AMENDMENT NO. 7 TO THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF ASHFORD HOSPITALITY LIMITED PARTNERSHIP September 30, 2011
Exhibit 10
AMENDMENT NO. 7
TO
THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
ASHFORD HOSPITALITY LIMITED PARTNERSHIP
TO
THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
ASHFORD HOSPITALITY LIMITED PARTNERSHIP
September 30, 2011
This Amendment No. 7 to the Third Amended and Restated Agreement of Limited Partnership
of Ashford Hospitality Limited Partnership (this “Amendment”) is made as of September 30, 2011, by
Ashford OP General Partner, LLC, a Delaware limited liability company, as general partner (the
“General Partner”) of Ashford Hospitality Limited Partnership, a Delaware limited partnership (the
“Partnership”), pursuant to the authority granted to the General Partner in the Third Amended and
Restated Agreement of Limited Partnership of Ashford Hospitality Limited Partnership, dated as of
May 7, 2007, as amended by Amendment No. 1 to the Third Amended and Restated Agreement of Limited
Partnership of Ashford Hospitality Limited Partnership, dated as of July 18, 2007, Amendment No. 2
to the Third Amended and Restated Agreement of Limited Partnership, dated as of February 6, 2008,
Amendment No. 3 to the Third Amended and Restated Agreement of Limited Partnership, effective as
of March 21, 2008, Amendment No. 4 to the Third Amended and Restated Agreement of Limited
Partnership, dated as of May 18, 2010, Amendment No. 5 to the Third Amended and Restated Agreement
of Limited Partnership, dated as of September 22, 2010, and Amendment No. 6 to the Third Amended
and Restated Agreement of Limited Partnership, dated as of April 18, 2011 (as so amended, the
“Partnership Agreement”), for the purpose of issuing additional Partnership Units in the form of
Preferred Partnership Units. Capitalized terms used and not defined herein shall have the meanings
set forth in the Partnership Agreement.
WHEREAS, on September 9, 2004, Board of Directors (the “Board”) of Ashford Hospitality Trust,
Inc. (the “Company”) adopted resolutions classifying and designating 3,000,000 shares of its
previously unclassified Preferred Stock (as defined in the Articles of Amendment and Restatement of
the Company (the “Charter”)) as Series A Cumulative Preferred Stock, par value $0.01, of the
Company (the “Series A Preferred Stock”); on September 21, 2004, the Company filed Articles
Supplementary with the State Department of Assessments and Taxation of Maryland (the “Department”)
setting forth the preferences, rights, voting powers, restrictions, limitations as to dividends and
other distributions, qualifications and terms and conditions of redemption for the Series A
Preferred Stock (“Series A Articles Supplementary”); and on September 22, 2004, the Company issued
2,300,000 shares of Series A Preferred Stock, leaving 700,000 shares designated as Series A
Preferred Stock but unissued;
WHEREAS, following the initial issuance of the Series A Preferred Stock, the Company
repurchased 812,100 shares of the Series A Preferred Stock and such shares were restored to the
status of authorized but unissued preferred stock, without designation as to class or series, and
as of the date hereof, there are 1,487,900 shares of Series A Preferred Stock outstanding;
WHEREAS, on June 2, 2007, the Board classified and designated 8,000,000 shares of its
previously unclassified Preferred Stock as Series D Cumulative Preferred Stock, par value $0.01,
of
the Company (the “Series D Preferred Stock”); on July 17, 2007, the Company filed Articles
Supplementary with the State Department of Assessment and Taxation of Maryland, setting forth the
preferences, rights, voting powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption for the Series D Preferred
Stock; and on July 18, 2007, the Company issued 8,000,000 shares of Series D Preferred Stock (the
“Series D Articles Supplementary”), leaving no shares designated as Series D Preferred Stock
unissued;
WHEREAS, following the initial issuance of the Series D Preferred Stock, the Company
repurchased 2,333,203 shares of the Series D Preferred Stock and upon redemption by the Company,
such shares reverted to authorized but unissued preferred stock, without designation as to class or
series, leaving 5,666,797 shares of Series D Preferred Stock outstanding;
WHEREAS, on August 31, 2010, the Board adopted resolutions classifying and designating
8,280,000 additional shares of Series D Preferred Stock; on September 21, 2010 the Company filed
Articles Supplementary with the State Department of Assessments and Taxation of Maryland, setting
forth, the same preferences, rights, powers, restrictions, limitations as to dividends and other
distributions, qualifications and terms and conditions of redemption of an additional 3,300,000
shares of Series D Preferred Stock as described in the Series D Articles Supplementary (thereby
leaving 4,980,000 shares which were classified as additional shares of Series D Preferred Stock but
as to which Articles Supplementary were not filed); and on September 22, 2010, the Company issued
3,300,000 shares of Series D Preferred Stock;
WHEREAS, on September 27, 2011, the Board adopted resolutions ratifying its previous action
taken on August 31, 2010 classifying and designating 700,000 additional shares of unclassified
Preferred Stock as additional shares of Series D Preferred Stock as to which Articles Supplementary
were filed on September 30, 2011, establishing the additional shares of Series D Preferred Stock,
with the same preferences, rights, powers, restrictions, limitations as to dividends,
distributions, qualifications and terms and conditions of redemption as described in the Series D
Articles Supplementary;
WHEREAS, on September 27, 2011, the Board adopted resolutions authorizing the issuance of up
to 700,000 additional shares of Series A Preferred Stock and up to 700,000 additional shares of
Series D Preferred Stock; and
WHEREAS, the General Partner has determined that, in connection with the issuance of the
additional shares of Series A Preferred Stock and Series D Preferred Stock, it is necessary and
desirable to amend the Partnership Agreement authorizing the issuance of additional Series A
Preferred Partnership Units and Series D Preferred Partnership Units and clarifying that all shares
of Series A Preferred Partnership Units shall have designations preferences and other rights which
are substantially the same as the economic rights of the Series A Preferred Stock and all shares of
Series D Preferred Partnership Units shall have designations, preferences and other rights which
are substantially the same as the economic rights of the Series D Preferred Stock.
2
NOW, THEREFORE, in consideration of the mutual covenants between the parties hereto and for
other good and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the General Partner hereby amends the Partnership Agreement as follows:
1. The Partnership Agreement is hereby amended to replace Exhibit A, Exhibit F
and Exhibit L with revised Exhibit A, Exhibit F and Exhibit L,
respectively, to reflect (i) the issuance of the additional Series A Preferred Partnership
Units to correspond to the additional shares of Series A Preferred Stock authorized under the
Series A Articles Supplementary, and (ii) the issuance of additional Series D Preferred
Partnership Units to correspond to the additional shares of Series D Preferred Stock
authorized under the Series D Articles Supplementary.
2. Except as modified herein, all terms and conditions of the Partnership Agreement shall remain
in full force and effect, which terms and conditions the General Partner hereby ratifies and
confirms.
3. This Amendment shall be construed and enforced in accordance with and governed by the laws of
the State of Delaware, without regard to conflicts of law.
4. If any provision of this Amendment is or becomes invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained
herein shall not be affected thereby.
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3
IN WITNESS WHEREOF, the undersigned has executed this Amendment as of the date first set
forth above.
| ASHFORD OP GENERAL PARTNER, LLC, a Delaware limited liability company, as General Partner of Ashford Hospitality Limited Partnership |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Xxxxx X. Xxxxxx, Vice President | ||||
4
EXHIBIT A
LIST OF PARTNERS AND CONTRIBUTED ASSETS
5
EXHIBIT F
DESIGNATION OF TERMS AND CONDITIONS OF SERIES A
PREFERRED PARTNERSHIP UNITS
PREFERRED PARTNERSHIP UNITS
A. Designation and Number. A series of Preferred Partnership Units, designated
as Series A Preferred Partnership Units, is hereby established. The number of Series A Preferred
Partnership Units shall be 3,000,000.
B. Rank. The Series A Preferred Partnership Units, with respect to rights to
distributions and payments to Partners, the distribution of assets upon the liquidation,
dissolution or winding up of the Partnership, rank (a) prior or senior to the Common Partnership
Units and all Partnership Units issued by the Partnership (“Junior Units”) the terms of which
specifically provide that such Partnership Units rank junior to the Series A Preferred Partnership
Units; (b) on a parity with the Series D Preferred Partnership Units, Series E Preferred
Partnership Units and all other Partnership Units issued in the future by the Partnership (“Parity
Units”) the terms of which specifically provide that such Partnership Units rank on a parity with
the Series A Preferred Partnership Units; (c) junior to all Partnership Units issued by the
Partnership the terms of which specifically provide that such Partnership Units rank senior to the
Series A Preferred Partnership Units; and (d) junior to all of the Partnership’s existing and
future indebtedness.
C. Distributions.
(i) Pursuant to Section 8.1 of the Partnership Agreement but subject to the rights of holders
of any Preferred Partnership Units ranking senior to the Series A Preferred Partnership Units as to
the payment of distributions, Ashford OP Limited Partner, LLC, in its capacity as the holder of the
then outstanding Series A Preferred Partnership Units, shall be entitled to receive, when, as and
if authorized by the General Partner, from the Cash Flow, cumulative quarterly preferential cash
distributions in an amount per Series A Preferred Partnership Unit equal to 8.55% of the $25.00
liquidation preference per annum (equivalent to a fixed annual amount of $2.1375 per Series A
Preferred Partnership Unit) (the “Preferred Return”). Distributions of Preferred Return on each
Series A Preferred Partnership Unit shall be cumulative from the date of original issuance, whether
or not in any distribution period or periods (i) such distributions shall be authorized by the
General Partner, (ii) there shall be funds legally available for the payment of such distributions
or (iii) any agreement prohibits the Partnership’s payment of such distributions, and such
distributions shall be payable quarterly the 15th day of January, April, July and October of each
year (or, if not a Business Day, the next succeeding Business Day). Any distribution of Preferred
Return payable on the Series A Preferred Partnership Units for any partial distribution period will
be computed on the basis of twelve 30-day months and a 360-day year. Distributions of Preferred
Return will be payable in arrears to holders of record as they appear on the records of the
Partnership at the close of business on the last day of each of March, June, September and
December, as the case may be, immediately preceding the applicable distribution payment date, which
dates shall be the Partnership Record Dates for the Series A Preferred Partnership Units. Except
for distributions in liquidation or redemption as provided in Sections D and E, respectively,
holders of Series A Preferred Partnership Units will not be entitled to receive any distributions
in excess of cumulative Preferred Returns accrued on the Series A Preferred Partnership Units at
the rate specified in this paragraph. No interest will be
Exhibit F - Page 1
paid in respect of any distribution payment or payments on the Series A Preferred Partnership
Units that may be in arrears.
(ii) When distributions of Preferred Return are not paid in full upon the Series A Preferred
Partnership Units or any other series of Parity Units, or a sum sufficient for such payment is not
set apart, all distributions of Preferred Return authorized by the General Partner upon the Series
A Preferred Partnership Units and any other series of Parity Units shall be authorized by the
General Partner ratably in proportion to the respective amounts of such distributions accumulated,
accrued and unpaid on the Series A Preferred Partnership Units and accumulated, accrued and unpaid
on such Parity Units. Except as set forth in the preceding sentence, unless distributions on the
Series A Preferred Partnership Units equal to the full amount of accumulated, accrued and unpaid
distributions of Preferred Return have been or contemporaneously are authorized by the General
Partner and paid, or authorized by the General Partner and a sum sufficient for the payment thereof
set apart for such payment for all past distribution periods, no distributions (other than
distributions paid in Junior Units or options, warrants or rights to subscribe for or purchase
Junior Units) shall be authorized by the General Partner or paid or set aside for payment by the
Partnership with respect to any class or series of Parity Units. Unless full cumulative
distributions of Preferred Return on the Series A Preferred Partnership Units have been paid or
authorized by the General Partner and set apart for payment for all past distribution periods, no
distributions (other than distributions paid in Junior Units or options, warrants or rights to
subscribe for or purchase Junior Units) shall be authorized by the General Partner or paid or set
apart for payment by the Partnership with respect to any Junior Units, nor shall any Junior Units
or Parity Units be redeemed, purchased or otherwise acquired for any consideration, or any monies
be paid to or made available for a sinking fund for the redemption of any Junior Units or Parity
Units (except by conversion or exchange for Junior Units, or options, warrants or rights to
subscribe for or purchase Junior Units), nor shall any other cash or property be paid or
distributed to or for the benefit of holders of Junior Units or Parity Units. Notwithstanding the
foregoing, the General Partner shall not be prohibited from (i) authorizing or paying or setting
apart for payment any Preferred Return or distribution on any Parity Units or (ii) redeeming,
purchasing or otherwise acquiring any Junior Units or Parity Units, in each case, if such
authorization, payment, redemption, purchase or other acquisition is necessary to maintain the
Company’s qualification as a REIT.
(iii) No distribution of Preferred Return on the Series A Preferred Partnership Units shall be
authorized by the General Partner or paid or set apart for payment at such time as the terms and
provisions of any agreement of the Partnership, including any agreement of the Partnership relating
to the Partnership’s indebtedness, prohibits such authorization, payment or setting apart for
payment or provides that such authorization, payment or setting apart for payment would constitute
a breach thereof, or a default thereunder, or if such authorization, payment or setting apart for
payment shall be restricted or prohibited by law.
(iv) In determining whether a distribution (other than upon voluntary or involuntary
liquidation, dissolution or winding up of the Partnership) of Preferred Return or in redemption or
otherwise, is permitted, amounts that would be needed, if the Partnership were to be dissolved at
the time of the distribution, to satisfy the liquidation preference of the Series A Preferred
Partnership Units (as provided in Section D below) will not be added to the Partnership’s total
liabilities.
Exhibit F - Page 2
D. Liquidation Preference.
(i) Upon any voluntary or involuntary liquidation, dissolution or winding up of the
Partnership, before any payment or distribution shall be made to or set apart for the holders of
any Junior Units, Ashford OP Limited Partner, LLC, in its capacity as holder of the Series A
Preferred Partnership Units, shall be entitled to receive a liquidation preference distribution of
$25.00 per Series A Preferred Partnership Unit, plus an amount equal to all accumulated, accrued
and unpaid Preferred Return to the date of final distribution, but Ashford OP Limited Partner, LLC
shall not be entitled to any further payment with respect thereto. If upon any liquidation,
dissolution or winding up of the Partnership, its assets, or proceeds thereof, distributable among
Ashford OP Limited Partner, LLC, in its capacity as the holder of the Series A Preferred
Partnership Units, shall be insufficient to pay in full the above described preferential
distribution and liquidating distributions on any other series of Parity Units, then such assets,
or the proceeds thereof, shall be distributed among Ashford OP Limited Partner, LLC, in its
capacity as the holder of the Series A Preferred Partnership Units, and the holders of any such
other Parity Units ratably in the same proportion as the respective amounts that would be payable
on such Series A Preferred Partnership Units and any such other Parity Units if all amounts payable
thereon were paid in full.
(ii) Upon any liquidation, dissolution or winding up of the Partnership, after payment shall
have been made in full to Ashford OP Limited Partner, LLC, in its capacity as the holder of the
Series A Preferred Partnership Units, holders of the Series A Preferred Partnership Units shall
have no right or claim to any of the remaining assets of the Partnership.
(iii) None of a consolidation or merger of the Partnership with or into another entity, a
merger of another entity with or into the Partnership, a statutory unit exchange by the Partnership
or a sale, lease or conveyance of all or substantially all of the Partnership’s property or
business shall be considered a liquidation, dissolution or winding up of the affairs of the
Partnership.
E. Redemption. In connection with the redemption by the Company of any shares of
Series A Preferred Stock in accordance with the provisions of the Articles Supplementary, the
Partnership shall provide cash to Ashford OP Limited Partner, LLC for such purpose which shall be
equal to the redemption price (as set forth in the Articles Supplementary), plus all distributions
of Preferred Return accumulated and unpaid to the Redemption Date (as defined in the Articles
Supplementary), and one Series A Preferred Partnership Unit shall be concurrently redeemed with
respect to each share of Series A Preferred Stock so redeemed by the Company. From and after the
applicable Redemption Date, the Series A Preferred Partnership Units so redeemed shall no longer be
outstanding and all rights hereunder, to distributions or otherwise, with respect to such Series A
Preferred Partnership Units shall cease. Any Series A Preferred Partnership Units so redeemed may
be reissued to Ashford OP Limited Partner, LLC at such time as the Company reissues a corresponding
number of shares of Series A Preferred Stock so redeemed or repurchased, in exchange for the
contribution by the Company, through the Ashford OP Limited Partner, LLC, to the Partnership of the
proceeds from such reissuance.
F. Voting Rights. Except as required by applicable law, the holder of the Series A
Preferred Partnership Units, as such, shall have no voting rights.
Exhibit F - Page 3
G. Conversion. The Series A Preferred Partnership Units are not convertible into or
exchangeable for any other property or securities of the Partnership.
H. Restriction on Ownership. The Series A Preferred Partnership Units shall be owned
and held solely by Ashford OP Limited Partner, LLC.
I. Allocations. Allocations of the Partnership’s items of income, gain, loss and
deduction shall be allocated pro rata among holders of Series A Preferred Partnership Units in
accordance with Article V of the Partnership Agreement.
Exhibit F - Page 4
EXHIBIT L
DESIGNATION OF TERMS AND CONDITIONS OF SERIES D
PREFERRED PARTNERSHIP UNITS
PREFERRED PARTNERSHIP UNITS
A. Designation and Number. A series of Preferred Partnership Units,
designated as Series D Preferred Partnership Units, is hereby established. The number
of Series D Preferred Partnership Units shall be 9,666,797.
B. Rank. The Series D Preferred Partnership Units, with respect to rights
to distributions and payments to Partners, the distribution of assets upon the
liquidation, dissolution or winding up of the Partnership, rank (a) prior or senior to
the Common Partnership Units and all Partnership Units issued by the Partnership
(“Junior Units”) the terms of which specifically provide that such Partnership Units
rank junior to the Series D Preferred Partnership Units; (b) on a parity with the
Series A Preferred Partnership Units, Series E Preferred Partnership Units and all
other Partnership Units issued in the future by the Partnership (“Parity Units”) the
terms of which specifically provide that such Partnership Units rank on a parity with
the Series D Preferred Partnership Units; (c) junior to all Partnership Units issued by
the Partnership the terms of which specifically provide that such Partnership Units
rank senior to the Series D Preferred Partnership Units; and (d) junior to all of the
Partnership’s existing and future indebtedness.
C. Distributions.
(i) Pursuant to Section 8.1 of the Partnership Agreement but
subject to the rights of holders of any Preferred Partnership Units ranking
senior to the Series D Preferred Partnership Units as to the payment of
distributions, Ashford OP Limited Partner, LLC, in its capacity as the holder
of the then outstanding Series D Preferred Partnership Units, shall be entitled
to receive, when, as and if authorized by the General Partner, from the Cash
Flow, cumulative quarterly preferential cash distributions in an amount per
Series D Preferred Partnership Unit equal to 8.45% of the $25.00 liquidation
preference per annum (equivalent to a fixed annual amount of $2.1125 per Series
D Preferred Partnership Unit); provided, however, that during any period of
time that both (i) the Series D Preferred Stock is not listed on the NYSE, AMEX
or NASDAQ, and (ii) the Company is not subject to the reporting requirements of
the Exchange Act, and any shares of Series D Preferred Stock are outstanding,
in lieu of the distribution described above, the Partnership will increase the
cumulative quarterly preferential cash distributions to an amount per Series D
Preferred Partnership Unit equal to 9.45% of the $25.00 liquidation preference
per annum (equivalent to a fixed annual amount of $2.3625 per Series D
Preferred Partnership Unit). Distributions of Preferred Return on each Series D
Preferred Partnership Unit shall be cumulative from the date of
original issuance, whether or not in any distribution period or periods (i)
such distributions shall be authorized by the General Partner, (ii) there
shall be funds legally available for the payment of such distributions or
(iii) any agreement prohibits the Partnership’s payment of such
distributions, and such distributions shall be payable quarterly the 15th
day of January, April, July and October of each year (or, if not a Business
Day, the next succeeding Business Day). Any distribution of Preferred
Return payable on the Series D Preferred Partnership Units for any partial
distribution period will be computed on the
Exhibit L - Page 1
basis of twelve 30-day months
and a 360-day year. Distributions of Preferred Return will be payable in
arrears to holders of record as they appear on the records of the
Partnership at the close of business on the last day of each of March, June,
September and December, as the case may be, immediately preceding the
applicable distribution payment date, which dates shall be the Partnership
Record Dates for the Series D Preferred Partnership Units. Except for
distributions in liquidation or redemption as provided in Sections D and E,
respectively, holders of Series D Preferred Partnership Units will not be
entitled to receive any distributions in excess of cumulative Preferred
Returns accrued on the Series D Preferred Partnership Units at the rate
specified in this paragraph. No interest will be paid in respect of any
distribution payment or payments on the Series D Preferred Partnership Units
that may be in arrears. The 9.45% distribution on the Series D Preferred
Units, if applicable, shall cease to accrue and the distribution rate shall
revert to 8.45% on the first date following the earlier of (i) the listing
of the Series D Preferred Stock on the NYSE, AMEX or NASDAQ or (ii) the
Company becoming subject to the reporting requirements of the Exchange Act.
(ii) When distributions of Preferred Return are not paid in full
upon the Series D Preferred Partnership Units or any other series of Parity
Units, or a sum sufficient for such payment is not set apart, all distributions
of Preferred Return authorized by the General Partner upon the Series D
Preferred Partnership Units and any other series of Parity Units shall be
authorized by the General Partner ratably in proportion to the respective
amounts of such distributions accumulated, accrued and unpaid on the Series D
Preferred Partnership Units and accumulated, accrued and unpaid on such Parity
Units. Except as set forth in the preceding sentence, unless distributions on
the Series D Preferred Partnership Units equal to the full amount of
accumulated, accrued and unpaid distributions of Preferred Return have been or
contemporaneously are authorized by the General Partner and paid, or authorized
by the General Partner and a sum sufficient for the payment thereof set apart
for such payment for all past distribution periods, no distributions (other
than distributions paid in Junior Units or options, warrants or rights to
subscribe for or purchase Junior Units) shall be authorized by the General
Partner or paid or set aside for payment by the Partnership with respect to any
class or series of Parity Units. Unless full cumulative distributions of
Preferred Return on the Series D Preferred
Partnership Units have been paid or authorized by the General Partner and
set apart for payment for all past distribution periods, no distributions
(other than distributions paid in Junior Units or options, warrants or
rights to subscribe for or purchase Junior Units) shall be authorized by the
General Partner or paid or set apart for payment by the Partnership with
respect to any Junior Units, nor shall any Junior Units or Parity Units be
redeemed, purchased or otherwise acquired for any consideration, or any
monies be paid to or made available for a sinking fund for the redemption of
any Junior Units or Parity Units (except by conversion or exchange for
Junior Units, or options, warrants or rights to subscribe for or purchase
Junior Units), nor shall any other cash or property be paid or distributed
to or for the benefit of holders of Junior Units or Parity Units.
Notwithstanding the foregoing, the General Partner shall not be prohibited
from (i) authorizing or paying or setting apart for payment any Preferred
Return or distribution on any Parity Units or (ii) redeeming, purchasing or
otherwise acquiring any Junior Units or Parity Units, in each case, if such
authorization, payment, redemption, purchase or other acquisition is
necessary to maintain the Company’s qualification as a REIT.
Exhibit L - Page 2
(iii) No distribution of Preferred Return on the Series D Preferred
Partnership Units shall be authorized by the General Partner or paid or set
apart for payment at such time as the terms and provisions of any agreement of
the Partnership, including any agreement of the Partnership relating to the
Partnership’s indebtedness, prohibits such authorization, payment or setting
apart for payment or provides that such authorization, payment or setting apart
for payment would constitute a breach thereof, or a default thereunder, or if
such authorization, payment or setting apart for payment shall be restricted or
prohibited by law.
(iv) In determining whether a distribution (other than upon
voluntary or involuntary liquidation, dissolution or winding up of the
Partnership) of Preferred Return or in redemption or otherwise, is permitted,
amounts that would be needed, if the Partnership were to be dissolved at the
time of the distribution, to satisfy the liquidation preference of the Series D
Preferred Partnership Units (as provided in Section D below) will not be added
to the Partnership’s total liabilities.
D. Liquidation Preference.
(i) Upon any voluntary or involuntary liquidation, dissolution or
winding up of the Partnership, before any payment or distribution shall be made
to or set apart for the holders of any Junior Units, Ashford OP Limited
Partner, LLC, in its capacity as holder of the Series D Preferred Partnership
Units, shall be entitled to receive a liquidation preference distribution of
$25.00 per Series D Preferred Partnership Unit, plus an amount equal to all
accumulated, accrued and unpaid Preferred Return to the date of final
distribution, but Ashford OP Limited Partner, LLC shall not be entitled to
any further payment with respect thereto. If upon any liquidation,
dissolution or winding up of the Partnership, its assets, or proceeds
thereof, distributable among Ashford OP Limited Partner, LLC, in its
capacity as the holder of the Series D Preferred Partnership Units, shall be
insufficient to pay in full the above described preferential distribution
and liquidating distributions on any other series of Parity Units, then such
assets, or the proceeds thereof, shall be distributed among Ashford OP
Limited Partner, LLC, in its capacity as the holder of the Series D
Preferred Partnership Units, and the holders of any such other Parity Units
ratably in the same proportion as the respective amounts that would be
payable on such Series D Preferred Partnership Units and any such other
Parity Units if all amounts payable thereon were paid in full.
(ii) Upon any liquidation, dissolution or winding up of the
Partnership, after payment shall have been made in full to Ashford OP Limited
Partner, LLC, in its capacity as the holder of the Series D Preferred
Partnership Units, holders of the Series D Preferred Partnership Units shall
have no right or claim to any of the remaining assets of the Partnership.
(iii) None of a consolidation or merger of the Partnership with or
into another entity, a merger of another entity with or into the Partnership, a
statutory unit exchange by the Partnership or a sale, lease or conveyance of
all or substantially all of the Partnership’s property or business shall be
considered a liquidation, dissolution or winding up of the affairs of the
Partnership.
Exhibit L - Page 3
E. Redemption. In connection with the redemption by the Company of any shares of Series D Preferred Stock in accordance with the provisions of the Series D
Articles Supplementary, the Partnership shall provide cash to Ashford OP Limited
Partner, LLC for such purpose which shall be equal to the redemption price (as set
forth in the Series D Articles Supplementary), plus all distributions of Preferred
Return accumulated and unpaid to the Redemption Date (as defined in the Series D
Articles Supplementary), and one Series D Preferred Partnership Unit shall be
concurrently redeemed with respect to each share of Series D Preferred Stock so
redeemed by the Company. From and after the applicable Redemption Date, the Series D
Preferred Partnership Units so redeemed shall no longer be outstanding and all rights
hereunder, to distributions or otherwise, with respect to such Series D Preferred
Partnership Units shall cease. Any Series D Preferred Partnership Units so redeemed
may be reissued to Ashford OP Limited Partner, LLC at such time as the Company reissues
a corresponding number of shares of Series D Preferred Stock so redeemed or
repurchased, in exchange for the contribution by the Company, through the Ashford OP
Limited Partner, LLC, to the Partnership of the proceeds from such reissuance.
F. Voting Rights. Except as required by applicable law, the holder of the
Series D Preferred Partnership Units, as such, shall have no voting rights.
G. Conversion. The Series D Preferred Partnership Units are not
convertible into or exchangeable for any other property or securities of the
Partnership.
H. Restriction on Ownership. The Series D Preferred Partnership Units
shall be owned and held solely by Ashford OP Limited Partner, LLC.
I. Allocations. Allocations of the Partnership’s items of income, gain,
loss and deduction shall be allocated pro rata among holders of Series D Preferred
Partnership Units in accordance with Article V of the Partnership Agreement.
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Exhibit L - Page 4
