EXHIBIT 10.10.2
ASSIGNMENT AND ASSUMPTION OF CONTRACT AND CONTRACT RIGHTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACT AND CONTRACT RIGHTS (this
"Agreement"), dated January 4, 2004, effective as of January 1, 2004 ("Effective
Date"), is made by and between ASHFORD HOSPITALITY LIMITED PARTNERSHIP, a
Maryland limited partnership ("Assignee"), and ASHFORD FINANCIAL CORPORATION, a
Texas corporation ("Assignor").
RECITAL
A. Assignor and Assignee have entered into an Assignment of Contract
and Contract Rights, dated as of August 29, 2003 (the "Original Assignment"),
wherein Assignor transferred and conveyed its rights, obligations and benefits
in certain Asset Management and Consulting Agreements described on Exhibit A
attached hereto (collectively, the "Assigned Contracts"), including its rights
to provide the Services and to receive the Consulting Fees (as such terms are
defined therein), to Assignee.
B. Effective as of October 7, 2003, pursuant to a certain Assignment
and Assumption of Contract and Contract Rights (the "Second Amendment") between
Assignor and Assignee, Assignee reassigned to Assignor the Assigned Contracts,
all subject to a right of reassignment described therein.
C. Reference is hereby made to additional documents executed by one or
both of the parties hereto in connection with and related to the Original
Assignment (the "Related Documents"), each dated August 29, 2003, including
without limitation the (i) Guaranty executed by Assignee (the "Guaranty"), (ii)
Pledge and Security Agreement executed by Assignor and Assignee, (iii) UCC
Financing Statement executed by Assignee, and (iv) Asset Management and
Consulting Agreement executed by Assignee and Remington Hospitality, Inc.
D. Assignee has elected to exercise its right of reassignment described
in the Second Assignment.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, Assignor agrees, among other things, to assign its
rights, obligations and benefits under the Assigned Contracts and Assignee
agrees to assume said Assigned Contracts (and the rights, obligations and
benefits thereunder), pursuant to the terms and provisions of this Agreement as
set forth below.
ARTICLE 1
ASSIGNMENT
1.1 DEFINED TERMS. All terms used but not defined herein shall have the
meaning as set forth in the Assigned Contracts.
1.2 ASSIGNMENT OF CONTRACTS. Assignor hereby conveys, assigns,
transfers, delivers and sets over unto Assignee, and its successors and assigns,
all right, title, and interest of
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Assignor in, to and under the Assigned Contracts, including without limitation,
any and all present and continuing rights (i) to make claim for, collect,
receive and receipt for any of the sums of money payable or receivable
thereunder, including the Consulting Fees accruing after the Effective Date,
(ii) to do any and all things which Assignor is or may become obligated to do
under the Assigned Contracts including performance of the Services, and (iii) to
bring actions and proceedings under the Assigned Contracts or for the
enforcement thereof and to otherwise exercise all remedies under the Assigned
Contracts; TO HAVE AND TO HOLD the Assigned Contracts unto Assignee, and its
successors and assigns forever, together with all and singular the rights and
appurtenances belonging or pertaining thereto.
1.3 ASSIGNEE ASSUMPTION OF OBLIGATIONS. Assignee hereby accepts the
foregoing assignment of the Assigned Contracts, subject to Assignor's Right of
Reassignment, and hereby assumes and agrees to fulfill, perform and discharge
all the various liabilities, obligations, duties, covenants and agreements under
or with respect to or in any way arising out of or relating to the Assigned
Contracts from and after the Effective Date.
1.4 RELATED DOCUMENTS. This Agreement is not intended and shall not be
deemed to amend, modify or supercede the terms of, or the obligations of those
parties to, the Related Documents; provided that Assignee agrees that (i) the
Guarantee Period (as defined in the Guaranty) for the Guaranty shall be and is
hereby extended for an additional eighty-five (85) days being the number of days
commencing with the Effective Date of the Second Assignment to the Effective
Date hereof.
1.5 SUBSEQUENT ACTIONS. Assignor hereby covenants to and with Assignee,
its successors and assigns, to execute and deliver to Assignee, its successors
and assigns, (i) all such other and further instruments of assignment and
transfer, and all such notices, releases, and other documents, that would more
fully and specifically assign and transfer to and vest in Assignee, its
successors and assigns, the rights of Assignor in and to the Assigned Contracts
hereby assigned and transferred, or intended to be assigned and transferred, and
(ii) all such other documents, notices, accountings, financial information and
other documents and information that would more fully and specifically enable
Assignee to receive the benefits from the Assigned Contracts. Assignor further
covenants and agree to cooperate as reasonably requested by Assignee in
connection with this Agreement, the administration of the Assigned Contracts and
the ability of Assignee to receive the benefits of the Assigned Contracts.
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1 REPRESENTATIONS AND WARRANTIES REGARDING ASSIGNED CONTRACTS.
(a) Assignor is duly formed or organized and validly existing under the
laws of its state of organization, and has the power and authority to execute,
deliver and perform its obligations hereunder, all of which has been duly
authorized by all necessary corporate action on the part of Assignor's. This
Agreement has been duly and validly executed and delivered by Assignor.
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(b) Assignor owns the Assigned Contracts free and clear of any lien,
security interest, charge or encumbrance as of the date hereof.
(c) Assignee is duly formed or organized and validly existing under the
laws of the state of its organization and has the power and authority to
execute, deliver and perform its obligations hereunder, all of which has been
duly authorized by all necessary corporate action on its part. This Agreement
has been duly and validly executed and delivered by Assignee.
(D) COVENANTS REGARDING CONTRACT RIGHTS. Assignor agrees to immediately
direct the Managers to direct payment of all of the Consulting Fees accruing
after the Effective Date hereof to Assignee at such address or in accordance
with such other instructions as Assignee shall request from time to time. In the
event that Assignor receives payment of any of the Consulting Fees accruing
after the Effective Date hereof, Assignor will hold same in trust for the
benefit of the Assignee and will immediately remit same to Assignee. Upon the
request of Assignee, Assignor will immediately make a full and complete
accounting of all such amounts so received.
ARTICLE 3
MISCELLANEOUS
3.1 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
ASSIGNOR AND ASSIGNEE HEREUNDER SHALL BE GOVERNED BY AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAW RULES THAT WOULD DIRECT
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
3.2 BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their successors and assigns.
3.3 MULTIPLE ORIGINALS. This Agreement may be executed in two
originals, each of which shall be deemed an original, but both of which shall
constitute one and the same instrument.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement
to be effective as of the day and year first above written.
ASSIGNEE:
ASHFORD HOSPITALITY LIMITED
PARTNERSHIP, a Maryland limited partnership
By: Ashford OP General Partner LLC, a
Delaware limited liability company,
its general partner
By:
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Xxxxx X. Xxxxxx
Vice President
ASSIGNOR:
ASHFORD FINANCIAL CORPORATION, a
Texas corporation
By:
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Xxxxxxxxxx X. Xxxxxxx
President
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EXHIBIT A
LIST OF ASSIGNED CONTRACTS
1. Asset Management and Consulting Agreement, dated as of May 15, 2003,
with Remington Hospitality, Inc., as Manager;
2. Asset Management and Consulting Agreement, dated as of May 15, 2003,
with Remington Suites Hotel Corporation, as Manager;
3. Asset Management and Consulting Agreement, dated as of May 15, 2003, by
with Remington Employers Corporation, as Manager;
4. Asset Management and Consulting Agreement, dated as of May 15, 2003,
with Remington Employers Management Corporation, as Manager;
5. Asset Management and Consulting Agreement, dated as of May 15, 2003,
with Remington Indianapolis Employers Corporation, as Manager;
6. Asset Management and Consulting Agreement, dated as of May 15, 2003,
with Milford Hotel Employers Corporation, as Manager;
7. Asset Management and Consulting Agreement, dated as of May 15, 2003,
with Remington Orlando Management Corp., as Manager; and
8. Asset Management and Consulting Agreement, dated as of May 15, 2003,
with Remington Ventura Employers Corporation, as Manager.
