PROXY STATEMENT
SPECIAL MEETING OF STOCKHOLDERS
To Be Held , 2017
We are providing these proxy materials in connection with the solicitation by the board of directors (the "
Board
")
of Ashford Hospitality Prime, Inc. (the "
Company
") of proxies to be voted at our special meeting of stockholders to be held at the Embassy Suites
by Hilton Dallas Near the Galleria, 14021 Noel Road, Dallas, Texas, 75240, beginning at , Central time,
on , 2017 (the "
Special
Meeting
"). The Board is requesting that you allow your shares to be represented and voted at the Special Meeting of stockholders by the proxies named on the enclosed proxy
card. This proxy statement and accompanying proxy will first be mailed to stockholders on or about , 2017.
"
We
", "
our
", "
us
",
"
Ashford Prime
", and the "
Company
" each refers to Ashford Hospitality Prime, Inc., a Maryland
corporation and real estate investment trust ("
REIT
") listed on The New York Stock Exchange ("
NYSE
")
under the ticker symbol "AHP", but does not include Ashford Inc., Ashford LLC, or Ashford Trust (each defined below), or any of their affiliates party to the Amended Advisory Agreement
(as defined below). We were formed as a result of a spin-off from Ashford Hospitality Trust, Inc., a Maryland corporation and REIT, in November 2013 ("
Ashford
Trust
", NYSE ticker symbol "AHT"). Ashford Inc., referred to throughout this proxy statement as "
Ashford Inc.
"
(NYSE MKT ticker symbol "AINC"), is a Maryland corporation formed as a result of a spin-off from Ashford Trust in November 2014. Ashford Hospitality Advisors, LLC
("
Ashford LLC
") is a Delaware limited liability company and a substantially owned subsidiary of Ashford Inc. which, together with
Ashford Inc., serves as our sole and exclusive advisor. We refer to Ashford Inc. and Ashford LLC collectively as our "
Advisor
,"
unless the context requires otherwise. Remington Lodging & Hospitality, LLC, a Delaware limited liability company that serves as our property management company is referred to throughout
this proxy statement as "
Remington
". Remington is owned by Mr. Monty J. Bennett, our Chairman and former Chief Executive Officer, and his father,
Mr. Archie Bennett, Jr., Chairman Emeritus of Ashford Trust. Mr. Monty Bennett also serves as the Chief Executive Officer of Ashford Inc. and Remington.
At
the Special Meeting, action will be taken approve the Company's Fourth Amended and Restated Advisory Agreement entered into on January 24, 2017, among the Company,
Ashford Inc., Ashford Hospitality Prime Limited Partnership, Ashford Prime TRS Corporation and Ashford Hospitality Advisors LLC (the "
Amended Advisory
Agreement
").
QUESTIONS AND ANSWERS RELATED TO THE PROPOSAL
The following are some questions that you, as a stockholder of the Company, may have regarding the Special Meeting and the Amended Advisory
Agreement and the answers to those questions. We urge you to read carefully the remainder of this document because the information in
this section does not provide all the information that might be important to you with respect to the Special Meeting and the Amended Advisory Agreement. Additional important information is also
contained in the exhibit to and the documents incorporated by reference in this document. Your vote is important because the Amended Advisory Agreement will not become effective without stockholder
approval.
1
Table of Contents
-
Q.
-
What is this document?
-
A.
-
This
document is the proxy statement of the Company that is being furnished to stockholders in connection with the Special Meeting of stockholders to be held on
, 2017. A form of proxy card also is being furnished with this document.
-
Q.
-
Why am I receiving this proxy statement?
-
A.
-
You
are receiving this document because you were one of our stockholders at the close of business on , 2017, the record date for the Special Meeting
(the "
Record Date
"). We are sending this proxy statement and the proxy card to you in order to solicit your proxy (i.e., your permission) to vote
your shares of common stock on the proposal to approve the Amended Advisory Agreement and any other matters that properly may come before the Special Meeting. Because our shares are widely held, it
would be impractical, if not impossible, for our stockholders to meet physically in sufficient numbers to hold a meeting. Accordingly, proxies are solicited from our stockholders. United States
securities laws require us to send you this proxy statement and specify the information required to be contained in it.
-
Q.
-
What is happening?
-
A.
-
The
purpose of the Special Meeting is to seek your approval of the Amended Advisory Agreement. Stockholders of the Company are being asked to approve the Amended
Advisory Agreement summarized in this proxy statement.
-
Q.
-
What proposal am I being asked to vote on?
-
A.
-
At
the Special Meeting, you will be asked to vote on the proposal (the "
Amendment Proposal
"), to approve the Company's
Amended Advisory Agreement, and to transact any other business as may properly come before the Special Meeting or any adjournment(s) or postponement(s) thereof.
-
Q.
-
Why am I being asked to vote on the Amended Advisory Agreement?
-
A.
-
The
approval of the Amended Advisory Agreement is a condition to effectiveness of the agreement. The Company's advisory agreement with the Advisor has been the
subject of significant discussion with our stockholders and the Company believes such discussions have been constructive and beneficial. As a way to enhance stockholder input on this important
agreement, the Company has determined to seek stockholder approval of the Amended Advisory Agreement even though such approval is not required by state or federal law.
-
Q.
-
What are the primary changes made by the Amended Advisory Agreement?
-
A.
-
On
January 24, 2017, the Company announced that it had entered into the Amended Advisory Agreement. The Amended Advisory Agreement amends and restates the
Third Amended and Restated Advisory Agreement, dated as of June 10, 2015, among the Company, the Advisor and certain of their affiliates (the "
Existing Advisory
Agreement
"). The Amended Advisory Agreement will not become effective unless and until it is approved by the Company's stockholders. The Amended Advisory Agreement is
substantially different from the Existing Advisory Agreement and will, if approved by our stockholders, replace the Existing Advisory Agreement in its entirety. Highlights of the Amended Advisory
Agreement include the following:
-
-
the removal of the tax gross-up provision and the 1.1 times multiple from the calculation of the termination fee;
-
-
at the effective date of the Amended Advisory Agreement, the Company will pay the Advisor $5.0 million in cash.
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-
-
the incremental expenses of Ashford Inc. used to calculate the termination fee will be publicly disclosed on a quarterly basis;
-
-
the Advisor will retain an accounting firm to provide a quarterly report to the Company on the reasonableness of the Advisor's determination of
expenses, which will be binding on the Company and the Advisor;
-
-
the termination provisions of the advisory agreement have been amended and, specifically, a change in a majority of the Company's incumbent
directors no longer triggers a termination fee;
-
-
the Advisor's right under the Existing Advisory Agreement to appoint a "Designated Chief Executive Officer" has been eliminated; and
-
-
in addition to the termination fee, a payment of $45.0 million would be owed to the Advisor in the event the Amended Advisory Agreement
is terminated prior to any net incremental growth in the Company's hotel portfolio. This amount may reduce ratably to zero over time based on such net incremental asset growth.
-
Q.
-
Will our recently appointed Chief Executive Officer be affected by the changes to the Amended Advisory
Agreement?
-
A.
-
No.
The role of our recently appointed Chief Executive Officer of Ashford Prime, Richard Stockton, is not impacted by the Amended Advisory Agreement, and he will
continue to serve as Chief Executive Officer in the same capacity as he has since his appointment on November 14, 2016.
-
Q.
-
Has the Board approved the Amended Advisory Agreement and how does the Board recommend that I vote?
-
A.
-
A
special committee of the Board, comprised solely of independent directors (the "
Company Special Committee
"), led the
negotiation of the Amended Advisory Agreement for the Company. The Company Special Committee retained separate independent legal and financial advisors to assist the committee in its negotiation and
evaluation of the Amended Advisory Agreement. The Company Special Committee recommended that the Board, acting solely by the vote of its independent directors, declare the Amended Advisory Agreement
to be advisable and recommend that the Company's stockholders approve the Amended Advisory Agreement. The Board, acting solely upon the unanimous recommendation of the independent directors, approved
the Amended Advisory Agreement at a meeting held on January 24, 2017 and recommends that you vote
FOR
the Amendment Proposal.
-
Q.
-
Who will bear the costs related to this proxy solicitation?
-
A.
-
All
costs of this proxy will be paid by the Company.
-
Q.
-
Who is entitled to vote?
-
A.
-
If
you own shares of the Company as of the Record Date ( , 2017), you are entitled to vote.
-
Q.
-
What vote is required to approve the proposal?
-
A.
-
The
proposal to approve the Amended Advisory Agreement requires the affirmative
FOR
vote of a majority of the votes
cast by stockholders of the Company at the Special Meeting.
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Table of Contents
-
Q.
-
Who will count the votes cast at the Special Meeting?
-
A.
-
The
Board will appoint an independent inspector of election to serve at the Special Meeting. The independent inspector of election for the Special Meeting will
determine the number of votes cast by holders of common stock on the item of business to be considered at the Special Meeting. Final results of the meeting will be announced following certification by
the independent inspector of election.
-
Q.
-
How many votes must be present to hold the Special Meeting?
The
representation in person or by proxy of holders of a majority of the issued and outstanding shares of our common stock entitled to vote at the Special Meeting is necessary to constitute a quorum
for the transaction of business at the Special Meeting. Abstentions will be counted as present for the purpose of determining the presence of a quorum but broker non-votes will not be counted as
present. If a quorum is not present, the Special Meeting of stockholders may be adjourned by the chairman of the Special Meeting or by a vote of a majority of the shares represented at the Special
Meeting until a quorum has been obtained.
-
Q.
-
How many votes do I have and can I cumulate my votes?
-
A.
-
You
have one vote for every share of our common stock that you own. Cumulative voting is not available.
-
Q.
-
How can I vote my shares without attending the Special Meeting?
-
A.
-
Whether
you hold shares directly as the stockholder of record or beneficially in street name, you may direct your vote without attending the Special Meeting. You may
vote by granting a proxy or, for shares held in street name, by submitting voting instructions to your broker or nominee. In most instances, you will be able to do this by mail, over the Internet or
by telephone. Please refer to the summary instructions below or, for shares held in street name, the voting instruction card included by your broker or nominee.
By Mail
: If you hold your common stock in your own name as a holder of record, you may instruct the proxies to
vote your common stock by signing, dating and mailing the enclosed proxy card in the postage-paid envelope provided. If you provide specific voting instructions, your shares will be voted as you
instruct. If you sign the proxy card but do not provide instructions, your shares will be voted
FOR
the Amendment Proposal.
By Internet
: If you have Internet access, you may vote by accessing the Internet website specified on the
enclosed proxy card and following the instructions provided to you.
By Telephone
: If you live in the United States or Canada, you may vote by calling the toll-free number
specified on the enclosed proxy card and following the instructions when prompted.
-
Q.
-
May I vote my shares in person at the Special Meeting?
-
A.
-
Yes.
You may vote your shares at the Special Meeting if you attend in person, even if you previously submitted a proxy card or voted by Internet or telephone. Whether
or not you plan to attend the Special Meeting in person, however, in order to assist us in promptly tabulating votes at the Special Meeting, we encourage you to vote by returning your proxy card or
following the instructions on the proxy card to vote by telephone or the Internet.
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Table of Contents
-
Q.
-
How do I vote if my broker holds my shares in "street name"?
-
A.
-
If
your shares are held in a brokerage account in the name of your bank or broker (this is called "
street name
"), your
bank or broker will send you a request for directions for voting those shares.
-
Q.
-
What is a "broker non-vote"?
-
A.
-
If
you own shares through a broker in street name, you may instruct your broker how to vote your shares. A "
broker
non-vote
" occurs when you fail to provide your broker with voting instructions at least ten (10) days before the Special Meeting and the broker does not have the
discretionary authority to vote your shares on a particular proposal because the proposal is not a "routine" matter under applicable rules. As there will be no routine matters at the Special Meeting,
it is expected that there will be no "broker non-votes".
-
Q.
-
How will abstentions and broker non-votes be treated?
-
A.
-
Abstentions
will be treated as shares that are present and entitled to vote, but broker non-votes will not be counted as present, for purposes of determining whether
a quorum is present at the Special Meeting. For purposes of whether or not the Amendment Proposal is "approved" by stockholders, abstentions and broker non-votes will not be counted as votes cast
either in favor of or against the Amendment Proposal.
-
Q.
-
What happens if I do nothing?
-
A.
-
If
you do not vote using any proxy card from the Company or vote in person at the Special Meeting, your shares will not be considered present and entitled to vote for
purposes of determining whether a quorum is present and will not be counted as votes cast either in favor of or against the Amendment Proposal.
-
Q.
-
Will my shares held in street name be voted if I do not provide my proxy?
-
A.
-
On
certain "routine" matters, brokerage firms have the discretionary authority to vote shares for which their customers do not provide voting instructions. The
approval of the Amendment Proposal to be voted on at the Special Meeting is not considered a routine matter, and, therefore, your shares will not be voted at the Special Meeting unless you instruct
your brokerage firm to vote in a timely manner.
-
Q.
-
How will my proxy be voted?
-
A.
-
The
individuals named on the proxy card will vote your proxy in the manner you indicate on the proxy card.
-
Q.
-
What if I return my proxy card or vote by Internet or telephone but do not specify my vote?
-
A.
-
If
you sign and return your proxy card or complete the Internet or telephone voting procedures but do not specify how you want to vote your shares, your shares will
be considered present and entitled to vote for purposes of determining whether a quorum is present, and the shares represented by that proxy will be voted in accordance with the Board's
recommendations.
-
Q.
-
Can I change my mind and revoke my proxy?
-
A.
-
You
may change your proxy instructions at any time prior to the vote at the Special Meeting. For shares held directly in your name, you may accomplish this by
granting a new proxy by Internet, telephone or mail. If shares of common stock are held on your behalf by a broker, bank or other nominee, you must contact them to receive instructions as to how you
may revoke your proxy
5
Table of Contents
instructions.
Proxies may also be revoked by written notice to the Secretary of the Company or by attending and voting in person at the Special Meeting. Attendance at the Special Meeting will not
cause your previously granted proxy to be revoked unless you specifically so request. You must meet the same deadline when revoking your proxy as when voting your proxy.
-
Q.
-
Who should I call if I have questions about the solicitation?
-
A.
-
If
you have any questions or need further assistance, please call our proxy solicitor: MacKenzie Partners, Inc., toll-free at 800-322-2885 or collect at
212-929-5500 or by email: proxy@mackenziepartners.com.
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INTRODUCTION
This proxy statement, together with the enclosed proxy card, is solicited by and on behalf of the Board for use at the Special Meeting. The
Board is requesting that you allow your shares to be represented and voted at the Special Meeting by the proxies named on the enclosed proxy card. This proxy statement and accompanying proxy card will
first be mailed to stockholders on or about , 2017. The shares represented by the proxies received pursuant to the solicitation made hereby and not revoked will be
voted at the Special
Meeting. The purpose of the Special Meeting is to approve the Amended Advisory Agreement.
GENERAL INFORMATION ABOUT VOTING
Solicitation of Proxies
The enclosed proxy is solicited by and on behalf of our Board. In addition to the solicitation of proxies by use of the mail, we expect that six
officers and other employees of the Company may solicit the return of proxies by personal interview, telephone, e-mail or facsimile. We will not pay additional compensation to our officers or the
employees of the Company for their solicitation efforts, but we will reimburse them for any out-of-pocket expenses incurred in connection with their solicitation efforts. We also intend to request
persons holding shares of our common stock in their name or custody, or in the name of a nominee, to send proxy materials to their principals and request authority for the execution of the proxies,
and we will reimburse such persons for their expense in doing so. We will bear the expense of soliciting proxies for the Special Meeting, including the cost of mailing.
We
have retained MacKenzie Partners, Inc. ("
MacKenzie
") to assist in the solicitation of proxies and to verify records relating to
the solicitation. MacKenzie expects that approximately 15 of its employees will assist in the solicitation. MacKenzie will receive a base fee of $ , plus reasonable
and customary
out-of-pocket expenses.
Voting Securities
The Company's common stock and Series C Preferred Stock constitutes the voting stock of the Company. Each share of common stock and
Series C Preferred Stock entitles the holder to one vote. The common stock and the Series C Preferred Stock vote together as a single class. As of , 2017
there were
shares of common stock outstanding and entitled to vote. Only record holders of voting stock at the close of business
on , 2017 are entitled to notice of and to vote at
the Special Meeting of stockholders and any postponement or adjournment of the Special Meeting. As of , 2017, there are zero shares of Series C Preferred Stock
outstanding and
zero shares of Series C Preferred Stock will vote at the Special Meeting.
On
February 2, 2016, the Company announced amendments to the partnership agreement of its operating partnership, Ashford Hospitality Prime Limited Partnership
("
Ashford Prime OP
" or the "
Operating Partnership
"). The amendments (the "
OP
Amendments
") broadened the rights of the Company in the Operating Partnership in several ways. As consideration for the limited partners of Ashford Prime OP to approve the OP
Amendments, the Company agreed to create and provide qualified limited partners the opportunity to purchase shares of Series C Preferred Stock that would vote alongside the holders of the
Company's common stock on all matters submitted to stockholders on a one-for-one as-converted basis but otherwise have
de minimis
economic and other
rights.
In
response to feedback from the investor community, the Company determined to refrain from issuing the Series C Preferred Stock unless and until the issuance of the
Series C Preferred Stock, in a form and manner that complies with all applicable state and federal laws and stock exchange rules, shall have been approved by the Company's stockholders (the
"
Series C Approval
"). The Ashford Prime OP partnership agreement has been further amended to provide that the OP Amendments will
7
Table of Contents
be
reversed unless and until the Series C Approval has been sought and obtained. The Company has no immediate plans to seek the Series C Approval.
Quorum
As of , 2017, we
had shares of common stock issued and outstanding. Each share outstanding as of the close of
business on the record date ( , 2017) is entitled to one vote upon the Amendment Proposal to be presented at the Special Meeting. If a quorum is not present for the
Special Meeting, but
an affirmative vote of the holders of a majority of the voting power would have been obtained if a quorum was present, the Special Meeting may be adjourned for 10 days (to the same day, time and
place), or to a day, time and place determined by the Chairman of the Special Meeting (which may be earlier or later than said time). If such quorum is not established at any meeting of the
stockholders, the chairman of the meeting may adjourn the meeting
sine die
or from time to time to a date not more than 120 days after the
original record date without notice other than announcement at the meeting. At such adjourned meeting at which a quorum shall be present, any business may be transacted which might have been
transacted at the meeting as originally notified.
Abstentions
will be counted as present and entitled to vote for purposes of determining a quorum, but broker non-votes will not be counted as present for purposes of determining a
quorum. A "broker non-vote" occurs when a bank, broker or other holder of record holding shares for a beneficial owner attends the Special Meeting, but does not vote on a particular proposal because
that holder does not have discretionary voting power for that particular proposal and has not received instructions from the beneficial owner. It is important for a stockholder that holds shares of
the Company's common stock through a bank or broker to instruct its bank or broker how to vote its shares, if the stockholder wants its shares to count towards a quorum and the vote on the Amendment
Proposal.
Majority Required for Approval of the Proposal
The affirmative vote of a majority of votes cast by stockholders of the Company at the Special Meeting is necessary for the approval of the
Amendment Proposal. Any broker non-votes will not be counted as present and are not entitled to vote. Abstentions will count toward a quorum, but will not be treated as a vote
FOR
or a vote
AGAINST
a proposal.
Voting
If you hold your common stock in your own name as a holder of record, you may instruct the proxies to vote your common stock by signing, dating
and mailing the proxy card in the postage-paid envelope provided. You may also vote your common stock in person at the Special Meeting. Each stockholder may appoint only one proxy holder or
representative to attend the Special Meeting on his or her behalf.
If
your common stock is held on your behalf by a broker, bank or other nominee, you will receive instructions from them that you must follow to have your common stock voted at the
Special Meeting.
The
Special Meeting will be held at the Embassy Suites by Hilton Dallas Near the Galleria, 14021 Noel Road, Dallas, Texas, 75240 on , 2017. For your convenience,
there are several ways you can vote:
By Mail
: If you hold your common stock in your own name as a holder of record, you may instruct
the proxies to vote your common stock by signing, dating and mailing the enclosed proxy card in the postage-paid envelope provided. If you provide specific voting instructions, your shares will be
voted as
you instruct. If you sign the proxy card but do not provide instructions, your shares will be voted
FOR
the Amendment Proposal.
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Table of Contents
By Internet
: If you have Internet access, you may vote by accessing the Internet website
specified on the enclosed proxy card and following the instructions provided to you.
By Telephone
: If you live in the United States or Canada, you may vote by calling the toll-free
number specified on the enclosed proxy card and following the instructions when prompted; or
In Person
: Attend the Special Meeting as described in this proxy statement.
Counting of Votes
The presence in person or by proxy of the majority of the votes entitled to be cast at the Special Meeting will constitute a quorum. If you have
returned valid proxy instructions or if you hold your shares in your own name as a holder of record and attend the Special Meeting in person, your shares will be counted for the purpose of determining
whether there is a quorum. If a quorum is not present, the Special Meeting may be adjourned by the vote of a majority of the shares represented at the Special Meeting until a quorum has been obtained.
The
affirmative vote of a majority of votes cast by stockholders of the Company at the Special Meeting is necessary for the approval of the Amendment Proposal. The proxies intend to
exercise their discretionary authority to vote on any stockholder proposals submitted at the Special Meeting and not included in this proxy statement.
If
you are the beneficial owner of shares held in the name of a broker, trustee or other nominee and do not provide that broker, trustee or other nominee with voting instructions, your
shares will not be voted on the Amendment Proposal and may constitute "broker non-votes". Abstentions, broker non-votes and withheld votes will have no effect on the outcome of the Amended Advisory
Agreement
proposal because such votes are not considered votes cast. It is important that you provide instructions to your broker so that your shares will be counted at the Special Meeting.
Right To Revoke Proxy
You may change your proxy instructions at any time prior to the vote at the Special Meeting. For shares held directly in your name, you may
accomplish this by granting a new proxy by Internet, telephone or mail. If shares of common stock are held on your behalf by a broker, bank or other nominee, you must contact them to receive
instructions as to how you may revoke your proxy instructions. Proxies may also be revoked by written notice to the Secretary of the Company or by attending and voting in person at the Special
Meeting. Attendance at the Special Meeting will not cause your previously granted proxy to be revoked unless you specifically so request. You must meet the same deadline when revoking your proxy as
when voting your proxy.
Multiple Stockholders Sharing the Same Address
The Securities and Exchange Commission (the "
SEC
") rules allow for the delivery of a single copy
of a proxy statement to two or more stockholders who share an address, unless we have received contrary instructions from one or more of the stockholders. We will deliver promptly upon written or oral
request separate copies of our proxy statement to a stockholder at a shared address to which a single copy was delivered. Requests for additional copies of the proxy materials, and requests that in
the future separate proxy materials be sent to stockholders who share an address, should be directed to Ashford Hospitality Prime, Inc., Attention: Investor Relations, 14185 Dallas Parkway,
Suite 1100, Dallas, Texas, 75254 or by calling (972) 490-9600. In addition, stockholders who share a single address but receive multiple copies of the proxy materials may request that in
the future they receive a single copy by contacting us at the address and phone number set forth in the previous sentence. Depending upon the practices of your broker, bank or other nominee, you may
need to contact them directly to continue duplicate mailings to your household. If you wish to revoke your consent to householding, you
9
Table of Contents
must
contact your broker, bank or other nominee. If you hold shares of common stock in your own name as a holder of record, householding will not apply to your shares.
If
you wish to request extra copies free of charge of any annual report, proxy statement or a copy of the Amended Advisory Agreement, please send your request to Ashford Hospitality
Prime, Inc., Attention: Investor Relations, 14185 Dallas Parkway, Suite 1100, Dallas, Texas, 75254 or call (972) 490-9600. You can also obtain copies from our web site at
www.ahpreit.com.
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FORWARD-LOOKING STATEMENTS
Certain statements and assumptions throughout this proxy statement contain or are based upon "forward looking" information and are being made
pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. We make forward-looking statements that are subject to risks and uncertainties. When we use the words
forward-looking statements are generally identifiable by use of forward-looking terminology such as "may," "will," "should," "potential," "intend," "expect," "anticipate," "estimate," "approximately,"
"believe," "could," "project," "predict," or other similar words or expressions. Additionally, statements regarding the following subjects are forward-looking by their
nature:
-
-
our business and investment strategy;
-
-
our projected operating results and dividend rates;
-
-
our ability to obtain future financing arrangements;
-
-
our understanding of our competition;
-
-
market trends;
-
-
projected capital expenditures;
-
-
anticipated acquisitions or dispositions;
-
-
estimated net asset growth; and
-
-
the impact of technology on our operations and business.
Forward-looking
statements are based on certain assumptions, discuss future expectations, describe future plans and strategies, contain financial and operating projections or state other
forward looking information. Our ability to predict results or the actual effect of future events, actions, plans or strategies is inherently uncertain. Although we believe that the expectations
reflected in our forward looking statements are based on reasonable assumptions, taking into account all information currently available to us, our actual results and performance could differ
materially from those set forth in our forward looking statements. Factors that could have a material adverse effect on our forward-looking statements include, but are not limited
to:
-
-
general volatility of the capital markets, the general economy or the hospitality industry, whether the result of market events or otherwise;
-
-
our ability to deploy capital and raise additional capital at reasonable costs to repay debts, invest in our properties and fund future
acquisitions;
-
-
unanticipated increases in financing and other costs, including a rise in interest rates;
-
-
the degree and nature of our competition;
-
-
actual and potential conflicts of interest with Ashford Trust, Ashford LLC, Ashford Inc., Remington Lodging, our executive
officers and our non-independent directors including the arrangements set forth in the Amended Advisory Agreement;
-
-
changes in personnel of the Company or the Advisor, or the lack of availability of qualified personnel;
-
-
changes in governmental regulations, accounting rules, tax rates and similar matters;
-
-
legislative and regulatory changes, including changes to the Internal Revenue Code and related rules, regulations and interpretations governing
the taxation of REITs; and
11
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-
-
limitations imposed on our business and our ability to satisfy complex rules in order for us to qualify as a REIT for U.S. federal income tax
purposes.
These
and other risk factors are more fully discussed in the section titled
Risk Factors
in our Annual Report on Form 10-K for the
fiscal year ended December 31, 2015, and from time to time, in the Company's other filings with the SEC. These risks and others not currently known to us could cause our actual results and
performance to differ significantly from those contained in our forward-looking statements. Accordingly, we cannot guarantee future results or performance. Readers are cautioned not to place undue
reliance on any of these forward-looking statements, which reflect our views as of the date of this proxy statement. Furthermore, we do not intend to publicly update or revise any of our
forward-looking statements, whether as a result of new information, future events or circumstances, changes in expectations or others after the date of this proxy statement to conform these statements
to actual results and performance, except as may be required by applicable law.
12
Table of Contents
PROPOSAL: APPROVAL OF THE AMENDED ADVISORY AGREEMENT
On January 24, 2017, the Company announced that it has entered into the Amended Advisory Agreement with Ashford Inc., and Ashford
Hospitality Advisors LLC. The Amended Advisory Agreement amends and restates the Existing Advisory Agreement and, if approved by our
stockholders, will replace the Existing Advisory Agreement in its entirety. The Amended Advisory Agreement will not become effective unless and until it is approved by the Company's stockholders.
The
Company Special Committee, comprised solely of independent directors, led the negotiations of the Amended Advisory Agreement with the special committee of the Advisor (the
"
Advisor Special Committee
"). The Company Special Committee retained separate independent legal and financial advisors to assist the committee in its
negotiations and evaluation of the Amended Advisory Agreement. The Company Special Committee recommended that the Board, acting solely by the vote of its independent directors, declare the Amended
Advisory Agreement to be advisable and to recommend that the Company's stockholders approve the Amended Advisory Agreement.
Material
terms of the Amended Advisory Agreement that we believe are important to our stockholders include the following (capitalized terms used in this section, but not otherwise
defined, have the meanings assigned to them in the Amended Advisory Agreement, a copy of which is attached to this proxy statement as
Exhibit A
):
-
-
the Company will make a cash payment to the Advisor of $5.0 million at the time the Amended Advisory Agreement becomes effective;
-
-
the base management fee payable to the Advisor will be fixed at 70 basis points, and the fee will be payable on a monthly basis;
-
-
the initial term of the Amended Advisory Agreement ends on the 10
th
anniversary of its effective date, subject to renewal
by the Advisor for up to seven additional successive 10-year terms;
-
-
changes to the termination provisions and the termination fee are as
follows:
-
➢
-
the termination fee payable to the Advisor under the Existing Advisory
Agreement has been amended by eliminating the 1.1x multiplier and tax gross up components of the fee;
-
➢
-
the definition of "
Net
Earnings
," which forms the basis of the calculation of the termination fee, has been simplified and the Company and the Advisor will disclose publicly the revenues and expenses
used to calculate Net Earnings on a quarterly basis;
-
➢
-
the elimination of the incumbent board turnover trigger for a change of
control;
-
➢
-
the rights of the Company to terminate the Existing Advisory Agreement at the
end of each term upon payment of the termination fee based on the parties being unable to agree on new market-based fees or Advisor's performance have been eliminated; however, the Amended Advisory
Agreement provides a mechanism for the parties to renegotiate the fees payable to the Advisor at the end of each term based on then prevailing market conditions, subject to floors and caps on the
changes;
-
➢
-
The Advisor will disclose in its periodic reports that it files under the
Exchange Act, the total incremental expenses incurred by the Advisor (including all reimbursable expenses) as reasonably determined by the Advisor for the period covered by the report in connection
with providing services to the Company under this Amended Agreement, which determination shall be conclusive and binding on the Advisor and the Company;
-
-
the right of the Advisor under the Existing Advisory Agreement to appoint a Designated Chief Executive Officer has been eliminated (under the
Existing Advisory Agreement, the Advisor was
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Table of Contents
The
foregoing is intended only as a summary of certain material terms of the Amended Advisory Agreement. It is not a complete description of the Amended Advisory Agreement. It is subject
to and qualified in its entirety by reference to the Amended Advisory Agreement, a copy of which is attached to this proxy statement as
Exhibit A
. Also, see the section entitled
The Amended Advisory Agreement
for a more comprehensive
summary of the Amended Advisory Agreement.
THE
COMPANY'S BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT THE STOCKHOLDERS OF COMPANY VOTE
FOR
THE AMENDED ADVISORY AGREEMENT.
14
Table of Contents
The Background of the Amended Advisory Agreement
Below is a summary regarding the background of the advisory agreement from when it was first entered into through the recent changes approved by
the Board and is the subject of the stockholder vote being sought in this proxy statement. Capitalized terms used throughout and not otherwise defined shall have the meaning set forth in the Amended
Advisory Agreement.
In
late 2013, the Company entered into a Separation and Distribution Agreement by and between Ashford Trust, Ashford Hospitality Limited Partnership, Ashford TRS Corporation, the
Company, Ashford Hospitality Prime Limited Partnership, and Ashford Prime TRS Corporation, to effect the separation and distribution of the Company from Ashford Trust and provide a framework for the
Company's relationships with Ashford Trust after the separation.
At
the end of 2013, the Company began trading as an independent public company on the New York Stock Exchange under the ticker symbol "AHP". The Company became an independent
publicly-traded REIT focused on investing in high RevPAR full-service and urban select-service hotels and resorts located predominantly in domestic and international gateway markets. At the time of
separation, the Company entered into an initial advisory agreement with Ashford Hospitality Advisors LLC, a subsidiary of Ashford Trust (the "
Ashford
Advisor
"). The agreement provided for an initial five-year term, and provided that Ashford Advisor would be responsible for implementing the Company's investment strategies and
decisions and the management of our day-to-day operations, subject to the supervision and oversight of the Board.
In
May 2014, the independent directors of the Company approved an amended and restated advisory agreement with the Ashford Advisor. The amendment provided for, among other things, an
extended term, a revised incentive fee calculation, and allows Ashford Advisor to advise other REITs with substantially similar investments as the Company.
In
November 2014, in connection with the separation of Ashford Inc. and the Ashford Advisor from Ashford Trust, the Company amended the advisory agreement with the Ashford Advisor
(together with Ashford Trust and Ashford Inc., the "
Advisor
"). This amendment provided, among other things, that the covenant restricting the
Company from soliciting or hiring employees of Ashford Advisor after the Advisory Agreement terminates does not apply if the agreement terminates due to an Advisor Change of Control.
In
June 2015, the Company entered into the Third Amended and Restated Advisory Agreement (defined as the "
Existing Advisory Agreement
" in
other sections throughout this proxy statement) with the Advisor. This amendment, among other things, reduced the advisory term to 10 years, adjusted the base fee, and allowed the Advisor to
terminate the Existing Advisory Agreement and trigger a termination fee upon a Change of Control.
In
May and June of 2016, the Company's independent directors (the "
Company Independent Directors
") undertook a stockholder engagement
program during which several of the Company Independent Directors met with approximately 17 stockholders who owned, in the aggregate, approximately 63% of the Company's outstanding common stock at
that time. Stockholders expressed several key themes during these meetings, including that: (1) the termination fee payable under the Existing Advisory Agreement is high and may be inhibiting
the Company's growth prospects and ability to execute potential strategic transactions; (2) the amount of the termination fee should be more readily determinable from publicly available
information; (3) certain provisions in the Existing Advisory Agreement, such as the incumbent director change of control trigger event and the right of the Advisor to appoint a Designated Chief
Executive Officer, were perceived to increase the potential for conflicts of interest between the Advisor and the Company's stockholders; and (4) the Company's corporate governance profile
could be enhanced by adding new independent directors and adopting measures, such as proxy access, that are emerging as best practices.
15
Table of Contents
On
June 1, 2016, Curtis B. McWilliams, the Company's lead independent director, initiated a meeting with Brian Wheeler, the Advisor's lead independent director.
Mr. McWilliams advised Mr. Wheeler that the Company Independent Directors wished to begin negotiations with the Advisor's independent directors to amend certain provisions of the
Existing Advisory Agreement. Mr. McWilliams explained the Company Independent Directors' perspective that amending the Existing Advisory Agreement would be beneficial for both the Company and
the Advisor because it could facilitate the Company's growth, which could be reflected in an improved Company stock price. An improved Company stock price would directly benefit the Company's
stockholders, and should also benefit the Advisor and its stockholders through higher base and incentive management fees, which are based on the Company's market capitalization. During this meeting
and a subsequent telephone call, Mr. McWilliams identified key areas that the Company Independent Directors preliminarily identified for amendment: a reduced termination fee, elimination of the
incumbent board turnover trigger for a change of control, elimination of the Designated Chief Executive Officer provision and greater ongoing public disclosure of the material inputs needed to
calculate the termination fee. Mr. Wheeler noted that the Advisor would likely seek consideration from the Company in exchange for amending the agreement, which the parties agreed to discuss
further. Mr. McWilliams also informed Mr. Wheeler that it was the intent of the Company Independent Directors to seek stockholder approval of any amendment to the Existing Advisory
Agreement.
Mr. Wheeler
advised Mr. McWilliams that he would report a summary of their discussions to the Advisor independent directors (the "
Advisor
Independent Directors
"). Later that month, Mr. Wheeler contacted Mr. McWilliams to advise him that the Advisor Independent Directors were willing to discuss
potentially amending the Existing Advisory Agreement. They preliminarily discussed a process whereby the Company Independent Directors and the Advisor Independent Directors would each form special
committees, comprised solely of independent directors, to lead the discussions and negotiations. Mr. Wheeler also asked that Mr. McWilliams provide the Advisor Independent Directors with
a list of the terms of the Existing Advisory Agreement that the Company Independent Directors proposed to change.
On
July 2, 2016, the Company Independent Directors met by teleconference. Mr. McWilliams reported on his discussions with Mr. Wheeler. The directors discussed
establishing a special committee and retaining Clifford Chance US LLP ("
Clifford Chance
") as independent legal advisor to work with the special
committee. A representative of Clifford Chance was invited to join the meeting. Clifford Chance had previously advised the Company Independent Directors on certain matters. The Clifford Chance
representative was asked to present her initial thoughts on potential changes to the Existing Advisory Agreement. She was also asked to confirm her firm's independence of the Company's management and
the Advisor, which she confirmed. After discussion, the Company Independent Directors asked the Clifford Chance representative to prepare a written summary of potential changes to the Existing
Advisory Agreement for review by the Company Independent Directors.
Over
the next few days the Company Independent Directors and Clifford Chance developed a preliminary issues list which the Company Independent Directors authorized Mr. McWilliams
to present to Mr. Wheeler. Mr. McWilliams sent the preliminary issues list to Mr. Wheeler in early July. The preliminary issues list included the following items: eliminate the
Designated Chief Executive Officer provision; eliminate the incumbent board turnover change of control trigger event; provide greater flexibility under the asset sale change of control trigger event;
generally conform the parties' rights to cure defaults; reduce the termination fee by eliminating the tax gross up, the 10% charge and the 12x multiple as a floor; improve the terms relating to key
money; and certain other items. In addition, the Company Special Committee was formed to lead the discussions and negotiations with the Advisor, comprised of Mr. McWilliams (chair), M. Michael
Murphy and Andrew L. Strong.
In
mid-July, Mr. Wheeler reported to Mr. McWilliams that the Advisor Independent Directors were in the process of forming the Advisor Special Committee and retaining
independent counsel.
16
Table of Contents
Messrs. McWilliams
and Wheeler discussed arranging an initial meeting between members of the Company and the Advisor Special Committees and their respective counsel to discuss the preliminary
issues list developed by the Company Independent Directors. A meeting was subsequently scheduled later in July 2016.
In
July 2016, representatives of each Special Committee and their legal advisors met to discuss the issues raised by the Company Special Committee. One of the material topics discussed
was the amount of the termination fee. The Company Special Committee was of the view that the fee should be significantly reduced but recognized that the Advisor was likely to require some
compensation in consideration for significantly reducing the fee. The parties discussed possible ideas, such as increasing the base management fee payable to the Advisor if the Company did not meet
specified asset growth targets in the coming years, or making an upfront cash payment to the Advisor. No definitive agreements were reached at the meeting. The Advisor Special Committee advised that
they would review the agreement with their counsel, Proskauer Rose LLP ("
Proskauer
") who had recently been retained, and consider the points
raised by the Company Special Committee. Subsequent to the meeting, Mr. Wheeler advised Mr. McWilliams that having discussed the matter further, the Advisor Special Committee was fairly
firm in its view that, in order to make significant concessions on the termination fee, the Company should make a material upfront cash payment to the Advisor.
Messrs. McWilliams
and Wheeler kept in contact over the next several weeks. Mr. Wheeler advised Mr. McWilliams that the Advisor Special Committee and Proskauer were
reviewing the Existing Advisory Agreement and were preparing a draft of an amended and restated agreement that they would present to the Company Special Committee. Mr. Wheeler further advised
that the Advisor Special Committee was taking a fresh look at the Existing Advisory Agreement in its entirety.
At
the same time that the Company Independent Directors were seeking to amend the Existing Advisory Agreement, the Company's nominating and corporate governance committee was considering
ways to enhance the Company's corporate governance profile. At a meeting of the Company Independent Directors in late July 2016, Stefani D. Carter, the chair of the nominating and corporate governance
committee, reported on various measures being considered and on the status of the committee's review of potential independent director candidates. Ms. Carter undertook to keep the Company
Independent Directors apprised of the nominating and corporate governance committee's progress on these matters. No formal decisions on corporate governance matters were taken at the meeting.
At
a regularly scheduled board meeting in August 2016, the Board approved the appointment of Mr. Ken Fearn as a new independent director. Mr. Fearn also joined the Company
Special Committee. The Board also considered and approved the adoption of certain corporate governance enhancements.
On
August 9, 2016, the Company announced that Mr. Fearn had joined its Board as an independent director. In addition, the Company announced the adoption of the following
corporate governance enhancements:
-
-
adoption of a majority voting standard for uncontested director elections and a plurality standard in contested director elections;
-
-
separation of the roles of chairman and Chief Executive Officer;
-
-
prohibition on share recycling under the Company's equity incentive plan with respect to awards held by directors and executive officers; and
-
-
implementation of a mandatory equity award retention period for executives and directors.
In
late September 2016, Mr. Wheeler sent Mr. McWilliams a draft of the Amended Advisory Agreement, which was a substantial revision of the Existing Advisory Agreement. The
Company Special
17
Table of Contents
Committee
and Clifford Chance reviewed the draft Amended Advisory Agreement and developed a list of material issues which they provided to Mr. Wheeler.
Messrs. McWilliams
and Wheeler and representatives of Clifford Chance and Proskauer met in early October to discuss the draft Amended Advisory Agreement and the issues identified
by the Company Special Committee. The parties met over two days and discussed a number of issues, with particular focus on the termination fee; the Advisor's initial request for an up-front payment by
the Company of $75.0 million in cash; changes in the base management fee; changes to the events that would trigger a termination of the Amended Advisory Agreement; the Advisor's request for an
escrow and lien on the Company's assets as credit support for payment of the termination fee; a liquidated damages provision; expense reimbursements; indemnification matters; the Advisor's request
that the Company grant it a proxy on voting the Advisor's common stock held by the Company; and other matters.
In
general, the Company Special Committee sought to improve the terms of the Existing Advisory Agreement in response to certain concerns identified by its stockholders, as discussed
above. The Advisor Special Committee was willing to consider reducing the termination fee, but were not willing to reduce it to levels sought by the Company Special Committee. The parties found common
ground on a number of issues, but reached no definitive agreements. They undertook to get back in contact in the near term after speaking with their respective Special Committees. The parties and
their counsel held numerous discussions after their initial October meeting, trying to narrow their differences.
In
November 2016, Mr. Wheeler proposed an alternative construct for the termination fee that would involve a lower up-front cash payment by the Company combined with an inducement
for the Company to increase its asset base. After discussion and negotiation, the parties preliminarily agreed on an approach whereby the Company would make a smaller upfront cash payment to the
Advisor at the effective date of the agreement, and would commit to invest a larger amount as equity capital in incremental asset growth. The Company Special Committee continued to seek to reduce the
termination fee by eliminating or reducing the multiple that sets a floor for the termination fee in the Existing Advisory Agreement. The Advisor Special Committee continued to reject this request.
The parties agreed to consider further the alternative formulation proposed by Mr. Wheeler and flesh out the detail of it in the near term, in addition to continuing to negotiate other open
issues.
On
November 2, 2016, the Company announced that its Board had appointed Richard J. Stockton as Chief Executive Officer of the Company, in fulfillment of the Company's commitment
to separate the roles of chairman and Chief Executive Officer.
Also
in November 2016, the Company Special Committee resolved to retain an outside financial advisor to assist the Company Special Committee in evaluating the potential financial impact
of the Amended Advisory Agreement on the Company. The committee authorized Mr. McWilliams to obtain proposals from potential financial advisors. During the course of several meetings in
November, the Company Special Committee reviewed proposals from financial advisors and discussed their expertise, backgrounds, resources, independence and fee proposals. After discussion and review,
the Company Special Committee retained SunTrust Robinson Humphrey, Inc. ("
STRH
") as its financial advisor in connection with the proposed Amended
Advisory Agreement and requested that STRH, in its capacity as financial advisor to the Company Special Committee, provide assistance and advice to the Company Special Committee in its negotiation of
the Amended Advisory Agreement and analysis of the financial terms of the Amended Advisory Agreement.
The
parties, with the assistance of their legal and financial advisors, held in-person negotiating sessions at the end of November and the beginning of December. The parties had reduced
the number of open issues by this time, but material issues were not yet resolved. At the meetings, the parties' discussions focused on: the amount of the termination fee; disclosure of the material
components of the termination fee; the caps and floors that would apply to a periodic reset of the base and incentive
18
Table of Contents
fees
at the end of each term of the agreement; the extent and form of credit support the Company would provide for payment of the termination fee; a liquidated damages provision; the scope of the
indemnification provisions; the termination events; certain expense reimbursements requested by the Advisor; and the Company's willingness to agree to certain financial covenants. At the conclusion of
the meetings, the parties confirmed that they were making progress in narrowing their differences and agreed to continue negotiations after getting feedback from their respective Special Committees.
The
parties and their respective counsel continued to negotiate the terms of the Amended Advisory Agreement through the remainder of December and into January 2017. They also exchanged
revised versions of the Amended Advisory Agreement. In addition to the negotiating sessions described above, the Company Special Committee met four times in December and four times in early January,
including two meetings with the other Company Independent Directors. By this time, the Company Special Committee generally agreed that most of the material issues between the parties had been
resolved.
On
January 4, 2017 the Company Independent Directors, with representatives of STRH and Clifford Chance in attendance, met in person and by teleconference. At the request of the
Company Special Committee, representatives of STRH reviewed its preliminary analyses of certain of the financial terms of the proposed Amended Advisory Agreement.
The
Company Special Committee met on January 11, 2017, with representatives of STRH and Clifford Chance in attendance, to discuss the most recent draft of the Amended Advisory
Agreement. Representatives of Clifford Chance summarized the material terms of the most recent draft of the Amended Advisory Agreement.
The
Company Special Committee members concurred that the Amended Advisory Agreement was in substantially final form. Thereafter, at the request of the Company Special Committee,
representatives of STRH discussed with the Company Special Committee STRH's updated preliminary analysis of certain of the financial terms of the draft Amended Advisory Agreement and findings with
respect to certain of the financial terms of the proposed Amended Advisory Agreement as compared to certain of the financial terms of the Existing Advisory Agreement. See
Summary of Financial Analysis Performed
below. Following further discussions among the members of the Company Special Committee, the Company Special
Committee approved the Amended Advisory Agreement and resolved to recommend that the Board, acting exclusively by the Company Independent Directors, approve the Amended Advisory Agreement and declare
it advisable to the Company's stockholders.
At
the request of the Company Special Committee, on January 18, 2017, STRH provided an updated version of STRH's written materials regarding certain of the financial terms of the
Amended Advisory Agreement to the Company Special Committee. Based upon and subject to the assumptions, qualifications, limitations and other matters considered by STRH in connection with the
preparation of its financial analyses, STRH's analyses of certain of the amended financial terms indicated a positive financial impact to the Company, as compared to the Existing Advisory Agreement,
of between $34.0 million and $136.0 million if the Amended Advisory Agreement were terminated on or before December 31, 2022, and a negative financial impact of approximately
$5.0 million if the Amended Advisory Agreement were never terminated.
On
January 19, 2017, at a regularly scheduled meeting of the Board, the Company Special Committee recommended that the Board, acting exclusively by the Company Independent
Directors, approve the Amended Advisory Agreement. Following discussion, the Company Independent Directors approved the Amended Advisory Agreement, subject to completing the final documentation of the
Amended Advisory Agreement and the preparation of filings with the SEC to report entering into the Amended Advisory Agreement. The final version of the Amended Advisory Agreement was subsequently
approved by the Company Independent Directors on January 24, 2017.
19
Table of Contents
The Company's Reasons for the Amendment Proposal
In approving the Amended Advisory Agreement, the Company Independent Directors considered the following positive
factors:
-
-
the Amended Advisory Agreement addresses a number of the concerns expressed by the Company's stockholders, by
-
➢
-
reducing the size of the termination fee;
-
➢
-
removing the Designated Chief Executive Officer provision;
-
➢
-
making the termination fee more readily determinable from publicly filed
information;
-
➢
-
eliminating the incumbent director change of control trigger event;
-
-
through negotiation, the Company was able to structure cash compensation to the Advisor in a manner that is consistent with the Company's plans
to grow by keeping the initial payment relatively modest at $5.0 million, and providing that the subsequent balance of $45.0 million will reduce ratably over time based on incremental
net asset growth;
-
-
the potential to improve the Company's growth prospects and stock price performance through a combination of the Amended Advisory Agreement,
enhanced corporate governance, retaining a new Chief Executive Officer and adding up to two additional independent directors;
-
-
the opportunity for the Company's stockholders to benefit from increases in the Company's stock price if the Company is able to meet its growth
objectives;
-
-
the opportunity for the Company's stockholders to benefit from a strategic transaction, which may be more likely to occur due to the reduction
in the termination fee that would be payable in a strategic transaction; and
-
-
the recommendation of the Company Special Committee and the fact that the Company Special Committee was advised by independent legal and
financial advisors.
The
Company Independent Directors also considered potentially negative factors:
-
-
the termination fee still uses a 12x multiple of net earnings as a floor;
-
-
the Company must make an initial cash payment of $5.0 million and potentially a further cash payment of $45.0 million to the
Advisor;
-
-
the Company's stock price may not improve and it may not enter into a strategic transaction, in which case the Company's stockholders will not
receive anticipated benefits;
-
-
the Company's rights to terminate the Amended Advisory Agreement have been lessened as compared to the Existing Advisory Agreement;
-
-
the Company has agreed to deposit funds in escrow in respect of the termination fee upon the occurrence of certain events that may lead to a
change of control and to give the Advisor a first priority lien and/or a letter of credit to secure any remaining balance that may be owed;
-
-
if the Amended Advisory Agreement is never terminated, the aggregate management fees payable by AHP under the Amended Advisory Agreement would
be higher than those payable under as compared to the Existing Advisory Agreement; and
-
-
the Company will be subject to ongoing financial covenants that may limit its ability to pay distributions to its stockholders.
The
Board upon recommendation from the Company Special Committee concluded that the risks and countervailing factors relevant to the Amended Advisory Agreement were outweighed by the
potential benefits that it believes stockholders will achieve as a result of entering into the Amended Advisory Agreement.
20
Table of Contents
The
foregoing discussion of the information and factors considered by the Board is not exhaustive. In view of the wide variety of factors, both positive and negative, considered by our
Board, the Board generally did not consider it practical to, nor did it attempt to, quantify, rank or otherwise seek to assign relative weights to the specific factors that it considered in reaching
its determination that the proposed transaction is advisable and in the best interests of the Company's stockholders. Rather, our Board viewed its determination as being based upon the judgment of its
members, in light of the totality of the information presented and considered. However, individual members of our Board may have given different weights to different factors and may have applied
different analyses to each of the material factors considered by the Board collectively.
Summary of Financial Analysis Performed
STRH provided financial analysis of the terms to the Amended Advisory Agreement. STRH was engaged by the Company to assist the Company Special
Committee in its negotiation and review of the proposed Amended Advisory Agreement. As part of its engagement, STRH, at the request of the Company Special Committee, on January 18, 2017
provided to the Company Special Committee materials regarding STRH's analyses of certain financial terms of the Amended Advisory Agreement as compared to the Existing Agreement. STRH's materials were
provided for the information of the Company Special Committee in connection with its review of the Amended Advisory Agreement and were not to be used for any other purpose. STRH's materials did not
address the underlying business decision of the Company Special Committee, the Board or the Company to enter into the Amended Advisory Agreement, or the relative merits of the entry into the Amended
Advisory Agreement as compared to any alternative transaction or strategy that may have been available to the Company. The materials were not intended to provide the sole basis for the Company Special
Committee's evaluation of the Amended Advisory Agreement, did not purport to contain all information that may have been required by, or of interest to, the Company Special Committee in connection with
such evaluation, and did not constitute an opinion or recommendation to the Company Special Committee, the Board, any security holder of the Company or any other person or entity as to how to vote or
act with respect to any matter relating to the Amended Advisory Agreement. STRH's materials did not constitute an opinion as to the fairness of the financial terms, or any other aspect of, the Amended
Advisory Agreement.
As
part of its analyses, among other things, STRH:
-
-
reviewed the Existing Agreement and a draft, provided to STRH on January 13, 2017, of the Amended Advisory Agreement;
-
-
had discussions with the Company Special Committee, the Advisor, management of the Company, counsel to the Company and counsel to the Company
Special Committee concerning the business operations, assets, liabilities, present condition and future prospects of the Company and the proposed Amended Advisory Agreement;
-
-
assisted the Company Special Committee in its negotiation of the financial terms of the Amended Advisory Agreement;
-
-
reviewed estimates with respect to the future financial performance of the Company's existing portfolio prepared by the Advisor (the
"
Advisor Projections for the Company
");
-
-
reviewed estimates with respect to four alternative future acquisition scenarios prepared by Company management (the
"
Acquisition Scenarios
") as set forth below:
-
➢
-
no future acquisitions;
-
➢
-
$175.0 million of acquisitions in 2017, increasing by
$50.0 million annually through 2022;
21
Table of Contents
-
➢
-
$200.0 million of acquisitions in 2017, increasing by
$50.0 million annually through 2022; and
-
➢
-
$225.0 million of acquisitions in 2017, increasing by
$50.0 million annually through 2022.
-
-
reviewed, based on discussions with the Company Special Committee, the following contemplated terms of the Amended Advisory Agreement (the
"
Selected Financial Terms
"):
-
➢
-
the removal of the tax gross-up provision and the 1.1 times multiple from the
calculation of the termination fee;
-
➢
-
the payment by the Company to the Advisor of $5.0 million upon the
effective date of the Amended Advisory Agreement;
-
➢
-
the obligation of the Company to pay to the Advisor a fee of up to
$45.0 million upon termination of the Amended Advisory Agreement, subject to reduction based on the Company's portfolio achieving certain incremental growth;
-
➢
-
the change in quarterly base management fee payment terms; and
-
➢
-
the change in expense reimbursement payment terms.
-
-
reviewed the following potential alternative termination scenarios for the Existing Agreement and the Amended Advisory Agreement, as reviewed
and discussed with the Company's management (the "
Agreement Termination Scenarios
"):
-
➢
-
termination of the Existing Agreement and the Amended Advisory Agreement on
January 1, 2017;
-
➢
-
termination of the Existing Agreement and the Amended Advisory Agreement on
December 31 of each year from 2017 through 2022; and
-
➢
-
the Existing Agreement and the Amended Advisory Agreement as of
December 31, 2022, absent a termination.
With
the consent of the Company Special Committee, STRH assumed and relied upon, without independent verification, the accuracy and completeness of the financial and other information
furnished by or discussed with the Company Special Committee, the Company, the Advisor and their respective representatives or otherwise available from public sources. STRH's role in reviewing such
information was limited solely to performing such review as STRH deemed necessary and appropriate to support its analyses, and such review was not conducted on behalf of the Company Special Committee,
the Company or any other person. With respect to the Advisor Projections for the Company, STRH was advised and assumed that they were reasonably prepared on bases reflecting the best currently
available information, estimates and judgments of the management of the Advisor as to the future financial performance of the Company. With respect to the Acquisition Scenarios and the Agreement
Termination Scenarios, STRH was advised and assumed that they represented, respectively, reasonable alternative scenarios with respect to future potential acquisitions by the Company and reasonable
alternative scenarios with respect to future potential termination dates of the Amended Advisory Agreement and the Existing Advisory Agreement. STRH expressed no view or opinion with respect to the
Advisor Projections for the Company, the Acquisition Scenarios or the Agreement Termination Scenarios or, in each case, the assumptions or circumstances on which they were based. At the direction of
the Company Special Committee, STRH assumed that the Advisor Projections for the Company, the Acquisition Scenarios and the Agreement Termination Scenarios provided a reasonable basis upon which to
evaluate the Selected Financial Terms and, at the Company Special Committee's direction, STRH relied upon the Advisor Projections for the Company, the Acquisition Scenarios and the Agreement
Termination Scenarios for purposes of its analyses.
22
Table of Contents
STRH
further relied upon and assumed, without independent verification, that there had been no change in the business, assets, liabilities, financial condition, results of operations,
cash flows or prospects of the Company since the respective dates of the most recent financial statements and other information, financial or otherwise, provided to it, and that there was no
information or any facts that would make any of the information discussed with or reviewed by STRH incomplete or misleading. STRH also assumed that (a) the representations and warranties of all
parties to the Amended Advisory Agreement were true and correct, (b) each party to the Amended Advisory Agreement would fully and timely perform all of the covenants and agreements required to
be performed by such party under the Amended Advisory Agreement without waiver, modification or amendment of any term, condition or agreement thereof, and (c) in the course of obtaining any
regulatory or third party consents, approvals or agreements in connection with entry into the Amended Advisory Agreement, no delay, limitation, restriction or condition would be imposed that would
have an adverse effect on the Company or the expected benefits of the Amended Advisory Agreement. In addition, STRH assumed that the Amended Advisory Agreement, when executed by the parties thereto,
would, in all respects material to its analyses, conform to the draft provided to STRH by the Company Special Committee on January 13, 2017.
In
connection with its analyses, STRH did not conduct a physical inspection of the properties, assets or facilities of the Company and was not requested to, and did not, make an
independent evaluation or appraisal of the assets or liabilities (fixed, contingent, derivative, off balance sheet or otherwise) of the
Company, nor was STRH furnished with any such evaluations or appraisals. STRH's materials did not constitute a valuation opinion or credit rating, and STRH had no obligation to evaluate the solvency
of the Company or any other person or entity under any law. STRH's analyses addressed only the financial implications of the Selected Financial Terms and did not address any other term or aspect of
the Amended Advisory Agreement, including any term that was not susceptible to financial analysis.
STRH
is not an expert on, and did not provide an opinion, counsel, advice or interpretation as to, legal, accounting, regulatory, insurance or tax matters. STRH relied, with the Company
Special Committee's consent, on the assessments of the Company Special Committee, the Company and their respective advisors as to all legal, accounting, regulatory, insurance and tax matters with
respect to the Company and the Amended Advisory Agreement. STRH's materials were necessarily based on conditions as in effect on, and the information made available to STRH as of, the date of the
materials. None of the Company Special Committee, the Company Board, the Company nor STRH has undertaken any obligation to update, revise or reaffirm the materials.
The
analyses summarized below should be considered as a whole. Selecting portions of the analyses, without considering all analyses, could create an incomplete view. The implied values
and financial impacts indicated by STRH's analyses were illustrative and not necessarily indicative of actual values or financial impacts or predictive of future results or impacts, which may be
significantly more or less favorable than those suggested by the analyses. In addition, any analyses relating to the value of assets, businesses or securities did not purport to be appraisals or to
reflect the prices at which businesses or securities actually may have been sold, which could have depended on a variety of factors, many of which were beyond the control of STRH. Much of the
information used in, and accordingly the results of, STRH's analyses, are inherently subject to substantial uncertainty.
23
Table of Contents
STRH's analyses were among many factors considered by the Company Special Committee in evaluating the proposed Amended Advisory Agreement. STRH's analyses were
not determinative of the terms of the Amended Advisory Agreement or of the views of the Company Special Committee with respect to the Amended Advisory Agreement. STRH acted as an independent
contractor to the Company in connection with the Amended Advisory Agreement and did not act as an agent or fiduciary of the Company Special Committee, the Company Board, the Company, the security
holders or creditors of the Company or any other person or entity.
The
following is a summary of the material financial analyses included in STRH's materials provided to the Company Special Committee on January 18, 2017. The analyses summarized
below include information presented in tabular format. The tables alone do not constitute a complete description of the analyses. Considering the data in the tables below without considering the full
narrative description of the analyses, as well as the methodologies underlying, and the assumptions, qualifications and limitations affecting, each analysis, could create a misleading or incomplete
view of STRH's analyses.
STRH
computed the present value of the implied financial impact of the Selected Financial Terms. STRH's analysis was based on the following methodologies.
-
-
STRH computed the undiscounted implied financial impact of each Selected Financial Term by separately computing an implied reference value for
each such term under each of the Existing Advisory Agreement and the Amended Advisory Agreement. For each Selected Financial Term, the "Undiscounted Implied Financial Impact" represented the
difference between the implied reference value for such term under the Existing Advisory Agreement and the implied reference value for such term under the Amended Advisory Agreement.
-
-
STRH computed the Undiscounted Financial Impact of each Selected Financial Term across each of the Acquisition Scenarios and Agreement
Termination Scenarios provided by the Company.
-
-
STRH computed the implied present value of the Undiscounted Financial Impact of each Selected Financial Term across each Acquisition Scenario
and Agreement Termination Scenario by applying an 8.4% discount rate, which was based on an analysis of the Company's weighted average cost of capital.
The
tables below set forth the implied present values for each of the Selected Financial Terms for each of the Agreement Termination Scenarios and for the Acquisition Scenarios providing
for no acquisitions and providing for $225.0 million in acquisitions in 2017, increasing by $50.0 million annually through 2022. Among the four Acquisition Scenarios described above,
these two Acquisition Scenarios represented the lowest and highest implied present values of the financial impact of the Selected Financial Terms.
24
Table of Contents
Implied Present Value of Financial ImpactNo Acquisitions
(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
January 1
|
|
December 31
|
|
|
|
($ in thousands)
Selected Financial
Term
|
|
No
Termination
(3)
|
|
|
2017
(2)
|
|
2017
|
|
2018
|
|
2019
|
|
2020
|
|
2021
|
|
2022
|
|
Termination Fee
|
|
$
|
115,053
|
|
$
|
88,494
|
|
$
|
77,674
|
|
$
|
78,817
|
|
$
|
80,379
|
|
$
|
80,968
|
|
$
|
81,263
|
|
|
|
|
Upfront Payment
|
|
|
(5,000
|
)
|
|
(4,968
|
)
|
|
(4,938
|
)
|
|
(4,910
|
)
|
|
(4,885
|
)
|
|
(4,862
|
)
|
|
(4,840
|
)
|
|
(4,840
|
)
|
Growth Capital Covenant
|
|
|
(45,000
|
)
|
|
(41,522
|
)
|
|
(38,305
|
)
|
|
(35,336
|
)
|
|
(32,591
|
)
|
|
(30,065
|
)
|
|
(27,736
|
)
|
|
|
|
Base Management Fee
|
|
|
|
|
|
(54
|
)
|
|
(107
|
)
|
|
(160
|
)
|
|
(211
|
)
|
|
(262
|
)
|
|
(311
|
)
|
|
(311
|
)
|
Expense Reimbursement
|
|
|
|
|
|
(10
|
)
|
|
(20
|
)
|
|
(30
|
)
|
|
(40
|
)
|
|
(49
|
)
|
|
(58
|
)
|
|
(58
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
65,053
|
|
$
|
41,940
|
|
$
|
34,304
|
|
$
|
38,380
|
|
$
|
42,653
|
|
$
|
45,731
|
|
$
|
48,319
|
|
$
|
(5,209
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-
(1)
-
Acquisition
Scenario where there are no acquisitions.
-
(2)
-
For
a January 1, 2017 termination, no acquisition would have occurred under any Acquisition Scenario. As such, data shown is applicable to all
Acquisition Scenarios.
-
(3)
-
No
Termination Scenario assumes no financial impact attributable to the Termination Fee or Growth Capital Covenant Selected Financial Terms and assumes
the financial impact of all other Selected Financial Terms equals those of the December 31, 2022 Agreement Termination Scenario.
Implied Present Value of Financial ImpactHigh Acquisitions
(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
January 1
|
|
December 31
|
|
|
|
($ in thousands)
Selected Financial
Term
|
|
No
Termination
(3)
|
|
|
2017
(2)
|
|
2017
|
|
2018
|
|
2019
|
|
2020
|
|
2021
|
|
2022
|
|
Termination Fee
|
|
$
|
115,053
|
|
$
|
87,810
|
|
$
|
78,214
|
|
$
|
88,645
|
|
$
|
105,568
|
|
$
|
123,252
|
|
$
|
141,511
|
|
|
|
|
Upfront Payment
|
|
|
(5,000
|
)
|
|
(4,968
|
)
|
|
(4,938
|
)
|
|
(4,910
|
)
|
|
(4,885
|
)
|
|
(4,862
|
)
|
|
(4,840
|
)
|
|
(4,840
|
)
|
Growth Capital Covenant
|
|
|
(45,000
|
)
|
|
(33,737
|
)
|
|
(22,344
|
)
|
|
(11,043
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
Base Management Fee
|
|
|
|
|
|
(54
|
)
|
|
(110
|
)
|
|
(173
|
)
|
|
(245
|
)
|
|
(324
|
)
|
|
(413
|
)
|
|
(413
|
)
|
Expense Reimbursement
|
|
|
|
|
|
(10
|
)
|
|
(20
|
)
|
|
(30
|
)
|
|
(40
|
)
|
|
(49
|
)
|
|
(58
|
)
|
|
(58
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
65,053
|
|
$
|
49,041
|
|
$
|
50,801
|
|
$
|
72,488
|
|
$
|
100,399
|
|
$
|
118,018
|
|
$
|
136,200
|
|
$
|
(5,311
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
-
(1)
-
Acquisition
Scenario where there is the highest dollar amount of acquisitions.
-
(2)
-
For
a January 1, 2017 termination, no acquisition would have occurred under any Acquisition Scenario. As such, data shown is applicable to all
Acquisition Scenarios.
-
(3)
-
No
Termination Scenario assumes no financial impact attributable to the Termination Fee or Growth Capital Covenant Selected Financial Terms and assumes
the financial impact of all other Selected Financial Terms equals those of the December 31, 2022 Agreement Termination Scenario.
As
shown in the tables above, STRH's analysis of the Selected Financial Terms indicated a positive present value financial impact to the Company of between $34.0 million and
$136.0 million if the Amended Advisory Agreement is terminated on or before December 31, 2022, and a negative present value financial impact of approximately ($5.0 million) if the
Amended Agreement is never terminated.
25
Table of Contents
STRH and its affiliates are engaged in advisory, underwriting and financing, principal investing, sales and trading, research, investment
management and other financial and non-financial activities and services for various persons and entities. STRH and its affiliates and employees, and funds or other entities in which they invest or
with which they co-invest, may at any time purchase, sell, hold or vote long or short positions and investments in securities, derivatives, loans, commodities, currencies, credit default swaps and
other financial instruments of the Company, any other party to any transaction and any of their respective affiliates or any currency or commodity that may be involved in any transaction for the
accounts of STRH and its affiliates and their employees and customers. As compensation for its services to the Company Special Committee, STRH is entitled to a monthly retainer fee of $50,000, subject
to a minimum of $250,000, and has become entitled to receive an additional a fee of $500,000 upon the delivery of its materials to the Company Special Committee. In addition, the Company has agreed to
reimburse certain expenses incurred by STRH in connection with its engagement and to indemnify STRH and certain related parties for certain liabilities and other items arising out of or related to its
engagement.
26
Table of Contents
TERMINATION PAYMENT CALCULATION
The below calculations provide a comparison of the liability of the Company to the Advisor upon a termination of the Existing Advisory Agreement
compared to the Amended Advisory Agreement, assuming termination of the agreement on December 31, 2016 and based on the closing price of the Company's common stock on such date, the price of
which would not have resulted in an incentive fee earned by the Advisor. If an incentive fee had been earned, the entire incentive fee would have been due and payable and would have been included as a
part of Advisor's net earnings for purposes of determining the Termination Fee.
As
of December 31, 2016, the total payable termination payment and liability under the Existing Advisory Agreement would have been approximately $215.0 million, and the
total payable termination payment and liability under the Amended Advisory Agreement would have been approximately $162.0 million, of which $45.0 million constitutes a payment of the
Uninvested Amount and includes the elimination of the "tax gross-up" and the 1.1x multiplier.
|
|
|
|
|
|
|
|
($ in millions)
Net Earnings for LTM (FY 2016)
|
|
Amended Advisory
Agreement
|
|
Existing Advisory
Agreement
|
|
Total Revenues
|
|
|
17.8
|
|
|
17.8
|
|
Total Incremental Expenses
(1)
|
|
|
(8.2
|
)
|
|
(8.2
|
)
|
|
|
|
|
|
|
|
|
Net Earnings
|
|
|
9.7
|
|
|
9.7
|
|
Multiple
|
|
|
12.0x
|
|
|
12.0x
|
|
|
|
|
116.3
|
|
|
116.3
|
|
10% Premium
|
|
|
|
|
|
11.6
|
|
Tax Gross-Up
|
|
|
|
|
|
85.3
|
|
|
|
|
|
|
|
|
|
Termination Fee
|
|
|
116.3
|
|
|
213.2
|
|
Uninvested Amount
(2)
|
|
|
45.0
|
|
|
|
|
Key Money Clawback
(3)
|
|
|
1.5
|
|
|
1.5
|
|
Total
|
|
|
162.8
|
|
|
214.7
|
|
-
(1)
-
The
Advisor will disclose in its periodic reports that it files under the Exchange Act, the total incremental expenses incurred by the Advisor
(including all reimbursable expenses) as reasonably determined by the Advisor for the period covered by the report in connection with providing services to the Company under this Amended Agreement,
which determination shall be conclusive and binding on the Advisor and the Company.
-
(2)
-
The
$45.0 million Uninvested Amount is expected to reduce over time based on incremental net asset growth.
-
(3)
-
The
Key Money Clawback Amount, if any, shall be due and payable on the same date the Company disposes of the property, whether by sale or otherwise, or
upon the occurrence of a Company Change of Control (as defined in the Advisory Agreement Amendment) or any termination of the Amended Advisory Agreement, whichever is applicable.
27
Table of Contents
THE AMENDED ADVISORY AGREEMENT
The following is a summary of the material provisions of the Amended Advisory Agreement and is qualified in its entirety
by reference to the Amended Advisory Agreement, a copy of which is attached to this proxy statement as Exhibit A and incorporated by reference into this document. The description of the Amended
Advisory Agreement in this proxy statement has been included to provide you with information regarding its terms, and we recommend that you read carefully the Amended Advisory Agreement in its
entirety. This summary may not contain all of the information about the Amended Advisory Agreement that is important to you. Capitalized terms used throughout and not otherwise defined shall have the
meaning set forth in the Amended Advisory Agreement.
The
Advisor acts as our sole and exclusive advisor, responsible for implementing our investment strategies and decisions and the management of our day-to-day operations, subject to the
supervision and oversight of the Board. We rely on the Advisor to provide, or obtain on our behalf, the personnel
and services necessary for us to conduct our business, and we have no employees of our own. All of our officers are also employees of the Advisor.
The
Amended Advisory Agreement provides that the Advisor shall make available personnel necessary to perform the services and functions the Advisor is responsible for performing under
the Amended Advisory Agreement, including persons to serve as our officers. The Advisor and its affiliates are not obligated to dedicate any of their respective employees exclusively to us, nor are
the Advisor, its affiliates or any of their employees obligated to dedicate any specific portion of its or their time to our business except as necessary to perform the service required of them in
their capacity as our advisor. The Advisor is at all times subject to the supervision and oversight of the Board. The Amended Advisory Agreement and our governing documents require us to nominate
persons designated by the Advisor as candidates for election as directors at any stockholders meeting at which directors are to be elected such that the Advisor designees constitute as nearly as
possible 29% of the Board, in all cases rounding to the next larger whole number, for so long as the Amended Advisory Agreement is in effect. Such nominees may be executive officers of the Advisor.
The Amended Advisory Agreement requires the Advisor to manage our business affairs in conformity with the policies and the guidelines that are approved and monitored by the Board. Additionally, except
for actions taken in good faith or at the direction of the Board the Advisor must refrain from taking any action that would (a) adversely affect our status as a REIT, (b) subject us to
regulation under the Investment Company Act of 1940, as amended (the "
Investment Company Act
"), (c) knowingly and intentionally violate any law,
rule or regulation of any governmental body or agency having jurisdiction over us, (d) violate any of the rules or regulations of any exchange on which our securities are listed, the result of
which is likely to cause us to be delisted or (e) violate our charter, bylaws or resolutions of the Board, all as in effect from time to time.
Duties of the Advisor.
Subject to the supervision of the Board, the Advisor is solely responsible for our day-to-day operations,
including all of our
subsidiaries and joint ventures, and shall perform (or cause to be performed) all services necessary to operate our business as outlined in the Amended Advisory Agreement. Those services include
sourcing and evaluating hotel acquisition and disposition opportunities, asset managing the hotels in our portfolio and overseeing the property managers, handling all of our accounting, treasury and
financial reporting requirements, and negotiating terms of loan documents for our debt financings, as well as other duties and services outlined in the Amended Advisory Agreement.
Any
increase in the scope of duties or services to be provided by the Advisor must be jointly approved by us and the Advisor and will be subject to additional compensation as outlined in
the Amended Advisory Agreement.
The
Advisor is our sole and exclusive asset manager with authority to source, evaluate and monitor the Company's investment opportunities consistent with the Company's investment
guidelines, and to
28
Table of Contents
direct
the operation and policies of the Company, such as managing the Company's assets and monitoring the operating performance of the Company's hotel real estate investments and other assets,
including the management and implementation of capital improvement programs, pursue property tax appeals (as appropriate), and providing periodic reports with respect to the Company's hotel real
estate investments and other assets to the Board, including comparative information with respect to such operating performance and budgeted or projected operating results.
The
Advisor also has the power to delegate all or any part of its rights and powers to manage and control our business and affairs to such officers, employees, affiliates, agents and
representatives of the Advisor or our Company as it may deem appropriate. Any authority delegated by the Advisor to any other person is subject to the limitations on the rights and powers of the
Advisor specifically set forth in the Amended Advisory Agreement or our charter.
The
Advisor also acknowledges that the Company maintains codes and policies intended to help maintain compliance with applicable laws and regulations and agrees to require its employees
who provide services to the Company to comply with all applicable codes and policies.
Growth Covenant.
In order to further the Company's growth, the Company undertakes to grow its assets under a "growth covenant,"
under which the
Company will receive a deemed credit against a base amount of $45.0 million for: 3.75% of the total purchase price of each hotel acquired after the date of the Amended Advisory Agreement that
was recommended by the Advisor, netted against 3.75% of the total sale price of each hotel sold after the date of the Amended Advisory Agreement. The difference between $45.0 million and such
net credit, if any, is referred to as the "
Uninvested Amount
." If the Amended Advisory Agreement is terminated, other than due to certain acts by the
Advisor as set forth in the Amended Advisory Agreement, the Company must pay the Advisor the Uninvested Amount, in addition to any termination fee payable under the Amended Advisory Agreement.
Financial Covenants.
The Amended Advisory Agreement requires the Company to maintain a tangible net worth of not less than
$390.0 million plus
75% of the equity proceeds from the sale of securities by the Company after December 31, 2016. The Amended Advisory Agreement also prohibits the Company from paying dividends (in cash,
securities or property) and making any payment (in cash, securities or property) in connection with purchasing, redeeming, retiring, acquiring, cancelling or terminating any capital stock or other
equity interest except as required to maintain its REIT status if paying the dividend would reduce the Company's net worth below the required minimum net worth.
Term and Termination.
The term of the Amended Advisory Agreement is 10 years from the effective date of the Amended Advisory
Agreement, with
up to seven automatic 10-year renewal terms unless previously terminated as described below. If the Advisor has given us notice of its intent to extend the term of the agreement, either party may give
written notice to the other party at least 180 days prior to the expiration of the then-current term to renegotiate the amount of the base fee or the incentive fee. In no event shall the base
fee multiplier be reduced below 0.65% or increased above 0.75% during the term of the Amended Advisory Agreement, including all extensions. Further, in no event shall the incentive fee multiplier be
reduced below 0.04 or increased above 0.06 during the term of the Amended Advisory Agreement.
If
we or the Advisor terminate the Amended Advisory Agreement upon a Change in Control of the Company, we would be required to pay a termination fee equal to the greater of
either:
-
-
12 multiplied by the sum of (i) Net Earnings of the Advisor for the 12-month period (ending on the last day of the fiscal quarter)
preceding the termination date of the Amended Advisory Agreement, plus (ii) to the extent not included in Net Earnings, any incentive fees that have accrued or are accelerated but have not yet
been paid at the time,
29
Table of Contents
-
-
(i) the quotient of (A) the Total Market Capitalization (as defined below in the section titled "
Amended
Advisory Agreement-Fees and Expenses-Base Fee
") of the Advisor on the trading day immediately preceding the date on which any amounts become due and payable upon termination of
the Amended Advisory Agreement, divided by (B) the Ashford Inc. Adjusted EBITDA for the 12-month period (ending on the last day of the fiscal quarter) preceding the termination of the
Amended Advisory Agreement, multiplied by (ii) Net Earnings for the 12-month period (ending on the last day of the fiscal quarter) preceding the termination of the Amended Advisory Agreement
plus, to the extent not included in Net Earnings, any incentive fees that have accrued or are accelerated but have not yet been paid at the termination of the Amended Advisory Agreement; and
-
-
the simple average, for the three fiscal years preceding the fiscal year in which any amounts became due and payable upon termination of the
Amended Advisory Agreement, of (i) the quotient of (A) the Total Market Capitalization of the Advisor on the last trading day of such fiscal year, divided by (B) the
Ashford Inc. Adjusted EBITDA for such fiscal year, multiplied by (ii) Net Earnings for the 12-month period preceding the termination of the Amended Advisory Agreement plus, to the extent
not included in Net Earnings, any incentive fees that have accrued or are accelerated but have not yet been paid at the Termination Payment Time.
For
purposes of the above calculation, "
Net Earnings
" is defined as (A) the total base fees and incentive fees, plus any other
revenues reported on the Advisor's income statement as pertaining to the Amended Advisory Agreement, in each case, in accordance with GAAP, including all EBITDA of the Advisor and any of its
affiliates and majority or minority subsidiaries from providing any Additional Services to the Company, our operating partnership or any of their affiliates or subsidiaries, less (B) the total
incremental expenses, in each case for the 12-month period (ending on the last day of the fiscal quarter) preceding the termination of the Amended Advisory Agreement.
Any
termination fee calculated in accordance with the above will be payable on or before the termination date of the Amended Advisory Agreement. Further, during the pendency of any
transaction that would result in a Change of Control of the Company, the Advisor may transfer cash of the Company maintained in bank, brokerage or similar accounts established by the Advisor for the
Company into an escrow account in the amount of the termination fee plus any "Uninvested Amounts";
provided
,
however
, that if the transfer described in the
preceding clause would cause the Company's remaining cash and cash equivalents to be equal to the lesser
of 2% of the value of the Company's gross assets or 10% of the termination fee (but in no case less than $10.0 million), referred to as the "Working Capital Reserve", then the Company may
reduce the amount subject to such transfer by an amount of cash equal to the difference between the Working Capital Reserve and the cash and cash equivalents that would be remaining on the Company's
balance sheet prepared in accordance with GAAP outside of the escrow account. In certain circumstances, the Company is permitted to reduce the cash portion of the deposit to 50% of the total amount
required to be deposited into the escrow account if the remainder is secured by a letter of credit and, to the extent the letter of credit is not sufficient, a first priority lien on certain of the
Company's assets for the remaining amount so long as the assets have a value of not less than 120% of the required amount.
We
have agreed with the Advisor that fees and expenses payable or reimbursable by the Company to Remington and its subsidiaries under the Ashford Prime Hotel Master Management Agreement
dated as of November 19, 2013, by and between Ashford Prime TRS Corporation and Remington Lodging & Hospitality, LLC and any successor or related hotel management agreement with
Remington and its subsidiaries along with any associated expenses of Remington relating to the Ashford Prime Hotel Master Management Agreement shall not be included in Net Earnings or otherwise in the
calculation of the termination fee, adjusted termination fee (an amount equal to the sum of 20% of the applicable termination fee) or liquidated damages amount (as described below).
30
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We
may also terminate the Amended Advisory Agreement at any time, including during the 10-year initial term, without the payment of a termination fee under the following
circumstances:
-
-
upon the Advisor's conviction (including a plea or nolo contendere) by a court of competent jurisdiction of a felony;
-
-
if the Advisor commits an act of fraud against the Company, converts the funds of the Company or acts in a manner constituting gross negligence
in the performance of the Advisor's material duties under the Amended Advisory Agreement (including a failure to act);
provided
,
however
, that the Company
will not have the right to terminate the Amended Advisory Agreement if any fraud, conversion or actions or omissions are
caused by an employee or an officer of the Advisor or an Affiliate of the Advisor and the Advisor takes all reasonable necessary and appropriate action against that person and cures the damage
incurred by the Company within 45 days of the Advisor's actual knowledge of the commission or omission;
-
-
a Bankruptcy Event occurs with respect to the Advisor; or
-
-
upon the entry by a court of competent jurisdiction of a final non-appealable order awarding monetary damages to the Company based on a finding
that the Advisor committed a material breach or default of a material term, condition, obligation or covenant of the Amended Advisory Agreement, which breach or default had a material adverse effect,
but only where the Advisor fails to pay the monetary damages in full within sixty (60) days of the date when the monetary judgment becomes final and non-appealable. For the avoidance of doubt,
if the Advisor pays the monetary judgment in full within sixty (60) days of the judgment becoming final and non-appealable, the Company shall not have the right to terminate the Amended
Advisory Agreement. Notwithstanding the above, if the Advisor notifies the Company that the Advisor is unable to pay any judgment for monetary damages in full within 60 days of when the
judgment becomes final and non-appealable, the Company may not terminate the Amended Advisory Agreement if, within the 60-day period, the Advisor delivers a promissory note to the Company having a
principal amount equal to the unpaid balance of the judgment and bearing interest at 8.00% per annum, which note shall mature on the 12 month anniversary of the date that the court's judgment
becomes final and non-appealable. The Company may terminate the Amended Advisory Agreement if the Advisor fails to pay all principal and interest due under the note by the maturity date of the note.
Prior to initiating any proceeding claiming a material breach or default by the Advisor, the Company shall give written notice of the default or breach to the Advisor specifying the nature of the
default or breach and providing the Advisor with an opportunity to cure the default or breach within no less than sixty (60) days of notice, or if the default or breach is not reasonably
susceptible to cure within sixty (60) days, an additional cure period as is reasonably necessary to cure the default or breach so long as the Advisor is diligently and in good faith pursuing
the cure.
Upon
any termination of the Amended Advisory Agreement, the Advisor is expected to cooperate with and assist us, in executing an orderly transition of the management of our assets to a
new advisor, including by (i) paying over all money collected and held for the account of the Company,
provided
that the Advisor shall be
permitted to deduct any amount required to pay the termination fee and other amounts owed to the Advisor; (ii) deliver a full accounting of all accounts held by the Advisor in the name of or on
behalf of the Company; and (iii) deliver all documents, files, contracts and assets of the Company in the possession of the Advisor to the Company subject to the rights of the Advisor to retain
copies under certain circumstances. We are responsible for paying all accrued fees and expenses. For two years after any termination of the Amended Advisory Agreement, we will be subject to certain
non-solicitation obligations with respect to the Advisor's employees, other than certain hotel-level employees, and non-interference obligations with respect to tenants, customers, and business
partners of the Advisor.
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Liquidated Damages Event.
Upon the entry of a final non-appealable order from a court of competent jurisdiction that an action
or omission by the
Company, individually or when considered with other actions or omissions previously taken or omitted by the Company, constitutes a repudiation by the Company of the Amended Advisory Agreement
depriving the Advisor of the benefit that the Advisor
could reasonably anticipate from full performance by the Company of its obligations under the Amended Advisory Agreement, the Company must pay the Advisor an amount equal to the Uninvested Amount plus
an amount in cash equal to the Liquidated Damages Amount. The "
Liquidated Damages Amount
" is an amount in cash calculated in accordance with the Amended
Advisory Agreement. Upon payment by the Company of the (i) Liquidated Damages Amount less any Outstanding Judgment and, to the extent not otherwise included in the Liquidated Damages Amount,
(ii) (A) the Uninvested Amount; plus (B) all costs and expenses reimbursable to the Advisor through termination due to the Liquidated Damages Event; plus (C) the key money
clawback amount; plus (D) any other amounts then due and payable, the parties shall have no further obligations under the Amended Advisory Agreement and the Amended Advisory Agreement shall be
terminated.
Fees, Expenses and Other Payments.
Up-Front Payment.
In connection with the execution of the Amended Advisory Agreement, the Company will pay the Advisor a one-time
payment of five
million dollars ($5.0 million).
Base Fee.
The Company shall, on a monthly basis, pay a base fee in an amount equal to 1/12th of 0.70% of the sum of
(i) the Total
Market Capitalization for the prior month, and (ii) the Key Money Gross Asset Value, if any, on the last day of the prior month during which the Amended Advisory Agreement was in effect;
provided
,
however
in no event shall the base fee for any month be less than the Minimum Base Fee. The
"Total Market Capitalization" is calculated during any period as (i) the average of the volume-weighted average price per share of our common stock for each trading day of the applicable period
multiplied by the average number of shares of our common stock outstanding during such quarter, on a fully-diluted basis (assuming all common units and long term incentive partnership units in the
operating partnership which have achieved economic parity with common units in the operating partnership have been redeemed for our common stock and including any shares of our common stock issuable
upon conversion of any convertible preferred stock of the Company where the conversion price is less than the average of the volume-weighted average price per share of our common stock), plus
(ii) the average for the applicable period of the aggregate principal amount of our consolidated indebtedness (including our proportionate share of debt of any entity that is not consolidated
but excluding our joint venture partners' proportionate share of consolidated debt), plus (iii) the average for the applicable period of the liquidation value of our outstanding preferred
equity (excluding any convertible preferred stock of the Company where the conversion price is less than the average of the volume-weighted average price per share of our common stock) and
(iv) multiplying the sum of (i), (ii), and (iii) above by the Key Money Asset Factor as 100% minus the quotient resulting from dividing the aggregate gross book value of all key money
assets by the aggregate gross book value of all our assets (including key money assets).
The
"
Minimum Base Fee
" each quarter is equal to the greater of (i) 90% of the base fee paid for the same month in the prior fiscal
year and (ii) 1/12th of the G&A Ratio for the most recently completed fiscal quarter multiplied by the total market capitalization on the last balance sheet date included in the most
recent Quarterly Report on Form 10-Q or Annual Report on Form 10-K filed by the Company with the SEC. The "
G&A Ratio
" is calculated as the
simple average of the ratios of total general and administrative expenses, less any non-cash expenses but including any dead deal costs, paid in the applicable fiscal quarter by each member of a
select peer group, divided by the total market capitalization of such peer group member. Our peer group for purposes of our advisory fees includes: Chesapeake Lodging Trust, DiamondRock
Hospitality Co., Lasalle Hotel Properties, Pebblebrook Hotel Trust and Sunstone Hotel Investors, Inc. This peer group may be adjusted from time-to-time by the
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Advisor
if it reasonably believes an addition or deletion is appropriate given the competitive environment in the Company's industry at such time, which addition or deletion shall become effective
upon the twentieth (20th) day after delivery of such addition or deletion to the independent directors of the Company, unless a majority of such independent directors object, in writing, to such
addition or deletion. The base fee is payable on the fifth business day of each month.
Incentive Fee.
In each year that (i) our common stock is listed for trading on a national securities exchange for each day
of the applicable
year; and (ii) our total stockholder return ("
TSR
") exceeds the simple average TSR of our peer group we have agreed to pay an incentive fee. For
purposes of this calculation, our TSR means the sum, expressed as a percentage, of (A) the change in the common stock price during the applicable period, plus (B) the dividend yield paid
during the applicable period (determined by dividing dividends paid during the applicable period by the applicable company's common stock price at the beginning of the applicable period and including
the value of any dividends or distributions with respect to common stock not paid in cash valued in the reasonable discretion of the Advisor). If our TSR exceeds the simple average TSR for our peer
group, the Advisor will be paid an incentive fee.
The
annual incentive fee is calculated as (i) the amount by which the Company's annual TSR exceeds the simple average TSR for our peer group expressed as a percentage but capped
at 25%, multiplied by (ii) 0.05, multiplied by (iii) the product of (A) the number of shares of our common stock on a fully-diluted basis (assuming all common units and long term
incentive partnership units in the operating partnership which have achieved economic parity with common units in the operating partnership have been redeemed for our common stock) multiplied by
(B) the market price of our common stock at December 31 of the applicable calendar year (or last day of the stub period, if applicable).
The
incentive fee, if any, subject to the FCCR Condition (defined below), is due and payable in three (3) equal annual installments with the first installment payable on
January 15 following the applicable year for which the incentive fee is earned and on January 15 of the next two successive years. Notwithstanding the foregoing, upon any termination of
the Amended Advisory Agreement for any reason, any unpaid incentive fee (including any incentive fee installment for the stub period ending on the termination date) will become fully earned and
immediately due and payable without regard to the FCCR Condition defined below, and shall be included in Net Earnings for purposes of determining any Termination Fee, if applicable, relating to such
termination. Except in the case when the incentive fee is payable on the date of termination of the Amended Advisory Agreement, up to 50% of the incentive fee may be paid, at our option, in our common
stock, with the balance payable in cash unless (i) at the time for payment of the incentive fee, the Advisor owns common stock or common units in an amount greater than or equal to three times
the base fee for the preceding four quarters, (ii) payment in such securities would cause, based upon advice from counsel to the Advisor, the Advisor to be subject to the provision of the
Investment Company Act of 1940, (iii) our common stock is not listed on a national securities exchange (or it is reasonably foreseeable that our common stock will cease to be a listed on a
national securities exchange during the next 12 months), (iv) payment in shares of our common stock could have or cause, based upon advice from counsel to the Advisor, an adverse effect
on our ability to maintain our status as a REIT or Remington's ability to maintain its status as an "eligible independent contractor" as defined in Section 856(d)(9) of the Code, (v) or
payment in such securities would not be legally permissible for any reason, in which case the entire incentive fee will be payable in cash.
Upon
the determination of the incentive fee, except in the case of any termination of the Amended Advisory Agreement in which case the incentive fee for the stub period and all unpaid
installments of an incentive fee shall be deemed earned and fully due and payable, each one-third installment of the incentive fee shall not be deemed earned by the Advisor or otherwise payable by us
unless we, as of the December 31 immediately preceding the due date for the payment of the incentive
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fee
installment, have a FCCR of 0.20x or greater (the "
FCCR Condition
"). For purposes of this calculation, "FCCR" means our fixed charge coverage ratio,
which is the ratio of adjusted EBITDA for the previous four consecutive fiscal quarters to fixed charges, which includes all (i) our and our subsidiaries' interest expense, (ii) our and
our subsidiaries' regularly scheduled principal payments, other than balloon or similar principal payments which repay indebtedness in full and payments under cash flow mortgages applied to principal,
and (iii) preferred dividends paid by us.
Equity Compensation.
To incentivize employees, officers, consultants, non-employee directors, affiliates and representatives of
the Advisor to
achieve our goals and business objectives, as established by the Board, in addition to the base fee and the incentive fee described above, the Board has the authority to make annual equity awards to
the Advisor or directly to employees, officers, consultants and non-employee directors of the Advisor, based on our achievement of certain financial and other hurdles
established by the Board. These annual equity awards are intended to provide an incentive to the Advisor and its employees to promote the success of our business. The compensation committee of the
Board has full discretion regarding the grant of any annual equity awards to be provided to the Advisor and its employees, and other than the overall limitation on the total number of shares that are
authorized to be granted under the 2013 Equity Incentive Plan and the Advisor Equity Incentive Plan, there are no limitations on the amount of these annual equity awards.
If
mutually agreed between us and the Advisor, the Advisor will make "key money investments" in our Company, our subsidiaries or affiliates to facilitate our acquisition of one or more
properties, if our independent directors and the independent directors of Ashford Inc. determine that without such an investment, the acquisition of such property would be uneconomic to us. Any
such assets are referred to as "key money assets." Any key money investment will be in the form of, but not limited to, cash, notes, equity of Ashford Inc., the acquisition of furniture,
fixture and equipment for use at the subject hotel, or as agreed at the time a key money investment is made. Upon any such key money investment, we will engage the Advisor as the asset manager for the
related key money asset and will pay the key money asset management fees which are included in the base fees. We may also agree to additional incentive fees based on the performance of any key money
asset. We will be obligated to pay the Advisor the "key money clawback amount," which is equal to the difference between a per annum return of 5% on a key money asset and the amount actually received
by the Advisor (through key money asset management fees and key money incentive fees, if applicable) related to such key money asset, if the Advisory Agreement (or the applicable asset management
agreement) is terminated by us for any reason or we dispose of such key money asset (calculated on an investment by investment basis).
Expense Reimbursement.
The Company shall pay directly or reimburse the Advisor, on the terms provided herein, all of the
expenses paid or incurred by
the Advisor or its Affiliates on behalf of the Company or in connection with the services provided to the Company pursuant to the Amended Advisory Agreement, including, but not limited to:
(i) tax, legal, accounting, advisory, investment banking and other third party professional fees; board of directors' fees, retainers and expense reimbursements, taxes and assessments on income
or property and taxes as an expense of doing business; (ii) any deposits or retainers required by a third party prior to providing services required by the Company or the Advisor;
(iii) underwriting and brokerage fees and charges; (iv) costs associated with insurance (including errors and omissions insurance purchased by the Advisor); (v) interest and fees
and expenses arising out of borrowings made by the Company, including, but not limited to, costs associated with establishing and maintaining any of the Company's credit facilities, other financing
arrangements, or other indebtedness of the Company (including commitment fees, accounting fees, legal fees, closing and other similar costs) or any of the Company's securities offerings;
(vi) expenses connected with communications to holders of the Company's securities and other bookkeeping and clerical work necessary in maintaining relations with holders of such securities and
in complying with the continuous reporting and other requirements of governmental bodies or agencies, including, without
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limitation,
all costs of preparing and filing required reports with the SEC, the costs payable by the Company to any transfer agent and registrar, expenses in connection with the listing or trading of
the Company's securities on any exchange, the fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company's annual report to
the Company's stockholders and proxy materials with respect to any meeting of the Company's stockholders and any other reports or related statements; (vii) travel and entertainment expenses;
(viii) conference sponsorships and other costs and expenses related to conferences; (ix) transaction diligence and closing costs; (x) dead deal costs or distributions paid by the
Company; (xi) costs and expenses associated with administering all equity awards or compensation plans established by the Company, including the value of awards made by the Company to the
employees, officers, Affiliates and representatives of the Advisor; (xii) expenses (including the Company's pro rata portion of rent, telephone, printing, mailing, utilities, office furniture,
equipment, machinery and other office and overhead expenses) relating to any office(s) or office facilities, including disaster backup recovery sites and facilities, maintained for the Company or the
investments of the Company, the Advisor or their Affiliates required for the operation of the Company; (xiii) any costs and expenses incurred by the Advisor to enforce its rights under the
provisions of the Amended Advisory Agreement related to the termination fee, the Key Money Investment Payment or the liquidated damages payment, but only to the extent that the Advisor is the
prevailing party in the applicable proceeding; and (xiv) any other costs incurred or paid by the Advisor that the Advisor believes, in its sole discretion, are reasonably necessary for the
performance by the Advisor of its duties and functions under the Amended Advisory Agreement and including any expenses incurred by Advisor to comply with applicable laws or governmental rules or
regulations that impose duties on the Company or the Advisor in its capacity as advisor to the Company.
The
Advisor is responsible for all wages, salaries, cash bonus payments and benefits related to its employees providing services to us (including any of our officers who are also
officers of the Advisor), with the exception of any equity compensation that may be awarded by us to the employees of the Advisor who provide services to us, the provision of certain internal audit
services and the international office expenses described below. There is no specific limitation on the amount of such reimbursements.
In
addition to the expenses described above, we are required to reimburse the Advisor monthly for our pro rata share (as reasonably agreed to between the Advisor and a majority of our
independent directors or our audit committee, chairman of our audit committee or lead director) of (i) employment expenses of the Advisor's internal audit managers, insurance advisory and other
employees of the Advisor who are actively engaged in providing internal audit services to us, (ii) the reasonable travel and other out-of-pocket expenses of the Advisor relating to the
activities of its internal audit employees and the reasonable third-party expenses which the Advisor incurs in connection with its provision of internal audit services to us and (iii) all
reasonable international office expenses, overhead, personnel costs, travel and other costs directly related to the Advisor's non-executive personnel who are located internationally or that oversee
the operations of international assets or related to the Advisor's personnel that source, investigate or provide diligence services in connection with possible acquisitions or investments
internationally. Such expenses shall include but are not limited to, salary, wage payroll taxes and the cost of employee benefit plans.
The
Company also shall pay or reimburse the Advisor for any and all expenses incurred by the Advisor, its board of directors or any committee thereof related to: (i) the
preparation, negotiation and execution of any further amendment of the Amended Advisory Agreement initiated or contemplated by the Company or any other third party including with respect to a
potential transaction that could result in a Change of Control of the Company, for any reason, including but not limited to any third party's interest in proposing, pursuing, evaluating, negotiating
or completing a potential transaction that could result in a Change of Control of the Company, whether or not any amendment to the Amended Advisory Agreement is ultimately completed or abandoned and
without regard to the status of the
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preparation
and negotiation of any amendment and including but not limited to any discussion and analysis of the terms and provisions of the Amended Advisory Agreement or the process whereby services
are performed thereunder that occurs in connection with the foregoing; and (ii) the costs and expenses related to discussion and analysis of, responding to or defending against any proceeding
related to the Amended Advisory Agreement or any amendment thereto, including actual or contemplated proceedings brought by or against third parties by the Advisor, the Company but excluding any
proceeding brought by a stockholder of the Advisor against the Advisor.
The
Company shall pay the costs and expenses that are reimbursable to the Advisor on a monthly basis in advance on the first business day of each month in an amount equal to the amount
estimated to be payable on account of the costs and expenses that are reimbursable to the Advisor for each month included in each annual expense budget prepared by the Advisor and approved by the
Board. No later than forty-five (45) days following the end of each fiscal quarter during the term of the Amended Advisory Agreement, the Advisor shall calculate the costs and expenses that
were actually reimbursable to the Advisor for each month in the fiscal quarter just ended. If the actual aggregate reimbursable costs and expenses exceed the budgeted amount actually paid by the
Company to the Advisor in a given fiscal quarter, then the Company shall pay the Advisor the full amount of such difference no later than 55 days following the end of the applicable fiscal
quarter. If the actual aggregate reimbursable cost paid by the Company is greater than the budgeted amount actually paid by the Company to the Advisor in a given fiscal quarter, then the Advisor shall
repay the difference to the Company no later than 55 days following the end of the applicable fiscal quarter.
Allowances and Rebates.
The Company acknowledges that the Advisor (and its affiliates) may receive allowances, rebates or other
payments in exchange
for the purchase or lease of goods, services, systems or programs involving any services or products provided or sold to the Company, its affiliates and any hotels owned by the Company. In each case,
the Advisor shall provide the Company's independent directors with information regarding the nature and amount of the allowance, rebate or other payment and the Advisor shall be permitted to receive
the allowance, rebate or other payment subject to the approval of the Company's independent directors, which approval shall not be unreasonably withheld.
Limitations on Liability and Indemnification.
The Amended Advisory Agreement provides that the Advisor has no responsibility
other than to render the
services and take the actions described in the Amended Advisory Agreement in good faith and with the exercise of due care and will not be responsible for any action the Board takes in following or
declining to follow any of the Advisor's advice or recommendations. The Amended Advisory Agreement provides that the Advisor (including its officers, directors, managers, employees and members) will
not be liable for any act or omission by it (or them) performed in accordance with and pursuant to the Amended Advisory Agreement, except by reason of acts constituting gross negligence, bad faith,
willful misconduct or reckless disregard of duties under the Amended Advisory Agreement.
We
have agreed to indemnify and hold harmless the Advisor (including its partners, directors, officers, stockholders, managers, members, agents, employees and each other person or
entity, if any, controlling the Advisor) to the fullest and broadest extent permitted under the Company's charter and bylaws and the corporate law of the jurisdiction in which the Company is
incorporated including all mandatory provisions that may not be waived from and against any and all losses, claims, damages, liabilities, costs and expenses of any nature whatsoever including, without
limitation, attorney's fees, court costs, and similar fees and expenses with respect to or arising out of the Amended Advisory Agreement or the performance by the Advisor of its responsibilities and
obligations (including any pending or threatened litigation except for any proceeding filed by a stockholder of the Advisor against the Advisor), from any acts or omission of the Advisor (including
ordinary negligence and any action taken by the Advisor following a directive by the Board in its capacity as such and expenses incurred by the Advisor which are reimbursable by the Company), except
with respect to expenses with respect to
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or
arising out of the Advisor's gross negligence, bad faith or willful misconduct, or reckless disregard of its duties under the Amended Advisory Agreement.
We
have also agreed to indemnify the Advisor (including its partners, directors, officers, stockholders, managers, members, agents, employees and each other person or entity, if any,
controlling the Advisor) from and against any and all losses, claims, damages, liabilities, costs and expenses of any nature whatsoever including, without limitation, attorney's fees, court costs, and
similar fees and expenses to which any of them may become subject under Federal securities laws or otherwise, arising out of or based upon misstatements and omissions in connection with our SEC
filings and offerings of securities.
Disclosure Obligations.
The Amended Advisory Agreement provides that the Advisor will disclose publicly the incremental expenses
used to calculate
"Net Earnings" on a quarterly basis which is used
to calculate the termination fee. The Advisor will retain an accounting firm to provide a quarterly report to the Company's audit committee on the reasonableness of the Advisor's determination of
incremental expenses, which will be binding on the parties.
Control over Bank Accounts.
The Advisor have the exclusive right and authority to establish and maintain, subject to any
applicable conditions or
limitations of loan documents applicable to the Company, one or more bank, brokerage or similar accounts in the Advisor's own name for the account of the Company or in the name of the Company and
collect and deposit into any account or accounts, and disburse from any such account or accounts, any and all money, securities and other cash equivalents on behalf of the Company, provided that no
funds shall be comingled with the funds of the Advisor. The Advisor shall from time to time render appropriate accountings of such collections and payments to the Board and the independent auditors of
the Company.
In
addition to any rights and remedies provided to the Advisor by the Amended Advisory Agreement or under applicable law, the Advisor shall have the right in its sole discretion, without
prior notice to the Company, to set off, take and apply any monies of the Company on deposit in any bank, brokerage or similar account established and maintained for the Company by the Advisor or any
money on deposit in any escrow account funded with a termination fee to the payment of all amounts becoming due and payable by the Company; provided, that exercise of any set-off right shall not
impact the Company's obligation to pay any obligations that remain due and payable following set-off by the Advisor.
Contractual Relationship.
The relationship between the Company and the Advisor under the Amended Advisory Agreement is
contractual in nature. The
Company and the Advisor are not partners or joint venturers with each other, and nothing in the Amended Advisory Agreement shall be construed to make the Company and the Advisor partners or joint
venturers. Nothing prevents the Advisor from engaging in other activities, including, without limitation, the rendering of advice to other REITs and to the management of Ashford Trust or other
programs advised, sponsored or organized by the Advisor, Ashford Trust or their respective affiliates.
Investment Guidelines.
The Company is not permitted to revise its Investment Guidelines to be directly competitive with all or
any portion of Ashford
Trust's Investment Guidelines in effect as of November 19, 2013 or with all or any portion of the initial Investment Guidelines of any spun-off company. The Company acknowledges that any
subsequent change to Ashford Trust's Investment Guidelines, including in connection with any future spin-off, carve-out, split-off or other consummation of a transfer of a division or subset of assets
for the purpose of forming a joint venture, a newly created private platform or a new publicly-traded company will not have any impact on or change Ashford Trust's Investment Guidelines as of
November 19, 2013 and as of the date of the Amended Advisory Agreement for purposes of enforcing its rights under the Amended Advisory Agreement.
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Additional Services.
If, and to the extent that, we request the Advisor to render services on our behalf other than those
required to be rendered by
it under the Amended Advisory Agreement, such additional services shall be compensated separately at market rates, as defined in the Amended Advisory Agreement. The Advisor will have the exclusive
right to provide additional services at market rate.
Assignment.
The Advisor may assign its rights under the Amended Advisory Agreement without our approval to any affiliate under
the control of
Ashford Inc. We are not permitted to assign the Amended Advisory Agreement except in the case of assignment by the Company to another REIT or other organization that is a successor, by merger,
consolidation, purchase of assets, or other similar transaction, to the Company;
provided
,
that
, any
such consent of the Advisor shall not impact the Company's obligation to pay the termination fee and any other amounts that become due and payable to the Advisor under the Amended Advisory Agreement.
The Ashford Trademark.
The Advisor and its affiliates have a proprietary interest in the "Ashford" trademark, and the Advisor
agreed to license its
use to us. If at any time we cease to retain the Advisor or one of its affiliates to perform advisory services for us, within 60 days following receipt of written request from the Advisor, we
must cease to conduct business under or use the "Ashford" name or logo, as well as change our name and the names of any of our subsidiaries to a name that does not contain the name "Ashford."
The
foregoing is intended only as a summary of certain terms of the Amended Advisory Agreement. It is not a complete description of the Amended Advisory Agreement. It is subject to and
qualified in its entirety by reference to the Amended Advisory Agreement, a copy of which is attached to this proxy statement as
Exhibit A
.
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INFORMATION ABOUT ASHFORD HOSPITALITY PRIME, INC.
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Our Relationship and Agreements with Ashford Inc.
Under the Existing Advisory Agreement and the proposed Amendments discussed in this proxy statement, Ashford LLC and Ashford Inc.
serve as our advisor and are responsible for implementing our investment strategies and decisions and managing our day-to-day operations, in each case subject to the supervision and oversight of the
Board. Ashford LLC may also perform similar services for new or existing platforms created by the Company. We have negotiated certain amendments to the terms of our Existing Advisory Agreement
which will become effective upon stockholder approval. For a description of the Amended Advisory Agreement, see
The Amended Advisory Agreement
.
We
currently own approximately 9.7% of the outstanding stock of the Advisor. All of our officers are employees of the Advisor and, all of our executive officers other than our Chief
Executive Officer, Richard Stockton, are also executive officers of the Advisor and Ashford LLC. In addition, so long as Ashford LLC is our advisor, our charter requires the Company to
include two persons designated by Ashford LLC as director candidates for election at any stockholder meeting at which directors are to be elected.] The executive offices of
Ashford LLC are located at 14185 Dallas Parkway, Suite 1100, Dallas, Texas 75254, and the telephone number of Ashford LLC's executive offices is (972) 490-9600.
For
the year ended December 31, 2015, we paid a total advisory fee of approximately $10.0 million to the Advisor related to the Existing Advisory Agreement, comprised of a
base fee of approximately $8.7 million and approximately $1.3 million, representing approximately one-third of the $3.8 million incentive fee payable. For the year ended
December 31, 2015, we reimbursed the Advisor for expenses paid or incurred on our behalf totaling approximately $1.8 million related to the Existing Advisory Agreement.
The
Company's Board has the authority to make annual equity awards to the Advisor or directly to its employees, officers, consultants and non-employee directors, based on our achievement
of certain financial targets and other thresholds established by the Company's Board. For the year ended December 31, 2015, we incurred equity-based compensation of $3.6 million
associated with equity grants of our common stock, LTIP units and PSUs awarded to the officers and employees of the Advisor.
Our Relationship and Agreements with Remington
Upon the completion of the spin-off from Ashford Trust in November 2013, we entered into a master management agreement and a mutual exclusivity
agreement ("
MMA
") with Remington. Remington manages our Pier House Resort and the Bardessono Hotel & Spa. Because Mr. Monty J.
Bennett, our Chief Executive Officer and the Chairman of the Board, is also the Chief Executive
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Officer
of Remington and, together with his father Mr. Archie Bennett, Jr., beneficially owns 100% of Remington, they will benefit from the fees paid to Remington under the master management
agreement.
We
have agreed to engage Remington for the property management, project management, development and certain other work for all hotels we acquire, unless the Company's independent
directors either (i) unanimously vote not to engage Remington or (ii) based on special circumstances or past performance, by a majority vote elect not to engage Remington because they
have determined that it would be in the best interest not to engage Remington because another manager or developer could perform the duties materially better.
On
September 17, 2015, Remington and Ashford Inc. entered into an agreement pursuant to which the Advisor acquired all of the general partner interest and eighty percent of
the limited partner interests in Remington. The acquisition is subject to the satisfaction of various conditions. The acquisition, if completed, will not impact our management agreements with
Remington. Remington receives a base management fee, and if the hotels meet and exceed certain thresholds, an additional incentive fee (up to 1% of gross revenues attributable to each such hotel) for
the services it performs under the master management agreement. For the year ended December 31, 2015, we paid approximately $3.06 million in fees related to the MMA.
Pursuant
to the mutual exclusivity agreement with Remington, we have a first right of refusal to purchase any lodging-related investments identified by Remington and any of its
affiliates that meet the Company's initial investment criteria. Any new investment opportunities identified by Remington that satisfy our initial investment guidelines are presented to the board,
which has up to 10 business days to accept any such opportunity prior to it being made available to other affiliates of the Company. The
mutual exclusivity agreement also provides that Remington will provide property management, project management and development services for all properties that we acquire to the extent that we have
the right or control the right to direct such matters, unless our independent directors either (i) unanimously vote not to hire Remington or (ii) based on special circumstances or past
performance, by a majority vote elect not to engage Remington because they have determined that it would be in the Company's best interest not to engage Remington or because another manager or
developer would be more appropriate for the Company.
Our Relationship and Agreements with Ashford Trust
We spun off from Ashford Trust in November 2013 and, until July 2015, Ashford Trust's operating subsidiary owned approximately 15% of the
outstanding common units of our operating partnership, which were redeemable for shares of our common stock on a one-for-one basis. In July 2015, Ashford Trust's operating subsidiary completed a
distribution of these common units to its limited partners, including Ashford Trust. Ashford Trust sought redemption of the common units to shares of our common stock, and completed a pro rata,
taxable dividend of our common stock to its stockholders. Following this transaction, Ashford Trust no longer owns any of our securities. In connection with the spin-off, Ashford Trust's former
subsidiary Ashford LLC entered into an advisory agreement with us, and as a result, we paid advisory fees from Ashford Prime from the periods from January 1, 2014 through
November 12, 2014 and from November 19, 2013 to December 31, 2013. Upon completion of the November 2014 spin-off of Ashford Inc. from Ashford Trust, Ashford LLC
became a subsidiary of Ashford Inc., and Ashford Trust no longer received advisory fees from Ashford Prime. We currently have a right of first offer agreement with Ashford Trust which provides
us the first right to acquire certain hotel properties, to the extent the board of directors of Ashford Trust determines to market and sell such hotels, subject to any prior rights of the managers of
the hotel or other third parties. Likewise, we have agreed to give Ashford Trust a right of first offer with respect to any properties that we acquire in a portfolio transaction, to the extent the
Board determines it is appropriate to market and
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sell
such assets and we control the disposition, provided such assets satisfy Ashford Trust's investment guidelines.
Conflict of Interest Policies
Because the Company could be subject to various conflicts of interest arising from our relationship with Remington, Ashford Inc., Ashford
Trust, and other parties and affiliates, to mitigate any potential conflicts of interest, we have adopted a number of conflict of interest policies. For example, our bylaws require that, at all times,
a majority of the Board be independent directors and our Corporate Governance Guidelines require that two-thirds of the Board be independent directors at all times that we do not have an independent
chairman.
Our
Corporate Governance Guidelines provide that all decisions related to the advisory agreement with Ashford LLC, the mutual exclusivity agreement or the master management
agreement with Remington and certain agreements with Ashford Trust that we entered into pursuant to the spin-off be approved by a majority of the independent directors, except as specifically provided
otherwise in such agreements. In addition, our directors also are subject to provisions of Maryland law that address transactions between Maryland corporations and our directors or other entities in
which our directors have a material financial interest. Moreover, our charter, consistent with Maryland law, contains a requirement that any transaction or agreement involving us, any of our wholly
owned subsidiaries or our operating partnership and a director or officer or an affiliate of any director or officer will require the approval of a majority of disinterested directors.
MISCELLANEOUS
Where You Can Find Additional Information
We file annual, quarterly and special reports, proxy statements and other information with the SEC at 100 F Street N.E., Washington, DC
20549-1090. You may read and copy any reports, statements or other information we file at the SEC's public reference rooms in Washington, D.C., New York, New York and Chicago, Illinois. Please
call the SEC at (800) SEC-0330 for further information on the public reference rooms. Our SEC filings are also available to the public from commercial document retrieval services and on the
website maintained by the SEC at
www.sec.gov. We make available on our website at www.ahpreit.com, free of charge, our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K
(including our Form 8-K that includes the Amended Advisory Agreement attached as Exhibit 10.1 thereto), press releases, charters for the committees of the Board, our Board of Directors
Guidelines, our Code of Business Conduct and Ethics, our Financial Officer Code of Conduct and other Company information, including amendments to such documents as soon as reasonably practicable after
such materials are electronically filed or furnished to the SEC or otherwise publicly released. This information will also be furnished upon written request to Ashford Hospitality Prime, Inc.,
Attention: Investor Relations, 14185 Dallas Parkway, Suite 1100, Dallas, Texas, 75254 or call (972) 490-9600. You can also obtain copies from our web site at www.ahpreit.com.
OTHER MATTERS
Our board of directors is not aware of any matters to be presented for action at the Special Meeting other than as set forth in this Proxy
statement.
You should rely only on the information contained in (or incorporated by reference into) this proxy statement to vote on the proposal submitted for stockholder
vote. We have not authorized anyone to provide you with information that is different from what is contained in (or incorporated by
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reference into) this proxy statement. This proxy statement is dated , 2017. You should not assume that the information contained in this proxy
statement is accurate as of any later
date.
|
|
|
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By order of the Board of Directors,
|
14185 Dallas Parkway, Suite 1100
Dallas, Texas 75254
, 2017
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David A. Brooks
Secretary
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Exhibit A
FOURTH AMENDED AND RESTATED ADVISORY AGREEMENT
ASHFORD HOSPITALITY PRIME, INC.
THIS FOURTH AMENDED AND RESTATED ADVISORY AGREEMENT (this "
Amended Agreement
"), is dated as of
January 24, 2017, by and between ASHFORD HOSPITALITY PRIME, INC., a Maryland corporation (the "
Company
"), ASHFORD HOSPITALITY PRIME
LIMITED PARTNERSHIP, a Delaware limited partnership (the "
Operating Partnership
"), ASHFORD PRIME TRS CORPORATION, a Delaware corporation,
ASHFORD INC., a Maryland corporation ("
Ashford Inc.
"), and ASHFORD HOSPITALITY ADVISORS LLC, a Delaware limited
liability company which is the operating company of Ashford Inc. ("
Advisors LLC
" and, together with Ashford Inc., the
"
Advisor
").The parties to this Amended Agreement are sometimes referred to herein individually as a
"
Party
" or collectively as the "
Parties
." Unless the context otherwise requires, the term "Company" and
the term "
Advisor
" shall collectively include such Party and its respective Subsidiaries (including, with respect to the Company, the Operating
Partnership and in the case of the Advisor, all Majority or Minority Subsidiaries). All capitalized terms used in this Amended Agreement shall have the meaning ascribed to those terms in
Section 24
or as otherwise defined elsewhere in this Amended Agreement unless the context clearly provides otherwise.
WHEREAS,
the Company invests primarily in high revenue per available room luxury hotels;
WHEREAS,
the Parties entered into an Advisory Agreement dated and effective on November 19, 2013, which was amended and restated on May 13, 2014, again amended and restated
on November 3, 2014 and again amended and restated on June 10, 2015 (the "
Existing Advisory Agreement
"), pursuant to which the Advisor
agreed to perform certain advisory services identified in the Existing Advisory Agreement, on behalf of, and subject to the supervision of, the Board of Directors;
WHEREAS,
the Company and the Advisor have discussed the desirability of certain amendments to the Existing Advisory Agreement, and, in doing so, subject to the Company Stockholder
Approval, to amend and restate the Existing Advisory Agreement to include these amendments;
WHEREAS,
the Company desires to continue to avail itself of the experience, brand relationships, lender and capital provider sources and relationships, service provider and vendor
relationships, asset management expertise, sources of information, advice, assistance and certain facilities of the Advisor and to have the Advisor continue to provide the services hereinafter set
forth, on behalf of, and subject to the supervision of, the Board of Directors, all as provided herein; and
WHEREAS,
the Advisor is willing to continue to provide such services to the Company on the terms set forth herein;
NOW,
THEREFORE, in consideration of the mutual covenants set forth in this Amended Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
1.
APPOINTMENT OF ADVISOR.
(a) The
Company appoints the Advisor as the Company's exclusive advisor of the Company pursuant to the terms of this Amended Agreement and acknowledges the continued role of
the Advisor as the
exclusive advisor of the Company, to provide the management and real estate services specified herein on the terms and conditions set forth in this Amended Agreement and the Advisor hereby
acknowledges and accepts such appointment.
(b) Concurrently
with, and as a condition to, the effectiveness of this Amended Agreement:
(i) the
Escrow Agreement establishing the Termination Fee Escrow Account shall have been executed and delivered by the parties thereto in a form satisfactory to the
Advisor;
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(ii) the
Company shall have paid by wire transfer of same day funds to the account or accounts designated by the Advisor an amount in cash equal to five million dollars
($5.0 million); and
(iii) the
Company Stockholder Approval shall have been obtained.
2.
DUTIES OF ADVISOR.
2.1
Specific Duties.
Subject to the supervision of the Board of Directors and the Company complying with its
obligations hereunder, the Advisor shall be solely responsible for the day-to-day operations of the Company including all of its Subsidiaries and joint ventures, and shall perform (or cause to be
performed through one or more of its Affiliates or third parties) all services relating to the acquisition and disposition of hotels, asset management and financing and operations of the Company, all
as may be reasonably required, which shall include the following:
(a) source,
investigate and evaluate hotel acquisitions and dispositions consistent with the Company's Investment Guidelines (as defined in
Section 9.3(a)
below) and make recommendations to the Board of
Directors;
(b) engage
and supervise, at the Company's expense, third parties to provide services such as development management, property management, project management, design and
construction services, investment banking services, financial services, property disposition brokerage services, independent accounting and auditing services and tax reviews and advice, transfer agent
and registrar
services, feasibility studies, appraisals, engineering studies, environmental property inspections and due diligence services, underwriting review services, consulting services, and other services,
deemed by the Advisor to be reasonably necessary for Advisor to perform its duties hereunder;
(c) negotiate
the material terms and conditions as well as definitive documentation of any acquisitions, dispositions, financings, restructurings or other transactions with
sellers, purchasers, lenders, brokers, agents and other applicable counterparties and representatives;
(d) coordinate
and manage any joint ventures to which the Company is a party (including joint ventures with parties that are Affiliates of the Advisor or the Company),
including monitoring and enforcing compliance with applicable joint venture or partnership governing documents;
(e) negotiate
the terms of hotel management agreements, franchise agreements and other contracts or agreements of the Company, and modifications, extensions, waivers or
terminations thereof including, without limitation, the negotiation and approval of annual operating and capital budgets thereunder;
(f) enforce,
monitor and manage compliance of hotel management agreements, franchise agreements and other contracts or agreements of the Company, and modifications,
extensions, waivers or terminations thereof;
(g) negotiate
terms of loan documents ("
Loan Documents
") for the Company's financings;
(h) enforce,
monitor and manage compliance with Loan Documents to which the Company is a party or is otherwise applicable to the Company;
(i) administer
the Company's bookkeeping and accounting functions as are required for the management and operation of the Company, and, subject to the prior authorization of
the audit committee of the Board of Directors (the "
Audit Committee
"), cause the Company to contract with independent public registered accountants and
prepare or cause to be prepared such periodic reports and filings as may be required by any governmental authority, including
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but
not limited to the Securities and Exchange Commission (the "
SEC
"), in connection with the ordinary conduct of the Company's business, and otherwise
assist the Company with its compliance with applicable legal and regulatory requirements, including without limitation, proxy statements, annual, quarterly and other periodic reports and other filings
required under the Securities Exchange Act of 1934, as amended (the "
Exchange Act
"), returns and filings under the Internal Revenue Code of 1986, as
amended (the "
Code
") and any regulations or rulings thereunder, the securities and tax statutes of any state or other jurisdiction in which the Company
is obligated to file such reports, or the rules and regulations promulgated under any of the foregoing;
(j) assist
in preparing and filing any offering documents, registration statements and prospectuses included therein, and other forms or documents filed with the SEC
pursuant to the Securities Act of 1933, as amended (the "
Securities Act
"), or any state securities regulations;
provided,
however,
the Company shall be responsible for the content of any and all of its offering documents, SEC filings or state regulatory filings, including, without limitation,
those filings referred to in
Section 2.1(i)
, and the Advisor shall not be held liable for any costs or liabilities arising out of any
misstatements or omissions in the Company's offering documents, SEC filings, state regulatory filings or other filings referred to in
Section 2.1(i)
and this
Section 2.1
(j)
, whether or not material, and the Company shall
promptly indemnify Advisor for such costs and liabilities;
(k) investigate,
evaluate, negotiate and otherwise manage and take actions it deems necessary to resolve all Proceedings to which the Company may be a party or otherwise
involved or to which the Company may be subject other than any Proceedings to which the Advisor or any of its Affiliates are adverse to the Company, subject to such limitations or parameters as may be
imposed from time to time by the Board of Directors, and cause the Company to retain such legal counsel, consultants and other third parties on behalf of the Company, as the Advisor deems necessary in
connection with the foregoing, and coordinate, supervise and manage all such legal counsel, consultants and other third parties;
(l) provide,
or cause a third party to provide, the Company with personnel to perform the Company's risk management and oversight function;
(m) provide
office space, office equipment and personnel necessary for the performance by the Advisor of the services contemplated by this Amended Agreement;
(n) cause
the payments required to fulfill all of the Company obligations to be made, including without limitation payments of interest and principal on indebtedness of the
Company and dividends or distributions to stockholders to the extent declared by the Board of Directors;
(o) communicate
with the Company's investors and analysts as required to satisfy reporting or other requirements of any governing body or exchange on which the Company's
securities are traded and to maintain effective relations with such investors and assist the Company with public relations, marketing materials, website and investor relation services;
(p) so
long as the Board of Directors deems necessary, assist the Company in maintaining its status as a real estate investment trust for U.S. Federal income tax purposes
("
REIT
") and monitoring compliance with the various REIT qualification tests and other rules set out in the Code and Treasury Regulations thereunder and
using commercially reasonable efforts to cause the Company to qualify for taxation as a REIT;
(q) provide
direction and guidance to the Board of Directors in connection with policy decisions considered by the Board of Directors;
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(r) furnish
reports and statistical and economic research to the Board of Directors regarding the Company's activities, investments, financing and capital market activities
and services performed for the Company by the Advisor;
(s) asset
manage and monitor the operating performance of the Company's real estate investments, including monitoring the management and implementation of capital
improvement programs, pursue property tax appeals (as appropriate), and provide periodic reports with respect to the Company's investments to the Board of Directors, including comparative information
with respect to such operating performance and budgeted or projected operating results;
(t) establish,
maintain and oversee the Company's bank accounts (provided that the Advisor shall not be required to provide or assist in proactive investment management
strategies or invest excess cash in securities other than U.S. Treasuries);
(u) consult
with the Board of Directors regarding the Company's capital structure and capital raising;
(v) take
all actions reasonably necessary to enable the Company to comply with and abide by all applicable laws and regulations in all material respects subject to the
Company providing appropriate, necessary and timely funding of capital;
(w) provide
the Company with an internal audit staff with the ability to satisfy any applicable regulatory requirements, including requirements of the New York Stock
Exchange and the SEC, and any additional duties that are determined reasonably necessary or appropriate by the Audit Committee ("
Internal Audit
Services
"); and
(x) take
such other actions and render such other services as may reasonably be requested by the Company consistent with the purpose of this Amended Agreement and the
aforementioned services;
provided, that
any increase in the scope of duties or services to be provided by the Advisor (i) must be jointly
approved by the Company and the Advisor according to
Section 9.4
and (ii) will be subject to additional compensation determined in
accordance with
Section 9.4
.
2.2
Officers and Other Personnel
. The Advisor shall make available personnel necessary to perform the services
and functions the Advisor is responsible for performing under this Amended Agreement, including persons to serve as officers of the Company. The Parties agree that persons that are directors,
managers, officers and employees of the Advisor or an Affiliate of the Advisor or any corporate parent of an Affiliate, may serve as a director or officer of the Company, except that no director,
officer or employee of the Advisor or its Affiliates who also is a director or officer of the Company shall receive any compensation from the Company for serving as a director or officer other than
(a) reasonable reimbursement for travel and related expenses incurred in attending meetings of the Board; or (b) as otherwise approved by the Board, including a majority of the
Independent Directors, and no such director shall be deemed an Independent Director. The Advisor or its Affiliates shall neither be obligated to dedicate any of their officers or other personnel
exclusively to the Company nor is the Advisor, its Affiliates or any of its officers or other employees obligated to dedicate any specific portion of its or their time to the Company or its business,
except as necessary to perform the services provided for in this Amended Agreement provided further that if the Advisor terminates the employment of Richard Stockton without the Company's consent, and
the termination creates any cost or other liability to the Company in regards to unvested options or stock granted by the Company to Mr. Stockton, then the Advisor will be responsible for, and
reimburse the Company for, the cost or other liability.
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2.3
Professional Services
.
(a) The
Advisor shall be entitled to rely on qualified experts and professionals (including, without limitation, accountants, legal counsel and other professional service
providers) hired by the Advisor at the Company's sole cost and expense. The Advisor may retain, for and on behalf, and at the sole cost and expense of the Company, such services of any individual,
corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity (each a "
Person
") as
the Advisor deems necessary or advisable in connection with the management and operations of the Company.
(b) The
Parties agree and acknowledge that, to the extent applicable in connection with the application or qualification for any and all licensing exemptions and other
exemptions contained in any professional regulatory laws, the Advisor and the Advisor's personnel are equivalent to "internal personnel" of the Company or shall be otherwise considered to meet
applicable standards, and the Company shall not assert that they are not "internal personnel" under such circumstances. Notwithstanding anything to the contrary contained herein, neither the Advisor
nor any of its personnel are performing nor shall be required to perform services hereunder that would require the Advisor or any of its personnel to be licensed as a real estate broker in any state
or other jurisdiction.
(c) Notwithstanding
the fact that certain officers and other personnel employed by the Advisor may be both licensed attorneys (each licensed attorney, an
"
Advisor Attorney
") and officers, managers, partners or employees of the Company, whenever an Advisor Attorney provides legal advice and services in his
or her capacity as a manager, partner, officer or employee of the Company, then the Advisor Attorney shall be deemed to be acting in that capacity solely for the Company, and not as a manager,
partner, officer or employee of the Advisor or under the control or direction of the Advisor, even if paid by the Advisor. No Advisor Attorney shall be required to provide legal advice to the Company
in any situation in which the Company and the Advisor are adverse.
2.4
Board of Directors Matters
.
(a) In
accordance with Article VII, Section 4 of the charter of the Company, the Company shall nominate persons designated by the Advisor as candidates for
election as directors at any stockholders meeting at which directors are to be elected such that the Advisor designees constitute as nearly as possible 29% of the Board of Directors, in all cases
rounding to the next larger whole number, for so long as this Amended Agreement is in effect.
(b) The
Company shall not amend Article VII, Section 4 of the charter of the Company as in effect as of the date of this Amended Agreement or make any other
amendments to the charter or bylaws of the Company that would in any way impair the ability of the Company to comply in full with its obligations under this Amended Agreement.
(c) The
Parties stipulate that a breach of this
Section 2.4
would cause irreparable harm and that the obligations of
the Company under this
Section 2.4
shall, in addition to any other remedies available at
applicable law, be enforceable by a decree of specific performance issued by any court of competent jurisdiction, and appropriate injunctive relief may be applied for and granted in connection
therewith.
2.5
Certain Related Party Matters
. Any waiver, consent, approval, modification, enforcement matter or election
required to be made by the Company under the Mutual Exclusivity Agreement between the Company, Remington Lodging and Hospitality, LLC
("
Remington
") and Monty J. Bennett, dated as of November 19, 2013, as the same may be amended from time to time, or the Master Management
Agreement between the Company and Remington, dated as of November 19,
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2013,
as the same may be amended or supplemented from time to time, shall be within the exclusive discretion and control of a majority of the Independent Directors (or higher vote thresholds
specifically set forth in such agreements) unless specifically delegated to the Advisor by a majority of the Independent Directors.
2.6
Increase in Scope of Duties
. Any increase in the scope of duties or services to be provided by the Advisor
must be jointly approved by the Company and the Advisor pursuant to
Section 9.4
and will be subject to additional compensation in accordance
with
Section 9.4
.
2.7
Asset Management
. The Advisor shall be the Company's sole and exclusive asset manager with authority to
source, evaluate and monitor the Company's investment opportunities consistent with the Company's Investment Guidelines, and to direct the operation and policies of the Company, such as managing the
Company's assets and monitoring the operating performance of the Company's hotel real estate investments and other assets, including the management and implementation of capital improvement programs,
pursue property tax appeals (as appropriate), and providing periodic reports with respect to the Company's hotel real estate investments and other assets to the Board of Directors, including
comparative information with respect to such operating performance and budgeted or projected operating results.
3.
AUTHORITY OF ADVISOR.
(a) Subject
only to the express limitations set forth in this Amended Agreement and the continuing authority of the Board of Directors over the management of the Company,
the power to direct the
management, operation and policies of the Company shall be vested solely and exclusively in the Advisor, including, without limitation, the authority to (i) locate, analyze and select
investment opportunities; (ii) structure the terms and conditions of transactions pursuant to which investments will be made or acquired for the Company; (iii) arrange for financing or
refinancing of the Company's assets; (iv) enter into hotel management agreements, franchise agreements and other contracts or agreements of the Company, and modifications, extensions, waivers
or terminations thereof including, without limitation, the negotiation and approval of annual operating and capital budgets thereunder; (v) oversee duly qualified and licensed property managers
and other Persons who perform services for the Company; (vi) arrange for, or provide, accounting and other record-keeping functions; (vii) administer distributions and dividends; and
(viii) administer the sale, conveyance, contribution or transfer of assets and related closings thereof. Notwithstanding the foregoing, all material decisions with respect to annual capital
plans, brand conversions, the commencement or settlement of litigation matters, investment decisions, capital market transactions, annual budgets and management and franchise options recommended by
the Advisor, including the acquisition, sale, financing and refinancing of assets, shall be subject to the prior authorization of the Board of Directors, except to the extent such authority is
expressly delegated by the Board of Directors to the Advisor. Additionally, if the charter or Maryland General Corporation Law requires the prior approval of the Board of Directors, the Advisor may
not take any action on behalf of the Company without the prior approval of the Board of Directors or duly authorized committees thereof. In such cases where prior approval is required, the Advisor
will deliver to the Board of Directors such documents and supporting information as may be reasonably requested by the Board of Directors to evaluate a proposed investment (and any related financing)
or other matters requiring the Board of Directors' authorization.
(b) The
Company hereby authorizes the Advisor, and appoints the Advisor as its attorney-in-fact, to, without limitation, execute and file or record, if necessary, any
instrument, document, notice or agreement on its behalf pursuant to the authority granted pursuant to
Section 3(a)
or otherwise granted by the
Company to the Advisor under this Amended Agreement. This power, being coupled with an interest, shall be irrevocable until this Amended Agreement is
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terminated
pursuant to
Section 12
and all amounts payable pursuant to
Section 12
(including without limitation any Termination Fee) have been paid, satisfied and discharged in full.
4.
BANK ACCOUNTS.
(a) The
Advisor shall, and hereby is authorized to, and shall have the exclusive right and authority to, establish and maintain subject to any applicable conditions or
limitations of loan documents applicable
to the Company, one or more bank, brokerage or similar accounts in the Advisor's own name for the account of the Company or in the name of the Company and collect and deposit into any account or
accounts, and disburse from any such account or accounts, any and all money, securities and other cash equivalents on behalf of the Company, provided that no funds shall be comingled with the funds of
the Advisor. The Advisor shall from time to time render appropriate accountings of such collections and payments to the Board of Directors and the independent auditors of the Company.
(b) In
addition to any rights and remedies provided to the Advisor by this Amended Agreement or under applicable law, the Advisor shall have the right in its sole
discretion, without prior notice to the Company, to set off, take and apply any monies of the Company on deposit in any bank, brokerage or similar account established and maintained for the Company by
the Advisor pursuant to this
Section 4
or any money on deposit in the Termination Fee Escrow Account to the payment of all amounts becoming due
and payable by the Company;
provided, that
exercise of any set-off right shall not impact the Company's obligation to pay any obligations that remain
due and payable following set-off by the Advisor.
5.
PAYMENT OF EXPENSES.
5.1
Reimbursable Expenses
.
(a) Except
as provided herein, the Company shall pay directly or reimburse the Advisor, on the terms provided herein, all of the expenses paid or incurred by the Advisor or
its Affiliates on behalf of the Company or in connection with the services provided to the Company pursuant to this Amended Agreement, including, but not limited to:
(i) tax,
legal, accounting, advisory, investment banking and other third party professional fees; Board of Directors' fees, retainers and expense reimbursements, taxes and
assessments on income or property and taxes as an expense of doing business;
(ii) any
deposits or retainers required by a third party prior to providing services required by the Company or the Advisor;
(iii) underwriting
and brokerage fees and charges;
(iv) costs
associated with insurance (including errors and omissions insurance requested by
Section 8.2
purchased by
the Advisor);
(v) interest
and fees and expenses arising out of borrowings made by the Company, including, but not limited to, costs associated with establishing and maintaining any of
the Company's credit facilities, other financing arrangements, or other indebtedness of the Company (including commitment fees, accounting fees, legal fees, closing and other similar costs) or any of
the Company's securities offerings;
(vi) expenses
connected with communications to holders of the Company's securities and other bookkeeping and clerical work necessary in maintaining relations with holders of
such securities and in complying with the continuous reporting and other requirements of governmental bodies or agencies, including, without limitation, all costs of preparing and filing required
reports with the SEC, the costs payable by the Company to any transfer agent and registrar, expenses in connection with the listing or trading of the
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Company's
securities on any exchange, the fees payable by the Company to any such exchange in connection with its listing, costs of preparing, printing and mailing the Company's annual report to the
Company's stockholders and proxy materials with respect to any meeting of the Company's stockholders and any other reports or related statements;
(vii) travel
and entertainment expenses;
(viii) conference
sponsorships and other costs and expenses related to conferences;
(ix) transaction
diligence and closing costs;
(x) dead
deal costs or distributions paid by the Company;
(xi) costs
and expenses associated with administering all equity awards or compensation plans established by the Company, including the value of awards made by the Company
to the employees, officers, Affiliates and representatives of the Advisor;
(xii) expenses
(including the Company's pro rata portion of rent, telephone, printing, mailing, utilities, office furniture, equipment, machinery and other office and
overhead expenses) relating to any office(s) or office facilities, including disaster backup recovery sites and facilities, maintained for the Company or the investments of the Company, the Advisor or
their Affiliates required for the operation of the Company;
(xiii) any
costs and expenses incurred by the Advisor to enforce its rights under
Section 12
,
Section 16
or
Section 19
but only to the extent that the Advisor is the prevailing party
in the applicable Proceeding; and
(xiv) any
other costs incurred or paid by the Advisor that the Advisor believes, in its sole discretion, are reasonably necessary for the performance by the Advisor of its
duties and functions under this Amended Agreement and including any expenses incurred by Advisor to comply with applicable laws or governmental rules or regulations that impose duties on the Company
or the Advisor in its capacity as advisor to the Company.
(b) To
the extent that any expenses or costs incurred or paid by the Advisor are also attributable to any other entity advised by the Advisor (including, without limitation,
Ashford Trust), the Company shall only be responsible for its allocable share of the office and administrative expenses of the Advisor incurred in providing its duties pursuant to this Amended
Agreement allocated as reasonably determined by the Advisor in its discretion pursuant to a methodology reviewed by the Audit Committee on a quarterly basis.
5.2
Advisory Agreement Matters
.
(a) Except
as provided below, the Advisor shall be responsible for all wages, salaries, cash bonus payments and benefits related to all employees of the Advisor providing
services to the Company (including any officers of the Company who are also officers of the Advisor), provided that the Company shall reimburse the Advisor or be directly responsible for:
(i) any expenses for wages, salaries, cash bonus payments and benefits paid by the Advisor to employees providing services related to the Internal Audit Services described in the next sentence,
(ii) expenses related to the equity compensation awarded by the Company to employees, officers, Affiliates and representatives of the Advisor pursuant to
Section 6.3
below, and (iii) all
reasonable international office expenses, overhead, personnel costs, travel and other costs directly
related to Advisor's non-executive personnel that are located internationally or that oversee the operations of international assets or related to Advisor's personnel that source, investigate or
provide diligence services in connection with possible acquisitions or investments internationally ("
International Expenses
"). The Company shall
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reimburse
the Advisor, on a monthly basis, the Company's pro-rata portion (as reasonably agreed to between the Advisor and a majority of the Company's Independent Directors or the Audit Committee,
chairman of the Audit Committee or lead director) of all expenses related to (x) employment of the Advisor's internal audit managers and other employees of the Advisor who are actively engaged
in providing Internal Audit Services to the Company, (y) the reasonable travel and other out-of-pocket costs of the Advisor relating to the activities of the Advisor's internal audit employees
and the reasonable third party expenses which the Advisor incurs, in each case, in connection with providing Internal Audit Services, and (z) the International Expenses. These expenses
contemplated by this
Section 5.2(a)
shall include, but are not limited to, salary, wages, payroll taxes and the cost of employee benefit plans.
(b) The
Company also shall pay or reimburse the Advisor for any and all expenses incurred by the Advisor, its board of directors or any committee thereof related to:
(i) the
preparation, negotiation and execution of any further amendment of this Amended Agreement initiated or contemplated by the Company or any other third party
including with respect to a potential transaction that could result in a Company Change of Control, for any reason, including but not limited to any third party's interest in proposing, pursuing,
evaluating, negotiating or completing a potential transaction that could result in a Company Change of Control, whether or not any amendment to this Amended Agreement is ultimately completed or
abandoned and without regard to the status of the preparation and negotiation of any amendment and including but not limited to any discussion and analysis of the terms and provisions of this Amended
Agreement or the process whereby services are performed hereunder that occurs in connection with the foregoing; and
(ii) the
costs and expenses, including but not limited to indemnification for Expenses pursuant
Section 8.3(a)
,
related to discussion and analysis of, responding to or defending against any Proceeding related to this Amended Agreement or any amendment thereto, including actual or contemplated Proceedings
brought by or against third parties by the Advisor, the Company or any other Indemnified Party but excluding any Proceeding brought by a stockholder of the Advisor against the Advisor.
(c) Expenses
and costs reimbursable under this
Section 5.2
shall include the fees and disbursements of legal counsel
(including counsel to the Advisor's board of directors or any committee thereof) and other consultants, advisors or other professionals retained in connection with the matters described in
Section 5.2(a)
and any fees and expense reimbursements payable to members of the Advisor's board of directors for service on any committee of
thereof established in connection with the matters described in
Section 5.2(a)
but excluding, for these purposes, any costs incurred by the
Advisor, its board of
directors or any committee thereof prior to the date of this Amended Agreement to evaluate or negotiate this Amended Agreement.
5.3
Employee Costs.
(a) Except
as otherwise set forth herein, or agreed by the Parties, the Company shall have no obligation to reimburse the Advisor for any wages, salaries, payroll taxes,
cash bonus payments, employee benefit plan costs and other benefits ("
Employee Costs
") incurred by the Advisor with respect to employees of the Advisor
providing services related to the day-to-day operation of the Company.
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5.4
Reimbursement Procedures.
(a) The
Company shall pay the costs and expenses that are reimbursable to the Advisor pursuant this Amended Agreement on a monthly basis in advance on the first business day
of each month in an amount equal to the "Budgeted Monthly Reimbursements" for the applicable month, subject to reconciliation as provided in
Section 5.4(b)
hereof if the "Actual Monthly
Reimbursements" for the applicable month differ from the Budgeted Monthly Reimbursements. The
"
Budgeted Monthly Reimbursements
" for each month shall be equal to the amount estimated to be payable on account of the costs and expenses that are
reimbursable to the Advisor pursuant this
Section 5
for each month included in each annual expense budget prepared by the Advisor and approved by
the Board of Directors (the "
Annual Expense Budget
");
provided, that,
if the Parties do not agree on an
Annual Expense Budget for the applicable fiscal year, the Budgeted Monthly Reimbursements for each month of the existing fiscal year shall be equal to 110% of the Actual Monthly Reimbursements for the
same month in the prior fiscal year.
(b) No
later than forty-five (45) days following the end of the applicable fiscal quarter, the Advisor shall calculate (and provide the Company with a copy of the
calculation) the costs and expenses that were
actually reimbursable to the Advisor pursuant this
Section 5
for each month (each amount, the "
Actual Monthly
Reimbursements
") in the fiscal quarter just ended. The Company shall have ten (10) business days to review and comment upon the calculation provided by the Advisor. If
the aggregate Actual Monthly Reimbursements payable as calculated by the Advisor for the fiscal quarter just ended exceeds the aggregate Budgeted Monthly Reimbursements paid by the Company pursuant to
Section 5.4(a)
for the fiscal quarter (the difference being referred to as a "
Reimbursement
Underpayment
"), then the Company shall pay the Advisor the full amount of the Reimbursement Underpayment no later than 55 days following the end of the applicable fiscal
quarter. If the aggregate Budgeted Monthly Reimbursements paid by the Company pursuant to
Section 5.4(a)
for the fiscal quarter just ended is
greater than the aggregate Actual Monthly Reimbursements payable as calculated by the Advisor for the fiscal quarter (the difference being referred to as a "
Reimbursement
Overpayment
"), then the Advisor shall repay the Reimbursement Overpayment to the Company no later than 55 days following the end of the applicable fiscal quarter.
6.
COMPENSATION. For services rendered by the Advisor, the Company shall pay the Advisor the compensation set
forth in this
Section 6
.
6.1
Base Fee
.
(a) The
Company shall, on a monthly basis, pay a fee (the "
Base Fee
") in an amount equal to 1/12th of 0.70% of the sum
of (i) the Total Market Capitalization for the prior month, and (ii) the Key Money Gross Asset Value, if any, on the last day of the prior month during which this Amended Agreement was
in effect;
provided, however
in no event shall the Base Fee for any month be less than the Minimum Base Fee.
(b) The
Company shall pay the Base Fee or the Minimum Base Fee on the fifth business day of each month based on the calculation in
Section 6.1(a)
above.
6.2
Incentive Fee
.
(a) In
each year that: (i) Company Common Stock is listed for trading on a national securities exchange for each day of the applicable year; and (ii) the
Company's Total Shareholder Return exceeds the simple average Total Shareholder Return for the Peer Group (the "
Incentive Fee Threshold
") for the
applicable year, the Company shall pay to the Advisor the Incentive Fee.
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(b) "
Incentive Fee
" means an amount calculated as:
(i) the
amount by which the Company's annual Total Shareholder Return exceeds the Incentive Fee Threshold expressed as a percentage but capped at 25% (the
"
Excess Return
"), multiplied by
(ii) 0.05,
multiplied by
(iii) the
product of (A) the number of shares of Company Common Stock on a fully-diluted basis (assuming, for these purposes, all Common Units and long term incentive
partnership units in the Operating Partnership to the extent these units have achieved economic parity with Common Units have been converted into shares of Company Common Stock) multiplied by
(B) the Market Price of Company Common Stock at December 31 of the applicable calendar year (or last day of the stub period, if applicable).
(c) With
respect to any year that the Company Common Stock is not listed for trading on a national securities exchange for each day of the applicable year, by
January 31 of the next year, the Company shall pay to the Advisor an amount equal to:
(i) the
Incentive Factor, multiplied by
(ii) the
Gross Asset Value of all of the Company's assets on the last day of the year.
(d) If
this Amended Agreement is terminated on a day other than the last trading day of a calendar year, then the Company's Total Shareholder Return, the Incentive Fee
Threshold and the Total Shareholder Return for each Peer Group Member will be calculated using the closing trading price of Company Common Stock and each Peer Group Member's common stock on the last
trading day immediately preceding the date of termination of this Amended Agreement, and the Incentive Fee, if any, shall be reduced proportionately based on number of days in which this Amended
Agreement is in effect for the applicable calendar year.
(e) Except
as otherwise provided herein, the Incentive Fee, if any, is not due and payable unless the FCCR Condition set forth in
Section 6.2(g)
is satisfied. Except as otherwise provided herein, any
Incentive Fee that is earned by the Advisor shall be due and payable in
three (3) equal annual installments with the first installment payable on January 15 following the applicable year for which the Incentive Fee is earned and on January 15 of the
next two successive years. Notwithstanding the foregoing, upon any termination of this Amended Agreement for any reason, any unpaid Incentive Fee (including any Incentive Fee installment for the stub
period ending on the termination date) shall
become fully earned and immediately due and payable without regard to the FCCR Condition defined below, and shall be included in Net Earnings for purposes of determining any Termination Fee, if
applicable, relating to such termination.
(f) Except
when the Incentive Fee is due on the date of termination of this Amended Agreement, up to 50% of each installment of the Incentive Fee may be paid, at the option
of the Company, in shares of Company Common Stock, with the balance payable in cash and the number of shares of Company Common Stock to be issued being equal to the portion of the Incentive Fee being
paid in shares of Company Common Stock divided by the Market Price of the Company Common Stock on the last trading day of the prior fiscal year or the stub period prior to the payment of the
applicable installment of the Incentive Fee;
provided, that
the entire Incentive Fee must be paid by the Company entirely in cash if, at the time for
payment of the Incentive Fee:
(i) the
Advisor (or its Affiliates) owns shares of Company Common Stock or Common Units in an amount (determined with reference to the Market Price of the
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Company
Common Stock on the last trading day of the year or stub period) greater in value than or equal to three times the Base Fee actually paid for the preceding four quarters;
(ii) payment
in shares of Company Common Stock would cause, based upon advice from counsel to the Advisor, the Advisor to be subject to the provisions of the Investment
Company Act of 1940, as amended ("
Investment Company Act
");
(iii) the
Company Common Stock is not listed on a national securities exchange (or it is reasonably foreseeable that the Company Common Stock will cease to be a listed on a
national securities exchange during the next twelve (12) months); or
(iv) payment
in shares of Company Common Stock could have or cause, based upon advice from counsel to the Advisor, an adverse effect on the Company's ability to maintain its
status as a REIT or Remington's ability to maintain its status as an "eligible independent contractor" as defined in Section 856(d)(9) of the Code or would otherwise not be legally permissible
for any reason.
(g) Upon
determining the Incentive Fee, except in the case of any termination of this Amended Agreement in which case the Incentive Fee for the stub period and all unpaid
installments of an Incentive Fee shall be deemed earned and fully due and payable, each one-third installment of the Incentive Fee shall not be deemed earned by Advisor or otherwise payable by the
Company unless the Company, as of December 31 of the year immediately preceding the year of the due date for the payment of the Incentive Fee installment, has a FCCR of 0.20x or greater (the
"
FCCR Condition
"). For purposes hereof, "
FCCR
" shall mean the average ratio of the Company EBITDA to the
Company Fixed Charges for the previous four consecutive fiscal quarters.
6.3
Equity Compensation.
To incentivize employees, officers, consultants, non-employee directors, Affiliates or
representatives of the Advisor to achieve goals and business objectives of the Company, as established by the Board of Directors, in addition to the Base Fee and the Incentive Fee, the Board of
Directors will have the authority to and shall make recommendations of annual equity awards to the Advisor or directly to employees, officers, consultants, non-employee directors, Affiliates or
representatives of the Advisor, based on the achievement by the Company of certain financial or other objectives established by the Board of Directors or otherwise as the Board of Directors sees fit.
The Company, at its option, may choose to issue such compensation in the form of equity awards in the Company or the Operating Partnership, unless and to the extent that receipt of such equity awards
would adversely affect the Company's status as a REIT in which case, the equity awards shall be limited to equity awards in the Operating Partnership. For a period of one year from the date of
issuance, any such equity awards in the Operating Partnership shall not be transferable, except by operation of law, without the written consent of the Company in its capacity as the general partner
which consent may be withheld in the sole and absolute discretion of the general partner;
provided
,
however
, the Advisor may assign, without the consent of
the general partner, such equity awards to employees, officers, consultants, non-employees,
directors, Affiliates or representatives of Advisor provided the one-year restriction on transfer shall remain applicable to such assignee. In addition, except as expressly provided above, any
transfer of such equity awards at any time must comply with the transfer restrictions of the Operating Partnership's partnership agreement or the Company's charter and bylaws, as applicable.
6.4 [RESERVED].
6.5
Fee Waiver.
The Advisor, or its Subsidiaries or Affiliates, may, at its or their option and in its or their
sole discretion, choose to waive any fee or reimbursement payable or owing by the
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Company
to the Advisor under this Amended Agreement;
provided, however
that the Advisor shall be able to offset any fees that it has waived against any
reimbursement obligation that may at any time be owed by the Advisor or alleged to be owed to the Company. Notwithstanding anything to the contrary herein, any waiver of fees or reimbursements for one
period shall have no impact on the calculation of the fees or reimbursements payable in any future period that may be based on the past period during which the waiver occurred.
6.6
Fee Renegotiation.
If the Advisor has given notice of its election to extend this Amended Agreement in
accordance with
Section 12.2
, either Party may then give written notice to the other Party at least one hundred eighty (180) days prior to
the expiration of the then current term to renegotiate the amount of Base Fee or Incentive Fee payable by the Company. Following receipt of a renegotiation notice, each Party shall, for a period of up
to sixty (60) days, use its commercially reasonable efforts to negotiate in good faith a revised compensation amount or amounts. If the Parties are unable to agree on a revised Base Fee or
Incentive Fee, then the revised compensation amount shall be determined by an
"Arbitration Panel"
comprised of three members all of whom have sufficient
knowledge and experience of external asset management entities, the national hospitality lodging industry generally and industry standards and market trends for similar advisory agreements in the
United States. The Advisor shall have the right to select one member of the panel (the
"Advisor Panel Member"
). The Company shall have the right to
select one member of the panel (the "
Company Panel Member"
). The third member of the panel shall be selected by the mutual agreement of the Company
Panel Member and the Advisor Panel Member; provided that in no event may the Arbitration Panel reduce the multiplier for the Base Fee below 0.65% or increase the multiplier for the Base Fee above
0.75% during the term of this Amended Agreement, including all extensions. Further, in no event shall the Arbitration Panel reduce the Incentive Fee multiplier below 0.04 or increase the Incentive Fee
multiplier above 0.06 during the term of this Amended Agreement. Each Party shall submit, in writing, a statement summarizing its fee proposal and the underlying rationale therefor with ten
(10) business days after selection of the Arbitration Panel is complete. If the Arbitration Panel requests an in person meeting or teleconference in addition to written statements, the Parties
shall use commercially reasonable efforts to attend, and the Parties shall promptly comply with all other reasonable requests by the Arbitrator, including requests for information, books, records and
similar items. The Arbitration Panel shall make a final determination, and notify the parties in writing as soon as practicable but in no event later than thirty (30) days after the panel's
decision no later than thirty (30) days after the Arbitration Panel is selected. The decision of the Arbitration Panel shall be final, binding and non-appealable on the Parties thereto.
6.7
Expense Reporting.
The Advisor shall disclose, in each Quarterly Report on Form 10-Q and each Annual
Report on Form 10-K that it files under the Exchange Act, the total incremental expenses incurred by the Advisor (including all reimbursable expenses) as reasonably determined by the Advisor
for the period covered by the report in connection with providing services to the Company under this Amended Agreement, which determination shall be conclusive and binding on the Parties. No later
than 30 days after the end of each fiscal quarter or 45 days in the case of the fourth quarter, the Advisor shall provide the Audit Committee with a report, substantially in the form
agreed upon by the Parties
in connection with this Amended Agreement, of an Accounting Firm that the Advisor's determination of the total incremental expenses for the applicable period is reasonable. So long as the Accounting
Firm's report is delivered to the Audit Committee in accordance with the form agreed upon by the Parties, the total incremental expenses determined by the Advisor for the applicable period covered by
the Accounting Firm's report shall be binding on both Parties and not subject to revision or challenge. The Advisor acknowledges and agrees that, to the extent it is no longer required to file reports
under the Exchange Act, the Advisor will separately report the amount of total incremental expenses as reasonably determined by the Advisor for the applicable period to the Audit Committee.
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7.
LIMITATION ON ACTIVITIES. Except for actions taken at the direction of the Board or in good faith, subject to
the Company complying with
Section 9.1(c)
and notwithstanding anything in this Amended Agreement to the contrary, the Advisor shall not take any
action which would (a) adversely affect the then effective tax status of the Company as a REIT, (b) subject the Company to regulation under the Investment Company Act,
(c) knowingly and intentionally cause the Company to violate any law, rule or regulation of any governmental body or agency having jurisdiction over the Company, (d) cause the Company to
violate any of the rules or regulations of any exchange on which the Company's securities are listed, the result of which is likely to cause the Company to be delisted or (e) cause the Company
to violate the Company's charter, the Company's bylaws or any resolutions of the Board of Directors, all as in effect from time to time. The Advisor acknowledges that the Company maintains codes and
policies intended to help maintain compliance with applicable laws and regulations and agrees to require its employees who provide services to the Company to comply with all applicable codes and
policies.
8.
LIMITATION OF LIABILITY AND INDEMNIFICATION.
8.1
Limitation on Liability.
The Advisor shall have no responsibility other than to render the services and take
the actions described herein in good faith and with the exercise of due care and shall not be responsible for any action of the Board of Directors in following or declining to follow any advice or
recommendation of the Advisor. The Advisor (including its officers, directors, managers, employees and members) will not be liable for any act or omission by the Advisor (or its officers, directors,
managers, employees and members) performed in accordance with and pursuant to this Amended Agreement, except by reason of acts or omissions constituting gross negligence, bad faith, willful misconduct
or reckless disregard of duties under this Amended Agreement.
8.2
Insurance Coverage of the Advisor.
The Advisor shall maintain errors and omissions insurance coverage and
other insurance coverage in amounts which are customarily carried by asset managers performing functions similar to those of the Advisor under this Amended Agreement. No fidelity bond shall be
required.
8.3
Indemnification
.
(a) The
Company shall reimburse, indemnify and hold harmless the Advisor and its Affiliates, and their respective partners, directors, officers, managers, members, agents,
employees and each other Person, if any, controlling the Advisor (each, an "
Advisor Indemnified Party
"), to the fullest and broadest extent permitted
under the Company's charter and bylaws and the corporate law of the jurisdiction in which the Company is incorporated including all mandatory provisions that may not be waived from and against any and
all losses, claims, damages, liabilities, costs and expenses of any nature whatsoever, including, without limitation, attorney's fees, court costs, and similar fees and expenses
("
Expenses
") with respect to or arising out of this Amended Agreement or the performance by the Advisor of its responsibilities and obligations
hereunder (including any pending or threatened litigation except for any Proceeding filed by a stockholder of the Advisor against the Advisor), from any acts or omission of the Advisor (including
ordinary negligence and any action taken by the Advisor following a directive by the Board of Directors in its capacity as such and Expenses incurred by the Advisor under
Section 5
), except with
respect to Expenses with respect to or arising out of the Advisor Indemnified Party's gross negligence, bad faith or
willful misconduct, or reckless disregard of its duties under this Amended Agreement.
(b) The
Advisor shall reimburse, indemnify and hold harmless the Company, and its partners, directors, officers, managers, members, agents, employees and each other Person,
if any, controlling the Company (each, a "
Company Indemnified Party;
" an Advisor Indemnified Party and a Company Indemnified Party are each sometimes
hereinafter referred to as an
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"
Indemnified Party
") from and against any and all Expenses in respect of or arising from (i) any acts or omissions of the Advisor constituting
bad faith, willful misconduct, gross negligence or reckless disregard of duties of the Advisor under this Amended Agreement or (ii) any claims by employees of the Advisor relating to the terms
and conditions of their employment by the Advisor.
(c) The
Company shall reimburse, indemnify and hold each Advisor Indemnified Party harmless from and against any Expenses, joint or several, to which such Advisor
Indemnified Party may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such Expenses (or Proceedings, whether commenced or threatened, in respect thereof) are arising
out of or based upon any untrue statement or alleged untrue statement of any material fact contained in any filing with the SEC, any document related to a private offering of securities or any
statement of any kind made by the Company and arising out of or 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 (in the case of a registration statement or prospectus related to an offering of securities registered under the
Securities Act, in light of the circumstances under which they were made) not misleading, and will reimburse each such Advisor Indemnified Party for any legal or other expenses reasonably incurred or
other Expenses by them in connection with investigating, defending or initiating any such Proceeding. The indemnity hereunder shall remain in full force and effect regardless of any investigation made
by or on behalf of any Advisor Indemnified Party or any director, officer or controlling person of any Advisor Indemnified Party, and shall survive the termination of this Amended Agreement pursuant
to
Section 12
. If the indemnification provided for in this
Section 8.3(c)
is held by a
court or government agency of competent jurisdiction to be unavailable to an Indemnified Party or is insufficient to hold the Indemnified Party harmless in respect of any Expenses, then each
Indemnified Party shall contribute to the amount paid or payable by the Indemnified Party as between the Advisor, on the one hand, and the Company, on the other hand, in such proportion as is
appropriate to reflect the relative fault of Advisor, on the one hand, and of the Company, on the other, as well as any other relevant equitable considerations. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who is not guilty of fraudulent misrepresentation.
(d) Promptly
after receipt by an Indemnified Party of notice of the commencement (or threat of commencement) of any Proceeding, the Indemnified Party shall, if a claim in
respect thereof is to be made pursuant hereto, notify the indemnifying party in writing of the commencement thereof; but the omission to so notify the indemnifying party shall not relieve it from any
liability that it may have to any Indemnified Party pursuant to this
Section 8.3
. In case any such Proceeding shall be brought against an
Indemnified Party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, to
assume the defense thereof, with counsel satisfactory to such Indemnified Party and, after notice from the indemnifying party to such Indemnified Party of the indemnifying party's election to assume
the defense thereof, the indemnifying party shall not be liable to such Indemnified Party under
Section 8.3
hereof, as applicable, for any legal
expenses of other counsel retained by the Indemnified Party or any of the expenses related thereto, in each case subsequently incurred by such Indemnified Party, unless (i) the indemnifying
party and the Indemnified Party shall have mutually agreed to the retention of such counsel, or (ii) the named parties to any such Proceeding (including any impleaded parties) include both the
indemnifying party and Indemnified Party and representation of both parties by the same counsel would be inappropriate in the reasonable opinion of the Indemnified Party, due to actual or potential
differing interests between them.
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The
obligations of the indemnifying party under this
Section 8.3
shall be in addition to any liability which the indemnifying party otherwise may
have under applicable law or otherwise.
(e) The
Company shall advance funds to an Advisor Indemnified Party upon request for any expenses and other costs incurred as a result of any pending or threatened
Proceeding or the initiation of a Proceeding by any Advisor Indemnified Party if (i) such Proceeding relates to or arises out of, or is alleged to relate to or arise out of or has been caused
or alleged to have been caused in whole or in part by, any action or inaction on the part of the Advisor Indemnified Party in the performance of its duties or provision of its services hereunder; and
(ii) the Advisor Indemnified Party undertakes to repay any funds advanced pursuant to this
Section 8.3(e)
in cases in which such Advisor
Indemnified Party would not be entitled to indemnification under this
Section 8.3
. If advances are required under this
Section 8.3(e)
, the
Advisor Indemnified Party shall furnish the Company with an undertaking as set forth in clause (ii) of the preceding
sentence and shall thereafter have the right to bill the Company for, or otherwise require the Company to pay, at any time and from time to time after such Advisor Indemnified Party shall become
obligated to make payment therefor, any and all reasonable amounts for which such Advisor Indemnified Party is entitled to indemnification under
Section 8.3
, and the Company shall pay the same
within thirty (30) days after request for payment. In the event that a determination is
made by a court of competent jurisdiction or an arbitrator that the Company is not so obligated in respect of any amount paid by it to a particular Advisor Indemnified Party, such Advisor Indemnified
Party will refund such amount within sixty (60) days of such determination, and in the event that a determination by a court of competent jurisdiction or an arbitrator is made that the Company
is so obligated in respect to any amount not paid by the Company to a particular Advisor Indemnified Party, the Company will pay such amount to such Advisor Indemnified Party within thirty
(30) days of such final determination, in either case together with interest at the current prime rate plus 2% from the date paid until repaid or the date it was obligated to be paid until the
date actually paid.
9.
RELATIONSHIP OF ADVISOR AND COMPANY; CAPITALIZATION.
9.1
Contractual Relationship
.
(a) The
relationship between the Company and the Advisor under this Amended Agreement shall be contractual in nature. The Company and the Advisor are not partners or joint
venturers with each other, and nothing in this Amended Agreement shall be construed to make the Company and the Advisor partners or joint venturers. Nothing herein contained shall prevent the Advisor
from engaging in other activities, including, without limitation, the rendering of advice to other Persons (including other REITs) and to the management of Ashford Hospitality Trust, Inc.
("
Ashford Trust
"), or other programs advised, sponsored or organized by the Advisor, Ashford Trust or their Affiliates. The Company shall not revise its
Investment Guidelines to be directly competitive with all or any portion of Ashford Trust's Investment Guidelines in effect as of November 19, 2013 or with all or any portion of the initial
Investment Guidelines of any Spin-Off Company. The Company acknowledges that the Ashford Trust's Investment Guidelines as of November 19, 2013 and as of the date hereof include all segments of
the hospitality industry (including, without limitation, direct, joint venture and debt investments in hotels, condo-hotels, time-shares and other hospitality related assets), with revenue per
available room ("
RevPAR
") criteria less than two times the then-current U.S. average RevPAR. The Company further acknowledges that any subsequent change
to Ashford Trust's Investment Guidelines, including in connection with any future spin-off, carve-out, split-off or other consummation of a transfer of a division or subset of assets for the purpose
of forming a joint venture, a newly created private platform or a new publicly-traded company will not have any impact on or change Ashford Trust's Investment
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Guidelines
as of November 19, 2013 and as of the date hereof for purposes of enforcing this
Section 9
. Except as described in this
Section 9.1
, this
Amended Agreement shall not limit or restrict the right of any manager, director, officer, employee or equityholder of the
Advisor or its Affiliates to engage in any other business or to render services of any kind to any other Person. The Advisor may, with respect to any investment or activity in which the Company or its
Affiliates is a participant, also render advice and service to each and every other participant therein associated with such investments or activities.
(b) Subject
to
Section 9.3
, to the extent the Advisor deems an investment opportunity suitable for recommendation, the
Advisor must present the Company with any investment opportunity that satisfies the Company's Initial Investment Guidelines to the Company. The Board of Directors will then have ten
(10) business days to accept such opportunity, and, thereafter, the Advisor may present the opportunity to Ashford Trust or any other Person advised by the Advisor. Except as set forth in the
preceding sentence, the Company recognizes that it is not entitled to preferential treatment and is only entitled to equitable treatment in receiving information, recommendations and other services.
The Company shall have the benefit of the Advisor's commercially reasonable best efforts and judgment and the Advisor shall not undertake any activities that, in its good faith judgment, will
materially and adversely affect the performance of its obligations under this Amended Agreement.
(c) The
Advisor's obligations hereunder shall, at all times, be subject to the Company funding sufficient working capital, in amounts deemed necessary by the Advisor to
operate the Company and oversee its assets on a day-to-day basis and otherwise perform its duties hereunder.
9.2
Joint Efforts and Mutual Support.
The Company acknowledges that the Advisor advises Ashford Trust and may
enter into an advisory relationship with additional entities in the future. The Parties hereto agree and acknowledge that each of the Company, the Advisor and Ashford Trust, as well as other Persons
that the Advisor may advise in the future, may benefit from the strategic relationships between such Persons and accordingly intend to cooperate to achieve results, pursue transactions jointly or
establish other strategic relationships that are in the best interests of each such entities' respective shareholders. From time to time, as may be determined by the Independent Directors or the
Independent Directors of the Advisor, Ashford Trust and any other Persons that the Advisor may advise in the future, each such entity may provide financial accommodations, guaranties, back-stop
guaranties, and other forms of financial assistance to the other entities on terms that the Independent Directors of the respect boards of directors determine to be fair and reasonable. Further to the
forgoing, as to potential joint efforts and mutual support, the Parties hereto have established a process whereby the Advisor may assist the Company with its asset acquisitions through the provision
of Key Money Investments as provided in
Section 16
. Similarly, the Advisor's growth plans include accessing capital through channels beyond those
regularly accessed as of the date hereof, including institutional
and other private capital and retail capital (generally through independent commissioned or fee based financial advisory firms). In such regard, the Company shall give due consideration to proposals
by the Advisor to co-invest in assets with capital sourced by the Advisor from such channels or to support the creation of platforms that facilitate access to such capital sources.
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9.3
Conflicts of Interest.
(a) To
minimize conflicts between Ashford Trust and the Company, both of which are advised by the Advisor, Ashford Trust and the Company have identified a principal
investment focus and have set parameters for real estate investments, including parameters primarily relating to RevPAR, segments, markets and other factors or financial metrics. The asset type,
together with the relevant parameters for investments are referred to as such Person's "
Investment Guidelines
," and the "
Initial
Investment Guidelines
" of the Company are the Investment Guidelines of the Company as set forth below. The Company may modify or supplement, after consultation with Advisor,
the Company's Investment Guidelines upon written notice to the Advisor from time to time (subject, however, to the prohibition in
Section 9.1(a)
restricting the Company from changing the Initial Investment Guidelines to be directly competitive with all or any portion of Ashford Trust's Investment Guidelines as of November 19, 2013 or
the initial Investment Guidelines of any Spin-Off Company). The Company's Investment Guidelines as of the date hereof are hotel real estate assets primarily consisting of equity or ownership
interests, as well as debt investments when such debt is acquired, or secured with appropriate means, with the intent of obtaining an equity or ownership interest, in:
(i) full
service and urban select service hotels with trailing 12-month average RevPAR or anticipated 12-month average RevPAR of at least 2.0 times the then-current U.S.
national average RevPAR for all hotels as determined with reference to the most current Smith Travel Research reports, generally in the 20 most populous metropolitan statistical areas, as estimated by
the United States Census Bureau and delineated by the U.S. Office of Management and Budget;
(ii) luxury
hotels meeting the RevPAR criteria set forth in clause (i) above and situated in markets that may be generally recognized as resort markets; and
(iii) international
hospitality assets predominantly focused in areas that are general destinations or in close proximity to major transportation hubs or business centers,
such that the area serves as a significant entry or departure point to a foreign country or region of a foreign country for business or leisure travelers and meet, or are projected to meet, the RevPAR
criteria set forth in clause (i) for that asset as compared to the average RevPAR for the foreign country in which the asset is located.
In
determining whether an asset satisfies the Company's Investment Guidelines, the Advisor shall make a good faith determination of projected RevPAR, taking into account historical
RevPAR as well as such additional considerations as conversions or reposition of assets, capital plans, brand changes and other factors that may reasonably be forecasted to raise RevPAR after
stabilization of such initiative.
(b) If
the Company materially modifies its Initial Investment Guidelines set forth in
Section 9.3(a)
above without the
written consent of the Advisor, the Advisor will not have an obligation to present investment opportunities to the Company as set forth in
Section 9.1(b)
above at any time thereafter, regardless of
any subsequent modifications by the Company to its Investment Guidelines. The Advisor
shall allocate investment opportunities to Persons (including, without limitation, Ashford Trust, the Company, any Spin-Off Companies or other Persons) which Advisor advises consistent with the terms
of this Amended Agreement, taking into account such factors as the Advisor deems relevant, in its discretion, subject to any then existing or future obligations that the Advisor may have to other
Persons. The Company acknowledges that if it materially modifies its Initial Investment Guidelines, the Company will be entitled only to the Advisor's reasonable best judgment in allocating investment
opportunities but will not be entitled to the rights set forth in
Section 9.1(b)
.
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(c) If
the Advisor sources or otherwise has access to a portfolio of assets comprised of assets that satisfy the Company's Investment Guidelines and Ashford Trust's
Investment Guidelines as in effect as of the date hereof or, as applicable, one or more other Persons advised by the Advisor, the Advisor will endeavor in its sole judgment made in good faith to
present the opportunity to the Company and, if applicable, such other Person(s) (including Ashford Trust) to the extent the Advisor determines that
such portfolio can be reasonably divided by asset type and acquired on the basis of such asset types in satisfaction of each Person's Investment Guidelines. If the Company and, if applicable, such
other Person(s) (including Ashford Trust) approve its portion of such acquisition, the Company and, if applicable, such other Person(s) (including Ashford Trust) will cooperate in good faith in
completing the acquisition of the portfolio. If the portfolio cannot be reasonably separated by asset type, the Advisor shall allocate portfolio investment opportunities, in its sole and absolute
discretion, between the Company and, if applicable, other Persons (including Ashford Trust) advised by the Advisor, in an equitable manner consistent with the Company's Investment Guidelines and, if
applicable, Investment Guidelines of other Persons (including Ashford Trust) advised by the Advisor. In making this determination, the Advisor will consider, in its sole discretion, the Investment
Guidelines and investment strategy of each entity with respect to the acquisition of properties, portfolio concentrations, tax consequences, regulatory restrictions, liquidity requirements, leverage
and other factors deemed relevant by the Advisor. Notwithstanding the foregoing, if the Company materially modifies its Initial Investment Guidelines without the written consent of the Advisor, the
Advisor will not have an obligation to present portfolio acquisition opportunities to the Company as set forth in this
Section 9.3(c)
at any time
thereafter, regardless of any subsequent modifications by the Company to its Investment Guidelines. Instead, the Advisor shall use its judgment in determining whether to allocate any portion of a
portfolio investment to the Company, taking into account such factors as the Advisor deems relevant, in its sole and absolute discretion, subject to any obligations that the Advisor may have to other
Persons;
provided, that
the Advisor will have no obligation to make any such portfolio investment opportunity available to the Company.
9.4
Exclusive Provider of Products or Services.
(a) If
at any time the Company desires to engage a third party to perform services or deliver products (other than the services contemplated by this Amended Agreement, these
services, the "
Additional Services
") and provided that the Company has the right to control the decision on the award of the applicable contract, the
Advisor directly or through Affiliates including Majority or Minority Subsidiaries, shall have the exclusive right to provide the Additional Services at Market Rates. Any proposal of the Advisor to
provide Additional Services must be approved by a vote of a majority of the Independent Directors. The Independent Directors shall vote upon the proposal made by the Advisor within ten
(10) business days of receipt from the Advisor. The Advisor shall have no authority or obligation to provide the Additional Services unless and until approved by the requisite vote of the
Independent Directors.
(b) If
a majority of the Independent Directors of the Company affirmatively votes that the proposed pricing of the Advisor is not at a Market Rate, then the Company and the
Advisor shall engage a recognized consultant acceptable to each of the Company and the Advisor to determine the Market Rates for the Additional Services;
provided,
however,
if the Company and the Advisor cannot agree on a mutually acceptable consultant, each of the Company and the Advisor shall name a recognized consultant and those two
shall select the consultant to be used for the purposes of this
Section 9.4
. If the consultant's opinion of Market Rates reflects Market Rates
lower than the pricing proposed by the Advisor, the
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Advisor
will pay the expenses of the consultant and shall have the option to provide the Additional Services at Market Rates as determined by the consultant. If the consultant determines that the
proposed pricing by the Advisor is at or below Market Rates, then the Company shall pay the expenses of the consultant and shall engage Advisor at the Market Rate as determined by the consultant. If
the Company rejects Additional Services proposed by the Advisor and later determines to utilize the same Additional Services, the Advisor, directly or through Affiliates including Majority or Minority
Subsidiaries, shall have the exclusive right to provide those Additional Services, subject to the process to confirm Market Rates in this
Section 9.4(b)
.
(c) The
Company acknowledges that the Advisor (and its Affiliates) may receive allowances, rebates or other payments in exchange for the purchase or lease of goods,
services, systems or programs involving any services or products provided or sold to the Company, its Affiliates and any hotels owned by the Company. In each case, the Advisor shall provide the
Company's Independent Directors with information regarding the nature and amount of the allowance, rebate or other payment and the Advisor shall be permitted to receive the allowance, rebate or other
payment subject to the approval of the Company's Independent Directors, which approval shall not be unreasonably withheld.
9.5
The Ashford Name.
The Advisor and its Affiliates have a proprietary interest in the trademarked "Ashford"
name and logo. The Advisor hereby grants to the Company a non-transferable, non-assignable, non-exclusive royalty-free right and license to use the "Ashford" name and logo during the term of this
Amended Agreement. Accordingly, and in recognition of this right, if at any time the Company ceases to retain the Advisor or one of its Affiliates to perform advisory services for the Company, the
Company will, within sixty (60) days after receipt of written request from the Advisor, cease to conduct business under or use the name "Ashford" or any derivative thereof and the Company shall
change its name and the names of any of its Subsidiaries to a name that does not contain the name \"Ashford" or any other word or words that might, in the reasonable discretion of the Advisor, be
susceptible of indication of some form of relationship between the Company and the Advisor or any its Affiliates. At such time, the Company will also make any changes to any trademarks, service marks,
logos, or other marks necessary to remove any references to the word "Ashford." Consistent with the foregoing, it is specifically recognized that the Advisor or one or more of its Affiliates has in
the past and may in the future organize, sponsor or otherwise permit to exist other investment vehicles (including vehicles for investment in real estate) and financial and service organizations
having "Ashford" as a part of their name and using the "Ashford" logo, all without the need for any consent (and without the right to object thereto) by the Company.
10.
BOOKS AND RECORDS. All books and records compiled by the Advisor with respect to the Company's business and
assets in the course of discharging its responsibilities under this Amended Agreement shall be the property of the Company and shall be delivered by the Advisor to the Company immediately upon any
termination of this Amended Agreement regardless of the grounds for
such termination (including, but not limited to, a breach by the Company of this Amended Agreement);
provided, however,
that the Advisor shall have
reasonable access to such books and records to the extent reasonably necessary in connection with the conduct of its services hereunder and may, in any event, retain a copy of the books and records.
During the term of this Amended Agreement, the books and records of the Company maintained by the Advisor shall be accessible for inspection by any designated representative of the Company upon
reasonable advance notice and during normal business hours.
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11.
CONFIDENTIALITY.
11.1
Confidential Information; Duty to Keep Confidential.
Each of the Advisor and the Company shall keep
confidential any and all non-public information about the other Party ("
Confidential Information
"), written or oral, obtained by such Party in
connection with this Amended Agreement except that such Confidential Information may be shared (a) with Affiliates, officers, directors, employees, agents and other parties who need such
Confidential Information for either Party to be able to perform its duties or obligations hereunder, (b) with appraisers, lenders, bankers and other parties as necessary in the ordinary course
of either Party's business, (c) in connection with any governmental or regulatory filings of either Party, filings with the New York Stock Exchange or other applicable securities exchanges or
markets, or disclosure or presentations to Company investors (subject to compliance with Regulation FD), (d) with governmental officials having jurisdiction over the Company and
(e) as required by law, rule or regulation.
11.2
Permitted Disclosure.
Nothing will prevent either Party from disclosing Confidential Information
(a) upon the order of any court or administrative agency, (b) upon the request or demand of, or pursuant to any law or regulation to, any regulatory agency or authority, (c) to
the extent reasonably required in connection with the exercise of any right or remedy under this Amended Agreement, or (d) to either Party's legal counsel or independent auditors;
provided, however that
with respect to (a) and (b), so long as legally permissible, whichever Party discloses any Confidential Information shall
give notice to the other Party so that such Party may seek, at its sole expense, an appropriate protective order or waiver.
11.3
Exclusions.
For purposes of this Amended Agreement, Confidential Information shall not include
(a) information that is available to the public from a source other than the applicable Party, (b) information that is released in writing by the applicable Party to the public or to
persons who are not under similar obligations of confidentiality to the applicable Party, or (c) information that is obtained by the applicable Party from a third party which, to the best of
the applicable Party's knowledge, does not constitute a breach by such third party of an obligation of confidence.
12.
TERM AND TERMINATION.
12.1
Term.
This Amended Agreement shall be effective on the date of Company Stockholder Approval. The initial
term of this Amended Agreement shall expire on , 2027, subject to
Section 12.2
hereunder.
12.2
Term Extension Rights of Advisor.
This Amended Agreement may be extended by the Advisor for up to seven
successive additional ten-year terms upon written notice to the Company, given at least two hundred and ten (210) days prior to the expiration of the then current term, of the Advisor's
election to extend this Amended Agreement on the same terms and conditions of this Amended Agreement, subject to the rights of the Parties under
Section 6.6
.
12.3
Termination by the Company.
This Amended Agreement may be terminated by the Company upon written notice to
the Advisor and no Termination Fee shall be due and payable by the Company to the Advisor under the following circumstances:
(a) upon
the Advisor's conviction (including a plea or nolo contendere) by a court of competent jurisdiction of a felony;
(b) if
the Advisor commits an act of fraud against the Company, converts the funds of the Company or acts in a manner constituting gross negligence in the performance of the
Advisor's material duties under this Amended Agreement (including a failure to act); provided, however, that the Company will not have the right to terminate this Amended Agreement if any fraud,
conversion or actions or omissions described in this
Section 12.3(b)
are caused by an employee or an officer of the Advisor or an Affiliate of
the Advisor and the
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Advisor
takes all reasonable necessary and appropriate action against that person and cures the damage incurred by the Company within 45 days of the Advisor's actual knowledge of the commission
or omission;
(c) a
Bankruptcy Event occurs with respect to the Advisor; or
(d) (i)
upon the entry by a court of competent jurisdiction of a final non-appealable order awarding monetary damages to the Company based on a finding that the Advisor
committed a material breach or default of a material term, condition, obligation or covenant of this Amended Agreement, which breach or default had a Material Adverse Effect, but only where the
Advisor fails to pay the monetary damages in full within sixty (60) days of the date when the monetary judgment becomes final and non-appealable. For the avoidance of doubt, if the Advisor pays
the monetary judgment in full within sixty (60) days of the judgment becoming final and non-appealable, the Company shall not have the right to terminate this Amended Agreement. Notwithstanding
the above, if the Advisor notifies the Company that the Advisor is unable to pay any judgment for monetary damages in full within 60 days of when the judgment becomes final and non-appealable,
the Company may not terminate this Amended Agreement if, within the 60-day period, the Advisor delivers a promissory note to the Company having a principal amount equal to the unpaid balance of the
judgment and bearing interest at 8.00% per annum, which note shall mature on the 12 month anniversary of the date that the court's judgment becomes final and non-appealable. The Company may
terminate this Amended Agreement if the Advisor fails to pay all principal and interest due under the note by the maturity date of the note.
(ii) Prior
to initiating any Proceeding claiming a material breach or default by the Advisor, the Company shall give written notice of the default or breach to the Advisor
specifying the nature of the default or breach and providing the Advisor with an opportunity to cure the default or breach within no less than sixty (60) days of notice, or if the default or
breach is not reasonably susceptible to cure within sixty (60) days, an additional cure period as is reasonably necessary to cure the default or breach so long as the Advisor is diligently and
in good faith pursuing the cure.
12.4
Company Change of Control.
(a) This
Amended Agreement may be terminated, subject to the requirements of
Section 12.5(a)-(b)
below, by either
Party effective upon the occurrence of closing of a transaction contemplated by a Change of Control Agreement, completion of a Change of Control Tender, or occurrence of a Voting Control Event;
provided that the Party desiring to terminate shall give written notice of intent to terminate to the other Party on a date (i) no earlier than the date on which: (1) the Company enters
into a Change of Control Agreement; (2) the Company's Board of Directors recommends that the Company's stockholders accept the offer made in a Change of Control Tender; or (3) a Voting
Control Event occurs; and (ii) no later than two (2) days after closing of a transaction contemplated by a Change of Control Agreement, completion of a Change of Control Tender, or
occurrence of a Voting Control Event. This Amended Agreement shall terminate at the time set forth in
Section 12.5
hereof.
(b) (i)
The Termination Fee shall be due and payable by the Company to the Advisor upon the later of closing of a transaction contemplated by a Change of Control Agreement,
completion of a Change of Control Tender, or occurrence of a Voting Control Event or the notice of termination provided under
Section 12.4(a)
above; (ii) at the time (A) the Company enters into a Change of Control Agreement; (B) a Change of Control Tender is initiated and the Company's Board of Directors recommends
acceptance
by the Company's stockholders; or (C) a Voting Control Event occurs; the Advisor may, and hereby is authorized to, in the name
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of
and on behalf of the Company, transfer cash of the Company maintained in bank, brokerage or similar accounts established by the Advisor for the Company pursuant to
Section 4
to the Termination Fee
Escrow Account in an amount equal to the Termination Fee plus the Uninvested Amount less any outstanding amount
owed by the Advisor to the Company as a result of a judgment contemplated by
Section 12.3(d)
, referred to herein as the
"
Outstanding Judgment
," plus any and all other amounts that would be due and payable by the Company to the Advisor pursuant to this
Section 12.4(b)
or
Section 12.5(b)(ii)-(vi)
if the Termination Payment Time had occurred
concurrently with the events described in (A)-(C) above. The amount required to be deposited into the Termination Fee Escrow Account shall be referred to herein as the
"
Required Amount
." Notwithstanding the above, if the amount to be deposited into the Termination Fee Escrow Account would cause the Company's remaining
cash and cash equivalents to be less than the Working Capital Reserve, then the Company may reduce the Required Amount by an amount of cash equal to the difference between the Working Capital Reserve
and cash and cash equivalents that would be remaining on the Company's balance sheet prepared in accordance with GAAP outside of the Termination Fee Escrow Account. All amounts so deposited shall be
retained in escrow pursuant to the terms of the Termination Fee Escrow Agreement. The Company and the Advisor shall equally share all costs of the Termination Fee Escrow Account including the
reasonable fees and expenses of each Escrow Agent.
(c) Notwithstanding
Section 12.4(b)(ii)
above, if, in the case of an event described in
Section 12.4(a)(i)(2)-(3)
, the Company does not deposit cash equal to the
Required Amount into the Termination Fee Escrow Account, then the
Company shall deliver to the Escrow Agent for the Termination Fee Escrow Account, the Letter of Credit; provided that the Company has deposited an amount of cash equal to at least 50% of the Required
Amount. The Advisor shall have the right and power, without any further approval of the Company to cause the Escrow Agent to draw on the Letter of Credit, provided that any draws on the Letter of
Credit shall remain in the Termination Fee Escrow Account.
(d) If
the face amount of the Letter of Credit is not equal to at least the aggregate of the Required Amount less the cash deposited into the Termination Fee Escrow Account,
then to secure prompt and complete payment of any deficit, the Company shall pledge and grant to Advisor a continuing first priority security interest in and lien upon the Company's right, title and
interest in, to and in real property, personal property and other assets acceptable to the Advisor owned by the Company, and having a book value of no less than 120% of the deficit (collectively, the
"
Collateral
"). In addition, the Company shall execute and deliver all further instruments and documents, and take all further action that may be
reasonably necessary or reasonably desirable, or that Advisor may reasonably request
(including without limitation the filing of any fee and leasehold mortgages), in order to perfect and protect the security interest in the Collateral described above to enable Advisor to exercise and
enforce its rights and remedies hereunder with respect to any of the Collateral. The Company hereby irrevocably authorizes Advisor to file in any filing office in any Uniform Commercial Code
jurisdiction any initial financing statements and amendments thereto that provide any information required by part 5 of Article 9 of the Uniform Commercial Code or such other
jurisdiction for the sufficiency or filing office acceptance of any, financing statement or amendment relating to the Collateral. The Company agrees to furnish any such information to Advisor promptly
upon Advisor's request.
12.5
Termination Obligations; Termination Fee Escrow Account.
(a) Any
amounts due and payable in connection with any termination of this Amended Agreement pursuant to this
Section 12
shall become due and payable at the time set forth in this
Section 12.5(a)
(each such time, a "
Termination Payment Time
"). No termination of this
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Amended
Agreement shall become effective unless and until any and all amounts due and payable in connection with a termination pursuant to this
Section 12
have been fully paid. Subject to all amounts being
paid, the Termination Payment Time shall occur: (i) with respect to any
termination of this Amended Agreement pursuant to
Section 12.3
, at the effective time of the termination under that section; or (ii) with
respect to any termination of this Amended Agreement by the Company or the Advisor pursuant to
Section 12.4(a)
, at the time all amounts due and
payable under
Section 12.5(b)
have been paid.
(b) At
the Termination Payment Time, the Company shall pay to the Advisor the following amounts which shall become immediately due and payable at the occurrence of closing
of a Company Change of Control, giving effect to the transfer of amounts deposited in the Termination Fee Escrow Account: (i) the Termination Fee (and, for the avoidance of doubt, any working
capital previously set aside to the extent needed to pay any balance on the Termination Fee) and the Adjusted Termination Fee less any Outstanding Judgment; plus (ii) all Base Fees and
Incentive Fees (including any accrued Base Fees and Incentive Fees through the Termination Payment Time); plus (iii) the Uninvested Amount; plus (iv) all costs and expenses reimbursable
pursuant to
Section 5
through the Termination Payment Time; plus (v) the Key Money Clawback Amount, pursuant to
Section 16.3
; plus
(vi) any other amounts then due and payable hereunder including but not limited to any interest that has accrued but
not been paid pursuant to
Section 19(b)
.
(c) At
the Termination Payment Time, the Advisor shall have the right and authority to notify the Escrow Agent for the Termination Fee Escrow Account that the Termination
Payment Time has occurred and to cause the Escrow Agent to disburse to the Advisor, by cashier's check or wire transfer, the cash funds, including any cash generated by drawing on the Letter of Credit
either prior to or at the Termination Payment Time, in the Termination Fee Escrow Account at the applicable Termination Payment Time without any action required on the part of the Company. The Advisor
shall also have the right and power, without any further approval of the Company to exercise, by foreclosure or otherwise, any rights in the Collateral, pursuant to the security interest granted to
the Advisor therein. Any cash in the Termination Fee Escrow Account that exceeds the amounts due and payable under
Section 12.5(b)
shall be
disbursed by the Escrow Agent to the Company, by cashier's check or wire transfer. The Advisor shall retain all rights to pursue collection and payment of any amounts that are not otherwise paid
through the exercise of rights under the Termination Fee Escrow, the Letter of Credit and against the Collateral. If the applicable Change of Control Agreement is terminated, the Change of Control
Tender is withdrawn or fails to be consummated or the Voting Control Event does not occur, then, upon notice from the Company to the Advisor, the Advisor shall, as soon as reasonably practicable,
notify in writing the Escrow Agent for the Termination Fee Escrow Account and the Escrow Agent for the Termination Fee Escrow Account shall disburse to the Company, for deposit into one of the bank,
brokerage or similar accounts established by the Advisor for the Company pursuant to
Section 4
, the cash (net of any applicable fees and expenses
associated with the Termination Fee Escrow Account) in the Termination Fee Escrow Account. Further, the Advisor shall release all liens on the Collateral, cause the Letter of Credit to terminate by
its terms and the Company's obligations hereunder shall remain in full force and effect.
(d) At
the Termination Payment Time and subject to the Advisor's rights under
Section 4
and the full payment of all
other amounts due and payable pursuant to this
Section 12.5
, the Advisor shall: (i) pay over all money collected and held for the account
of the Company, provided that the Advisor shall be permitted to deduct any amount required to pay amounts due and payable pursuant to this
Section 12.5
; (ii) deliver a full accounting of all
accounts held by the Advisor in the name of or on behalf of the Company; and
(iii) deliver all documents,
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files,
contracts and assets of the Company in the possession of the Advisor to the Company subject to the rights of the Advisor in
Section 10
hereunder to retain a copy; and (iv) cooperate with and assist the Company in executing an orderly transition of the management of the Company's assets to a new advisor.
(e) In
connection with any termination pursuant to
Section 12.4(a)
, if requested by the Company, the Advisor may
agree, in its sole discretion, to provide, transition services agreed to by the parties for a
period of up to thirty (30) days in consideration for the payment of Base Fees and Incentive Fees equal to the monthly average Base Fee and Incentive Fee due and payable or paid for the three
months prior to the month in which the Termination Payment Time occurs. During any period of continued service pursuant to this
Section 12.5(e)
,
the Advisor shall also be entitled to reimbursements of costs and expenses required by
Section 5
.
12.6
No Solicitation.
During the term of this Amended Agreement (including any extension term) until two years
following the termination of this Amended Agreement other than a termination of the Advisor under
Section 12.3
hereunder, the Company shall not,
without the Advisor's prior written consent, directly or indirectly, (a) solicit or encourage any Person to leave the employment or other service of the Advisor or any of its Affiliates but
excluding for these purposes, persons employed by Remington or its subsidiaries who manage the hotels owned by the Company at the hotel level (the "
Hotel
Employees
"), or (b) hire, on behalf of the Company or any other Person, any Person who has left the employment of the Advisor or any of its Affiliates (except the Hotel
Employees) within the two-year period following the termination of that Person's employment with the Advisor or any of its Affiliates. During the term of this Amended Agreement (including any
extension term) until two years following the termination of this Amended Agreement other than a termination of the Advisor for cause, the Company will not, whether for its own account or for the
account of any other Person, firm, corporation or other business organization, intentionally interfere with the relationship of the Advisor or any of its Affiliates with, any Person who during the
term of this Amended Agreement is, or during the preceding two-year period was, a tenant, co-investor, co-developer, joint venturer or other customer of the Advisor or any of its Affiliates; provided
however, that notwithstanding the foregoing, the establishment or continuation by the Company or a new external advisor to the Company of commercial relationships for the Company with any such other
Person, firm, corporation or other business organization after the termination of this Amended Agreement shall not be deemed to constitute intentional interference with the relationships of the
Advisor and its Affiliates with such Person, firm, corporation or other business entity.
12.7
Repurchase of Stock of Advisor.
Immediately upon termination of this Amended Agreement for any reason, the
Advisor shall have the right to repurchase any shares of outstanding common stock of the Advisor ("
Advisor Common Stock
") and any units of the Advisor's
operating company ("
Advisor Units
") held by the Company at a price equal to the Average VWAP of the Advisor Common Stock for the ten
(10) consecutive trading days immediately preceding the date such repurchase option is exercised. Such repurchase rights shall terminate on the two-year anniversary of the termination of this
Amended Agreement. All shares of Advisor Common Stock or Advisor Units held by the Company upon the termination of this Amended Agreement shall be encumbered with Advisor's repurchase right, even if
the Company transfers such Advisor Common Stock or Advisor Units prior to the termination of the Advisor's repurchase right. Notwithstanding anything to the contrary in this Amended Agreement, the
Advisor may assign its repurchase rights pursuant to this
Section 12.7
to any Person without consent of the Company.
12.8
Survival of Specific Provisions.
The following Sections, including the rights and obligations contained
therein, shall survive the termination of this Amended Agreement:
Section 5
,
Section 6
,
Section 8
,
Section 9.5
,
Section 10
,
Section 11
,
Section 12
,
Section 16.3
, Section 17 and
Section 21
.
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13.
NOTICES. All notices, consents, approvals, waivers or other communications (each, a
"
Notice
") required or permitted hereunder, except as herein otherwise may be specifically provided, shall be in writing and shall be satisfied when:
(a) delivered personally or by commercial messenger; (b) sent via a recognized overnight courier service; (c) sent by registered or certified mail, postage pre-paid and return
receipt requested; or (d) sent by facsimile, .pdf or other similar electronic transmission, provided confirmation of receipt is received by sender and the original Notice is sent or delivered
contemporaneously by an additional method provided in this
Section 13
, in each case so long as such Notice is addressed to the intended recipient
thereof as set forth below:
If
to the Company, to:
Ashford
Hospitality Prime, Inc.
14185 Dallas Parkway, Suite 1100
Dallas, TX 75254
Attention: Chief Executive Officer
Fax: 972-980-2705
Email: rstockton@ashfordinc.com
With
a copy to:
Ashford
Hospitality Prime, Inc.
14185 Dallas Parkway, Suite 1100
Dallas, TX 75254
Attention: General Counsel
Fax: 972-980-2705
Email: dbrooks@ashfordinc.com
If
to the Advisor, to:
Ashford
Hospitality Advisors LLC
14185 Dallas Parkway, Suite 1100
Dallas, TX 75254
Attention: Chief Executive Officer
Fax: 972-980-2705
Email: mbennett@ashfordinc.com
With
a copy to:
Ashford
Hospitality Advisors LLC
14185 Dallas Parkway, Suite 1100
Dallas, TX 75254
Attention: General Counsel
Fax: 972-980-2705
Email: dbrooks@ashfordinc.com
Either
Party hereto may designate a different address by written notice to the other party delivered in accordance with this
Section 13
.
14.
DELEGATION OF RESPONSIBILITY AND ASSIGNMENT.
14.1
Delegation and Assignment by Advisor.
(a) Notwithstanding
anything in this Amended Agreement, the Advisor shall have the power to delegate all or any part of its rights and powers to manage and control the
business and affairs of the Company to such officers, employees, Affiliates, agents and representatives of the Advisor as it may deem appropriate. Any authority delegated by the Advisor to any
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other
Person shall be subject to the limitations on the rights and powers of the Advisor specifically set forth in this Amended Agreement or the charter of the Company.
(b) The
Advisor may assign this Amended Agreement to any Affiliate that remains under the control of the Advisor without the consent of the Company.
14.2
Assignment by Company.
The Company may not assign this Amended Agreement without the prior written consent
of the Advisor, except in the case of assignment by the Company to another REIT or other organization that is a successor, by merger, consolidation, purchase of assets, or other similar transaction,
to the Company;
provided, that,
any such consent of the Advisor shall not impact the Company's obligation to pay the Termination Fee and any other
amounts that become due and payable to the Advisor under this Amended Agreement.
14.3
Successors and Permitted Assigns.
This Amended Agreement shall inure to the benefit of and be binding upon
the Parties to this Amended Agreement and their respective successors and permitted assigns, and no other Person shall acquire or have any right under, or by virtue of, this Amended Agreement. The
Company shall be entitled to assign this Amended Agreement to any successor subject to all of the rights and obligations set forth herein. The Advisor shall have the right to assign this Amended
Agreement to any Affiliate except to the extent explicitly set forth in this Amended Agreement.
15.
FUTURE SPIN-OFF BY THE COMPANY. If the Company elects to spin-off, carve-out, split-off or otherwise
consummate a transfer of a division or subset of assets for the purpose of forming a joint venture, a newly created private platform or a new publicly-traded company to hold such division or subset of
assets constituting a distinct asset type or Investment Guidelines (collectively, a "
Spin-Off
Company"
), the Company and Advisor agree that such Spin-Off Company shall be externally advised by the Advisor pursuant to an advisory agreement containing substantially the
same terms set forth in this Amended Agreement.
16.
KEY MONEY INVESTMENTS.
16.1
Key Money Investment.
The Advisor hereby agrees, from time to time, to contribute to the Company or to one
or more to-be-specified taxable REIT subsidiaries of the Company or other Affiliates of the Company, a mutually agreed upon investment ("
Key Money
Investments
") to facilitate the acquisition of one or more properties ("
Key Money Assets
") by the Company if a majority of the
independent board members of each of the Company and the Advisor have determined that without such an investment, the acquisition of such property would be uneconomic to the Company. Key Money
Investments may be in the form of, but will not be limited to, cash, notes, equity of the Advisor, the acquisition of furniture, fixture and equipment
("
FF&E
") by Advisor for use by the Company at the acquired property, any other consideration mutually agreed to by the Company and Advisor, or any
combination thereof. All terms of any Key Money Investment will be in the form agreed to by the Advisor and the Company at the time the Advisor makes or approves of the investment, and the Company
agrees and acknowledges that it will utilize the Advisor as the asset manager with respect to any Key Money Asset acquired with a Key Money Investment and the Company will pay the Advisor the Key
Money Asset Management Fee that is included in the definition of Base Fees for such asset management services. The Advisor and the Company may agree to additional incentive fees based on the
performance of any Key Money Asset ("
Key Money Incentive Fees
"). All terms and conditions of any Key Money Investment (including additional incentive
fees) will be documented in an addendum to this Amended Agreement or a separate asset management agreement, as determined appropriate by the Parties.
16.2
Value of Advisor Equity.
If the Key Money Investment is made in the form of equity of the Advisor, the
value of such Key Money Investment will be based on the average of the daily
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Market
Price of the Advisor Common Stock for the ten (10) consecutive trading days immediately preceding the date the Key Money Investment is made.
16.3
Clawback of Key Money Investment.
The Advisor shall receive at least a per annum return of not less than 5%
on each Key Money Investment (such per annum return together with the initial Key Money Investment amount, the "
Key Money Return
"), through the payment
of the Key Money Asset
Management Fees and Key Money Incentive Fees, if applicable. If the Company either (a) disposes of any Key Money Asset or (b) terminates this Amended Agreement (or the applicable asset
management agreement) for any reason, in each case prior to the date the Advisor has received the Key Money Return (calculated on an investment by investment basis), the Company shall pay to the
Advisor an amount equal to the difference between the Key Money Return and the amount actually received by the Advisor in Key Money Asset Management Fees and Key Money Incentive Fees related to each
Key Money Asset and (the "
Key Money Clawback Amount
"). The applicable Key Money Clawback Amount, if any, shall be due and payable on the same date the
Company disposes of the property, whether by sale or otherwise, or upon the occurrence of a Company Change of Control or any termination of this Amended Agreement, whichever is applicable.
16.4
Use and Pledge of FF&E.
If the Key Money Investment is made by Advisor purchasing FF&E for a Key Money
Asset, the Advisor shall grant the Company the right to use the applicable FF&E pursuant to mutually agreed upon terms including the filing by the Advisor of a precautionary UCC financing statement if
deemed applicable in the sole discretion of the Advisor, and, upon request, the Advisor will, if permitted by the terms and conditions of any applicable debt agreement applicable to the Advisor, grant
a security interest in such FF&E to any lender who so requests in connection with the financing of such Key Money Asset by the Company. Upon termination of this Amended Agreement, the Company's right
to use any applicable FF&E shall terminate, the Company shall cause any lender holding a security interest in the applicable FF&E to release the security interest granted to the lender.
17.
EQUITY OWNERSHIP.
17.1
Registration Rights for Equity.
(a) The
Advisor hereby agrees to promptly, but in no event later than one hundred and twenty (120) days following any issuance under this Amended Agreement of equity
securities of the Advisor to the Company pursuant to an exemption from registration under the Securities Act, file a resale registration statement with respect to such equity securities,
including without limitation any Advisor Common Stock issuable upon conversion or exchange of such equity securities.
(b) The
Company hereby agrees to promptly, but in no event later than one hundred and twenty (120) days following any issuance under this Amended Agreement of equity
securities of the Company to the Advisor pursuant to an exemption from registration under the Securities Act, file a resale registration statement with respect to such equity securities,
including without limitation any Company Common Stock issuable upon conversion or exchange of such equity securities.
17.2
Registration Procedures
.
(a) In
connection with the filing of any registration statement (a "
Registration Statement
") required to be filed by either
the Advisor or the Company (in such capacity, the "
Issuer
") pursuant to
Section 17.1
, the Issuer
will: (i) use its reasonable best efforts to have such Registration Statement declared effective; (ii) furnish to whichever of the Company or the Advisor is the holder of the equity
securities to be registered (in such capacity, the "
Selling Stockholder
") such number of copies of prospectuses, and supplements or amendments
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thereto,
and such other documents as such Selling Stockholder reasonably requests; (iii) register or qualify the equity securities to be registered pursuant to a Registration Statement (any
such equity securities, "
Registrable Securities
") under the securities or blue sky laws of such jurisdictions within the United States as any holder of
Registrable Securities shall reasonably request, and do such other reasonable acts and things as may be required of it to enable such holders to consummate the sale or other disposition in such
jurisdictions of the Registrable Securities;
provided, however,
that the Issuer shall not be required to (A) qualify as a foreign entity or
consent to a general or unlimited service or process in any jurisdictions in which it would not otherwise be required to be qualified or so consent or (B) qualify as a dealer in securities;
(iv) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC; and (v) supplement or make amendments to any Registration Statement, if
required by the rules, regulations or instructions applicable to the registration form utilized by Issuer or by the Securities Act or rules and regulations thereunder for such Registration Statement.
(b) In
connection with the filing of a Registration Statement, the Selling Stockholder agrees to furnish to the Issuer, upon request, such information with respect to the
Selling Stockholder as may be required to complete and file the Registration Statement.
(c) In
connection with and as a condition to the Issuer's obligations with respect to the filing of a Registration Statement pursuant to this
Section 17
, the Selling Stockholder agrees with the Issuer
that: (i) it will not offer or sell its Registrable Securities until
(A) such Registrable Securities have been included in a Registration Statement and (B) it has received copies of a prospectus, and any supplement or amendment thereto, as contemplated by
Section 17.2(a)
hereof, and receives notice that the Registration Statement covering such Registrable Securities, or any post-effective amendment
thereto, has been declared effective by the SEC; (ii) if the Issuer determines in its good faith judgment, after consultation with counsel, that the use of the Registration Statement, including
any post-effective amendment thereto, or the use of any prospectus contained in such Registration Statement would require the disclosure of information that the Issuer has a bona fide business purpose
for preserving as confidential or the disclosure of which would impede the Issuer's ability to consummate a significant transaction, upon written notice of such determination by the Issuer, the rights
of the Selling Stockholder to offer, sell or distribute its Registrable Securities pursuant to such Registration Statement
or prospectus or to require the Issuer to take action with respect to the registration or sale of any Registrable Securities pursuant to a Registration Statement (including any action contemplated by
this
Section 17.2
) will be suspended until the date upon which the Issuer notifies such Selling Stockholder in writing (which notice shall be
deemed sufficient if given through the issuance of a press release) that suspension of such rights for the grounds set forth in this paragraph is no longer necessary;
provided
,
however
, that the Issuer may not suspend such rights for an aggregate period of more than
ninety (90) days in any 12-month period; and (iii) in the case of the registration of any underwritten equity offering proposed by the Issuer (other than any registration by the Issuer
on Form S-8, or a successor or substantially similar form, of (A) an employee share option, share purchase or compensation plan or of securities issued or issuable pursuant to any such
plan or (B) a dividend reinvestment plan), the Selling Stockholder will agree, if requested in writing by the managing underwriter or underwriters administering such offering, not to effect any
offer, sale or distribution of any common stock of the Issuer or Registrable Securities (or any option or right to acquire any common stock of the Issuer or Registrable Securities) during the period
commencing on the tenth day prior to the expected effective date (which date shall be stated in such notice) of the Registration Statement covering such underwritten primary equity offering or, if
such offering shall be a "take-down" from an effective shelf Registration Statement, the tenth day prior to the expected commencement date (which date shall be
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stated
in such notice) of such offering, and ending on the date specified by such managing underwriter in such written request to the Selling Stockholder;
provided
,
however
, that the Selling Stockholder shall not be required to agree not to effect any offer,
sale or distribution of its Registrable Securities for a period of time that is longer than the greater of ninety (90) days or the period of time for which any senior executive of the Issuer is
required so to agree in connection with such offering.
17.3
Resale of Equity
.
(a) The
Company acknowledges and agrees that it will not attempt to sell any equity securities of the Advisor until such time as the applicable Registration Statement has
been declared effective by the SEC, and thereafter the Company agrees not to sell, on any given trading day, any Advisor Common Stock in excess of an amount equal to 15% of the trading volume of such
Advisor Common Stock on such trading day.
(b) The
Advisor acknowledges and agrees that it will not attempt to sell any equity securities of the Company until such time as the applicable Registration Statement has
been declared effective by the SEC, and thereafter the Advisor agrees not to sell, on any given trading day, any Company Common
Stock in excess of an amount equal to 15% of the trading volume of such Company Common Stock on such trading day.
18.
COMPANY COVENANTS.
(a) Without
the Advisor's consent, delivered in writing to the Board of Directors, the Company shall not declare or pay any dividend or distribution (whether in cash,
securities or other property) with respect to any capital stock of the Company or otherwise, or any payment (whether in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any capital stock or other equity interest or otherwise, or on account of any return of capital
to the Company's stockholders, partners or members (or the equivalent Person thereof), unless after giving effect to the dividend or distribution, the Company shall have a Consolidated Tangible Net
Worth of no less than 25% of the Company's Gross Asset Value;
provided that
nothing herein shall prohibit the Company from declaring or paying any
dividend or distribution which, based on the advice of counsel, is necessary for the Company to maintain its REIT status.
(b) During
the term of this Amended Agreement, the Company shall not permit its Consolidated Tangible Net Worth, as of the end of any fiscal quarter, to be less than the sum
of (i) $390 million, and (ii) an amount equal to 75% of the net equity proceeds received by the Consolidated Parties after December 31, 2016 by reason of the issuance and
sale of Equity Interests in the Company.
(c) In
order to further the Company's growth, the Company undertakes to make investments that are consistent with the Company's Investment Guidelines. All investments shall
be at purchase prices that are commercially reasonable in light of the quality of the asset, prevailing market conditions and the Company's investment and strategic objectives, in each case,
identified and recommended by the Advisor (individually a "
Growth Asset
" and collectively the "
Growth
Assets
.") In connection with each acquisition by the Company of a Growth Asset, 3.75% of the purchase price of the applicable asset shall constitute a "Qualifying Growth
Investment." Each Qualifying Growth Investment shall reduce the Uninvested Amount. Capital investments in any assets owned by the Company as of the date of this Amended Agreement or any other asset
not specifically recommended pursuant to this
Section 18(c)
shall not constitute a Qualifying Growth Investment.
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19.
LIQUIDATED AND OTHER DAMAGES.
(a) Upon
the entry of a final non-appealable order from a court of competent jurisdiction that a Liquidated Damages Event has occurred, the Company shall pay to the Advisor
the Uninvested Amount plus an amount in cash equal to the Liquidated Damages Amount. The Parties intend that the payment of the Liquidated Damages Amount constitute compensation, and not a penalty.
The Parties acknowledge and agree that the occurrence of a Liquidated Damages Event would deprive the Advisor of the benefits that the Advisor could reasonably anticipate from full performance by the
Company of its obligations hereunder and that the damages incurred by the Advisor if a Liquidated Damages Event occurs are uncertain
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and
incapable or very difficult to accurately estimate, and that the Liquidated Damages Amount is a reasonable estimate of the anticipated or actual harm caused by a Liquidated Damages Event and not a
penalty. The Parties agree and acknowledge that without the agreements embodied by this
Section 19
, the Parties would not enter into this Amended
Agreement. Upon payment by the Company of the (i) Liquidated Damages Amount less any Outstanding Judgment and, to the extent not otherwise included in the Liquidated Damages Amount,
(ii) (A) the Uninvested Amount; plus (B) all costs and expenses reimbursable pursuant to
Section 5
through termination due
to the Liquidated Damages Event; plus (C) the Key Money Clawback Amount, pursuant to
Section 16.3
; plus (D) any other amounts then
due and payable hereunder including but not limited to any interest that has accrued but not been paid pursuant to
Section 19(b)
to the Advisor,
the Parties shall have no further obligations hereunder, and this Amended Agreement shall be terminated; provided that during the pendency of any action (including any appeals related thereto) brought
by the Advisor claiming that a Liquidated Damages Event has occurred, the Company shall continue to pay or reimburse the Advisor all amounts due or reimbursable hereunder including any obligations
imposed on the Company under
Section 12
hereof.
(b) If
the Company fails to timely pay any amount due pursuant to
Section 5
,
Section 6
,
Section 12
or
Section 19(a)
hereof, the Company shall pay interest at a rate equal to 8% per annum, increasing 200 basis points at the end of each
90 day period that amounts remain outstanding (or such lesser rate as is the maximum permitted by applicable law) and compounded annually on the amounts due and payable for the period from the
date the amount became due and payable through the date the Advisor receives payment for all outstanding amounts including interest thereon.
(c) The
Party that prevails in any Proceeding to enforce rights and obligations under this Amended Agreement shall be entitled to be reimbursed by the other Party for the
reasonable fees and expenses of counsel in connection with the Proceeding.
(d) All
rights and remedies provided in this Amended Agreement are cumulative and not exclusive, and the exercise by the Advisor or the Company, as applicable, of any right
or remedy does not preclude the exercise of any other right or remedy, at law or in equity, that may now or subsequently be available to the Advisor or the Company.
20.
REPRESENTATIONS AND WARRANTIES.
20.1
Company Representations.
The Company represents and warrants to the Advisor as follows:
(a) The
execution, delivery and performance of this Amended Agreement and the Escrow Agreement by the Company has been duly authorized by all necessary corporate or other
organizational action, and does not and will not (i) contravene the terms of the Company's charter, the Company's bylaws or any other organizational document of the Company;
(ii) conflict with or result in any breach or contravention of, or the creation of any Encumbrance under, or require any payment to be made under any Contract or any order, injunction, writ or
decree of any governmental authority or any arbitral award to which the Company or its property is subject; or (iii) violate any Law, rule or regulation.
(b) This
Amended Agreement and the Escrow Agreement constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their
terms.
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20.2
Advisor Representations.
The Advisor represents and warrants to the Company as follows:
(a) The
execution, delivery and performance of this Amended Agreement and each Escrow Agreement by the Advisor has been duly authorized by all necessary corporate or other
organizational action, and does not and will not (i) contravene the terms of the Advisor's charter, the Advisor's bylaws or any other organizational document of the Advisor;
(ii) conflict with or result in any breach or contravention of, or the creation of any Encumbrance under, or require any payment to be made under any Contract or any order, injunction, writ or
decree of any governmental authority or any arbitral award to which the Advisor or its property is subject; or (iii) violate any Law, rule or regulation.
(b) This
Amended Agreement and each Escrow Agreement constitutes legal, valid and binding obligations of the Advisor, enforceable against the Advisor in accordance with
their terms.
21.
TREATMENT UNDER TEXAS MARGIN TAX. For purposes of the Texas margin tax, the Advisor's performance of the
services specified in this Amended Agreement will cause the Advisor to conduct part of the active trade or business of the Company, and the compensation specified in this Amended Agreement includes
both the payment of management fees and the reimbursement of specified costs incurred in the Advisor's conduct of the active trade or business of the Company. Therefore, the Advisor and the Company
intend Advisor to be, and shall treat Advisor as, a "management company" within the meaning of Section 171.0001 (11) of the Texas Tax Code. The Company and the Advisor will apply
Sections 171.1011(m-1) and 171.1013(f)-(g) of the Texas Tax Code to the Company's reimbursements paid to the Advisor pursuant to this Amended Agreement of specified costs and wages and
compensation. The Advisor and the Company further recognize and intend that as a result of Advisor's contractual duties under this Amended Agreement, certain reimbursements under this Amended
Agreement are "flow-through funds" mandated by contract to be
distributed within the meaning of Section 171.1011(g) of the Texas Tax Code. The terms of this Amended Agreement shall be interpreted in a manner consistent with the characterization of the
Advisor as a "management company" as deemed in Section 171.0001(11), and with the characterization of the reimbursements as "flow-through funds" within the meaning of
Section 171.1011(f)-(g) of the Texas Tax Code.
22.
INTERPRETATION. The Parties hereto have participated jointly in the negotiation and drafting of this Amended
Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Amended Agreement shall be construed as if drafted jointly by the Parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Amended Agreement.
23.
GOVERNING LAW. This Amended Agreement shall be governed by and construed in accordance with the laws of the
State of Texas, without regard to the conflict of laws principals thereof.
24.
CERTAIN DEFINITIONS.
"
Accounting Firm
" means one of the member firms or Affiliates of either Deloitte Touche Tohmatsu Limited, KPMG LLP,
PricewaterhouseCoopers LLP, Ernst & Young Global Limited, BDO USA, LLP, Grant Thornton LLP, BKD, LLP or another independent certified public accounting firm of
national reputation mutually agreed to by the Parties.
"
Adjusted Termination Fee
" means, at the applicable time, an amount equal to the sum of 20% of the Termination Fee.
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"
Affiliate
" means a Person that directly or indirectly, through one or more intermediaries, controls, is
controlled by or is under common control with the Person in question and any officer, director, trustee, key decision-making employee, stockholder or partner of any Person referred to in the preceding
clause, except that, for purposes of this Amended Agreement, the Company shall not be considered an Affiliate of the Advisor.
"
Ashford Inc. Adjusted EBITDA
" means the GAAP net income of Ashford Inc. as reported in the Quarterly Reports on
Form 10-Q and Annual Reports on Form 10-K of Ashford Inc. filed with the SEC following the end of each fiscal quarter or fiscal year, as applicable, or if the Company does not
make filings with the SEC, as otherwise reasonably determined by the Advisor and reported to the Audit Committee, including all Incentive Fees and all other income and earnings of Advisor and any of
its Affiliates and Subsidiaries, plus income taxes, depreciation, amortization and all one-time expenses and other adjustments that are made by the Advisor to adjust for the impact of non-recurring
items in calculating "Adjusted EBITDA" as reported in the earnings releases of Ashford Inc. filed with the SEC following the end of each fiscal quarter or fiscal year, as applicable.
"
Average VWAP
" means the average of the VWAP of the security in question for each trading day of the applicable period.
"
Bankruptcy Event
" means, with respect to any Person, (A) the filing by the Person of a voluntary petition seeking liquidation,
reorganization, arrangement, or readjustment, in any form, of its debts under Title 11 of the United States Code or any other U.S. federal or state or foreign insolvency law, or the Person's filing an
answer consenting to or acquiescing in any petition, (B) the making by the Person of any assignment for the benefit of its creditors, (C) the expiration of 60 days after the
filing of an involuntary petition under Title 11 of the United State Code, an application for the appointment of a receiver for a material portion of the assets of the Person, or an involuntary
petition seeking liquidation, reorganization, arrangement or readjustment of its debts under any other U.S. federal or state or foreign insolvency law, provided that the petition shall not have been
vacated, set aside or stayed within such 60-eay period, or (D) the entry against the Person of a final and non-appealable order for relief under any bankruptcy, insolvency or similar law now or
hereinafter in effect.
"
Baseline Asset Value
" means $1.496 billion.
"
Board of Directors
" means the board of directors of the Company including, unless the context requires otherwise and to the extent
authorized, any committee thereof.
"
Change of Control Agreement
" means a letter of intent or a definitive agreement contemplating transactions which, if consummated, would
constitute a Company Change of Control.
"
Change of Control Tender
" means a tender offer by any "person" or "group" (within the meaning of Section 13(d) of the Exchange
Act) pursuant to which such person or group would, if such tender offer were completed, become the "beneficial owner" (as defined in Rule 13d-3 of the Exchange Act) directly or indirectly, of
securities of the Company representing 35% or more of the shares of voting stock of the Company then outstanding.
"
Company Change of Control
" shall mean any of the following events:
(a) the
occurrence of a (i) Voting Control Event or (ii) Change of Control Tender;
(b) the
consummation of any merger, reorganization, business combination or consolidation of the Company, or one of its respective Subsidiaries, as applicable, with or into
any other company, other than a merger, reorganization, business combination or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior
thereto holding securities which represent immediately after such merger, reorganization, business combination or consolidation more
than 50% of the combined voting power of the voting securities of the Company or the surviving company or the parent of such surviving company; or
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(c) the
consummation of a sale or other disposition (including distributions to stockholders of the Company) by the Company of more than two (2) hotels and the
aggregate Gross Asset Value of all hotels sold or disposed of exceeds 20% of the Gross Asset Value of all of the Company's assets in any rolling 12-month period, or the consummation of a sale or
disposition (including distributions to stockholders of the Company) by the Company of more than four (4) hotels and the aggregate Gross Asset Value of all hotels sold or disposed of exceeds
30% of the Gross Asset Value of all of the Company's assets over any rolling 36-month period, exclusive of assets sold or contributed by the Company to a platform or entity advised by the Advisor;
provided,
however
for the purposes of calculating the percentage of any sale or disposition (including distributions to stockholders of the Company) of
the Gross Asset Value of all of the Company's assets under this
subparagraph (c)
, the denominator of the calculation shall be the Gross Asset
Value of all of the Company's assets on the day before the consummation of the first sale or disposition of (including distributions to stockholders of the Company) that is a part of the numerator of
the calculation as adjusted for any hotels and related assets acquired by the Company from and after that day through the day before consummation of the last sale or disposition of (including
distributions to stockholders of the Company) that is a part of the numerator of the calculation.
"
Company Common Stock
" means common stock of the Company, $0.01 par value per share.
"
Company EBITDA
" means the Company's "Adjusted EBITDA" as reported in the Company's Quarterly Reports on Form 10-Q or Annual
Reports on Form 10-K filed with the SEC following the end of each fiscal quarter or fiscal year, as applicable or if the Company does not make filings with the SEC, as otherwise reasonably
determined by the Advisor and reported to the Audit Committee.
"
Company Fixed Charges
" means, as reported in the Company's Quarterly Reports on Form 10-Q or Annual Reports on Form 10-K
filed with the SEC following the end of each fiscal quarter or fiscal year, as applicable, all (A) interest expense incurred by the Company and its Subsidiaries, (B) scheduled principal
payments of the Company and its Subsidiaries, whether or not paid but excluding any balloon or similar principal payments which repay indebtedness in full and payments under cash flow mortgages
applied to principal, and (C) preferred dividends paid by the Company.
"
Company Stockholder Approval
" means the affirmative vote of a majority of votes cast by stockholders of the Company, a quorum being
present, at a meeting called by the Company for the purpose of seeking approval by the Company's stockholders of this Amended Agreement.
"
Consolidated Parties
" means a collective reference to the Company and its consolidated Subsidiaries.
"
Consolidated Tangible Net Worth
" means, as of any date of determination, the consolidated shareholders' equity of the Consolidated
Parties on that date, as determined in accordance with GAAP,
minus
the amount of their consolidated intangible assets under GAAP,
plus
the amount of their
consolidated accumulated depreciation;
provided, however,
that there shall be
excluded from the calculation of "Consolidated Tangible Net Worth" any effects resulting from the application of FASB ASC No. 715: CompensationRetirement Benefits. Consolidated
Tangible Net Worth shall be adjusted to remove any impact from straight line rent leveling adjustments required under GAAP and amortization of intangibles pursuant to State of Financial Accounting
Standards number 141.
"
Contract
" means any written or oral loan or credit agreement, bond, debenture, note, mortgage, indenture, lease, license or other
contract, agreement, obligation, commitment or instrument, including all amendments thereto.
"
EBITDA
" means, with respect to any entity, earnings before interest, taxes, depreciation and amortization.
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"
Encumbrance
" means any security interest, lien, claim, pledge, option, right of first refusal, limitation on voting rights, charge or
other encumbrance of any nature (other than any restrictions on transfer arising under applicable securities law).
"
Equity Interests
" means, with respect to any Person, all of the shares of capital stock (or other ownership or profit interests) in such
Person, all of the warrants, options or other rights for the purchase or acquisition from which Person of shares of capital stock (or other ownership or profit interests) in such Person, all of the
securities convertible into or exchangeable for shares of capital stock (or other ownership or profit interests) in such Person or warrants, rights or options for the purchase or acquisition from such
Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or
nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
"
Escrow Agent
" means the agent under the Termination Fee Escrow Account.
"
Escrow Agreement
" means an agreement among the Company, the Advisor and the Escrow Agent with respect to the Termination Fee Escrow
Account.
"
G&A Ratio
" means an amount calculated as the simple average of the ratios of total general and administrative expenses, less any non-cash
expenses but including any dead deal costs, paid in the applicable fiscal quarter by each member of a select peer group set forth in
Exhibit A
hereto (each, a "
Peer Group Member
" and collectively, the "
Peer Group
"), divided by the total market
capitalization of such Peer Group Member (calculated in a materially consistent manner with the calculation of the Total Market Capitalization of the Company (assuming the Key Money Asset Factor is
one) or the Advisor provided for hereunder). The G&A Ratio for each Peer Group Member will be calculated based on the financial information presented in such Peer Group Member's Quarterly Reports on
Form 10-Q or Annual Reports on Form 10-K filed with the SEC following the end of the applicable fiscal quarter. The Peer Group may be modified from time to time as set forth in
Section 27
.
"
GAAP
" means Generally Accepted Accounting Principles in the United States.
"
Gross Asset Value
" means, with respect to the Company's assets as of any date, the undepreciated carrying value of all of the Company's
assets including all cash and cash equivalents and capitalized leases and any FF&E leased to the Company pursuant to any Key Money Investment as reflected on the most recent balance sheet and
accompanying footnotes of the Company filed with the SEC or prepared by the Advisor in accordance with GAAP consistent with its performance of its duties hereunder without giving effect to any
impairments plus the contract purchase price of any assets acquired after the date of the most recent balance sheet and all capital expenditures made (to the extent not already reflected in the
carrying value of the asset) with respect to an asset since the date of its acquisition for any improvements or for additions thereto, that have a useful life of more than one year and that are
required to be capitalized under GAAP.
"
Growth Asset
" means an asset acquired by the Company identified and approved by the Advisor pursuant to the provisions of
Section 18(c)
hereof.
"
Incentive Factor
" means the highest Incentive Ratio from among the Incentive Ratios for the last three years in which Company Common
Stock was listed for trading on a national securities exchange for each day of the applicable year.
"
Incentive Ratio
" means the amount, with respect to any year, expressed as a percentage equal to the quotient of the full Incentive Fee
earned with respect to such year (even though paid over three years) divided by the Gross Asset Value of all the Company's assets as of the last day of such year.
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Table of Contents
"
Independent Director
" means any person serving as a director of the Company who satisfies the rules and regulations of the New York Stock
Exchange then in effect to be "independent" under those rules and regulations.
"
Key Money Asset Factor
" means (A) 100% minus the (B) quotient, expressed as a percentage, resulting from dividing
(1) the Gross Asset Value of all Key Money Assets by (2) the Gross Asset Value of all the Company's assets (including all Key Money Assets and all Liquid Assets of the Company) as of the
first day of the applicable period.
"
Key Money Asset Management Fee
" means, for each month, an amount that is 1/12th of 0.70% of the aggregate Gross Asset Value of all
Key Money Assets as of the first day of the applicable month.
"
Key Money Gross Asset Value
" means, with respect to the Key Money Assets as of any date, the undepreciated carrying value of the Key
Money Assets and capitalized leases and any FF&E leased to the Company pursuant to any Key Money Investment as reflected on the most recent balance sheet of the Company filed with the SEC or prepared
by the Advisor consistent with its performance of its duties hereunder without giving effect to any impairments plus the contract purchase price of any Key Money Assets acquired after the date of such
most recent balance sheet and all capital expenditures made (to the extent not already reflected in the carrying value of the Key Money Assets) with respect to any Key Money Asset since the date of
its acquisition for any improvements or for additions thereto, that have a useful life of more than one year and that are required to be capitalized under GAAP.
"
Law
" means any and all domestic (federal, state or local) or foreign laws, statutes, rules, regulations, ordinances, codes, orders,
judgments, injunctions, decrees or other legally enforceable requirements issued, enacted, promulgated, entered into, agreed or imposed by any governmental authority.
"
Letter of Credit
" means an irrevocable standby letter of credit issued by a recognized commercial bank having net assets of not less than
$500 million to the Escrow Agent, that the Escrow Agent at the request of the Advisor may draw upon, conditioned only upon the presentation of the original letter of credit and a signed
statement that the Advisor is entitled to cause the Escrow Agent to draw, in the maximum aggregate amount equal to the difference between (1) the Required Amount; and (2) the amount of
cash deposited into the Termination Fee Escrow Account by the Company.
"
Liquid Assets
" shall mean assets in the form of cash, cash equivalents, obligations of (or fully guaranteed as to principal and interest
by) the United States or any agency or instrumentality thereof (provided the full faith and credit of the United States supports such obligation or guarantee), certificates of deposit issued by a
commercial bank having net assets of not less than $500.0 million, securities listed and traded on a recognized stock exchange or traded over the counter and listed in the National Association
of Securities Dealers Automatic Quotations, or liquid debt instruments that have a readily ascertainable value and are regularly traded in recognized financial market.
"
Liquidated Damages Amount
" means the amount that is the greater of:
(a) (i)
12 multiplied by (ii) the sum of (A) Net Earnings for the LTM Period; plus (B) to the extent not included in Net Earnings, any Incentive Fees
that have accrued or are accelerated but have not yet been paid at the time a Liquidated Damages Event occurs;
(b) (i)
the quotient of (A) the Total Market Capitalization of the Advisor on the trading day immediately preceding the date on which a Liquidated Damages Event
occurs, divided by (B) the Ashford Inc. Adjusted EBITDA for the LTM Period, multiplied by (ii) Net Earnings for the LTM Period plus, to the extent not included in Net Earnings,
any Incentive Fees that have accrued or are accelerated but have not yet been paid at the time a Liquidated Damages Event occurs; or
(c) the
simple average, for the three fiscal years preceding the fiscal year in which the Liquidated Damages Event occurs, of (i) the quotient of (A) the Total
Market Capitalization of
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Table of Contents
the
Advisor on the last trading day of such fiscal year, divided by (B) the Ashford Inc. Adjusted EBITDA for such fiscal year, multiplied by (ii) Net Earnings for the LTM Period
plus, to the extent not included in Net Earnings, any Incentive Fees that have accrued or are accelerated but have not yet been paid at the time a Liquidated Damages Event occurs.
"
Liquidated Damages Event
" means any action or omission by the Company that individually or when considered with other actions or
omissions previously taken or omitted by the Company constitute a repudiation by the Company of this Amended Agreement depriving the Advisor of the benefit that the
Advisor could reasonably anticipate from full performance by the Company of its obligations hereunder.
"
LTM Period
" means the 12-month period ending on the last day of the fiscal quarter prior to which, as applicable, the Termination Payment
Time or the Liquidated Damages Event occurs.
"
Majority or Minority Subsidiary
" means, with respect to a Person, any Subsidiary of the Person or any corporation, partnership, limited
liability company or other entity in respect of which less than 100% but more than 1% of the Equity Interests therein are at the time directly or indirectly owned by the Person.
"
Market Price
," with respect to securities of a company, means the closing market price, regular way of such securities on any securities
exchange on which such securities are listed or admitted to trading, or if no such sales take place on that day, the average of the bid and asked prices on such day.
"
Market Rates
" means a rate that is within the range of rates available from third parties not Affiliated with the Advisor who are not
otherwise discounting fees or discounting fees giving effect to any rebates or other business for fees being received from the party or another third party and taking into consideration the terms,
conditions and the scope of the Additional Services.
"
Material Adverse Effect
" means a material adverse effect on the Company's business, results of operations or financial condition.
"
Minimum Base Fee
" means an amount equal to the greater of (A) 90% of the Base Fee paid for the same month in the prior fiscal year
and (B) 1/12th of the G&A Ratio for the most recently completed fiscal quarter multiplied by the Total Market Capitalization on the last balance sheet date included in the most recent
Quarterly Report on Form 10-Q or Annual Report on Form 10-K filed by the Company with the SEC.
"
Net Earnings
" means (A) the total Base Fees and Incentive Fees, plus any other revenues reported on the Advisor's income statement
as pertaining to this Amended Agreement, in each case, in accordance with GAAP, including all EBITDA of the Advisor and any of its Affiliates and Majority or Minority Subsidiaries from providing any
Additional Services to the Company, the Operating Partnership or any of their Affiliates or Subsidiaries, less (B) the total incremental expenses determined in accordance with, and subject to,
Section 6.7
, in each case for the LTM Period (adjusted assuming this Amended Agreement was in place for the full LTM Period if it otherwise was
not). For the avoidance of doubt, the Parties agree that fees and expenses payable or reimbursable by the Company to Remington and its subsidiaries under the Ashford Prime Hotel Master Management
Agreement dated as of November 19, 2013, by and between Ashford Prime TRS Corporation and Remington Lodging & Hospitality, LLC and any successor or related hotel management
agreement with Remington and its subsidiaries along with
any associated expenses of Remington relating to the Ashford Prime Hotel Master Management Agreement shall not be included in Net Earnings or otherwise in the calculation of the Termination Fee,
Adjusted Termination Fee or Liquidated Damages Amount.
"
Ownership Limit
" has the meaning ascribed to such term in the Company's charter in effect as of the date of this Amended Agreement.
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Table of Contents
"
Person
" means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership,
governmental authority or other entity.
"
Proceedings
" means all disputes or controversies of any kind including without limitation all charges, complaints, grievances, actions,
causes of action, suits, rights, demands, claims, lawsuits, other legal actions or litigation, arbitration, investigations (internal or external), inquiries or other proceedings.
"
Qualifying Growth Investment
" means 3.75% of the purchase price paid by the Company for each Growth Asset; provided, that no acquisition
may constitute a Qualifying Growth Investment if, when the Growth Asset was acquired, the Company's Gross Asset Value was less than the Baseline Asset Value.
"
Remington Acquisition
" means the closing of the transaction pursuant to the agreement between Ashford Inc. and the owners of
Remington entered into on September 17, 2015 and amended on May 24, 2016, as the same may be further amended.
"
Subsidiary
" means, with respect to a Person, a corporation, partnership, limited liability company or other entity in respect of which
100% of the Equity Interests therein are at the time directly or indirectly owned or controlled by such Person or one or more other Subsidiaries of such Person.
"
Termination Fee
" means the amount that is the greater of:
(a) (i)
twelve (12) multiplied by (ii) the sum of (A) Net Earnings for the LTM Period; plus (B) to the extent not included in Net Earnings, any
Incentive Fees that have accrued or are accelerated but have not yet been paid at the Termination Payment Time;
(b) (i)
the quotient of (A) the Total Market Capitalization of the Advisor on the trading day immediately preceding the date on which the Termination Payment Time
occurs, divided by (B) the Ashford Inc. Adjusted EBITDA for the LTM Period, multiplied by (ii) Net Earnings for the LTM Period plus, to the extent not included in Net Earnings,
any Incentive Fees that have accrued or are accelerated but have not yet been paid at the Termination Payment Time; and
(c) the
simple average, for the three fiscal years preceding the fiscal year in which the Termination Payment Time occurs, of (i) the quotient of (A) the Total
Market Capitalization of the Advisor on the last trading day of such fiscal year, divided by (B) the Ashford Inc. Adjusted EBITDA for such fiscal year, multiplied by (ii) Net
Earnings for the LTM Period plus, to the extent not included in Net Earnings, any Incentive Fees that have accrued or are accelerated but have not yet been paid at the Termination Payment Time.
"
Termination Fee Escrow Account
" means the account established by the Parties with an Escrow Agent as contemplated by
Section 12.4(b)(ii)
.
"
Total Market Capitalization
" means, for any period:
(a) With
respect to the Company to the extent Company Common Stock is listed for trading on a national securities exchange for every day during any period for which the
Total Market Capitalization is to be calculated, the amount calculated as:
(i) the
Average VWAP multiplied by the weighted average number of shares of Company Common Stock outstanding during such applicable period, on a fully-diluted basis
(assuming, for these purposes, that all common units in the Operating Partnership ("
Common Units
"), and long term incentive partnership units in the
Operating Partnership to the extent they have achieved economic parity with Common Units have been converted into shares of Company Common Stock and including any shares of Company Common Stock
issuable upon conversion of any convertible preferred stock of the Company where the conversion price is less than the Average VWAP), plus
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Table of Contents
(ii) the
average, as reflected in the Company's books and records, for the applicable period of the aggregate principal amount of the Company's consolidated indebtedness
(including, if applicable, the Company's proportionate share of debt of any entity that is not consolidated and excluding, if applicable, any of the Company's joint venture partners' proportionate
share of consolidated debt) day, plus
(iii) the
average, as reflected in the Company's books and records, for the applicable period of the liquidation value of the Company's outstanding preferred equity
(excluding any convertible preferred stock of the Company where the conversion price is less than the Average VWAP), multiplied by
(iv) the
Key Money Asset Factor.
(b) With
respect to the Company, if the Company's Common Stock is not listed for trading on a national securities exchange (due to any reason, including but not limited to
delisting by the New York Stock Exchange or the occurrence of a Company Change of Control) for any day during any period for which
the Total Market Capitalization is to be calculated, the greater of: (i) the weighted average Gross Asset Value of all the Company's assets on each day during such period; or (ii) the
Total Market Capitalization as calculated pursuant to
paragraph (a)
of this definition on the last day on which Company Common Stock was listed
for trading on a national securities exchange, regardless of whether this day occurred during the applicable period.
(c) With
respect to the Advisor, the amount calculated as:
(i) the
Average VWAP per multiplied by the weighted average number of shares of Advisor Common Stock outstanding during such applicable period, on a fully-diluted basis
(assuming, for these purposes, that all Advisor Units and any other securities of the Advisor or any of its Subsidiaries convertible into Advisor Common Stock have been so converted), plus
(ii) the
average for the applicable period of the aggregate principal amount of the Advisor's consolidated indebtedness (including, if applicable, the Advisor's
proportionate share of debt of any entity that is not consolidated and excluding, if applicable, any of the Advisor's joint venture partners' proportionate share of consolidated debt) day, plus
(iii) the
average for the applicable period of the liquidation value of the Advisor's outstanding preferred equity outstanding.
"
Total Shareholder Return
," for any period with respect to any company with common stock listed on a national
securities exchange, means the sum, expressed as a percentage, of (A) the change in the common stock price during the applicable period, plus (B) the dividend yield paid during the
applicable period (determined by dividing dividends paid during the applicable period by the applicable company's common stock price at the beginning of the applicable period and including the value
of any dividends or distributions with respect to common stock not paid in cash valued in the reasonable discretion of the Advisor).
"
Uninvested Amount
" means, at the applicable time, (A) $45 million less (B) the aggregate dollar amount of Qualifying
Growth Investments, plus (C) 3.75% of the sale price of each asset sold after the date of this Amended Agreement; provided that in no event may the Uninvested Amount be greater than
$45 million or less than zero; provided further, that if the Company terminates this Amended Agreement pursuant to
Section 12.3
hereof,
the Uninvested Amount shall be zero.
"
Voting Control Event
" means (A) any "person" or "group" (within the meaning of Section 13(d) of the Exchange Act) other
than (1) the Company or any of its Subsidiaries, (2) any employee benefit plan of the Company or any of its Subsidiaries, (3) a company owned, directly or indirectly, by
stockholders of the Company in substantially the same proportions as the ownership of the Company,
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Table of Contents
or
(4) an underwriter temporarily holding securities pursuant to an offering of such securities, becoming the "beneficial owner" (as defined in Rule 13d-3 of the Exchange Act), directly
or indirectly, of securities of the Company representing 35% or more of the shares of voting stock of the Company then outstanding and the Company fails to enforce the Ownership Limit within five
business days of the person or group becoming the beneficial owner or a court of competent jurisdiction enjoins enforcement of the Ownership Limit; or (B) any person or group enters into an
agreement which if consummated would result in the person or group becoming the beneficial owner of securities representing 35% or more of the shares of the Company's voting stock and either:
(1) the Board of Directors waive the Ownership Limit; or (2) a court of competent jurisdiction enjoins enforcement of the Ownership Limit.
"
VWAP
" means the dollar volume-weighted average price for the securities in question on the national securities exchange on which it
trades during the period beginning at 9:30:01 a.m., New York City time (or such other time as the national securities exchange on which it trades publicly announces is the official open of
trading), and ending at 4:00:00 p.m., New York City time (or such other time as the national securities exchange on which it trades publicly announces is the official close of trading), as
reported by Bloomberg, L.P. through its "Volume at Price" function.
"
Working Capital Reserve
" means an amount equal to the lesser of 2% of the Company's Gross Asset Value as reported on the Company's
balance sheet for the most recently completed quarter and 10% of the Termination Fee, but in no case less than $10 million.
24.2
The following terms are defined elsewhere in this Amended Agreement, as indicated elsewhere herein as
follows:
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Actual Monthly Reimbursement
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5.4(b)
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Additional Services
|
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9.4(a)
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Advisor
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Preamble
|
Advisor Attorney
|
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2.3(c)
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Advisor Common Stock
|
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12.7
|
Advisor Indemnified Party
|
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8.3(a)
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Advisor Panel Member
|
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6.6
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Advisor Units
|
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12.7
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Advisors LLC
|
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Preamble
|
Amended Agreement
|
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Preamble
|
Annual Expense Budget
|
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5.4(a)
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Arbitration Panel
|
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6.6
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Ashford Inc.
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Preamble
|
Ashford Trust
|
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9.1(a)
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Audit Committee
|
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2.1(i)
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Base Fee
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6.1(a)
|
Budgeted Monthly Reimbursement
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5.4(a)
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Code
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2.1(i)
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Collateral
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12.4(d)
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Company
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Preamble
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Company Indemnified Party
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8.3(b)
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Company Panel Member
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6.6
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Confidential Information
|
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11.1
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Employee Costs
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5.3(a)
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Excess Returns
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6.2(b)(i)
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Exchange Act
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2.1(i)
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Existing Advisory Agreement
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Recitals
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A-41
Table of Contents
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Expenses
|
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8.3(a)
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FCCR
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6.2(g)
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FCCR Condition
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6.2(g)
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FF&E
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16.1
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Hotel Employees
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12.6
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Incentive Fee
|
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6.2(b)
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Incentive Fee Threshold
|
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6.2(a)
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Indemnified Party
|
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8.3(b)
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Initial Investment Guidelines
|
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9.3(a)
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Internal Audit Services
|
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2.1(w)
|
International Expenses
|
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5.2(a)
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Investment Company Act
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6.2(f)(ii)
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Investment Guidelines
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9.3(a)
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Issuer
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17.2(a)
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Key Money Assets
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16.1
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Key Money Clawback Amount
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16.3
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Key Money Incentive Fees
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16.1
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Key Money Investments
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16.1
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Key Money Return
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16.3
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Loan Documents
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2.1(g)
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Notice
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13
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Operating Partnership
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Preamble
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Outstanding Judgment
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12.4(b)
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Party
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Preamble
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Proxy Statement
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18(d)(ii)
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Registrable Securities
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17.2(a)
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Registration Statement
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17.2(a)
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Reimbursement Overpayment
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5.4(b)
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Reimbursement Underpayment
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5.4(b)
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REIT
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2.1(p)
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Remington
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2.5
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Required Amount
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12.4(b)(ii)
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RevPAR
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9.1(a)
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SEC
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2.1(i)
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Securities Act
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2.1(j)
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Selling Stockholder
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17.2(a)
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Spin-Off Company
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15
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Termination Payment Time
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12.5(a)
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25.
ENTIRE AGREEMENT. This Amended Agreement reflects the entire understanding of the Parties hereto with
respect to the subject matter hereof and supersedes and replaces all agreements between the Company and the Advisor with respect to the subject matter hereof including, without limitation, the
Existing Advisory Agreement and the Remington Letter Agreement.
26.
SEVERABILITY. Whenever possible each provision and term of this Amended Agreement will be interpreted in a
manner to be effective and valid, but if any provision or term of this Amended Agreement is held to be prohibited by law or invalid, then such provision or term will be ineffective only to the extent
of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provision or term or the remaining provisions or terms of this Amended Agreement.
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Table of Contents
27.
AMENDMENT, MODIFICATIONS AND WAIVER. This Amended Agreement hereto shall not be altered or otherwise amended
in any respect, except pursuant to an instrument in writing signed by the Parties hereto; provided, that any additions to or deletions from the Peer Group Members identified in
Exhibit A
shall may
be made by the Advisor, if it reasonably believes such addition or deletion is appropriate given the competitive environment
in the Company's industry at such time, which addition or deletion shall become effective upon the twentieth (20
th
) day after delivery to the Independent Directors, unless a majority of
the Independent Directors object, in writing, to such addition or deletion. The waiver by a party of a breach of any provisions of this Amended Agreement shall not operate or be construed as a waiver
of any subsequent breach.
28.
COUNTERPARTS. This Amended Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, and all of which shall constitute one and the same agreement.
(SIGNATURES
BEGIN ON NEXT PAGE)
*
* * * *
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Table of Contents
IN
WITNESS WHEREOF, the undersigned have executed this Amended Agreement as of the date first above written.
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ASHFORD PRIME:
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Ashford Hospitality Prime, Inc.
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By:
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/s/ RICHARD STOCKTON
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Name:
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Richard Stockton
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Title:
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Chief Executive Officer
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OPERATING PARTNERSHIP:
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Ashford Hospitality Prime Limited Partnership
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By:
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Ashford Prime OP General Partner LLC, its general partner
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By:
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/s/ RICHARD STOCKTON
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Name:
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Richard Stockton
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Title:
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Authorized Signatory
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TAXABLE REIT SUBSIDIARY:
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Ashford Hospitality Prime TRS Corporation
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By:
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/s/ DERIC S. EUBANKS
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Name:
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Deric S. Eubanks
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Title:
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President
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[Signature page to the Prime Advisory Agreement]
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Table of Contents
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ADVISOR:
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Ashford Hospitality Advisors LLC
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By:
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/s/ DAVID A. BROOKS
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Name:
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David A. Brooks
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Title:
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Chief Operating Officer
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Ashford Inc.
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By:
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/s/ DAVID A. BROOKS
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Name:
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David A. Brooks
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Title:
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Chief Operating Officer
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[Signature page to the Prime Advisory Agreement]
A-45
Table of Contents
Exhibit A
Peer Group Members
Chesapeake
Lodging Trust
DiamondRock Hospitality Co.
Lasalle Hotel Properties
Pebblebrook Hotel Trust
Sunstone Hotel Investors, Inc.
A-46
[DRAFT OF PROXY CARD]
ASHFORD HOSPITALITY PRIME, INC.
ATTN: MR. DAVID A BROOKS, SECRETARY
14185 DALLAS PARKWAY
SUITE 1100
DALLAS, TX 75254
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VOTE BY INTERNET www.proxyvote.com
Use the internet to transmit your voting instructions and for electronic delivery of information up until 11:59 p.m. Eastern Time the day before the cut-off date or meeting date. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form.
ELECTRONIC DELIVERY OF FUTURE PROXY MATERIALS
If you would like to reduce the costs incurred by our company in mailing proxy materials, you can consent to receiving all future proxy statements, proxy cards and annual reports electronically via e-mail or the Internet. To sign up for electronic delivery, please follow the instructions above to vote using to Internet and, when prompted, indicate that you agree to receive or access proxy materials electronically in future years.
VOTE BY PHONE 1-800-690-6903
Use any touch-tone telephone to transmit your voting instructions up until 11:59 p.m. Eastern Time the day before the cut-off date or meeting date. Have your proxy card in hand when you call and then follow the instructions.
VOTE BY MAIL
Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o MacKenzie Partners, 105 Madison Ave., New York, NY 10016.
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ASHFORD HOSPITALITY PRIME, INC.
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The Board of Directors unanimously recommends you vote FOR the following proposal:
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For
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Against
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Abstain
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Amendment Proposal
: To approve amendments to the Companys Amended Advisory Agreement.
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o
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o
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NOTE
: Such other business as may properly come before the meeting or any adjournment thereof.
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For address changes and/or comments, please check this box and write them on the blank where indicated
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Please indicate if you plan to attend this meeting: Yes
o
No
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Please sign exactly as your name(s) appear(s) herein. When signing as an attorney, executor, administrator or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name by authorized officer.
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Signature
[PLEASE SIGN WITHIN BOX]
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Date
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Signature (Joint Owners)
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Date
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Important Notice Regarding the Availability of Proxy Materials for the Special Meeting:
The Notice and Proxy Statement are available at www.proxyvote.com
ASHFORD HOSPITALITY PRIME, INC.
SPECIAL MEETING OF STOCKHOLDERS - [
·
], 2017
This Proxy is solicited by the Board of Directors of the Company
The undersigned, having received notice of the Proxy Statement for the Special Meeting therefor, and revoking all prior proxies, hereby appoint(s) Mr. David A. Brooks and Mr. Deric S. Eubanks (each of them individually and with full power of substitution), as proxies of the undersigned to attend the Special Meeting of Stockholders of ASHFORD HOSPITALITY PRIME, INC. (the
Company
) to be held on [
·
], 2017 and any adjourned sessions thereof, and there to vote and act upon the matters listed on the reverse side in respect of all shares of common stock of the Company which the undersigned would be entitled to vote or act upon, with all powers the undersigned would possess if personally present.
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED AS DIRECTED BY THE STOCKHOLDER(S). IF NO SUCH DIRECTIONS ARE MADE, THIS PROXY WILL BE VOTED FOR THE AMENDED ADVISORY AGREEMENT.
Address Changes/Comments: