EXHIBIT 10.22
MUTUAL EXCLUSIVITY AGREEMENT
THIS MUTUAL EXCLUSIVITY AGREEMENT (this "AGREEMENT") is entered as of
the ____ day of __________, 2003 (the "EFFECTIVE DATE") by and between ASHFORD
HOSPITALITY LIMITED PARTNERSHIP, a Delaware limited partnership (the
"Partnership"), ASHFORD HOSPITALITY TRUST, INC., a Maryland corporation (the
"REIT"), REMINGTON HOTEL CORPORATION, a Texas corporation ("RHC"), and REMINGTON
LODGING & HOSPITALITY, L.P., a Delaware limited partnership ("MANAGER"), and is
consented and agreed to by ARCHIE BENNETT, JR. and MONTGOMERY J. BENNETT as
Remington Affiliates.
THE PARTIES HERETO ENTER THIS AGREEMENT on the basis of the following
facts, understandings and intentions:
A. Prior to the date hereof, the Remington Parties have been actively
engaged in various aspects of acquisition, development, renovation, management
and operation of Hotel Properties, including, without limitation, the hotel
properties described on EXHIBIT A attached hereto (the "INITIAL HOTELS").
B. The Remington Parties plan to continue to engage in various aspects
of development, renovation, management and operation of Hotel Properties.
C. The REIT has undertaken, or will concurrently with its initial
public offering, undertake to acquire, develop, invest in, or purchase or make
loans with respect to Hotel Properties that meet the REIT's investment criteria.
D. The REIT Parties desire to benefit from the hotel development and
management experience of the Remington Parties and have agreed to engage Manager
in connection with certain investment opportunities (subject to an Independent
Director Election); provided, the Remington Parties agree to grant the REIT
Parties a first right of refusal with respect to any Remington Transaction that
any of the Remington Parties resource or identify.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises
of the parties hereto, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. DEFINITIONS. All terms used in this Agreement but not defined herein
shall have the meanings as set forth on EXHIBIT B attached hereto and
incorporated herein for all purposes (applicable to both the singular and plural
forms of the terms defined).
2. TERM OF AGREEMENT. This Agreement shall commence as of the Effective
Date and shall terminate ten (10) years thereafter (the "INITIAL TERM"), unless
earlier terminated in whole or in part (with respect to the Remington
Exclusivity Rights or the REIT Exclusivity Rights, or both, as applicable), due
to (a) an Event of Default under this Agreement and the non-defaulting party
elects to terminate this Agreement, (b) the occurrence of a Remington
Termination Event, (c) the occurrence of a REIT Termination Event, or (d)
termination of the Master Management Agreement with respect to all of the
properties covered thereby pursuant to
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an Event of Default (as defined therein) applicable to all of the properties
then covered by the Master Management Agreement as set forth in Section 19.02
thereof and the non-defaulting party thereunder elects in writing to terminate
this Agreement (the events in subparagraphs (a) through (d) herein each called,
a "TERMINATION EVENT"). Notwithstanding the foregoing, the Initial Term shall
automatically be extended at the expiration of the Initial Term (with respect to
the Remington Exclusivity Rights or the REIT Exclusivity Rights, or both, as
applicable), on the same terms and conditions contained herein, for each of
three (3) successive periods of seven (7) Fiscal Years each and one final period
of four (4) years; provided, however, that at the time of the expiration of the
Initial Term or extension term, as applicable, a Termination Event with respect
to the entirety of this Agreement does not then exist. The Initial Term as
extended by any extension terms, if any, shall herein be called the "TERM." Upon
the occurrence of a Termination Event (except where such Termination Event is
due to an Event of Default by any of the Remington Parties under this
Agreement), the Remington Parties shall be entitled to receive the Reimbursement
Amount payable under this Agreement. Subject to SECTION 8(b) below, upon
termination of the entirety of this Agreement, the Remington Parties and the
REIT Parties shall have no further obligations to one another pursuant to this
Agreement, except for any indemnification obligations contained herein, which
shall survive such termination. Any termination of this Agreement in whole or in
part shall not terminate any existing management and/or development agreements
or any other agreements executed between the parties hereto that are then
continuing and in full force and effect.
3. EARLY TERMINATION EVENTS.
(a) REMINGTON TERMINATION EVENT. Upon the occurrence of any of the
following events, the Remington Parties acting through Manager may, at their
election exercised in their sole and absolute discretion and upon written notice
to the REIT Parties, terminate the REIT Exclusivity Rights:
(i) Montgomery J. Bennett (1) is removed without Cause, (2) is not
re-appointed as chief executive officer of the REIT, (3)
resigns as chief executive officer of the REIT for Good Reason
or as a result of a Change in Control (within 12 months of the
occurrence of such event), or (4) the Employment Agreement is
not renewed; but with respect to all of the foregoing,
excluding in connection with the death of Montgomery J.
Bennett;
(ii) Archie Bennett, Jr. (1) is removed as a director of the REIT
without Cause, (2) is not renominated to serve as Chairman of
the board of directors of the REIT, or (3) resigns from the
board of directors for Good Reason or as a result of a Change
in Control (within 12 months of the occurrence of such event);
but with respect to all of the foregoing, excluding in
connection with the death of Archie Bennett, Jr.;
(iii) Upon expiration of the non-compete restrictions contained in
the Employment Agreement of Montgomery J. Bennett, if the REIT
Parties have not already terminated the Remington Exclusivity
Rights with respect to the REIT Termination Events set forth
in SECTION 3(b)(ii) OR (iii) below; and
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(iv) Subject to each party's obligation to act in good faith, if
Montgomery J. Bennett is then no longer chief executive
officer of the REIT and subject to the non-compete
restrictions in his Employment Agreement, and three times in
any Fiscal Year during the Term hereof, in any combination set
forth below:
(a) the Independent Directors elect not to pursue a
Remington Transaction presented to the REIT
Affiliates by the Remington Affiliates pursuant to
SECTION 4(a);
(b) the Independent Directors elect not to engage Manager
with respect to the management or development
opportunities part of a Remington Transaction which
the REIT Parties have elected to pursue pursuant to
SECTION 4(a); and/or
(c) the REIT Parties fail to close on a Remington
Transaction presented to the REIT Affiliates by the
Remington Affiliates, and the failure to close is
caused by a REIT Affiliate and not the third party
selling the Remington Transaction (it being
understood that a failure to close shall not be
"caused" by a REIT Affiliate if a REIT Party elects
not to close because of the third party's breach of
an applicable agreement);
(v) If the REIT Parties terminate the Remington Exclusivity Rights
based upon a REIT Termination Event set forth in SECTIONS
3(b)(ii) THROUGH (v).
Upon the REIT Parties' receipt of written notice of termination of the
REIT Exclusivity Rights from the Remington Parties, the REIT Exclusivity Rights
set forth in this Agreement shall terminate; however, all other terms and
provisions of this Agreement shall remain in full force and effect, including
the Remington Exclusivity Rights, until this Agreement expires or is otherwise
terminated as permitted under this Agreement.
(b) REIT TERMINATION EVENT. Upon the occurrence of any of the following
events, the REIT Parties may, at their election exercised in their sole and
absolute discretion and upon written notice to the Remington Parties, terminate
the Remington Exclusivity Rights:
(i) The Manager fails to qualify as an "eligible independent
contractor" as defined in Section 856(d)(9) of the Internal
Revenue Code;
(ii) If Montgomery J. Bennett resigns as chief executive officer of
the REIT without Good Reason;
(iii) If Montgomery J. Bennett's Employment Agreement is terminated
for Cause;
(iv) Any one of the Remington Parties ceases to be controlled by
Archie Bennett, Jr. and/or Montgomery J. Bennett and/or their
respective family partnership or trusts, the sole members of
which are at all times lineal descendants of Archie Bennett,
Jr. or Montgomery J. Bennett (including step children) and
spouses of any of the foregoing, with "control" meaning (a)
the possession, directly or indirectly, of a
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majority of the capital stock and voting power of such
Remington Parties, or (b) the power to direct or cause the
direction of the management and policies of the Remington
Parties in the capacity of chief executive officer, president,
chairman, or other similar capacity where they are actively
engaged and/or involved in providing such direction or control
and spend substantial time managing the Remington Parties;
(v) If there is a Change In Control, provided that the REIT first
pays to the Manager the termination fees payable in connection
with a termination for convenience as set forth in Section
2.03(c) of the Master Management Agreement for all of the
properties then covered by such Master Management Agreement;
and
(vi) If the Remington Parties terminate the REIT Exclusivity Rights
by reason of a Remington Termination Event.
Upon the Remington Parties' receipt of written notice of termination of
the Remington Exclusivity Rights from the REIT Parties, the Remington
Exclusivity Rights set forth in this Agreement shall terminate; however, all
other terms and provisions of this Agreement shall remain in full force and
effect, including the REIT Exclusivity Rights, until this Agreement expires or
is otherwise terminated as permitted under this Agreement.
4. REIT EXCLUSIVITY RIGHTS.
(a) REMINGTON TRANSACTION; REMINGTON NOTICE. If any of the Remington
Affiliates identify an opportunity to develop and construct, acquire all or a
portion of, invest in, make loans with respect to, or acquire all or a portion
of the debt with respect to, a Hotel Property (herein each called, a "REMINGTON
TRANSACTION"), the Remington Parties on behalf of themselves and their
Affiliates, hereby grant to the REIT Parties the exclusive first right of
refusal to purchase and assume such Remington Transaction and agree not to
pursue any such opportunity (except as provided in this SECTION 4) and
acknowledge that each such opportunity will belong to the REIT Parties (the
"REIT EXCLUSIVITY RIGHTS"). In connection with each Remington Transaction, the
Remington Parties on behalf of the Remington Affiliates shall deliver to the
REIT Parties, with a copy to the Independent Directors, a written notice (the
"REMINGTON NOTICE") in reasonable detail sufficient to describe the material
terms of the Remington Transaction, including without limitation, as applicable,
a description of the nature of the transaction (acquisition, development, or
other investment), description and location of the asset, name of franchisor,
inspection period, timing for closing, earnest money requirements, closing
costs, a break down estimate of the Reimbursement Amount, and to the extent
available and in the possession of the Remington Parties, copies of any letters
of intent, purchase and sale agreements, or development agreements, as
applicable (the "REIT TRANSACTION DOCUMENTS"). Such Remington Notice shall be
delivered to the REIT Parties (with a copy to the Independent Directors), as
soon as reasonably practical after the opportunity of the Remington Transaction
is identified for any of the Remington Affiliates.
(b) REIT ROFR. The REIT Parties shall have the right, through any of
the REIT Affiliates, to accept or decline such Remington Transaction (the "REIT
ROFR") by giving
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written notice (the "REIT ROFR NOTICE") to the Remington Parties at any time on
or before ten (10) business days from its receipt of a Remington Notice (the
"REIT ROFR PERIOD").
(c) ACCEPTANCE OF REMINGTON TRANSACTION. Any acceptance of the
Remington Transaction by the REIT Parties shall be in accordance with the
following terms and conditions:
(i) Upon delivery of a REIT ROFR Notice accepting the Remington
Transaction, the REIT Parties (through any of the REIT
Affiliates) shall assume (and the applicable Remington
Affiliate shall assign) any applicable REIT Transaction
Documents containing materially the same terms and conditions
as set forth in the Remington Notice within ten (10) business
days of the receipt by the Remington Parties of the REIT ROFR
Notice;
(ii) The REIT Parties (through any of the REIT Affiliates) shall
pay the Reimbursement Amount to the applicable Remington
Affiliate;
(iii) The REIT Parties (through any of the REIT Affiliates) shall
pursue the Remington Transaction in accordance with the
applicable REIT Transaction Documents with commercially
reasonable diligence; and
(iv) If the Remington Transaction involves the management and
operation of a hotel property and/or the construction and/or
development of a Hotel Property, the applicable REIT Affiliate
assuming the Remington Transaction shall engage Manager, and
Manager agrees to accept such engagement, to perform such
services and execute the applicable documents as described in
SECTION 5(c) below, provided Independent Director Disapproval
has not been received.
(d) REJECTION OR LAPSE OF REIT ROFR; FAILURE TO CLOSE. If the REIT
Parties fail to deliver a REIT ROFR Notice within the REIT ROFR Period or by
REIT ROFR Notice reject or decline to purchase and assume the Remington
Transaction, or the applicable REIT Affiliate fails to timely prepare and
execute the proper REIT Transaction Documents with respect to the Remington
Transaction, then the REIT ROFR shall lapse. In such event, the applicable
Remington Affiliate shall be entitled to proceed with the Remington Transaction
described in the Remington Notice on materially the same terms and conditions as
outlined therein within the time period established therein and in accordance
with the underlying REIT Transaction Documents, subject to reasonable extensions
of the closing date. If the terms and conditions of the Remington Transaction
materially change, then the Remington Parties hereby grant (on behalf of
themselves and the applicable Remington Affiliate) to the REIT Parties the
exclusive first right of refusal to purchase and assume the rights and
obligations of the applicable Remington Affiliate with respect to such Remington
Transaction on the changed terms and conditions and in connection therewith
shall deliver to the REIT Parties a new Remington Notice (subject to the same
time requirements for review and exercise as set forth in this Agreement).
(e) ADDITIONAL INFORMATION. During the REIT ROFR Period with respect to
each Remington Transaction and the related Hotel Property, the Remington Parties
shall deliver to the REIT Parties upon the written request of the REIT Parties,
from time to time and to the extent available, (i) any and all documents,
correspondence and reports, including, without limitation,
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due diligence information (including, property condition reports, surveys,
environmental reports), information and documents bearing on contracts,
litigation and such other matters, and title and lien information; (ii) any
notices of non-compliance with applicable laws bearing on such Hotel Property;
(iii) quarterly financial information with respect to such Hotel Property
showing hotel revenues and hotel operating expenses; and (iv) such other
information relating to the Hotel Property or the Remington Transaction as
reasonably requested by the REIT Parties.
(f) NO ADDITIONAL FEES. Reimbursement to the Remington Parties of the
Reimbursement Amount shall be the sole payment to the applicable Remington
Affiliate with regard to a Remington Transaction. The Remington Parties shall
not receive any finder's fee, brokerage fee, development fee, or other
commissions or compensation with regard to any Remington Transaction.
5. REMINGTON EXCLUSIVITY RIGHTS.
(a) REIT TRANSACTION; REIT NOTICE. If any of the REIT Parties and their
subsidiaries (i) acquires Property for the purposes of development or
construction of a Hotel Property, or (ii) acquires all or a portion of, invests
in, or acquires all or a portion of the debt with respect to a Hotel Property,
or makes a loan with respect to a Hotel Property, and such REIT subsidiaries
have the right and/or control the right to direct the management of and/or
development and construction of and/or capital improvements to or refurbishment
of, or the provision of other services, such as purchasing, interior design,
freight management, and construction management for such Hotel Property (herein
each called, a "REIT TRANSACTION"), the REIT Parties hereby agree (on behalf of
themselves and the applicable REIT subsidiary) to engage Manager or an Affiliate
of Manager (so long as such Affiliate constitutes an Eligible Independent
Contractor and there has not been an Independent Director Election), to provide,
and Manager agrees to then provide or cause such Affiliate to provide, any
development, construction, improvement, refurbishment, capital improvement
budget, and/or management services in connection with such REIT Transaction (the
"REMINGTON EXCLUSIVITY RIGHTS") and in connection therewith shall deliver to the
Remington Parties, a written notice (the "REIT NOTICE") which describes such
REIT Transaction and the services to be provided by Manager, including, the
description and location of the asset, name of the franchisor, and the
development, construction or improvement timeline. The REIT Parties may engage a
third party and not Manager or an Affiliate of Manager to provide the services
in connection with the REIT Transaction if the REIT Transaction has received
Independent Director Disapproval.
(b) REMINGTON TRANSACTION DOCUMENTS.
(i) MASTER MANAGEMENT AGREEMENT. In the event that a REIT
Transaction (for which Manager has been engaged) relates to
the management and operation of a Hotel Property, the terms
and conditions of the management, operation and any
construction, renovations, improvements, refurbishments, or
other services, such as purchasing, interior design, freight
management, and construction management, to be undertaken with
respect to such Hotel Property during the term of such
management and operation, including the amount of any
management, incentive, project or other service fees shall be
either pursuant to the terms and conditions of the Master
Management Agreement (and the Master
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Management Agreement shall be amended accordingly to include
such Hotel Property), or pursuant to a management agreement
with a subsidiary of Manager substantially in form of the
Master Management Agreement.
(ii) DEVELOPMENT AGREEMENT. In the event that a REIT Transaction
relates to the development and construction of a Hotel
Property, then the terms and conditions of any such
development and construction, including the project oversight
and developer management fees, shall be pursuant to the terms
set forth in that certain form of Development Agreement
attached hereto as EXHIBIT C.
6. EXCEPTED TRANSACTIONS. Notwithstanding anything contained in this
Agreement to the contrary, the REIT Parties' rights under SECTION 4 do not
extend to the Excluded Remington Transactions and the Remington Parties' rights
under SECTION 4(c) or SECTION 5 do not extend to the Excluded REIT Transactions.
Each party hereto agrees to give written notice to the other party of any
Excluded REIT Transaction or Excluded Remington Transaction, as applicable,
describing said transaction with reasonable detail.
7. INDEMNITY.
(a) REMINGTON PARTIES' INDEMNITY. Except as set forth in SECTION 7(b)
below, the Remington Parties shall indemnify and hold the REIT Affiliates (and
their respective agents, principals, shareholders, partners, members, officers,
directors, attorneys and employees) harmless from and against all liabilities,
losses, claims, damages, costs and expenses (including, but not limited to,
reasonable attorneys' fees and expenses) that may be incurred by or asserted
against any such party and that arise from (i) the fraud, willful misconduct or
gross negligence of any of the Remington Affiliates, (ii) the breach by the
Remington Affiliates of any provision of this Agreement, or (iii) the breach by
the Remington Affiliates of any Remington Transaction Documents first occurring
prior to the date of the assumption of same by any of the REIT Affiliates. The
REIT Parties shall promptly provide the Remington Parties with written notice of
any claim or suit brought against any of them by a third party which might
result in such indemnification.
(b) REIT PARTIES' INDEMNITY. Except as set forth in SECTION 7(a) herein
above, the REIT Parties shall indemnify and hold the Remington Affiliates (and
their respective agents, principals, shareholders, partners, members, officers,
directors, attorneys and employees) harmless from and against all liabilities,
losses, claims, damages, costs and expenses (including, but not limited to,
reasonable attorneys' fees and expenses) that may be incurred by or asserted
against any such party and that arise from (i) the fraud, willful misconduct or
gross negligence of the REIT Affiliates (other than any Remington Affiliate), or
(ii) the breach by the REIT Affiliates of any provision of this Agreement (other
than any Remington Affiliate). The Remington Parties shall promptly provide the
REIT Parties with written notice of any claim or suit brought against any of
them by a third party which might result in such indemnification.
(c) INDEMNIFICATION PROCEDURE. Any party obligated to indemnify the
other party under this Agreement (the "INDEMNIFYING PARTY") shall have the
right, by written notice to the indemnified party, to assume the defense of any
claim with respect to which the indemnified party is entitled to indemnification
hereunder. If the Indemnifying Party gives such notice, (i)
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such defense shall be conducted by counsel selected by the Indemnifying Party
and approved by the indemnified party, such approval not to be unreasonably
withheld or delayed (provided, however, that the indemnified party's approval
shall not be required with respect to counsel designated by the Indemnifying
Party's insurer); (ii) so long as the Indemnifying Party is conducting such
defense with reasonable diligence, the Indemnifying Party shall have the right
to control said defense and shall not be required to pay the fees or
disbursements of any counsel engaged by the indemnified party for services
rendered after the Indemnifying Party has given the written notice provided for
above to the indemnified party, except if there is a conflict of interest
between the parties with respect to such claim or defense; and (iii) the
Indemnifying Party shall have the right, without the consent of the indemnified
party, to settle such claim, provided that such settlement involves only the
payment of money, the Indemnifying Party pays all amounts due in connection with
or by reason of such settlement and, as part thereof, the indemnified party is
unconditionally released from all liability in respect of such claim. The
indemnified party shall have the right to participate in the defense of such
claim being defended by the Indemnifying Party at the expense of the indemnified
party, but the Indemnifying Party shall have the right to control such defense
(other than in the event of a conflict of interest between the parties with
respect to such claim or defense). In no event shall (i) the indemnified party
settle any claim without the consent of the Indemnifying Party so long as the
Indemnifying Party is conducting the defense thereof in accordance with this
Agreement; or (ii) if a claim is covered by the Indemnifying Party's liability
insurance, take or omit to take any action which would cause the insurer not to
defend such claim or to disclaim liability in respect thereof.
8. EVENTS OF DEFAULT; CONSEQUENCES; REMEDIES.
(a) EVENTS OF DEFAULT. The following shall constitute events of default
(each an "EVENT OF DEFAULT"):
(i) The filing of a voluntary petition in bankruptcy or insolvency
or a petition for reorganization under any bankruptcy law by
any of the Remington Parties or the REIT Parties;
(ii) The consent to any involuntary petition in bankruptcy or the
failure to vacate, within ninety (90) days from the date of
entry thereof, any order approving an involuntary petition by
any of the Remington Parties or the REIT Parties;
(iii) The entering of an order, judgment or decree by any court of
competent jurisdiction, on the application of a creditor,
adjudicating any of the Remington Parties or the REIT Parties
as bankrupt or insolvent, or approving a petition seeking
reorganization or appointing a receiver, trustee, or
liquidator of all or a substantial part of such party's
assets, and such order, judgment or decree continues unstayed
and in effect for any period of ninety (90) days or more;
(iv) The appointment of a receiver for all or any substantial
portion of the property of any of the Remington Parties or the
REIT Parties;
(v) The failure of any of the REIT Parties to make any payment
required to be made in accordance with the terms of this
Agreement within thirty (30) days after
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receipt of written notice from the Remington Parties
specifying said default with reasonable specificity as to when
such payment is due and payable; or
(vi) The failure of any of the Remington Parties or the REIT
Parties to perform, keep or fulfill any of the other
covenants, undertakings, obligations or conditions set forth
in this Agreement, and the continuance of such default for a
period of thirty (30) days after written notice of said
failure; provided, however, if such default cannot be cured
within such thirty (30) day period and the Remington Parties
or the REIT Parties, as the case may be, commences to cure
such default within such thirty (30) day period and thereafter
diligently and expeditiously proceeds to cure the same, such
thirty (30) day period shall be extended so long as it shall
require the Remington Parties or the REIT Parties, as the case
may be, in the exercise of due diligence to cure such default,
it being agreed that no such extension shall be for a period
in excess of one hundred twenty (120) days.
(b) CONSEQUENCE OF DEFAULT. Upon the occurrence of any Event of
Default, the non-defaulting party may, at its election, give the defaulting
party written notice of intention to terminate this Agreement (after the
expiration of any applicable grace or cure period provided in SECTION 8(a)
above), and upon the expiration of thirty (30) days from the date of such
notice, this Agreement shall terminate and the non-defaulting party shall be
entitled to pursue any and all rights and remedies available, at law or in
equity, to the non-defaulting party under this Agreement (including any
indemnity obligations which shall survive this Agreement) or under applicable
law.
9. MISCELLANEOUS.
(a) NOTICES. All notices and other communications required or permitted
hereunder shall be in writing, shall be deemed duly given upon actual receipt
and shall be delivered (i) in person, (ii) by registered or certified mail (air
mail if addressed to an address outside of the country in which mailed), postage
prepaid, return receipt requested, or (iii) by facsimile or other generally
accepted means of electronic transmission (provided that a copy of any notice
delivered pursuant to this clause (iii) shall also be sent pursuant to clause
(ii), addressed as follows (or to such other addresses as may be specified by
like notice to the other parties):
To the Remington Parties: Remington Hotel Corporation
Remington Lodging & Hospitality, L.P.
14180 Dallas Parkway
9th Floor
Dallas, Texas 75254
Attn: Mr. Montgomery J. Bennett
To the REIT Parties: Ashford Hospitality Trust, Inc.
Ashford Hospitality Limited Partnership
14180 Dallas Parkway
7th Floor
Dallas, Texas 75254
Attn: Chief Financial Officer
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with a copy to: Ashford Hospitality Trust, Inc.
Ashford Hospitality Limited Partnership
14180 Dallas Parkway
7th Floor
Dallas, Texas 75254
Attn: Legal Department
with a copy to: Ashford Hospitality Trust, Inc.
14180 Dallas Parkway
9th Floor
Dallas, Texas 75254
Attn: Independent Directors
(b) AMENDMENTS. No amendment, modification or supplement to this
Agreement shall be binding on any of the parties hereto unless it is in writing
and signed by the parties in interest at the time of the modification, and
further provided any such modification is approved by a majority of the
Independent Directors.
(c) SUCCESSORS AND ASSIGNS. Neither this Agreement nor any rights or
obligations hereunder shall be assignable by a party to this Agreement without
the prior, express written consent of the other party. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties to this Agreement and their respective successors and permitted assigns.
(d) NO THIRD-PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the parties to this Agreement and should not be deemed to confer upon
third parties any remedy, claim, liability, reimbursement, claims or action or
other right in excess of those existing without reference to this Agreement.
(e) TITLES AND HEADINGS. Titles and headings to paragraphs and sections
in this Agreement are inserted for the convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
(f) MAXIMUM LEGAL ENFORCEABILITY; TIME OF ESSENCE. Any provision of
this Agreement that is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Without prejudice
to any rights or remedies otherwise available to any party to this Agreement,
each party hereto acknowledges that damages would not be an adequate remedy for
any breach of the provisions of this Agreement and agrees that the obligations
of the parties hereunder shall be specifically enforceable. Time shall be of the
essence as to each and every provision of this Agreement.
(g) FURTHER ASSURANCES. The parties to this Agreement will execute and
deliver or cause the execution and delivery of such further instruments and
documents and will take such
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other actions as any other party to the Agreement may reasonably request in
order to effectuate the purpose of this Agreement and to carry out the terms
hereof.
(h) COMPLETE AGREEMENT; CONSTRUCTION. This Agreement, and the other
agreements and documents referred to herein, shall constitute the entire
agreement between the parties with respect to the subject matter thereof and
shall supersede all previous negotiations, commitments and writings with respect
to such subject matter.
(i) GOVERNING LAW. THIS AGREEMENT AND ITS INTERPRETATION, VALIDITY AND
PERFORMANCE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND, WITHOUT
REGARD TO ITS CONFLICTS OF INTEREST PRINCIPLES. IN THE EVENT ANY COURT OF LAW OF
APPROPRIATE JUDICIAL AUTHORITY SHALL HOLD OR DECLARE THAT THE LAW OF ANOTHER
JURISDICTION IS APPLICABLE, THIS AGREEMENT SHALL REMAIN ENFORCEABLE UNDER THE
LAWS OF THE APPROPRIATE JURISDICTION.
[SIGNATURE PAGES TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first written above.
PARTNERSHIP:
ASHFORD HOSPITALITY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Ashford GP Limited Liability Company,
a Delaware limited liability company,
its general partner
By: Ashford Hospitality Trust, Inc.,
a Maryland corporation, its sole
member
By:
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Name:
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Title:
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REIT:
ASHFORD HOSPITALITY TRUST, INC., a
Maryland corporation
By:
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Name:
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Title:
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RHC:
REMINGTON HOTEL CORPORATION, a Texas
corporation
By:
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Name:
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Title:
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Mutual Exclusivity Agreement
Ashford REIT
-12-
MANAGER:
REMINGTON LODGING & HOSPITALITY, L.P.,
a Delaware limited partnership
By: Remington Lodging & Hospitality, LLC,
a Delaware limited liability company,
its general partner
By:
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a Delaware corporation, its Manager
By:
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Name:
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Title:
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CONSENTED AND AGREED
TO THIS _______ DAY OF
_______________, 2003, AS
REMINGTON AFFILIATES:
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ARCHIE BENNETT, JR.
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MONTGOMERY J. BENNETT
Mutual Exclusivity Agreement
Ashford REIT
-13-
EXHIBIT B
DEFINITIONS
"AFFILIATE" means with respect to a person, any person directly or
indirectly controlling, controlled by or under common control with such person.
The term "person" means and includes any natural person, corporation,
partnership, association, limited liability company or any other legal entity.
"CAUSE" shall have the meaning as set forth in the Employment Agreement
or the Non-Competition Agreement, as applicable.
"CHANGE OF CONTROL" shall have the meaning as defined in the Employment
Agreement or the Non-Competition Agreement, as applicable.
"EMPLOYMENT AGREEMENT" shall mean the employment agreement of
Montgomery J. Bennett dated on or about the date of this Agreement and executed
with the REIT as employer.
"EVENT OF DEFAULT" shall have the meaning as set forth in SECTION 8.
"EXCLUDED REIT TRANSACTIONS" shall mean a REIT Transaction with respect
to which there has been an Independent Director Election.
"EXCLUDED REMINGTON TRANSACTIONS" shall mean the following excluded
transactions of the Remington Affiliates:
(a) Existing hotel investments made by one or more of the Remington
Affiliates with any of their Existing Investors;
(b) Existing bona fide arm's length third party management arrangements
(or arrangements for other services such as project management) with parties
other than the REIT Affiliates pursuant to which one or more of the Remington
Affiliates provide customary hotel management and hotel construction management,
project management and other services; and
(c) Like-kind exchanges under Section 1031 of the Internal Revenue Code
of 1986, as amended, made by any of the Existing Investors pursuant to
contractual obligations existing as of the date of this Agreement provided that
Manager provides ten (10) days prior notice to the REIT of said transaction.
"EXISTING INVESTORS" shall mean the existing joint venture partners,
investors or property owners of the Remington Affiliates as listed on EXHIBIT D
attached hereto.
"FISCAL YEAR" shall mean the twelve (12) month calendar year ending
December 31, except that the first Fiscal Year and last Fiscal Year of the term
of this Agreement may not be full calendar years.
Exhibit B to
Mutual Exclusivity Agreement
Ashford REIT
1
"GOOD REASON" shall have the meaning as set forth in the Employment
Agreement or the Non-Competition Agreement, as applicable.
"HOTEL PROPERTY" means any Property that is used in whole or in part
for hotel purposes, including, without limitation, any motels, motor inns, or
hotels and the like (full service, limited service, extended stay or otherwise),
whether in fee or leasehold, together with any improvements and fixtures now or
hereafter located thereon, all rights, privileges and easements appurtenant
thereto, and all tangible and intangible personal property used in connection
therewith.
"INDEMNIFYING PARTY" shall have the meaning as set forth in SECTION
7(c).
"INDEPENDENT DIRECTORS" shall mean those directors of the REIT who are
"independent" within the meaning of the rules of the New York Stock Exchange or
such other national securities exchange or interdealer quotation system on which
the REIT's common stock is then principally traded.
"INDEPENDENT DIRECTOR ELECTION" shall mean either of the following:
1) The Independent Directors upon a unanimous vote, have at any time
elected not to engage Manager; or
2) A majority of the Independent Directors have elected not to engage
Manager based upon a determination in their reasonable business judgment that
either:
A) Special circumstances exist such that it would be
in the best interest of the REIT not to engage Manager with respect to
a particular Hotel Property; or
B) Based on the prior performance of Manager, another
manager or developer could perform the management, development or other
duties in question materially better than Manager for a particular
Hotel Property.
"INITIAL TERM" shall have the meaning as set forth in SECTION 2.
"MANAGER" means Remington Lodging and Hospitality, Inc., a Texas
corporation.
"MASTER MANAGEMENT AGREEMENT" means that certain Hotel Master
Management Agreement of even date herewith executed between Manager as the
manager and Tenant, as the owner in interest of the Hotel Properties subject of
such agreement, a copy of which is attached hereto as EXHIBIT E.
"NON-COMPETITION AGREEMENT" shall mean that certain Non-Competition
Agreement dated on or about the date of this Agreement, executed between Archie
Bennett, Jr. and the REIT.
"PARTNERSHIP" means Ashford Hospitality Limited Partnership, a Delaware
limited partnership.
Exhibit B to
Mutual Exclusivity Agreement
Ashford REIT
2
"PROPERTY" means any real property or any interest therein.
"REIMBURSEMENT AMOUNT" shall mean the total of all actual out of pocket
and third party costs and expenses paid by and to be reimbursed to the Remington
Affiliates that were necessary and/or appropriate in connection with the
Remington Transaction, including all earnest money deposits. The Reimbursement
Amount shall be calculated by the Remington Parties and set forth in a
certificate delivered to the REIT Parties and certified as true and correct by
the Remington Parties. The Reimbursement Amount shall not include any finder's
fee, brokerage fee, development fee, or other compensation paid to the Remington
Affiliates.
"REIT" means Ashford Hospitality Trust, Inc., a Maryland corporation.
"REIT AFFILIATES" shall mean the REIT Parties and their Affiliates.
"REIT EXCLUSIVITY RIGHTS" shall have the meaning as set forth in
SECTION 4(a).
"REIT NOTICE" shall have the meaning as set forth in SECTION 4(a).
"REIT ROFR" shall have the meaning as described in SECTION 5(a).
"REIT ROFR NOTICE" shall have the meaning as described in SECTION 5(a).
"REIT ROFR PERIOD" shall have the meaning as described in SECTION 5(a).
"REIT PARTIES" shall mean the REIT and the Partnership.
"REIT TERMINATION EVENT" shall mean the events described in SECTION
3(b).
"REIT TRANSACTION" shall have the meaning as set forth in SECTION 5(a).
"REIT TRANSACTION DOCUMENTS" shall have the meaning as set forth in
SECTION 4(a).
"REMINGTON NOTICE" shall have the meaning as set forth in SECTION 5(a).
"REMINGTON AFFILIATES" shall mean the Remington Parties and their
Affiliates.
"REMINGTON EXCLUSIVITY RIGHTS" shall have the meaning as set forth in
SECTION 5(a).
"REMINGTON PARTIES" shall mean RHC and Manager.
"REMINGTON TERMINATION EVENT" shall mean the events described in
SECTION 3(a).
"REMINGTON TRANSACTION" shall have the meaning as set forth in SECTION
4(a).
"REMINGTON TRANSACTION DOCUMENTS" shall have the meaning as set forth
in SECTION 5(b).
"TENANT" shall mean Ashford TRS Corporation, a Delaware corporation.
Exhibit B to
Mutual Exclusivity Agreement
Ashford REIT
3
"TERM" shall have the meaning as set forth in SECTION 2.
"TERMINATION EVENT" shall have the meaning as set forth in SECTION 2.
Exhibit B to
Mutual Exclusivity Agreement
Ashford REIT
4