**Exhibit10.28**

 

**EXHIBITA**

 

**NEWCANDLEWOOD GUARANTY**

 

 

**GUARANTYAGREEMENT**

 

**THIS GUARANTY AGREEMENT**(this “Agreement”)is made and given as of                     , 20    , by **INTERCONTINENTALHOTELS GROUP PLC**, a corporation organized and existing under the lawsof England and Wales (the “Guarantor”), for the benefit of **HPT TRS IHG-1, INC.**,a Maryland corporation (together with its successors and assigns, the “Tenant”),and**HOSPITALITY PROPERTIES TRUST**, aMaryland real estate investment trust (together with its successors andassigns, “Trust”; and Trust together with the Tenant, “HPT”).

 

**WITNESSETH :**

 

**WHEREAS,**on January     , 2006, the Guarantor delivered to HPTthat certain Second Amended and Restated Consolidated Guaranty Agreement (the “ConsolidatedGuaranty”); and

 

**WHEREAS,**both the IHG4 Coverage Date and the IHG5 Coverage Date (as suchterms are defined in the Consolidated Guaranty) have occurred and the Guarantorwishes to terminate its obligations under the Consolidated Guaranty inaccordance with Section 10 of the Consolidated Guaranty; and

 

**WHEREAS,**Section 10 of the Consolidated Guaranty requires, among other things,that the Guarantor deliver this Guaranty Agreement to HPT in order to terminateits obligations under the Consolidated Guaranty as aforesaid; and

 

**WHEREAS,**thetermination of its obligations under the Consolidated Guaranty as aforesaidconstitute a direct material benefit to the Guarantor;

 

**NOW, THEREFORE,**inconsideration of the foregoing and for other good and valuable consideration,the mutual receipt and legal sufficiency of which are hereby acknowledged, theparties hereto hereby agree as follows:

 

# 1.                                       **Certain Terms****.**Capitalizedterms used and not otherwise defined in this Agreement shall have the meaningsascribed to such terms in the Management Agreement (as hereinafter defined). Thefollowing terms as used in this Agreement shall have the meanings set forthbelow:

 

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“Accounting Principles” shall meangenerally accepted accounting principles, as adopted in the United States ofAmerica, consistently applied or, if the Guarantor’s principal place ofbusiness is the United Kingdom, generally accepted accounting principles, asadopted in the United Kingdom, consistently applied.

 

“Collateral Agency Agreement” shall meana written agreement, in form and substance reasonably acceptable to HPT, amongHPT, the Guarantor and the Collateral Agent pursuant to which the CollateralAgent shall agree to hold any cash delivered to such Collateral Agent pursuantto the terms of this Agreement as collateral agent on behalf of HPT, as thesame may be amended, restated, supplemented or otherwise modified from time totime with the consent of the parties thereto. Among other things, theCollateral Agency Agreement shall provide that (a) the Collateral Agent shalllook solely to the Guarantor for any amounts owed to the Collateral Agent inconnection with such agreement, (b) the Collateral Agent shall not offset anyamount owed to the Collateral Agent against the cash delivered to it pursuantto the Collateral Agency Agreement and this Agreement, (c) the Collateral Agentshall hold such cash as trust funds and not commingle such cash with any assetsof the Collateral Agent and (d) HPT shall be entitled to apply any cashcollateral held by the Collateral Agent to the overdue obligations of theGuarantor hereunder in such order and at such times as HPT may determine in itssole judgment.

 

“Collateral Agent” shall meana bank or other financial institution reasonably acceptable to HPT having arating of not less than BBB-/Baa3 rating from the Rating Agencies, which bankor other financial institution is the collateral agent under the CollateralAgency Agreement as such collateral agent may be replaced in accordance withthe terms of the Collateral Agency Agreement.

 

“Coverage Date” shall mean the date whichis the day after the second (2nd) consecutive calendar year forwhich the Priority Coverage Ratio is equal to or exceeds 1.3.

 

“Guaranteed Obligations” shall mean thepayment to Tenant of (a) all of the Owner’s First Priority as and when dueunder the Management Agreement determined without respect to Gross Revenue orOperating Profits and (b) any and all liquidated damages due to Tenant underthe Management Agreement.

 

“Management Agreement” shall mean [thatcertain Amended and Restated Management Agreement, dated as of January     ,2005, between TRS1 and Manager] with respect to certain hotels being

 

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operated under the “Candlewood” brand] [that certain ManagementAgreement, dated as of October 27, 2003, between TRS1 and Manager], as the samemay be amended, modified, supplemented, or otherwise altered from time to time.

 

“Manager” shall mean IntercontinentalHotels Group Resources, Inc.

 

“Outstanding Balance” shall mean, fromtime to time, Fifty Million Dollars ($50,000,000), less the excess of theaggregate amount paid by the Guarantor under Section 3 hereof over theaggregate of any amounts reimbursed to the Guarantor pursuant to the terms ofthe Management Agreement.

 

“Provide Collateral” or “ProvidedCollateral” shall mean:

 

(a)                                  delivery toHPT of (i) a Satisfactory Letter of Credit or (ii) cash in an amount equal tothe then Outstanding Balance; or

 

(b)                                 the depositof cash equal to the then Outstanding Balance with the Collateral Agent to beheld by the Collateral Agent in accordance with the Collateral Agency Agreementprovided:(i) the Collateral Agency Agreement has been executed and delivered bythe parties thereto; (ii) HPT has a perfected first priority security interestin any cash delivered to the Collateral Agent; (iii) HPT has received favorableopinions of counsel, in form and substance reasonably satisfactory to HPT, withrespect to such perfected first priority interest, the valid existence and goodstanding of the other parties to the Collateral Agency Agreement, the dueexecution and delivery thereof by such other parties, the enforceability of theCollateral Agency Agreement against such parties, and that any cash held by theCollateral Agent pursuant to the Collateral Agency Agreement shall not be “propertyof the estate” of Collateral Agent should any event described in Sections17.1(a), (b) or (c) of the Management Agreement shall occur withrespect to the Collateral Agent; or

 

(c)                                  delivery toHPT of other collateral satisfactory to HPT in its good faith discretion tosecure the Guaranteed Obligations;

 

provided, however, theGuarantor shall not be deemed to have Provided Collateral if at any time theOutstanding Balance exceeds the sum of (i) the then remaining balance drawableunder the Satisfactory Letter of Credit or the balance of the cash deposited bythe Guarantor hereunder, plus (ii) proceeds of any

 

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Satisfactory Letter of Credit or cash deposited hereunder, in eithercase, applied to the Guaranteed Obligations.

 

“Rating Agencies” shall mean,collectively, Standard’s & Poor’s Rating Services or its successor andMoody’s Investor Services, Inc. or its successors; provided, however,if the Rating Agencies (i) cease operations without successors or (ii) cease toissue credit ratings, “Rating Agencies” shall mean a nationally recognizedorganization periodically issuing ratings of the financial strength and/orcredit of United States domestic and international banking institutionsreasonably agreed to by HPT and the Guarantor.

 

“Reorganization” shall mean any merger,consolidation, reorganization, change of control or any transaction pursuant towhich the Guarantor shall be or become a Subsidiary of any other Person.

 

“Satisfactory Letter of Credit” shallmean a clean irrevocable letter of credit in form and substance reasonablysatisfactory to HPT in an amount equal to the Outstanding Balance issued by abank with a credit rating of not less than A2/A (or, if after the date hereofthe system of ratings used by the Rating Agencies changes in a material way,their then equivalents of such credit rating in HPT’s reasonable judgment) fromthe Rating Agencies, having an expiration date of not earlier than one yearafter the date on which it was issued and which permits for partial draws.

 

“Substitute Guarantor” shall mean aPerson who assumes the Guarantor’s obligations hereunder in accordance with theterms of Section 2.7 below and is either (a) a Person who satisfies theRating Agencies’ requirements for a single purpose bankruptcy remote entity whohas Provided Collateral or (b) a Person(s) with (i) a tangible net worthdetermined in accordance with the Accounting Principles not less than SevenHundred Fifty Million Dollars ($750,000,000) and (ii) unencumbered assets witha fair market value of not less than One Hundred Million Dollars (exclusive ofany note, instrument, security or claim issued by, against or in any waydependent on the credit of, an Affiliate of Guarantor).

 

# 2.                                       **Representations and Covenants****.**TheGuarantor represents, warrants, covenants and agrees that:

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## 2.1                                 **Validity of Agreement****.**TheGuarantor has duly and validly executed and delivered this Agreement; thisAgreement constitutes the legal, valid and binding obligation of the Guarantor,enforceable against the Guarantor in accordance

 

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with its terms, except as enforceability may be limited by bankruptcy,insolvency, reorganization, moratorium or similar laws of general applicationaffecting the rights and remedies of creditors; and the execution, delivery andperformance of this Agreement have been duly authorized by all requisite actionof the Guarantor and such execution, delivery and performance by the Guarantorwill not result in any breach of the terms, conditions or provisions of, orconflict with or constitute a default under, or result in the creation of anylien, charge or encumbrance upon any of the property or assets of the Guarantorpursuant to the terms of, any indenture, mortgage, deed of trust, note, otherevidence of indebtedness, agreement or other instrument to which the Guarantoris a party or by which the Guarantor or any property or assets of the Guarantoris bound, or violate any provision of law applicable to the Guarantor, or anyorder, writ, injunction, judgement or decree of any court applicable to theGuarantor or any order or other public regulation of any governmentalcommission, bureau or administrative agency applicable to the Guarantor.

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## 2.2                                 **Payment of Expenses****.**TheGuarantor agrees, as principal obligor and not as guarantor only, to pay to HPTforthwith, upon demand, in immediately available Federal funds, all costs andexpenses (including court costs and reasonable legal expenses) incurred orexpended by HPT in connection with the enforcement of this Agreement, togetherwith interest at the Interest Rate on amounts recoverable under this Agreementfrom the time such amounts become due until payment.

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## 2.3                                 **Reports****.**TheGuarantor shall timely deliver to HPT the Consolidated Financials requiredunder the Management Agreement and otherwise comply with the terms of theManagement Agreement applicable to it.

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## 2.4                                 **Financial Condition of Guarantor; Status of Guarantor****.**So long as the Guarantor’s obligationsunder Section 3 below are outstanding, unless the Guarantor shallhave Provided Collateral to secure its obligations hereunder:

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### (a)                                  TheGuarantor shall at all times maintain a tangible net worth determined inaccordance with the Accounting Principles in an amount not less than FiveHundred Million Dollars ($500,000,000) or if there has been a Reorganization,or if the Guarantor is not the originally named Guarantor, Seven Hundred FiftyMillion Dollars ($750,000,000); and

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### (b)                                 TheGuarantor shall not engage in any Reorganization unless following suchReorganization it has (i) a tangible net worth determined in accordance withthe Accounting Principles in

 

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an amount not less than Seven Hundred Fifty Million Dollars($750,000,000) and (ii) unencumbered assets with a fair market value of notless than One Hundred Million Dollars ($100,000,000) (exclusive of any note,instrument, security or claim issued by, against or in any way dependent on thecredit of, an Affiliate of Guarantor).

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## 2.5                                 **Security**. Upon the termination of the Guarantor’sobligations under Section 3 or if the excess of aggregate amount paid bythe Guarantor under Section 3 over the aggregate of any amountsreimbursed to it pursuant to the terms of the Management Agreement equals notless than Fifty Million dollars ($50,000,000), HPT will return to the Guarantorany Satisfactory Letter of Credit previously delivered to HPT or any unapplied cashcollateral then being held by HPT hereunder and shall direct the CollateralAgent to return any cash being held by it under the Collateral Agency Agreementto the Guarantor. HPT shall be entitled to draw upon any Satisfactory Letter ofCredit delivered to it (a) for the full amount thereof if at any time there isless than thirty (30) days until the expiry date of such Satisfactory Letter ofCredit; (b) for the full amount thereof if the bank that issued suchSatisfactory Letter of Credit shall not have a credit rating of at least A/A2(or, if after the date hereof the system of ratings used by the Rating Agencieschanges in a material way, their then equivalents in HPT’s reasonable judgment)from the Rating Agencies and such satisfactory Letter of Credit shall not havebeen replaced within thirty (30) days with a new Satisfactory Letter of Creditdelivered to HPT; or (c) to the extent and in the amounts then due and payablehereunder, if the Guarantor shall fail to pay or perform any of its obligationsunder this Guaranty in accordance with the terms hereof. HPT shall be entitledto apply any cash collateral held by it or the Collateral Agent to the overdueobligations of the Guarantor hereunder in such order and at such times as HPTmay determine in its sole judgment. Any cash collateral held by HPT shall notbe commingled with its other funds, and shall be invested, at the Guarantor’srisk, in interest bearing investments reasonably acceptable to the Guarantor. Anyinterest on such cash collateral, and any losses in such investments, shallbelong to IHG.

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## 2.6                                 **Legal Existence****.**TheGuarantor shall do or cause to be done all things necessary to preserve andkeep in full force and effect its corporate existence. The Guarantor hasappointed attorneys Alston & Bird LLP, having an address at 1201 WestPeachtree Street, Atlanta, Georgia 30309-3424, Attn:  Managing Partner as its agent for service ofprocess. The Guarantor acknowledges and agrees that service of process on

 

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such agent shall constitute service of process on Guarantor withrespect to any and all claims hereunder or under any other TransactionDocument.

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## 2.7                                 **Substitute Guarantor****.**The thenGuarantor (the “Departing Guarantor”) shall be released from obligationsunder Section 3 hereof on the following terms and conditions:

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### (a)                                  a SubstituteGuarantor shall assume pursuant to a written instrument satisfactory to HPT allof the Guarantor’s obligations hereunder; and

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### (b)                                 HPT shallreceive an opinion of counsel satisfactory to HPT with respect to, among otherthings, the existence and good standing of the Substitute Guarantor and the dueexecution, delivery and enforceability of such assumption.

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Upon the satisfaction of the foregoingconditions and the expiration of all applicable preference or similar periods,HPT shall deliver a release to the Departing Guarantor of its obligationshereunder and the Substitute Guarantor shall be deemed the “Guarantor”hereunder. Further, if the Substitute Guarantor has Provided Collateral or has(i) a tangible net worth determined in accordance with the AccountingPrinciples of not less than Seven Hundred Fifty Million Dollars ($750,000,000)and (ii) unencumbered assets with a fair market value of not less than One HundredMillion Dollars (exclusive of any note, instrument, security or claim issuedby, against or in any way dependent on the credit of, an Affiliate ofGuarantor), HPT shall return to the Departing Guarantor any letter of credit orcash delivered by the Departing Guarantor and held by HPT hereunder and shalldirect the Collateral Agent to return to the Departing Guarantor any cashdelivered by the Departing Guarantor and held by such Collateral Agent pursuantto the terms of the Collateral Agency Agreement.

 

# 3.                                       **Guarantee****.**

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### (a)                                  TheGuarantor hereby unconditionally guarantees that the Guaranteed Obligationswhich become due and payable during the term of the Management Agreement shallbe paid in full when due and payable subject to any applicable cure periods, whetherupon demand, at the stated or accelerated maturity thereof or upon anymandatory or voluntary prepayment pursuant to any Transaction Document, orotherwise.

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### (b)                                 Thisguarantee is a guarantee of payment and not of collectibility and is absoluteand in no way conditional or contingent. In case any part of the GuaranteedObligations

 

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shall not have been paid when due and payable or performed at the timeperformance is required, subject to any applicable cure periods, the Guarantorshall, pay or cause to be paid to HPT the amount thereof as is then due andpayable and unpaid (including interest and other charges, if any, due thereonthrough the date of payment in accordance with the applicable provisions of theTransaction Documents) or perform or cause to be performed such obligations inaccordance with the Transaction Documents. Simultaneously with the giving ofany notice of default to the Manager under the Management Agreement, Tenantshall give a copy of such notice to the Guarantor. Tenant shall accept any cureof such default by the Guarantor provided such cure is completed within theapplicable cure period under the Management Agreement.

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# 4.                                       **Unenforceability of Guaranteed Obligations, Etc.**If the Manageris for any reason under no legal obligation to discharge any of the GuaranteedObligations, or if any other moneys included in the Guaranteed Obligations havebecome unrecoverable from the Manager by operation of law or for any otherreason, including, without limitation, the invalidity or irregularity in wholeor in part of any Guaranteed Obligation or of any Transaction Document or anylimitation on the liability of the Manager thereunder or any limitation on themethod or terms of payment thereunder which may now or hereafter be caused orimposed in any manner whatsoever, the guarantees contained in this Agreementshall nevertheless remain in full force and effect in accordance with the termsset forth herein and shall be binding upon the Guarantor to the same extent asif the Guarantor at all times had been the principal debtor on all suchGuaranteed Obligations.

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# 5.                                       **Additional Guarantees****.**ThisAgreement shall be in addition to any other guarantee or other security for theGuaranteed Obligations and it shall not be prejudiced or rendered unenforceableby the invalidity of any such other guarantee or security or by any waiver,amendment, release or modification thereof.

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# 6.                                       **Consents and Waivers, Etc.**TheGuarantor hereby acknowledges receipt of correct and complete copies of each ofthe Transaction Documents and consents to all of the terms and provisionsthereof, as the same may be from time to time hereafter amended or changed inaccordance therewith, and waives, to the extent the Guarantor lawfully may doso, (a) presentment, demand for payment, and protest of nonpayment, of any ofthe Guaranteed Obligations, (b) notice of acceptance of this Agreement and ofdiligence, presentment, demand and protest, (c) notice of any default hereunderand any default,

 

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breach or nonperformance or a Manager Event of Default under any of theGuaranteed Obligations or the Transaction Documents, except as expresslyprovided in Section 3, (d) notice of the terms, time and place of anyprivate or public sale of collateral held as security for the GuaranteedObligations, (e) demand for performance or observance of, and any enforcementof any provision of, or any pursuit or exhaustion of rights or remedies againstthe Manager or any other guarantor of the Guaranteed Obligations, under orpursuant to the Transaction Documents, or any agreement directly or indirectlyrelating thereto and any requirements of diligence or promptness on the part ofthe holders of the Guaranteed Obligations in connection therewith, and (f) anyand all demands and notices of every kind and description with respect to theforegoing or which may be required to be given by any statute or rule of law.

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# 7.                                       **No Impairment, Etc.**The obligations, covenants, agreementsand duties of the Guarantor under this Agreement shall not be affected orimpaired by any assignment or transfer in whole or in part of any of theGuaranteed Obligations without notice to the Guarantor, or any waiver by HPT orany holder of any of the Guaranteed Obligations or by the holders of all of theGuaranteed Obligations of the performance or observance by the Manager or anyother guarantor of any of the agreements, covenants, terms or conditionscontained in the Guaranteed Obligations or the Transaction Documents or anyindulgence in or the extension of the time for payment by the Manager or anyother guarantor of any amounts payable under or in connection with theGuaranteed Obligations or the Transaction Documents or any other instrument oragreement relating to the Guaranteed Obligations or of the time for performanceby the Manager or any other guarantor of any other obligations under or arisingout of any of the foregoing or the extension or renewal thereof, or themodification or amendment made with the consent of the Guarantor of any duty,agreement or obligation of the Manager or any other guarantor set forth in anyof the foregoing, or the voluntary or involuntary sale or other disposition ofall or substantially all the assets of the Manager or any other guarantor orinsolvency, bankruptcy, or other similar proceedings affecting the Manager orany other guarantor or any assets of the Manager or any such other guarantor,or the release or discharge of the Manager or any such other guarantor from theperformance or observance of any agreement, covenant, term or conditioncontained in any of the foregoing without the consent of the holders of theGuaranteed Obligations by operation of law.

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# 8.                                       **Reimbursement, Subrogation, Etc.**The Guarantorhereby covenants and agrees that the Guarantor will not enforce or

 

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otherwise exercise any rights of reimbursement, subrogation,contribution or other similar rights against the Manager or any other personwith respect to the Guaranteed Obligations prior to the irrevocable payment infull of all amounts then due and owing but unpaid under the ManagementAgreement, and until the Guaranteed Obligations have been satisfied in full,the Guarantor shall not have any right of subrogation, and the Guarantor waivesany defense it may have based upon any election of remedies by HPT whichdestroys the Guarantor’s subrogation rights or the Guarantor’s rights toproceed against the Manager for reimbursement, including, without limitation,any loss of rights the Guarantor may suffer by reason of any rights, powers orremedies of the Manager in connection with any anti-deficiency laws or anyother laws limiting, qualifying or discharging the indebtedness to HPT. Untilall obligations of the Manager pursuant to the Transaction Documents shall havebeen irrevocably paid and satisfied in full, the Guarantor waives any right toenforce any remedy which HPT now has or may in the future have against theManager, any other guarantor or any other person and any benefit of, or anyright to participate in, any security whatsoever now or in the future held byHPT. Nothing contained in this Section 8 shall limit any of Guarantor’srights under the Management Agreement.

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# 9.                                       **Defeasance; Guaranty Limitations****.**The Guarantor’sobligations under Section 3 shall terminate upon the first to occur of(a) the date on which the Guaranteed Obligations have been paid and performedin full and all other obligations of the Guarantor to HPT under this Agreementhave been irrevocably satisfied in full and (b) the Coverage Date; provided,however, if at any time, all or any part of any payment applied onaccount of the Guaranteed Obligations is or must be rescinded or returned forany reason whatsoever (including, without limitation, the insolvency,bankruptcy or reorganization of the Manager), this Agreement, to the extentsuch payment is or must be rescinded or returned, shall be deemed to havecontinued in existence notwithstanding any such termination. Notwithstandinganything contained in this Agreement to the contrary, in no event shall theGuarantor’s liability under Section 3 hereof exceed the sum ofFifty Million Dollars ($50,000,000) less (ii) the aggregate amount paid by theGuarantor under Section 3 in excess of the aggregate of any amountsreimbursed to it pursuant to the terms of the Management Agreement.

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# 10.                                 **Notices****.**(a)  Any and allnotices, demands, consents, approvals, offers, elections and othercommunications required or permitted under this Agreement shall be deemedadequately given if in writing and the same shall be delivered either by

 

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hand, by telecopier with written acknowledgment of receipt (provided acopy thereof is sent by Federal Express or similar expedited commercial carrierfor delivery on the next business day), or Federal Express or similar expeditedcommercial carrier, addressed to the recipient of the notice, postpaid andregistered or certified with return receipt requested (if by mail), or with allfreight charges prepaid (if by Federal Express or similar carrier).

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(b)  Allnotices required or permitted to be sent hereunder shall be deemed to have beengiven for all purposes of this Agreement upon the date of acknowledged receipt,in the case of a notice by telecopier, and, in all other cases, upon the dateof receipt or refusal, except that whenever under this Agreement a notice iseither received on a day which is not a Business Day****oris required to be delivered on or before a specific day which is not a BusinessDay, the day of receipt or required delivery shall automatically be extended tothe next Business Day.

 

(c)  Allsuch notices shall be addressed,

 

if to HPT to:

 

c/oHospitality Properties Trust

400Centre Street

Newton,Massachusetts 02458

Attn:  Mr. John G. Murray

[TelecopierNo. (617) 969-5730]

 

with acopy to:

 

Sullivan& Worcester LLP

OnePost Office Square

Boston,Massachusetts 02109

Attn:  Warren M. Heilbronner, Esq.

[TelecopierNo. (617) 338-2880]

 

if tothe Guarantor to:

 

IntercontinentalHotels Group PLC

67Alma Road

Windsor

BerkshireSL4 3HD

ENGLAND

Attn:Company Secretary

TelecopierNo. +44 1753 410101

 

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with a copy to:

 

IntercontinentalHotels Resources Group, Inc.

ThreeRavinia Drive

Suite100

Atlanta,Georgia 30346

Attn:  Vice President, Asset Management

[TelecopierNo. 770-604-5340]

 

(d)  By notice given as herein provided, theparties hereto and their respective successors and assigns shall have the rightfrom time to time and at any time during the term of this Agreement to changetheir respective addresses effective upon receipt by the other parties of suchnotice and each shall have the right to specify as its address any other addresswithin the United States of America.

 

# 11.                                 **Successors and Assigns****.**Whenever inthis Agreement, any of the parties hereto is referred to, such reference shallbe deemed to include the successors and assigns of such party, includingwithout limitation the holders, from time to time, of the GuaranteedObligations; and all representations, warranties, covenants and agreements byor on behalf of the Guarantor which are contained in this Agreement shall inureto the benefit of HPT’s successors and assigns, including, without limitation,such holders, whether so expressed or not.

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# 12.                                 **Applicable Law****.**Except as tomatters regarding the internal affairs of HPT and issues of or limitations onany personal liability of the shareholders and trustees of HPT for obligationsof HPT, as to which the laws of the State of Maryland shall govern, thisAgreement and any other instruments executed and delivered to evidence,complete or perfect the transactions contemplated hereby shall be interpreted,construed, applied and enforced in accordance with the laws of New Yorkapplicable to contracts between residents of New York which are to be performedentirely within New York, regardless of (i) where any such instrument isexecuted or delivered; or (ii) where any payment or other performance requiredby any such instrument is made or required to be made; or (iii) where anybreach of any provision of any such instrument occurs, or any cause of actionotherwise accrues; or (iv) where any action or other proceeding is instituted orpending; or (v) the nationality, citizenship, domicile, principal place ofbusiness, or jurisdiction of organization or domestication of any party; or(vi) whether the laws of the forum jurisdiction otherwise would apply the lawsof a jurisdiction other than Massachusetts; or (vii) any combination of theforegoing.

 

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All actions and proceedings arising out of or inany way relating to this Agreement shall be brought, heard, and determinedexclusively in an otherwise appropriate federal or state court located withinthe State of New York. Guarantor hereby (i) submits to the exclusivejurisdiction of any New York federal or state court of otherwise competentjurisdiction for the purpose of any action or proceeding arising out of orrelating to this Agreement and (ii) voluntarily and irrevocably waives, andagrees not to assert by way of motion, defense, or otherwise in any such actionor proceeding, any claim or defense that it is not personally subject to thejurisdiction of such a court, that such a court lacks personal jurisdictionover Guarantor or the matter, that the action or proceeding has been brought inan inconvenient or improper forum, that the venue of the action or proceedingis improper, or that this Agreement may not be enforced in or by such a court. Tothe maximum extent permitted by applicable law, Guarantor consents to serviceof process by registered mail, return receipt requested, or by any other mannerprovided by law.

 

**To the maximum extent permittedby applicable law, each of the parties hereto waives its rights to trial byjury with respect to this Agreement or any matter arising in connectionherewith.**

 

# 13.                                 **Modification of Agreement****.**Nomodification or waiver of any provision of this Agreement, nor any consent toany departure by the Guarantor therefrom, shall in any event be effectiveunless the same shall be in writing and signed by HPT, and such modification,waiver or consent shall be effective only in the specific instances and for thepurpose for which given. No notice to or demand on the Guarantor in any caseshall entitle the Guarantor to any other or further notice or demand in thesame, similar or other circumstances.

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# 14.                                 **Waiver of Rights by HPT****.**Neither anyfailure nor any delay on HPT’s part in exercising any right, power or privilegeunder this Agreement shall operate as a waiver thereof, nor shall a single orpartial exercise thereof preclude any other or further exercise, or theexercise of any other right, power or privilege.

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# 15.                                 **Severability****.**In case anyone or more of the provisions contained in this Agreement should be invalid,illegal or unenforceable in any respect, the validity, legality andenforceability of the remaining provisions contained herein shall not in anyway be affected or impaired thereby, but this Agreement shall be reformed andconstrued and enforced to the maximum extent permitted by applicable law.

 

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# 16.                                 **Entire Contract****.**ThisAgreement constitutes the entire agreement between the parties hereto withrespect to the subject matter hereof and shall supersede and take the place ofany other instruments purporting to be an agreement of the parties heretorelating to the subject matter hereof.

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# 17.                                 **Headings; Counterparts****.**Headings inthis Agreement are for purposes of reference only and shall not limit orotherwise affect the meaning hereof. This Agreement may be executed in anynumber of counterparts, each of which shall be an original, but all of which togethershall constitute one instrument, and in pleading or proving any provision ofthis Agreement, it shall not be necessary to produce more than one of suchcounterparts.

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# 18.                                 **Remedies Cumulative****.**No remedyherein conferred upon HPT is intended to be exclusive of any other remedy, andsubject to the limitations set forth in Section 9 above, each and everyremedy shall be cumulative and shall be in addition to every other remedy givenhereunder or now or hereafter existing at law or in equity or by statute orotherwise.

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# 19.                                 **Nonliability of Trustees**. THEDECLARATION OF TRUST ESTABLISHING TRUST, A COPY OF WHICH, TOGETHER WITH ALLAMENDMENTS THERETO (THE “DECLARATION”), IS DULY FILED WITH THEDEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT,AND THE GUARANTOR HEREBY AGREES THAT, THE NAME “HOSPITALITY PROPERTIES TRUST”REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOTINDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEEOR AGENT OF TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY ORSEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, TRUST. ALL PERSONS DEALINGWITH TRUST, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF TRUST FOR THE PAYMENTOF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.

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# 20.                                 **Effective Date**. This Agreement shall be of no force oreffect unless and until the Effective Date occurs.

 

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**WITNESS**theexecution hereof under seal as of the date above first written.

 
| ** **                        | **INTERCONTINENTAL  HOTELS GROUP PLC** |
|-----------------------------------|----------------------------------------|
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|                              | By:                                    |   |   |
|                              |                                   | Its: |   |   |
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| ** **                        | ** **                             |
| **ACKNOWLEDGED AND  AGREED:**     | ** **                             |
| ** **                        | ** **                             |
| **HPT TRS IHG-1,  INC.**          | ** **                             |
| ** **                        | ** **                             |
| ** **                        | ** **                             |
| By:                               |                                   |   |   |
|                              | Its:                                   |   |   |   |
|                              |                                   |
|                              |                                   |
| **HOSPITALITY  PROPERTIES TRUST** | ** **                             |
| ** **                        | ** **                             |
| ** **                        | ** **                             |
| By:                               |                                   |   |   |
| Its:                              |                                   |   |   |
|                                   |                                        |  |  |  |  |  |  |  |

 

A-15

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**EXHIBITB**

 

**NEWSTAYBRIDGE GUARANTY**

 

 

**GUARANTYAGREEMENT**

 

**THIS GUARANTY AGREEMENT**(this “Agreement”)is made and given as of                     , 20    , by **INTERCONTINENTALHOTELS GROUP PLC**, a corporation organized and existing under thelaws of England and Wales (the “Guarantor”), for the benefit of **HPT TRS IHG-1, INC.**,a Maryland corporation (together with its successors and assigns, the “Tenant”),and**HOSPITALITY PROPERTIES TRUST**, aMaryland real estate investment trust (together with its successors andassigns, “Trust”; and Trust together with the Tenant, “HPT”).

 

**WITNESSETH :**

 

**WHEREAS,**on January     , 2006, the Guarantor delivered to HPTthat certain Amended and Restated Consolidated Guaranty Agreement (the “ConsolidatedGuaranty”); and

 

**WHEREAS,**both the IHG4 Coverage Date and the IHG5 Coverage Date (as suchterms are defined in the Consolidated Guaranty) have occurred and the Guarantorwishes to terminate its obligations under the Consolidated Guaranty inaccordance with Section 10 of the Consolidated Guaranty; and

 

**WHEREAS,**Section 10 of the Consolidated Guaranty requires, among other things,that the Guarantor deliver this Guaranty Agreement to HPT in order to terminateits obligations under the Consolidated Guaranty as aforesaid; and

 

**WHEREAS,**thetermination of its obligations under the Consolidated Guaranty as aforesaidconstitutes a direct material benefit to the Guarantor;

 

**NOW, THEREFORE,**inconsideration of the foregoing and for other good and valuable consideration,the mutual receipt and legal sufficiency of which are hereby acknowledged, theparties hereto hereby agree as follows:

 

# 1.                                       **Certain Terms****.**Capitalizedterms used and not otherwise defined in this Agreement shall have the meaningsascribed to such terms in the Management Agreement. The

 

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following terms as used in this Agreement shall have the meanings setforth below:

#  

“Accounting Principles” shall meangenerally accepted accounting principles, as adopted in the United States ofAmerica, consistently applied or, if the Guarantor’s principal place ofbusiness is the United Kingdom, generally accepted accounting principles, asadopted in the United Kingdom, consistently applied.

 

“Collateral Agency Agreement” shall meana written agreement, in form and substance reasonably acceptable to HPT, amongHPT, the Guarantor and the Collateral Agent pursuant to which the CollateralAgent shall agree to hold any cash delivered to such Collateral Agent pursuantto the terms of this Agreement as collateral agent on behalf of HPT, as thesame may be amended, restated, supplemented or otherwise modified from time totime with the consent of the parties thereto. Among other things, theCollateral Agency Agreement shall provide that (a) the Collateral Agent shalllook solely to the Guarantor for any amounts owed to the Collateral Agent inconnection with such agreement, (b) the Collateral Agent shall not offset anyamount owed to the Collateral Agent against the cash delivered to it pursuantto the Collateral Agency Agreement and this Agreement, (c) the Collateral Agentshall hold such cash as trust funds and not commingle such cash with any assetsof the Collateral Agent and (d) HPT shall be entitled to apply any cashcollateral held by the Collateral Agent to the overdue obligations of theGuarantor hereunder in such order and at such times as HPT may determine in itssole judgment.

 

“Collateral Agent” shall meana bank or other financial institution reasonably acceptable to HPT having arating of not less than BBB-/Baa3 rating from the Rating Agencies, which bankor other financial institution is the collateral agent under the CollateralAgency Agreement as such collateral agent may be replaced in accordance withthe terms of the Collateral Agency Agreement.

 

“Coverage Date” shall mean the date whichis the day after the second (2nd) consecutive calendar year forwhich the Priority Coverage Ratio is equal to or exceeds 1.3.

 

“Guaranteed Obligations” shall mean thepayment to Tenant of (a) all of the Owner’s Priority as and when due under theManagement Agreement determined without respect to Gross Revenue or OperatingProfits and (b) any and all liquidated damages due to Tenant under theManagement Agreement.

 

B-2

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“Management Agreement” shall mean [thatcertain Amended and Restated Management Agreement, dated as of January     .2005], between TRS1 and Manager, with respect to certain hotels being operatedunder the “Staybridge” brand] [that certain Management Agreement, dated as ofJuly 1, 2003, between TRS1 and Manager] as the same may be amended, modified,supplemented, or otherwise altered from time to time.

 

“Manager” shall mean IntercontinentalHotels Group Resources, Inc.

 

“Outstanding Balance” shall mean, fromtime to time, the Seventy Million Dollars ($70,000,000) less the excess of theaggregate amount paid by the Guarantor under Section 3 hereof over theaggregate amount reimbursed to the Guarantor pursuant to Section 10.1(l)of the Management Agreement.

 

“Provide Collateral” or “ProvidedCollateral” shall mean:

 

(a)                                  delivery toHPT of (i) a Satisfactory Letter of Credit or (ii) cash in an amount equal tothe then Outstanding Balance; or

 

(b)                                 the depositof cash equal to the then Outstanding Balance with the Collateral Agent to beheld by the Collateral Agent in accordance with the Collateral Agency Agreementprovided:(i) the Collateral Agency Agreement has been executed and delivered bythe parties thereto; (ii) HPT has a perfected first priority security interest inany cash delivered to the Collateral Agent; (iii) HPT has received favorableopinions of counsel, in form and substance reasonably satisfactory to HPT, withrespect to such perfected first priority interest, the valid existence and goodstanding of the other parties to the Collateral Agency Agreement, the dueexecution and delivery thereof by such other parties, the enforceability of theCollateral Agency Agreement against such parties, and that any cash held by theCollateral Agent pursuant to the Collateral Agency Agreement shall not be “propertyof the estate” of Collateral Agent should any event described in Sections17.1(a), (b) or (c) of the Management Agreement shall occur withrespect to the Collateral Agent; or

 

(c)                                  delivery toHPT of other collateral satisfactory to HPT in its good faith discretion tosecure the Guaranteed Obligations;

 

provided, however, theGuarantor shall not be deemed to have Provided Collateral if at any time theOutstanding Balance exceeds the sum of (i) the then remaining balance drawableunder

 

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the Satisfactory Letter of Credit or the balance of the cash depositedby the Guarantor hereunder, plus (ii) proceeds of any SatisfactoryLetter of Credit or cash deposited hereunder, in either case, applied to theGuaranteed Obligations.

 

“Priority Coverage Ratio” shall mean, forany period, the ratio of (a) the excess of Gross Revenue for such period overthe sum of the amounts distributed or applied for such period pursuant to Sections10.1(a), (b), (e), (g), (h), (i), (k) and (l) of the Management Agreement,to (b) the sum for such period of Owner’s Priority and Owner’s PercentagePriority.

 

“Rating Agencies” shall mean,collectively, Standard’s & Poor’s Rating Services or its successor andMoody’s Investor Services, Inc. or its successors; provided, however,if the Rating Agencies (i) cease operations without successors or (ii) cease toissue credit ratings, “Rating Agencies” shall mean a nationally recognizedorganization periodically issuing ratings of the financial strength and/orcredit of United States domestic and international banking institutionsreasonably agreed to by HPT and the Guarantor.

 

“Reorganization” shall mean any merger,consolidation, reorganization, change of control or any transaction pursuant towhich the Guarantor shall be or become a Subsidiary of any other Person.

 

“Satisfactory Letter of Credit” shallmean a clean irrevocable letter of credit in form and substance reasonablysatisfactory to HPT in an amount equal to the Outstanding Balance issued by abank with a credit rating of not less than A2/A (or, if after the date hereofthe system of ratings used by the Rating Agencies changes in a material way,their then equivalents of such credit rating in HPT’s reasonable judgment) fromthe Rating Agencies, having an expiration date of not earlier than one yearafter the date on which it was issued and which permits for partial draws.

 

“Substitute Guarantor” shall mean aPerson who assumes the Guarantor’s obligations hereunder in accordance with theterms of Section 2.7 below and is either (a) a Person who satisfies theRating Agencies’ requirements for a single purpose bankruptcy remote entity whohas Provided Collateral or (b) a Person(s) with (i) a tangible net worthdetermined in accordance with the Accounting Principles not less than SevenHundred Fifty Million Dollars ($750,000,000) and (ii) unencumbered assets witha fair market value of not less than One Hundred Million Dollars (exclusive ofany note, instrument, security or claim issued by,

 

B-4

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against or in any way dependent on the credit of, an Affiliate ofGuarantor).

 

# 2.                                       **Representations and Covenants****.**TheGuarantor represents, warrants, covenants and agrees that:

#  

## 2.1                                 **Validity of Agreement****.**TheGuarantor has duly and validly executed and delivered this Agreement; thisAgreement constitutes the legal, valid and binding obligation of the Guarantor,enforceable against the Guarantor in accordance with its terms, except asenforceability may be limited by bankruptcy, insolvency, reorganization,moratorium or similar laws of general application affecting the rights andremedies of creditors; and the execution, delivery and performance of thisAgreement have been duly authorized by all requisite action of the Guarantorand such execution, delivery and performance by the Guarantor will not resultin any breach of the terms, conditions or provisions of, or conflict with orconstitute a default under, or result in the creation of any lien, charge orencumbrance upon any of the property or assets of the Guarantor pursuant to theterms of, any indenture, mortgage, deed of trust, note, other evidence ofindebtedness, agreement or other instrument to which the Guarantor is a partyor by which the Guarantor or any property or assets of the Guarantor is bound,or violate any provision of law applicable to the Guarantor, or any order,writ, injunction, judgement or decree of any court applicable to the Guarantoror any order or other public regulation of any governmental commission, bureauor administrative agency applicable to the Guarantor.

##  

## 2.2                                 **Payment of Expenses****.**TheGuarantor agrees, as principal obligor and not as guarantor only, to pay to HPTforthwith, upon demand, in immediately available Federal funds, all costs andexpenses (including court costs and reasonable legal expenses) incurred orexpended by HPT in connection with the enforcement of this Agreement, togetherwith interest at the Interest Rate on amounts recoverable under this Agreementfrom the time such amounts become due until payment.

##  

## 2.3                                 **Reports****.**TheGuarantor shall timely deliver to HPT the Consolidated Financials requiredunder the Management Agreement and otherwise comply with the terms of the ManagementAgreement applicable to it.

##  

## 2.4                                 **Financial Condition of Guarantor; Status of Guarantor****.**So long as the Guarantor’s obligationsunder Section 3 below are outstanding, unless the Guarantor shallhave Provided Collateral to secure its obligations hereunder:

 

B-5

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### (a)                                  TheGuarantor shall at all times maintain a tangible net worth determined inaccordance with the Accounting Principles in an amount not less than FiveHundred Million Dollars ($500,000,000) or if there has been a Reorganization,or if the Guarantor is not the originally named Guarantor, Seven Hundred FiftyMillion Dollars ($750,000,000); and

###  

### (b)                                 TheGuarantor shall not engage in any Reorganization unless following suchReorganization it has (i) a tangible net worth determined in accordance withthe Accounting Principles in an amount not less than Seven Hundred FiftyMillion Dollars ($750,000,000) and (ii) unencumbered assets with a fair marketvalue of not less than One Hundred Million Dollars ($100,000,000) (exclusive ofany note, instrument, security or claim issued by, against or in any waydependent on the credit of, an Affiliate of Guarantor).

###  

## 2.5                                 **Security**. Upon the termination of the Guarantor’sobligations under Section 3 or if the excess of aggregate amount paid bythe Guarantor under Section 3 over the aggregate amount reimbursed to itpursuant to Section 10.1(l) of the Management Agreement equals not less thanFifty Million dollars ($50,000,000), HPT will return to the Guarantor any SatisfactoryLetter of Credit previously delivered to HPT or any unapplied cash collateralthen being held by HPT hereunder and shall direct the Collateral Agent toreturn any cash being held by it under the Collateral Agency Agreement to theGuarantor. HPT shall be entitled to draw upon any Satisfactory Letter of Creditdelivered to it (a) for the full amount thereof if at any time there is lessthan thirty (30) days until the expiry date of such Satisfactory Letter ofCredit; (b) for the full amount thereof if the bank that issued suchSatisfactory Letter of Credit shall not have a credit rating of at least A/A2(or, if after the date hereof the system of ratings used by the Rating Agencieschanges in a material way, their then equivalents in HPT’s reasonable judgment)from the Rating Agencies and such satisfactory Letter of Credit shall not havebeen replaced within thirty (30) days with a new Satisfactory Letter of Creditdelivered to HPT; or (c) to the extent and in the amounts then due and payablehereunder, if the Guarantor shall fail to pay or perform any of its obligationsunder this Guaranty in accordance with the terms hereof. HPT shall be entitledto apply any cash collateral held by it or the Collateral Agent to the overdueobligations of the Guarantor hereunder in such order and at such times as HPTmay determine in its sole judgment. Any cash collateral held by HPT shall notbe commingled with its other funds, and shall be invested, at the Guarantor’srisk, in interest bearing investments reasonably acceptable to the

 

B-6

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Guarantor. Any interest on such cash collateral, and any losses in suchinvestments, shall belong to IHG.

##  

## 2.6                                 **Legal Existence****.**TheGuarantor shall do or cause to be done all things necessary to preserve andkeep in full force and effect its corporate existence. The Guarantor hasappointed attorneys Alston & Bird LLP, having an address at 1201 WestPeachtree Street, Atlanta, Georgia 30309-3424, Attn:  Managing Partner as its agent for service ofprocess. Managing Partner as its agent for service of process. The Guarantoracknowledges and agrees that service of process on such agent shall constituteservice of process on Guarantor with respect to any and all claims hereunder orunder any other Transaction Document.

##  

## 2.7                                 **Substitute Guarantor****.**The thenGuarantor (the “Departing Guarantor”) shall be released from obligationsunder Section 3 hereof on the following terms and conditions:

##  

### (a)                                  a SubstituteGuarantor shall assume pursuant to a written instrument satisfactory to HPT allof the Guarantor’s obligations hereunder; and

###  

### (b)                                 HPT shallreceive an opinion of counsel satisfactory to HPT with respect to, among otherthings, the existence and good standing of the Substitute Guarantor and the dueexecution, delivery and enforceability of such assumption.

###  

Upon the satisfaction of the foregoingconditions and the expiration of all applicable preference or similar periods,HPT shall deliver a release to the Departing Guarantor of its obligationshereunder and the Substitute Guarantor shall be deemed the “Guarantor”hereunder. Further, if the Substitute Guarantor has Provided Collateral or has(i) a tangible net worth determined in accordance with the AccountingPrinciples of not less than Seven Hundred Fifty Million Dollars ($750,000,000)and (ii) unencumbered assets with a fair market value of not less than OneHundred Million Dollars (exclusive of any note, instrument, security or claimissued by, against or in any way dependent on the credit of, an Affiliate ofGuarantor), HPT shall return to the Departing Guarantor any letter of credit orcash delivered by the Departing Guarantor and held by HPT hereunder and shalldirect the Collateral Agent to return to the Departing Guarantor any cash deliveredby the Departing Guarantor and held by such Collateral Agent pursuant to theterms of the Collateral Agency Agreement.

 

B-7

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# 3.                                       **Guarantee****.**

#  

### (a)                                  TheGuarantor hereby unconditionally guarantees that the Guaranteed Obligationswhich become due and payable during the term of the Management Agreement shallbe paid in full when due and payable subject to any applicable cure periods,whether upon demand, at the stated or accelerated maturity thereof or upon anymandatory or voluntary prepayment pursuant to any Transaction Document, orotherwise.

###  

### (b)                                 Thisguarantee is a guarantee of payment and not of collectibility and is absoluteand in no way conditional or contingent. In case any part of the GuaranteedObligations shall not have been paid when due and payable or performed at thetime performance is required, subject to any applicable cure periods, theGuarantor shall, pay or cause to be paid to HPT the amount thereof as is thendue and payable and unpaid (including interest and other charges, if any, duethereon through the date of payment in accordance with the applicableprovisions of the Transaction Documents) or perform or cause to be performedsuch obligations in accordance with the Transaction Documents. Simultaneouslywith the giving of any notice of default to the Manager under the ManagementAgreement, Tenant shall give a copy of such notice to the Guarantor. Tenantshall accept any cure of such default by the Guarantor provided such cure iscompleted within the applicable cure period under the Management Agreement.

###  

# 4.                                       **Unenforceability of Guaranteed Obligations, Etc.**If theManager is for any reason under no legal obligation to discharge any of theGuaranteed Obligations, or if any other moneys included in the GuaranteedObligations have become unrecoverable from the Manager by operation of law orfor any other reason, including, without limitation, the invalidity orirregularity in whole or in part of any Guaranteed Obligation or of anyTransaction Document or any limitation on the liability of the Managerthereunder or any limitation on the method or terms of payment thereunder whichmay now or hereafter be caused or imposed in any manner whatsoever, theguarantees contained in this Agreement shall nevertheless remain in full forceand effect in accordance with the terms set forth herein and shall be bindingupon the Guarantor to the same extent as if the Guarantor at all times had beenthe principal debtor on all such Guaranteed Obligations.

#  

# 5.                                       **Additional Guarantees****.**ThisAgreement shall be in addition to any other guarantee or other security for theGuaranteed Obligations and it shall not be prejudiced or rendered unenforceableby the invalidity of any such other

 

B-8

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guarantee or security or by any waiver, amendment, release ormodification thereof.

#  

# 6.                                       **Consents and Waivers, Etc.**TheGuarantor hereby acknowledges receipt of correct and complete copies of each ofthe Transaction Documents and consents to all of the terms and provisionsthereof, as the same may be from time to time hereafter amended or changed inaccordance therewith, and waives, to the extent the Guarantor lawfully may doso, (a) presentment, demand for payment, and protest of nonpayment, of any ofthe Guaranteed Obligations, (b) notice of acceptance of this Agreement and ofdiligence, presentment, demand and protest, (c) notice of any default hereunderand any default, breach or nonperformance or a Manager Event of Default underany of the Guaranteed Obligations or the Transaction Documents, except asexpressly provided in Section 3, (d) notice of the terms, time and placeof any private or public sale of collateral held as security for the GuaranteedObligations, (e) demand for performance or observance of, and any enforcementof any provision of, or any pursuit or exhaustion of rights or remedies againstthe Manager or any other guarantor of the Guaranteed Obligations, under orpursuant to the Transaction Documents, or any agreement directly or indirectlyrelating thereto and any requirements of diligence or promptness on the part ofthe holders of the Guaranteed Obligations in connection therewith, and (f) anyand all demands and notices of every kind and description with respect to the foregoingor which may be required to be given by any statute or rule of law.

#  

# 7.                                       **No Impairment, Etc.**The obligations, covenants, agreementsand duties of the Guarantor under this Agreement shall not be affected orimpaired by any assignment or transfer in whole or in part of any of theGuaranteed Obligations without notice to the Guarantor, or any waiver by HPT orany holder of any of the Guaranteed Obligations or by the holders of all of theGuaranteed Obligations of the performance or observance by the Manager or anyother guarantor of any of the agreements, covenants, terms or conditionscontained in the Guaranteed Obligations or the Transaction Documents or anyindulgence in or the extension of the time for payment by the Manager or anyother guarantor of any amounts payable under or in connection with theGuaranteed Obligations or the Transaction Documents or any other instrument oragreement relating to the Guaranteed Obligations or of the time for performanceby the Manager or any other guarantor of any other obligations under or arisingout of any of the foregoing or the extension or renewal thereof, or themodification or amendment made with the consent of the Guarantor of any duty,agreement or obligation of the Manager or any other

 

B-9

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guarantor set forth in any of the foregoing, or the voluntary orinvoluntary sale or other disposition of all or substantially all the assets ofthe Manager or any other guarantor or insolvency, bankruptcy, or other similarproceedings affecting the Manager or any other guarantor or any assets of theManager or any such other guarantor, or the release or discharge of the Manageror any such other guarantor from the performance or observance of anyagreement, covenant, term or condition contained in any of the foregoingwithout the consent of the holders of the Guaranteed Obligations by operationof law.

#  

# 8.                                       **Reimbursement, Subrogation, Etc.**TheGuarantor hereby covenants and agrees that the Guarantor will not enforce or otherwiseexercise any rights of reimbursement, subrogation, contribution or othersimilar rights against the Manager or any other person with respect to theGuaranteed Obligations prior to the irrevocable payment in full of all amountsthen due and owing but unpaid under the Management Agreement, and until theGuaranteed Obligations have been satisfied in full, the Guarantor shall nothave any right of subrogation, and the Guarantor waives any defense it may havebased upon any election of remedies by HPT which destroys the Guarantor’ssubrogation rights or the Guarantor’s rights to proceed against the Manager forreimbursement, including, without limitation, any loss of rights the Guarantormay suffer by reason of any rights, powers or remedies of the Manager inconnection with any anti-deficiency laws or any other laws limiting, qualifyingor discharging the indebtedness to HPT. Until all obligations of the Managerpursuant to the Transaction Documents shall have been irrevocably paid andsatisfied in full, the Guarantor waives any right to enforce any remedy whichHPT now has or may in the future have against the Manager, any other guarantoror any other person and any benefit of, or any right to participate in, anysecurity whatsoever now or in the future held by HPT. Nothing contained in thisSection 8 shall limit the Guarantor’s rights under Section 10.1(l)of the Management Agreement.

#  

# 9.                                       **Defeasance; Guaranty Limitations****.**The Guarantor’sobligations under Section 3 shall terminate upon the first to occur of(a) the date on which the Guaranteed Obligations have been paid and performedin full and all other obligations of the Guarantor to HPT under this Agreementhave been irrevocably satisfied in full and (b) the Coverage Date; provided,however, if at any time, all or any part of any payment applied onaccount of the Guaranteed Obligations is or must

 

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be rescinded or returned for any reason whatsoever (including, withoutlimitation, the insolvency, bankruptcy or reorganization of the Manager), thisAgreement, to the extent such payment is or must be rescinded or returned,shall be deemed to have continued in existence notwithstanding any suchtermination. Notwithstanding anything contained in this Agreement to thecontrary, the Guarantor’s liability under Section 3 hereof in theaggregate shall not exceed (a) for the period ending on December 31, 2005, (i)Fifty Million Dollars ($50,000,000) with respect to the portion of Owner’sPriority attributable to the Original Hotels and (ii) an additional SixteenMillion Dollars ($16,000,000) with respect to the portion of Owner’s Priorityattributable to the Expansion Hotels, and (b) thereafter, Seventy MillionDollars ($70,000,000) with respect to the entire amount of Owner’s Priority; provided,however, such liability shall be reduced by any advances made by Managerunder Section 10.3 of the Management Agreement which Manager elects to bedeemed advances hereunder pursuant to said Section and such liability shall beincreased by any reimbursements made to the Guarantor pursuant to Section10.1(l) of the Management Agreement.

#  

# 10.                                 **Notices****.**(a)  Any and allnotices, demands, consents, approvals, offers, elections and othercommunications required or permitted under this Agreement shall be deemedadequately given if in writing and the same shall be delivered either by hand,by telecopier with written acknowledgment of receipt (provided a copy thereofis sent by Federal Express or similar expedited commercial carrier for deliveryon the next business day), or Federal Express or similar expedited commercialcarrier, addressed to the recipient of the notice, postpaid and registered orcertified with return receipt requested (if by mail), or with all freightcharges prepaid (if by Federal Express or similar carrier).

#  

(b)  Allnotices required or permitted to be sent hereunder shall be deemed to have beengiven for all purposes of this Agreement upon the date of acknowledged receipt,in the case of a notice by telecopier, and, in all other cases, upon the dateof receipt or refusal, except that whenever under this Agreement a notice iseither received on a day which is not a Business Day****oris required to be delivered on or before a specific day which is not a BusinessDay, the day of receipt or required delivery shall automatically be extended tothe next Business Day.

 

B-11

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(c)  Allsuch notices shall be addressed,

 

if to HPT to:

 

c/oHospitality Properties Trust

400Centre Street

Newton,Massachusetts  02458

Attn:  Mr. John G. Murray

[TelecopierNo. (617) 969-5730]

 

with acopy to:

 

Sullivan& Worcester LLP

OnePost Office Square

Boston,Massachusetts  02109

Attn:  Warren M. Heilbronner, Esq.

[TelecopierNo. (617) 338-2880]

 

if tothe Guarantor to:

 

IntercontinentalHotels Group PLC

67Alma Road

Windsor

BerkshireSL4 3HD

ENGLAND

Attn:Company Secretary

TelecopierNo. +44 1753 410101

 

with a copy to:

 

IntercontinentalHotels Group, Inc.

ThreeRavinia Drive

Suite100

Atlanta,Georgia 30346

Attn:  Vice President, Asset Management

[TelecopierNo. 770-604-5340]

 

(d)  By notice given as herein provided, theparties hereto and their respective successors and assigns shall have the rightfrom time to time and at any time during the term of this Agreement to changetheir respective addresses effective upon receipt by the other parties of suchnotice and each shall have the right to specify as its address any otheraddress within the United States of America.

 

# 11.                                 **Successors and Assigns****.**Whenever inthis Agreement, any of the parties hereto is referred to, such reference shallbe deemed to include the successors and assigns of such party, includingwithout limitation the holders, from time to time, of

 

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the Guaranteed Obligations; and all representations, warranties,covenants and agreements by or on behalf of the Guarantor which are containedin this Agreement shall inure to the benefit of HPT’s successors and assigns,including, without limitation, such holders, whether so expressed or not.

#  

# 12.                                 **Applicable Law****.**Except as tomatters regarding the internal affairs of HPT and issues of or limitations onany personal liability of the shareholders and trustees of HPT for obligationsof HPT, as to which the laws of the State of Maryland shall govern, thisAgreement and any other instruments executed and delivered to evidence,complete or perfect the transactions contemplated hereby shall be interpreted,construed, applied and enforced in accordance with the laws of New Yorkapplicable to contracts between residents of New York which are to be performedentirely within New York, regardless of (i) where any such instrument isexecuted or delivered; or (ii) where any payment or other performance requiredby any such instrument is made or required to be made; or (iii) where anybreach of any provision of any such instrument occurs, or any cause of actionotherwise accrues; or (iv) where any action or other proceeding is institutedor pending; or (v) the nationality, citizenship, domicile, principal place ofbusiness, or jurisdiction of organization or domestication of any party; or(vi) whether the laws of the forum jurisdiction otherwise would apply the lawsof a jurisdiction other than Massachusetts; or (vii) any combination of theforegoing.

#  

All actions and proceedings arising out of or inany way relating to this Agreement shall be brought, heard, and determinedexclusively in an otherwise appropriate federal or state court located withinthe State of New York. Guarantor hereby (i) submits to the exclusivejurisdiction of any New York federal or state court of otherwise competentjurisdiction for the purpose of any action or proceeding arising out of orrelating to this Agreement and (ii) voluntarily and irrevocably waives, andagrees not to assert by way of motion, defense, or otherwise in any such actionor proceeding, any claim or defense that it is not personally subject to thejurisdiction of such a court, that such a court lacks personal jurisdictionover Guarantor or the matter, that the action or proceeding has been brought inan inconvenient or improper forum, that the venue of the action or proceedingis improper, or that this Agreement may not be enforced in or by such a court. Tothe maximum extent permitted by applicable law, Guarantor consents to serviceof process by registered mail, return receipt requested, or by any other mannerprovided by law.

 

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**To the maximum extent permittedby applicable law, each of the parties hereto waives its rights to trial byjury with respect to this Agreement or any matter arising in connectionherewith.**

 

# 13.                                 **Modification of Agreement****.**Nomodification or waiver of any provision of this Agreement, nor any consent toany departure by the Guarantor therefrom, shall in any event be effectiveunless the same shall be in writing and signed by HPT, and such modification,waiver or consent shall be effective only in the specific instances and for thepurpose for which given. No notice to or demand on the Guarantor in any caseshall entitle the Guarantor to any other or further notice or demand in thesame, similar or other circumstances.

#  

# 14.                                 **Waiver of Rights by HPT****.**Neither anyfailure nor any delay on HPT’s part in exercising any right, power or privilegeunder this Agreement shall operate as a waiver thereof, nor shall a single orpartial exercise thereof preclude any other or further exercise, or theexercise of any other right, power or privilege.

#  

# 15.                                 **Severability****.**In case anyone or more of the provisions contained in this Agreement should be invalid,illegal or unenforceable in any respect, the validity, legality andenforceability of the remaining provisions contained herein shall not in anyway be affected or impaired thereby, but this Agreement shall be reformed andconstrued and enforced to the maximum extent permitted by applicable law.

#  

# 16.                                 **Entire Contract****.**ThisAgreement constitutes the entire agreement between the parties hereto withrespect to the subject matter hereof and shall supersede and take the place ofany other instruments purporting to be an agreement of the parties heretorelating to the subject matter hereof.

#  

# 17.                                 **Headings; Counterparts****.**Headings inthis Agreement are for purposes of reference only and shall not limit orotherwise affect the meaning hereof. This Agreement may be executed in anynumber of counterparts, each of which shall be an original, but all of whichtogether shall constitute one instrument, and in pleading or proving anyprovision of this Agreement, it shall not be necessary to produce more than oneof such counterparts.

#  

# 18.                                 **Remedies Cumulative****.**No remedyherein conferred upon HPT is intended to be exclusive of any other remedy, andsubject to the limitations set forth in Section 9 above, each and everyremedy shall be cumulative and shall be in addition to every

 

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other remedy given hereunder or now or hereafter existing at law or inequity or by statute or otherwise.

#  

# 19.                                 **Nonliability of Trustees**. THEDECLARATION OF TRUST ESTABLISHING TRUST, A COPY OF WHICH, TOGETHER WITH ALLAMENDMENTS THERETO (THE “DECLARATION”), IS DULY FILED WITH THEDEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT,AND THE GUARANTOR HEREBY AGREES THAT, THE NAME “HOSPITALITY PROPERTIES TRUST”REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOTINDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEEOR AGENT OF TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY ORSEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, TRUST. ALL PERSONS DEALINGWITH TRUST, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF TRUST FOR THE PAYMENTOF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.

 

B-15

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**WITNESS**theexecution hereof under seal as of the date above first written.

 
| ** **                        | **INTERCONTINENTAL  HOTELS GROUP PLC** |
|-----------------------------------|----------------------------------------|
|                              |                                   |
|                              |                                   |
|                              | By:                                    |   |   |
|                              |                                   | Its: |   |   |
|                              |                                   |
| **ACKNOWLEDGED AND  AGREED:**     | ** **                             |
| ** **                        | ** **                             |
| **HPT TRS IHG-1,  INC.**          | ** **                             |
| ** **                        | ** **                             |
| ** **                        | ** **                             |
| By:                               |                                   |   |   |
|                              | Its:                                   |   |   |   |
|                              |                                   |
|                              |                                   |
| **HOSPITALITY  PROPERTIES TRUST** | ** **                             |
| ** **                        | ** **                             |
| ** **                        | ** **                             |
| By:                               |                                   |   |   |
|                              | Its:                                   |   |   |   |
|                                   |                                        |  |  |  |  |  |  |

 

B-16

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