NON-COMPETE/SERVICES AGREEMENT

Exhibit 10.2

NON-COMPETE/SERVICES AGREEMENT

     THIS NON-COMPETE/SERVICES AGREEMENT (the “Agreement”), dated March 21, 2008, effective as of January 1, 2008, is between ASHFORD HOSPITALITY TRUST, INC., a corporation organized under the laws of the State of Maryland and having its principal place of business at Dallas, Texas (hereinafter, the “REIT”), ASHFORD HOSPITALITY LIMITED PARTNERSHIP, a limited partnership organized under the laws of the State of Delaware and having its principal place of business at Dallas, Texas (the Operating Partnership”), and ARCHIE BENNETT, JR., an individual residing in Dallas, Texas (the “Director”).

RECITALS:

     A. The REIT and the Operating Partnership (collectively, the “Company”) desire that the Director serve in the capacities and on the terms and conditions set out below; and

     B. The Director and the Company have previously entered into a Non-Compete/Services Agreement dated as of August 29, 2003 (the “Previous Agreement”); and

     C. The Director and the Company desire to amend and restate the Previous Agreement in order to make changes to comply with Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), as well as certain other changes.

     NOW, THEREFORE, the Company and the Director, in consideration of the respective covenants set out below, hereby agree as follows:

     1. DIRECTORSHIP.

     (a) SERVICE. During the Term (defined below), the Director shall serve as Chairman of the Board of Directors of the REIT (the “Board”). At the Company’s request, the Director shall serve the Company’s subsidiaries and affiliates in other offices and capacities in addition to the foregoing. If the Director, during the Term, serves in any one or more of such additional capacities, the Director’s fee shall not be increased beyond that provided in Sections 3 or 4 below. Further, if the Director’s service in one or more of such additional capacities is terminated, the Director’s compensation provided herein shall not be reduced for so long as the Director otherwise remains on the Board of Directors of the Company and subject to the terms of this Agreement.

     (b) RESPONSIBILITIES. The Director’s principal duties and responsibilities shall be those duties and responsibilities customary for the Chairman of the Board of Directors and consistent with the duties and responsibilities performed by the Chairman for the Company prior to the Effective Date. The Director will be responsible for and have authority over customary duties and responsibilities of a Chairman of the Board and such other duties reasonably directed by the Board. The Director shall serve in the best interest of the Company and its Shareholders.

     (c) EXTENT OF SERVICES. Except for (i) the time reasonably required to perform the Director’s duties and responsibilities as Chairman of the Board and an officer of Remington Hotel Corporation (“RHC”), Remington Management LP (“Remington Management”), Remington Lodging &

Hospitality, L.P. (“Remington Lodging”) and their affiliates (so long as such duties do not materially interfere with the performance of the Director’s duties hereunder), and (ii) illnesses, the Director shall, consistent with the Chairman’s prior practices, devote his working time and attention and his best efforts to the performance of his duties and responsibilities under this Agreement. However, the Director may (so long as the following do not materially interfere with the performance of the Director’s duties hereunder) (i) make any passive investments where he is not obligated or required to, and shall not in fact, devote material managerial efforts (provided that the Director may make and continue investments in accordance with the terms of that certain Mutual Exclusivity Agreement, herein so called, among RHC, Remington Lodging and their affiliates (herein collectively called the “Remington Affiliates”), and the Company and its affiliates dated August 29, 2003, (ii) participate in charitable, academic or community activities or in trade or professional organizations, (iii) hold directorships in charitable or non-profit organizations, (iv) subject to Board approval (which approval shall not be unreasonably withheld or withdrawn), hold directorships in other companies, except only that the Board shall have the right to limit such services as a director or such participation whenever the Board shall reasonably believe that the time spent on such activities infringes in any material respect upon the time required by the Director for the performance of his duties under this Agreement or is otherwise incompatible with those duties, or (v) hold directorships in private companies owned by the Director (or Montgomery J. Bennett) consistent with the Mutual Exclusivity Agreement. Further it is agreed that to the extent any such activities have been conducted by the Director prior to August 29, 2003, the continued reasonable conduct of such activities (or reasonable activities similar in nature and scope thereto) subsequent to the Effective Date shall not, subject to the conditions and limitations of the Mutual Exclusivity Agreement, thereafter be deemed to interfere with the performance of the Director’s responsibilities to the Board and to the Company and its Shareholders; provided, that no such activity that violates the non-competition provisions herein shall be permitted.

     2. TERM. This Agreement shall be effective as of January 1, 2008 (the “Effective Date”) and shall continue for a Term ending on the earlier of the end of the Director’s then current term if he is not re-nominated and elected to serve as a director and December 31, 2008 (the “Initial Termination Date”) unless it is sooner terminated pursuant to Section 6; provided, however, that if the Director continues to be re-nominated and elected, this Agreement shall be automatically extended for one additional year on the Initial Termination Date and on each subsequent anniversary of the Initial Termination Date, unless the Company or the Director elect not to extend the Term of this Agreement by notifying the other party in writing of such election not less than one hundred twenty (120) days prior to the expiration of the then current Term. For purposes of this Agreement, “Term” shall mean the actual duration of the Director’s service hereunder, taking into account any extension pursuant to this Section 2 or early termination of service pursuant to Section 6 or this Section 2.

     3. FEE. The Company shall pay the Director a fee which shall be payable once a month (“Director’s Fee”). Commencing as of the Effective Date, the Director’s Fee shall be THREE HUNDRED THOUSAND DOLLARS ($300,000.00) per year, provided that, at the election of the Board, the Company may pay $25,000.00 of the annual Director’s Fee in shares of common stock of the REIT. The Board or a Compensation Committee duly appointed by the Board (the “Compensation Committee”) shall thereafter review the Director’s Fee annually to determine within its sole discretion whether and to what extent the Director’s Fee may be increased (for the purposes of this Agreement, the term “Director’s Fee” shall mean the amount established and adjusted from time to time pursuant to this Section 3).

     4. INCENTIVE, SAVINGS AND RETIREMENT PLANS. During the Term, to the extent permitted by law, the Director shall be entitled to participate in all other short- and long-term incentive plans, stock and option plans, long term incentive partnership (“LTIP”) plans, practices, policies and other programs, and all savings and retirement plans, practices, polices and programs, in each case that may be allowed from time to time by the Company’s Compensation Committee; provided, however, that the Director may not participate in any qualified employee pension benefit plan.

     5. EXPENSE REIMBURSEMENTS/D&O INSURANCE.

     (a) EXPENSES. The Director will be entitled to reimbursement of all reasonable expenses, including, without limitation, business class airfare and other travel expenses for board meetings, committee meetings and corporate business, telephone and facsimile expenses, and expenses for part-time secretarial support incurred by the Director in connection with the business of the Board and the Company, promptly upon the presentation by the Director of appropriate documentation. The Company shall maintain an office at the Company’s headquarters for the Director and shall provide administrative support to the Director at such office.

     (b) D&O INSURANCE COVERAGE. During and for a period three (3) years after the Term, the Director shall be entitled to director and officer insurance coverage for his acts and omissions while a director of the Company on a basis no less favorable to him than the coverage provided current officers or directors.

     6. TERMINATION. The services of the Director and this Agreement (except as otherwise provided herein) shall terminate upon the occurrence of any of the following:

     (a) DEATH OR DISABILITY. Immediately upon death or Disability of the Director. As used in this Agreement, “Disability” shall mean an inability to perform the essential functions of his duties, with or without reasonable accommodation, for a period of 90 consecutive days or a total of 180 days, during any 365-day period, in either case as a result of incapacity due to mental or physical illness which is determined to be total and permanent. A determination of Disability shall be made by a physician satisfactory to both the Director and the Company, provided that if the Director (or his guardian) and the Company do not agree on a physician, the Director (or his guardian) and the Company shall each select a physician and these two together shall select a third physician, whose determination as to Disability shall be binding on all parties. The appointment of one or more individuals to carry out the service of the Director during a period of the Director’s inability to perform such service and pending a determination of Disability shall not be considered a breach of this Agreement by the Company.

     (b) FOR CAUSE. At the election of the Company, for Cause, immediately upon written notice by the Company to the Director unless the Director fully corrects the circumstances constituting Cause within the cure periods provided below, if applicable. For purposes of this Agreement, “Cause” for termination shall be deemed to exist solely in the event of the following:

          (i) The conviction of the Director of, or the entry of a plea of guilty or nolo contendere by the Director to, a felony (exclusive of a conviction, plea of guilty or nolo contendere arising solely under a statutory provision imposing criminal liability upon the Director on a PER SE basis due to the services provided under this Agreement by the Director, so long as any act or omission of the Director with

respect to such matter was not taken or omitted in contravention of any applicable policy or directive of the Board);

          (ii) willful breach of duty of loyalty which is materially detrimental to the Company which is not cured to the reasonable satisfaction of the Board within fifteen (15) days following written warning to the Director from the Board describing the alleged circumstances;

          (iii) willful failure to perform or adhere to explicitly stated directives of the Board which continues for fifteen (15) days after written warning to the Director that it will be deemed a basis for a “For Cause” termination;

          (iv) gross negligence or willful misconduct in the performance of the Director’s duties (which is not cured by the Director within thirty (30) days after written warning from the Board);

          (v) the Director’s willful commission of an act of dishonesty resulting in economic or financial injury to the Company or willful commission of fraud; or

          (vi) the Director’s chronic absence from Board or committee meetings for reasons other than illness.

     For purposes of this Section, no act, or failure to act, on the Director’s part will be deemed “willful” unless done, or omitted to be done, by the Director not in good faith and without a reasonable belief that the Director’s act, or failure to act, was in the best interest of the Company. Any act, or failure to act, based upon authority given pursuant to a resolution duly adopted by the Board or based upon the advise of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Director in good faith and in the best interests of the Company. The cessation of the services to be provided by the Director shall not be deemed to be for Cause until there shall have been delivered to the Director a copy of a resolution duly adopted by the affirmative vote of not less than 2/3rds of the entire membership of the Board at a meeting of the Board called and held for such purpose (after reasonable notice is provided to the Director and the Director is given an opportunity, together with counsel for the Director, to be heard before the Board), finding that, in the good faith opinion of the Board, the Director is guilty of any of the conduct described in this Section 6(b), and specified in the particulars thereof in detail; provided that neither the Director nor any family member of the Director shall vote on such resolution nor shall they be counted in determining the “Entire Membership” of the Board.

     (c) WITHOUT CAUSE OR GOOD REASON. At the election of the Company, without Cause, and at the election of the Director, without Good Reason, in either case upon sixty (60) days’ prior written notice to the Director or to the Company, as the case may be. Provided, however, that if the Director gives notice, without Good Reason, the Company may waive all or a portion of the sixty (60) days’ written notice and accelerate the effective Date of Termination.

     (d) FOR GOOD REASON. At the election of the Director, for Good Reason, which is not cured by the Company within thirty (30) days after written notice from the Director to the Company setting forth a description of the circumstances constituting Good Reason. For purposes of this Agreement, “Good Reason” shall mean any of the following actions, omissions or events occurring without the Director’s prior written consent:

          (i) The assignment to the Director of any duties, responsibilities, or reporting requirements inconsistent with his service as Chairman of the Board of Directors of the Company, or any material diminishment, on a cumulative basis, of the Director’s overall duties, responsibilities, or status;

          (ii) a reduction by the Company in the annual Director’s Fee;

          (iii) any material breach by the Company of any provision of this Agreement; or

          (iv) Montgomery J. Bennett is removed without Cause in his capacity as President, Chief Executive Officer and/or director on the Board, as the term “Cause” is defined in that certain Employment Agreement (the “MJB Employment Agreement”) dated on or about the Effective Date (as amended or renewed and restated), the Company fails to renew the MJB Employment Agreement, or Montgomery J. Bennett leaves for “Good Reason” as defined in the MJB Employment Agreement.

     (e) NOTICE OF TERMINATION. Any termination by the Company for Cause, or by the Director for Good Reason, shall be communicated by Notice of Termination to the other parties hereto given in accordance with Section 16(a) of this Agreement. For purposes of this Agreement, a “Notice of Termination” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Director’s services under the provision so indicated, and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the termination date (provided that the date specified shall not be more than thirty (30) days after the giving of the notice). The failure by the Director or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Director or the Company, respectively, hereunder or preclude the Director or the Company, respectively, from asserting such fact or circumstance in enforcing the Director’s or the Company’s rights hereunder.

     (f) DATE OF TERMINATION. “Date of Termination” means (i) if the Director’s services are terminated by the Company for Cause, or by the Director for Good Reason, the date of receipt of the Notice of Termination or any later date specified in the notice (provided that the date specified shall not be more than thirty (30) days after the giving of the notice), as the case may be, (ii) if the Director’s services are terminated by the Company other than for Cause or Disability, the Date of Termination shall be the date on which the Company notifies the Director of such termination or such later date specified in such notice, (iii) if the Director’s services are terminated by the Director without Good Reason, the Date of Termination shall be the date on which the Director notifies the Company of such termination or such later date specified in such notice, unless otherwise agreed by the Company and the Director, and (iv) if the Director’s services are terminated by reason of death or Disability or non-renewal of this Agreement, the Date of Termination shall be the date of death or Disability of the Director or the Agreement’s non-renewal date, as the case may be.

     7. EFFECTS OF TERMINATION.

     (a) TERMINATION FOR DEATH OR DISABILITY FOR DEATH/DISABILITY; BY THE COMPANY WITHOUT CAUSE; OR NON-RENEWAL BY THE COMPANY. If the services of the Director should terminate by reason of (i) death of the Director or Disability, (ii) termination by the Company for any reason (other than Cause) or the failure of the Company to re-nominate and elect the

Director to serve as Chairman of the Board, or (iii) the Company’s failure to renew this Agreement, then all compensation and benefits for the Director shall be as follows:

          (i) The Director shall be paid, in a single lump sum payment within thirty (30) days after the Date of Termination, the aggregate amount of (A) the Director’s earned but unpaid Director’s Fee through the Date of Termination, and reimbursement of all expenses through the Date of Termination as required pursuant to Section 5(a) hereof (the “Accrued Obligations”), and (B) one (the “Severance Multiple”) Times the annual Director’s Fee in effect on the Date of Termination (the “Severance Payment”).

          (ii) Any annual performance shares, restricted shares, LTIP units or options awarded under Section 4 hereof shall immediately vest. Without limiting the foregoing, it is agreed that if the Director’s services are terminated pursuant to this Section 7(a), all outstanding stock options, restricted stock, LTIP units and other equity awards granted to the Director under any of the Company’s equity incentive plans (or awards substituted therefore covering the securities of a successor company) shall become immediately vested and exercisable in full.

     (b) TERMINATION BY THE DIRECTOR WITH GOOD REASON. In the event that the Director’s services are terminated by the Director with Good Reason, the Company will pay the Director the same Accrued Obligations and accelerated vesting, all as provided in Sections 7(a)(i) and (ii) above at the times as provided in such sections. In addition, the Director shall be entitled to a Severance Payment determined and paid in accordance with Section 7(a)(i) above; PROVIDED, HOWEVER, the Severance Multiple shall be two (2). Without limiting the foregoing, it is agreed that if the Director’s services are
terminated pursuant to this Section 7(b), all outstanding stock options, restricted stock, LTIP units and other equity awards granted to the Director under any of the Company’s equity incentive plans (or awards substituted therefore covering the securities of a successor company) shall become immediately vested and exercisable in full.

     (c) TERMINATION BY DIRECTOR WITHOUT GOOD REASON. If the Director’s services are terminated by the Director without Good Reason including a resignation by the Director without Good Reason and including an election not to renew this Agreement by the Director, the Company will pay the Director the Accrued Obligations as provided in Section 7(a)(i) above but the Director shall not be entitled to the Severance Payment and accelerated vesting set forth in Sections 7(a)(i) and (ii) hereof. In addition, in consideration for the Director’s agreement for honoring the non-compete and non-solicitation covenants in Section 10 hereof for a period of one (1) year following the Date of Termination resulting from this Section 7(c), the Company shall pay the Director a non-compete payment (the “Non-Compete Payment”) equal to the Severance Payment determined with a Severance Multiple equal to one (1). The Non-Compete Payment shall be paid monthly over the one-year non-compete period in equal monthly installments of one-twelfth (1/12th) of the Non-Compete Payment, provided, however, that the timing of such Non-Compete payments are subject to Section 7(g) hereof.

     (d) TERMINATION BY THE COMPANY FOR CAUSE. If the Director’s service is terminated by the Company for Cause, the Company will pay the Director the Accrued Obligations as provided in Section 7(a)(i) above but the Director shall not be entitled to the Severance Payment and accelerated vesting set forth in Sections 7(a)(i) and (ii) hereof.

     (e) TERMINATION OF AUTHORITY. Immediately upon the Date of Termination or upon the expiration of this Agreement, notwithstanding anything else to the contrary contained herein or otherwise, the Director will resign (and shall be deemed to have resigned) his directorship and stop serving as Chairman of the Board, and shall be without any of the authority or responsibility for such position.

     (f) RELEASE OF CLAIMS. As conditions of Director’s entitlement to the Severance Payment, Non-Compete Payment and benefits provided by this Agreement, the Director shall be required to execute and honor the terms of a waiver and release of claims against the Company substantially in the form attached hereto as Exhibit “A” (as may be modified consistent with the purposes of such waiver and release to reflect changes in law following the date hereof) (the “Release”) within the applicable time period provided in the Release (the “Applicable Release Period”) and shall forfeit all payments hereunder if it is not so timely executed; provided, however, that in any case where the first and last days of the Applicable Release Period are in two separate taxable years, any payments required to be made to the Director that are treated as deferred compensation for purposes of Code Section 409A shall be made in the later taxable year, promptly following the conclusion of the Applicable Release Period.

     (g) CODE SECTION 409A AND TERMINATION PAYMENTS.  All payments provided under Sections 7 and 8 hereof shall be subject to this Section 7(g). Notwithstanding anything herein to the contrary, to the extent that the Board reasonably determines, in its sole discretion, that any payment or benefit to be provided under this Agreement to or for the benefit of the Director would be subject to the additional tax imposed under Section 409A(a)(1)(B) of the Code or a successor or comparable provision, the commencement of such payments and/or benefits shall be delayed until the earlier of (i) the date that is six months following the Date of Termination or (ii) the date of the Director’s death (such date is referred to herein as the “ Distribution Date “), provided, if at such time the Director is a “specified employee” of the Company (as defined in Treasury Regulation Section 1.409A-1(i)) and if amounts payable under this Agreement are on account of an “involuntary separation from service” (as defined in Treasury Regulation Section 1.409A-1(m)), the Director shall receive payments during the six-month period immediately following the Date of Termination equal to the lesser of (x) the amount payable under this Agreement, as the case may be, or (y) two times the compensation limit in effect under Code Section 401(a)(17) for the calendar year in which the Termination Date occurs (with any amounts that otherwise would have been payable under this Agreement during such six-month period being paid on the first regular payroll date following the six-month anniversary of the Date of Termination).   Finally, for the purposes of this Agreement, amounts payable under this Agreement shall be deemed not to be a “deferral of compensation” subject to Section 409A to the extent provided in the exceptions in Treasury Regulation Sections 1.409A-1(b)(4) (“short-term deferrals”) and (b)(9) (“separation pay plans,” including the exception under subparagraph (iii)) and other applicable provisions of Treasury Regulation Section 1.409A-1 through A-6. 

     8. CHANGE OF CONTROL.

     (a) CHANGE OF CONTROL. For purposes of this Agreement, a “Change of Control” will be deemed to have taken place upon the occurrence of any of the following events:

          (i) any “person” (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and as modified in Section 13(d) and 14(d) of the Exchange Act) other than (A) the Company or any of its subsidiaries, (B) any employee benefit plan of the Company or any of its subsidiaries, (C) any Remington Affiliate, (D) a company owned, directly or indirectly, by stockholders

of the Company in substantially the same proportions as their ownership of the Company, or (E) an underwriter temporarily holding securities pursuant to an offering of such securities, becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of securities of the Company representing 30% or more of the shares of voting stock of the Company then outstanding;

          (ii) the consummation of any merger, organization, business combination or consolidation of the Company or one of its subsidiaries with or into any other company, other than a merger, reorganization, business combination or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding securities which represent immediately after such merger, reorganization, business combination or consolidation more than 50% of the combined voting power of the voting securities of the Company or the surviving company or the parent of such surviving company;

          (iii) the consummation of the sale or disposition by the Company of all or substantially all of the Company’s assets, other than a sale or disposition if the holders of the voting securities of the Company outstanding immediately prior thereto hold securities immediately thereafter which represent more than 50% of the combined voting power of the voting securities of the acquiror, or parent of the acquiror, of such assets; or the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company; or

          (iv) individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the Effective Date whose election to the Board was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an election contest with respect to the election or removal of directors or other solicitation of proxies or consents by or on behalf of a person other than the Board.

     (b) CERTAIN BENEFITS UPON A CHANGE OF CONTROL. If a Change in Control occurs during the Term and the Director’s service is terminated by the Company without Cause or by the Director for any reason on or before the one (1) year anniversary of the effective date of the Change in Control, then the Director shall be entitled to the Accrued Obligations, such other benefits as may be provided in this Agreement and accelerated vesting, all as provided in Sections 7(a)(i) and (ii) above at the times as provided in such sections. In addition, the Director shall be entitled to a Severance Payment determined and paid in accordance with Section 7(a)(i) above; PROVIDED, HOWEVER, the Severance Multiple shall be two (2). Without limiting the foregoing, it is agreed that if the Director’s service is terminated pursuant to this Section 8(b), all outstanding stock options, restricted stock, LTIP units and other equity awards granted to the Director under any of the Company’s equity incentive plans (or awards substituted therefore covering the securities of a successor company) shall become immediately vested and exercisable in full. All payments under this Section 8(b) are subject to the restrictions set forth in Section 7(g) and may be withheld in order to satisfy the requirements of Section 409A of the Internal Revenue Code.

     (c) EXCISE TAX.

          (i) In the event that any payment or benefit received or to be received by the Director in connection with a Change of Control or the termination of the Director’s service (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person) (all such payments and benefits being hereinafter called “Total Payments”) will be subject (in whole or part) to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), then, subject to the provisions of Section 8(c)(ii) hereof, the Company will pay to the Director an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Director, after deduction of any Excise Tax on the Total Payments and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 8(c)(i), will be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Director will be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Director’s residence on such date, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

          (ii) In the event that, after giving effect to any redeterminations described in Section 8(c)(iv) hereof, a reduction in the Total Payments to the largest amount that would result in no portion of the Total Payments being subject to the Excise Tax (after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement) would produce a net amount (after deduction of the net amount of federal, state and local income tax on such reduced Total Payments) that would be greater than the net amount of unreduced Total Payments (after deduction of the net amount of federal, state and local income tax and the amount of Excise Tax to which the Director would be subject in respect of such Total Payments), then Section 8(c)(i) hereof will not apply and the Total Payments will be so reduced.

          (iii) The determination of whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax will be made by the Company’s independent auditors. The Company will provide the Director with its calculation of the amounts referred to in this Section 8(c) and such supporting materials as are reasonably necessary for the Director to evaluate the Company’s calculations. If the Director disputes the Company’s calculations (in whole or in part), the reasonable opinion of the Company’s independent auditors with respect to the matter in dispute will prevail.

          (iv) In the event that (A) the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of payment of the Total Payments and (B) after giving effect to such redetermination, the Total Payments are reduced pursuant to Section 8(c)(ii) hereof, the Director will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Director to the extent that such repayment results in a reduction in the Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amoun