**Exhibit10.8**

 

**INDEMNIFICATION AGREEMENT**

 

THIS INDEMNIFICATION AGREEMENT (this “Agreement”) ismade and entered March 10, 2004 (the “Effective Date”), by and betweenHospitality Properties Trust, a Maryland real estate investment trust (the“Company”), and John G. Murray (“Indemnitee”).

 

WHEREAS Indemnitee currently serves as an officer of the Company and may, inconnection therewith, be subjected to claims, suits or proceedings arising fromsuch service; and

 

WHEREAS, as an inducement to Indemnitee to continue toserve as such officer, theCompany has agreed to indemnify and to advance expenses and costs incurred byIndemnitee in connection with any such claims, suits or proceedings, to thefullest extent permitted by law as hereinafter provided; and

 

NOW, THEREFORE, in consideration of the premises andthe covenants contained herein, the Company and Indemnitee do hereby covenantand agree as follows:

 

Section 1.               Definitions.  For purposes of this Agreement:

 

(a)           “Changein Control” means a change in control of the Company occurring after theEffective Date of a nature that would be required to be reported in response toItem 6(e) of Schedule 14A of Regulation 14A (or in response to any similar itemon any similar schedule or form) promulgated under the Securities Exchange Actof 1934, as amended (the “Act”), whether or not the Company is then subject tosuch reporting requirement; provided, however, that, without limitation, such aChange in Control shall be deemed to have occurred if after the Effective Date(i) any “person” (as such term is used in Sections 13(d) and 14(d) of the Act)is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Act),directly or indirectly, of securities of the Company representing 10% or more of the combined voting powerin the election of trustees of the Company’s then outstanding securitieswithout the prior approval of at least two-thirds of the members of the Boardof Trustees in office immediately prior to such person attaining suchpercentage interest; (ii) there occurs a proxy contest, or the Company is aparty to a merger, consolidation, sale of assets, plan of liquidation or otherreorganization not approved by at least two-thirds of the members of the Boardof Trustees then in office, as a consequence of which members of the Board ofTrustees in office immediately prior to such transaction or event constituteless than a majority of the Board of Trustees thereafter; or (iii) during anyperiod of two consecutive years, other than as a result of an event describedin clause (a)(ii) of this Section 1, individuals who at the beginning of suchperiod constituted the Board of Trustees (including for this purpose any newtrustee whose election or nomination for election by the Company’s shareholderswas approved by a vote of at least two-thirds of the trustees then still inoffice

 

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who were trustees at the beginning of such period) cease for any reasonto constitute at least a majority of the Board of Trustees.

 

(b)           “CorporateStatus” means the status of a person who is or was a director, trustee, officeror agent of the Company.

 

(c)           “DisinterestedTrustee” means a trustee of the Company who is not and was not a party to theProceeding in respect of which indemnification is sought by Indemnitee.

 

(d)           “Expenses”means all expenses, including, but not limited to, all reasonable attorneys’fees, retainers, court costs, transcript costs, fees of experts, witness fees,travel expenses, duplicating costs, printing and binding costs, telephonecharges, postage, delivery service fees, and all other disbursements orexpenses of the types customarily incurred in connection with prosecuting,defending, preparing to prosecute or defend, investigating, or being orpreparing to be a witness in a Proceeding.

 

(e)           “IndependentCounsel” means a law firm, or a member of a law firm, that is retained byIndemnitee and is not serving as counsel to the Company.

 

(f)            “Proceeding”means any threatened, pending or completed action, suit, arbitration, alternatedispute resolution mechanism, investigation, administrative hearing or anyother proceeding, whether civil, criminal, administrative or investigative(including on appeal), except one initiated by an Indemnitee pursuant to Section9.

 

Section 2.               Indemnification- General.  The Company shallindemnify, and advance Expenses to, Indemnitee (a) as provided in thisAgreement and (b) otherwise to the fullest extent permitted by Maryland law ineffect on the date hereof and as amended from time to time; provided, however,that no change in Maryland law shall have the effect of reducing the benefitsavailable to Indemnitee hereunder based on Maryland law as in effect on thedate hereof.  The rights of Indemniteeprovided in this Section 2 shall include, without limitation, the rightsset forth in the other sections of this Agreement, including any additionalindemnification permitted by Section 2-418(g) of the Maryland GeneralCorporation Law (“MGCL”), as applicable to a Maryland real estate investmenttrust by virtue of Section 8-301(15) of the Maryland REIT Law.

 

Section 3.               ProceedingsOther Than Proceedings by or in the Right of the Company.  Indemnitee shall be entitled to the rights ofindemnification provided in this Section 3 if, by reason of hisCorporate Status, he is, or is threatened to be, made a party to anythreatened, pending, or completed Proceeding, other than a Proceeding by or inthe right of the Company.  Pursuant tothis Section 3, Indemnitee shall be indemnified against all judgments,penalties, fines and amounts paid in settlement and all Expenses incurred byhim or on his behalf in connection with a Proceeding by reason of Indemnitee’sCorporate Status unless it is established that (i) the act or omission ofIndemnitee was material to the matter giving rise to the Proceeding and (a) wascommitted in bad faith or (b) was the result of active and deliberatedishonesty, (ii) Indemnitee actually received an improper personal benefit inmoney, property or services, or (iii) in the case of any criminal Proceeding,Indemnitee had reasonable cause to believe that his conduct was unlawful.

 

Section 4.               Proceedingsby or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification providedin this Section 4 if, by reason of his Corporate Status, he is, or isthreatened to be, made a party to any threatened, pending or completedProceeding brought by or in the right of the Company to procure a judgment inits favor.  Pursuant to this Section 4,Indemnitee shall be indemnified against all amounts paid in settlement and allExpenses incurred by him or on his behalf in connection with such Proceedingunless it is established that (i) the act or omission of Indemnitee wasmaterial to the matter giving rise to such a Proceeding and (a) was committedin bad faith or (b) was the result of active and deliberate dishonesty or (ii)Indemnitee actually received an improper personal benefit in money, property orservices.

 

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Section 5.               Indemnificationfor Expenses of a Party Who is Partly Successful.  Without limitation on Section 3 and Section4, if Indemnitee is not wholly successful in any Proceeding covered by thisAgreement, but is successful, on the merits or otherwise, as to one or more butless than all claims, issues or matters in such Proceeding, the Company shallindemnify Indemnitee under this Section 5 for all Expenses incurred byhim or on his behalf in connection with each successfully resolved claim, issueor matter, allocated on a reasonable and proportionate basis.  For purposes of this Section and withoutlimitation, the termination of any claim, issue or matter in such a Proceedingby dismissal, with or without prejudice, shall be deemed to be a successfulresult as to such claim, issue or matter.

 

Section 6.               Advanceof Expenses.  The Company shalladvance all Expenses incurred by or on behalf of Indemnitee in connection withany Proceeding to which Indemnitee is, or is threatened to be, made a party ora witness, within ten days after the receipt by the Company of a statement orstatements from Indemnitee requesting such advance or advances from time totime, whether prior to or after final disposition of such Proceeding.  Such statement or statements shall reasonablyevidence the Expenses incurred by Indemnitee and shall include or be precededor accompanied by a written affirmation by Indemnitee of Indemnitee’s goodfaith belief that the standard of conduct necessary for indemnification by theCompany as authorized by law and by this Agreement has been met and a writtenundertaking by or on behalf of Indemnitee, in substantially the form attachedhereto as Exhibit A or in such form as may be required under applicablelaw as in effect at the time of the execution thereof, to reimburse the portionof any Expenses advanced to Indemnitee relating to claims, issues or matters inthe Proceeding as to which it shall ultimately be established that the standardof conduct has not been met and which have not been successfully resolved asdescribed in Section 5.  To theextent that Expenses advanced to Indemnitee do not relate to a specific claim,issue or matter in the Proceeding, such Expenses shall be allocated on areasonable and proportionate basis.  Theundertaking required by this Section 6 shall be an unlimited general obligationby or on behalf of Indemnitee and shall be accepted without reference toIndemnitee’s financial ability to repay such advanced Expenses and without anyrequirement to post security therefor.

 

Section 7.               Procedurefor Determination of Entitlement to Indemnification.

 

(a)           Toobtain indemnification under this Agreement, Indemnitee shall submit to theCompany a written request, including such documentation and information as isreasonably available to Indemnitee and is reasonably necessary to determinewhether and to what extent Indemnitee is entitled to indemnification.  The Secretary of the Company shall, promptlyupon receipt of such a request for indemnification, advise the Board of Trusteesin writing that Indemnitee has requested indemnification.

 

(b)           Uponwritten request by Indemnitee for indemnification pursuant to the firstsentence of Section 7(a) hereof, a determination, if required byapplicable law, with respect to Indemnitee’s entitlement thereto shall promptlybe made in the specific case: (i) if a Change in Control shall have occurred,by Independent Counsel in a written opinion to the Board of Trustees, a copy ofwhich shall be delivered to Indemnitee; or (ii) if a Change of Control shallnot have occurred or if after a Change of Control Indemnitee shall so request,(A) by the Board of Trustees (or a duly authorized committee thereof) by amajority vote of a quorum consisting of Disinterested Trustees (as hereindefined), or (B) if a quorum of the Board of Trustees consisting ofDisinterested Trustees is not obtainable or, even if obtainable, such quorum ofDisinterested Trustees so directs, by Independent Counsel in a written opinionto the Board of Trustees, a copy of which shall be delivered to Indemnitee, or(C) if so directed by a majority of the members of the Board of Trustees, bythe shareholders of the Company; and, if it is so determined that Indemnitee isentitled to indemnification, payment to Indemnitee shall be made within tendays after such determination. Indemnitee shall cooperate with the person, persons or entity makingsuch determination with respect to Indemnitee’s entitlement to indemnification,including providing to such person, persons or entity upon reasonable advancerequest any documentation or information which is not privileged or otherwiseprotected from disclosure and which is reasonably available to Indemnitee andreasonably necessary to such determination. Any Expenses incurred by Indemnitee in so cooperating with the person,persons or entity making such determination shall be borne by the Company(irrespective of the determination as to Indemnitee’s entitlement toindemnification) and the Company shall indemnify and hold Indemnitee harmlesstherefrom.

 

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Section 8.               Presumptionsand Effect of Certain Proceedings.

 

(a)           Inmaking a determination with respect to entitlement to indemnificationhereunder, the person or persons or entity making such determination shallpresume that Indemnitee is entitled to indemnification under this Agreement ifIndemnitee has submitted a request for indemnification in accordance with Section7(a) of this Agreement, and the Company shall have the burden of proof toovercome that presumption in connection with the making of any determinationcontrary to that presumption.

 

(b)           Thetermination of any Proceeding by judgment, order, settlement, conviction, aplea of nolo contendere or its equivalent, or an entry of an order ofprobation prior to judgment, does not create a presumption that Indemnitee didnot meet the requisite standard of conduct described herein forindemnification.

 

Section 9.               Remediesof Indemnitee.

 

(a)           If(i) a determination is made pursuant to Section 7 that Indemnitee is notentitled to indemnification under this Agreement, (ii) advance of Expenses isnot timely made pursuant to Section 6, (iii) no determination ofentitlement to indemnification shall have been made pursuant to Section 7(b)within 30 days after receipt bythe Company of the request for indemnification, (iv) payment of indemnificationis not made pursuant to Section 5 within ten days after receipt by theCompany of a written request therefor, or (v) payment of indemnification is notmade within ten days after a determination has been made that Indemnitee isentitled to indemnification, Indemnitee shall be entitled to an adjudication inan appropriate court of the State of Maryland, or in any other court ofcompetent jurisdiction, of his entitlement to such indemnification or advanceof Expenses.  Alternatively, Indemnitee,at his option, may seek an award in arbitration to be conducted by a singlearbitrator pursuant to the commercial Arbitration Rules of the AmericanArbitration Association.  Indemniteeshall commence such proceeding seeking an adjudication or an award inarbitration within 180 days following the date on which Indemnitee first hasthe right to commence such proceeding pursuant to this Section 9(a); provided,however, that the foregoing clause shall not apply in respect of aproceeding brought by Indemnitee to enforce his rights under Section 5.

 

(b)           Inany judicial proceeding or arbitration commenced pursuant to this Section 9,the Company shall have the burden of proving that Indemnitee is not entitled toindemnification or advance of Expenses, as the case may be.

 

(c)           Ifa determination shall have been made pursuant to Section 7(b) thatIndemnitee is entitled to indemnification, the Company shall be bound by suchdetermination in any judicial proceeding or arbitration commenced pursuant tothis Section 9, absent a misstatement by Indemnitee of a material fact,or an omission of a material fact necessary to make Indemnitee’s statement notmaterially misleading, in connection with the request for indemnification.

 

(d)           Inthe event that Indemnitee, pursuant to this Section 9, seeks a judicialadjudication of or an award in arbitration to enforce his rights under, or torecover damages for breach of, this Agreement, Indemnitee shall be entitled torecover from the Company, and shall be indemnified by the Company for, any andall Expenses incurred by him in such judicial adjudication or arbitration.  If it shall be determined in such judicial adjudicationor arbitration that Indemnitee is entitled to receive part but not all of theindemnification or advance of Expenses sought, the Expenses incurred byIndemnitee in connection with such judicial adjudication or arbitration shallbe appropriately prorated.

 

Section 10.             Defenseof the Underlying Proceeding.

 

(a)           Indemniteeshall notify the Company promptly upon being served with or receiving anysummons, citation, subpoena, complaint, indictment, information, notice,request or other document relating to any Proceeding which may result in theright to indemnification or the advance of Expenses hereunder; provided,however, that the failure to give any such notice shall not disqualifyIndemnitee from

 

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the right, or otherwise affect in any manner any right of Indemnitee,to indemnification or the advance of Expenses under this Agreement unless theCompany’s ability to defend in such Proceeding or to obtain proceeds under anyinsurance policy is materially and adversely prejudiced thereby, and then onlyto the extent the Company is thereby actually so prejudiced.

 

(b)           Subjectto the provisions of the last sentence of this Section 10(b) and of Section10(c) below, the Company shall have the right to defend Indemnitee in anyProceeding which may give rise to indemnification hereunder; provided, however,that the Company shall notify Indemnitee of any such decision to defend within15 calendar days following receipt of notice of any such Proceeding under Section10(a) above.  The Company shall not,without the prior written consent of Indemnitee, which shall not beunreasonably withheld or delayed, consent to the entry of any judgment againstIndemnitee or enter into any settlement or compromise which (i) includes anadmission of fault of Indemnitee or (ii) does not include, as an unconditionalterm thereof, the full release of Indemnitee from all liability in respect ofsuch Proceeding, which release shall be in form and substance reasonablysatisfactory to Indemnitee.  This Section10(b) shall not apply to a Proceeding brought by Indemnitee under Section9 above or Section 14.

 

(c)           Notwithstandingthe provisions of Section 10(b), if in a Proceeding to which Indemniteeis a party by reason of Indemnitee’s Corporate Status, (i) Indemnitee reasonablyconcludes, based upon an opinion of counsel approved by the Company, whichapproval shall not be unreasonably withheld, that he may have separate defensesor counterclaims to assert with respect to any issue which may not beconsistent with other defendants in such Proceeding, (ii) Indemnitee reasonablyconcludes, based upon an opinion of counsel approved by the Company, whichapproval shall not be unreasonably withheld, that an actual or apparentconflict of interest or potential conflict of interest exists betweenIndemnitee and the Company, or (iii) the Company fails to assume the defense ofsuch Proceeding in a timely manner, Indemnitee shall be entitled to berepresented by separate legal counsel of Indemnitee’s choice, subject to theprior approval of the Company, which shall not be unreasonably withheld, at theexpense of the Company.  In addition, ifthe Company fails to comply with any of its obligations under this Agreement orin the event that the Company or any other person takes any action to declarethis Agreement void or unenforceable, or institutes any Proceeding to deny orto recover from Indemnitee the benefits intended to be provided to Indemniteehereunder, Indemnitee shall have the right to retain counsel of Indemnitee’schoice, subject to the prior approval of the Company, which shall not beunreasonably withheld, at the expense of the Company (subject to Section9(d)), to represent Indemnitee in connection with any such matter.

 

Section 11.             Non-Exclusivity;Survival of Rights.

 

(a)           Therights of indemnification and advance of Expenses as provided by this Agreementshall not be deemed exclusive of any other rights to which Indemnitee may atany time be entitled under applicable law, the Declaration of Trust or Bylawsof the Company, any agreement or a resolution of the shareholders entitled tovote generally in the election of trustees or of the Board of Trustees, orotherwise.  No amendment, alteration orrepeal of this Agreement or of any provision hereof shall limit or restrict anyright of Indemnitee under this Agreement in respect of any action taken oromitted by such Indemnitee in his Corporate Status prior to such amendment,alteration or repeal.

 

(b)           Inthe event of any payment under this Agreement, the Company shall be subrogatedto the extent of such payment to all of the rights of recovery of Indemnitee,who shall execute all papers required and take all action necessary to securesuch rights, including execution of such documents as are necessary to enablethe Company to bring suit to enforce such rights.

 

(c)           TheCompany shall not be liable under this Agreement to make any payment of amountsotherwise indemnifiable hereunder if and to the extent that Indemnitee hasotherwise actually received such payment under any insurance policy, contract,agreement or otherwise.

 

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Section 12.             Durationof Agreement; Binding Effect.

 

(a)           ThisAgreement shall continue until and terminate ten years after the date thatIndemnitee shall have ceased to serve as a director, trustee, officer,employee, or agent of the Company or of any other corporation, partnership,joint venture, trust, employee benefit plan or other enterprise whichIndemnitee served at the request of the Company; provided, however,that the rights of Indemnitee hereunder shall continue until the finaltermination of any Proceeding then pending in respect of which Indemnitee isgranted rights of indemnification or advance of Expenses hereunder and of anyproceeding commenced by Indemnitee pursuant to Section 9 relatingthereto.

 

(b)           Theindemnification and advance of Expenses provided by, or granted pursuant to,this Agreement shall be binding upon and be enforceable by the parties heretoand their respective successors and assigns (including any direct or indirectsuccessor by purchase, merger, consolidation or otherwise to all orsubstantially all of the business or assets of the Company), shall continue asto an Indemnitee who has ceased to be a director, trustee, officer, employee oragent of the Company or of any other corporation, partnership, joint venture,trust, employee benefit plan or other enterprise which such person is or wasserving at the written request of the Company, and shall inure to the benefitof Indemnitee and his or her spouse, assigns, heirs, devisees, executors andadministrators and other legal representatives.

 

(c)           TheCompany shall require and cause any successor (whether direct or indirect bypurchase, merger, consolidation or otherwise) to all, substantially all or asubstantial part, of the business and/or assets of the Company, by writtenagreement in form and substance satisfactory to Indemnitee, expressly to assumeand agree to perform this Agreement in the same manner and to the same extentthat the Company would be required to perform if no such succession had takenplace.

 

Section 13.             Severability.  If any provision or provisions of thisAgreement shall be held to be invalid, illegal or unenforceable for any reasonwhatsoever: (a) the validity, legality and enforceability of the remainingprovisions of this Agreement (including, without limitation, each portion ofany section of this Agreement containing any such provision held to be invalid,illegal or unenforceable that is not itself invalid, illegal or unenforceable)shall not in any way be affected or impaired thereby; and (b) to the fullestextent possible, the provisions of this Agreement (including, withoutlimitation, each portion of any section of this Agreement containing any suchprovision held to be invalid, illegal or unenforceable, that is not itselfinvalid, illegal or unenforceable) shall be construed so as to give effect tothe intent manifested thereby.

 

Section 14.             Limitationand Exception to Right of Indemnification or Advance of Expenses.  Notwithstanding any other provision of thisAgreement, (a) any indemnification or advance of Expenses to which Indemniteeis otherwise entitled under the terms of this Agreement shall be made only tothe extent such indemnification or advance of Expenses does not conflict withapplicable Maryland law and (b) Indemnitee shall not be entitled toindemnification or advance of Expenses under this Agreement with respect to anyProceeding brought by Indemnitee, unless (i) the Proceeding is brought to enforceindemnification under this Agreement or otherwise or (ii) the Company’s Bylaws,as amended, the Declaration of Trust, a resolution of the shareholders entitledto vote generally in the election of trustees or of the Board of Trustees or anagreement approved by the Board of Trustees to which the Company is a partyexpressly provide otherwise.

 

Section 15.             Counterparts.  This Agreement may be executed in one or morecounterparts, each of which shall for all purposes be deemed to be an originalbut all of which together shall constitute one and the same Agreement.  One such counterpart signed by the partyagainst whom enforceability is sought shall be sufficient to evidence theexistence of this Agreement.

 

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Section 16.             Headings.  The headings of the paragraphs of thisAgreement are inserted for convenience only and shall not be deemed toconstitute part of this Agreement or to affect the construction thereof.

 

Section 17.             Modificationand Waiver.  No supplement,modification or amendment of this Agreement shall be binding unless executed inwriting by both of the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed orshall constitute a waiver of any other provisions hereof (whether or notsimilar) nor shall such waiver constitute a continuing waiver.

 

Section 18.             Notices.  Any notice, report or other communicationrequired or permitted to be given hereunder shall be in writing unless someother method of giving such notice, report or other communication is acceptedby the party to whom it is given, and shall be given by being delivered at thefollowing addresses to the parties hereto:

 

(a)           Ifto Indemnitee, to:  The address set forthon the signature page hereto.

 

(b)           Ifto the Company to:

 

HospitalityProperties Trust

400 Centre Street

Newton,Massachusetts 02458

Attn:  Secretary

 

or to such other addressas may have been furnished to Indemnitee by the Company or to the Company byIndemnitee, as the case may be.

 

Section 19.             Governing Law.  The parties agree that this Agreement shallbe governed by, and construed and enforced in accordance with, the laws of theState of Maryland, without regard to its conflicts of laws rules.

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the parties hereto have executedthis Agreement on the day and year first above written.

 
| ATTEST:               | HOSPITALITY PROPERTIES  TRUST |                                          |
|-----------------------|-------------------------------|-----------------------------------------------|
|                  |                          |                                          |
|                  |                          |                                          |
| /s/Jennifer B. Clark  |                          | By:                                           | /s/Mark L. Kleifges | (SEAL) |
|                  |                          | Name: Mark L. Kleifges                        |   |
|                  |                          | Title: Treasurer and  Chief Financial Officer |   |
|                  |                          |                                          |   |
|                  |                          |                                          |   |
| WITNESS:              |                          | INDEMNITEE                                    |   |
|                  |                          |                                          |   |
|                  |                          |                                          |   |
| /s/Elizabeth A. Tober |                          | /s/John G. Murray                             |   |
|                  | Name:  John G. Murray    |                                          |
|                  | Address: [Address  Omitted]   |                                          |
|                       |                               |                                               |  |  |

 

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**EXHIBIT A**

 

FORM OF UNDERTAKING TOREPAY EXPENSES ADVANCED

** **

The Board of Trustees ofHospitality Properties Trust

 

Re:  Undertaking to Repay Expenses Advanced

 

Ladies and Gentlemen:

 

This undertaking is being provided pursuant to thatcertain Indemnification Agreement dated                           ,2004, by and between Hospitality Properties Trust (the “Company”) and theundersigned Indemnitee (the “Indemnification Agreement”), pursuant to which Iam entitled to advance of expenses in connection with **[Descriptionof Proceeding]** (the “Proceeding”).

 

Terms used herein and not otherwise defined shall havethe meanings specified in the Indemnification Agreement.

 

I am subject to the Proceeding by reason of myCorporate Status or by reason of alleged actions or omissions by me in suchcapacity.  I hereby affirm that at alltimes, insofar as I was involved as **[a trustee]****[an officer]** of the Company, in any of the facts or eventsgiving rise to the Proceeding, I (1) acted in good faith and honestly, (2) didnot receive any improper personal benefit in money, property or services and(3) in the case of any criminal proceeding, had no reasonable cause to believethat any act or omission by me was unlawful.

 

In consideration of the advance of expenses by theCompany for reasonable attorney’s fees and related expenses incurred by me inconnection with the Proceeding (the “Advanced Expenses”), I hereby agree thatif, in connection with the Proceeding, it is established that (1) an act oromission by me was material to the matter giving rise to the Proceeding and (a)was committed in bad faith or (b) was the result of active and deliberatedishonesty or (2) I actually received an improper personal benefit in money,property or services or (3) in the case of any criminal proceeding, I hadreasonable cause to believe that the act or omission was unlawful, then I shallpromptly reimburse the portion of the Advanced Expenses relating to the claims,issues or matters in the Proceeding as to which the foregoing findings have beenestablished and which have not been successfully resolved as described in Section5 of the Indemnification Agreement. To the extent that Advanced Expenses do not relate to a specific claim,issue or matter in the Proceeding, I agree that such Expenses shall beallocated on a reasonable and proportionate basis.

** **

IN WITNESS WHEREOF, Ihave executed this Affirmation and Undertaking on this       day of                                 ,200   .

 

 

WITNESS:

 
|   |   |   | (SEAL) |
|--------|--------|--------|--------|

 

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**Schedule to Exhibit 10.8**

 

The following individuals are parties toIndemnification Agreements with the Company which are substantially identicalin all material respects to the representative Indemnification Agreement filedherewith and are dated as of the respective dates listed below.  The otherIndemnification Agreements are omitted pursuant to Instruction 2 to Item 601 ofRegulation S-K.

 
| **Name of Signatory** | ** ** | **Date**         |
|-----------------------|------------|------------------|
| Frank J. Bailey       |       | March 10, 2004   |
| Ethan S. Bornstein    |       | March 10, 2004   |
| John L. Harrington    |       | March 10, 2004   |
| Mark L. Kleifges      |       | March 10, 2004   |
| William A. Lamkin     |       | January 11, 2007 |
| John G. Murray        |       | March 10, 2004   |
| Adam D. Portnoy       |       | January 11, 2007 |
| Barry M. Portnoy      |       | March 10, 2004   |
| William J. Sheehan    |       | May 7, 2004      |

 

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