Registration Rights Agreement - Ashford Hospitality Trust Inc.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of _________, 2003, is
entered into by and between Ashford Hospitality Trust, Inc., a Maryland
corporation (the "Company"), holders of common partnership units in Ashford
Hospitality Trust, Inc., a Maryland corporation (the "Operating Partnership")
whose names are set forth on the signature pages hereto (each a "Unit Holder"
and collectively, the "Unit Holders") and holders of restricted shares of the
Company's common stock whose names are set forth on the signature pages hereto
(each a "Restricted Stock Holder" and collectively, the "Restricted Stock
Holders").
RECITALS
WHEREAS, in connection with the initial public offering of shares of
the Company's common stock, par value $0.01 per share (the "Common Stock"), the
Company, the Operating Partnership, the Unit Holders and the Restricted Stock
Holders will engage in certain formation transactions (the "Formation
Transactions") whereby:
(i) the Unit Holders will contribute to the Operating
Partnership their respective interests in certain hotel properties,
asset management and consulting agreements and other assets (the
"Initial Contributed Assets") in exchange common partnership units ("OP
Units") in the Operating Partnership;
(ii) Remington Long Island Hotel, L.P., a Restricted Stock
Holder, will convey to the Operating Partnership its interests in a
hotel property and other assets (the "Initial Conveyed Assets") in
exchange for Common Stock;
(iii) Archie and Montgomery J. Bennett, each a Restricted
Stock Holder, will acquire shares of Common Stock in exchange for cash
in a privately negotiated transaction; and
(iv) Friedman Billings Ramsey, a Restricted Stock Holder, will
acquire shares of Common Stock for services performed in connection
with the Initial Public Offering (as defined below);
WHEREAS, pursuant to the Partnership Agreement (as defined below), OP
Units owned by the Unit Holders will be redeemable for cash or exchangeable for
shares of Common Stock of the Company upon the terms and subject to the
conditions contained in the Partnership Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. In addition to the definitions set forth
above, the following terms, as used herein, have the following meanings:
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under common control with such Person. For the
purposes of this definition, "control" when used with respect to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agreement" means this Registration Rights Agreement, as it may be
amended, supplemented or restated from time to time.
"Articles of Incorporation" means the Articles of Amendment and
Restatement of the Company as filed with the Secretary of State of the State of
Maryland on July __, 2003, as the same may be amended, modified or restated from
time to time.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in Dallas, Texas
are authorized or required by law, regulation or executive order to close.
"Commission" means the Securities and Exchange Commission.
"Demand Registration" means a Demand Registration as defined in Section
2.2.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
and the rules and regulations promulgated thereunder.
"Exchangeable OP Units" means OP Units which may be redeemable for cash
or, at the sole and absolute discretion of the Company, exchangeable for Common
Stock pursuant to Section 7.4 of the Partnership Agreement (without regard to
any limitations on the exercise of such exchange right as a result of the
Ownership Limit Provisions).
"Holder" means any Initial Holder who is the record or beneficial owner
of any Registrable Security or any assignee or transferee of such Registrable
Security (including assignments or transfers of Registrable Securities to such
assignees or transferees as a result of the foreclosure on any loans secured by
such Registrable Securities) to the extent (x) permitted under the Partnership
Agreement and (y) such assignee or transferee agrees in writing to be bound by
all the provisions hereof, unless such Registrable Security is acquired in a
public distribution pursuant to a registration statement under the Securities
Act or pursuant to transactions exempt from registration under the Securities
Act where securities sold in such transaction may be resold without subsequent
registration under the Securities Act.
"Immediate Family" of any individual means such individual's estate and
heirs or current spouse, or former spouse, parents, parents-in-law, children
(whether natural or adoptive or by
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marriage), siblings and grandchildren and any trust or estate, all of the
beneficiaries of which consist of such individual or any of the foregoing.
"Initial Holder" means (i) any Unit Holder, (ii) any Restricted Stock
Holder, (iii) any partner, member or stockholder of any Unit Holder or
Restricted Stock Holder, (iv) any Affiliate of any such partner, member or
stockholder, and (v) the Immediate Family of any of the foregoing.
"Initial Public Offering" means the offering of the Company's Common
Stock pursuant to the Form S-11 Registration Statement (No. 333-105277) filed by
the Company with the Commission under the Securities Act.
"Ownership Limit Provisions" mean the various provisions of the
Company's Charter set forth in ARTICLE VI thereof restricting the ownership of
Common Stock by Persons to specified percentages of the outstanding Common
Stock.
"Partnership Agreement" means the Agreement of Limited Partnership of
the Operating Partnership dated as of _________, 2003, as the same may be
amended, modified or restated from time to time.
"Person" means an individual or a corporation, partnership, limited
liability company, association, trust, or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Piggy-Back Registration" means a Piggy-Back Registration as defined in
Section 2.3.
"Registrable Securities" means shares of Common Stock of the Company at
any time owned, either of record or beneficially, by any Holder and issued
either in connection with the Initial Public Offering or the Formation
Transactions or upon exchange of Exchangeable OP Units received in the Formation
Transactions and any additional Common Stock issued as a dividend, distribution
or exchange for, or in respect of such shares until
(i) a registration statement covering such shares has been
declared effective by the Commission and such shares have been disposed
of pursuant to such effective registration statement;
(ii) such shares are sold under circumstances in which all of
the applicable conditions of Rule 144 (or any similar provisions then
in force) under the Securities Act are met or under which such shares
may be sold pursuant to Rule 144(k);
(iii) such shares held by such Person may be sold pursuant to
Rule 144 under the Securities Act and could be sold in one transaction
in accordance with the volume limitations contained in Rule
144(e)(1)(i) under the Securities Act; or
(iv) such shares have been otherwise transferred in a
transaction that would constitute a sale thereof under the Securities
Act, the Company has delivered a new certificate or other evidence of
ownership for such shares not
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bearing the Securities Act restricted stock legend and such shares may
be resold without subsequent registration under the Securities Act;
provided, however, that "Registrable Securities" for purposes of the
indemnification obligations contained in Sections 2.7 and 2.8 shall mean all
shares that are registered on the applicable Shelf Registration, Demand
Registration or Piggy-Back Registration, notwithstanding that such shares may
not otherwise be "Registrable Securities" by operation of clause (iii) above.
"Securities Act" means the Securities Act of 1933, as amended and the
rules and regulations promulgated thereunder.
"Selling Holder" means a Holder who is selling Registrable Securities
pursuant to a registration statement under the Securities Act.
"Shelf Registration Statement" means a Shelf Registration statement as
defined in Section 2.1.
"Underwriter" means a securities dealer who purchases any Registrable
Securities as principal and not as part of such dealer's market-making
activities.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 SHELF REGISTRATION. Commencing on or after one year after
the consummation date of the Initial Public Offering, the Company shall prepare
and file a "shelf" registration statement with respect to the resale of the
shares of Common Stock issued to the Restricted Stock Holders in connection with
the Initial Public Offering or the Formation Transactions and the issuance and
the resale of the shares of Common Stock issuable upon the exchange of
Exchangeable OP Units issued to the Unit Holders in the Formation Transactions
and the resale of any other Registrable Securities on an appropriate form for an
offering to be made on a continuous basis pursuant to Rule 415 under the
Securities Act (the "Shelf Registration Statement") and shall use its best
efforts to cause the Shelf Registration Statement to be declared effective on or
as soon as practicable thereafter, and to keep such Shelf Registration Statement
continuously effective for a period ending when all shares of Common Stock
covered by the Shelf Registration Statement are no longer Registrable
Securities. In the event that the Company fails to file, or if filed fails to
maintain the effectiveness of, a Shelf Registration Statement, Holders of
Registrable Securities may make a written request for a Demand Registration (as
defined below) pursuant to Section 2.2 herein or participate in a Piggy Back
Registration (as defined below) pursuant to Section 2.3 herein; provided,
further, that if and so long as a Shelf Registration Statement is on file and
effective, then the Company shall have no obligation to effect a Demand
Registration or allow participation in a Piggy Back Registration.
SECTION 2.2 DEMAND REGISTRATION.
(a) Request for Registration. Subject to Section 2.1 hereof, commencing
on or after the date which is one year after the consummation date of the
Initial Public Offering, Holders of Registrable Securities may make a written
request for registration under the Securities Act of all or part of its or their
Registrable Securities (a "Demand Registration"); provided, that the
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Company shall not be obligated to effect more than one Demand Registration in
any twelve month period and not more than two such Demand Registrations in
total; and provided, further, that the Holders making such written request
number shall propose the sale of at least 100,000 shares of Registrable
Securities (such number to be adjusted successively in the event the Company
effects any stock split, stock consideration or recapitalization after the date
hereof). Any such request will specify the number of shares of Registrable
Securities proposed to be sold and will also specify the intended method of
disposition thereof. Within ten (10) days after receipt of such request, the
Company will give written notice of such registration request to all other
Holders of the Registrable Securities and include in such registration all such
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within twenty (20) Business Days after the
receipt by the applicable Holder of the Company's notice. Each such request will
also specify the number of shares of Registrable Securities to be registered and
the intended method of disposition thereof. Unless the Holder or Holders of a
majority of the Registrable Securities to be registered in such Demand
Registration shall consent in writing, no other party, including the Company
(but excluding another Holder of a Registrable Security), shall be permitted to
offer securities under any such Demand Registration.
(b) Effective Registration. A registration will not count as a Demand
Registration until it has become effective and has remained effective and
available for at least 180 days.
(c) Selling Holders Become Party to Agreement. Each Holder acknowledges
that by asserting or participating in its registration rights pursuant to this
Article II, he or she may become a Selling Holder and thereby will be deemed a
party to this Agreement and will be bound by each of its terms.
(d) Priority on Demand Registrations. If the Holders of a majority of
shares of the Registrable Securities to be registered in a Demand Registration
so elect by written notice to the Company, the offering of such Registrable
Securities pursuant to such Demand Registration shall be in the form of an
underwritten offering. The Company shall select the book-running managing
Underwriter in connection with any such Demand Registration; provided that such
managing Underwriter must be reasonably satisfactory to the Holders of a
majority of the shares of the Registrable Securities. The Company may select any
additional investment banks and managers to be used in connection with the
offering; provided that such additional investment bankers and managers must be
reasonably satisfactory to a majority of the Holders making such Demand
Registration. To the extent 10% or more of the Registrable Securities so
requested to be registered are excluded from the offering in accordance with
Section 2.4, the Holders of such Registrable Securities shall have the right to
one additional Demand Registration under this Section in such twelve-month
period with respect to such Registrable Securities.
SECTION 2.3 PIGGY-BACK REGISTRATION. Subject to Section 2.1 hereof, if
the Company proposes to file a registration statement under the Securities Act
with respect to an underwritten equity offering by the Company for its own
account or for the account of any of its respective securityholders of any class
of security (other than (i) any registration statement filed by the Company
under the Securities Act relating to an offering of Common Stock for its own
account as a result of the exercise of the exchange rights set forth in Section
7.4 of the Partnership Agreement, (ii) any registration statement filed in
connection with a demand registration other than a Demand Registration under
this Agreement or (iii) a registration statement on Form S-4 or
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S-8 (or any substitute form that may be adopted by the Commission) or filed in
connection with an exchange offer or offering of securities solely to the
Company's existing securityholders), then the Company shall give written notice
of such proposed filing to the Holders of Registrable Securities as soon as
practicable (but in no event less than ten (10) days before the anticipated
filing date), and such notice shall offer such Holders the opportunity to
register such number of shares of Registrable Securities as each such Holder may
request (a "Piggy-Back Registration"). The Company shall use commercially
reasonable efforts to cause the managing Underwriter or Underwriters of a
proposed underwritten offering to permit the Registrable Securities requested to
be included in a Piggy-Back Registration to be included on the same terms and
conditions as any similar securities of the Company included therein.
SECTION 2.4 REDUCTION OF OFFERING. Notwithstanding anything contained
herein, if the managing Underwriter or Underwriters of an offering described in
Section 2.2 or 2.3 deliver a written opinion to the Company and the Holders of
the Registrable Securities included in such offering that (i) the size of the
offering that the Holders, the Company and such other persons intend to make or
(ii) the kind of securities that the Holders, the Company and/or any other
Persons intend to include in such offering are such that the success of the
offering would be materially and adversely affected by inclusion of the
Registrable Securities requested to be included, then
(A) if the size of the offering is the basis of such
Underwriter's opinion, the amount of securities to be offered for the
accounts of Holders shall be reduced pro rata (according to the number
of Registrable Securities proposed for registration) to the extent
necessary to reduce the total amount of securities to be included in
such offering to the amount recommended by such managing Underwriter or
Underwriters; provided that, in the case of a Piggy-Back Registration,
if securities are being offered for the account of other Persons as
well as the Company, then with respect to the Registrable Securities
intended to be offered by Holders, the proportion by which the amount
of such class of securities intended to be offered by Holders is
reduced shall not exceed the proportion by which the amount of such
class of securities intended to be offered by such other Persons is
reduced; and
(B) if the combination of securities to be offered is the
basis of such Underwriter's opinion, (x) the Registrable Securities to
be included in such offering shall be reduced as described in clause
(A) above (subject to the proviso in clause (A)) or (y) if the actions
described in clause (x) would, in the judgment of the managing
Underwriter, be insufficient to substantially eliminate the adverse
effect that inclusion of the Registrable Securities requested to be
included would have on such offering, such Registrable Securities will
be excluded from such offering.
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SECTION 2.5 REGISTRATION PROCEDURES; FILINGS; INFORMATION. In
connection with any Shelf Registration Statement under Section 2.1 or whenever
Holders request that any Registrable Securities be registered pursuant to
Section 2.2 hereof, the Company will use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof as quickly as practicable, and in
connection with any such request:
(a) The Company will as expeditiously as possible prepare and
file with the Commission a registration statement on any form for which
the Company then qualifies or which counsel for the Company shall deem
appropriate and which form shall be available for the sale of the
Registrable Securities to be registered thereunder in accordance with
the intended method of distribution thereof, and use its best efforts
to cause such filed registration statement to become and remain
effective for a period of not less than 270 days; provided that if the
Company shall furnish to the Holders making a request pursuant to
Section 2.2 a certificate signed by either its Chairman, Chief
Executive Officer or President stating that in his or her good faith
judgment it would be significantly disadvantageous to the Company or
its shareholders for such a registration statement to be filed as
expeditiously as possible, the Company shall have a period of not more
than 180 days within which to file such registration statement measured
from the date of receipt of the request in accordance with Section 2.2.
(b) The Company will, if requested, prior to filing a
registration statement or prospectus or any amendment or supplement
thereto, furnish to each Selling Holder and each Underwriter, if any,
of the Registrable Securities covered by such registration statement
copies of such registration statement as proposed to be filed, and
thereafter furnish to such Selling Holder and Underwriter, if any, such
number of conformed copies of such registration statement, each
amendment and supplement thereto (in each case including all exhibits
thereto and documents incorporated by reference therein), the
prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such Selling Holder
or Underwriter may reasonably request to facilitate the disposition of
the Registrable Securities owned by such Selling Holder.
(c) After the filing of the registration statement, the
Company will promptly notify each Selling Holder of Registrable
Securities covered by such registration statement of any stop order
issued or threatened by the Commission and take all reasonable actions
required to prevent the entry of such stop order or to remove it if
entered.
(d) The Company will use its best efforts to (i) register or
qualify the Registrable Securities under such other securities or blue
sky laws of such jurisdictions in the United States (where an exemption
does not apply) as any Selling Holder or managing Underwriter or
Underwriters, if any, reasonably (in light of such Selling Holder's
intended plan of distribution) requests and (ii) cause such Registrable
Securities to be registered with or approved by such other governmental
agencies or authorities as may be necessary by virtue of the business
and operations of the Company and do any and all other acts and things
that may be reasonably necessary or advisable to enable such Selling
Holder to consummate the disposition of the Registrable Securities
owned by
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such Selling Holder; provided that the Company will not be required to
(A) qualify generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this paragraph (d), (B)
subject itself to taxation in any such jurisdiction or (C) consent to
general service of process in any such jurisdiction.
(e) The Company will immediately notify each Selling Holder of
such Registrable Securities, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
occurrence of an event requiring the preparation of a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading and promptly make available to each Selling Holder
any such supplement or amendment.
(f) The Company will enter into customary agreements
(including an underwriting agreement, if any, in customary form) and
take such other actions as are reasonably required to expedite or
facilitate the disposition of such Registrable Securities.
(g) The Company will make available for inspection by any
Selling Holder of such Registrable Securities, any Underwriter
participating in any disposition pursuant to such registration
statement and any attorney, accountant or other professional retained
by any such Selling Holder or Underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "Records")
as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's officers, directors
and employees to supply all information reasonably requested by any
Inspectors in connection with such registration statement. Records
which the Company determines, in good faith, to be confidential and
which it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such Records
is necessary to avoid or correct a misstatement or omission in such
registration statement or (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction. Each Selling Holder of such Registrable Securities agrees
that information obtained by it as a result of such inspections shall
be deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Company unless and until
such is made generally available to the public. Each Selling Holder of
such Registrable Securities further agrees that it will, upon learning
that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at its
expense, to undertake appropriate action to prevent disclosure of the
Records deemed confidential.
(h) The Company will furnish to each Selling Holder and to
each Underwriter, if any, a signed counterpart, addressed to such
Selling Holder or Underwriter, of (i) an opinion or opinions of counsel
to the Company and (ii) if eligible under SAS 100, a comfort letter or
comfort letters from the Company's independent public accountants, each
in customary form and covering such matters of the type customarily
covered by opinions or comfort letters, as the case may be, as the
Holders of a majority of the
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Registrable Securities included in such offering or the managing
Underwriter or Underwriters therefor reasonably requests.
(i) The Company will otherwise comply with all applicable
rules and regulations of the Commission, and make available to its
securityholders, as soon as reasonably practicable, an earnings
statement covering a period of 12 months, beginning within three months
after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated thereunder
(or any successor rule or regulation hereafter adopted by the
Commission).
(j) The Company will use its best efforts to cause all such
Registrable Securities to be listed on each securities exchange on
which similar securities issued by the Company are then listed.
The Company may require each Selling Holder of Registrable Securities
to promptly furnish in writing to the Company such information regarding such
Selling Holder, the Registrable Securities held by it and the intended method of
distribution of the Registrable Securities as the Company may from time to time
reasonably request and such other information as may be legally required in
connection with such registration.
Each Selling Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 2.5(e)
hereof, such Selling Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Selling Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 2.5(e) hereof, and,
if so directed by the Company, such Selling Holder will deliver to the Company
all copies, other than permanent file copies then in such Selling Holder's
possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice. Each Selling Holder of Registrable
Securities agrees that it will immediately notify the Company at any time when a
prospectus relating to the registration of such Registrable Securities is
required to be delivered under the Securities Act of the happening of an event
as a result of which information previously furnished by such Selling Holder to
the Company in writing expressly for inclusion in such prospectus contains an
untrue statement of a material fact or omits to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances in which they were made. In the event the Company
shall give such notice, the Company shall extend the period during which such
registration statement shall be maintained effective (including the period
referred to in Section 2.5(a) hereof) by the number of days during the period
from and including the date of the giving of notice pursuant to Section 2.5(e)
hereof to the date when the Company shall make available to the Selling Holders
of Registrable Securities covered by such registration statement a prospectus
supplemented or amended to conform with the requirements of Section 2.5(e)
hereof.
SECTION 2.6 REGISTRATION EXPENSES. In connection with any registration
statement required to be filed hereunder, the Company shall pay the following
registration expenses incurred in connection with the registration hereunder
(the "Registration Expenses"): (i) all registration and filing fees, (ii) fees
and expenses of compliance with securities or blue sky laws
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(including reasonable fees and disbursements of counsel in connection with blue
sky qualifications of the Registrable Securities), (iii) printing expenses, (iv)
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), (v) the fees
and expenses incurred in connection with the listing of the Registrable
Securities, (vi) reasonable fees and disbursements of counsel for the Company
and customary fees and expenses for independent certified public accountants
retained by the Company (including the expenses of any comfort letters or costs
associated with the delivery by independent certified public accountants of a
comfort letter or comfort letters requested pursuant to Section 2.5(h) hereof),
and (vii) the reasonable fees and expenses of any special experts retained by
the Company in connection with such registration. The Company shall have no
obligation to pay any underwriting fees, discounts or commissions attributable
to the sale of Registrable Securities, or any out-of-pocket expenses of the
Holders (or the agents who manage their accounts) or any transfer taxes relating
to the registration or sale of the Registrable Securities.
SECTION 2.7 INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Selling Holder of Registrable Securities, its
officers, directors and agents, and each Person, if any, who controls such
Selling Holder within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus relating to
the Registrable Securities (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by such Selling Holder or on
such Selling Holder's behalf expressly for inclusion therein. The Company also
agrees to indemnify any Underwriters of the Registrable Securities, their
officers and directors and each Person who controls such underwriters within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act on
substantially the same basis as that of the indemnification of the Selling
Holders provided in this Section 2.7, provided that the foregoing indemnity with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter of the Registrable Securities from whom the person asserting any
such losses, claims, damages or liabilities purchased the Registrable Securities
which are the subject thereof if such person did not receive a copy of the
prospectus (or the prospectus as supplemented) at or prior to the confirmation
of the sale of such Registrable Securities to such person in any case where such
delivery is required by the Securities Act and the untrue statement or omission
of a material fact contained in such preliminary prospectus was corrected in the
prospectus (or the prospectus as supplemented). The indemnity provided for in
this Section 2.8 shall remain in full force and effect regardless of any
investigation made by or on behalf of any Selling Holder.
SECTION 2.8 INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES.
Each Selling Holder agrees, severally but not jointly, to indemnify and
hold harmless the Company, its officers, directors and agents and each Person,
if any, who controls the Company
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within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Selling Holder, but only with respect to information relating to such
Selling Holder furnished in writing by such Selling Holder or on such Selling
Holder's behalf expressly for use in any registration statement or prospectus
relating to the Registrable Securities, or any amendment or supplement thereto,
or any preliminary prospectus. In case any action or proceeding shall be brought
against the Company or its officers, directors or agents or any such controlling
person, in respect of which indemnity may be sought against such Selling Holder,
such Selling Holder shall have the rights and duties given to the Company, and
the Company or its officers, directors or agents or such controlling person
shall have the rights and duties given to such Selling Holder, by Section 2.7.
Each Selling Holder also agrees to indemnify and hold harmless Underwriters of
the Registrable Securities, their officers and directors and each Person who
controls such Underwriters within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act on substantially the same basis as that of
the indemnification of the Company provided in this Section 2.8. The liability
of any Selling Holder pursuant to this Section 2.8 may, in no event, exceed the
net proceeds received by such Selling Holder from sales of Registrable
Securities giving rise to the indemnification obligations of such Selling
Holder.
SECTION 2.9 CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any
proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
Section 2.7 or 2.8, such person (an "Indemnified Party") shall promptly notify
the person against whom such indemnity may be sought (an "Indemnifying Party")
in writing and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Party, and shall assume the payment of all fees and expenses. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
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 Indemnified Party and the Indemnifying Party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Indemnified Parties, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for the
Indemnified Parties, such firm shall be designated in writing by (i) in the case
of Persons indemnified pursuant to Section 2.7 hereof, the Selling Holders which
owned a majority of the Registrable Securities sold under the applicable
registration statement and (ii) in the case of Persons indemnified pursuant to
Section 2.8, the Company. The Indemnifying Party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent, or if there be a final judgment for the plaintiff,
the Indemnifying Party shall indemnify and hold harmless such Indemnified
Parties from and against any loss or liability (to the extent stated above) by
reason of such settlement or judgment. Notwithstanding the foregoing sentence,
if at any time an Indemnified Party shall have requested an Indemnifying Party
to reimburse the Indemnified Party for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered
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into more than 30 Business Days after receipt by such Indemnifying Party of the
aforesaid request and (ii) such Indemnifying Party shall not have reimbursed the
Indemnified Party in accordance with such request prior to the date of such
settlement. No Indemnifying Party shall, without the prior written consent of
the Indemnified Party, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Party is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Party,
unless such settlement includes an unconditional release of such Indemnified
Party from all liability arising out of such proceeding.
SECTION 2.10 CONTRIBUTION. If the indemnification provided for in
Section 2.7 or 2.8 hereof is unavailable to an Indemnified Party or insufficient
in respect of any losses, claims, damages or liabilities referred to herein,
then each such Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
as a result of such losses, claims, damages or liabilities (i) as between the
Company and the Selling Holders on the one hand and the Underwriters on the
other, in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Selling Holders on the one hand and the
Underwriters on the other from the offering of the securities, or if such
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the relative
fault of the Company and the Selling Holders on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations and (ii) between the Company on the one hand
and each Selling Holder on the other, in such proportion as is appropriate to
reflect the relative fault of the Company and of each Selling Holder in
connection with such statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Holders on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and the Selling Holders bear to the total underwriting discounts
and commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the prospectus. The relative fault of the Company and
the Selling Holders on the one hand and of the Underwriters on the other shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and the Selling
Holders or by the Underwriters. The relative fault of the Company on the one
hand and of each Selling Holder on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by such party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 2.10 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be
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deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 2.10, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total commissions and discounts
received by such Underwriter in connection with the sale of the securities
underwritten by it and distributed to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and no
Selling Holder shall be required to contribute any amount in excess of the
amount by which the net proceeds from the sale of the securities of such Selling
Holder to the public exceeds the amount of any damages which such Selling Holder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Selling Holder's obligations to contribute
pursuant to this Section 2.10 are several in proportion to the net proceeds of
the offering received by such Selling Holder bears to the total net proceeds of
the offering received by all the Selling Holders and not joint.
SECTION 2.11 PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may
participate in any underwritten registration hereunder unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and these
registration rights provided for in this Article II.
SECTION 2.12 RULE 144. The Company covenants that it will file any
reports required to be filed by it under the Securities Act and the Exchange Act
and that it will take such further action as any Holder may reasonably request,
all to the extent required from time to time to enable Holders to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as such rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any Holder,
the Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
SECTION 2.13 HOLDBACK AGREEMENTS.
(a) Restrictions on Public Sale by Holder of Registrable Securities. To
the extent not inconsistent with applicable law and except with respect to a
Shelf Registration, each Holder whose securities are included in a registration
statement agrees not to effect any sale or distribution of the issue being
registered or a similar security of the Company, or any securities convertible
into or exchangeable or exercisable for such securities, including a sale
pursuant to Rule 144 under the Securities Act, during the 14 days prior to, and
during the 90-day period beginning on, the effective date of such registration
statement (except as part of such registration), if and to the extent requested
in writing by the Company in the case of a non-underwritten public offering or
if and to the extent requested in writing by the managing Underwriter or
Underwriters in the case of an underwritten public offering.
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(b) Restrictions on Public Sale by the Company and Others. The Company
agrees that any agreement entered into after the date of this Agreement pursuant
to which the Company issues or agrees to issue any privately placed securities
shall contain a provision under which holders of such securities agree not to
effect any sale or distribution of any securities similar to those being
registered in accordance with Section 2.2 or Section 2.3 hereof, or any
securities convertible into or exchangeable or exercisable for such securities,
during the 14 days prior to, and during the 90-day period beginning on, the
effective date of any registration statement (except as part of such
registration statement where the Holders of a majority of the Registrable
Securities to be included in such registration statement consent or as part of
registration statements filed as set forth in Section 2.3(i) or (iii)), if and
to the extent requested in writing by the Company in the case of a
non-underwritten public offering or if and to the extent requested in writing by
the managing Underwriter or Underwriters in the case of an underwritten public
offering, in each case including a sale pursuant to Rule 144 under the
Securities Act (except as part of any such registration, if permitted);
provided, however, that the provisions of this paragraph (b) shall not prevent
the conversion or exchange of any securities pursuant to their terms into or for
other securities.
(c) Temporary Suspension of Rights to Sell Based on Confidential
Information. If the Company determines in its good faith judgment that the
filing of the Shelf Registration Statement under Section 2.1 or a Demand
Registration under Section 2.2 hereof or the use of any related prospectus would
require the disclosure of material information that the Company has a bona fide
business purpose for preserving as confidential or the disclosure of which would
impede the Company's ability to consummate a significant transaction, and that
the Company is not otherwise required by applicable securities laws or
regulations to disclose, upon written notice of such determination by the
Company, the rights of the Holders to offer, sell or distribute any Registrable
Securities pursuant to the Shelf Registration Statement or a Demand Registration
or to require the Company to take action with respect to the registration or
sale of any Registrable Securities pursuant to the Shelf Registration Statement
or a Demand Registration shall be suspended until the earlier of (i) the date
upon which the Company notifies the Holders in writing that suspension of such
rights for the grounds set forth in this Section 2.12(c) is no longer necessary
and (ii) 180 days. The Company agrees to give such notice as promptly as
practicable following the date that such suspension of rights is no longer
necessary. Nothing in this Section 2.12(c) shall prevent a Holder from offering,
selling or distributing pursuant to Rule 144 at any time.
(d) Temporary Suspension of Rights to Sell Based on Exchange Act
Reports not yet Filed or Regulation S-X. If all reports required to be filed by
the Company pursuant to the Exchange Act have not been filed by the required
date without regard to any extension, or if the consummation of any business
combination by the Company has occurred or is probable for purposes of Rule 3-05
or Article 11 of Regulation S-X under the Act, upon written notice thereof by
the Company to the Holders, the rights of the Holders to offer, sell or
distribute any Registrable Securities pursuant to the Shelf Registration
Statement or a Demand Registration or to require the Company to take action with
respect to the registration or sale of any Registrable Securities pursuant to
the Shelf Registration Statement or a Demand Registration shall be suspended
until the date on which the Company has filed such reports or obtained and filed
the financial information required by Rule 3-05 or Article 11 of Regulation S-X
to be included or incorporated by reference, as applicable, in the Shelf
Registration Statement, and the Company
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shall notify the Holders as promptly as practicable when such suspension is no
longer required. Nothing in this Section 2.12(d) shall prevent a Holder from
offering, selling or distributing pursuant to Rule 144 at any time.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 NEW YORK STOCK EXCHANGE LISTING. In the event that the
Company shall issue any Common Stock in exchange for OP Units pursuant to
Section 7.4 of the Partnership Agreement, then in any such case the Company
agrees to cause any such shares of Common Stock to be listed on the New York
Stock Exchange prior to or concurrently with the issuance thereof by the
Company.
SECTION 3.2 REMEDIES. In addition to being entitled to exercise all
rights provided herein and granted by law, including recovery of damages, the
Holders shall be entitled to specific performance of the rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
SECTION 3.3 AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, in each case without the written consent of the Company and
the Holders of a majority of the Registrable Securities. No failure or delay by
any party to insist upon the strict performance of any covenant, duty, agreement
or condition of this Agreement or to exercise any right or remedy consequent
upon any breach thereof shall constitute waiver of any such breach or any other
covenant, duty, agreement or condition.
SECTION 3.4 NOTICES. All notices and other communications in connection
with this Agreement shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or air courier guaranteeing overnight
delivery to the address set forth on the signature page hereto, or to such other
address and to such other Persons as any party hereto may hereafter specify in
writing.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; when received if
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the next business day,
if timely delivered to an air courier guaranteeing overnight delivery.
SECTION 3.5 SUCCESSORS AND ASSIGNS. Except as expressly provided in
this Agreement the rights and obligations of the Initial Holders under this
Agreement shall not be assignable by any Initial Holder to any Person that is
not an Initial Holder. This Agreement shall be binding upon the parties hereto
and their respective successors and assigns.
SECTION 3.6 COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed
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shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Each party shall become bound by this
Agreement immediately upon affixing its signature hereto.
SECTION 3.7 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Texas without
regard to the choice of law provisions thereof.
SECTION 3.8 SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
SECTION 3.9 ENTIRE AGREEMENT. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Registrable Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
SECTION 3.10 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 3.11 NO THIRD PARTY BENEFICIARIES. Nothing express or implied
herein is intended or shall be construed to confer upon any person or entity,
other than the parties hereto and their respective successors and assigns, any
rights, remedies or other benefits under or by reason of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
<PAGE>
COMPANY:
ASHFORD HOSPITALITY TRUST, INC.
By:
--------------------------------
Montgomery J. Bennett, President
Address:
14180 Dallas Parkway, 9th Floor
Dallas, TX 75254
UNIT HOLDERS:
REMINGTON SUITES AUSTIN, L.P.
By: Remington Suites Austin, Inc.,
its general partner
By:
--------------------------------
Montgomery J.Bennett
Executive Vice President
Address:
14180 Dallas Parkway, 7th Floor
Dallas, TX 75254
REMINGTON SUITES DALLAS, L.P.
By: Remington Suites Dallas, Inc.,
its general partner
By:
--------------------------------
Montgomery J.Bennett
Executive Vice President
Address:
14180 Dallas Parkway, 7th Floor
Dallas, TX 75254
<PAGE>
REMINGTON SUITES DULLES, L.P.
By: Remington Suites Dulles, Inc.,
its general partner
By:
--------------------------------
Montgomery J.Bennett
Executive Vice President
Address:
14180 Dallas Parkway, 7th Floor
Dallas, TX 75254
REMINGTON SUITES LAS VEGAS, L.P.
By: Remington Suites Las Vegas, Inc.,
its general partner
By:
--------------------------------
Montgomery J.Bennett
Executive Vice President
Address:
14180 Dallas Parkway, 7th Floor
Dallas, TX 75254
<PAGE>
CHICAGO ILLINOIS HOTEL LIMITED
PARTNERSHIP
By: Illinois Hotel II Corp.,
its general partner
By:
--------------------------------
Montgomery J.Bennett
Vice President
Address:
14180 Dallas Parkway, 7th Floor
Dallas, TX 75254
ASHFORD FINANCIAL CORPORATION
By:
--------------------------------
David Kimichik
President
Address:
14180 Dallas Parkway, 9th Floor
Dallas, TX 75254
<PAGE>
RESTRICTED STOCKHOLDERS:
REMINGTON LONG ISLAND HOTEL, L.P.
By: Remington Long Island Hotel Corp.
its general partner
By:
--------------------------------
Montgomery J.Bennett
President
Address:
14180 Dallas Parkway, 7th Floor
Dallas, TX 75254
FRIEDMAN BILLINGS RAMSEY
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Address:
1001 9th Street North
Arlington, VA 22209
------------------------------------
Archie Bennett, individually
Address:
14180 Dallas Parkway, 7th Floor
Dallas, TX 75254
<PAGE>
------------------------------------
Montgomery J. Bennett, individually
Address:
14180 Dallas Parkway, 7th Floor
Dallas, TX 75254