Exhibit 10.1


 


AMENDMENT NO. 5

TO THE THIRD AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP

OF

BRAEMAR HOSPITALITY LIMITED PARTNERSHIP


 


April 2, 2021


 


This Amendment No. 5
to the Third Amended and Restated Agreement of Limited Partnership of Braemar Hospitality Limited Partnership (this “Amendment”)
is made as of April 2, 2021, by Braemar OP General Partner LLC, a Delaware limited liability company, as general partner (the “General
Partner”) of Braemar Hospitality Limited Partnership, a Delaware limited partnership (the “Partnership”),
pursuant to the authority granted to the General Partner in Section 11.1(b) of the Third Amended and Restated Agreement
of Limited Partnership of Braemar Hospitality Limited Partnership, dated March 7, 2017, as amended by Amendment No. 1 thereto
dated as of April 23, 2018, Amendment No. 2 thereto dated as of November 20, 2018, Amendment No. 3 thereto dated as
of December 3, 2019 and Amendment No. 4 thereto dated as of January 24, 2020 (the “Partnership Agreement”),
for the purpose of amending the terms of the Series E Preferred Partnership Units and the Series M Preferred Partnership Units.
Capitalized terms used and not defined herein shall have the meanings set forth in the Partnership Agreement.


 


WHEREAS, the Board of Directors
(the “Board”) of Braemar Hotels & Resorts Inc. (the “Company”) adopted resolutions
on November 5, 2019 and January 22, 2020 classifying and designating (i) 28,000,000 shares of Preferred Stock (as defined
in the Articles of Amendment and Restatement of the Company (as amended and supplemented to date and as may be amended and supplemented
from time to time, the “Charter”)) as Series E Preferred Stock and (ii) 28,000,000 shares of Preferred
Stock as Series M Preferred Stock;


 


WHEREAS, the Board initially
filed Articles Supplementary to the Charter with the State Department of Assessments and Taxation of Maryland on January 23, 2020,
establishing the Series E Preferred Stock and the Series M Preferred Stock;


 


WHEREAS, the Board adopted
resolutions on February 18, 2021 and filed Articles Supplementary to the Charter with the State Department of Assessments and Taxation
of Maryland on February 18, 2021, (i) reclassifying the authorized Series E Preferred Stock and Series M Preferred
Stock as unissued shares of Preferred Stock, and (ii) establishing the Series E Preferred Stock and the Series M Preferred
Stock, each with such preferences, rights, powers, restrictions, limitations as to distributions, qualifications and terms and conditions
of redemption as described in the Series E Articles Supplementary (as defined below) and the Series M Articles Supplementary
(as defined below), respectively;


 


WHEREAS, Section 11.1(b) of
the Partnership Agreement permits the General Partner to amend the Partnership Agreement without the approval of any other Partner if
such amendment is to create, issue or reflect the creation or issuance of additional Partnership Interests;


 


WHEREAS, the General Partner
has determined that, in connection with the issuance of the Series E Preferred Stock and the Series M Preferred Stock, it is
necessary and desirable to amend the Partnership Agreement to amend the terms of the Series E Preferred Partnership Units and the
Series M Preferred Partnership Units; and


 


WHEREAS, the General Partner
desires to so amend the Partnership Agreement as of the date first set forth above.


 






    	 		 



     


    

 


NOW, THEREFORE, in consideration
of the foregoing 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.            Article I
is amended to revise the following defined terms:


 


“Series E Articles
Supplementary” shall mean the Articles Supplementary Establishing and Fixing the Rights and Preferences of a Series of
Preferred Stock, designating the rights and preferences of the Series E Redeemable Preferred Stock, filed as part of the Company’s
charter with the State Department of Assessments and Taxation of Maryland, on April 2, 2021, as they may be amended and supplemented
from time to time.


 


“Series M Articles
Supplementary” shall mean the Articles Supplementary Establishing and Fixing the Rights and Preferences of a Series of
Preferred Stock, designating the rights and preferences of the Series M Redeemable Preferred Stock, filed as part of the Company’s
charter with the State Department of Assessments and Taxation of Maryland, on April 2, 2021, as they may be amended and supplemented
from time to time.


 


2.            In
accordance with Section 4.3 of the Partnership Agreement, Section (c)(i) of Exhibit I to the Partnership
Agreement, which sets forth the terms and conditions of the Series E Preferred Partnership Units, is hereby deleted in its entirety
and replaced by the following:


 


(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 E Preferred Partnership Units as to the payment of distributions, Braemar OP Limited Partner LLC, in its capacity
as the holder of the then outstanding Series E Preferred Partnership Units, shall be entitled to receive, when and as authorized
by the General Partner, from the Cash Flow, cumulative monthly preferential cash distributions in an amount per Series E Preferred
Partnership Unit at an annual rate equal to:


 


		(A)	beginning on the “Date of the Initial Closing,” 8.0% per annum of the stated value of $25.00
per Series E Preferred Partnership Unit (the “Stated Value”) (equivalent to an annual distribution rate
of $2.00 per Series E Preferred Partnership Unit);



 


		(B)	beginning on the first anniversary from the “Date of the Initial Closing,” 7.75% per annum
of the Stated Value (equivalent to an annual dividend rate of $1.9375 per share); and



 


		(C)	beginning on the second anniversary from the “Date of the Initial Closing,” 7.5% per annum
of the Stated Value (equivalent to an annual dividend rate of $1.875 per share.



 


For purposes of this section (c)(i) only,
the “Date of the Initial Closing” will mean the date of the first settlement of Series E Preferred Stock
in the Company’s offering (or the first date that any shares of Series E Preferred Stock were issued to any investor). Distributions
shall be payable monthly on the 15th day of each month (or, if such payment date is not a Business Day, the next succeeding Business Day,
with the same force and effect as if paid on such distribution payment date, and no interest or additional distributions or other sums
shall accrue on the amount so payable from such distribution payment date to such next succeeding Business Day). Distributions of Preferred
Return shall 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 Business Day of each month immediately preceding the applicable distribution payment date, which dates shall be the Partnership Record
Dates for the Series E Preferred Partnership Units. Any distribution of Preferred Return payable on the Series E Preferred Partnership
Units for any distribution period (as defined below) will be computed on the basis of twelve 30-day months and a 360-day year. Except
for distributions in liquidation or redemption as provided in Sections D and E, respectively, holders of Series E Preferred
Partnership Units will not be entitled to receive any distributions in excess of full cumulative Preferred Returns accrued on the Series E
Preferred Partnership Units at the distribution rate specified in this paragraph. No interest will be paid in respect of any distribution
payment or payments on the Series E Preferred Partnership Units that may be in arrears.


 






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3.            In
accordance with Section 4.3 of the Partnership Agreement, Section (c)(i) of Exhibit J to the Partnership
Agreement, which sets forth the terms and conditions of the Series M Preferred Partnership Units, is hereby deleted in its entirety
and replaced by the following:


 


(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 M Preferred Partnership Units as to the payment of distributions, Braemar OP Limited Partner LLC, in its capacity
as the holder of the then outstanding Series M Preferred Partnership Units, shall be entitled to receive, when and as authorized
by the General Partner, from the Cash Flow, cumulative monthly preferential cash distributions in an amount per Series M Preferred
Partnership Unit equal to 8.2% per annum of the stated value of $25.00 per Series M Preferred Partnership Unit (the “Stated
Value”) (equivalent to an annual distribution rate of $2.05 per Series M Preferred Partnership Unit). Beginning one
year from the date of original issuance of each Series M Preferred Partnership Unit, and on each one year anniversary thereafter
for such Series M Preferred Partnership Unit, the dividend rate shall increase by 0.10% per annum for such Series M Preferred
Partnership Unit; provided, however, that the dividend rate for any Series M Preferred Partnership Unit shall not exceed
8.7% per annum of the Stated Value. For purposes of this section (c)(i) only, the “date of the original issuance” of
the Series M Preferred Partnership Unit shall mean the earliest date that any Series M Preferred Partnership Unit was issued
during the calendar quarter in which the Series M Preferred Partnership Unit was issued. Distributions shall be payable monthly on
the 15th day of each month (or, if such payment date is not a Business Day, the next succeeding Business Day, with the same
force and effect as if paid on such distribution payment date, and no interest or additional distributions or other sums shall accrue
on the amount so payable from such distribution payment date to such next succeeding Business Day). Distributions of Preferred Return
shall 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
Business Day of each month immediately preceding the applicable distribution payment date, which dates shall be the Partnership Record
Dates for the Series M Preferred Partnership Units. Any distribution of Preferred Return payable on the Series M Preferred Partnership
Units for any distribution period (as defined below) will be computed on the basis of twelve 30-day months and a 360-day year. Except
for distributions in liquidation or redemption as provided in Sections D and E, respectively, holders of Series M Preferred
Partnership Units will not be entitled to receive any distributions in excess of full cumulative Preferred Returns accrued on the Series M
Preferred Partnership Units at the distribution rate specified in this paragraph. No interest will be paid in respect of any distribution
payment or payments on the Series M Preferred Partnership Units that may be in arrears.


 


4.            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.


 


5.            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.


 


6.            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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IN WITNESS WHEREOF, the undersigned
has executed this Amendment as of the date first set forth above.


 


	 	Braemar OP General Partner LLC,
	 	a Delaware limited liability company, as General Partner of Braemar Hospitality Limited Partnership
	 	 
	 	By: 	/s/ Robert G. Haiman
	 	 	Name: Robert G. Haiman
	 	 	Title: Executive Vice President, General Counsel and Secretary



 


[Amendment
No. 5 to Third Amended and Restated LP Agreement of Braemar Hospitality Limited Partnership]