose, whereupon this letter
shall constitute a binding agreement among the Company and the Underwriters.


                          BOYKIN LODGING COMPANY



                          By:   /s/ SHEREEN P. JONES
                              ---------------------------------------------
                          Name: Shereen P. Jones
                          Title: Executive Vice President, Chief Financial and
                                 Investment Officer




Accepted in St. Louis,
Missouri as of the date
first above written,

A.G. EDWARDS & SONS, INC.



By     /s/  MICHAEL L. ESSEX
  --------------------------------------
Name:  Michael L. Essex
Title: Vice President





                                       22



                                     ANNEX A

                                PRICING AGREEMENT




                                                  October 1, 2002




A.G. EDWARDS & SONS, INC.
  as Representatives of the several Underwriters
  named in Schedule I hereto
c/o A.G. EDWARDS & SONS, INC.
One North Jefferson Avenue
St. Louis, Missouri 63103

Ladies and Gentlemen:

                  Boykin Lodging Company, an Ohio corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement Standard Provisions, dated October 1, 2002 (the
"Underwriting Agreement"), a copy of which is attached hereto, to issue and sell
to A.G. Edwards & Sons, Inc. (the "Underwriters") and if applicable, to the
firms named in Schedule I hereto (in such case, such firms and you shall be
referred to as the "Underwriters"), the Depositary Shares of the Company set
forth in Schedule II hereto (the "Designated Shares"). Each of the provisions of
the Underwriting Agreement is incorporated herein by reference in its entirety
and shall be deemed to be a part of this Pricing Agreement to the same extent as
if such provisions had been set forth in full herein.

                  Each reference to the "Registration Statement" in the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
the Company's Registration Statement on Form S-3, File No. 333-39369.

                   Each reference to the Underwriters herein and in the
provisions of the Underwriting Agreement Standard Provisions shall be deemed to
refer to the firms named in Schedule I hereto. Each reference to the
Representatives herein and in the provisions of the Underwriting Agreement
Standard Provisions shall be deemed to refer to A.G. Edwards & Sons, Inc.

                   Only the items, if any, expressly listed in Schedule II
hereto constitute the information furnished by or on behalf of the Underwriters
as such information is referred to in Section 4(a)(ii) and Section 7 of the
Underwriting Agreement.

                  Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to the Underwriters, and the Underwriters agree to purchase
from the Company, at the time and place and at the purchase price set forth in
Schedule II hereto, the Designated Shares set forth in Schedule II hereto.


                                       23


                  If the foregoing is in accordance with your understanding,
please sign and return to us a counterpart hereof, and upon acceptance hereof by
you, this letter and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall constitute a
binding agreement among the Underwriters and the Company.



                              Very truly yours,

                              BOYKIN LODGING COMPANY



                              By   /s/ SHEREEN P. JONES
                                --------------------------------------
                              Name:  Shereen P. Jones
                              Title: Executive Vice President, Chief Financial
                                     and Investment Officer



Acceptance as of the date hereof:

A.G. EDWARDS & SONS, INC.
  as Representatives of the several Underwriters
  named in Schedule I hereto



By    /s/ MICHAEL L. ESSEX
  --------------------------------------
Name:  Michael L. Essex
Title: Vice President





                                       24



                         SCHEDULE I TO PRICING AGREEMENT

Underwriters
- ------------

                                                    Number of Firm Shares
A.G. Edwards & Sons, Inc.                                       1,096,000
Legg Mason Wood Walker, Incorporated                              470,000
Friedman Billings Ramsey & Co., Inc.                              180,000
Wells Fargo Securities, LLC                                        54,000

Total                                                           1,800,000










                                       25




                        SCHEDULE II TO PRICING AGREEMENT

DESIGNATED SHARES: Depositary Shares each representing 1/10 of a share in 10 1/2
% Class A Cumulative Preferred Shares, Series 2002-A, without par value,
deposited with National City Bank, Cleveland, Ohio, as depositary, redeemable on
or after October 7, 2007 at the option of the Company, with the terms as set
forth in the Prospectus Supplement dated October 1, 2002.

NUMBER OF FIRM SHARES:

1,800,000 Depositary Shares each representing 1/10 of a share in 10 1/2 % Class
A Cumulative Preferred Shares, Series 2002-A, without par value, deposited with
National City Bank, Cleveland, Ohio, as depositary, redeemable on or after
October 7, 2007 at the option of the Company, with the terms as set forth in the
Prospectus Supplement dated October 1, 2002.

NUMBER OF OPTION SHARES:

270,000 Depositary Shares each representing 1/10 of a share in 10 1/2 % Class A
Cumulative Preferred Shares, Series 2002-A, without par value, deposited with
National City Bank, Cleveland, Ohio, as depositary, redeemable on or after
October 7, 2007 at the option of Company, with the terms as set forth in the
Prospectus Supplement dated October 1, 2002.

PRICE TO PUBLIC:

$25 per share, total price $45,000,000 (without Option Shares)

PURCHASE PRICE BY THE UNDERWRITERS:

$24.2125 per share; $0.7875 underwriting discount per share
Underwriting discount total:  $1,417,500
Discount with overallotment:  $1,630,125

CLOSING DATE:

October 7, 2002

DIVIDENDS:

Dividends will be cumulative from the date of issuance and are payable
quarterly, starting January 15, 2003 at the rate of 10 1/2% of the initial
liquidation preference per annum, or $26.25 per preferred share (or $2.625 per
Depositary Share).

LIQUIDATION PREFERENCE:

The liquidation preference is equivalent to $25 per Depositary Share, plus
accumulated and unpaid dividends.

OTHER TERMS:

Proceeds to the Company (without Option Shares):  $24.2125 per share;
$43,582,500 total

Redeemable at the option of the Company on  or after October 7, 2007

See Prospectus Supplement of Company dated October 1, 2002


                                       26


INFORMATION PROVIDED BY UNDERWRITERS:

Certain paragraphs of the underwriting section of the prospectus supplement, as
follows:

1. The second paragraph under the first table on page S-43 that begins "The
underwriters initially propose to offer the depositary shares.."

2.  The first, second, third and fourth full paragraphs on page S-44.




                                       27



                                     ANNEX B

         (i) The Registration Statement and all post-effective amendments
thereto have become effective under the 1933 Act; any required filing of the
Prospectus or any supplement thereto pursuant to Rule 424(b) or otherwise has
been made in the manner and within the time period required thereby; and, to the
knowledge of such counsel, no stop or other order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened by the SEC.

         (ii) The Registration Statement and the Prospectus, and each amendment
or supplement thereto (including any document incorporated by reference into the
Prospectus), as of their respective effective or issue date, comply as to form
in all material respects to the requirements for registration statements on Form
S-3 under the 1933 Act and the applicable 1933 Act Rules and Regulations (except
that such counsel expresses no opinion as to the financial statements, related
schedules and other financial data included in or incorporated by reference into
the Registration Statement or the Prospectus); the conditions for use of Form
S-3 have been satisfied; and, as of the date they were filed with the SEC, the
documents incorporated by reference in the Prospectus appear on their face to
comply as to form in all material respects with the requirements of the 1934 Act
and the applicable 1934 Act Rules and Regulations, except for the untimely
filing of two material contracts exhibits (the Second Amended and Restated
Agreement of Limited Partnership of Boykin Hotel Properties, L.P. and the
Amendment of Second Amended and Restated Agreement of Limited Partnership of
Boykin Hotel Properties, L.P.), which exhibits were filed with the SEC on Form
8-K on August 29, 2002 and which do not adversely affect the Company's
eligibility to use Form S-3 for the offering of the Designated Shares (except
that such counsel need express no opinion as to the financial statements,
related schedules or other financial data included therein).

         (iii) Each of the Agreement and the Pricing Agreement have been duly
authorized, validly executed and delivered by the Company and each constitutes a
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as enforceability may be limited by
the Exceptions and except to the extent the enforceability of the
indemnification and contribution provisions of Section 7 of the Agreement may be
limited by public policy considerations.

         (iv) The Company and the Company's subsidiaries set forth on Annex D
hereto (each a "Significant Subsidiary" and collectively, "Significant
Subsidiaries") are validly existing as corporations or other organizations in
good standing under the laws of the states or other jurisdictions in which they
are incorporated or organized, with full power and authority (corporate or
similar power) to own, lease and operate their properties and to conduct their
businesses as described in the Prospectus and, with respect to the Company, to
execute and deliver, and perform the Company's obligations under, the Agreement.
The Company and its Significant Subsidiaries are duly registered or qualified to
transact business as foreign corporations or other organizations in good
standing in each state or other jurisdiction in which their ownership or leasing
of property or conduct of business legally requires such registration or
qualification, except where the failure to be so registered or qualified,
individually or in the aggregate, would not have a Material Adverse Effect. (Our
opinions herein with respect to the Company's or any Significant Subsidiary's
good standing and valid existence in any state or other jurisdiction and its
registration or qualification to do business in such state or other jurisdiction
is based solely on a certificate of good standing issued by such state or
jurisdiction, telephonic confirmation by a representative of such state or
jurisdiction or confirmation from information contained on the website of such
state or jurisdiction.) The Company and its subsidiaries have been duly
incorporated or organized as corporations or other entities in the states of
their incorporation or organization, except for Red Lion Inns Operating L.P. as
to which we express no opinion.

         (v) All of the outstanding shares of capital stock or other securities
evidencing equity ownership of each of the Company's Significant Subsidiaries
have been duly authorized and validly issued, are fully paid and non-assessable
and, to the knowledge of such counsel, except as set forth in the


                                       28


Prospectus or on Exhibit 21 to the Company Annual Report on Form 10-K for the
year ended December 31, 2001, are owned by the Company free and clear of any
mortgage, pledge, lien, encumbrance, charge or adverse claim and, except as set
forth on SCHEDULE A and except as provided in the Third Amended and Restated
Agreement of Limited Partnership of Boykin Hotel Properties, L.P., are not the
subject of any agreement or understanding with any person, and were not issued
in violation of any preemptive or other similar rights arising by operation of
law or under the Significant Subsidiary's articles of incorporation or other
similar organizational document or agreement; and, to the knowledge of such
counsel, except as disclosed in the Prospectus, or set forth on SCHEDULE A
attached hereto, there are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale, or instruments
related to or entitling any person to purchase or otherwise acquire any shares
of, or any security convertible into or exercisable or exchangeable for, any
such shares of capital stock or other ownership interest of any of such
subsidiaries.

         (vi) The issuance and sale of the Designated Shares including the
issuance and sale of the Preferred Shares underlying the Designated Shares and
the execution, delivery and performance by the Company of the Agreement,
including the Pricing Agreement with respect to the Designated Shares, and the
consummation of the transactions herein contemplated, will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any properties or assets of the Company or any of its
subsidiaries under, any material indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the properties or assets of the
Company or any of its subsidiaries is subject, except to such extent as,
individually or in the aggregate, does not have a Material Adverse Effect, nor
will such action result in any violation of the provisions of the Company's
articles of incorporation or code of regulations or any statute, rule,
regulation or other law, or any order or judgment known to such counsel, of any
court or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their properties.

         (vii) No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required in
connection with the execution, delivery and performance of the Agreement, and
the issuance and sale of the Designated Shares, and the consummation of the
transactions contemplated hereby, except such as may be required under the 1933
Act or the 1933 Act Rules and Regulations and have been obtained, or as may be
required by the NYSE in connection with the purchase and distribution of the
Designated Shares by the Underwriters, except that counsel expresses no opinion
with regard to state securities or blue sky laws. Each of the Company and its
subsidiaries has filed all Notices pursuant to, and has obtained all Approvals
required to be obtained under, and has otherwise complied with all requirements
of, all applicable laws and regulations in connection with the issuance and sale
of the Designated Shares, in each case with such exceptions, individually or in
the aggregate, as would not affect the validity of the Designated Shares, their
issuance or the transactions contemplated hereby or have a Material Adverse
Effect.

         (viii) The Company has duly and validly authorized capital stock as set
forth in the Prospectus; the Depositary Shares, when issued, will conform, as to
legal matters, in all material respects to the description thereof in the
Prospectus and the Preferred Shares underlying the Depositary Shares have been
duly authorized, and when issued and paid for, will be validly issued, fully
paid and non-assessable; and the Designated Shares to be sold by the Company
have been duly authorized and, when delivered and paid for in accordance with
the Agreement and any Pricing Agreement, will be validly issued, fully paid and
non-assessable. All corporate action required to be taken by the Company for the
authorization, issue and sale of the Designated Shares including the Preferred
Shares underlying the Designated Shares has been duly and validly taken. The
Designated Shares are duly authorized for trading, subject to official notice of
issuance and evidence of satisfactory distribution, on the NYSE. The form of
specimen certificate representing the Depositary Shares filed as an exhibit with
the SEC is in due and proper form. The issuance of the Depositary Shares to be
purchased from the Company under the Agreement is not subject to preemptive or
other similar rights arising by operation of law or under the Company's articles
of


                                       29


incorporation or code of regulations or, to our knowledge, any agreement, or any
restriction upon the voting or transfer thereof (except as set forth in the
Company's articles of incorporation) pursuant to applicable law or the code of
regulations of the Company or any agreement, known to us, to which the Company
or any of its subsidiaries is a party or by which any of them may be bound; and,
to such counsel's knowledge, except as described in the Prospectus, or set forth
on Schedule B, there are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or rights related to
or entitling any person to purchase or otherwise acquire any shares of, or any
security convertible into or exercisable or exchangeable for, the capital stock
of, or other ownership interest in, the Company.

         (ix) To the knowledge of such counsel, the Company and each of its
Significant Subsidiaries hold all Permits from all state, federal and other
regulatory authorities, and have satisfied in all material respects the
requirements imposed by regulatory bodies, administrative agencies or other
governmental bodies, agencies or officials, that are required for the Company
and its Significant Subsidiaries lawfully to own, lease and operate its
properties and conduct its business as described in the Prospectus, and, to the
knowledge of such counsel, each of the Company and its Significant Subsidiaries
is conducting its business in compliance in all material respects with all of
the laws, rules and regulations of each jurisdiction in which it conducts its
business.

         (x) The statements made in the Form 8-K dated December 30, 1997, the
Registration Statement and in the Prospectus under the captions "The Company,"
"Description of Preferred Shares," "Description of Depositary Shares," "Federal
Income Tax Consequences," "ERISA Considerations," and under Item 15 of Part II
of the Registration Statement, and in the Prospectus Supplement under the
captions "Prospectus Supplement Summary," "Risk Factors," "The Company,"
"Corporate Governance," "Description of Class A Cumulative Preferred Shares,
Series 2002-A and Depositary Shares," and "Federal Income Tax Considerations,"
and in the Company's Annual Report on Form 10-K for the year ended December 31,
2001 under Items 1, 3, 11 and 13, to the extent that they constitute summaries
of statutes, laws, ordinances, rules, regulations, legal or governmental
proceedings, contracts and other documents referred to therein, have been
reviewed by such counsel and fairly summarize and fairly present in all material
respects the information called for by the 1933 Act and the 1933 Act Rules and
Regulations.

         (xi) Neither the Company nor any of its Significant Subsidiaries is, or
with the giving of notice or lapse of time or both would be, in default or
violation with respect to its articles of incorporation or by-laws (or code of
regulations). To the knowledge of such counsel, neither the Company nor any of
its subsidiaries is, or with the giving of notice or lapse of time or both would
be, in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the properties or assets of the
Company or any of its subsidiaries is subject, or in violation of any statutes,
laws, ordinances or governmental rules or regulations or any orders or decrees
to which it is subject, including, without limitation, Section 13 of the 1934
Act, which default or violation, individually or in the aggregate, would have a
Material Adverse Effect.

         (xii) To the knowledge of such counsel, (A) there are no legal,
governmental or regulatory proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or of that the business or
properties of the Company or any of its subsidiaries is the subject that are
required to be disclosed which are not so disclosed in the Registration
Statement and Prospectus; (B) there are no contracts or documents of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement that are not described or
filed as required; and (C) there are no statutes, ordinances, laws, rules or
regulations required to be described in the Registration Statement or Prospectus
which are not described as required.


                                       30


         (xiii) The Company is not and, after giving effect to the offering and
sale of the Designated Shares, will not be, an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the 1940
Act.

         (xiv) To the knowledge of such counsel, and except as disclosed in the
Prospectus, no holder of any security of the Company has any right to require
registration of the Depositary Shares or any other security of the Company
because of the filing of the Registration Statement or the consummation of the
transactions contemplated hereby and, except as disclosed in the Prospectus, no
person has the right to require registration under the 1933 Act of any shares of
the Depositary Shares or other securities of the Company, except as set forth on
SCHEDULE C.



                                       31



                                   SCHEDULE A

Second and Amended and Restated Limited Partnership Agreement of Shawan Road
Hotel Limited Partnership, dated July 24, 1997, between Boykin Hunt Valley,
L.L.C. and Hunt Valley Associates, LLC.





                                       32



                                   SCHEDULE B

Stock Purchase Option Agreement, dated as of February 1, 1999, by and among the
Company, Boykin Hotel Properties, L.P. and AEW Partners III, L.P.

Boykin Lodging Company Long Term Incentive Plan

Dividend Reinvestment and Optional Share Purchase Plan





                                       33




                                   SCHEDULE C


Registration Rights Agreement, dated as of November 4, 1996, by and among Boykin
Lodging Company and certain holders of securities of Boykin Lodging Company


Registration Rights Agreement, dated as of February 1, 1999, by and between
Boykin Lodging Company and AEW Partners III, L.P.

Registration Rights Agreement, dated as of January 1, 2002, between Boykin
Lodging Company and JABO LLC



                                       34



                                     ANNEX C





Boykin Lodging Company
Terminal Tower, Suite 1500
50 Public Square
Cleveland, Ohio 44113-2258

                  Re:  Status as a REIT

Ladies and Gentlemen:

                  In connection with the prospectus supplement and prospectus
(the "Prospectus") being filed by you on the date hereof with the Securities and
Exchange Commission, you have requested our opinion regarding whether Boykin
Lodging Company (the "Company") has qualified as a real estate investment trust
("REIT") for its taxable years ended December 31, 1996 through December 31,
2001, has been organized in conformity with the requirements for qualification
as a REIT, and whether its method of operation has enabled the Company to meet,
and will enable it to continue to meet, the requirements for qualification and
taxation as a REIT under the Internal Revenue Code of 1986, as amended (the
"Code"). This opinion is conditioned upon certain representations made by the
Company as to factual matters as set forth in the Prospectus and the
registration statements on Forms S-3 and S-11 previously filed with the
Securities and Exchange Commission (the "Registrations"). In addition, the
Company has provided a representation letter and certificate ("Representation
Letter") certifying, among other items, that it has made a timely election to be
taxed as a REIT under the Code commencing with its initial taxable year ended
December 31, 1996, and that commencing with the first taxable year that the
Company has elected to be taxed as a REIT, the Company has operated and will
continue to operate in accordance with the terms and provisions of its Articles
of Incorporation and in accordance with the method of operation described in the
Prospectus and the Registrations.

                  Based on such representations, it is our opinion that the
Company has qualified as a REIT for its taxable years ended December 31, 1996
through December 31, 2001, the Company is organized in conformity with the
requirements for qualification as a REIT, and the Company's current and proposed
method of operation will enable it to meet the requirements for qualification
and taxation as a REIT under the Code for its taxable year ended December 31,
2002 and for all future taxable years. With respect to our opinion that the
Company has qualified as a REIT for its taxable years ended December 31, 2000
and December 31, 2001, we note that the Company did not meet the requirements of
Section 856(c)(2) of the Code for such taxable years. Pursuant to Section
856(c)(6) of the Code, the Company nevertheless is considered to have satisfied
the requirements of Sections 856(c)(2) for its taxable years 2000 and 2001 if
(A) the nature and amount of each item of its gross income described in such
Section is set forth in a schedule attached to its income tax return for such
taxable years; (B) the inclusion of any incorrect information in the schedule
referred to in (A) is not due to fraud with intent to evade tax; and (C) the
failure to meet the requirements of Section 856(c)(2) is due to reasonable cause
and not due to willful neglect (collectively, the "Cure Provisions"). We are of
the opinion that for the taxable years ended December 31, 2000 and December 31,
2001, the Company satisfied the Cure Provisions, and accordingly, the Company
will be deemed to have satisfied the requirements of Section 856(c)(2) for such
taxable years.

                  This opinion is based on various statutory provisions and
regulations promulgated thereunder, in effect on the date hereof, and the
interpretations of such provisions and regulations by the Internal Revenue
Service and the courts having jurisdiction over such matters, all of which are
subject to change either prospectively or retroactively. Also, any variation
from the factual statements set forth in the Prospectus, the Registrations or
the Representation Letter may affect the conclusions stated herein. Moreover,
the Company's qualification and taxation as a REIT depends upon the Company's
ability to meet, through actual annual operating results, distribution levels


                                       35


and diversity of stock ownership, the various qualification tests imposed under
the Code, the results of which will not be reviewed by Baker & Hostetler LLP.
Accordingly, no assurance can be given that the actual results of the Company's
operations for any one taxable year will satisfy such requirements. We wish to
point out that our opinion is not binding on the Internal Revenue Service and,
without limiting our opinion, we note that there can be no assurance that all of
the requirements for qualification as a REIT for any particular taxable year
have in fact been met until the return for such taxable year has been reviewed
by the Internal Revenue Service or the period for such review has expired.

                  This opinion is limited to the federal income tax matters
addressed herein, and no other opinions are rendered with respect to other
federal tax matters or to any issues arising under the tax laws of any state or
locality. We undertake no obligation to update the opinions expressed herein
after the date of this letter. This opinion is rendered to the addressee of this
letter solely for the purpose referred to in the first paragraph hereof, and may
not be relied on or referred to by any other person or entity or by any
addressee for any other purpose without the express written consent of this
Firm. We hereby consent to the filing of this opinion as an Exhibit to the
Prospectus.


                                                     Very truly yours,




                                                     Baker & Hostetler LLP








                                       36



                                     ANNEX D

Boykin Hotel Properties LP
Red Lion Inns Operating LP
Boykin Holding LLC
Boykin Buffalo LLC
Boykin Berkeley LLC
Bellboy, Inc.
French Lick Leasing LLC
Buffalo Leasing LLC
Westboy LLC
Shawan Road Hotel Limited Partnership
Boykin Kansas City LLC
Beachboy LLC








                                       37



                                  SCHEDULE 4.7

PLEDGES OF INTERESTS IN SUBSIDIARIES:

1. Security Agreement - Pledge and Assignment of Membership Interests, dated
July 31, 2001, by and between Boykin Hotel Properties, L.P. and Concord Lodging
Investment Partners (Lyndhurst) LLC and Nationwide Life Insurance.

JOINT VENTURES CONTAINING RESTRICTIONS ON TRANSFER OF INTERESTS IN SUBSIDIARIES:

1. Limited Partnership Agreement of Boystar Ventures, L.P., dated July 15, 1997,
between Boykin Hotel Properties, L.P. and Capstar BK Company L.L.C.

2. Second Amended and Restated Limited Partnership Agreement of Shawan Road
Hotel Limited Partnership, dated July 24, 1997, between Boykin Hunt Valley,
L.L.C. and Hunt Valley Associates, L.L.C.

3. Operating Agreement of Boykin San Diego, L.L.C., dated November 7, 1997,
between Boykin Hotel Properties, L.P. and OLS San Diego, LLC.

4. Limited Liability Company Agreement of Boykin/AEW LLC, dated February 1,
1999, between AEW Partners III, L.P. and Boykin Hotel Properties, L.P.

5. Operating Agreement of BoyCon L.L.C., dated May 1, 2001, between Boykin Hotel
Properties, L.P. and Concord Lodging Investment Partners (Lyndhurst) LLC, as
amended.




                                       38