Exhibit 4.25


 






 


FORM OF


 


GUARANTEE AGREEMENT


 


between


 


HOSPITALITY PROPERTIES TRUST


 


and


 






 


Relating to the Preferred Securities of HPT CAPITAL TRUST
[    ]


 


Dated as of
                      ,
20


 

















 


Certain Sections of this Agreement relating to Sections 310 through
318, inclusive, of the Trust Indenture Act of 1939:


 


	
  Trust Indenture

  	
   

  	
   

  
	
  Act Section

  	
   

  	
  Agreement
  Section

  
	
   

  	
   

  	
   

  
	
  ss.310(a)(1)

  	
   

  	
  4.1

  
	
            (a)(2)

  	
   

  	
  4.1

  
	
            (a)(3)

  	
   

  	
  Not Applicable

  
	
            (a)(4)

  	
   

  	
  Not Applicable

  
	
            (a)(5)

  	
   

  	
  4.1

  
	
            (b)

  	
   

  	
  2.8, 4.1

  
	
            (c)

  	
   

  	
  Not Applicable

  
	
  ss.311(a)

  	
   

  	
  2.2

  
	
            (b)

  	
   

  	
  2.2

  
	
            (c)

  	
   

  	
  Not Applicable

  
	
  ss.312

  	
   

  	
  2.2

  
	
  ss.313

  	
   

  	
  2.3

  
	
  ss.314(a)

  	
   

  	
  2.4

  
	
            (b)

  	
   

  	
  Not Applicable

  
	
            (c)

  	
   

  	
  2.5

  
	
            (d)

  	
   

  	
  Not Applicable

  
	
            (e)

  	
   

  	
  1.1

  
	
  ss.315(a)

  	
   

  	
  3.1, 3.2

  
	
            (b)

  	
   

  	
  2.7

  
	
            (c)

  	
   

  	
  3.1

  
	
            (d)

  	
   

  	
  3.2

  
	
  ss.316(a)(1)(A)

  	
   

  	
  5.4

  
	
            (a)(1)(B)

  	
   

  	
  2.6

  
	
            (a)(2)

  	
   

  	
  Not Applicable

  
	
            (b)

  	
   

  	
  5.4

  
	
            (c)

  	
   

  	
  Not Applicable

  
	
  ss.317

  	
   

  	
  2.1

  
	
  ss.318

  	
   

  	
  2.1

  



 






NOTE:  This
reconciliation and tie shall not, for any purpose, be deemed to be part of the
Agreement.


 

















 


FORM OF


GUARANTEE AGREEMENT


 


This GUARANTEE AGREEMENT, dated as of
                              ,
20    , is executed and delivered by HOSPITALITY PROPERTIES
TRUST, a Maryland real estate investment trust (the “Guarantor”) and
                                                      ,
as trustee (the “Guarantee Trustee”), for the benefit of the Holders (as
defined herein) from time to time of the Preferred Securities (as defined
herein) of HPT Capital Trust [    ], a Maryland statutory
business trust (the “Issuer”).


 


WHEREAS, pursuant to an Amended and Restated Trust
Agreement (the “Trust Agreement”), dated as of
                      ,
20    , among the Trustees named therein, the Guarantor, as
Depositor, and the Holders from time to time of undivided beneficial interests
in the assets of the Issuer, the Issuer is issuing
                    
of its [title of series] Preferred Securities (liquidation amount $    
per preferred security) (the “Preferred Securities”) representing preferred
undivided beneficial interests in the assets of the Issuer and having the terms
set forth in the Trust Agreement;


 


WHEREAS, the Preferred Securities will be issued by
the Issuer and the proceeds thereof, together with the proceeds from the
issuance of the Issuer’s Common Securities (as defined below), will be used to
purchase the Debt Securities (as defined in the Trust Agreement) of the
Guarantor which will be deposited with                                         ,
as Property Trustee under the Trust Agreement, as trust assets; and


 


WHEREAS, as incentive for the Holders to purchase
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth herein, to pay to the Holders of the Preferred
Securities the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein;


 


NOW, THEREFORE, in consideration of the purchase by
each Holder of Preferred Securities, which purchase the Guarantor hereby agrees
shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time of the Preferred
Securities.


 


ARTICLE I


DEFINITIONS


 


SECTION 1.1    Definitions.  As used in this Guarantee Agreement, the
terms set forth below shall, unless the context otherwise requires, have the
following meanings.  Capitalized or
otherwise defined terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Trust Agreement as in effect on the date
hereof.


 


“Affiliate” of any specified Person means any other
Person directly or indirectly controlling or controlled by or under direct
common control with such specified Person; provided, however, that an Affiliate
of the Guarantor shall not be deemed to include the Issuer.  For the purposes of this definition, “control”
when used with respect to any specified Person means the power to direct the
management and policies of such Person, 


 


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directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the foregoing.


 


“Common Securities” means the securities
representing common beneficial interests in the assets of the Issuer.


 


“Event of Default” means a default by the Guarantor
on any of its payment or other obligations under this Guarantee Agreement;
provided, however, that, except with respect to a default in payment of any
Guarantee Payments, no Event of Default shall be deemed to have occurred under
this Guarantee Agreement unless and until the Guarantor shall have received
written notice of default from the Guarantee Trustee and shall not have cured
such default within 60 days after receipt of such notice.


 


“Guarantee Payments” means the following payments or
distributions, without duplication, with respect to the Preferred Securities,
to the extent not paid or made by or on behalf of the Issuer:  (i) any accumulated and unpaid
Distributions (as defined in the Trust Agreement) required to be paid on the
Preferred Securities, to the extent the Issuer shall have funds on hand legally
available therefor at such time, (ii) the redemption price set forth in
the Trust Agreement, including premium, if any, all accrued and unpaid
Distributions to the date of redemption (the “Redemption Price”), with respect
to the Preferred Securities called for redemption by the Issuer to the extent
the Issuer shall have funds on hand legally available therefor, and (iii) upon
a voluntary or involuntary dissolution, winding-up or liquidation of the
Issuer, other than in connection with the distribution of Debt Securities to
the Holders or the redemption of all Preferred Securities issued by the Issuer,
the lesser of (a) the aggregate of the liquidation amount of $[    ]
per Preferred Security, plus accrued and unpaid Distributions on the Preferred
Securities to the date of payment to the extent the Issuer shall have funds on
hand legally available to make such payment and (b) the amount of assets
of the Issuer remaining available for distribution to Holders in liquidation of
the Issuer (in either case, the “Liquidation Distribution”).


 


“Guarantee Trustee” means [                                                                              ],
until a Successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee Agreement and thereafter
means each such Successor Guarantee Trustee.


 


“Holder” means any holder, as registered on the
books and records of the Issuer, of any Preferred Securities; provided,
however, that in determining whether the holders of the requisite percentage of
Preferred Securities have given any request, notice, consent or waiver
hereunder, “Holder” shall not include the Guarantor, the Guarantee Trustee or
any Affiliate of the Guarantor or the Guarantee Trustee.


 


“Indenture” means the Indenture dated as of [                                  ],
20[    ] with respect to the Debt Securities, between the
Guarantor and [                                                  ],
as trustee, as the same may be supplemented and amended from time to time.


 


“List of Holders” has the meaning specified in Section 2.2(a).


 


2

















 


“Majority in Liquidation Amount of the Securities”
means, except as provided by the Trust Indenture Act, a vote by the Holder(s),
voting separately as a class, of more than 50% of the aggregate liquidation
amount of all the outstanding Preferred Securities issued by the Issuer.


 


“Officers’ Certificate” means, with respect to any
Person, a certificate signed by (i) the Chairman of the Board, a Vice
Chairman of the Board, the Chief Executive Officer, the Chief Operating
Officer, the President or a Vice President, and (ii) the Chief Financial
Officer, the Treasurer, an Assistant Treasurer, the Controller, the Secretary
or an Assistant Secretary of such Person, delivered to the Guarantee
Trustee.  Any Officer’s Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:


 


(a)  a statement that each officer
signing the Officers’ Certificate has read the covenant or condition and the
definitions relating thereto;


 


(b)  a brief statement of the nature and
scope of the examination or investigation undertaken by each officer in
rendering the Officers’ Certificate;


 


(c)  a statement that each such officer has
made such examination or investigation as, in such officer’s opinion, is
necessary to enable such officer to express an informed opinion as to whether
or not such covenant or condition has been complied with; and


 


(d)  a statement as to whether, in the
opinion of each such officer, such condition or covenant has been complied
with.


 


“Person” means a legal person, including any
individual, corporation, estate, partnership, joint venture, association, joint
stock company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.


 


“Responsible Officer”, when used with respect to the
Guarantee Trustee, means the chairman or any vice-chairman of the board of
directors, the chairman or any vice-chairman of the executive committee of the
board of directors, the chairman of the trust committee, the president, any
vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller or any assistant controller or any
other officer of the Guarantee Trustee customarily performing functions similar
to those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.


 


“Successor
Guarantee Trustee” means a successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.1.


 


“Trust Indenture Act” means the Trust Indenture Act
of 1939, as amended.


 


3

















 


ARTICLE II


TRUST INDENTURE ACT


 


SECTION 2.1    Trust
Indenture Act; Application.


 


(a)  This Guarantee Agreement is subject
to the provisions of the Trust Indenture Act that are required to be part of
this Guarantee Agreement and shall, to the extent applicable, be governed by
such provisions.


 


(b)  If and to the extent that any
provision of this Guarantee Agreement limits, qualifies or conflicts with the
duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act,
such imposed duties shall control.


 


SECTION 2.2    List
of Holders.


 


(a)  The Guarantor
shall furnish or cause to be furnished to the Guarantee Trustee (unless the
Guarantee Trustee is acting as Security Registrar with respect to the Debt
Securities under the Indenture) (i) semi-annually, not later than January 15
and July 15 in each year, a list, in such form as the Guarantee Trustee
may reasonably require of the names and addresses of the Holders (“List of
Holders”) as of the preceding December 31 or June 30, as the case may
be, and (ii) at such other times as the Guarantee Trustee may request in
writing, within 30 days after the receipt by the Guarantor of any such request,
a List of Holders as of a date not more than 15 days prior to the time such
list is furnished, in each case to the extent such information is in the
possession or control of the Guarantor and is not identical to a previously
supplied list of Holders or has not otherwise been received by the Guarantee
Trustee.  Notwithstanding the foregoing,
the Guarantor shall not be obligated to provide such List of Holders at any
time the Preferred Securities are represented by one or more Global Securities
(as defined in the Indenture).  The
Guarantee Trustee may destroy any List of Holders previously  given to it on receipt of a new List of Holders.


 


(b)  The Guarantee Trustee shall comply
with its obligations under Section 311(a), Section 311(b) and Section 312(b) of
the Trust Indenture Act.


 


SECTION 2.3    Reports
by the Guarantee Trustee.  Within 60 days
of May 15 of each calendar year, the Guarantee Trustee shall provide to
the Holders such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313
of the Trust Indenture Act.  The
Guarantee Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.


 


SECTION 2.4    Periodic
Reports to Guarantee Trustee.  The
Guarantor shall provide to the Guarantee Trustee, the Securities and Exchange
Commission and the Holders such documents, reports and information, if any, as
required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.


 


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SECTION 2.5    Evidence
of Compliance with Conditions Precedent. 
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section 314(c) of
the Trust Indenture Act.  Any certificate
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers’ Certificate.


 


SECTION 2.6    Events
of Default; Waiver.  The Holders of a
Majority in Liquidation Amount of the Securities may, by vote, on behalf of the
Holders, waive any past default or Event of Default and its consequences.  Upon such waiver, any such default or Event
of Default shall cease to exist, and any default or Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Guarantee Agreement, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent therefrom.


 


SECTION 2.7    Event
of Default; Notice.


 


(a)  The Guarantee Trustee shall, within
90 days after the occurrence of an Event of Default, transmit by mail, first
class postage prepaid, to the Holders, notices of all Events of Default known
to the Guarantee Trustee, unless such defaults have been cured before the
giving of such notice; provided, that, except in the case of a default in the
payment of a Guarantee Payment, the Guarantee Trustee shall be protected in
withholding such notice if and so long as the Board of Directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders.


 


(b)  The Guarantee Trustee shall not be
deemed to have knowledge of any Event of Default unless the Guarantee Trustee
shall have received written notice, or a Responsible Officer charged with the
administration of the Trust Agreement shall have obtained written notice, of
such Event of Default.


 


SECTION 2.8    Conflicting
Interests.  The Trust Agreement and the
Indenture shall be deemed to be specifically described in this Guarantee
Agreement for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.


 


ARTICLE III


POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE


 


SECTION 3.1    Powers
and Duties of the Guarantee Trustee.


 


(a)  This Guarantee Agreement shall be
held by the Guarantee Trustee for the benefit of the Holders, and the Guarantee
Trustee shall not transfer this Guarantee Agreement to any Person except a
Holder exercising his or her rights pursuant to Section 5.4(iv) or to
a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee
of its appointment to act as Successor Guarantee Trustee.  The right, title and interest of the
Guarantee Trustee shall automatically vest in any Successor Guarantee Trustee,
upon acceptance by such Successor Guarantee Trustee of its appointment hereunder,
and such vesting and cessation of title shall be effective whether or not 


 


5

















 


conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.


 


(b)  If an Event of Default actually
known to the Responsible Officer of the Guarantee Trustee has occurred and is
continuing, the Guarantee Trustee shall enforce this Guarantee Agreement for
the benefit of the Holders.


 


(c)  The Guarantee Trustee, before the
occurrence of any Event of Default and after the curing of all Events of
Default that may have occurred, shall undertake to perform only such duties as
are specifically set forth in this Guarantee Agreement, and no implied
covenants shall be read into this Guarantee Agreement against the Guarantee
Trustee.  In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) and
is actually known to the Responsible Officer of the Guarantee Trustee, the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.


 


(d)  No provision of this Guarantee
Agreement shall be construed to relieve the Guarantee Trustee from liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:


 


(i)            prior to the occurrence of any Event
of Default and after the curing or waiving of all such Events of Default that
may have occurred;


 


(A)          the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee Agreement, and
the Guarantee Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Guarantee
Agreement; and


 


(B)           in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Guarantee Trustee and conforming to
the requirements of this Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof or of the Trust Indenture
Act are specifically required to be furnished to the Guarantee Trustee, the
Guarantee Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Guarantee Agreement;


 


(ii)           the Guarantee Trustee shall not be
liable for any error of judgment made in good faith by a Responsible Officer of
the Guarantee Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment was
made;


 


(iii)          the Guarantee Trustee shall not be
liable with respect to any action 


 


6

















 


taken or omitted to be taken
by it in good faith in accordance with the direction of the Holders of not less
than a Majority in Liquidation Amount of the Securities relating to the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and


 


(iv)          no provision of this Guarantee
Agreement shall require the Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or powers, if the Guarantee
Trustee shall have reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.


 


SECTION 3.2    Certain
Rights of Guarantee Trustee.  (a) Subject
to the provisions of Section 3.1:


 


(i)            The Guarantee Trustee may rely and
shall be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, proxy, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have been signed, sent or presented by the proper party or parties.


 


(ii)           Any direction or act of the Guarantor
contemplated by this Guarantee Agreement shall be sufficiently evidenced by an
Officers’ Certificate unless otherwise prescribed herein.


 


(iii)          Whenever, in the administration of
this Guarantee Agreement, the Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or omitting to take
any action hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its part, request
and rely upon an Officers’ Certificate which, upon receipt of such request from
the Guarantee Trustee, shall be promptly delivered by the Guarantor.


 


(iv)          The Guarantee Trustee may consult with
legal counsel, and the written advice or opinion of such legal counsel with
respect to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be taken by
it hereunder in good faith and in accordance with such advice or opinion. Such
legal counsel may be legal counsel to the Guarantor or any of its Affiliates
and may be one of its employees.  The
Guarantee Trustee shall have the right at any time to seek instructions
concerning the administration of this Guarantee Agreement from any court of
competent jurisdiction.


 


(v)           The Guarantee Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or 


 


7

















 


direction of any Holder,
unless such Holder shall have provided to the Guarantee Trustee such adequate
security and indemnity as would satisfy a reasonable person in the position of
the Guarantee Trustee, against the costs, expenses (including attorneys’ fees
and expenses) and liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances as may be requested
by the Guarantee Trustee; provided that nothing contained in this Section 3.2(a)(v) shall
be taken to relieve the Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and powers vested in it by this
Guarantee Agreement and use the same degree of care and skill in the exercise
thereof as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.


 


(vi)          The Guarantee Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit.


 


(vii)         The Guarantee Trustee may execute any
of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys or any Affiliate, and the
Guarantee Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it hereunder.


 


(viii)        Whenever in the administration of this
Guarantee Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (A) may request instructions from
the Holders of a Majority in Liquidation Amount of the Securities, (B) may
refrain from enforcing such remedy or right or taking such other action until
such instructions are received, and (C) shall be protected in acting in
accordance with such instructions.


 


(ix)           Any action taken by the Guarantee
Trustee or its agents hereunder shall bind the Holders, and the signature of
the Guarantee Trustee or its agents alone shall be sufficient and effective to
perform any such action.  No third party
shall be required to inquire as to the authority of the Guarantee Trustee to so
act or as to its compliance with any of the terms and provisions of this
Guarantee Agreement both of which shall be conclusively evidenced by the
Guarantee Trustee’s or its agent’s taking such action.


 


(b)  No provision of this Guarantee
Agreement shall be deemed to impose any duty or obligation on the Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Guarantee Trustee shall be unqualified or incompetent
in accordance with applicable law to perform any such act or acts or to
exercise any such right, power, duty or obligation.  No permissive power or authority available to
the 


 


8

















 


Guarantee Trustee shall be construed to be a duty to act in accordance
with such power and authority.


 


SECTION 3.3    Indemnity.  The Guarantor agrees to indemnify the
Guarantee Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on the part of the Guarantee
Trustee arising out of or in connection with the acceptance or administration
of this Guarantee Agreement, including the reasonable costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.  The Guarantee Trustee will not claim or exact
any lien or charge on any Guarantee Payment as a result of any amount due to it
under this Guarantee Agreement.


 


ARTICLE IV


GUARANTEE TRUSTEE


 


SECTION 4.1    Guarantee
Trustee; Eligibility.  (a) There
shall at all times be a Guarantee Trustee which shall:


 


(i)            not be an Affiliate of the
Guarantor; and


 


(ii)           be a Person that is eligible pursuant
to the Trust Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000, and shall be a corporation meeting the
requirements of Section 310(a) of the Trust Indenture Act.  If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority, then, for the purposes of this Section and
to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.


 


(b)  If at any time the Guarantee
Trustee shall cease to be eligible to so act under Section 4.1(a), the
Guarantee Trustee shall immediately resign in the manner and with the effect
set out in Section 4.2(c).


 


(c)  If the Guarantee Trustee has or
shall acquire any “conflicting interest” within the meaning of Section 310(b) of
the Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.  The Trust Agreement and
the Indenture shall not be deemed to constitute conflicting interests of the
Guarantee Trustee.


 


SECTION 4.2    Appointment,
Removal and Resignation of the Guarantee Trustee.  (a) Subject to Section 4.2(b) the
Guarantee Trustee may be appointed or removed without cause at any time by the
Guarantor.


 


(a)  The Guarantee Trustee shall not be
removed in accordance with Section 4.2(a) until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the
Guarantor.


 


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(b)  The Guarantee Trustee appointed to
office hereunder shall hold office until a Successor Guarantee Trustee shall
have been appointed or until its removal or resignation.  The Guarantee Trustee may resign from office (without
need for prior or subsequent accounting) by an instrument in writing executed
by the Guarantee Trustee and delivered to the Guarantor, which resignation
shall not take effect until a Successor Guarantee Trustee has been appointed
and has accepted such appointment by an instrument in writing executed by such
Successor Guarantee Trustee and delivered to the Guarantor and the resigning
Guarantee Trustee.


 


(c)  If no Successor Guarantee Trustee
shall have been appointed and accepted appointment as provided in this Section 4.2
within 60 days after delivery to the Guarantor of an instrument of resignation,
the resigning Guarantee Trustee may petition, at the expense of the Guarantor,
any court of competent jurisdiction for appointment of a Successor Guarantee
Trustee.  Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Guarantee Trustee.


 


ARTICLE V

GUARANTEE


 


SECTION 5.1    Guarantee.  The Guarantor irrevocably and unconditionally
agrees, subject to Section 5.8 and Article 8, to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by or on behalf of the Issuer), as and when due, regardless of any defense,
right of set-off or counter claim which the Issuer may have or assert other
than the defense of payment.  The
Guarantor’s obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.


 


SECTION 5.2    Waiver
of Notice and Demand.  The Guarantor
hereby waives notice of acceptance of the Guarantee Agreement and of any
liability to which it applies or may apply, presentment, demand for payment,
any right to require a proceeding first against the Guarantee Trustee, Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.


 


SECTION 5.3    Obligations
Not Affected.  The obligations,
covenants, agreements and duties of the Guarantor under this Guarantee
Agreement shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:


 


(a)  the release or waiver, by operation
of law or otherwise, of the performance or observance by the Issuer of any
express or implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Issuer;


 


(b)  the extension of time for the
payment by the Issuer of all or any portion of the Distributions, Redemption
Price, Liquidation Distribution or any other sums payable under the terms of
the Preferred Securities or the extension of time for the 


 


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performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions that results from the extension of any interest
payment period on the Debt Securities as so provided in the Indenture);


 


(c)  any failure, omission, delay or
lack of diligence on the part of the Holders to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Holders pursuant to the
terms of the Preferred Securities, or any action on the part of the Issuer
granting indulgence or extension of any kind;


 


(d)  the voluntary or involuntary
liquidation, dissolution, sale of any collateral, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Issuer or any of the assets of the Issuer;


 


(e)  any invalidity of, or defect or
deficiency in, the Preferred Securities;


 


(f)  the settlement or compromise of any
obligation guaranteed hereby or hereby incurred; or


 


(g)  any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of this Section 5.3 that the obligations of
the Guarantor hereunder shall be absolute and unconditional under any and all
circumstances.


 


There shall be no obligation of the Holders or the
Guarantee Trustee to give notice to, or obtain the consent of, the Guarantor
with respect to the happening of any of the foregoing.


 


SECTION 5.4    Rights
of Holders.  The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited with the
Guarantee Trustee to be held for the benefit of the Holders; (ii) the
Guarantee Trustee has the right to enforce this Guarantee Agreement on behalf
of the Holders; (iii) the Holders of a Majority in Liquidation Amount of
the Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of this Guarantee Agreement or to direct the exercise of any trust or
power conferred upon the Guarantee Trustee under this Guarantee Agreement; (iv) any
Holder may institute a legal proceeding directly against the Guarantor to
enforce its rights under this Guarantee Agreement, without first instituting a
legal proceeding against the Guarantee Trustee, the Issuer or any other Person;
and (v) if an Event of Default with respect to the Debt Securities
constituting the failure to pay interest or principal on the Debt Securities on
the date such interest or principal is otherwise payable has occurred and is
continuing, then any Holder shall have the right, which is absolute and
unconditional, to proceed directly against the Guarantor to obtain Guarantee
Payments without first waiting to determine if the Guarantee Trustee has
enforced this Guarantee Agreement or instituting a legal proceeding against the
Issuer, the Guarantee Trustee or any other Person.


 


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SECTION 5.5    Guarantee
of Payment.  This Guarantee Agreement
creates a guarantee of payment and not of collection.  This Guarantee Agreement will not be
discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer) or upon distribution of
Debt Securities to Holders as provided in the Trust Agreement.


 


SECTION 5.6    Subrogation.  The Guarantor shall be subrogated to all (if
any) rights of the Holders against the Issuer in respect of any amounts paid to
the Holders by the Guarantor under this Guarantee Agreement and shall have the
right to waive payment by the Issuer pursuant to Section 5.1; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Guarantee
Agreement, if, at the time of any such payment, any amounts are due and unpaid
under this Guarantee Agreement.  If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Guarantor Trustee for the benefit of the Holders.


 


SECTION 5.7    Independent
Obligations.  The Guarantor acknowledges
that its obligations hereunder are independent of the obligations of the Issuer
with respect to the Preferred Securities and that the Guarantor shall be liable
as principal and debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.3
hereof.


 


SECTION 5.8    Subordination.  The Guarantee Agreement will constitute an
[unsecured] obligation of the Guarantor and will rank [describe priority].  [Each Holder of Preferred Securities, by its
acceptance thereof, agrees to the subordination provisions and other terms of
this Guarantee Agreement.]


 


If an “Event of Default” (as defined in the
Indenture) has occurred and is continuing, the rights of holders of Common
Securities to receive Guarantee Payments under the Common Securities Guarantee
Agreement are subordinate to the rights of the Holders of Preferred Securities
to receive Guarantee Payments under this Guarantee Agreement.


 


ARTICLE VI

COVENANTS


 


SECTION 6.1    Certain
Covenants of the Guarantor.


 


(a)  Guarantor covenants and agrees that
if and so long as (i) the Issuer is the holder of all the Debt Securities,
(ii) a Tax Event (as defined in the Trust Agreement) in respect of the
Issuer has occurred and is continuing and (iii) the Guarantor has elected,
and has not revoked such election, to pay Additional Sums (as defined in the
Trust Agreement) in respect of the Preferred Securities and Common Securities
the Guarantor will pay to the Issuer such Additional Sums.


 


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(b)  The Guarantor covenants and agrees (i) to
maintain directly or indirectly 100% ownership of the Common Securities;
provided that certain successors which are permitted by the Indenture may
succeed to the Guarantor’s ownership of the Common Securities, (ii) not to
voluntarily terminate, wind-up or liquidate the Issuer, except (a) in
connection with a distribution of the Debt Securities to the holders of the
Preferred Securities in liquidation of the Issuer or (b) in connection
with certain mergers, consolidations or amalgamations permitted by the Trust
Agreement, and (iii) to use its reasonable efforts, consistent with the
terms and provisions of the Trust Agreement, to cause the Issuer to remain
classified as a grantor trust for United States Federal income tax purposes.


 


(c)  [other covenants, if applicable].


 


ARTICLE VII

TERMINATION


 


SECTION 7.1    Termination.  This Guarantee Agreement shall terminate as
to each Holder with respect to the Preferred Securities of the Issuer and be of
no further force and effect upon the earliest of (i) full payment of the
redemption price of all Preferred Securities, (ii) distribution of the
Debt Securities of the Guarantor held by the Issuer to the Holders or (iii) full
payment of the amounts payable in accordance with the Trust Agreement upon
liquidation of the Issuer.  Notwithstanding
the foregoing, this Guarantee Agreement will continue to be effective or will
be reinstated, as the case may be, if at any time any Holder must restore
payment of any sums paid under such Preferred Securities or this Guarantee
Agreement.


 


ARTICLE VIII

[SUBORDINATION OF GUARANTEE/SECURITY]


 


[If applicable, this Article will
set forth the subordination and/or security provisions applicable to this
Guarantee Agreement.]


 


ARTICLE IX

MISCELLANEOUS


 


SECTION 9.1    Successors
and Assigns.  All guarantees and
agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders of the Preferred Securities then
outstanding.  Except in connection with a
consolidation, merger or sale involving the Guarantor that is permitted under Article 8
of the Indenture and pursuant to which the assignee agrees in writing to
perform the Guarantor’s obligations hereunder, the Guarantor shall not assign
its obligations hereunder.


 


SECTION 9.2    Amendments.  Except with respect to any changes which do
not adversely affect the rights of the Holders in any material respect (in
which case no consent of the Holders will be required), this Guarantee
Agreement may only be amended with the prior approval of the Holders of not
less than a Majority in Liquidation Amount of the Securities.  The provisions of Article 6 of the Trust
Agreement concerning meetings of the 


 


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Holders shall apply to the giving of such approval.  The Guarantor shall furnish the Guarantee
Trustee with an Officers’ Certificate and an Opinion of Counsel to the effect
that any amendment of this Agreement is authorized and permitted and that all
conditions precedent if any, in this Guarantee Agreement, to the execution and
delivery of such  amendment have been
satisfied.


 


SECTION 9.3    Notices.  Any notice, request or other communication
required or permitted to be given hereunder shall be in writing, duly signed by
the party giving such notice, and delivered, telecopied or mailed by first
class mail as follows:


 


(a)  if given to the Guarantor, to the
address set forth below or such other address as the Guarantor may give notice
of to the Holders:


 


Hospitality
Properties Trust


400
Centre Street


Newton,
Massachusetts 02458


Attention:  Treasurer


 


(b)  if given to the Issuer, in care of
the Guarantee Trustee, at the Issuer’s (and the Guarantee Trustee’s) address
set forth below or such other address as the Guarantee Trustee on behalf of the
Issuer may give notice of to the Holders:


 


HPT
Capital Trust [ ]


c/o
Hospitality Properties Trust


400
Centre Street


Newton,
Massachusetts 02458


Attention:
Treasurer


 


with
a copy to:


 


[Guarantor
Trustee]


[address]


Attention:


 


(c)  if given to any Holder, at the
address set forth on the books and records of the Issuer.


 


All notices hereunder shall be deemed to have been
given when received in person, telecopied with receipt confirmed, or mailed by
first class mail, postage prepaid, except that if a notice or other document is
refused delivery or cannot be delivered because of a changed address of which
no notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.


 


SECTION 9.4    Benefit.  This Guarantee Agreement is solely for the
benefit of the Holders and is not separately transferable from the Preferred
Securities.


 


SECTION 9.5    Interpretation.  In this Guarantee Agreement, unless the context



 


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otherwise requires:


 


(a)  capitalized terms used in this
Guarantee Agreement but not defined in the preamble hereto have the respective
meanings assigned to them in Section 1.1;


 


(b)  a term defined anywhere in this
Guarantee Agreement has the same meaning throughout;


 


(c)  all references to “the Guarantee
Agreement” or “this Guarantee Agreement” are to this Guarantee Agreement as
modified, supplemented or amended from time to time;


 


(d)  all references in this Guarantee
Agreement to Articles and Sections are to Articles and Sections of this
Guarantee Agreement unless otherwise specified;


 


(e)  a term defined in the Trust
Indenture Act has the same meaning when used in this Guarantee Agreement unless
otherwise defined in this Guarantee Agreement or unless the context otherwise
requires;


 


(f)  a reference to the singular
includes the plural and vice versa; and


 


(g)  the masculine, feminine or neuter
genders used herein shall include the masculine, feminine and neuter genders.


 


SECTION 9.6    Governing
Law.  THIS GUARANTEE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.


 


This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.


 


THIS GUARANTEE AGREEMENT is executed as of the day
and year first above written.


 


	
   

  	
  HOSPITALITY
  PROPERTIES TRUST

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  as
  Guarantee Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


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