Braemar Hotels & Resorts Inc 8-K, filed Oct 8, 2026
Braemar Hotels & Resorts Inc. (BHR)
About this 8-K
Braemar Hotels & Resorts Inc filed this 8-K on October 8, 2026, reporting on events of October 6, 2026.
Items reported
- Item 1.01: Entered into a material agreement
- Item 9.01: Financial statements and exhibits
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
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| ITEM 1.01 | ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT |
Cooperation and Settlement Agreement
On October 6, 2026, Braemar Hotels & Resorts Inc. (“Braemar”), Ashford Hospitality Trust, Inc., and Ashford Inc. (“Ashford”) entered into a Cooperation and Settlement Agreement (the “Settlement Agreement”) with Al Shams Investments Limited (“Al Shams”), and, solely for certain purposes set forth therein, Wafic Rida Said (collectively with Al Shams, the “Al Shams Parties”).
Pursuant to the Settlement Agreement, Al Shams has withdrawn the notice delivered to Braemar purporting to nominate director candidates to Braemar’s board of directors at Braemar’s upcoming annual meeting. The Al Shams Parties have also agreed to customary standstill restrictions and voting commitments. In connection with the board of directors previously announced board of directors refresh process, the Al Shams Parties will have the opportunity to consult with the Braemar’s search firm regarding candidates for one additional director seat. The board of directors retains sole discretion over the selection.
The Settlement Agreement includes mutual releases and non-disparagement provisions, thereby resolving various disputes between the parties, including claims under the securities laws and claims sounding in defamation and libel. Braemar agreed to pay Al Shams $25,000,000 plus expenses under the Settlement Agreement. Braemar currently expects that its total contribution under the Settlement Agreement will be between $4,000,000 to $6,000,000, after application of any applicable insurance proceeds and contributions made by Ashford under the Allocation Agreement described below. There can be no assurances that Braemar will recover any or all of the insurance proceeds it anticipates receiving in connection with the Settlement Agreement. Braemar believes its contribution to the Settlement Agreement would likely be less than the cost of any potential litigation Braemar would have otherwise incurred.
Allocation Agreement
On October 6, 2026, in connection with the Settlement Agreement, Braemar and Ashford entered into an Allocation Agreement (the “Allocation Agreement”) governing the allocation of amounts due from Braemar under the Settlement Agreement between Braemar and Ashford. Under the Allocation Agreement, Braemar and Ashford will each bear 50% of the applicable payments, net of any applicable insurance proceeds, which the companies are pursuing.
The foregoing descriptions of the Settlement Agreement and the Allocation Agreement are each qualified in their entirety by reference to the full text of the respective agreements, which are filed as Exhibits 10.1 and 10.2 to this Current Report on Form 8-K and incorporated herein by reference.
Forward-Looking Statements
Certain statements and assumptions in this communication contain or are based upon “forward-looking” information and are being made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Forward-looking statements in this communication include, among others, statements about the Company’s strategy and future plans. These forward-looking statements are subject to risks and uncertainties. When we use the words “will likely result,” “may,” “anticipate,” “estimate,” “should,” “expect,” “believe,” “intend,” or similar expressions, we intend to identify forward-looking statements. Such statements are subject to numerous assumptions and uncertainties, many of which are outside Braemar’s control.
These forward-looking statements are subject to known and unknown risks and uncertainties, which could cause actual results to differ materially from those anticipated, including, without limitation: our ability to collect the insurance proceeds; our ability to complete the previously announced shareholder value creation plan on a timely basis, if at all; potential risks related to actions or proposals from activist stockholders; our ability to repay, refinance or restructure our debt and the debt of certain of our subsidiaries; anticipated or expected purchases or sales of assets; our projected operating results; completion of any pending transactions; risks associated with our ability to effectuate our dividend policy, including factors such as operating results and the economic outlook influencing our board’s decision whether to pay further dividends at levels previously disclosed or to use available cash to pay dividends; our understanding of our competition; market trends; projected capital expenditures; the impact of technology on our operations and business; general volatility of the capital markets and the market price of our common stock and preferred stock; availability, terms and deployment of capital; availability of qualified personnel; changes in our industry and the markets in which we operate, interest rates or the general economy; and the degree and nature of our competition. These and other risk factors are more fully discussed in Braemar’s filings with the U.S. Securities and Exchange Commission (the “SEC”).
The forward-looking statements included in this communication are only made as of the date of this communication. Such forward-looking statements are based on our beliefs, assumptions, and expectations of our future performance taking into account all information currently known to us. These beliefs, assumptions, and expectations can change as a result of many potential events or factors, not all of which are known to us. If a change occurs, our business, financial condition, liquidity, results of operations, plans, and other objectives may vary materially from those expressed in our forward-looking statements. You should carefully consider this risk when you make an investment decision concerning our securities. Investors should not place undue reliance on these forward-looking statements. The Company can give no assurance that these forward-looking statements will be attained or that any deviation will not occur. We are not obligated to publicly update or revise any forward-looking statements, whether as a result of new information, future events or circumstances, changes in expectations, or otherwise, except to the extent required by law.
IMPORTANT INFORMATION FOR INVESTORS AND STOCKHOLDERS
CERTAIN INFORMATION REGARDING PARTICIPANTS
Braemar and its directors and certain of its executive officers will be deemed to be “participants” (as defined in Schedule 14A under the Securities Exchange Act of 1934, as amended) in the solicitation of proxies from the Company’s stockholders by Braemar in connection with the matters to be considered at Braemar’s 2026 Annual Meeting of Stockholders. Information regarding the names of Braemar’s executive officers and directors and their respective interests in Braemar by security holdings or otherwise is set forth (i) in Braemar’s proxy statement for the 2025 Annual Meeting of Stockholders, which was filed with the SEC on October 30, 2025 (the “2025 Proxy Statement”), which is available here, including under the headings “SUMMARY”, “PROPOSAL NUMBER ONE-ELECTION OF DIRECTORS”, “CORPORATE GOVERNANCE”, “BOARD OF DIRECTORS AND COMMITTEES”, “EXECUTIVE OFFICERS”, “EXECUTIVE COMPENSATION”, “PROPOSAL NUMBER TWO-ADVISORY APPROVAL OF EXECUTIVE COMPENSATION”, “SECURITY OWNERSHIP OF MANAGEMENT AND CERTAIN BENEFICIAL OWNERS” and “CERTAIN RELATIONSHIPS AND RELATED PERSON TRANSACTIONS” and (ii) under Item 1.01 “ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT” in the Current Reports on Form 8-K filed by Braemar with the SEC on December 23, 2025 (available here), on March 17, 2026 (available here), on April 3, 2026 (available here) and on May 22, 2026 (available here), under Item 5.02 “DEPARTURE OF DIRECTORS OR CERTAIN OFFICERS; ELECTION OF DIRECTORS; APPOINTMENT OF CERTAIN OFFICERS; COMPENSATORY ARRANGEMENTS OF CERTAIN OFFICERS” in the Current Reports on Form 8-K filed by Braemar with the SEC on February 25, 2026 (available here), on February 27, 2026 (available here), on March 6, 2026 (available here), on March 17, 2026 (available here) and on May 28, 2026 (available here), under Item 5.07 “SUBMISSION OF MATTERS TO A VOTE OF SECURITIES HOLDERS” in the Current Report on Form 8-K filed by Braemar with the SEC on December 16, 2025 (available here) and under Item 8.01 “OTHER EVENTS” in the Current Report on Form 8-K filed by Braemar with the SEC on June 1, 2026 (available here). To the extent holdings of such persons in the Company’s securities have changed since the amounts described in the 2025 Proxy Statement, such changes have been reflected on Initial Statements of Beneficial Ownership on Form 3 or Statements of Change in Ownership on Form 4 filed with the SEC, by Jim A. Plohg on December 22, 2025 (available here), by Jim A. Plohg on January 14, 2026 (available here), by Monty J. Bennett on February 26, 2026 (available here), by Richard J. Stockton on February 26, 2026 (available here) and by Eric Batis on June 1, 2026 (available here). Additional information can also be found in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2025, filed with the SEC on March 12, 2026 (available here), as amended by the Amendment No. 1 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2025 (available here). Details concerning the nominees of Braemar’s Board of Directors for election at the 2026 Annual Meeting will be included in the Proxy Statement (defined below). These documents, including the definitive Proxy Statement (and any amendments or supplements thereto) and other documents filed by the Company with the SEC, are or will be available free of charge at the SEC’s website at www.sec.gov. Copies of the documents filed by Braemar are also available free of charge by accessing the “SEC Filings” section of the Company’s website at www.braemar.q4ir.com/investor/financials-sec-filings/sec-filings/. Further information regarding the participants in the proxy solicitations and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the Proxy Statement.
IMPORTANT INFORMATION AND WHERE TO FIND IT
Braemar Hotels & Resorts Inc. (the “Company” or “Braemar”) intends to file a proxy statement and GOLD proxy card and other relevant documents with the SEC in connection with its solicitation of proxies from the Company’s stockholders for Braemar’s 2026 Annual Meeting of Stockholders (the “Proxy Statement”). This communication is neither a solicitation of a proxy nor a substitute for any proxy statement or other document that Braemar may file with the SEC in connection with any solicitation by Braemar. BRAEMAR STOCKHOLDERS ARE URGED TO READ THE PROXY STATEMENT (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) FILED BY BRAEMAR AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Stockholders may obtain copies of these documents and other documents filed with the SEC by Braemar free of charge through the website maintained by the SEC at www.sec.gov. Copies of the documents filed by Braemar are also available free of charge by accessing the “SEC Filings” section of the Company’s website at www.braemar.q4ir.com/investor/financials-sec-filings/sec-filings/.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit Number |
Description |
| 10.1 | Cooperation and Settlement Agreement, dated October 6, 2026, by and among Braemar Hotels & Resorts Inc., Ashford Hospitality Trust, Inc., Ashford Inc., Al Shams Investments Limited, and Wafic Rida Said |
| 10.2 | Allocation Agreement, dated October 6, 2026, by and between Braemar Hotels & Resorts Inc. and Ashford Inc. |
| 104 | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| BRAEMAR HOTELS & RESORTS INC. | ||
| Dated: October 8, 2026 | By: | /s/ Jim Plohg |
| Jim Plohg | ||
| Executive Vice President, General Counsel & Secretary | ||
Exhibit 10.1
EXECUTION VERSION
COOPERATION AND SETTLEMENT AGREEMENT
This Cooperation and Settlement Agreement (this “Agreement”) is entered into as of October 6, 2026 (the “Effective Date”), by and among Al Shams Investments Limited, a Bermuda company (“Al Shams”) and, solely for the purposes of Section 8, Wafic Rida Said, an individual (together with Al Shams, the “Al Shams Parties”), on one hand, and Braemar Hotels & Resorts Inc., a Maryland corporation (“Braemar”), Ashford Hospitality Trust, Inc., a Maryland corporation (“AHT”), and Ashford Inc., a Nevada corporation (“AINC,” and together with Braemar and AHT, the “Company Group”), on the other hand. Al Shams, Mr. Said, and each member of the Company Group are each referred to herein as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, Al Shams has delivered to Braemar a notice of nomination of a slate of director candidates for election to Braemar’s board of directors (the “Board”) at Braemar’s 2026 Annual Meeting of Stockholders (including any adjournment or postponement thereof, the “2026 Annual Meeting”), together with related proposals and materials (collectively, the “Nomination Notice”);
WHEREAS, the Al Shams Parties or their affiliates have made public statements and communications critical of the Board and certain of its current and former members and the Company Group;
WHEREAS, the Al Shams Parties or their affiliates have asserted, or threatened to assert, direct claims against the Company Group, including (i) claims sounding in defamation and libel, arising out of statements and conduct of the Parties and their respective representatives, (ii) claims under the Securities Act of 1933 and the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder, and (iii) claims similar to those brought by Babek “Bob” Ghassemieh and Morning View Hotels BH1, LLC (the “Direct Claims”);
WHEREAS, the Al Shams Parties or their affiliates have also asserted, or threatened to assert, derivative claims against Braemar and current or former members of management and the Board, brought or purportedly brought by Al Shams in its capacity as a stockholder of Braemar on behalf of Braemar, alleging breaches of fiduciary duty and related claims arising out of Board and management conduct (the “Derivative Claims”);
WHEREAS, Al Shams has filed and is currently pursuing a verified petition under Texas Rule of Civil Procedure 202 seeking pre-suit depositions of two former directors of Braemar (the “Rule 202 Petition”) in order to investigate potential claims against the Company Group and current or former members of management and the Board;
WHEREAS, the Direct Claims, the Derivative Claims, and any and all claims or potential claims that are or could be the subject of, or investigated through, the Rule 202 Petition, together with any and all other claims of any nature whatsoever asserted, threatened, or under investigation by any Al Shams Party or its affiliates against any member of the Company Group or current or former members of management and the Board as of the Effective Date, are collectively referred to herein as the “Disputed Claims”;
WHEREAS, as previously announced, the Board is currently engaged in a process to refresh a majority of the Board with new independent directors (the “Board Refresh Process”);
WHEREAS, the Company Group denies any wrongdoing or liability with respect to the Disputed Claims;
WHEREAS, Mr. Said is the ultimate beneficial owner of Al Shams and is signing this Agreement, among other things, to undertake to use best efforts to cause Al Shams and its affiliates to comply with the terms of this Agreement; and
WHEREAS, the Parties now wish to resolve their disputes and enter into this comprehensive cooperation and settlement arrangement on the terms set forth below, without any Party admitting liability.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound hereby, agree as follows:
1. Settlement Payment
1.1 Aggregate Amount. Braemar shall pay to Al Shams an aggregate amount of $25,000,000 in consideration for the settlement of the Disputed Claims, the release provided under Section 2.1 and the other provisions of this Agreement, and Braemar shall pay to Al Shams an aggregate amount of $15,000,000 as reimbursement of expenses incurred by Al Shams in connection with its conflict and disagreements with Braemar (such amounts collectively, the “Settlement Payment”). To the extent that Braemar does not have sufficient funds on the date any installment portion of the Settlement Payment is due (other than the payment due on the Effective Date), taking into account any reserves for working capital and upcoming liquidity needs as reasonably determined by the Board, subject to compliance with NYSE listing rules, Braemar may settle any remaining portion of such payment in shares of Braemar common stock based on the 30-day VWAP on such date, in an aggregate amount not to exceed $4,000,000 (the “Stock Settlement”); provided, however, that, in the event the issuance of any such shares of Braemar common stock would cause Al Shams (together with its affiliates) to beneficially or constructively own in excess of 9.8% of the outstanding shares of Braemar common stock or otherwise violate the ownership limitations set forth in Braemar’s Articles of Amendment and Restatement, as amended (the “Articles of Amendment and Restatement”), then, prior to the issuance of any such shares, the Board must take all necessary actions to promptly grant Al Shams an exception to such limitations and establish an Excepted Holder Limit (as such term is defined in the Articles of Amendment and Restatement) that permits Al Shams (together with its affiliates) to own all such additional shares together with all shares then-owned by such entities until such time as Al Shams voluntarily divests a sufficient number of shares so that it (together with its affiliates) ceases to beneficially or constructively own 9.8% of the outstanding shares of Braemar common stock. The grant of such exception and Excepted Holder Limit shall not be subject to any other conditions, obligations or requests by the Company or the Board or any additional undertakings, acknowledgements or agreements of any kind other than certain representations customary for Braemar to determine compliance with applicable tax and securities laws.
1.2 Installments. The Settlement Payment shall be paid in three (3) installments, in the following amounts and on the following dates:
| Installment | Amount | Payment Date | |||||
| First | $ | 20,000,000 | Effective Date | ||||
| Second | $ | 10,000,000 | Four months after the Effective Date | ||||
| Third | $ | 10,000,000 | Eight months after the Effective Date | ||||
1.3 Conditions to Payment. Each installment payment shall be conditioned upon the continued compliance of the Al Shams Parties and their affiliates with their respective obligations under this Agreement, including the Standstill (Section 3), the Voting Agreement (Section 4), and the withdrawal of the Nomination Notice and the Rule 202 Petition (Section 5); in the event that Braemar has identified any alleged material breach (a “Section 1.3 Event”), (a) Braemar shall notify Al Shams in writing specifying in reasonable detail the nature of such alleged Section 1.3 Event (a “Section 1.3 Notice”) and (b) following receipt of the Section 1.3 Notice, Al Shams shall have fifteen (15) days (the “Section 1.3 Cure Period”) to cure the alleged Section 1.3 Event if curable and provide Braemar with written notice confirming in reasonable detail that such Section 1.3 Event has been cured (the “Section 1.3 Response”). For the avoidance of doubt, subject to Section 1.4, if Al Shams cures the Section 1.3 Event (if curable), Braemar shall make the applicable installment payment upon the later of (x) the Payment Date specified in Section 1.2 or (y) within five (5) business days following the receipt of the Section 1.3 Response.
1.4 Escrow. In the event that Braemar provides a Section 1.3 Notice, and there has been no Section 1.3 Response or Braemar disputes the Section 1.3 Response, Braemar may deposit any applicable Settlement Payment installment into an escrow account with a mutually acceptable escrow agent in lieu of submitting such payment to Al Shams; provided, however, that in the event Braemar’s next installment payment is due on a date that falls within the Section 1.3 Cure Period applicable to such Section 1.3 Notice, then Braemar must deposit such Settlement Payment installment in such escrow account. Braemar and Al Shams shall promptly submit any dispute regarding the release of any escrowed amount to expedited, final, and binding arbitration pursuant to Section 1.5. Any amounts paid pursuant to this Section 1.4 shall be subject to subsequent resolution pursuant to Section 1.6.
1.5 Arbitration. Any dispute, claim or controversy arising out of or relating to Section 1.3 or Section 1.4, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Dallas, Texas before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. The parties shall use commercially reasonable efforts to ensure that the arbitration award is issued within ninety (90) days of the commencement of the arbitration. Judgment on such award may be entered in any court having jurisdiction.
1.6 Clawback. Within ten (10) days following a final decision of a court of competent jurisdiction or the arbitrator contemplated by Section 1.5, finding any material breach by any of the Al Shams Parties of their respective obligations under this Agreement, Al Shams shall pay to Braemar a cash amount equal to the aggregate cash payments made by Braemar as part of the Settlement Payment and return to Braemar any Braemar shares of common stock issued as part of the Stock Settlement in respect of the Settlement Payment.
2. Mutual Release and Waiver of Claims
2.1 Release by Al Shams. Effective upon receipt by Al Shams of the First Installment of the Settlement Payment, each of the Al Shams Parties, for themselves and their respective affiliates, successors, and assigns (collectively, the “Al Shams Releasing Parties”), hereby releases with prejudice and absolutely and forever discharges the Company Group and each of its respective affiliates and present and former officers, directors, employees, agents, and representatives (collectively, the “Company Released Parties”) from and against any and all claims, demands, damages, debts, liabilities, obligations, costs, expenses, actions, and causes of action of any nature whatsoever, whether now known or unknown, accrued or unaccrued, suspected or unsuspected, at law or in equity, that any Al Shams Releasing Party now has, has ever had, or may in the future have, arising from or relating to any action or inaction occurring on or before the Effective Date, including without limitation the Disputed Claims; provided that such release shall not include any right of Al Shams arising under this Agreement.
2.2 Release by the Company Group. Effective upon receipt by Al Shams of the First Installment of the Settlement Payment, each member of the Company Group, for itself and its respective affiliates, successors, and assigns (collectively, the “Company Releasing Parties”), hereby releases with prejudice and absolutely and forever discharges the Al Shams Parties and each of their respective affiliates (collectively, the “Al Shams Released Parties”) from and against any and all claims, demands, damages, debts, liabilities, obligations, costs, expenses, actions, and causes of action of any nature whatsoever, whether now known or unknown, accrued or unaccrued, suspected or unsuspected, at law or in equity, that any Company Releasing Party now has, has ever had, or may in the future have, arising from or relating to any action or inaction occurring on or before the Effective Date; provided that such release shall not include any right of the Company Group arising under this Agreement.
2.3 Third-Party Beneficiaries of Release. The Company Released Parties (including, without limitation, the two former directors named in the Rule 202 Petition) are express third-party beneficiaries of the release granted by the Al Shams Parties under Section 2.1, and shall be entitled to enforce such release directly against the Al Shams Parties as though such Company Released Parties were parties to this Agreement, notwithstanding that they are not signatories hereto, in accordance with Section 12.
2.4 Total and Exclusive Consideration; Waiver of Participation in Other Claims. The Al Shams Parties acknowledge and agree that the Settlement Payment is the sole and exclusive consideration to which any Al Shams Party or its affiliates is or will be entitled in connection with the Disputed Claims, the matters released under Section 2.1 and the reimbursement of expenses, and that, other than the right to receive the Settlement Payment in accordance with Section 1 and the right to enforce this Agreement, the Al Shams Parties and their affiliates shall have no further right to recover, receive, retain, accept, or otherwise benefit from any other or additional amount, recovery, settlement, judgment, award, or other consideration of any kind, whether arising under this Agreement or otherwise. Without limiting the generality of the foregoing, each Al Shams Party, for itself and its affiliates, hereby irrevocably and unconditionally waives, releases, and gives up, effective as of the Effective Date and continuing in perpetuity, any and all rights it now has or may in the future have, whether as a current, former, or future stockholder of Braemar or otherwise, to participate in, share in, recover from, or otherwise benefit from any derivative action, class action, or other representative or collective claim or proceeding of any kind brought by or on behalf of any other stockholder, purported stockholder, class, or the Company against any member of the Company Group or any of their respective current or former directors, officers, employees, or representatives — regardless of whether such claim or proceeding (a) relates to, overlaps with, or is unrelated to the Disputed Claims, (b) is pending as of the Effective Date or is commenced at any time thereafter, and (c) arises out of facts, circumstances, or conduct occurring in the past, present, or future. This waiver is not limited to claims similar to or arising from the same facts as the Disputed Claims and applies to any and all derivative or class or other representative claims of any kind whatsoever, without qualification.
2.5 General Release Terms. The releases set forth in this Section 2 shall be full, unconditional, and general releases. Each of the Al Shams Parties represents that it or he has not assigned or transferred, and no other person has any interest in, any claim released hereunder.
2.6 Cooperation. Following the date of this Agreement, the Al Shams Parties and their affiliates shall reasonably cooperate with the members of the Company Group in their defense of any future claims asserted by any third-party that relate to the matters and claims released under this Agreement, including the Disputed Claims.
3. Standstill
3.1 Standstill Period. The Al Shams Parties agree to a standstill commencing on the Effective Date and continuing through the tenth (10th) anniversary of the Effective Date (the “Standstill Period”); provided, however that Al Shams may terminate the Standstill Period upon written notice to the Company Group if the Company Group commits a material breach of its obligations under this Agreement that (if capable of being cured) is not cured within fifteen (15) days after the Company Group’s receipt of written notice from Al Shams specifying the material breach.
3.2 Restrictions. During the Standstill Period, each Al Shams Party shall not, and shall cause its affiliates and direct its representatives not to, directly or indirectly, alone or in concert with others, with respect to any member of the Company Group:
(a) engage in, or encourage, assist, support, advise, or facilitate, any solicitation of proxies or consents, or become a “participant” in a “solicitation” (as such terms are defined under Regulation 14A of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), including any solicitation of consents to call a special meeting of stockholders or any “vote no”, “withhold” or similar campaign;
(b) encourage, influence, advise, form, join, or in any way participate in any partnership, limited partnership, syndicate or other “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to securities of any member of the Company Group;
(c) deposit any securities of any member of the Company Group in any voting trust or subject any such securities to any voting arrangement or agreement, other than as set forth in Section 4, or sell, transfer, offer or agree to sell or transfer to any third party, through swap or hedging transactions, derivative agreements or otherwise, any voting rights decoupled from the underlying securities of any member of the Company Group;
(d) seek, or encourage any person to submit or otherwise support, nominations for the election or removal of directors of any member of the Company Group, or otherwise seek representation on, or the removal of any member of, the Board or the board of directors of any other member of the Company Group except as required by this Agreement;
(e) make, solicit, support, encourage or make any public comment with respect to any proposal regarding a merger, acquisition, recapitalization, restructuring, disposition, or other business combination or extraordinary transaction involving any member of the Company Group, or any proposal to amend the certificate of incorporation, bylaws, or advisory agreement of any member of the Company Group;
(f) acquire, offer, seek, or propose to acquire, or announce any intention to acquire, directly or indirectly, any additional shares of common stock or other securities of any member of the Company Group or any exposure thereto, including through the use of swap or hedging transactions, it being agreed that this restriction is an absolute prohibition on the acquisition of any additional securities/exposure of any member of the Company Group during the Standstill Period and not subject to any percentage threshold or exception, other than with respect to securities received as a stock dividend or stock split;
(g) other than open-market sales through a broker or dealer where the identity of the purchaser is not known, sell or transfer, or agree to sell or transfer, directly or indirectly (including through swap or hedging transactions or otherwise), any securities of any member of the Company Group to any third party that (i) has filed a Schedule 13D, (ii) has run, or publicly announced an intention to run, a proxy contest with respect to another company within the three (3) years prior to such sale or agreement to sell, or (iii) would as a result of such transaction hold more than five percent (5%) of any outstanding class of securities of any member of the Company Group;
(h) institute, solicit, or join, as a party, any litigation, arbitration, Rule 202 or other pre-suit discovery proceeding (including any stockholder list, books and records requests), or other proceeding of any kind (including any derivative action) against any member of the Company Group or any of their respective current or former directors, officers, or employees, other than to enforce the terms of this Agreement;
(i) seek to advise, encourage, support, or influence any person with respect to the voting or disposition of any securities of any member of the Company Group, or otherwise seek to control, influence or change the management, business, operations, strategy, governance, registration and/or listing status, capitalization, capital allocation, affairs or policies of any member of the Company Group;
(j) engage in any short sale or any purchase, sale or grant of any option, warrant, convertible security, stock appreciation right or other similar right or transaction with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from a decline in the market price or value of the securities of any member of the Company Group;
(k) authorize, solicit, pay, or subsidize any third party to perform, or agree, assist, or encourage any person in connection with, any of the foregoing; or
(l) disclose any intention, plan, or arrangement inconsistent with the foregoing, or publicly contest or request a waiver of any of the restrictions in this Section 3.
4. Voting Agreement
4.1 Voting Commitment. At all times that any Al Shams Party or its affiliates own Braemar shares during the Standstill Period, Al Shams and its affiliates shall appear in person or by proxy at, and shall vote all shares of Braemar common stock beneficially owned by it in accordance with the recommendation of the Board on all matters submitted to a vote of Braemar’s stockholders at any annual or special meeting, and shall similarly deliver consents or consent revocations in accordance with the Board’s recommendation in connection with any action by written consent of stockholders.
4.2 Irrevocable Proxy. In the event any Al Shams Party fails to comply with Section 4.1, Al Shams (and its affiliates) hereby irrevocably appoints Braemar as its sole and exclusive attorney-in-fact and proxy, with full power of substitution, to vote all shares of Braemar common stock beneficially owned by the Al Shams Parties (or their affiliates) in accordance with the recommendation of the Board, at any annual or special meeting of Braemar’s stockholders held during the Standstill Period; provided that Braemar shall provide Al Shams with prompt written notice of any such failure and a reasonable opportunity to cure. Al Shams hereby revokes any and all prior proxies granted with respect to its Braemar shares that are inconsistent with this Section 4.2.
4.3 Lock-Up. From the Effective Date until the conclusion of Braemar’s 2026 Annual Meeting of Stockholders, Al Shams shall not sell, transfer, pledge, hypothecate, encumber, or otherwise dispose of any of the shares of Braemar common stock beneficially owned by Al Shams, and shall not enter into any swap, hedge, short sale, or other derivative or synthetic arrangement with respect to such shares that would have the effect of transferring the economic risk of ownership of any shares. Notwithstanding any of the foregoing provisions in this Section 4, nothing in this Agreement shall prohibit Al Shams from selling, transferring, offering or agreeing to sell or transfer to any third party shares of Braemar common stock following the conclusion of the 2026 Annual Meeting; provided, that any such sale or transfer shall remain subject to Section 3.2(g).
5. Withdrawal of Nomination Notice and Rule 202 Petition
5.1 Withdrawal of Nomination Notice. Al Shams hereby irrevocably withdraws the Nomination Notice, including its previously delivered notice of nomination of a slate of director candidates and any related proposals, questionnaires, or nomination materials submitted in connection therewith, and any definitive or preliminary proxy statement filed or to be filed in connection therewith, for the 2026 Annual Meeting. Al Shams and its affiliates shall immediately cease all solicitation activity related thereto, including revoking or ceasing reliance on any proxies already obtained, and shall not resubmit any director nomination or related proposal for the 2026 Annual Meeting or any subsequent annual or special meeting of Braemar held during the Standstill Period.
5.2 Withdrawal of Rule 202 Petition. Promptly, and in any event within ten (10) business days following the Effective Date, Al Shams and its affiliates shall take all steps necessary to dismiss or withdraw the Rule 202 Petition with prejudice (or otherwise terminate such proceeding on terms reasonably satisfactory to Braemar), including immediately ceasing all efforts to obtain, notice, or take the depositions of the two former directors named therein. Neither Al Shams nor its affiliates shall refile a Rule 202 petition or otherwise seek discovery against any member of the Company Group or any of their respective current or former directors, officers, or employees with respect to the Disputed Claims.
5.3 Other Withdrawals. Al Shams and its affiliates shall withdraw and terminate any demands on the Board, requests for stockholder list materials or other books and records, and any document preservation notices delivered to third parties in connection with contemplated or threatened litigation relating to the Disputed Claims.
5.4 Third-Party Beneficiaries. The current and former directors, including those named in the Rule 202 Petition, are express third-party beneficiaries of this Section 5 and shall be entitled to enforce Al Shams’s obligations under this Section 5 directly, in accordance with Section 12.
6. New Independent Director
6.1 Board Refresh Process. The Parties acknowledge the previously announced Board Refresh Process, and agree that the consultation rights with respect to an independent director contemplated by this Section 6 shall be undertaken as part of, and not in addition to or separate from, the Board Refresh Process already underway.
6.2 Consultation Right. The candidate for at least one of the additional director seats shall be sourced by the search firm engaged by Braemar to identify director candidates in connection with the Board Refresh Process. Al Shams shall have a reasonable opportunity to consult with such search firm in connection with its identification and evaluation of candidates for one such seat; provided, that the ultimate selection and appointment of the director shall remain in the sole discretion of the Board, acting through its Nominating and Corporate Governance Committee, consistent with the Board Refresh Process generally. For the avoidance of doubt, Al Shams shall have no consent right with respect to the selection of such director.
7. Mutual Non-Disparagement
7.1 Covenant. During the Standstill Period, or if earlier, until such time as the other Party or any of its affiliates or representatives shall have breached this Section 7, neither the Al Shams Parties (nor their respective affiliates or representatives), on the one hand, nor the Company Group (nor its affiliates, successors, officers, directors, or representatives), on the other hand, shall, directly or indirectly, publicly criticize, disparage, or otherwise defame or slander the other Parties or their affiliates, or, in the case of the Al Shams Parties (and their respective affiliates and representatives), the current and former directors, officers, and employees of Braemar, AHT, or AINC, in any manner that would reasonably be expected to damage the business or reputation of the other or such individuals. This Section 7 will not restrict the ability of any person or entity to (a) comply with any subpoena or other legal process or respond to a request for information from any governmental authority with jurisdiction over such person or entity; or (b) enforce such person or entity’s rights pursuant to this Agreement.
7.2 Third-Party Beneficiaries. The current and former directors and officers of Braemar, AHT, and AINC are express third-party beneficiaries of this Section 7 to the extent it protects them, and shall be entitled to enforce this Section 7 directly against Al Shams, in accordance with Section 12.
8. Mr. Said’s Undertaking
Mr. Said, in his personal capacity, hereby undertakes to use his best efforts to cause Al Shams, and all of his and Al Shams’s affiliates, to comply fully with the terms of this Agreement, including the Standstill (Section 3), the Voting Agreement (Section 4), the withdrawal obligations (Section 5), and the release (Section 2). Mr. Said shall be jointly and severally liable with Al Shams for any breach of this Agreement by Al Shams or its or his affiliates, and the other Parties/beneficiaries shall be entitled to pursue remedies, including specific performance and damages as set forth herein. Notwithstanding the foregoing, the sole remedy available against Mr. Said for any breach of this Agreement (other than a breach of the obligations contained in Section 1.6) shall be specific performance of the Al Shams Parties and their affiliates obligations hereunder. Except in connection with a breach by Al Shams of the obligations contained in Section 1.6, Mr. Said shall not be personally liable for, or required to pay, any monetary damages, whether direct, indirect, consequential, or otherwise, arising out of or in connection with any breach of this Agreement.
9. Representations and Warranties
9.1 Representations of the Company Group. Each member of the Company Group represents and warrants that: (a) it has the corporate power and authority to execute and deliver this Agreement; (b) this Agreement has been duly authorized, executed, and delivered by it and constitutes its valid and binding obligation, enforceable against it in accordance with its terms, subject to customary bankruptcy and equitable exceptions; and (c) the execution, delivery, and performance of this Agreement does not violate any law or conflict with any agreement to which it is a party.
9.2 Representations of Al Shams. Al Shams represents and warrants that: (a) it has the power and authority (including requisite corporate authority) to execute and deliver this Agreement; (b) this Agreement has been duly authorized, executed, and delivered by it or him and constitutes its valid and binding obligation, enforceable in accordance with its terms, subject to customary bankruptcy and equitable exceptions; (c) as of the Effective Date, Al Shams beneficially owns 6,513,000 shares of Braemar common stock, free and clear of all liens, and neither Al Shams nor any of its affiliates beneficially owns or otherwise has any exposure to any other securities of any member of the Company Group; and (d) Al Shams is not aware of any other pending or threatened derivative action, class action, or similar representative claim asserting the Disputed Claims other than as disclosed in writing to Braemar prior to the Effective Date.
10. Governing Law
This Agreement shall be governed in all respects, including validity, interpretation, and effect, by, and construed in accordance with, the laws of the State of Texas, without giving effect to the choice of law or conflict of law principles thereof that would result in the application of the laws of another jurisdiction.
11. Jurisdiction; Waiver of Jury Trial
11.1 Exclusive Jurisdiction. Each Party irrevocably agrees that any suit, claim, action, or proceeding relating to this Agreement shall be brought and determined exclusively in the state or federal courts located in Dallas, Texas, and each Party irrevocably submits to the personal jurisdiction of such courts, waives any objection based on forum non conveniens or improper venue, and agrees not to seek transfer of any such proceeding to another venue.
11.2 Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION RELATING TO THIS AGREEMENT.
12. Third-Party Beneficiaries
Except as expressly provided in Sections 2.3, 5.4, and 7.2, the representations, warranties, and agreements of the Parties contained in this Agreement are intended solely for the benefit of the Parties, and this Agreement shall confer no rights, benefits, remedies, obligations, or liabilities on any other person. For the avoidance of doubt, the current and former directors and officers of Braemar, AHT, and AINC (including, without limitation, the two former directors named in the Rule 202 Petition) are express third-party beneficiaries of Sections 2.1, 2.3, 3.2(h) (to the extent it restricts litigation or other action against such individuals), 5, and 7, and are entitled to enforce those provisions directly against Al Shams as though such individuals were parties to this Agreement, notwithstanding that they are not signatories hereto.
13. Specific Performance
Each Party acknowledges that irreparable injury would occur in the event any provision of this Agreement is not performed in accordance with its terms, and that such injury would not be adequately compensable by money damages alone. Accordingly, each Party (and, with respect to the provisions identified in Section 12, the third-party beneficiaries described therein) shall be entitled to specific performance and injunctive relief to prevent any breach of this Agreement, without the necessity of posting bond, in addition to any other remedy at law or in equity.
14. SEC Filings
14.1 SEC Filings. No later than four (4) business days following execution of this Agreement, Braemar shall file a Current Report on Form 8-K (or other permissible Exchange Act report) with the U.S. Securities and Exchange Commission reporting entry into this Agreement, appending or incorporating this Agreement by reference as an exhibit thereto, and shall provide Al Shams a reasonable opportunity to review and comment prior to filing.
15. Miscellaneous
15.1 Entire Agreement. This Agreement constitutes the entire understanding and agreement among the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, understandings, and representations, whether oral or written.
15.2 Amendment. This Agreement may be amended only by a writing signed by each of the Parties.
15.3 Waiver. No failure or delay by any Party in exercising any right under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise preclude any other or further exercise of such right.
15.4 Severability. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect, and the Parties shall negotiate in good faith to replace the invalid or unenforceable provision with a valid provision that achieves, to the extent possible, the original intent.
15.5 Expenses. Each Party shall bear its own fees, costs, and expenses incurred in connection with the negotiation and execution of this Agreement.
15.6 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, legal representatives, and permitted assigns.
15.7 Counterparts. This Agreement may be executed in one or more counterparts (including by electronic signature or PDF), each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
15.8 Interpretation. Headings in this Agreement are for reference purposes only and do not affect the meaning or interpretation of this Agreement. For the purposes of this Agreement, “affiliate” or “affiliates” with respect to a person or entity shall mean any person or entity controlling, controlled by, or under common control with such person or entity, including in the case of Al Shams, Mr. Said and all of his affiliates. To the extent this Agreement requires any payment on a non-business day, such payment shall not be required until and shall be made on the next business day.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed as of the Effective Date.
| AL SHAMS INVESTMENTS LIMITED | ||
| By: | /s/ David Auckland | |
| Name: David Auckland | ||
| Title: Authorized Signatory | ||
| WAFIC RIDA SAID, solely for purposes of Section 8 | ||
| /s/ Wafic Rida Said | ||
| BRAEMAR HOTELS & RESORTS INC. | ||
| By: | /s/ Richard Stockton | |
| Name: Richard Stockton | ||
| Title: President & Chief Executive Officer | ||
| ASHFORD HOSPITALITY TRUST, INC. | ||
| By: | /s/ Stephen Zsigray | |
| Name: Stephen Zsigray | ||
| Title: President & Chief Executive Officer | ||
| ASHFORD INC. | ||
| By: | /s/ Hector Sanchez | |
| Name: Hector Sanchez | ||
| Title: President | ||
Exhibit 10.2
Allocation Agreement
This Allocation Agreement (this “Agreement”) is dated as of October 6, 2026, by and between Braemar Hotels & Resorts Inc., a Maryland corporation (“Braemar”), and Ashford Inc., a Nevada corporation (“Ashford”). Braemar and Ashford are each referred to in this Agreement as a “Party” and together as the “Parties.”
Recitals:
WHEREAS, Braemar and Ashford, together with Ashford Hospitality Trust, Inc., propose to enter into that certain Cooperation and Settlement Agreement (the “Settlement Agreement”) with the Al Shams Parties, under which Braemar is the sole obligor for the Settlement Payment and under which the releases, standstill, non-disparagement, and cooperation covenants of the Al Shams Parties run for the benefit of, among others, Ashford and its affiliates and their respective present and former directors, officers, employees, agents, and representatives;
WHEREAS, Braemar and Ashford, together with certain of their respective affiliates, are parties to that certain Fifth Amended and Restated Advisory Agreement, dated as of April 23, 2018 (as amended, the “Advisory Agreement”), and that certain Letter Agreement, dated as of August 26, 2025, as amended by that certain Amendment to Letter Agreement, dated as of December 22, 2025 (as so amended, the “Letter Agreement”);
WHEREAS, the claims being settled as part of the Settlement Agreement include claims that were and could have been asserted against Ashford, and Ashford is receiving a release of all such claims as part of that Settlement Agreement;
WHEREAS, Ashford and Braemar are both insured under various insurance policies, and have a mutual entitlement to any and all Insurance Proceeds applicable to the Settlement Agreement;
WHEREAS, the Parties have agreed that the cost of the Settlement Payment, net of Insurance Proceeds, will be borne equally by Braemar and Ashford on the terms set forth in this Agreement; and
WHEREAS, capitalized terms used but not defined in this Agreement have the meanings given to them in the Settlement Agreement or, if not defined in the Settlement Agreement, in the Letter Agreement or the Advisory Agreement, as applicable.
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
1. Definitions. As used in this Agreement, “Insurance Proceeds” means all amounts paid by or on behalf of any insurer under any policy of directors’ and officers’ liability, management liability, general liability, or similar insurance under which Braemar, Ashford, or any of their respective affiliates, directors, officers, or employees is an insured, on account of the Settlement Payment or the settlement of the Disputed Claims, whether paid to Braemar, Ashford, any Al Shams Party, an escrow agent, or any other person. References in this Agreement to the Settlement Agreement, the Settlement Payment, or any installment of the Settlement Payment include any amendment, supplement, or waiver made in accordance with Section 5.
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2. Funding of the Settlement Payment.
(a) Allocation. Braemar and Ashford shall each bear fifty percent (50%) of the Settlement Payment, net of Insurance Proceeds, so that the portion of the Settlement Payment not funded by Insurance Proceeds is at all times borne equally by the Parties.
(b) Payment of Ashford’s Share. Ashford shall pay fifty percent (50%) of each installment of the Settlement Payment, less fifty percent (50%) of any Insurance Proceeds applied to that installment under Section 3(a), by wire transfer of immediately available funds to Al Shams or the applicable escrow agent for the account of Braemar (i) in the case of the First Installment, not later than one (1) business day after the Effective Date, and (ii) in the case of each other payment of the Settlement Consideration, not later than 11:00 a.m. Central Time on the business day immediately preceding the date on which such payment is due under the Settlement Agreement. Ashford may also elect to make such payments to Braemar and in such case, all amounts so received by Braemar shall be applied solely to the Settlement Payment, and Braemar shall return or cause to be returned to Ashford any such amount that is not so applied within three (3) business days after receipt, except to the extent the installment is deferred or escrowed under Section 2(c). All payments, if any, between Braemar and Ashford under this Agreement shall be made in full, without set-off, counterclaim, deduction, or withholding of any kind.
(c) Deferral; Escrow; Recoveries. If Braemar withholds, defers, or deposits into escrow any installment of the Settlement Payment under Section 1.3 or Section 1.4 of the Settlement Agreement, Ashford’s obligation under Section 2(b) with respect to that installment shall be deferred correspondingly or, in the case of an escrow, satisfied by Ashford’s funding of fifty percent (50%) of the escrow deposit. Any amount released from escrow to Braemar, and any amount recovered from any Al Shams Party under Section 1.6 of the Settlement Agreement or otherwise in respect of the Settlement Payment, shall be shared equally by the Parties, subject to any obligation to repay such amount to an insurer, which shall also be borne equally.
(d) Stock Settlement. Ashford’s payments under this Agreement shall be made solely in cash. Any Stock Settlement shall be credited to Braemar’s share of the Settlement Payment at the dollar amount thereby satisfied and shall not reduce, defer, or otherwise affect Ashford’s obligations under Section 2(b).
3. Insurance Proceeds.
(a) Equal Sharing. All Insurance Proceeds shall be for the equal benefit of the Parties and shall be applied, as and when received, (i) first, to reimburse each Party for the Settlement Payment previously funded by it, and (ii) second, to reduce the Settlement Payment thereafter payable by each Party, in each case consistent with the allocation set forth in Section 2(a) and Section 2(b). Any Party (or any affiliate of a Party) who anticipates the receipt of Insurance Proceeds will use good faith efforts to direct the insurer to pay the other Party’s share directly to Al Shams or such other Party. To the extent the other Party’s share of Insurance Proceeds is not delivered directly to Al Shams or to the other Party, a Party that receives Insurance Proceeds shall hold the other Party’s share in trust for the other Party and shall remit that share by wire transfer of immediately available funds within three (3) Business Days after receipt. Insurance Proceeds paid by an insurer directly to any Al Shams Party or escrow agent shall be deemed to have been funded by the Parties equally and applied in accordance with this Section 3(a).
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(b) Pursuit of Coverage. The Parties shall cooperate in good faith and use their respective reasonable best efforts to obtain the Insurance Proceeds as promptly as practicable, including by jointly directing coverage counsel; giving timely notice of the Disputed Claims and the Settlement Agreement under each applicable policy and making any election necessary to preserve coverage; making and supporting all submissions and requests for consent; promptly providing the other Party with copies of all consents, commitments, and term sheets received from any insurer concerning the Settlement Payment; and, subject to Section 5, executing such funding agreements, releases, and other instruments as the insurers may reasonably require. Any amount that the insureds are required to repay to any insurer in respect of Insurance Proceeds shall be borne by the Parties equally.
4. No Indemnification or Reimbursement.
(a) Ashford Waiver. Notwithstanding anything to the contrary contained in the Advisory Agreement (including Sections 2.1(j), 5.1, 5.2, 8.3, 12.5(b)(iv), and 19 thereof), Ashford, on behalf of itself and its affiliated entities (including Ashford Hospitality Advisors LLC), hereby irrevocably waives, releases, and agrees not to assert any right to indemnification, reimbursement, advancement of expenses, contribution, subrogation, or other payment from Braemar or any of its subsidiaries in respect of (i) Ashford’s share of the Settlement Payment or any other amount borne by Ashford under this Agreement; (ii) other than as expressly agreed in respect of legal fees related to the matters that are the subject of the Settlement Agreement, any fees, costs, or expenses incurred by Ashford or its affiliates in connection with the Disputed Claims, the Settlement Agreement, or this Agreement; and (iii) any other loss or liability of Ashford or its affiliates in respect of the Disputed Claims provided, that the foregoing shall not apply to the extent Ashford or any affiliate incurs losses as the result of any failure by Braemar to bear its share of the Settlement Payment or to remit amounts paid by Ashford to Braemar hereunder with respect to the Settlement Payment to any Al Shams Party when due under the Settlement Agreement or any breach of this Agreement.
(b) Braemar Waiver. Notwithstanding anything to the contrary contained in the Advisory Agreement (including Sections 2.1(j), 5.1, 5.2, 8.3, 12.5(b)(iv), and 19 thereof), Braemar, on behalf of itself and its affiliated entities, hereby irrevocably waives, releases, and agrees not to assert any right to indemnification, reimbursement, advancement of expenses, contribution, subrogation, or other payment from Ashford or any of its subsidiaries in respect of (i) Braemar’s share of the Settlement Payment or any other amount borne by Braemar under this Agreement; (ii) other than as expressly agreed in respect of legal fees related to the matters that are the subject of the Settlement Agreement, any fees, costs, or expenses incurred by Braemar or its affiliates in connection with the Disputed Claims, the Settlement Agreement, or this Agreement; and (iii) any other loss or liability of Braemar or its affiliates in respect of the Disputed Claims provided, that the foregoing shall not apply to the extent Braemar or any affiliate incurs losses as the result of any failure by Ashford to bear its share of the Settlement Payment or any breach of this Agreement.
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(c) Nature of Ashford’s Share; No Effect on Fees. Ashford’s share of the Settlement Payment is paid by Ashford for its own account, in consideration of the releases, covenants, and other benefits conferred on Ashford and its affiliates under the Settlement Agreement, and is not a loan, advance, deposit, or prepayment to Braemar. No amount described in Section 4(a) (i) is or shall be treated as an expense paid or incurred by Ashford or its affiliates on behalf of Braemar or in connection with the services provided under the Advisory Agreement; (ii) shall be included in any Budgeted Monthly Reimbursement, true-up, invoice, or other request for reimbursement under Section 5 of the Advisory Agreement, or in any amount payable under Section 12.5(b)(iv) of the Advisory Agreement; or (iii) shall be taken into account in computing Net Earnings, the Base Fee, the Incentive Fee, the Termination Fee, the Accrued Fees, the Company Sale Fee, the Full Termination Payment, the Master Agreement Termination Fee, or any other amount payable under the Advisory Agreement, the Letter Agreement, or the Master Agreements.
(d) Letter Agreement. No obligation of Ashford under this Agreement, and no exercise by Braemar of any right under this Agreement, shall be deemed a claim related to the calculation or payment of the Company Sale Fee or the Full Termination Payment within the meaning of Section 5(e) of the Letter Agreement.
5. Actions Affecting the Other Party. Neither Party shall, without the prior written consent of the other Party, amend, supplement, or waive any provision of the Settlement Agreement, settle or compromise any dispute with any Al Shams Party or any insurer, or take any other action under the Settlement Agreement with respect to any Insurance Proceeds. Subject to the foregoing, each Party retains all of its rights and remedies under the Settlement Agreement.
6. Representations and Warranties. Each Party represents and warrants to the other Party that (a) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization; (b) it has all requisite power and authority to execute, deliver, and perform this Agreement, and this Agreement has been duly authorized by all necessary action on its part; (c) this Agreement constitutes its valid and binding obligation, enforceable against it in accordance with its terms, subject to customary bankruptcy and equitable exceptions; (d) the execution, delivery, and performance of this Agreement do not violate any law, its organizational documents, or any agreement to which it is a party; (e) it has, and will have on each date on which any amount is payable by it under this Agreement or the Settlement Agreement, sufficient funds to pay that amount when due; (f) it has provided to the other Party true and correct copies of all written commitments, consents, waivers, and term sheets received by it from any insurer concerning the Settlement Payment or the funding thereof; and (g) neither it nor any of its affiliates has entered into any agreement, arrangement, or understanding with any Al Shams Party or any of its affiliates relating to the Disputed Claims or the Settlement Agreement, other than the Settlement Agreement and the documents expressly contemplated by it.
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7. Term; Effectiveness; Survival. This Agreement shall become effective upon execution and delivery by each Party and the execution and delivery of the Settlement Agreement by each party thereto. This Agreement, and all rights and obligations of the Parties hereunder, shall survive the termination of the Advisory Agreement and the Letter Agreement and the consummation of any Company Sale Transaction, notwithstanding Section 12.8 of the Advisory Agreement or any other provision thereof.
8. Relationship to Other Agreements. In the event of any conflict between this Agreement and the Advisory Agreement or the Letter Agreement, this Agreement shall control. Except as expressly provided in this Agreement, the Advisory Agreement and the Letter Agreement remain unmodified and in full force and effect. Nothing in this Agreement modifies the obligations of any member of the Company Group under the Settlement Agreement, and this Agreement confers no rights to any Al Shams Party.
9. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without regard to conflict of laws principles.
(b) Entire Agreement; Amendment; Waiver. This Agreement (together with the Settlement Agreement, the Letter Agreement, and the Advisory Agreement, as modified hereby) constitutes the entire agreement of the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings, oral or written, with respect thereto. This Agreement may be amended, and any provision hereof waived, only by a writing signed by each Party. No failure or delay in exercising any right shall operate as a waiver thereof.
(c) Successors and Assigns; No Third-Party Beneficiaries. This Agreement shall be binding on and inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may assign this Agreement or any right or obligation hereunder without the prior written consent of the other Party, except that either Party may assign its rights hereunder to any successor to all or substantially all of its assets or business. This Agreement confers no rights or remedies on any Person other than the Parties and their respective successors and permitted assigns.
(d) Further Assurances. Each Party shall execute and deliver such further instruments and take such further actions as the other Party may reasonably request to carry out the intent of this Agreement, including any instrument reasonably requested by any insurer or escrow agent to give effect to Section 3.
(e) Joint Drafting. The Parties have participated jointly in the negotiation and drafting of this Agreement, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision hereof.
(f) Severability. If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect, and the Parties shall negotiate in good faith a valid provision that achieves, to the extent possible, the original intent.
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(g) Counterparts. This Agreement may be executed in one or more counterparts (including by electronic signature), each of which shall be deemed an original and all of which together shall constitute one and the same agreement.
[Signatures Appear on Following Page]
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IN WITNESS WHEREOF, the undersigned have executed this Allocation Agreement as of the date first written above.
| BRAEMAR: | ||
| BRAEMAR HOTELS & RESORTS INC. | ||
| By: | /s/ Richard Stockton | |
| Name: Richard Stockton | ||
| Title: President and Chief Executive Officer | ||
| ASHFORD: | ||
| ASHFORD INC. | ||
| By: | /s/ Jim Plohg | |
| Name: Jim Plohg | ||
| Title: Executive Vice President | ||
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