exv10w33w3



 





Exhibit 10.33.3




EXECUTION COPY




CONTRIBUTION AND RIGHTS AGREEMENT




Dated as of January 18, 2007




 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	ARTICLE I — AGREEMENTS	 	 	2	 
	Section 1.1.
	 	Mutual Reliance	 	 	2	 
	Section 1.2.
	 	Guaranty Liability	 	 	2	 
	Section 1.3.
	 	Buyer Financing	 	 	3	 
	Section 1.4.
	 	Sources and Uses	 	 	3	 
	Section 1.5.
	 	Payments Received from CNL	 	 	3	 
	Section 1.6.
	 	Corporate Liabilities of CNL	 	 	4	 
	Section 1.7.
	 	Company Properties Liabilities	 	 	4	 
	Section 1.8.
	 	Marketed Portfolio Purchase and Sale Agreement	 	 	4	 
	Section 1.9.
	 	Tax Opinions	 	 	5	 
	Section 1.10.
	 	Consummation of Arizona Asset Sale	 	 	5	 
	Section 1.11.
	 	Definitions	 	 	5	 
	 
	 	 	 	 	 	 
	ARTICLE II — APPROVAL RIGHTS	 	 	7	 
	Section 2.1.
	 	Closing Conditions of the Merger Agreement	 	 	7	 
	Section 2.2.
	 	Conduct of Business Pending Closing	 	 	7	 
	Section 2.3.
	 	Acquisition Proposals	 	 	8	 
	Section 2.4.
	 	Other Approvals	 	 	8	 
	 
	 	 	 	 	 	 
	ARTICLE III — TRANSACTION EXPENSES	 	 	9	 
	Section 3.1.
	 	Transaction Expenses	 	 	9	 
	Section 3.2.
	 	Closing Date Net Working Capital	 	 	9	 
	 
	 	 	 	 	 	 
	ARTICLE IV — INDEMNIFICATION AND CONTRIBUTION	 	 	10	 
	Section 4.1.
	 	Rights of Contribution	 	 	10	 
	Section 4.2.
	 	Indemnification	 	 	10	 
	 
	 	 	 	 	 	 
	ARTICLE V — MISCELLANEOUS	 	 	11	 
	Section 5.1.
	 	Amendments; Waivers	 	 	11	 
	Section 5.2.
	 	Governing Law	 	 	11	 
	Section 5.3.
	 	Notices	 	 	11	 
	Section 5.4.
	 	Attorney’s Fees	 	 	12	 
	Section 5.5.
	 	Severability	 	 	12	 
	Section 5.6.
	 	Counterparts	 	 	13	 
	Section 5.7.
	 	Specific Enforcement	 	 	13	 
	Section 5.8.
	 	Further Assurances	 	 	13	 






Exhibit I — Sources and Uses

Exhibit II — MSREF Portfolio

Exhibit III — Ashford Portfolio





 









 








CONTRIBUTION AND RIGHTS AGREEMENT




     Contribution and Rights Agreement, dated as of January 18, 2007 (this “Agreement”), by and
among MORGAN STANLEY REAL ESTATE FUND V U.S., L.P., a Delaware limited partnership (“MSREF”), and
ASHFORD HOSPITALITY TRUST, INC., a Maryland corporation (“Ashford”). MSREF and Ashford are
referred to herein from time to time individually as a “Party” and collectively as the “Parties”.



WITNESSETH




     WHEREAS, MS Resort Holdings LLC, a Delaware limited liability company (“Parent”), MS Resort
Acquisition LLC, a Delaware limited liability company and a wholly-owned subsidiary of Parent
(“Sub”), Ashford Sapphire Acquisition LLC, a Delaware limited liability company (“Ashford
Acquisition”), MS Resort Purchaser LLC, a Delaware limited liability company and a wholly-owned
subsidiary of Parent (“MSREF Purchaser Sub”), and CNL Hotels & Resorts, Inc., a Maryland
corporation (“CNL”) have entered into that certain Agreement and Plan of Merger, dated as of
January 18, 2007 (the “Merger Agreement”);



     WHEREAS, on the date hereof, MSREF and Ashford have entered into that certain Guaranty in
favor of CNL relating to the obligations of Parent, Sub, Ashford Acquisition and MSREF Purchaser
Sub under the Merger Agreement;



     WHEREAS, as set forth in Article XII of the Merger Agreement , MSREF Acquisition has entered
into that certain Purchase and Sale Agreement, dated as of January 18, 2007 (“Parent Asset Purchase
Agreement”), pursuant to which MSREF Purchaser Sub shall acquire the assets set forth on
Exhibit II hereto (the “MSREF Acquired Assets”);



     WHEREAS, as set forth in Article XII of the Merger Agreement, Ashford Acquisition has entered
into that certain Ashford Asset and Joint Venture Interest Purchase Agreement, dated as of January
18, 2007 (“Ashford Asset Purchase Agreement”, and together with the Parent Asset Purchase
Agreement, the “Purchase Agreements”), pursuant to which Ashford Acquisition shall acquire the
assets set forth on Exhibit III hereto (the “Ashford Portfolio”);



     WHEREAS, following consummation of the conveyancing transactions pursuant to the Purchase
Agreements, the Merger will be consummated and Parent will own the real assets and interests
therein held by CNL (such assets, together with the MSREF Acquired Assets, shall be referred to as
the “MSREF Portfolio”);



     WHEREAS, each of MSREF and Ashford (and their respective Affiliates) are relying on each other
to consummate the Merger, the Arizona Asset Sale, the Parent Asset Sale and the other transactions
contemplated by the Merger Agreement (collectively, the “Transactions”) and as Guarantors, they are
jointly and severally liable under the Guaranty and their respective Affiliates are jointly and
severally liable under the Merger Agreement;



 









 





     WHEREAS, it is the general intention of the Parties that on and after the date hereof, the
assets and liabilities of CNL shall be shared by the Parties in accordance with the Sharing
Percentage, except that the assets and liabilities associated with the individual Company
Properties shall inure to, or be borne by, each Party based on their Respective Portfolio; and



     WHEREAS, the purpose of this Agreement is to set forth the rights and obligations of MSREF and
Ashford (or their respective Affiliates, as the case may be) with respect to each other as a result
of having entered into the Merger Agreement, the Guaranty and other relevant transaction documents.



     NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth
herein, the Parties agree as follows:



ARTICLE I — AGREEMENTS




     Section 1.1. Mutual Reliance. MSREF and Ashford hereby agree, severally and not jointly,
that, subject to the terms and conditions of this Agreement and the satisfaction or waiver of the
conditions precedent set forth in the Merger Agreement, as of the closing of the respective
Transactions contemplated by the Merger Agreement, MSREF and Ashford, as the case may be, will
contribute (or cause to be contributed) their respective Commitment Amount as more particularly set
forth on Exhibit I hereto. MSREF and Ashford each agree that it is relying on the other
Party’s (or their Affiliate’s) performance of its obligations under the Merger Agreement, the
Guaranty, the Purchase Agreements and this Agreement, and that the failure, in whole or in part, of
one of the Parties (or their Affiliates) to perform its obligations under the Merger Agreement,
their respective Financing Documents, the Purchase Agreements or any other relevant document
relating to the Transactions, would adversely affect the other Party in connection with the
Transactions. In those cases, where either Party or its Affiliates has a consent or other right
under the Merger Agreement or this Agreement, the Parties shall negotiate in good faith and
expeditiously to resolve any differences of opinion relating to the interpretation, enforcement or
performance of the matter. The Parties agree that time will be of the essence with respect to the
resolution of such differences of opinion.



     Section 1.2. Guaranty Liability.



               (a) Except to the extent otherwise provided in this Agreement, MSREF and Ashford, as the
Guarantors under the Guaranty, each agree that its respective share of the Guaranteed Obligations
shall be limited to its respective Sharing Percentage of the total amount of such Guaranteed
Obligations.



               (b) In the event that either MSREF or Ashford are called upon to satisfy any of the Guaranteed
Obligations and the other is not also called or in the event payments are made by MSREF or Ashford
in satisfaction of the Guaranteed Obligations other than in accordance with the Sharing Percentage
or as otherwise required in this Agreement, Ashford and MSREF each agree that it shall reimburse or
indemnify the other Party. Ashford or MSREF, as the case may be, shall promptly pay to the other
Party an amount such that,



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following the payment of such amount, the aggregate payments made in respect of the Guaranteed
Obligations shall be shared by Ashford and MSREF in accordance with the Sharing Percentage or as
otherwise required in this Agreement, plus all reasonable charges, costs and expenses actually
incurred by the claiming party in enforcing its rights hereunder against the other, if any.




               (c) If the Guaranteed Obligations arose primarily through the gross negligence of either MSREF
or Ashford (or any of their respective Affiliates), whether by act or omission or through the
breach of the Merger Agreement, of the Party’s respective Financing Documents, or of the Party’s
respective Purchase Agreement, then that Party agrees to be solely responsible for and to satisfy
such Guaranteed Obligations (without any reimbursement or indemnification from the other Party) and
agrees to reimburse or indemnify the other Party with respect to such Guaranteed Obligations.



               (d) If any Party receives notice requesting payment of any amounts pursuant to the Guaranty (a
“Notice of Claim”), such Party shall provide written notice to the other Party within one (1)
Business Day of receipt of a Notice of Claim.



     Section 1.3. Buyer Financing. Each of MSREF and Ashford acknowledges that the Parties are
relying on the performance of the obligations of the lenders or investors under the Financing
Documents and shall use their respective best efforts (or cause their Affiliates to use their best
efforts) to enforce their rights under the Financing Documents or obtain alternative financing in
an amount necessary to fund the Commitment Amount. Each of MSREF and Ashford acknowledge that the
best efforts obligations set forth in this Section 1.3 shall be interpreted in a manner to
include, among other requirements, that the Parties shall incur whatever costs and expenses
necessary, including, without limitation, the posting of any reserves required by the financing
sources, to enforce the obligations under the Funding Documents as if the other Party were a
third-party beneficiary of the Financing Documents.



     Section 1.4. Sources and Uses. Each of the Parties hereto agree that the sources and uses
for the payments of the amounts necessary to consummate all of the Transactions shall be
substantially as set forth on Exhibit I as such sources and uses may be modified based on
each Party’s Deemed Net Working Capital Amount pursuant to Section 3.2. Subject to
Section 1.3 hereof, neither the Ashford Parties nor the MSREF Parties may materially modify
their respective sources and uses from those set forth on Exhibit I without the consent of
the other Party hereto, such consent not to be unreasonably withheld.



     Section 1.5. Payments Received from CNL.



               (a) In the event that Parent receives any amounts from CNL pursuant to Section 8.5(b) and/or
Section 8.5(c) of the Merger Agreement (collectively, the “Company Payments”), MSREF shall cause
Parent to pay to Ashford an amount equal to (i) the Company Payments multiplied by (ii) the Ashford
Percentage within two (2) Business Days of receipt.



               (b) MSREF and Ashford hereby agree that all amounts received by Parent, other than in respect
of Company Payments, shall be paid to the Parties as follows:



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          (i) If such amounts are paid as the result of events which have occurred on or
prior to the date hereof and including, without limitation, amounts received from
insurance carriers relating to the settlement of any claims with CNL’s director and
officer insurance carriers and any proceeds received from property, casualty and
business interruption insurance, such amounts shall be shared by the Parties in
accordance with the Sharing Percentage.




          (ii) If such amounts are paid in respect of business interruption, property or
casualty insurance claims as the result of events occurring after the date hereof,
but prior to the date of the Closing of the Asset Sales, such amounts shall be paid
in full to the Party whose Respective Portfolio contains the Company Property that
is the subject of such claims.




          (iii) If such amounts are paid, other than in respect of the claims set forth
in Section 1.5(b)(ii) above, as a result of events occurring after the date
hereof, but prior to the date of the Asset Sales, such amounts shall be shared by
the Parties in accordance with the Sharing Percentage.


MSREF shall cause Parent to distribute to Ashford the amounts payable under this Section
1.5(b) within two (2) Business Days of receipt.




     Section 1.6. Corporate Liabilities of CNL.



               (a) MSREF and Ashford agree that, except to the extent set forth in Sections
1.6(b), 1.7 and 3.2 hereof, any and all liabilities, including, without
limitation, any contingent liabilities, but expressly excluding any liabilities that may arise as
the result of Section 1374 of the Code, of CNL existing at the time of the Closing of the Merger
shall be shared by MSREF and Ashford from and after the Closing of the Merger in accordance with
the Sharing Percentage. Ashford hereby agrees to reimburse MSREF an amount equal to its Sharing
Percentage of any such liabilities within five (5) Business Days of receipt of a request from MSREF
for such reimbursement.



               (b) Notwithstanding anything to the contrary contained in Section 1.6(a) hereof,
Ashford shall not be obligated to reimburse MSREF for any tax liabilities of CNL that directly
result from the failure of CNL to qualify as a REIT as a result of the structuring of the Merger
and the Parent Asset Sale. For the avoidance of doubt, Ashford shall be responsible for any
liabilities of CNL failing to qualify as a REIT resulting from the Arizona Asset Sale in accordance
with the Sharing Percentage.



     Section 1.7. Company Properties Liabilities. Each of the Parties agree that any and all
liabilities arising from, or related to, a Company Property shall be borne solely by the Party
whose Respective Portfolio contains such Company Property.



     Section 1.8. Marketed Portfolio Purchase and Sale Agreement. The Parties hereto agree that
in the event that W2005 New Century Hotel Portfolio, L.P. exercises its rights under



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the Marketed Portfolio Purchase and Sale Agreement not to acquire one of more of the Whitehall
Properties and any such Whitehall Property is owned by CNL or its Subsidiaries on the date of the
Closing of the Merger, Ashford Acquisition shall acquire such Whitehall Property in accordance with
the Ashford Asset Purchase Agreement. Ashford agrees that it shall cause Ashford Acquisition to
use commercially reasonable efforts to sell such Whitehall Property as promptly as commercially
practicable following the Closing of the Merger at a price to be mutually agreed upon by MSREF and
Ashford. The Parties agree that all liabilities in association with the acquisition of any of the
Whitehall Properties shall be shared by the Parties in accordance with the Sharing Percentage. The
Parties further agree that Ashford Acquisition may transfer or assign such Whitehall Properties to
a joint venture that is owned by MSREF and Ashford in accordance with the Sharing Percentage.
Ashford shall cause Ashford Acquisition promptly to distribute to each of MSREF and Ashford an
amount equal to the net proceeds received from the sale of any Whitehall Property multiplied by
their respective Sharing Percentage, and simultaneously therewith, Ashford shall cause Ashford
Acquisition to assign to MSREF, and MSREF shall assume from Ashford Acquisition, the MSREF
Percentage of all liabilities in association with the acquisition of any such Whitehall Property.



     Section 1.9. Tax Opinions. The Parties agree that if Parent or Sub are entitled to any
recovery from Sidley Austin LLP in connection with its tax opinion related to CNL’s qualification
as a REIT, each of MSREF and Ashford shall share in such recovery in accordance with the Sharing
Percentage. MSREF further agrees that it shall cause Goodwin Procter LLP to include
Ashford as a third-party beneficiary of the tax opinion to be issued by Goodwin Procter
LLP in connection with the Transactions.



     Section 1.10. Consummation of Arizona Asset Sale. Notwithstanding anything to the contrary
contained herein and except as set forth in Sections 1.6, 1.7, 1.8 and 3.1, upon the consummation
of the Arizona Asset Sale and the payment in full of the purchase price thereunder to CNL, (i) the
obligations of Ashford under the Guaranty shall cease and be of no further force and effect and
MSREF shall indemnify Ashford for all Guaranteed Obligations and any expenses incurred by CNL in
enforcing its rights thereunder and (ii) the obligations of the Ashford Parties under this
Agreement and the rights of the Ashford Parties under Article II of this Agreement shall cease and
be of no further force and effect.



     Section 1.11. Definitions. The following terms shall have the meanings indicated or
referred to below, inclusive of their singular and plural forms except where the context requires
otherwise. Except as otherwise set forth herein, capitalized terms used herein shall have the
meanings set forth in the Merger Agreement.



     “Ashford Parties” shall mean Ashford and Ashford Acquisition.



     “Ashford Percentage” shall mean 38.71%.



     “Commitment Amount” shall mean, in the case of MSREF, all of the funds needed by the MSREF
Parties to acquire the MSREF Acquired Assets, to pay the Per Share Merger Consideration and to pay
its share of the Transaction Expenses, and, in the case of Ashford, all of



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the funds needed by the Ashford Parties to acquire the Ashford Portfolio Assets and to pay its
share of the Transaction Expenses.



     “Consolidated Current Assets” shall mean, at the time of determination, the total aggregate
assets of CNL and its Subsidiaries which may properly be classified as current assets on a
consolidated balance sheet of CNL and its Subsidiaries in accordance with GAAP.



     “Consolidated Current Liabilities” shall mean, at the time of determination, the total
aggregate liabilities of CNL and its Subsidiaries which may properly be classified as current
liabilities on a consolidated balance sheet of CNL and its Subsidiaries in accordance with GAAP.



     “Deemed Net Working Capital Amount” shall mean, for each Party, such Party’s Sharing
Percentage of the Net Working Capital of CNL on the date of the Closing of the Asset Sales as such
amount may be modified pursuant to Section 3.2 hereof.



     “Financing Documents” shall mean, in the case of MSREF, the Parent Commitment Letter and the
Parent Preferred Equity Funding Letter, and in the case of Ashford, the Ashford Commitment Letters.



     “Guaranteed Obligations” shall mean the “Obligations” as such term is defined in the Guaranty.



     “MSREF Parties” shall mean Parent, Sub, MSREF Purchaser Sub and MSREF.



     “MSREF Percentage” shall mean 61.29%.



     “Net Working Capital of CNL” shall mean at the time of determination, the Consolidated Current
Assets of CNL at such time minus the Consolidated Current Liabilities of CNL at such time.



     “Respective Portfolio” shall mean, with respect to MSREF, the MSREF Portfolio and, with
respect to Ashford, the Ashford Portfolio.



     “Sharing Percentage” shall mean, in the case of MSREF, the MSREF Percentage, and in the case
of Ashford, the Ashford Percentage.



     “Transaction Expenses” shall mean all expenses of CNL in connection with the consummation of
the Transactions, including, without limitation, all executive severance and 280G gross-up
payments, all expenses relating to the due diligence of CNL as a corporate entity by the Parties,
including, without limitation, all accountants’, attorneys’ and advisors’ fees, and all expenses
relating to the structuring, analyzing of tax concerns, negotiating, documenting and closing of the
Transactions including, without limitation, attorneys’ fees. For the avoidance of doubt,
Transaction Expenses shall not include any expenses related to the due diligence conducted on, or
the closing costs associated with the acquisition of, the individual Company



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Properties and any fees or expenses related to the transactions contemplated by the Financing
Documents, including the costs associated with enforcing Section 1.3 of this Agreement.



     “Whitehall Property” shall mean any of the Company Properties that are subject to sale
pursuant to the Marketed Sale Purchase and Sale Agreement.



 ARTICLE II — APPROVAL RIGHTS




     Section 2.1. Closing Conditions of the Merger Agreement.



               (a) After consultation with the other Party, MSREF or Ashford, as the case may be, shall, in
its good faith discretion, each be permitted to assert that there has occurred a Material Adverse
Effect on CNL (a “Company MAE”) and that the closing condition set forth in Section 9.3(c) of the
Merger Agreement has not been satisfied at or prior to the Closing of the Merger; provided that the
events or occurrences giving rise to the Company MAE relate to its Respective Portfolio and such
Party’s Sharing Percentage of such events or occurrences not specifically related to either the
Ashford Portfolio or the MSREF Portfolio. The Parties acknowledge that the events or occurrences
giving rise to the assertion that there has occurred a Company MAE must meet the definition of a
Company MAE even though such Parties’ assertion relates only to its Respective Portfolio and its
Sharing Percentage of such events or occurrences not specifically related to either the Ashford
Portfolio or the MSREF Portfolio.



               (b) After consultation with the other Party, each of MSREF and Ashford shall have the right,
in its good faith discretion, to cause Parent to assert that the condition set forth in Section
9.3(a) of the Merger Agreement is not satisfied with respect to its Respective Portfolio.



               (c) After consultation with the other Party, each of MSREF and Ashford shall have the right,
in its good faith discretion, to cause Parent to assert that the condition set forth in Section
9.3(b) of the Merger Agreement is not satisfied.



               (d) MSREF shall not cause or permit Parent to waive any condition to closing under Section 9.3
of the Merger Agreement that relates directly or indirectly to the Ashford Portfolio without the
prior written consent of Ashford.



     Section 2.2. Conduct of Business Pending Closing.



               (a) MSREF and Ashford hereby agree that MSREF shall cause Parent to consent to any actions
under Section 7.1 of the Merger Agreement as follows:




          (i) if the consent relates solely to one or more Company Properties in the
MSREF Portfolio, at the direction of MSREF;




          (ii) if the consent relates solely to one or more Company Properties in the
Ashford Portfolio, at the direction of Ashford; and



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          (iii) if the consent relates to either (x) Company Properties in both the MSREF
Portfolio and the Ashford Portfolio or (y) the conduct of business of CNL as a
whole, MSREF and Ashford shall discuss such consent in good faith and attempt to
reach a mutual decision as to whether such consent shall be granted. If the Parties
cannot agree as to whether such consent should be granted, Parent shall not grant
such consent.



               (b) If in the case of Section 2.2(a)(i) above, MSREF consents to any action related to
the MSREF Portfolio and as a result of such consent, CNL expends any amounts or any of CNL’s
Subsidiary’s owning the subject Company Property expends any amounts in excess of budgeted
reserves, including, without limitation, capital expenditures (including owner-funded capital
expenditures), in reliance on such consent related to any Company Properties in the MSREF
Portfolio, MSREF’s allocation of Net Working Capital of CNL shall be decreased by such amount and
Ashford’s allocation of Net Working Capital of CNL shall be increased by such amount.



               (c) If in the case of Section 2.2(b)(i) above, Ashford consents to any action related
to the Ashford Portfolio and as a result of such consent, CNL expends any amounts or any of CNL’s
Subsidiary’s owning the subject Company Property expends any amounts in excess of budgeted
reserves, including, without limitation, capital expenditures (including owner-funded capital
expenditures), in reliance on such consent related to any Company Properties in the Ashford
Portfolio, Ashford’s allocation of Net Working Capital of CNL shall be decreased by such amount and
MSREF’s allocation of Net Working Capital of CNL shall be increased by such amount.



     Section 2.3. Acquisition Proposals. MSREF shall cause Parent to forward any notice
received pursuant to Section 7.2(c) of the Merger Agreement to Ashford as promptly as practicable
following actual receipt from CNL. MSREF and Ashford shall discuss in good faith how best to
respond to any Superior Proposal and whether Parent shall make a Counterproposal prior to the
expiration of the time period set forth in Section 7.2(e) of the Merger Agreement. If either Party
desires to submit a Counterproposal, it shall offer the other Party the opportunity to participate
in such Counterproposal based on such Party’s Sharing Percentage. If a Party shall not have
accepted the offer to participate in the Counterproposal prior to the expiration of the time period
set forth in Section 7.2(e) of the Merger Agreement, the offering Party may proceed with such
Counterproposal and (i) the Party making the Counterproposal shall promptly repay all actual and
documented reasonable out-of-pocket expenses, including attorneys’ fees, of the other Party and
(ii) this Agreement and the letter agreement, dated as of January 11, 2007, shall terminate and be
of no further force and effect.



     Section 2.4. Other Approvals. Except as otherwise set forth in this Article II,
MSREF and Ashford agree that any other consents, approvals or other decisions under the Merger
Agreement shall be made by Parent, in its good faith discretion after consultation with Ashford;
provided that such consent, approval or other decision may not be made without the prior written
consent of Ashford if it materially and adversely affects the rights of the Ashford Parties under
the Merger Agreement or the Ashford Portfolio.



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ARTICLE III — TRANSACTION EXPENSES




     Section 3.1. Transaction Expenses. MSREF and Ashford agree that all Transaction Expenses
shall be paid by each of MSREF and Ashford in accordance with the Sharing Percentage. If either
Party (or its Affiliates) pays any Transaction Expenses on behalf of both Parties, such Party shall
provide a detailed accounting of any such Transaction Expenses. Promptly upon written request from
the Party paying such Transaction Expenses, the Party that has not previously paid the subject
Transaction Expenses shall pay such amounts to the Party that previously paid the subject
Transaction Expenses so as to cause such Transaction Expenses to have been paid in accordance with
the Sharing Percentage.



     Section 3.2. Closing Date Net Working Capital.



               (a) On the date of the Closing of the Assets Sales, the Net Working Capital of CNL shall be
apportioned to each Party as follows:




          (i) First, each Party shall be allocated its Sharing Percentage of the
Net Working Capital of CNL;




          (ii) Second, each Party’s allocation of Net Working Capital of CNL
shall be increased or decreased, as applicable, in accordance with Sections
2.2(b) and 2.2(c) hereof; and




          (iii) Third, all other amounts paid by CNL in relation to a specific
Company Property or group of Company Properties not consented to by a Party pursuant
to Section 2.2 hereto, including, without limitation, amounts used to
amortize debt securing a Company Property(ies), shall be allocated such as to
decrease the allocation of Net Working Capital of CNL to the Party in whose
Respective Portfolio such Company Property(ies) is held by such amount and to
increase the other Party’s allocation of Net Working Capital of CNL by such amounts.



               (b) The total amount of Net Working Capital allocated to each Party in accordance with
Section 3.2(a) above shall be such Party’s “Deemed Net Working Capital Amount”.



               (c) Each of MSREF and Ashford shall provide the other Party with full and complete access to
all calculations and supporting information in such Party’s possession that is reasonably requested
by the other Party to determine the Net Working Capital of CNL on the date of the Closing of the
Asset Sales and each Party’s Deemed Net Working Capital Amount for a period of fifteen (15) days
following the Closing of the Merger. If the Parties are unable to agree on each Party’s Deemed Net
Working Capital Amount at the end of such fifteen (15) day period, the Parties shall negotiate in
good faith to reach agreement on each Party’s Deemed Net Working Capital Amount for a period of
thirty (30) days. If following such thirty (30) day period the Parties are unable to agree on each
Party’s Deemed Net Working



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Capital Amount, an independent third party reasonably acceptable to both Parties shall
determine each Party’s Deemed Net Working Capital Amount and such determination shall be binding on
the Parties. All costs and expenses in relation to such determination by an independent third
party shall be borne by the Parties in accordance with the Sharing Percentage. The Parties agree
that they shall work together in good faith to properly and timely reflect the information provided
by third-party franchisors promptly upon receipt of such information from such franchisors.



     (d) If a Party’s Deemed Net Working Capital Amount is positive, the amount required to be
funded by such Party in order to satisfy its Commitment Amount shall be reduced by such Party’s
Deemed Net Working Capital Amount. If a Party’s Deemed Net Working Capital Amount is negative, the
amount required to be funded by such Party in order to satisfy its Commitment Amount shall be in
increased by an amount necessary to bring such Party’s Deemed Net Working Capital Amount to zero.
Within two (2) Business Days after the date that the Parties’ Deemed Net Working Capital Amount has
been finally agreed upon or determined in accordance with Section 3.2(c) above, MSREF shall
cause Parent to distribute any amounts required to be paid to Ashford pursuant to Section
3.2 of this Agreement.



ARTICLE IV —  INDEMNIFICATION AND CONTRIBUTION




     Section 4.1. Rights of Contribution.



               (a) If either of the MSREF Parties or the Ashford Parties fails to fully perform their
obligations under the Merger Agreement or the Purchase Agreements (a “Defaulting Party”), MSREF or
Ashford, as applicable (in such case, a “Curing Party”), may, in its sole discretion, perform the
obligations of the Defaulting Party under the Merger Agreement and the Purchase Agreements. If a
Curing Party shall perform the obligations of a Defaulting Party, the Curing Party shall be
entitled to receive damages in an aggregate amount not to exceed $300,000,000.



               (b) Notwithstanding Section 4.1(a), MSREF and Ashford agree that following the
consummation of either of the Asset Sales and the payment of the related purchase price thereunder,
a Defaulting Party shall be solely liable for all damages to CNL as a result of the failure to
fully perform its obligations under the Merger Agreement and the applicable Purchase Agreement.



               (c) Except as set forth in Section 4.1(b) and notwithstanding anything else contained
herein to the contrary, in no event shall the obligations of one Party hereunder to the other Party
exceed in the aggregate $300,000,000.



     Section 4.2. Indemnification. Each of the Parties hereto agree to indemnify and hold
harmless the other Party against any and (subject to the limitations set forth in Section
4.1) all losses, claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or investigating any such action or
claim)



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caused by the failure of such Party to perform their obligations under the Merger Agreement as
set forth in Section 4.1 of this Agreement.



ARTICLE V — MISCELLANEOUS




     Section 5.1. Amendments; Waivers. This Agreement may be amended only by written instrument
signed by the Parties hereto. No delay of or omission in the exercise of any right, power or
remedy accruing to any Party as a result of any breach or default by any other Party under this
Agreement shall impair any such right, power or remedy, nor shall it be construed as a waiver of or
acquiescence in any such breach or default, or of any similar breach or default occurring later;
nor shall any such delay, omission nor waiver of any single breach or default be deemed a waiver of
any other breach or default occurring before or after that waiver. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such waiver.



     Section 5.2. Governing Law. This Agreement shall be governed by and construed in
accordance with the Laws of the State of New York without regard to the principles of conflicts of
Law. Each party hereby waives its right to trial by jury in connection with any dispute between
any of the parties to this Agreement arising out of or relating to this Agreement.



     Section 5.3. Notices. Any and all notices, demands, consents, approvals, elections,
requests and other communications required or permitted under this Agreement shall be deemed
delivered (i) if delivered by hand; (ii) if delivered by nationally recognized overnight courier
service (Federal Express or similar expedited commercial carrier), addressed to the recipient of
the notice, with all freight charges prepaid, on the first following Business Day after such
delivery to such service; (iii) if given by facsimile, when such facsimile is transmitted to the
facsimile number specified below and the appropriate answer back or confirmation is received; and
(iv) by e-mail, if provided and the recipient acknowledges receipt thereof by reply e-mail or
otherwise; provided that whenever under this Agreement a notice is either received on a day
which is not a Business Day or is required to be delivered on or before a specific day which is not
a Business Day, the day of receipt or required delivery shall automatically be extended to the next
Business Day.



               (a) if to MSREF, to:


c/o Morgan Stanley Real Estate Investing – MSREF

1585 Broadway

New York, NY 10036

Telecopier No.: (212) 507-4571

Attention: Michael Franco

Email: Michael.Franco@morganstanley.com





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                     with a copy to:


Goodwin Procter LLP

Exchange Place

Boston, MA 02109

Telecopier No: (617) 523-1231

Attention: Gilbert G. Menna, Esq.

                     Suzanne D. Lecaroz, Esq.

Email: gmenna@goodwinprocter.com

           slecaroz@goodwinprocter.com




               (b) if to Ashford, to:


Ashford Hospitality Trust, Inc.

14185 Dallas Parkway, Suite 1100

Dallas, TX 75254

Telecopier No.: (972) 778-9207

Attention: David A. Brooks, Esq.

Email: dbrooks@ahtreit.com




                    with a copy to:


Akin, Gump, Strauss, Hauer & Feld LLP

1111 Louisiana Street, 44th Floor

Houston, TX 77002

Telecopier No: (713) 236-0822

Attention: Michael E. Dillard, Esq.

Email: mdillard@akingump.com




     Section 5.4. Attorney’s Fees. If any Party seeks to enforce such Party’s rights under this
Agreement by legal proceedings or otherwise, the non-prevailing party shall be responsible for all
costs and expenses in connection therewith, including reasonable attorneys’ fees and witness fees.



     Section 5.5. Severability. In the event that any provision hereof would, under applicable
law, be invalid or unenforceable in any respect, such provision shall be construed by modifying or
limiting it so as to be valid and enforceable to the maximum extent compatible with, and possible
under, applicable Law. The provisions hereof are severable, and in the event any provision hereof
should be held invalid or unenforceable in any respect, it shall not invalidate, render
unenforceable or otherwise affect any other provision hereof.



- 12 -









 





     Section 5.6. Counterparts. This Agreement may be executed in one or more counterparts
(including by facsimile), each of which shall be deemed to constitute an original, but all of which
together shall constitute one and the same instrument.



     Section 5.7. Specific Enforcement. The Parties expressly agree that they will be
irreparably damaged if this Agreement is not specifically enforced. Upon a breach or threatened
breach of the terms, covenants or conditions of this Agreement by any Party, the parties shall, in
addition to all other remedies, each be entitled to seek a temporary or permanent injunction,
without showing any actual damage, and/or a decree for specific performance, in accordance with the
provisions hereof.



     Section 5.8. Further Assurances. At any time or from time to time after the date hereof,
the parties agree to cooperate with each other, and at the request of any other Party, to execute
and deliver any further instruments or documents and to take all such further action as the other
Party may reasonably request in order to evidence or effectuate the intent of the Parties
hereunder. Either of the Parties may propose an amendment to this Agreement in order to effectuate
the intent of the Parties hereunder and the other Party shall consider such amendment in good
faith. MSREF agrees to provide Ashford with access during normal business hours to the records of
CNL in the possession of MSREF and its Affiliates relating to all times prior to the Closing of the
Merger that are reasonably requested by Ashford.



[Remainder of Page Left Blank Intentionally]




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     IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first set
forth above.



	 	 	 	 	 
	 	 	MORGAN STANLEY REAL ESTATE FUND V U.S., L.P.
	 
	 	 	 	 
	 

	 	By:
	 	MSREF V U.S.-GP, L.L.C., its general partner
	 
	 	 	 	 
	 

	 	By:
	 	/S/ GREERSON G. MCMULLEN
	 

	 	 	 	Name: Greerson G. McMullen
	 

	 	 	 	Title: Executive Vice President
	 
	 	 	 	 
	 	 	ASHFORD HOSPITALITY TRUST, INC.
	 
	 	 	 	 
	 

	 	By:
	 	 /S/ DAVID A. BROOKS
	 

	 	 	 	Name: David A. Brooks
	 

	 	 	 	Title: Chief Legal Officer






- 14 -









 






EXHIBIT A




SOURCES AND USES




A-1 









 





EXHIBIT B




MSREF PORTFOLIO




	 	 	 
	Property	 	Location
	1. Grand Wailea Resort Hotel and Spa

	 	Maui, HI
	2. La Quinta Resort & Club

	 	La Quinta, CA
	3. Arizona Biltmore Resort & Spa

	 	Phoenix, AZ
	4. Doral Golf Resort & Spa

	 	Miami, FL
	5. Claremont Resort & Spa

	 	Berkeley, CA
	6. JW Marriott Desert Ridge Resort and Spa

	 	Phoenix, AZ
	7. Ritz-Carlton, Grande Lakes

	 	Orlando, FL
	8. JW Marriott, Grande Lakes

	 	Orlando, FL








B-1 









 








EXHIBIT C




ASHFORD PORTFOLIO




	 	 	 
	Property	 	Location
	1. Hilton Torrey Pines

	 	La Jolla, CA
	2. Hilton Capital

	 	Washington, DC
	3. Hilton Lincoln Centre

	 	Dallas, TX
	4. Hilton El Conquistador

	 	Tucson, AZ
	5. Hilton Rye Town

	 	Rye Brook, NY
	6. Embassy Suites Orlando Airport

	 	Orlando, FL
	7. Embassy Suites Santa Clara

	 	Santa Clara, CA
	8. Embassy Suites Crystal City

	 	Arlington, VA
	9. Doubletree Crystal City

	 	Arlington, VA
	10. Hilton Miami Airport

	 	Miami, FL
	11. Hilton Suites Auburn Hills

	 	Auburn Hills, MI
	12. Hilton Costa Mesa

	 	Costa Mesa, CA
	13. Embassy Suites Portland

	 	Portland, OR
	14. Hilton Birmingham Perimeter Park

	 	Birmingham, AL
	15. JW Marriott New Orleans

	 	New Orleans, LA
	16. Marriott Bridgewater

	 	Bridgewater. NJ
	17. Marriott BWI Airport

	 	Baltimore, MD
	18. Marriott Dallas Plano at Legacy Town Center

	 	Plano, TX
	19. Marriott Seattle Waterfront

	 	Seattle, WA
	20. Marriott Suites Dallas

	 	Dallas, TX
	21. Renaissance Tampa Hotel International Plaza

	 	Tampa, FL
	22. Courtyard Philadelphia

	 	Philadelphia, PA
	23. Courtyard San Francisco

	 	San Francisco, CA
	24. Hyatt Coral Gables

	 	Coral Gables, FL
	25. Hyatt Dearborn

	 	Dearborn, MI
	26. Hyatt Montreal

	 	Montreal, QC
	27. Courtyard Marriott Village

	 	Orlando, FL
	28. SpringHill Suites Marriott Village

	 	Orlando, FL
	29. Fairfield Inn Marriott Village

	 	Orlando, FL
	30. Courtyard Basking Ridge

	 	Basking Ridge, NJ
	31. Courtyard Edison

	 	Edison, NJ
	32. Courtyard Newark

	 	Newark, CA
	33. Courtyard Oakland Airport

	 	Oakland, CA
	34. Courtyard Plano

	 	Plano, TX
	35. Courtyard Scottsdale

	 	Scottsdale, AZ
	36. Courtyard Seattle

	 	Seattle, WA
	37. Residence Inn — Kansas City

	 	Kansas City, MO
	38. Residence Inn — Torrance

	 	Torrance, CA
	39. Residence Inn Atlanta Buckhead at Lenox Park

	 	Atlanta, GA






C-1 









 






	 	 	 
	Property	 	Location
	40. Residence Inn Las Vegas

	 	Las Vegas, NV
	41. Residence Inn Newark

	 	Newark, CA
	42. Residence Inn Phoenix

	 	Phoenix, AZ
	43. Residence Inn Plano

	 	Plano, TX
	44. Residence Inn, Perimeter West Atlanta

	 	Atlanta, GA
	45. SpringHill Suites Manhattan Beach

	 	Manhattan Beach, CA
	46. SpringHill Suites Plymouth Meeting

	 	Plymouth Meeting, PA
	47. SpringHill Suites Richmond

	 	Richmond, VA
	48. TownePlace Suites Manhattan Beach

	 	Manhattan Beach, CA
	49. Courtyard Manchester

	 	Manchester, CT
	50. Residence Inn Manchester

	 	Manchester, CT
	51. Hampton Inn Houston Galleria

	 	Houston, TX






C-2