Exhibit
10.93
 
 **LIMITED
RENT GUARANTY**
 
 **THIS
LIMITED RENT GUARANTY** (this
“ **Guaranty** ”) is
made as of the 30 th day of
December, 2004 (the “ **Effective
Date** ”), by
and among Marriott International, Inc., a Delaware corporation (“ **Guarantor** ”), and
CNL Philadelphia Annex, LLC, a Delaware limited liability company formerly known
as Courtyard Annex, L.L.C. (“ **Landlord** ”).
 
 
 **RECITALS:**
 
 A.
    Landlord
      is the fee owner of that certain Courtyard by Marriott located in
      Philadelphia, Pennsylvania and known as the Courtyard Philadelphia
      Downtown (the “**Hotel
      Property**”).
      Landlord and City Center Annex Tenant Corporation, a Delaware corporation
      (“**Tenant**”),
      are parties to that certain Lease Agreement dated as of November 15, 1999
      (the “**Hotel
      Lease**”)
      with respect to the Hotel Property. Guarantor and Landlord were parties to
      that certain Limited Rent Guaranty dated as of November 15, 1999 (the
      “**Old
      Guaranty**”)
      with respect to the Hotel Property, and such Old Guaranty was terminated
      in accordance with its terms.B.
    Guarantor
      owns, directly or indirectly, all of the capital stock in
      Tenant.C.
    The
      transactions contemplated by the Hotel Lease are of direct, material and
      substantial benefit to Guarantor.
 
 **NOW,
THEREFORE,** in
consideration of the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Guarantor and Landlord
hereby covenant and agree as follows:
 
 
 **SECTION
1**
 
 **DEFINED
TERMS**
 
 The
following terms, as used in this Guaranty, shall have the meanings set forth
below:
 
 “ **Accounting
Period** ” shall
have the meaning given such term in the Hotel Lease.
 
 “ **Additional
Funded Amount** ” shall
have the meaning given such term in Section 2.B hereof.
 
 “ **Affiliate** ” shall
mean, as to any Person, any other Person that, directly or indirectly, controls,
is controlled by or is under common control with such Person. For purposes of
this definition, the term “control” (including the terms “controlling,”
“controlled by” and “under
  
  common
control with”) of a Person means the possession, directly or indirectly, of the
power: (i)  to vote more than fifty percent (50%) of the voting stock
of such Person; or (ii) to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting stock, by
contract or otherwise.
 
 “ **Aggregate
Amount Funded** ” shall
mean, as of any given point in time, the Amount Funded for all prior Fiscal
Years plus the Amount Funded for the current Fiscal Year.
 
 “ **Amount
Funded** ” shall
mean the remainder of (i) all Guaranteed Rent paid for a Fiscal Year (other than
payments, after the Effective Date, of accrued but unpaid Rent for Accounting
Period 12 and Accounting Period 13 of the 2004 Fiscal Year), either by Tenant
pursuant to the terms of the Hotel Lease or by Guarantor pursuant to the terms
of this Guaranty, less (ii) the total amount of Cash Available for Lease
Payments during such Fiscal Year derived from the Hotel Property. The Amount
Funded shall be calculated cumulatively for all Accounting Periods elapsed
during a Fiscal Year, and shall be subject to adjustment and true-up pursuant to
the provisions of Section 2 hereof. The Amount Funded for any Fiscal Year shall
in no event be less than zero. Without limiting the foregoing, Amount Funded
shall include Guaranteed Rent with respect to Accounting Period 1 of the 2005
Fiscal Year anticipated to be paid on or about the Effective Date.
 
 “ **Applicable
Laws** ” shall
have the meaning given such term in the Hotel Lease.
 
 “ **Business
Day** ” shall
have the meaning given such term in the Hotel Lease.
 
 “ **Cash
Available for Lease Payments** ” shall
mean the remainder of (i) Total Hotel Sales for the Hotel Property during a
given Fiscal Year, less (ii) Property Expenses for the Hotel Property for the
same Fiscal Year.
 
 “ **CNL** ” shall
mean CNL Hospitality Partners, LP, a Delaware limited partnership.
 
 “ **Default** ” and
“ **Event
of Default** ” shall
have the respective meanings given such terms in the Hotel Lease.
 
 “ **Exercise
of Rights** ” shall
have the meaning given such term in Section 6.C hereof.
 
 “ **Fiscal
Year** ” shall
mean Tenant’s Fiscal Year which as of the Effective Date ends at midnight on the
Friday closest to December 31 in each calendar year; the new Fiscal Year begins
on the Saturday immediately following said Friday. If Tenant’s Fiscal Year is
changed in the future, appropriate adjustment to this Guaranty’s reporting and
accounting procedures shall be made; provided, however, that no such change or
adjustment shall alter the Guaranty Term or in any way reduce the payments due
hereunder.
 
 “ **Guaranteed
Rent** ” shall
have the meaning given such term in Section 2.A hereof.
 
 “ **Guarantor** ” shall
have the meaning given such term in the Preamble.
 
  2
  “ **Guaranty
Funding Limit** ” shall
mean Eighteen Million Four Hundred Eighty-Seven Thousand Two Hundred Sixty-Six
Dollars ($18,487,266).
 
 “ **Guaranty
Funding Limit Notice** ” shall
have the meaning given such term in Section 3.B hereof.
 
 “ **Guaranty
Term** ” shall
have the meaning given such term in Section 3.A hereof.
 
 “ **Hotel
Lease** ” shall
have the meaning given such term in the Recitals.
 
 “ **Hotel
Property** ” shall
have the meaning given such term in the Recitals.
 
 “ **Landlord** ” shall
have the meaning given such term in the Preamble.
 
 “ **Late
Charges** ” shall
mean late charges payable by Tenant with respect to Minimum Rent and/or
Percentage Rent pursuant to Section 3.2 of the Hotel Lease.
 
 “ **Legal
Requirements** ” shall
have the meaning given such term in the Hotel Lease.
 
 “ **Minimum
Rent** ” shall
have the meaning given such term in the Hotel Lease.
 
 “ **Overdue
Rate** ” shall
mean, on any date, a per  annum rate of
interest equal to the lesser of (i) twelve percent (12%) or (ii) the maximum
rate then permitted under applicable law.
 
 “ **Percentage
Rent** ” shall
have the meaning given such term in the Hotel Lease.
 
 “ **Persons** ” shall
have the meaning given such term in the Hotel Lease.
 
 “ **Preamble** ” shall
mean the first paragraph of this Agreement.
 
 “ **Property
Expenses** ” shall
have the meaning given such term in Exhibit
A attached
hereto.
 
 “ **Recitals** ” shall
mean paragraphs A through C under the heading “Recitals” in this
Agreement.
 
 “ **Rent** ” shall
have the meaning given such term in the Hotel Lease.
 
 “ **Repaid
Amount** ” shall
have the meaning given such term in Section 2.B hereof.
 
 “ **Repossession** ” shall
have the meaning given such term in Section 6.C hereof.
 
 “ **Retroactive
Period** ” shall
have the meaning given such term in Section 3.C hereof.
 
 “ **Retroactive
Reduction Event** ” shall
have the meaning given such term in Section 3.C hereof.
  3
  
 “ **Security
Deposit** ” shall
have the meaning given such term in the Hotel Lease.
 
 “ **Tenant** ” shall
have the meaning given such term in the Recitals.
 
 “ **Total
Hotel Sales** ” shall
have the meaning given such term in the Hotel Lease.
 
 “ **Transfer** ” shall
have the meaning given such term in the Hotel Lease.
 
 
 **SECTION
2**
 
 **GUARANTY**
 
 A.
    Subject
      to the terms, provisions and limitations of this Guaranty, Guarantor
      hereby absolutely, unconditionally and irrevocably guarantees to Landlord
      the full, complete and timely payment to Landlord of all Minimum Rent,
      Percentage Rent, and applicable Late Charges (collectively, “**Guaranteed
      Rent**”)
      as and when such amounts become due and payable in accordance with the
      Hotel Lease during the Guaranty Term, without deduction, reduction or
      credit by reason of any set-off (except to the extent of any set-offs to
      which Tenant is expressly entitled pursuant to the terms of the Hotel
      Lease); provided, however, that the Aggregate Amount Funded shall in no
      event exceed the Guaranty Funding Limit. Subject to the terms, provisions
      and limitations of this Guaranty, this Guaranty is an absolute,
      irrevocable and unconditional guaranty of payment. For purposes hereof,
      and notwithstanding anything to the contrary contained in the Hotel Lease,
      it is expressly understood and agreed that the Guaranteed Rent guaranteed
      hereunder shall not include any sums for damages arising from an Event of
      Default or termination of the Hotel Lease, specifically including damages
      computed on the basis of the acceleration of any Rent due under the Hotel
      Lease, it being understood and agreed that Guarantor’s agreement to pay
      Guaranteed Rent hereunder shall not exceed the amount of Minimum Rent,
      Percentage Rent and applicable Late Charges payable during the Guaranty
      Term in accordance with the Hotel Lease. Any defense, claim, counterclaim
      or offset that would be available to Tenant under the Hotel Lease or
      applicable law arising as a result of Landlord’s failure to mitigate
      damages pursuant to the terms of Section 12.2 of the Hotel Lease shall,
      notwithstanding anything to the contrary contained in Section 16.A hereof,
      likewise be available to and for the benefit of Guarantor (but Landlord’s
      failure to mitigate damages will not serve as a basis, standing alone, for
      termination of this Guaranty).B.
    Guarantor
      shall pay the Guaranteed Rent, in amounts required hereunder, within ten
      (10) Business Days after Landlord provides notice hereunder to Guarantor
      of Tenant’s failure to pay such amounts; provided, however, that in the
      event of an Exercise of Rights or Repossession, the above-referenced
      period of “ten (10) Business Days” shall be “twenty (20) Business
      Days.”During
      the course of each Fiscal Year, the Guaranteed Rent and the Amount Funded
      will be calculated for each Accounting Period within such Fiscal Year (on
      a cumulative basis for all Accounting Periods then elapsed during such
      Fiscal Year). The actual Guaranteed Rent and Amount Funded shall be
      trued-up and adjusted after each Accounting Period (and after each Fiscal
      Year), based on the actual cumulative Minimum Rent, Percentage Rent, Late
      Charges and Cash Available for Lease Payments through such Accounting
      Period (or through the end of such Fiscal Year, as the case may be).
      Guarantor and Landlord shall cooperate with respect to each such true-up
      calculation and shall promptly share all calculations and determinations
      relating thereto or resulting therefrom.1.
    If
      any such true-up calculation demonstrates that Guarantor overfunded the
      Guaranteed Rent during the applicable period, Landlord shall repay to
      Guarantorthe
      amount of such overfunding (any such repaid amount, or offset and reduced
      amount, as provided herein, the “**Repaid
      Amount**”)
      within five (5) Business Days after the first to occur of (i) Landlord’s
      actual knowledge of the occurrence of such overfunding and the amount
      thereof, or (ii) Landlord’s receipt of notice from Guarantor identifying
      the amount of such overfunding; provided, however, in lieu of such
      payment, Guarantor may, at its election, upon notice to Landlord, offset
      and reduce (or cause Tenant to offset and reduce) the amount of Guaranteed
      Rent otherwise payable by Guarantor hereunder (or by Tenant under the
      Lease, as the case may be) by the amount of such overfunding or any
      portion thereof. The parties agree that (a) the total amount of the Amount
      Funded shall be reduced by any such Repaid Amount; (b) such Repaid Amount
      shall be treated, for purposes of this Guaranty, as if it was never funded
      by Guarantor; and (c) such Repaid Amount shall not be included in the
      calculation of Aggregate Amount Funded for purposes of determining whether
      the Guaranty Funding Limit has been reached pursuant to Section 3.A.1
      hereof.2.
    If
      any such true-up calculation demonstrates that Guarantor underfunded the
      Guaranteed Rent during the applicable period, Guarantor shall pay to
      Landlord the amount of any such underfunding (any such additional payment,
      the “**Additional
      Funded Amount**”)
      within five (5) Business Days after the first to occur of (i) Guarantor’s
      or (except in the case of an Exercise of Rights or a Repossession)
      Tenant’s actual knowledge of the occurrence of such underfunding and the
      amount thereof, or (ii) Guarantor’s receipt of notice from Landlord
      identifying the amount of such underfunding. Landlord’s failure to provide
      such notice with respect to Additional Funded Amounts within any specific
      time period shall not be a waiver of Landlord’s rights under this
      Guaranty. The parties agree that any amounts funded by Guarantor as
      Additional Funded Amounts shall be added to, and shall be treated for all
      purposes hereunder as, Amount Funded.3.
    Notwithstanding
      anything in this Section 2.B to the contrary, nothing herein shall require
      (or be deemed to require) Guarantor to pay any Percentage Rent prior to
      the time such Percentage Rent is payable in accordance with the provisions
      of the Hotel Lease.
  4
  
 C.
    In
      the event Guarantor and Tenant should each pay the same Guaranteed Rent toLandlord(i.e.,
      Guarantor funds a portion of the Guaranteed Rent pursuant to the
      provisions hereof and Tenant funds the same amounts from the Hotel
      Property), (i)Landlordshall
      return to Guarantor the amounts that were paid by Guarantor within five
      (5) Business Days after the first to occur of (a) Landlord’s actual
      knowledge of the occurrence of such payment and the amount thereof, or (b)
      Landlord’s receipt of notice from Guarantor identifying the amount of such
      payment; (ii) the total amount of the Amount Funded shall be reduced by
      any such repaid amounts; (iii) such repaid amounts shall be treated, for
      purposes of this Guaranty, as if they were never funded by Guarantor; and
      (iv) such repaid amounts shall not be included in the calculation of
      Aggregate Amount Funded for purposes of determining whether the Guaranty
      Funding Limit has been reached pursuant to Section 3.A.1
      hereof.D.
    Subject
      to the terms, provisions and limitations of this Guaranty, this Guaranty
      is a continuing Guaranty and shall remain in full force and effect until
      the indefeasible satisfaction and discharge in full of Guarantor’s
      obligations hereunder.
 
 
 **SECTION
3**
 
 **GUARANTY
TERM**
 
 A.
    The
      term of this Guaranty (the “**Guaranty
      Term**”)
      shall be the period commencing on the Effective Date and ending on the
      earliest to occur of:1.
    the
      first date on which the Aggregate Amount Funded equals the Guaranty
      Funding Limit, subject to the provisions of Section 3.C below;2.
    December
      31, 2006;3.
    the
      date on which any Transfer of the fee interest in the Hotel Property
      occurs to any Person that is not an Affiliate of CNL, or any other
      Transfer of the Hotel Property occurs in violation of Section 15 of the
      Hotel Lease;4.
    the
      date on which Landlord is a Person which is not an Affiliate of CNL, or
      any sale, assignment, transfer or other disposition, for value or
      otherwise, voluntary or involuntary, by merger, operation of law or
      otherwise, in a single transaction or a series of transactions, of any
      interest in Landlord or any Person having an interest, directly or
      indirectly, in Landlord, occurs in violation of Section 15 of the Hotel
      Lease; or
  5
  
 5.
    the
      date on which a termination of the Hotel Lease occurs pursuant to the
      terms of the Hotel Lease, other than a termination due to an Event of
      Default by Tenant (except that Minimum Rent and applicable Late Charges
      accrued up to the date of such termination and unpaid shall be and remain
      guaranteed amounts hereunder until paid).B.
    To
      confirm that the Aggregate Amount Funded equals or exceeds the Guaranty
      Funding Limit, Guarantor shall send a notice (the “**Guaranty
      Funding Limit Notice**”)
      to Landlord, which notice shall include (a) a certificate of an officer of
      Guarantor affirming the accuracy and completeness of the Aggregate Amount
      Funded determination of Guarantor, and (b) a copy of the calculation of
      the Aggregate Amount Funded determination of Guarantor. Landlord, at its
      sole cost and expense (except as provided hereinbelow), shall be entitled
      to perform an independent audit to confirm the accuracy of any such
      determination submitted by Guarantor, provided Landlord provides notice to
      Guarantor of its intent to perform such audit within ninety (90) days
      after Guarantor’s giving of the Guaranty Funding Limit Notice to Landlord.
      If Landlord timely notifies Guarantor of its intent to audit, such audit
      shall be commenced not later than ninety (90) days after Landlord’s giving
      of notice of its intent to audit to Guarantor, and completed within a
      commercially reasonable period of time thereafter; provided, however, that
      Landlord shall have such longer period to complete such audit as may be
      reasonably required as a result of Guarantor’s or its Affiliates’ failure
      or delay in cooperating, as reasonably requested by Landlord, in
      connection with such audit. If such independent audit establishes that the
      Aggregate Amount Funded did not equal or exceed the Guaranty Funding
      Limit, the Guaranty Term shall not end pursuant to Section 3.A.1, but
      shall continue, subject nevertheless to all of the terms and conditions
      hereof (including without limitation Section 3.A) and the reasonable
      third-party costs of such audit shall be borne by
    Guarantor.C.
    The
      parties acknowledge that, based on the foregoing provisions, it is
      possible that the Guaranty Term will expire in the middle of a Fiscal Year
      pursuant to Section 3.A.1, but that, based on a subsequent Accounting
      Period or Fiscal Year true-up undertaken pursuant to Section 2.B with
      respect to such Fiscal Year and a resulting payment of a Repaid Amount,
      the Aggregate Amount Funded will again be reduced below the Guaranty
      Funding Limit (such occurrence, a “**Retroactive
      Reduction Event**”).
      The parties agree that, upon the occurrence of a Retroactive Reduction
      Event, the following shall occur:1.
    The
      provisions of this Guaranty shall apply retroactively to the period (the
      “**Retroactive
      Period**”)
      between (i) the date on which the Guaranty Term initially expired pursuant
      to Section 3.A.1 and (ii) the earlier to occur of (x) the date on which
      the Guaranty Term again expires pursuant to the reapplication of the
      provisions of Section 3.A (and subject to the reapplication of Section
      3.C) or (y) the last day of (as applicable) the Accounting Period or the
      Fiscal Year for which the true-up described in the first paragraph of
      Section 3.C occurred.
  6
  
 2.
    If
      the Retroactive Period does not expire pursuant to Section 3.C.1(ii)(x)
      above, the Guaranty Term shall again become effective commencing with the
      first (1st)
      Accounting Period immediately following (as applicable) the Accounting
      Period or the Fiscal Year for which the true-up described in the first
      paragraph of Section 3.C occurred and shall remain in effect subject to
      the reapplication of the provisions of Section 3.A.3.
    If
      (i) the Retroactive Period expires pursuant to Section 3.C.1(ii)(x) above,
      or (ii) the Fiscal Year true-up undertaken pursuant to Section 2.B with
      respect to the Fiscal Year during which the Guaranty Term initially
      expired pursuant to Section 3.A.1 (or subsequently expires pursuant to
      Section 3.C.1 and this Section 3.C.3) determines that, based on actual
      results for such Fiscal Year, the Aggregate Amount Funded by Guarantor
      through such Fiscal Year equaled or exceeded the Guaranty Funding Limit,
      then the provisions of Section 3.C.2 shall not be
    effective.
 
 **SECTION
4**
 
 **CONSENT
TO HOTEL LEASE**
 
 Guarantor
hereby unconditionally acknowledges, agrees and consents to the terms, covenants
and conditions of the Hotel Lease.
 
 
 **SECTION
5**
 
 **WAIVERS
BY GUARANTOR**
 
 Guarantor
hereby waives notice of acceptance of this Guaranty by Landlord and any and all
notices and demands of every kind and description which may be required to be
given by any statute or rule of law. Guarantor agrees that the liability of
Guarantor hereunder shall in no way be affected, diminished, or released by (i)
any forbearance or indulgence which may be granted to Tenant (or to any
successor thereto or to any Person which shall have assumed the obligations
thereof), or (ii) any waiver or amendment of any term, covenant or condition in
the Hotel Lease, or (iii) the acceptance of additional security.
 
  7
  
 **SECTION
6**
 
 **ENFORCEMENT**
 
 A.
    Subject
      to the terms and provisions of this Section, Guarantor agrees that this
      Guaranty may be enforced by Landlord without enforcing any rights it may
      have against any other Person or any collateral or against Guarantor under
      any separate agreement. Guarantor further agrees that nothing herein
      contained shall prevent Landlord from suing on the Hotel Lease, or from
      exercising any other right available to Landlord under the Hotel Lease.
      The exercise of any of the aforementioned rights shall not constitute a
      legal or equitable discharge of Guarantor, it being the purpose and intent
      of Guarantor that its obligations under this Guaranty shall be absolute
      and unconditional until the termination of this Guaranty pursuant to the
      terms of this Guaranty. Guarantor’s covenants and agreements set forth in
      this Section shall survive the expiration or termination of this
      Guaranty.B.
    Guarantor
      agrees, as principal obligor and not as a guarantor only, to pay to
      Landlord forthwith upon demand, in immediately available funds, all costs
      and expenses to third parties (including court costs and reasonable legal
      fees and expenses) incurred or expended by Landlord in connection with the
      enforcement of this Guaranty, together with interest on amounts
      recoverable under this Guaranty, from the time such amounts become due
      until payment, at the Overdue Rate. Guarantor’s covenants and agreements
      set forth in this Section shall survive the expiration or termination of
      this Guaranty and shall be due and payable notwithstanding, and may in
      fact exceed, any and all limits set forth in this
  Guaranty.C.
    Notwithstanding
      any term or provision contained in this Guaranty to the contrary, in the
      event Landlord or any other Person shall become the record or beneficial
      owner of the issued and outstanding shares of stock of Tenant, pursuant to
      the exercise of rights (the “**Exercise
      of Rights**”)
      contained in that certain Stock Pledge Agreement dated November 15, 1999
      between Courtyard Management Corporation, a Delaware corporation, as
      pledgor, and Landlord, as pledgee, or upon the repossession and/or
      reletting of the Hotel Property by or on behalf of Landlord (“**Repossession**”),
      this Guaranty shall be modified, effective as of the date which is the
      earlier of (x) the date of the Exercise of Rights and (y) the date of the
      Repossession, as follows:1.
    For
      purposes of determining the amount of Guaranteed Rent for which Guarantor
      is liable hereunder, Tenant shall be conclusively deemed to have paid to
      Landlord all of the Cash Available for Lease Payments for the Hotel
      Property;2.
    Landlord
      shall cause Tenant (or, in the event of a Repossession, any other party in
      control of the Hotel Property) to supply to Guarantor all information as
      Guarantor may reasonably request in writing to aid Guarantor in
      determining the Amount Funded and Cash Available for Lease
      Payments;
  8
  
 3.
    Landlord
      shall thereafter pay to Guarantor any Security Deposit (not theretofore
      applied by Landlord in accordance with the terms of the Hotel Lease) at
      such time or times as, and to the extent that, such Security Deposit would
      otherwise be owing and due to Tenant, its successors or assigns, subject
      to the provisions of the Hotel Lease; and4.
    Guarantor’s
      obligation to pay Late Charges shall be limited to those Late Charges
      which accrue only from and after the twentieth (20th)
      Business Day following notice of the non-payment of Rent as provided in
      Section 2.B hereof.
 
 
 **SECTION
7**
 
 **CLAIMS
BY GUARANTOR AGAINST TENANT**
 
 Nothing
hereunder contained shall operate as a release or discharge, in whole or in
part, of any claim of Guarantor against Tenant by subrogation or otherwise, by
reason of any act done or any payment made by Guarantor pursuant to the
provisions of this Guaranty; but all such claims shall be subordinate to the
claims of Landlord.
 
 
 **SECTION
8**
 
 **FAILURE
TO FUND BY GUARANTOR**
 
 If
Guarantor is required to provide funds to Landlord pursuant to this Guaranty and
fails to do so at such time Guarantor is required to do so hereunder, Landlord
may provide Guarantor with a default notice (a “ **Default
Notice** ”).
Interest at the Overdue Rate shall accrue and be due and owing by Guarantor to
Landlord for any Guaranteed Rent not paid when due (which interest shall accrue
from the date on which such amounts were required to be funded hereunder until
the date on which such amounts are actually funded). If Guarantor fails to
provide to Landlord the funds it is required to provide pursuant to this
Guaranty within four (4) Business Days after receiving a Default Notice (a
“ **Cure
Period** ”), any
default of Landlord under the Hotel Lease, or any other agreement between
Landlord, Guarantor and/or Tenant, to the extent caused by such Guarantor
default, shall be deemed waived until such time as Guarantor has cured such
non-payment by Guarantor. **** Landlord’s
failure to provide a Default Notice with respect to amounts required to be
funded by Guarantor hereunder within any specific time period shall not be a
waiver of Landlord’s rights under this Guaranty at such time as it does provide
a Default Notice with respect to such amounts. Guarantor’s covenants and
agreements set forth in this Section shall survive the expiration or termination
of this Guaranty.
 
  9
  
 **SECTION
9**
 
 **NOTICES**
 
 Notices,
statements and other communications to be given under the terms of this Guaranty
shall be in writing and delivered by hand against receipt or sent by certified
or registered mail or Express Mail service, postage prepaid, return receipt
requested or by nationally utilized overnight delivery service, addressed to the
parties as follows:
 
 To
      Landlord:
    Courtyard
      Annex, L.L.C.c/o
      CNL Hospitality Corp.450
      South Orange AvenueOrlando,
      Florida 32801-3336Attn:
      Senior Vice President of Portfolio ManagementPhone:
      (407) 650-1149Fax:
      (407) 650-1085andAttn:
      Chief Accounting OfficerPhone:
      (407) 540-2563Fax:
      (407) 650-1085
 
 
 with
      copy to:
    CNL
      Hospitality Corp.450
      South Orange AvenueOrlando,
      Florida 32801-3336Attn:
      Office of General CounselPhone:
      (407) 650-1592Fax:
      (407) 650-1085andLowndes
      Drosdick Doster Kantor & Reed, P.A.215
      North Eola DriveOrlando,
      Florida 32801Attn:
      William T. Dymond, Jr., EsquirePhone:
      (407) 843-4600Fax:
      (407) 843-4444
 
 to
      Guarantor:
    Marriott
      International, Inc.10400
      Fernwood RoadBethesda,
      Maryland 20817Attn:
      Department 52.923.27 - Hotel OperationsPhone:
      (301) 380-9555Fax:
      (301 380-6727
 
  10
  
 with
      copy to:
    Marriott
      International, Inc.10400
      Fernwood RoadBethesda,
      Maryland 20817Attn:
      Department 51/911 - Lodging Financial AnalysisPhone:
      (301) 380-7301Fax:
      (301 380-1074
 
 or at
such other address as is from time to time designated by the party receiving the
notice. Any such notice that is mailed in accordance herewith shall be deemed
received when delivery is received or refused, as the case may be.
 
 
 **SECTION
10**
 
 **APPLICABLE
LAW; JURISDICTION**
 
 This
Guaranty shall be interpreted, construed, applied and enforced in accordance
with the laws of the State of Maryland applicable to contracts between residents
of Maryland which are to be performed entirely within Maryland, regardless of
(i) where any such instrument is executed or delivered; or (ii) where any
payment or other performance required by any such instrument is made or required
to be made; or (iii) where any breach of any provision of any such instrument
occurs, or any cause of action otherwise accrues; or (iv) where any action or
other proceeding is instituted or pending; or (v) the nationality, citizenship,
domicile, principal place of business, or jurisdiction of organization or
domestication of any party; or (vi) whether the laws of the forum jurisdiction
otherwise would apply the laws of a jurisdiction other than the State of
Maryland; or (vii) any combination of the foregoing. The parties acknowledge,
consent and agree that any United States District Court for the District of
Maryland and any court of competent jurisdiction in the State of Maryland shall
have jurisdiction in any proceeding instituted to enforce this Guaranty or any
provision hereof and any objections to venue are hereby waived.
 
 
 **SECTION
11**
 
 **BINDING
EFFECT**
 
 The
rights, powers, privileges, and discretions (hereinafter referred to as the
“rights”) to which the parties may be entitled hereunder shall inure to the
benefit of each of their respective permitted successors and assigns. All the
rights of the parties herein are cumulative and not alternative and may be
enforced successively or concurrently. Failure of any party to exercise any of
its rights shall not be deemed a waiver thereof, and no waiver of any of a
party’s rights shall be deemed to apply to any other rights. The terms,
covenants, and conditions of, or imposed upon, each party herein shall be
binding upon the permitted successors and assigns of such
party.
  11
  
 
 **SECTION
12**
 
 **SEVERABILITY**
 
 In case
any provision (or any part of any provision) contained in this Guaranty shall
for any reason be held to be invalid, illegal or unenforceable in any respect
(an “ **Unlawful
Provision** ”), such
Unlawful Provision shall not affect any other provision (or remaining part of
the affected provision) of this Guaranty, but this Guaranty shall be construed
as if such Unlawful Provision had never been a part of this Guaranty unless such
Unlawful Provision materially affects the benefits and burdens anticipated by
the parties in entering into this Guaranty.
 
 
 **SECTION
13**
 
 **GRAMMAR**
 
 When used
herein, the singular shall include the plural; the plural the singular; and the
use of any gender shall be applicable to all genders.
 
 
 **SECTION
14**
 
 **TIME
OF THE ESSENCE**
 
 Time is
of the essence in the performance of the obligations and undertakings of the
parties hereto.
 
 
 **SECTION
15**
 
 **CAPTIONS**
 
 The
captions appearing in this Guaranty are inserted only as a matter of convenience
and do not define, limit, construe or describe the scope or intent of the
sections of this Guaranty or in any way affect this Guaranty.
 
  12
  
 **SECTION
16**
 
 **MISCELLANEOUS**
 
 A.
    Unenforceability
      of Guaranteed Obligations, Etc.If
      Tenant is for any reason (other than by reason of any written waiver or
      discharge) under no legal obligation to pay any of the Guaranteed Rent, or
      if any other moneys included in the Guaranteed Rent have become
      unrecoverable from Tenant by operation of law or for any other reason, the
      obligations of Guarantor contained in this Guaranty shall nevertheless
      remain in full force and effect and shall be binding upon
      Guarantor.B.
    Consents
      and Waivers.
      Guarantor hereby acknowledges receipt of a correct and complete copy of
      the Hotel Lease, and consents to all of the terms and provisions thereof,
      as the same may be from time to time hereafter amended or changed in
      accordance therewith, and waives (a) notice of any default hereunder and
      any default, breach or nonperformance or any Default or Event of Default
      with respect to any of the Guaranteed Rent under the Hotel Lease, (b)
      demand for performance or observance of, and any enforcement of any
      provision of, or any pursuit or exhaustion of rights or remedies against
      Tenant, under or pursuant to the Hotel Lease, or any agreement directly or
      indirectly relating thereto and any requirements of diligence or
      promptness on the part of Landlord in connection therewith, and (c) to the
      extent Guarantor lawfully may do so, any and all demand and notices of
      every kind and description with respect to the foregoing or which may be
      required to be given by any statute or rule of law and any defense of any
      kind which it may now or hereafter have with respect to this Guaranty, the
      Hotel Lease or the Guaranteed Rent guaranteed hereunder; provided,
      however, that after any Exercise of Rights by Landlord, Landlord shall not
      amend the Hotel Lease to increase the amount of Guaranteed Rent payable
      thereunder, or the dates on which such Guaranteed Rent becomes due, or any
      other provisions of the Hotel Lease affecting the payment (or non-payment)
      of Guaranteed Rent, or affecting Landlord’s duty to mitigate damages
      thereunder, without Guarantor’s prior written consent, and Landlord shall
      give Guarantor copies of any Notices of Default given pursuant to the
      Lease.
  13
  
 C.
    No
      Impairment.
      The obligations, covenants, agreements and duties of Guarantor under this
      Guaranty shall not be affected or impaired by any waiver by Landlord of
      all of the Guaranteed Rent or the performance or observance by Tenant of
      any of the agreements, covenants, terms or conditions contained in the
      Hotel Lease or any indulgence in or the extension of the time for payment
      or performance by Tenant of any amounts payable under or in connection
      with the Hotel Lease or any other instrument or agreement relating to the
      Guaranteed Rent or of the time for performance by Tenant of any other
      obligations under or arising out of any of the foregoing or the extension
      or renewal thereof, or the modification or amendment (whether material or
      otherwise) of any duty, agreement or obligation of Tenant set forth in the
      Hotel Lease (subject to the proviso in Section 16.B applicable after any
      Exercise of Rights by Landlord), or the voluntary or involuntary sale or
      other disposition of all or substantially all the assets of Tenant or
      insolvency, bankruptcy, or other similar proceedings affecting Tenant or
      any assets of Tenant, or the release or discharge of Tenant from the
      performance or observance of any agreement, covenant, term or condition
      contained in any agreement, covenant, term or condition contained in any
      of the foregoing by operation of law, or any other cause, whether similar
      or dissimilar to the foregoing.D.
    Reimbursement,
      Subrogation, Etc.Guarantor hereby covenants and agrees that it shall not enforce or
      otherwise exercise any rights of reimbursement, subrogation, contribution
      or other similar rights against Tenant or any other Person with respect to
      the Guaranteed Rent prior to the payment in full of the obligations of
      Tenant under the Hotel Lease. Until all obligations of Tenant under the
      Hotel Lease shall have been paid and performed in full, Guarantor shall
      have no right of subrogation, and Guarantor waives any defense it may have
      based upon any election of remedies by Landlord which destroys Guarantor’s
      subrogation rights or Guarantor’s rights to proceed against Tenant for
      reimbursement, (including, without limitation, any loss of rights
      Guarantor may suffer by reason of any rights, powers or remedies of Tenant
      in connection with any anti-deficiency laws or any other laws limiting,
      qualifying or discharging the indebtedness to Landlord). If,
      notwithstanding such waiver, any funds shall be paid or transferred to
      Guarantor on account of such subrogation, contribution, or other similar
      rights at any time when all of the obligations of Tenant have not been
      paid in full, Guarantor shall hold such funds in trust for Landlord and
      shall forthwith pay over Landlord such funds to be applied by Landlord to
      the obligations of Tenant.E.
    Continuing
      Enforcement.
      If, after receipt of any payment under this Guaranty, Landlord is
      compelled or agrees, for settlement purposes, to surrender such payment to
      any Person relating to Guarantor’s insolvency, bankruptcy or inability to
      pay its debts as they become due or as a direct result of Guarantor’s
      actions (including, without limitation, a determination that such payment
      is void or voidable as a preference or fraudulent conveyance, an
      impermissible setoff, or a diversion of trust funds), Guarantor’s
      obligation to fund under this Guaranty shall continue (subject to such
      other limitations as are set forth herein) as if the payment (which was so
      surrendered) had not been made. The provisions of this Section shall
      survive the termination of this Guaranty.F.
    Remedies
      Cumulative.
      No remedy herein conferred upon a party hereto is intended to be exclusive
      of any other remedy, and each and every remedy shall be cumulative and
      shall be in addition to every other remedy given hereunder or now or
      hereafter existing at law or in equity (including, without limitation, the
      right to seek the remedy of specific performance) or by statute or
      otherwise.G.
    Entire
      Agreement.
      This Agreement constitutes the entire agreement between the parties hereto
      with respect to the subject matter hereof and shall supersede and take the
      place of any other instruments purporting to be an****agreement
      of the parties hereto relating to the subject matter
    hereof.H.
    Counterparts.
      The parties agree that this Guaranty may be signed and delivered in
      counterparts.
 
 
 
   **IN
WITNESS WHEREOF,** the
parties hereto have executed and delivered this Guaranty with the intention of
creating an instrument under seal.
 
 
 **GUARANTOR:****Marriott
      International, Inc.**,a
      Delaware corporationBy:
    /s/
      Timothy J. Grisius   (SEAL)Timothy
      J. GrisiusAuthorized
      Signatory**LANDLORD:****CNL
      Philadelphia Annex, LLC**,a
      Delaware limited liability companyBy:
    /s/
      Barry A.N. Bloom (SEAL)Name:
      Barry A.N. BloomTitle:
      Senior Vice President
 
  
  Tenant
has executed this Guaranty solely for the purpose of agreeing to the waiver
contained in Section 8 of this Guaranty.
 
 
 **TENANT****:****City
      Center Annex Tenant Corporation**,a
      Delaware corporationBy: /s/
      Timothy J. Grisius  (SEAL)Name:
      Timothy J. GrisiusTitle:  
      Vice President
 
   
   **LIMITED
RENT GUARANTY**
 
 EXHIBIT
A
 
 Property
Expenses
 
 
 The Term
“Property Expenses” shall mean, for the requisite period, the sum of the
following items (capitalized terms not otherwise defined in the Guaranty shall
have the respective meanings given such terms in the Hotel Lease).
 
 1.
    the
      cost of sales, including, without limitation, compensation, fringe
      benefits, payroll taxes and other costs relating to employees of Tenant
      and/or the Manager (the foregoing costs shall not include salaries and
      other employee costs of executive personnel of Tenant and/or the Manger
      who do not work at the Hotel Property on a regular basis; except that the
      foregoing costs shall include the allocable portion of the salary and
      other employee costs of any general manager or other supervisory personnel
      assigned to a “cluster” of hotels which includes the Hotel
      Property);2.
    departmental
      expenses incurred at departments within the Hotel Property; administrative
      and general expenses; the cost of marketing incurred by the Hotel
      Property; advertising and business promotion incurred by the Hotel
      Property; heat, light, and power; computer line charges; and routine
      repairs, maintenance and minor alterations not paid from the
      Reserve;3.
    the
      cost of Inventories and FAS consumed in the operation of the Hotel
      Property;4.
    a
      reasonable reserve for uncollectible accounts receivable as determined by
      the Tenant and/or Manager;5.
    all
      costs and fees of independent professionals or other third parties who are
      retained by Tenant and/or Manager to perform services required or
      permitted hereunder;6.
    all
      costs and fees of technical consultants and operational experts who are
      retained or employed by Tenant, Manager and/or Affiliates of the Tenant or
      Manager for specialized services (including, without limitation, quality
      assurance inspectors) and the cost of attendance by employees of the Hotel
      Property at training and manpower development programs sponsored by Tenant
      and/or Manager;7.
    the
      fees and other charges paid pursuant to the terms of the Franchise
      Agreement, including all franchise fees and royalty
  fees;8.
    insurance
      costs and expenses as provided in Article 9 of the Hotel
      Lease;
  
  
 9.
    payments
      made into the Reserve pursuant to Section 5.1.2 of the Hotel
      Lease;10.
    payments
      of Impositions pursuant to the Hotel Lease; and11.
    such
      other costs and expenses incurred by Tenant and/or Manager as are
      specifically provided for elsewhere in the Hotel Lease or are otherwise
      reasonably necessary for the proper and efficient operation of the Hotel
      Property; provided, however, it shall not include any fees paid to the
      Manager pursuant to the terms of any Management
  Agreement.
 
 Goods and
services purchased and expenses incurred for a group or cluster of hotels
including the Hotel Property shall be allocated on an equitable
basis.