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Exhibit 10.33.2
EXECUTION COPY
THIS GUARANTY is made as of January 18, 2007, jointly
and severally by Morgan Stanley Real Estate Fund V U.S., L.P., a
Delaware limited partnership (" MSREF V ") and Ashford
Hospitality Trust, Inc., a Maryland corporation (" Ashford
"), in favor of CNL Hotels & Resorts, Inc., a Maryland
corporation (the " Company "). MSREF V and Ashford are
individually referred to herein as a " Guarantor " and
collectively as the " Guarantors ".
For
value received, and to induce the Company to enter into the
Agreement and Plan of Merger, dated as of the date hereof, together
with any subsequent amendment or amendments thereto (the "
Merger Agreement "), by and among MS Resort Holdings LLC, a
Delaware limited liability company (the " Parent "), MS
Resort Acquisition LLC, a Delaware limited liability company and a
wholly-owned subsidiary of the Parent (" REIT Merger Sub "),
MS Resort Purchaser LLC, a Delaware limited liability company and a
wholly-owned subsidiary of Parent (" Parent Purchaser Sub
"), Ashford Sapphire Acquisition Sub, LLC, a Delaware limited
liability company and indirect subsidiary of Arizona ("Ashford Sub"
and, together with Parent, REIT Merger Sub and Parent Purchaser
Sub, the " Buyer Parties "), and the Company, each of the
Guarantors hereby unconditionally and irrevocably jointly and
severally guarantees the punctual and complete payment when due of
the payment obligations and the timely performance when required of
all other obligations of each of the Buyer Parties (if any), or any
of their respective successors or assigns, that arise under the
Merger Agreement to the Company and/or its Subsidiaries
(collectively, the " Obligations ") in an amount, in the
aggregate, not to exceed $300,000,000. It is understood and agreed
that any payment by any Buyer Party with respect to the Obligations
shall not reduce the amount payable by the Guarantors
hereunder.
This
Guaranty is an absolute, unconditional and continuing guarantee of
the full and punctual payment and performance of the Obligations.
This Guaranty is in no way conditioned upon any requirement that
the Company first attempt to collect the Obligations from the Buyer
Parties or resort to any security or other means of collecting
payment. Should the Buyer Parties default in the payment or
performance of any of the Obligations, the Guarantors’
obligations hereunder shall become immediately due and payable to
the Company. Claims hereunder may be made on one or more occasions.
If any payment in respect of any Obligations is rescinded or must
otherwise be returned for any reason whatsoever, the Guarantors
shall remain liable hereunder with respect to such Obligations as
if such payment had not been made. If any amount shall be paid to
any Guarantor in violation of the immediately preceding sentence at
any time prior to the payment in full in cash of the Obligations
and all other amounts payable under this Guaranty, such amount
shall be received and held in trust for the benefit of the Company,
shall be segregated from other property and funds of the Guarantors
and shall forthwith be paid or delivered to the Company in the same
form as so received (with any necessary endorsement or assignment)
to be credited and applied to the Obligations and all other amounts
payable under this Guaranty, in accordance with the terms of the
Merger Agreement, whether matured or unmatured, or to be held as
collateral for any Obligations or other amounts payable under this
Guaranty thereafter arising.
Each
of the Guarantors hereby waives notice of acceptance of this
Guaranty and notice of the Obligations, waives presentment, demand
for payment, protest, notice of dishonor or nonpayment of the
Obligations, notice of acceleration or intent to accelerate the
Obligations, and any other notice to the Buyer Parties and waives
suretyship defenses generally, and the Company is not obligated to
file any suit or take any action, or provide any notice to the
Buyer Parties or either of the Guarantors, or others, except as
expressly provided in the Merger Agreement or in this Guaranty.
Without limiting the generality of the foregoing, each of the
Guarantors agrees that its obligations hereunder shall not be
released or discharged, in whole or in part, or otherwise affected
by: (i) the failure of the Company to assert any claim or
demand or to enforce any right or remedy against any of the Buyer
Parties with respect to the Obligations, (ii) any extensions
or renewals of the Obligations; (iii) any rescissions,
waivers, amendments or modifications of the Merger Agreement;
(iv) any lack of validity or enforceability of the Merger
Agreement against any of the Buyer Parties other than to the extent
arising from fraud or bad faith on the part of the Company;
(v) the adequacy of any means available to the Company to
claim payment or performance of the Obligations; (vi) any
change in the limited liability company (or other applicable
entity) existence, structure or ownership of any of the Buyer
Parties or any other person liable with respect to any of the
Obligations; (vii) any insolvency, bankruptcy, reorganization
or other similar proceedings affecting any of the Buyer Parties or
any other person liable with respect to any of the Obligations;
(viii) the existence of any claim, set-off or other rights
which the Guarantors may have at any time against any Buyer Party,
whether in connection with the Obligations or otherwise;
(ix) the adequacy of any other means the Company may have of
obtaining repayment of any of the Obligations; (x)&n
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