Guaranty - Ashford Financial Corp. and Ashford Hospitality Trust LP
GUARANTY
THIS GUARANTY (this "GUARANTY"), is executed this __ day of ________,
2003 (the "EFFECTIVE DATE") by ASHFORD FINANCIAL CORPORATION, a Texas
corporation ("GUARANTOR"), whose address for notice hereunder is 14180 Dallas
Parkway, Suite 700, Dallas, Texas 75254, Attention: Legal Department, in favor
of ASHFORD HOSPITALITY TRUST LIMITED PARTNERSHIP, a Delaware limited partnership
("AHT"), whose address for notice hereunder is 14180 Dallas Parkway, Suite 700,
Dallas, Texas 75254, Attention: Legal Department. All capitalized terms not
otherwise defined herein shall have the same meaning as set forth in the Asset
Management Agreements (defined below).
WITNESSETH:
WHEREAS, Guarantor has entered into the following Asset Management and
Consulting Agreements as "Consultant" with each of the Managers identified below
(collectively, the "MANAGERS" and individually, a "MANAGER"):
(i) Asset Management and Consulting Agreement, dated as of May 15,
2003, with Remington Hospitality, Inc., as Manager;
(ii) Asset Management and Consulting Agreement, dated as of May 15,
2003, with Remington Suites Hotel Corporation, as Manager;
(iii) Asset Management and Consulting Agreement, dated as of May 15,
2003, with Remington Employers Corporation, as Manager;
(iv) Asset Management and Consulting Agreement, dated as of May 15,
2003, with Remington Employers Management Corporation, as
Manager;
(v) Asset Management and Consulting Agreement, dated as of May 15,
2003, with Remington Indianapolis Employers Corporation, as
Manager;
(vi) Asset Management and Consulting Agreement, dated as of May 15,
2003, with Milford Hotel Employers Corporation, as Manager;
(vii) Asset Management and Consulting Agreement, dated as of May 15,
2003, with Remington Orlando Management Corp., as Manager; and
(viii) Asset Management and Consulting Agreement, dated as of May 15,
2003, with Remington Ventura Employers Corporation, as Manager;
(the foregoing agreements collectively, the "ASSET MANAGEMENT AGREEMENTS" and
singularly, an "ASSET MANAGEMENT AGREEMENT");
WHEREAS, each Asset Management Agreement provides that the respective
Manager is obligated to pay Guarantor a Consulting Fee (as defined therein)
during the Term hereof;
WHEREAS, AHT is involved in the formation of a real estate investment
trust which will be an indirect general and a limited partner of AHT (the
"REIT") and the proposed initial public offering of such REIT's shares of common
stock;
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WHEREAS, Guarantor has assigned its rights and obligations under the
Asset Management Agreements (including, its obligation to provide the Services
(as defined therein) as Consultant and its rights to receive the Consulting
Fee), pursuant to the terms of an Option Agreement (the "OPTION AGREEMENT"), in
consideration of the issuance by AHT to Guarantor of certain partnership
interest units in AHT (herein called, the "AHT UNITS"); and
WHEREAS, in order to induce AHT to enter into the Option Agreement,
Guarantor has agreed to guarantee the full payment to AHT of a minimum amount in
total Consulting Fees under all of the Asset Management Agreements combined, in
the amount of the Minimum Guaranteed Fee (defined below), for each year during
the Guarantee Period (defined below), and it is a condition precedent to AHT's
performance under the Option Agreement that Guarantor execute this Guaranty in
favor of AHT.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Guarantor hereby agrees as
follows:
1. GUARANTEED OBLIGATIONS. For a period of five (5) years from and
after the Effective Date (the "GUARANTEE PERIOD"), Guarantor, absolutely and
unconditionally, guarantees the prompt and punctual payment to AHT of a minimum
of One Million Two Hundred and No/100 ($1,200,000) per year (a "GUARANTEE YEAR")
in total Consulting Fees (the "MINIMUM GUARANTEED FEE") under all of the Asset
Management Agreements combined (the "GUARANTEED OBLIGATIONS"), for a total of
Six Million Dollars ($6,000,000.00). The Minimum Guaranteed Fee shall be subject
to annual adjustment based on the Consumer Price Index, all Items for all Urban
Consumers, published by the Bureau of Labor Statistics of the United States
Department of Labor, as reported in the Wall Street Journal ("CPI").
2. NOTICE OF DEFICIENCY OF NON-PAYMENT. After the expiration of a
Guarantee Year, upon written notice by AHT to Guarantor that the total of the
Consulting Fees paid to AHT under the Asset Management Agreements for the
immediately preceding and expired Guarantee Year during the Guarantee Period was
less than the Minimum Guaranteed Fee as adjusted by CPI, Guarantor agrees to pay
to AHT, within thirty (30) days thereafter, the difference between the
Consulting Fees paid to AHT and the Minimum Guaranteed Fee as adjusted by CPI in
lawful currency of the United States of America. The notice from AHT shall
include a reasonably detailed accounting of all Consulting Fees paid to AHT
under the Asset Management Agreements and shall be certified by an authorized
officer of AHT.
3. PLEDGE OF AHT UNITS.
A. PLEDGE OF UNITS. Guarantor agrees to pledge the AHT Units
issued to it in connection with the Option Agreement, to AHT as
security for Guarantor's obligations under this Guaranty, pursuant to
the terms of a Pledge Agreement of Partnership Units ("PLEDGE
AGREEMENT") in form and substance reasonably satisfactory to AHT.
B. RELEASE OF UNITS. Upon expiration of a Guarantee Year and
provided that AHT has received, for each previous Guarantee Year, all
of the Consulting Fees as required under the Asset Management
Agreements, in an amount of at least the Minimum Guaranteed Fee, then
AHT shall release ("RELEASE") within thirty (30) days after the end of
such most recent Guarantee Year, subject to subsection 3(c) below, the
lesser of (i) 20% of the original number of the AHT Units pledged under
the Pledge Agreement (herein called, the "20% AHT UNITS") or (ii) the
Releasable Units (as defined below), if any, as determined in this
subsection below; provided, AHT has received a written notice and
determination ("REQUEST NOTICE") from Guarantor (certified as true and
correct by an authorized officer of Guarantor) requesting a release of
the applicable AHT Units and setting forth, in reasonable detail, the
determination of the Unit Value per AHT Unit as of the anniversary
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date of the Effective Date determined in accordance with the method
below. If the Request Notice provides that the total Unit Value of the
remaining AHT Units (after release of the 20% AHT Units) equals at
least the amount of the remaining Guaranteed Obligations under this
Guaranty, then, provided that AHT reasonably approves the Unit Value as
determined by Guarantor in the Request Notice which approval shall be
limited to the accuracy of the calculation, AHT shall release the AHT
Units as set forth in clause (i) hereinabove. If, however, the Request
Notice determines that the total Unit Value of the remaining AHT Units
(after release of the 20% AHT Units) is less than the remaining
Guaranteed Obligations under this Guaranty, then, provided that AHT
reasonably approves the Unit Value as determined by Guarantor in the
Request Notice, only so many of the 20% AHT Units shall be released so
that the total AHT Units remaining equals a total of at least the
remaining Guaranteed Obligations under this Guaranty (such AHT Units to
be released being collectively, the "RELEASABLE UNITS"). The failure of
Guarantor to deliver a Request Notice shall not release AHT from its
obligation to release the Releasable Units based on the Unit Value for
the applicable 90-day period (as described below). Notwithstanding
anything herein to the contrary, if the Units released after any
Guarantee Year were less than the 20% Units, the unreleased portion of
such 20% Units ("UNRELEASED UNITS") shall be released after the
following Guarantee Year with the Units then released under this
subparagraph 3(b), if any, provided that at the time of such release,
the total Unit Value of the remaining AHT Units (after any release
permitted under subparagraph 3(b)) equals at least the amount of the
Guaranteed Obligations under this Guaranty (subject to AHT's approval
of the Unit Value). Conversely, if it is determined any Audit
Adjustment Procedures (defined below) that AHT released too many Units
("EXCESS UNITS"), such Excess Units shall be credited to any Units to
be released upon the expiration of the then current Guarantee Year, and
if the then current Guarantee Year is the last Guarantee Year under
this Guaranty and it is determined that the total Unit Value of the
remaining unreleased AHT units is less than the remaining Guaranteed
Obligations under this Guaranty, then Guarantor agrees to return the
number of Excess Units to AHT as needed to secure the remaining
Guaranteed Obligations. The term "UNIT VALUE" as used herein shall mean
on a per unit basis, the average close price per share of the common
stock of the REIT for the 90-day period ending on the last trading day
of the most recently ended Guarantee Year. AHT agrees to respond to a
Request Notice delivered by Guarantor within a reasonable time period
and in no event less than 15 days after its receipt of same and to
reasonably cooperate with Guarantor in resolving any disagreements AHT
may have with regard to Guarantor's determination of the Unit Value of
the AHT Units.
C. ADJUSTMENT OF MINIMUM GUARANTEE FEE. Notwithstanding
anything contained herein to the contrary, if it is determined by AHT
that for the immediately preceding Guarantee Year AHT did not in fact
earn Consulting Fees in an amount of at least the Minimum Guaranteed
Fee (through audit procedures or otherwise, including without
limitation any management and incentive fee adjustments made pursuant
to provisions contained in the underlying management agreements
requiring a repayment of Consulting Fees to the underlying managers
("Audit Adjustment Procedures")), then, upon written notice from AHT
containing reasonably detailed supporting information, the Minimum
Guaranteed Amount for the then current Guaranty Year shall be deemed to
be a minimum amount of $1,200,000 plus the difference in what was paid
in Consulting Fees and the Minimum Guaranteed Fee for such Guaranty
Year.
D. REDEMPTION UPON DEFAULT. Pursuant to the terms of the
Pledge Agreement, upon a default under this Guaranty and/or the Pledge
Agreement that is not cured within any applicable grace or cure
periods, AHT shall have the immediate right to redeem (the "REDEMPTION
DATE") the number of AHT Units at the Unit Value per unit sufficient to
cure the then existing uncured default.
E. SUBSTITUTION OF COLLATERAL. Guarantor may from time to
time, upon the approval of AHT (such approval not to be unreasonably
withheld), substitute the Units with other collateral with
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reasonably equivalent value in the form of cash, securities, or letters
of credit, in form and of a nature reasonably acceptable to AHT (the
"SUBSTITUTE COLLATERAL"), and Guarantor agrees to execute such
documentation as deemed by AHT to be reasonably necessary, at the sole
cost of Guarantor, to evidence and perfect AHT's lien and security
interest in and to such Substitute Collateral.
4. CONTINUING GUARANTY. This Guaranty is a continuing guarantee of the
Guaranteed Obligations, whether now or hereafter arising, whether due and owing
or to become due and owing, howsoever created or arising or evidenced, whether
absolute or contingent.
5. COSTS AND EXPENSES. Guarantor agrees to pay to AHT all of AHT's
collection costs, including any additional amount for reasonable attorneys'
fees, if the Guaranteed Obligations are not paid by Guarantor when due as
required herein or if this Guaranty is enforced by suit or through bankruptcy
court or through any judicial proceedings whatsoever.
6. ABSOLUTE AND UNCONDITIONAL NATURE. This is an absolute and
unconditional guarantee of payment, and not of collection, by Guarantor.
Guarantor waives any right to require that (a) any action be brought against any
Manager or any other person or entity, (b) AHT have any Manager joined with the
Guarantor of all or part of the Guaranteed Obligations in any suit arising out
of this Guaranty and/or the Guaranteed Obligations, or (c) AHT pursue any other
remedy available to AHT whatsoever. AHT shall not be required to mitigate
damages or take any action to reduce, collect or enforce the Guaranteed
Obligations. Guarantor waives any defense arising by reason of any disability,
lack of corporate authority or power, or other defense of, or which may be made,
by any Manager or Guarantor of the Guaranteed Obligations, and shall remain
liable hereon regardless of whether any Manager or Guarantor be found not liable
thereon for any reason. Should AHT seek to enforce the obligations of Guarantor
by action in any court, Guarantor waives any necessity, substantive or
procedural, that a judgment be previously rendered against any Manager or any
other person or entity, or that any Manager or any other person or entity be
joined in such cause, or that a separate action be brought against any Manager
or any other person or entity. The obligations of Guarantor hereunder are
several from those of any Manager or any other person or entity (including
without limitation any other surety for any Manager), and are primary
obligations for which Guarantor is a principal obligor. All waivers herein
contained shall be without prejudice to AHT at its option to proceed against any
or all of the Managers or any other person or entity, whether by separate action
or by joinder.
7. RIGHT TO SUE. Guarantor agrees that suit may be brought against
Managers, or any Manager, and Guarantor, jointly and severally, and against one
or more of them, and without impairing the rights of AHT, its successors or
assigns, against the other; nor shall AHT be required to join any Manager or any
other liable party in a suit against Guarantor. AHT may release any or all of
the Managers or Guarantor or settle with such persons or entities as AHT deems
fit without releasing or impairing the rights of AHT to demand and collect the
balance of such indebtedness from the other remaining parties not so released.
8. WAIVER OF RIGHTS. Guarantor hereby consents and agrees that
Guarantor's obligations under this Guaranty shall not be released, diminished,
impaired, reduced or adversely affected by any of the following, and waives any
rights (including, without limitation, rights to notice) which Guarantor might
otherwise have as a result of or in connection with any of the following:
a. Any renewal, extension, modification, increase, decrease,
alteration or rearrangement of all or any part of the Guaranteed
Obligations or any instrument executed in connection therewith, or any
contract or understanding between Managers, or any Manager, and AHT, or
any other person or entity, pertaining to the Guaranteed Obligations;
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b. Any adjustment, indulgence, forbearance or compromise that
might be granted or given by AHT to any Manager;
c. The insolvency, bankruptcy arrangement, adjustment,
composition, liquidation, disability, dissolution, or lack of power of
any Manager or Guarantor or any other party at any time liable for the
payment of all or part of the Guaranteed Obligations; or any
dissolution of any Manager or Guarantor, or any sale, lease or transfer
of any or all of the assets of any Manager or Guarantor, or any changes
in the shareholders, partners, or members of any Manager or Guarantor;
or any reorganization of any Manager or Guarantor;
d. The invalidity, illegality or unenforceability of all or
any part of the Guaranteed Obligations, or any document or agreement
executed in connection with the Guaranteed Obligations, for any reason
whatsoever including, without limitation, (i) the fact that the
Guaranteed Obligations, or any part thereof, exceed the amount
permitted by law, (ii) the act of creating the Guaranteed Obligations
or any part thereof is ultra vires, (iii) the officers or
representatives executing the documents or otherwise creating the
Guaranteed Obligations acted in excess of their authority, (iv) the
Guaranteed Obligations violate applicable usury laws, (v) a valid
defense, claim or offset of any Manager (whether at law, in equity or
by agreement), which renders the Guaranteed Obligations wholly or
partially uncollectible from such Manager, (vi) the creation,
performance or repayment of the Guaranteed Obligations (or the
execution, delivery and performance of any document or instrument
representing part of the Guaranteed Obligations, executed in connection
with the Guaranteed Obligations, or given to secure the repayment of
the Guaranteed Obligations), is illegal, uncollectible, legally
impossible or unenforceable, or (vii) the documents or instruments
pertaining to the Guaranteed Obligations have been forged or otherwise
are irregular or not genuine or authentic;
e. Any full or partial release of the liability of any Manager
for the Guaranteed Obligations or any part thereof, or of Guarantor, or
of any other person or entity now or hereafter liable, whether directly
or indirectly, jointly, severally, or jointly and severally, to pay,
perform, guarantee or assure the payment of the Guaranteed Obligations
or any part thereof, it being recognized, acknowledged and agreed by
Guarantor that Guarantor may be required to pay the Guaranteed
Obligations in full without assistance or support of any other person
or entity, and Guarantor has not been induced to enter into this
Guaranty on the basis of a contemplation, belief, understanding or
agreement that parties other than Managers will be liable to pay the
Guaranteed Obligations or that AHT will look to other parties to pay
the Guaranteed Obligations;
f. The taking or accepting of any other security, collateral
or guaranty, or other assurance of payment, for all or any part of the
Guaranteed Obligations;
g. Any release, surrender, exchange, subordination,
deterioration, waste, loss or impairment (including without limitation
negligent, willful, unreasonable or unjustifiable impairment) of any
collateral, property or security, at any time existing in connection
with, or assuring or securing payment of, all or any part of the
Guaranteed Obligations;
h. The failure of AHT or any other person or entity to
exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of
such collateral, property or security;
i. The fact that any collateral, security, security interest
or lien contemplated or intended to be given, created or granted as
security for the repayment of the Guaranteed Obligations shall not be
properly perfected or created, or shall prove to be unenforceable or
subordinate to any
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other security interest or lien, it being recognized and agreed by
Guarantor that Guarantor is not entering into this Guaranty in reliance
on, or in contemplation of the benefits of, the validity,
enforceability, collectibility or value of any collateral for the
Guaranteed Obligations;
j. Any payment by any Manager to AHT is held to constitute a
preference under the bankruptcy laws, or for any reason AHT is required
to refund such payment or pay such amount to such Manager or someone
else;
k. Any other action taken or omitted to be taken with respect
to the Guaranteed Obligations, or any security or collateral therefor,
whether or not such action or omission prejudices Guarantor or
increases the likelihood that Guarantor will be required to pay the
Guaranteed Obligations pursuant to the terms hereof; it being the
unambiguous and unequivocal intention of Guarantor that Guarantor shall
be obligated to pay the Guaranteed Obligations when due,
notwithstanding any occurrence, circumstance, event, action, or
omission whatsoever, whether contemplated or uncontemplated, and
whether or not otherwise or particularly described herein, except for
the full and final payment and satisfaction of the Guaranteed
Obligations; or
l. The fact that all or any of the Guaranteed Obligations
cease to exist by operation of law including, without limitation, by
way of a discharge, limitation or tolling thereof under applicable
bankruptcy laws.
9. MISCELLANEOUS.
a. In the event any payment by any Manager or Guarantor of all
or part of the Guaranteed Obligations to AHT is held to be a preference
under the bankruptcy laws, or if for any other reason AHT is required
to refund such payment or pay the amount thereof to any other party,
such payment by such Manager or by Guarantor to AHT shall not
constitute a release of Guarantor from any liability respecting payment
of the Guaranteed Obligations, and Guarantor agrees to pay such amount
to AHT upon demand.
b. Any notice, request or other communication required or
permitted to be given hereunder shall be given in writing by delivering
the same against receipt therefor or by depositing the same in the
United States Postal Service, postage prepaid, registered or certified
mail, return receipt requested, addressed to the respective parties at
the address shown above or to such other address as the intended
recipient may have specified in a prior written notice received by the
sender (and if so given, shall be deemed given when mailed).
c. This Guaranty shall be binding upon Guarantor, its
successors and assigns and shall inure to the benefit of, and be
enforceable by AHT. Guarantor shall not assign or delegate its
obligations hereunder without the prior written consent of AHT.
d. Guarantor does hereby acknowledge that it has investigated
fully the benefits and advantages which will be derived by Guarantor
from execution of this Guaranty, and the Board of Directors, and
officers, as the case may be, of Guarantor have decided that, and
Guarantor does hereby acknowledge, warrant and represent that, a direct
or an indirect benefit will accrue to Guarantor by reason of execution
of this Guaranty.
e. Guarantor represents and warrants that: (a) it is duly
organized, validly existing and in good standing under the laws of the
state of its incorporation, (b) it has the power and authority to
execute, deliver and perform its obligations under this Guaranty, (c)
the execution, delivery and performance by Guarantor of this Guaranty
has been duly authorized by all requisite action and does
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not violate or conflict with, breach, or constitute a default under, or
require consent under, the organization documents of Guarantor or any
agreement or document binding or covering Guarantor or any of its
property, and (d) this Guaranty constitutes a legal, valid and binding
obligation of Guarantor, enforceable against Guarantor in accordance
with its terms.
F. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE UNITED STATES OF AMERICA
AND THE STATE OF TEXAS. DALLAS COUNTY, TEXAS SHALL BE THE PROPER PLACE
OF VENUE TO ENFORCE PAYMENT OR PERFORMANCE UNDER THIS GUARANTY.
GUARANTOR IRREVOCABLY AGREES THAT ANY LEGAL PROCEEDING ARISING OUT OF
OR IN CONNECTION WITH THIS GUARANTY SHALL BE BROUGHT IN THE STATE
DISTRICT COURTS OF DALLAS, COUNTY, TEXAS, OR IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT IN WHICH SUCH COUNTY IS LOCATED.
g. Upon any change by Guarantor of its address, name or
identity, Guarantor will notify AHT of such change in writing within a
reasonable period of time after such change, but in no event later than
sixty (60) days from such change.
h. No delay on the part of AHT in exercising any right
hereunder or failure to exercise the same shall operate as a waiver of
such right, nor shall any single or partial exercise of any right,
power or privilege bar any further or subsequent exercise of the same
or any other right, power or privilege.
i. This Guaranty shall not be changed orally but shall be
changed only by agreement in writing signed by the person against whom
enforcement of such change is sought.
j. The masculine and neuter genders used herein shall each
include the masculine, feminine and neuter genders and the singular
number used herein shall include the plural number. The words "person"
and "entity" shall include without limitation individuals,
corporations, partnerships, joint ventures, associations, joint stock
companies, trusts, unincorporated organizations, and governments and
any agency or political subdivision thereof.
k. If any provision of this Guaranty is determined to be
invalid by any court of competent jurisdiction or to be in violation of
any applicable law, such invalidity or violation shall have no effect
on any other provisions of this Guaranty (which shall remain valid and
binding and in full force and effect) or in any other jurisdiction, and
to that end the provisions of this Guaranty shall be considered
severable.
EXECUTED by the undersigned Guarantor on the Effective Date set forth
above.
ASHFORD FINANCIAL CORPORATION,
a Texas corporation
By:
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Printed Name:
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Its:
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ACCEPTED AND AGREED
TO BY AHT THIS ________
DAY OF ____________, 2003:
ASHFORD HOSPITALITY TRUST
LIMITED PARTNERSHIP
By: Ashford OP General Partner LLC,
as general partner
By:
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Name:
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Title:
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