EXHIBIT 10.4
ASSIGNMENT AND ASSUMPTION OF CONTRACT AND CONTRACT RIGHTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACT AND CONTRACT RIGHTS (this
"Agreement"), dated effective as of October 7, 2003, is made by and between
ASHFORD HOSPITALITY LIMITED PARTNERSHIP, a Maryland limited partnership
("Assignor"), and ASHFORD FINANCIAL CORPORATION, a Texas corporation
("Assignee").
RECITAL
A. Assignor and Assignee have entered into an Assignment of Contract
and Contract Rights, dated as of August 29, 2003 (the "Original Assignment"),
wherein Assignee transferred and conveyed its rights, obligations and benefits
in certain Asset Management and Consulting Agreements described on Exhibit A
attached hereto (collectively, the "Assigned Contracts"), including its rights
to provide the Services and to receive the Consulting Fees (as such terms are
defined therein), to Assignor.
B. Reference is hereby made to additional documents executed by one or
both of the parties hereto in connection with and related to the Original
Assignment (the "Related Documents"), each dated August 29, 2003, including
without limitation the (i) Guaranty executed by Assignee (the "Guaranty"), (ii)
Pledge and Security Agreement executed by Assignor and Assignee, (iii) UCC
Financing Statement executed by Assignee, and (iv) Asset Management and
Consulting Agreement executed by Assignee and Remington Hospitality, Inc.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, Assignor agrees, among other things, to assign its
rights, obligations and benefits under the Assigned Contracts and Assignee
agrees to assume said Assigned Contracts (and the rights, obligations and
benefits thereunder), subject to the Right of Reassignment (defined below)
reserved to Assignor, pursuant to the terms and provisions of this Agreement as
set forth below.
ARTICLE 1
ASSIGNMENT
1.1 DEFINED TERMS. All terms used but not defined herein shall have the
meaning as set forth in the Assigned Contracts.
1.2 ASSIGNMENT OF CONTRACTS. Subject to the Right of Reassignment
hereby reserved by Assignor, as provided and defined below, Assignor hereby
conveys, assigns, transfers, delivers and sets over unto Assignee, and its
successors and assigns, all right, title, and interest of Assignor in, to and
under the Assigned Contracts, including without limitation, any and all present
and continuing rights (i) to make claim for, collect, receive and receipt for
any of the sums of money payable or receivable thereunder, including the
Consulting Fees accruing after the date hereof, (ii) to do any and all things
which Assignor is or may become obligated to do under the Assigned Contracts
including performance of the Services, and (iii) to bring actions and
proceedings under the Assigned Contracts or for the enforcement thereof and to
otherwise
exercise all remedies under the Assigned Contracts; TO HAVE AND TO HOLD the
Assigned Contracts unto Assignee, and its successors and assigns forever,
together with all and singular the rights and appurtenances belonging or
pertaining thereto, subject to Assignor's Right of Reassignment.
1.3 RIGHT OF REASSIGNMENT. As of January 1, 2004, Assignor shall have
an absolute right (the "Right of Reassignment"), at its option, to demand and
receive from Assignee a reassignment back to Assignor (the "Reassignment"), of
all right, title and interest in, to and under the Assigned Contracts, including
all of the rights, obligations and benefits thereunder, upon substantially the
same terms, as to Assignee, as provided in the Original Assignment. Such
Reassignment shall be effective as of January 1, 2004, or such later date as the
Assignor shall determine in its discretion (the "Reassignment Effective Date").
1.4 ASSIGNEE ASSUMPTION OF OBLIGATIONS. Assignee hereby accepts the
foregoing assignment of the Assigned Contracts, subject to Assignor's Right of
Reassignment, and hereby assumes and agrees to fulfill, perform and discharge
all the various liabilities, obligations, duties, covenants and agreements under
or with respect to or in any way arising out of or relating to the Assigned
Contracts from and after the date hereof.
1.5 RELATED DOCUMENTS. This Agreement is not intended and shall not be
deemed to amend, modify or supercede the terms of, or the obligations of those
parties to, the Related Documents; provided that Assignee agrees that: (i) the
Guarantee Period (as defined in the Guaranty) for the Guaranty shall be and is
hereby extended for an additional time period equal to the sum of the number of
days commencing with the date of this Agreement and ending as of the
Reassignment Effective Date (the "Tolling Period"), (ii) the Guaranty shall not
apply during the Tolling Period, and (iii) the Minimum Guaranteed Fee (as
defined in the Guaranty) for the time period from August 29, 2003 to October 7,
2003, the date hereof, shall be $128,219.18.
1.6 SUBSEQUENT ACTIONS. Assignor hereby covenants to and with Assignee,
its successors and assigns, to execute and deliver to Assignee, its successors
and assigns, (i) all such other and further instruments of assignment and
transfer, and all such notices, releases, and other documents, that would more
fully and specifically assign and transfer to and vest in Assignee, its
successors and assigns, the rights of Assignor in and to the Assigned Contracts
hereby assigned and transferred, or intended to be assigned and transferred, and
(ii) all such other documents, notices, accountings, financial information and
other documents and information that would more fully and specifically enable
Assignee to receive the benefits from the Assigned Contracts. Assignor further
covenants and agree to cooperate as reasonably requested by Assignee in
connection with this Agreement, the administration of the Assigned Contracts and
the ability of Assignee to receive the benefits of the Assigned Contracts.
1.7 EMPLOYEES. Assignor and Assignee agree that the employees set forth
on Exhibit B, attached hereto and made a part hereof, shall, effective as of the
date hereof, be terminated by Assignor and shall be offered employment by
Assignee.
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ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1 REPRESENTATIONS AND WARRANTIES REGARDING ASSIGNED CONTRACTS.
(a) Each of Assignor and its general partner is duly formed or
organized and validly existing under the laws of its respective state of
organization, and Assignor's general partner, on behalf of Assignor, has the
power and authority to execute, deliver and perform its obligations hereunder,
all of which has been duly authorized by all necessary limited liability company
action on the part of Assignor's general partner. This Agreement has been duly
and validly executed and delivered by Assignor.
(b) Assignor owns the Assigned Contracts free and clear of any
lien, security interest, charge or encumbrance as of the date hereof.
(c) Assignee is duly formed or organized and validly existing under
the laws of the state of its organization and has the power and authority to
execute, deliver and perform its obligations hereunder, all of which has been
duly authorized by all necessary corporate action on its part. This Agreement
has been duly and validly executed and delivered by Assignee.
2.2 COVENANTS REGARDING CONTRACT RIGHTS.
(a) Neither party hereto will sell, pledge, mortgage, assign,
transfer or otherwise dispose of or create or suffer to exist any lien, security
interest, encumbrance of any kind on the Assigned Contracts.
(b) Neither party hereto will permit or suffer to exist any
amendment or modification of the Assigned Contracts without the express written
consent of the other party hereto.
(c) Assignor agrees to immediately direct the Managers to direct
payment of all of the Consulting Fees accruing after the date hereof to Assignee
at such address or in accordance with such other instructions as Assignee shall
request from time to time. In the event that Assignor receives payment of any of
the Consulting Fees accruing after the date hereof, Assignor will hold same in
trust for the benefit of the Assignee and will immediately remit same to
Assignee. Upon the request of Assignee, Assignor will immediately make a full
and complete accounting of all such amounts so received.
ARTICLE 3
MISCELLANEOUS
3.1 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
ASSIGNOR AND ASSIGNEE HEREUNDER SHALL BE GOVERNED BY AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW RULES THAT WOULD DIRECT
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
3.2 BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their successors and assigns.
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3.3 MULTIPLE ORIGINALS. This Agreement may be executed in two
originals, each of which shall be deemed an original, but both of which shall
constitute one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement
to be effective as of the day and year first above written.
ASSIGNOR:
ASHFORD HOSPITALITY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: Ashford OP General Partner LLC, a
Delaware limited liability company,
its general partner
By: /s/ David A. Brooks
---------------------------------------
David A. Brooks
Vice President
ASSIGNEE:
ASHFORD FINANCIAL CORPORATION, a Texas corporation
By: /s/ Montgomery J. Bennett
-----------------------------------------------
Montgomery J. Bennett
President
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EXHIBIT A
LIST OF ASSIGNED CONTRACTS
1. Asset Management and Consulting Agreement, dated as of May 15, 2003,
with Remington Hospitality, Inc., as Manager;
2. Asset Management and Consulting Agreement, dated as of May 15, 2003,
with Remington Suites Hotel Corporation, as Manager;
3. Asset Management and Consulting Agreement, dated as of May 15, 2003, by
with Remington Employers Corporation, as Manager;
4. Asset Management and Consulting Agreement, dated as of May 15, 2003,
with Remington Employers Management Corporation, as Manager;
5. Asset Management and Consulting Agreement, dated as of May 15, 2003,
with Remington Indianapolis Employers Corporation, as Manager;
6. Asset Management and Consulting Agreement, dated as of May 15, 2003,
with Milford Hotel Employers Corporation, as Manager;
7. Asset Management and Consulting Agreement, dated as of May 15, 2003,
with Remington Orlando Management Corp., as Manager; and
8. Asset Management and Consulting Agreement, dated as of May 15, 2003,
with Remington Ventura Employers Corporation, as Manager.
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EXHIBIT B
EMPLOYEES
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