exv10w1w5



 




Exhibit
10.1.5



AMENDMENT NO. 1

TO

THIRD AMENDED AND RESTATED

AGREEMENT OF LIMITED PARTNERSHIP

OF

ASHFORD HOSPITALITY LIMITED PARTNERSHIP




July 18, 2007




     This Amendment No. 1 to Third Amended and Restated Agreement of Limited Partnership of Ashford
Hospitality Limited Partnership (this “Amendment”) is made as of July 18, 2007 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 (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, the Board of Directors (the “Board”) of Ashford Hospitality Trust, Inc. (the
“Company”), adopted resolutions on June 2, 2007 classifying and designating 8,000,000 shares of
Preferred Stock (as defined in the Articles of Amendment and Restatement of the Company (the
“Charter”)) as Series D Preferred Stock;



     WHEREAS, the Board filed Articles Supplementary to the Charter with the State Department of
Assessments and Taxation of Maryland on July 17, 2007, establishing the Series D Preferred Stock,
with such preferences, rights, powers, restrictions, limitations as to distributions,
qualifications and terms and conditions of redemption as described in the Series D Articles
Supplementary;



     WHEREAS, on July 18, 2007, the Company issued 8,000,000 shares of the Series D Preferred
Stock;



     WHEREAS, the General Partner has determined that, in connection with the issuance of the
Series D Preferred Stock, it is necessary and desirable to amend the Partnership Agreement to
create additional Partnership Units in the form of Preferred Partnership Units having designations,
preferences and other rights which are substantially the same as the economic rights of the Series
D Preferred Stock.



     NOW, THEREFORE, in consideration of the premises 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 1 of the Partnership Agreement is hereby amended to add the following definitions:



     “AMEX” shall mean the American Stock Exchange or any successor thereto.



 









 







     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.



     “NASDAQ” shall mean the NASDAQ Global Market or any successor thereto.



     “NYSE” shall mean the New York Stock Exchange or any successor thereto.



     “Series D 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 8.45% Series D Cumulative Preferred Stock, filed as part of the Company’s
charter with the State Department of Assessments and Taxation of Maryland, on July 17, 2007.



     “Series D Preferred Partnership Interests” shall mean an ownership interest in the Partnership
evidenced by the Series D Preferred Partnership Units, having a preference in payment of
distributions or on liquidation as set forth in this Amendment.



     “Series D Preferred Partnership Units” shall mean the series of Preferred Partnership Units
established pursuant to this Amendment, representing a fractional, undivided share of the Series D
Preferred Partnership Interests of all Partners issued under the Partnership Agreement.



     “Series D Preferred Stock” shall mean the Series D Cumulative Preferred Stock of the Company,
with such preferences, rights, voting powers, restrictions, limitations as to distributions,
qualifications and terms and conditions of redemption as described in the Series D Articles
Supplementary.



     2. In accordance with Section 4.3 of the Partnership Agreement, set forth in Exhibit L hereto
are the terms and conditions of the Series D Preferred Partnership Units hereby established and
issued to Ashford OP Limited Partner, LLC in consideration of its contribution to the Partnership
of the proceeds of the issuance and sale of the Series D Preferred Stock by the Company. The
Partnership Agreement is amended to incorporate such Exhibit L as Exhibit L thereto and to replace
Exhibit A thereto with a revised Exhibit A to reflect the issuance of the Series D Preferred
Partnership Units.



     3. 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.



     4. 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.



     5. 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.



 









 





     IN WITNESS WHEREOF, the undersigned have 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/ David A. Brooks
 	 
	 	 	David A. Brooks, Vice President 	 
	 	 	 	 
	 




 









 








EXHIBIT L

DESIGNATION OF TERMS AND CONDITIONS OF SERIES D

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 8,000,000.



     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 B-1 Preferred Partnership Units, Series C 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 the Series D Preferred Partnership Units shall be cumulative from the
date of original issuance which date is July 18, 2007, 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), commencing October 15, 2007.
Any



Exhibit L-Page 1









 







distribution of Preferred Return payable on the Series D 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 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



Exhibit L-Page 2









 







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 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



Exhibit L-Page 3









 







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 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.




Exhibit L-Page 4