Exhibit
10.23


 


AMENDED AND RESTATED
CONSOLIDATED GUARANTY AGREEMENT


 


THIS AMENDED AND RESTATED CONSOLIDATED
GUARANTY AGREEMENT (this “AGREEMENT”) is made and given as of February 16,
2005, by INTERCONTINENTAL HOTELS GROUP PLC, a corporation organized and existing
under the laws of England and Wales (the “GUARANTOR”), for the benefit of HPT
TRS IHG-1, INC., a Maryland corporation (together with its successors and
assigns, “TRS1”), HPT TRS IHG-2, INC., a Maryland corporation (together with
its successors and assigns, “TRS2”), HPT IHG PR, INC., a Puerto Rico
corporation (together with its successors and assigns, “LANDLORD”), and
HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust (together
with its successors and assigns, “TRUST”; and Trust together with TRS1, TRS2
and Landlord, collectively, “HPT”).


 


W I T N E S S E T H :


 


WHEREAS, the Guarantor entered into a certain
Guaranty Agreement dated as of July 1, 2003 as amended by a certain First
Amendment to Guaranty Agreement dated as of September 18, 2003 (the “ORIGINAL
STAYBRIDGE GUARANTY”); and


 


WHEREAS, the Guarantor entered into a certain
Guaranty Agreement dated as of October 27, 2003 (the “ORIGINAL CANDLEWOOD
GUARANTY”; and the Original Candlewood Guaranty together with the Original
Staybridge Guaranty, collectively, the “ORIGINAL GUARANTIES”); and


 


WHEREAS, it is a condition precedent to
Landlord entering into the PR Lease (as hereinafter defined) and TRS2 entering
into the New Management Agreement (as hereinafter defined) and the consummation
of certain other transactions contemplated by the Transaction Documents (as
defined in the New Management Agreement) that the Guarantor enter into this
Agreement; and


 


WHEREAS, the transactions contemplated by the
Guaranteed Agreements (as hereinafter defined) and the Transaction Documents
are of direct material benefit to the Guarantor;


 


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


 


1.                                       CERTAIN
TERMS. Capitalized terms used but not defined herein have the meaning ascribed
thereto in the New Management


 





















 


Agreement. The following terms as used in this Agreement shall have the
meanings set forth below:


 


“ACCOUNTING PRINCIPLES” shall mean generally
accepted accounting principles, as adopted in the United States of America,
consistently applied or, if the Guarantor’s principal place of business is the
United Kingdom, generally accepted accounting principles, as adopted in the
United Kingdom, consistently applied.


 


“BASE GUARANTEED AMOUNT” shall mean the sum
of One Hundred Twenty Five Million Dollars ($125,000,000).


 


“CANDLEWOOD MANAGEMENT AGREEMENT” shall mean
that certain Management Agreement, dated as of October 27, 2003, between
TRS1 and Existing Manager, as the same may be amended, modified, supplemented,
or otherwise altered from time to time.


 


“COLLATERAL AGENCY AGREEMENT” shall mean a
written agreement, in form and substance reasonably acceptable to HPT, among
HPT, the Guarantor and the Collateral Agent pursuant to which the Collateral
Agent shall agree to hold any cash delivered to such Collateral Agent pursuant
to the terms of this Agreement as collateral agent on behalf of HPT, as the
same may hereafter be amended, restated, modified, supplemented, or otherwise
altered. Among other things, the Collateral Agency Agreement shall provide that
(a) the Collateral Agent shall look solely to the Guarantor for any amounts
owed to the Collateral Agent in connection with such agreement, (b) the
Collateral Agent shall not offset any amount owed to the Collateral Agent
against the cash delivered to it pursuant to the Collateral Agency Agreement
and this Agreement, (c) the Collateral Agent shall hold such cash as trust
funds and not commingle such cash with any assets of the Collateral Agent and
(d) HPT shall be entitled to apply any cash collateral held by the Collateral
Agent to the overdue obligations of the Guarantor hereunder in such order and at
such times as HPT may determine in its sole judgment.


 


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


 


“COVERAGE DATE” shall mean the date which is
the day after the second consecutive calendar year for which each of the


 


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following conditions has been satisfied: (a) the Priority Coverage
Ratio under the Candlewood Management Agreement has equaled or exceeded 1.3;
(b) the Staybridge Priority Coverage Ratio has equaled or exceeded 1.3; and (c)
the quotient of (i) the sum of the numerators used in calculating both the PR
Rent Coverage Ratio under this Agreement and the Priority Coverage Ratio under
the New Management Agreement, divided by (ii) the sum of the denominators used
in calculating both the PR Rent Coverage Ratio under this Agreement and the Priority
Coverage Ratio under the New Management Agreement is equal to or exceeds 1.3.


 


“DOLLARS” and “$” shall mean dollars in lawful
currency of the United States of America.


 


“EXISTING MANAGER” shall mean
Intercontinental Hotels Group Resources, Inc.


 


“GUARANTEED AGREEMENTS” shall mean the
Management Agreements and the PR Lease, collectively.


 


“GUARANTEED OBLIGATIONS” shall mean the
payment to TRS1, TRS2, Landlord and Trust, as applicable, of: (a) all of the
Owner’s First Priority as and when due under the Candlewood Management
Agreement determined without respect to Gross Revenue thereunder or Operating
Profits thereunder; (b) all of the Owner’s First Priority as and when due under
the New Management Agreement determined without respect to Gross Revenue
thereunder or Operating Profits thereunder; (c) all of the Owner’s Priority as
and when due under the Staybridge Management Agreement determined without
respect to Gross Revenue thereunder or Operating Profits thereunder; (d) all of
the Minimum Rent as and when due under the PR Lease; and (e) any and all
liquidated damages due to TRS1, TRS2 or Landlord under the Guaranteed
Agreements.


 


“MANAGEMENT AGREEMENTS” shall mean the
Staybridge Management Agreement, the Candlewood Management Agreement and the
New Management Agreement, collectively.


 


“MANAGERS” shall mean the Existing Manager
and the New Manager, collectively.


 


“NEW CANDLEWOOD GUARANTY” shall mean a
Guaranty Agreement made by the Guarantor in favor of TRS1 and HPT and otherwise
in the form attached hereto as EXHIBIT A.


 


“NEW GUARANTIES” shall mean the New
Candlewood Guaranty and the New Staybridge Guaranty, collectively.


 


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“NEW MANAGEMENT AGREEMENT” shall mean that
certain Management Agreement dated as of the date hereof between TRS2 and New
Manager, as the same may be amended, modified, supplemented, or otherwise
altered.


 


“NEW MANAGER” shall mean IHG Management
(Maryland) LLC.


 


“NEW PORTFOLIO COVERAGE DATE” shall mean the
date which is the day after the second (2nd) consecutive calendar year for
which the quotient of (i) the sum of the numerators used in calculating both
the PR Rent Coverage Ratio under this Agreement and the Priority Coverage Ratio
under the New Management Agreement, divided by (ii) the sum of the denominators
used in calculating both the PR Rent Coverage Ratio under this Agreement and
the Priority Coverage Ratio under the New Management Agreement is equal to or
exceeds 1.3.


 


“NEW STAYBRIDGE GUARANTY” shall mean a
Guaranty Agreement made by the Guarantor in favor of TRS1 and HPT and otherwise
in the form attached hereto as EXHIBIT B.


 


“OUTSTANDING BALANCE” shall mean, from time
to time, the Base Guaranteed Amount, less the excess of the aggregate amount
paid by the Guarantor under SECTION 3 hereof over the sum of the aggregate
of any amounts reimbursed to the Guarantor pursuant to the terms of the
Management Agreements.


 


“PR ADDITIONAL RENT” shall have the meaning
given to the term “Additional Rent” in the PR Lease.


 


“PR GUARANTY” shall mean that certain
Guaranty Agreement of even date herewith from PR Tenant to TRS2 and Trust, as
the same may hereafter be amended, restated, modified, supplemented, or
otherwise altered.


 


“PR OPERATING COSTS” shall have the meaning
given to the term “Operating Costs” in the PR Lease.


 


“PR RENT COVERAGE RATIO” shall mean for any
period, the quotient of (a) the excess of PR Total Hotel Sales over the sum of
(i) PR Operating Costs (other than PR Minimum Rent and PR Additional Rent) and
(ii) an imputed reserve for Capital Expenses equal to five percent (5%) of
Total Hotel Sales for such period, divided by (b) the sum of PR Minimum Rent
for such period.


 


“PR MINIMUM RENT” shall have the meaning
given to the term “Minimum Rent” in the PR Lease.


 


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“PR TENANT” shall mean the tenant under the
PR Lease.


 


“PR TOTAL HOTEL SALES” shall have the meaning
given to the term “Total Hotel Sales” in the PR Lease.


 


“PROVIDE COLLATERAL” or “PROVIDED COLLATERAL”
shall mean:


 


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


 


(b)                                 the deposit of cash
equal to the then Outstanding Balance with the Collateral Agent to be held by
the Collateral Agent in accordance with the Collateral Agency Agreement
provided:(i) the Collateral Agency Agreement has been executed and delivered by
the parties thereto; (ii) HPT has a perfected first priority security interest
in any cash delivered to the Collateral Agent; (iii) HPT has received favorable
opinions of counsel, in form and substance reasonably satisfactory to HPT, with
respect to such perfected first priority interest, the valid existence and good
standing of the other parties to the Collateral Agency Agreement, the due
execution and delivery thereof by such other parties, the enforceability of the
Collateral Agency Agreement against such parties, and that any cash held by the
Collateral Agent pursuant to the Collateral Agency Agreement shall not be “property
of the estate” of Collateral Agent should any event described in SECTIONS
17.1(a), (b) or (c) of the New Management Agreement shall occur with respect to
the Collateral Agent; or


 


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


 


provided, however, the Guarantor shall not be deemed to have Provided
Collateral if at any time the Outstanding Balance exceeds the sum of (i) the
then remaining balance drawable under the Satisfactory Letter of Credit or the
balance of the cash deposited by the Guarantor hereunder, PLUS (ii) proceeds of
any Satisfactory Letter of Credit or cash deposited hereunder, in either case, applied
to the Guaranteed Obligations.


 


“RATING AGENCIES” shall mean, collectively,
Standards & Poor’s Rating Services or its successors and Moody’s Investor
Services, Inc. or its successors; PROVIDED, HOWEVER, if the Rating Agencies (i)
cease operations without successors or (ii) cease to issue credit ratings, “Rating
Agencies” shall mean a nationally recognized organization periodically issuing
ratings


 


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of the financial strength and/or credit of United States domestic and international
banking institutions reasonably agreed to by HPT and the Guarantor.


 


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


 


“SATISFACTORY LETTER OF CREDIT” shall mean a
clean irrevocable letter of credit in form and substance reasonably
satisfactory to HPT in an amount equal to the Outstanding Balance issued by a
bank with a credit rating of not less than A2/A (or, if after the date hereof
the 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) from
the Rating Agencies, having an expiration date of not earlier than one year
after the date on which it was issued and which permits for partial draws.


 


“SEVERANCE DATE” shall have the meaning given
such term in SECTION 10 of this Agreement.


 


“STAYBRIDGE MANAGEMENT AGREEMENT” shall mean
that certain Management Agreement, dated as of July 1, 2003, between TRS1
and Existing Manager, as the same may be amended, modified, supplemented, or
otherwise altered from time to time.


 


“STAYBRIDGE PRIORITY COVERAGE RATIO” shall
mean, for any period, the ratio of (a) the excess of Gross Revenue under the
Staybridge Management Agreement for such period over the sum of the amounts
distributed or applied for such period pursuant to SECTIONS 10.1(a), (b)
(determined as though the Reserve Percentage thereunder for the Expansion
Hotels (as defined in the Staybridge Management Agreement) was at all times
five percent (5%)), (e), (g), (h), (i), (k) AND (l) of the Staybridge
Management Agreement, to (b) the sum for such period of Owner’s Priority under
that Agreement and Owner’s Percentage Priority under that Agreement.


 


“SUBSTITUTE GUARANTOR” shall mean a Person
who assumes the Guarantor’s obligations hereunder in accordance with the terms
of SECTION 2.7 below and is either (a) a Person who satisfies the Rating
Agencies’ requirements for a single purpose bankruptcy remote entity who has
Provided Collateral or (b) a Person(s) with (i) a tangible net worth determined
in accordance with the Accounting Principles 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 Hundred


 


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Million Dollars (exclusive of any note, instrument, security or claim
issued by, against or in any way dependent on the credit of, an Affiliate of
Guarantor).


 


2.                                       REPRESENTATIONS
AND COVENANTS. The Guarantor represents, warrants, covenants and agrees that:


 


2.1                                 VALIDITY OF AGREEMENT.
The Guarantor has duly and validly executed and delivered this Agreement; this
Agreement constitutes the legal, valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws of general application affecting the rights and
remedies of creditors; and the execution, delivery and performance of this
Agreement have been duly authorized by all requisite action of the Guarantor
and such execution, delivery and performance by the Guarantor will not result
in any breach of the terms, conditions or provisions of, or conflict with or
constitute a default under, or result in the creation of any lien, charge or
encumbrance upon any of the property or assets of the Guarantor pursuant to the
terms of, any indenture, mortgage, deed of trust, note, other evidence of
indebtedness, agreement or other instrument to which the Guarantor is a party
or 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, judgment or decree of any court applicable to the Guarantor
or any order or other public regulation of any governmental commission, bureau
or administrative agency applicable to the Guarantor.


 


2.2                                 PAYMENT OF EXPENSES.
The Guarantor agrees, as principal obligor and not as guarantor only, to pay to
HPT forthwith, upon demand, in immediately available Federal funds, all costs
and expenses (including court costs and reasonable legal expenses) incurred or
expended by HPT in connection with the enforcement of this Agreement, together
with interest at the Interest Rate on amounts recoverable under this Agreement
from the time such amounts become due until payment.


 


2.3                                 REPORTS. The Guarantor
shall timely deliver to HPT the Consolidated Financials required under the
Guaranteed Agreements and otherwise comply with the terms of the Guaranteed
Agreements applicable to it.


 


2.4                                 FINANCIAL CONDITION OF
GUARANTOR; STATUS OF GUARANTOR. So long as the Guarantor’s obligations under SECTION 3
below are outstanding, unless the Guarantor shall have Provided Collateral to
secure its obligations hereunder:


 


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


 


(b)                                 The Guarantor shall
not engage in any Reorganization unless following such Reorganization it has
(i) a tangible net worth determined in accordance with the Accounting
Principles in an amount 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 Hundred Million Dollars ($100,000,000) (exclusive of any note,
instrument, security or claim issued by, against or in any way dependent on the
credit of, an Affiliate of Guarantor).


 


2.5                                 SECURITY.


 


(a)                                  Upon the termination
of the Guarantor’s obligations under SECTION 3 or if the Outstanding
Balance equals zero dollars ($0), HPT will return to the Guarantor any
Satisfactory Letter of Credit previously delivered to HPT or any unapplied cash
collateral then being held by HPT hereunder and shall direct the Collateral
Agent to return any cash being held by it under the Collateral Agency Agreement
to the Guarantor.


 


(b)                                 HPT shall be entitled
to draw upon any Satisfactory Letter of Credit delivered to it (i) for the full
amount thereof if at any time there is less than thirty (30) days until the
expiry date of such Satisfactory Letter of Credit; (ii) for the full amount
thereof if the bank that issued such Satisfactory 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 Agencies changes in a material way, their then
equivalents in HPT’s reasonable judgment) from the Rating Agencies and such
satisfactory Letter of Credit shall not have been replaced within thirty (30)
days with a new Satisfactory Letter of Credit delivered to HPT; or (iii) to the
extent and in the amounts then due and payable hereunder, if the Guarantor
shall fail to pay or perform any of its obligations under this Agreement in
accordance with the terms hereof.


 


(c)                                  HPT shall be entitled
to apply any cash collateral held by it or the Collateral Agent to the overdue
obligations of the Guarantor hereunder in such order and at such times as HPT
may determine in its sole judgment. Any cash collateral held by HPT shall not
be commingled with its other funds, and shall be invested, at the Guarantor’s
risk, in interest bearing


 


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investments reasonably acceptable to the Guarantor. Any interest on
such cash collateral, and any losses in such investments, shall belong to IHG.


 


2.6                                 LEGAL EXISTENCE. The
Guarantor shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence. The Guarantor has
appointed attorneys Alston & Bird LLP, having an address at 1201 West
Peachtree Street, Atlanta, Georgia 30309-3424, Attn: Managing Partner as its
agent for service of process. The Guarantor acknowledges and agrees that
service of process on such agent shall constitute service of process on
Guarantor with respect to any and all claims hereunder, under the Guaranteed
Agreements or under any Transaction Document.


 


2.7                                 SUBSTITUTE GUARANTOR.
The then Guarantor (the “DEPARTING GUARANTOR”) shall be released from
obligations under SECTION 3 hereof on the following terms and conditions:


 


(a)                                  a Substitute
Guarantor shall assume pursuant to a written instrument satisfactory to HPT all
of the Guarantor’s obligations hereunder; and


 


(b)                                 HPT shall receive an
opinion of counsel satisfactory to HPT with respect to, among other things, the
existence and good standing of the Substitute Guarantor and the due execution,
delivery and enforceability of such assumption.


 


Upon the satisfaction of the foregoing
conditions and the expiration of all applicable preference or similar periods,
HPT shall deliver a release to the Departing Guarantor of its obligations under
SECTION 3 hereof 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 Accounting
Principles 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
Hundred Million Dollars (exclusive of any note, instrument, security or claim
issued by, against or in any way dependent on the credit of, an Affiliate of
Guarantor), HPT shall return to the Departing Guarantor any letter of credit or
cash delivered by the Departing Guarantor and held by HPT hereunder and shall
direct the Collateral Agent to return to the Departing Guarantor any cash
delivered by the Departing Guarantor and held by such Collateral Agent pursuant
to the terms of the Collateral Agency Agreement.


 


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3.                                       GUARANTEE.


 


(a)                                  The Guarantor hereby
unconditionally guarantees that the Guaranteed Obligations which become due and
payable shall be 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 any mandatory or voluntary prepayment pursuant to any
Guaranteed Agreement, or otherwise.


 


(b)                                 This
guarantee is a guarantee of payment and not of collectibility and is absolute
and in no way conditional or contingent. In case any part of the Guaranteed
Obligations shall not have been paid when due and payable or performed at the
time performance is required, subject to any applicable cure periods, the
Guarantor shall, pay or cause to be paid to HPT the amount thereof as is then
due and payable and unpaid (including interest and other charges, if any, due
thereon through the date of payment in accordance with the applicable provisions
of the Transaction Documents) or perform or cause to be performed such
obligations in accordance with the Transaction Documents. Simultaneously with
the giving of any notice of default to the Managers or PR Tenant under the Guaranteed
Agreements, TRS1, TRS2 or Landlord, as applicable, shall give a copy of such
notice to the Guarantor. TRS1, TRS2 or Landlord, as applicable, shall accept
any cure of such default by the Guarantor provided such cure is completed within
the applicable cure period under the applicable Guaranteed Agreement.


 


4.                                       UNENFORCEABILITY
OF GUARANTEED OBLIGATIONS, ETC. If the Managers or PR Tenant are for any reason
under no legal obligation to discharge any of the Guaranteed Obligations, or if
any other moneys included in the Guaranteed Obligations have become
unrecoverable from the Managers or PR Tenant by operation of law or for any
other reason, including, without limitation, the invalidity or irregularity in
whole or in part of any Guaranteed Obligation or of any Guaranteed Agreement or
any limitation on the liability of the Managers or PR Tenant thereunder or any
limitation on the method or terms of payment thereunder which may now or
hereafter be caused or imposed in any manner whatsoever, the guarantees
contained in this Agreement shall nevertheless remain in full force and effect
in accordance with the terms set forth herein and shall be binding upon the
Guarantor to the same extent as if the Guarantor at all times had been the
principal debtor and obligor on all such Guaranteed Obligations.


 


5.                                       ADDITIONAL
GUARANTEES. This Agreement shall be in addition to any other guarantee or other
security for the Guaranteed Obligations and it shall not be prejudiced or


 


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rendered unenforceable by the invalidity of any such other guarantee or
security or by any waiver, amendment, release or modification thereof.


 


6.                                       CONSENTS AND
WAIVERS, ETC. The Guarantor hereby acknowledges receipt of correct and complete
copies of each of the Guaranteed Agreements and consents to all of the terms
and provisions thereof, as the same may be from time to time hereafter amended
or changed in accordance therewith, and waives, to the extent the Guarantor lawfully
may do so, (a) presentment, demand for payment, and protest of nonpayment, of
any of the Guaranteed Obligations, (b) notice of acceptance of this Agreement
and of diligence, presentment, demand and protest, (c) notice of any default
hereunder and any default, breach or nonperformance under the Guaranteed
Agreements or a Manager Event of Default or Manager Default under any
Management Agreement or an Event of Default under the PR Lease except as
expressly provided in SECTION 3, (d) notice of the terms, time and place
of any private or public sale of collateral held as security for the Guaranteed
Obligations, (e) demand for performance or observance of, and any enforcement
of any provision of, or any pursuit or exhaustion of rights or remedies against
the Managers, or PR Tenant or any other guarantor of the Guaranteed
Obligations, under or pursuant to the Guaranteed Agreements, or any agreement
directly or indirectly relating thereto and any requirements of diligence or
promptness on the part of the holders of the Guaranteed Obligations in
connection therewith, and (f) any and all demands and notices of every kind and
description with respect to the foregoing or which may be required to be given
by any statute or rule of law.


 


7.                                       NO IMPAIRMENT,
ETC. The obligations, covenants, agreements and duties of the Guarantor under
this Agreement shall not be affected or impaired by any assignment or transfer
in whole or in part of any of the Guaranteed Obligations without notice to the
Guarantor, or any waiver by HPT or any holder of any of the Guaranteed
Obligations or by the holders of all of the Guaranteed Obligations of the
performance or observance by the Managers, PR Tenant or any other guarantor of
any of the agreements, covenants, terms or conditions contained in the
Guaranteed Obligations or the Guaranteed Agreements or any indulgence in or the
extension of the time for payment by the Managers, PR Tenant or any other
guarantor of any amounts payable under or in connection with the Guaranteed
Obligations or the Guaranteed Agreements or any other instrument or agreement
relating to the Guaranteed Obligations or of the time for performance by the
Managers, PR Tenant or any other guarantor of any other obligations under or
arising out of any


 


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of the foregoing or the extension or renewal thereof, or the
modification or amendment made with the consent of the Guarantor of any duty,
agreement or obligation of the Managers, PR Tenant or any other guarantor set
forth in any of the foregoing, or the voluntary or involuntary sale or other
disposition of all or substantially all the assets of the Managers, PR Tenant
or any other guarantor or insolvency, bankruptcy, or other similar proceedings
affecting the Managers, PR Tenant or any other guarantor or any assets of the
Managers, PR Tenant or any such other guarantor, or the release or discharge of
the Managers, PR Tenant or any such other guarantor from the performance or
observance of any agreement, covenant, term or condition contained in any of
the foregoing without the consent of the holders of the Guaranteed Obligations
by operation of law.


 


8.                                       REIMBURSEMENT,
SUBROGATION, ETC. The Guarantor hereby covenants and agrees that the Guarantor
will not enforce or otherwise exercise any rights of reimbursement,
subrogation, contribution or other similar rights against the Managers, PR
Tenant or any other person with respect to the Guaranteed Obligations prior to
the irrevocable payment in full of all amounts then due and owing but unpaid
under the Guaranteed Agreements. Until the Guaranteed Obligations have been
satisfied in full, the Guarantor shall not have any right of subrogation, and
the Guarantor waives any defense it may have based upon any election of
remedies by HPT which destroys the Guarantor’s subrogation rights or the
Guarantor’s rights to proceed against the Managers or PR Tenant for reimbursement,
including, without limitation, any loss of rights the Guarantor may suffer by
reason of any rights, powers or remedies of the Managers or PR Tenant in
connection with any anti-deficiency laws or any other laws limiting, qualifying
or discharging the indebtedness to HPT. Until all obligations of the Managers
and PR Tenant pursuant to the Guaranteed Agreements shall have been irrevocably
paid and satisfied in full, the Guarantor waives any right to enforce any
remedy which HPT now has or may in the future have against the Managers, PR
Tenant, any other guarantor or any other person and any benefit of, or any
right to participate in, any security whatsoever now or in the future held by
HPT. Nothing contained in this SECTION 8 shall limit any of Guarantor’s rights
under the Management Agreements.


 


9.                                       DEFEASANCE;
GUARANTY LIMITATIONS. The Guarantor’s obligations under SECTION 3 shall
terminate upon the date on which the Guaranteed Obligations have been paid and
performed in full and all other obligations of the Guarantor to HPT under this
Agreement have been irrevocably satisfied in full; PROVIDED, HOWEVER, the
Guarantor’s obligations under SECTION 3


 


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shall be subject to early termination upon the Coverage Date; PROVIDED
FURTHER, HOWEVER, if at any time, all or any part of any payment applied on
account of the Guaranteed Obligations is or must be rescinded or returned for
any reason whatsoever (including, without limitation, the insolvency,
bankruptcy or reorganization of the Managers or PR Tenant), this Agreement, to
the extent such payment is or must be rescinded or returned, shall be deemed to
have continued in existence notwithstanding any such termination.
Notwithstanding anything contained in this Agreement to the contrary, in no
event shall the Guarantor’s liability under SECTION 3 exceed the
Outstanding Balance.


 


10.                                 SEVERANCE. If the New
Portfolio Coverage Date occurs prior to the Coverage Date, the Guarantor is not
then in default of its obligations under this Agreement and the Guarantor
delivers to HPT and TRS1 executed counterparts of the New Guaranties and an
opinion of counsel satisfactory to Trust with respect to, among other things,
the existence and good standing of the Guarantor and the due execution,
delivery and enforceability of the New Guaranties, then, on the date on which
the New Guaranties and such opinion are delivered (the “SEVERANCE DATE”), the
Guarantor’s obligations under this Agreement shall terminate, subject to the
second proviso contained in SECTION 9 above. Furthermore, if any
Substitute Guarantor has succeeded to the interests of the Guarantor named herein,
then the termination of such Substitute Guarantor’s obligations under this
Agreement shall be further conditioned upon such Substitute Guarantor
satisfying the requirements with respect to a Substitute Guarantor under each
of the New Guaranties, including, without limitation, the obligation to Provide
Collateral under each of the New Guaranties (if applicable). Notwithstanding
the foregoing, the termination of the Guarantor’s obligations under this
Agreement shall not diminish, impair or otherwise affect the Guarantor’s
obligations under the New Guaranties.


 


11.                                 NOTICES. (a) Any and
all notices, demands, consents, approvals, offers, elections and other
communications required or permitted under this Agreement shall be deemed
adequately given if in writing and the same shall be delivered either by hand,
by telecopier with written acknowledgment of receipt (provided a copy thereof
is sent by Federal Express or similar expedited commercial carrier for delivery
on the next business day), or Federal Express or similar expedited commercial
carrier, addressed to the recipient of the notice, postpaid and registered or
certified with return receipt requested (if by


 


13





















 


mail), or with all freight charges prepaid (if by Federal Express or
similar carrier).


 


(b)                                 All notices required
or permitted to be sent hereunder shall be deemed to have been given 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 date of receipt or
refusal, except that whenever under this Agreement a notice is either received
on a day which is not a Business Day or is required to be delivered on or
before a specific day which is not a Business Day, the day of receipt or
required delivery shall automatically be extended to the next Business Day.


 


(c)                                  All such notices
shall be addressed,


 


if to HPT to:


 


c/o Hospitality Properties Trust


400 Centre Street


Newton, Massachusetts  02458


Attn: 
Mr. John G. Murray


[Telecopier No. (617) 969-5730]


 


with a copy to:


 


Sullivan & Worcester LLP


One Post Office Square


Boston, Massachusetts  02109


Attn: 
Warren M. Heilbronner, Esq.


[Telecopier No. (617) 338-2880]


 


if to the Guarantor to:


 


Intercontinental Hotels Group PLC


67 Alma Road


Windsor


Berkshire SL4 3HD


ENGLAND


Attn: 
Company Secretary


Telecopier No. +44 1753 410101


 


14





















 


with a copy to:


 


Intercontinental Hotels Resources Group, Inc.


Three Ravinia Drive


Suite 100


Atlanta, Georgia 30346


Attn: 
Vice President, Asset Management


[Telecopier No. 770-604-5340]


 


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


 


12.                                 SUCCESSORS AND
ASSIGNS. Whenever in this Agreement, any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party, including without limitation the holders, from time to time, of the
Guaranteed Obligations; and all representations, warranties, covenants and
agreements by or on behalf of the Guarantor which are contained in this
Agreement shall inure to the benefit of HPT’s successors and assigns,
including, without limitation, such holders, whether so expressed or not.


 


13.                                 APPLICABLE LAW. Except
as to matters regarding the internal affairs of HPT and issues of or
limitations on any personal liability of the shareholders and trustees of HPT
for obligations of HPT, as to which the laws of the State of Maryland shall govern,
this Agreement 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 York
applicable to contracts between residents of New York which are to be performed
entirely within New York, regardless of (i) where any such instrument is
executed or delivered; or (ii) where any payment or other performance required
by any such instrument is made or required to be made; or (iii) where any
breach of any provision of any such instrument occurs, or any cause of action
otherwise accrues; or (iv) where any action or other proceeding is instituted
or pending; or (v) the nationality, citizenship, domicile, principal place of
business, or jurisdiction of organization or domestication of any party; or
(vi) whether the laws of the forum jurisdiction otherwise would apply the laws
of a jurisdiction other than New York; or (vii) any combination of the
foregoing.


 


15





















 


All actions
and proceedings arising out of or in any way relating to this Agreement shall
be brought, heard, and determined exclusively in an otherwise appropriate
federal or state court located within the State of New York. Guarantor hereby
(i) submits to the exclusive jurisdiction of any New York federal or state
court of otherwise competent jurisdiction for the purpose of any action or
proceeding arising out of or relating to this Agreement and (ii) voluntarily
and irrevocably waives, and agrees not to assert by way of motion, defense, or
otherwise in any such action or proceeding, any claim or defense that it is not
personally subject to the jurisdiction of such a court, that such a court lacks
personal jurisdiction over Guarantor or the matter, that the action or
proceeding has been brought in an inconvenient or improper forum, that the
venue of the action or proceeding is improper, or that this Agreement may not
be enforced in or by such a court. To the maximum extent permitted by applicable
law, Guarantor consents to service of process by registered mail, return
receipt requested, or by any other manner provided by law.


 


TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES HERETO WAIVES ITS RIGHTS TO TRIAL BY JURY WITH RESPECT
TO THIS AGREEMENT OR ANY MATTER ARISING IN CONNECTION HEREWITH.


 


14.                                 MODIFICATION OF
AGREEMENT. No modification or waiver of any provision of this Agreement, nor
any consent to any departure by the Guarantor therefrom, shall in any event be
effective unless 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 the purpose for which given. No notice to or demand on the
Guarantor in any case shall entitle the Guarantor to any other or further
notice or demand in the same, similar or other circumstances.


 


15.                                 WAIVER OF RIGHTS BY
HPT. Neither any failure nor any delay on HPT’s part in exercising any right,
power or privilege under this Agreement shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or further
exercise, or the exercise of any other right, power or privilege.


 


16.                                 SEVERABILITY. In case
any one or more of the provisions contained in this Agreement should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any
way be affected or impaired thereby, but this Agreement shall be reformed and
construed and enforced to the maximum extent permitted by applicable law.


 


16





















 


17.                                 ENTIRE CONTRACT. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and shall supersede and take the place of
any other instruments purporting to be an agreement of the parties hereto
relating to the subject matter hereof.


 


18.                                 HEADINGS;
COUNTERPARTS. Headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument, and in pleading or
proving any provision of this Agreement, it shall not be necessary to produce
more than one of such counterparts.


 


19.                                 REMEDIES CUMULATIVE.
No remedy herein conferred upon HPT is intended to be exclusive of any other
remedy, and subject to the limitations set forth in SECTION 9 above, each
and every remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute or otherwise.


 


20.                                 NONLIABILITY OF
TRUSTEES. THE DECLARATION OF TRUST ESTABLISHING TRUST, A COPY OF WHICH,
TOGETHER WITH ALL AMENDMENTS THERETO (THE “DECLARATION”), IS DULY FILED WITH
THE DEPARTMENT 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 NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, TRUST. ALL PERSONS DEALING
WITH TRUST, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF TRUST FOR THE PAYMENT
OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.


 


21.                                 EFFECTIVE DATE. This
Agreement shall be of no force or effect unless and until the Effective Date
occurs.


 


22.                                 PR GUARANTY
OBLIGATIONS. Guarantor acknowledges and agrees that at any time there is any
amount due and otherwise payable under the PR Guaranty, HPT shall be entitled
to treat any payment by Guarantor as a payment by the PR Tenant under the PR
Guaranty and to the extent HPT so elects such payment shall not result in a
reduction in the Outstanding Balance.


 


23.                                 RESTATEMENT. This
Agreement consolidates, supercedes, amends and restates in their entirety the
Original Staybridge Guaranty and the Original Candlewood Guaranty.


 


17





















 


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


 


	
   

  	
  INTERCONTINENTAL HOTELS GROUP PLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard Solomon

  	
   

  
	
   

  	
   

  	
   

  	
  Richard Solomon

  	
   

  
	
   

  	
   

  	
   

  	
  Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steve Porters

  	
   

  
	
   

  	
   

  	
   

  	
  Steve Porters

  	
   

  
	
   

  	
   

  	
   

  	
  Director

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ACKNOWLEDGED AND AGREED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  HPT TRS IHG-1, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ John G. Murray

  	
   

  	
   

  	
   

  
	
  John G.
  Murray

  	
   

  	
   

  
	
  Vice
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  HPT TRS IHG-2, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ John G. Murray

  	
   

  	
   

  	
   

  
	
  John G.
  Murray

  	
   

  	
   

  
	
  Vice
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  HPT IHG PR, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ John G. Murray

  	
   

  	
   

  	
   

  
	
  John G.
  Murray

  	
   

  	
   

  
	
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  HOSPITALITY PROPERTIES TRUST

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ John G. Murray

  	
   

  	
   

  	
   

  
	
  John G.
  Murray

  	
   

  	
   

  
	
  President

  	
   

  	
   

  
											



 


18





















 


EXHIBIT A


 


NEW CANDLEWOOD GUARANTY


 


GUARANTY AGREEMENT


 


THIS GUARANTY AGREEMENT (this “AGREEMENT”) is
made and given as of                 
    , 20    , by INTERCONTINENTAL
HOTELS GROUP PLC, a corporation organized and existing under the laws 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, a Maryland real estate investment trust
(together with its successors and assigns, “TRUST”; and Trust together with the
Tenant, “HPT”).


 


W I T N E S S E T H :


 


WHEREAS, on February     ,
2005, the Guarantor delivered to HPT that certain Amended and Restated
Consolidated Guaranty Agreement (the “CONSOLIDATED GUARANTY”); and


 


WHEREAS, the New Portfolio Coverage Date (as
such term is defined in the Consolidated Guaranty) has occurred and the
Guarantor wishes to terminate its obligations the Consolidated Guaranty in
accordance 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 terminate its obligations under the Consolidated
Guaranty as aforesaid; and


 


WHEREAS, the termination of its obligations
under the Consolidated Guaranty as aforesaid constitute a direct material
benefit to the Guarantor;


 


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


 


1.                                       CERTAIN TERMS.
Capitalized terms used and not otherwise defined in this Agreement shall have
the meanings ascribed to such terms in the Management Agreement (as


 





















 


hereinafter defined). The following terms as used in this Agreement
shall have the meanings set forth below:


 


“ACCOUNTING PRINCIPLES” shall mean generally
accepted accounting principles, as adopted in the United States of America,
consistently applied or, if the Guarantor’s principal place of business is the
United Kingdom, generally accepted accounting principles, as adopted in the
United Kingdom, consistently applied.


 


“COLLATERAL AGENCY AGREEMENT” shall mean a
written agreement, in form and substance reasonably acceptable to HPT, among
HPT, the Guarantor and the Collateral Agent pursuant to which the Collateral
Agent shall agree to hold any cash delivered to such Collateral Agent pursuant
to the terms of this Agreement as collateral agent on behalf of HPT, as the
same may be amended, restated, supplemented or otherwise modified from time to
time with the consent of the parties thereto. Among other things, the
Collateral Agency Agreement shall provide that (a) the Collateral Agent shall
look solely to the Guarantor for any amounts owed to the Collateral Agent in
connection with such agreement, (b) the Collateral Agent shall not offset any
amount owed to the Collateral Agent against the cash delivered to it pursuant
to the Collateral Agency Agreement and this Agreement, (c) the Collateral Agent
shall hold such cash as trust funds and not commingle such cash with any assets
of the Collateral Agent and (d) HPT shall be entitled to apply any cash
collateral held by the Collateral Agent to the overdue obligations of the
Guarantor hereunder in such order and at such times as HPT may determine in its
sole judgment.


 


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


 


“COVERAGE DATE” shall mean the date which is
the day after the second (2nd) consecutive calendar year for which the Priority
Coverage Ratio is equal to or exceeds 1.3.


 


“GUARANTEED OBLIGATIONS” shall mean the
payment to Tenant of (a) all of the Owner’s First Priority as and when due
under the Management Agreement determined without respect to Gross Revenue or
Operating Profits and (b) any and all liquidated damages due to Tenant under
the Management Agreement.


 


A-2





















 


“MANAGEMENT AGREEMENT” shall mean [that
certain Amended and Restated Management Agreement, dated as of January     ,
2005, between TRS1 and Manager] with respect to certain hotels being operated
under the “Candlewood” brand] [that certain Management Agreement, dated as of October 27,
2003, between TRS1 and Manager], as the same may be amended, modified,
supplemented, or otherwise altered from time to time.


 


“MANAGER” shall mean Intercontinental Hotels
Group Resources, Inc.


 


“OUTSTANDING BALANCE” shall mean, from time
to time, Fifty Million Dollars ($50,000,000), less the excess of the aggregate
amount paid by the Guarantor under SECTION 3 hereof over the aggregate of
any amounts reimbursed to the Guarantor pursuant to the terms of the Management
Agreement.


 


“PROVIDE COLLATERAL” or “PROVIDED COLLATERAL”
shall mean:


 


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


 


(b)                                 the deposit of cash
equal to the then Outstanding Balance with the Collateral Agent to be held by
the Collateral Agent in accordance with the Collateral Agency Agreement
provided:(i) the Collateral Agency Agreement has been executed and delivered by
the parties thereto; (ii) HPT has a perfected first priority security interest
in any cash delivered to the Collateral Agent; (iii) HPT has received favorable
opinions of counsel, in form and substance reasonably satisfactory to HPT, with
respect to such perfected first priority interest, the valid existence and good
standing of the other parties to the Collateral Agency Agreement, the due
execution and delivery thereof by such other parties, the enforceability of the
Collateral Agency Agreement against such parties, and that any cash held by the
Collateral Agent pursuant to the Collateral Agency Agreement shall not be “property
of the estate” of Collateral Agent should any event described in SECTIONS
17.1(a), (b) or (c) of the Management Agreement shall occur with respect to the
Collateral Agent; or


 


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


 


provided, however, the Guarantor shall not be deemed to have Provided
Collateral if at any time the Outstanding Balance


 


A-3





















 


exceeds the sum of (i) the then remaining balance drawable under the Satisfactory
Letter of Credit or the balance of the cash deposited by the Guarantor
hereunder, PLUS (ii) proceeds of any Satisfactory Letter of Credit or cash
deposited hereunder, in either case, applied to the Guaranteed Obligations.


 


“RATING AGENCIES” shall mean, collectively,
Standard’s & Poor’s Rating Services or its successor and Moody’s Investor
Services, Inc. or its successors; PROVIDED, HOWEVER, if the Rating Agencies (i)
cease operations without successors or (ii) cease to issue credit ratings, “Rating
Agencies” shall mean a nationally recognized organization periodically issuing
ratings of the financial strength and/or credit of United States domestic and
international banking institutions reasonably agreed to by HPT and the
Guarantor.


 


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


 


“SATISFACTORY LETTER OF CREDIT” shall mean a
clean irrevocable letter of credit in form and substance reasonably
satisfactory to HPT in an amount equal to the Outstanding Balance issued by a
bank with a credit rating of not less than A2/A (or, if after the date hereof
the 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) from
the Rating Agencies, having an expiration date of not earlier than one year
after the date on which it was issued and which permits for partial draws.


 


“SUBSTITUTE GUARANTOR” shall mean a Person
who assumes the Guarantor’s obligations hereunder in accordance with the terms
of SECTION 2.7 below and is either (a) a Person who satisfies the Rating
Agencies’ requirements for a single purpose bankruptcy remote entity who has
Provided Collateral or (b) a Person(s) with (i) a tangible net worth determined
in accordance with the Accounting Principles 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 Hundred Million Dollars (exclusive of any note,
instrument, security or claim issued by, against or in any way dependent on the
credit of, an Affiliate of Guarantor).


 


2.                                       REPRESENTATIONS
AND COVENANTS. The Guarantor represents, warrants, covenants and agrees that:


 


A-4





















 


2.1                                 VALIDITY OF AGREEMENT.
The Guarantor has duly and validly executed and delivered this Agreement; this
Agreement constitutes the legal, valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws of general application affecting the rights and
remedies of creditors; and the execution, delivery and performance of this
Agreement have been duly authorized by all requisite action of the Guarantor
and such execution, delivery and performance by the Guarantor will not result
in any breach of the terms, conditions or provisions of, or conflict with or
constitute a default under, or result in the creation of any lien, charge or
encumbrance upon any of the property or assets of the Guarantor pursuant to the
terms of, any indenture, mortgage, deed of trust, note, other evidence of
indebtedness, agreement or other instrument to which the Guarantor is a party
or 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 Guarantor
or any order or other public regulation of any governmental commission, bureau
or administrative agency applicable to the Guarantor.


 


2.2                                 PAYMENT OF EXPENSES.
The Guarantor agrees, as principal obligor and not as guarantor only, to pay to
HPT forthwith, upon demand, in immediately available Federal funds, all costs
and expenses (including court costs and reasonable legal expenses) incurred or
expended by HPT in connection with the enforcement of this Agreement, together
with interest at the Interest Rate on amounts recoverable under this Agreement
from the time such amounts become due until payment.


 


2.3                                 REPORTS. The Guarantor
shall timely deliver to HPT the Consolidated Financials required under the
Management Agreement and otherwise comply with the terms of the Management
Agreement applicable to it.


 


2.4                                 FINANCIAL CONDITION OF
GUARANTOR; STATUS OF GUARANTOR. So long as the Guarantor’s obligations under SECTION 3
below are outstanding, unless the Guarantor shall have Provided Collateral to
secure its obligations hereunder:


 


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


 


A-5





















 


(b)                                 The Guarantor shall
not engage in any Reorganization unless following such Reorganization it has
(i) a tangible net worth determined in accordance with the Accounting
Principles in an amount 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 Hundred Million Dollars ($100,000,000) (exclusive of any note, instrument,
security or claim issued by, against or in any way dependent on the credit of,
an Affiliate of Guarantor).


 


2.5                                 SECURITY. Upon the
termination of the Guarantor’s obligations under SECTION 3 or if the
excess of aggregate amount paid by the Guarantor under SECTION 3 over the
aggregate of any amounts reimbursed to it pursuant to the terms of the
Management Agreement equals not less than Fifty Million dollars ($50,000,000),
HPT will return to the Guarantor any Satisfactory Letter of Credit previously
delivered to HPT or any unapplied cash collateral then being held by HPT
hereunder and shall direct the Collateral Agent to return any cash being held
by it under the Collateral Agency Agreement to the Guarantor. HPT shall be
entitled to draw upon any Satisfactory Letter of Credit delivered to it (a) for
the full amount thereof if at any time there is less than thirty (30) days
until the expiry date of such Satisfactory Letter of Credit; (b) for the full
amount thereof if the bank that issued such Satisfactory 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 Agencies changes in a material way, their
then equivalents in HPT’s reasonable judgment) from the Rating Agencies and
such satisfactory Letter of Credit shall not have been replaced within thirty
(30) days with a new Satisfactory Letter of Credit delivered to HPT; or (c) to
the extent and in the amounts then due and payable hereunder, if the Guarantor
shall fail to pay or perform any of its obligations under this Guaranty in
accordance with the terms hereof. HPT shall be entitled to apply any cash
collateral held by it or the Collateral Agent to the overdue obligations of the
Guarantor hereunder in such order and at such times as HPT may determine in its
sole judgment. Any cash collateral held by HPT shall not be commingled with its
other funds, and shall be invested, at the Guarantor’s risk, in interest bearing
investments reasonably acceptable to the Guarantor. Any interest on such cash
collateral, and any losses in such investments, shall belong to IHG.


 


2.6                                 LEGAL EXISTENCE. The
Guarantor shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence. The Guarantor has
appointed attorneys Alston & Bird LLP, having an address at 1201


 


A-6





















 


West Peachtree Street, Atlanta, Georgia 30309-3424, Attn: Managing
Partner as its agent for service of process. The Guarantor acknowledges and
agrees that service of process on such agent shall constitute service of
process on Guarantor with respect to any and all claims hereunder or under any
other Transaction Document.


 


2.7                                 SUBSTITUTE GUARANTOR.
The then Guarantor (the “DEPARTING GUARANTOR”) shall be released from
obligations under SECTION 3 hereof on the following terms and conditions:


 


(a)                                  a Substitute
Guarantor shall assume pursuant to a written instrument satisfactory to HPT all
of the Guarantor’s obligations hereunder; and


 


(b)                                 HPT shall receive an
opinion of counsel satisfactory to HPT with respect to, among other things, the
existence and good standing of the Substitute Guarantor and the due execution,
delivery and enforceability of such assumption.


 


Upon the satisfaction of the foregoing
conditions and the expiration of all applicable preference or similar periods,
HPT shall deliver a release to the Departing Guarantor of its obligations
hereunder 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 Accounting
Principles 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
Hundred Million Dollars (exclusive of any note, instrument, security or claim
issued by, against or in any way dependent on the credit of, an Affiliate of
Guarantor), HPT shall return to the Departing Guarantor any letter of credit or
cash delivered by the Departing Guarantor and held by HPT hereunder and shall
direct the Collateral Agent to return to the Departing Guarantor any cash
delivered by the Departing Guarantor and held by such Collateral Agent pursuant
to the terms of the Collateral Agency Agreement.


 


A-7





















 


3.                                       GUARANTEE.


 


(a)                                  The Guarantor hereby
unconditionally guarantees that the Guaranteed Obligations which become due and
payable during the term of the Management Agreement shall be 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 any mandatory or voluntary
prepayment pursuant to any Transaction Document, or otherwise.


 


(b)                                 This guarantee is a
guarantee of payment and not of collectibility and is absolute and in no way
conditional or contingent. In case any part of the Guaranteed Obligations shall
not have been paid when due and payable or performed at the time performance is
required, subject to any applicable cure periods, the Guarantor shall, pay or
cause to be paid to HPT the amount thereof as is then due and payable and
unpaid (including interest and other charges, if any, due thereon through the
date of payment in accordance with the applicable provisions of the Transaction
Documents) or perform or cause to be performed such obligations in accordance
with the Transaction Documents. Simultaneously with the giving of any notice of
default to the Manager under the Management Agreement, Tenant shall give a copy
of such notice to the Guarantor. Tenant shall accept any cure of such default
by the Guarantor provided such cure is completed within the applicable cure
period under the Management Agreement.


 


4.                                       UNENFORCEABILITY
OF GUARANTEED OBLIGATIONS, ETC. If the Manager is for any reason under no legal
obligation to discharge any of the Guaranteed Obligations, or if any other
moneys included in the Guaranteed Obligations have become unrecoverable from
the Manager by operation of law or for any other reason, including, without
limitation, the invalidity or irregularity in whole or in part of any Guaranteed
Obligation or of any Transaction Document or any limitation on the liability of
the Manager thereunder or any limitation on the method or terms of payment
thereunder which may now or hereafter be caused or imposed in any manner
whatsoever, the guarantees contained in this Agreement shall nevertheless
remain in full force and effect in accordance with the terms set forth herein
and shall be binding upon the Guarantor to the same extent as if the Guarantor
at all times had been the principal debtor on all such Guaranteed Obligations.


 


5.                                       ADDITIONAL
GUARANTEES. This Agreement shall be in addition to any other guarantee or other
security for the Guaranteed Obligations and it shall not be prejudiced or
rendered unenforceable by the invalidity of any such other


 


A-8





















 


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


 


6.                                       CONSENTS AND
WAIVERS, ETC. The Guarantor hereby acknowledges receipt of correct and complete
copies of each of the Transaction Documents and consents to all of the terms
and provisions thereof, as the same may be from time to time hereafter amended
or changed in accordance therewith, and waives, to the extent the Guarantor
lawfully may do so, (a) presentment, demand for payment, and protest of
nonpayment, of any of the Guaranteed Obligations, (b) notice of acceptance of
this Agreement and of diligence, presentment, demand and protest, (c) notice of
any default hereunder and any default, breach or nonperformance or a Manager
Event of Default under any of the Guaranteed Obligations or the Transaction
Documents, except as expressly provided in SECTION 3, (d) notice of the
terms, time and place of any private or public sale of collateral held as security
for the Guaranteed Obligations, (e) demand for performance or observance of,
and any enforcement of any provision of, or any pursuit or exhaustion of rights
or remedies against the Manager or any other guarantor of the Guaranteed
Obligations, under or pursuant to the Transaction Documents, or any agreement
directly or indirectly relating thereto and any requirements of diligence or
promptness on the part of the holders of the Guaranteed Obligations in
connection therewith, and (f) any and all demands and notices of every kind and
description with respect to the foregoing or which may be required to be given
by any statute or rule of law.


 


7.                                       NO IMPAIRMENT,
ETC. The obligations, covenants, agreements and duties of the Guarantor under
this Agreement shall not be affected or impaired by any assignment or transfer
in whole or in part of any of the Guaranteed Obligations without notice to the
Guarantor, or any waiver by HPT or any holder of any of the Guaranteed
Obligations or by the holders of all of the Guaranteed Obligations of the
performance or observance by the Manager or any other guarantor of any of the
agreements, covenants, terms or conditions contained in the Guaranteed
Obligations or the Transaction Documents or any indulgence in or the extension
of the time for payment by the Manager or any other guarantor of any amounts
payable under or in connection with the Guaranteed Obligations or the
Transaction Documents or any other instrument or agreement relating to the Guaranteed
Obligations or of the time for performance by the Manager or any other
guarantor of any other obligations under or arising out of any of the foregoing
or the extension or renewal thereof, or the modification or amendment made with
the consent of the Guarantor of any duty, agreement or obligation of the
Manager or any other


 


A-9





















 


guarantor set forth in any of the foregoing, or the voluntary or
involuntary sale or other disposition of all or substantially all the assets of
the Manager or any other guarantor or insolvency, bankruptcy, or other similar
proceedings affecting the Manager or any 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 the performance or observance of any
agreement, covenant, term or condition contained in any of the foregoing
without the consent of the holders of the Guaranteed Obligations by operation
of law.


 


8.                                       REIMBURSEMENT,
SUBROGATION, ETC. The Guarantor hereby covenants and agrees that the Guarantor
will not enforce or otherwise exercise any rights of reimbursement,
subrogation, contribution or other similar rights against the Manager or any
other person with respect to the Guaranteed Obligations prior to the
irrevocable payment in full of all amounts then due and owing but unpaid under
the Management Agreement, and until the Guaranteed Obligations have been satisfied
in full, the Guarantor shall not have any right of subrogation, and the
Guarantor waives any defense it may have based upon any election of remedies by
HPT which destroys the Guarantor’s subrogation rights or the Guarantor’s rights
to proceed against the Manager for reimbursement, including, without limitation,
any loss of rights the Guarantor may suffer by reason of any rights, powers or
remedies of the Manager in connection with any anti-deficiency laws or any
other laws limiting, qualifying or discharging the indebtedness to HPT. Until
all obligations of the Manager pursuant to the Transaction Documents shall have
been irrevocably paid and satisfied in full, the Guarantor waives any right to
enforce any remedy which HPT now has or may in the future have against the Manager,
any other guarantor or any other person and any benefit of, or any right to
participate in, any security whatsoever now or in the future held by HPT.
Nothing contained in this SECTION 8 shall limit any of Guarantor’s rights under
the Management Agreement.


 


9.                                       DEFEASANCE;
GUARANTY LIMITATIONS. The Guarantor’s obligations under SECTION 3 shall
terminate upon the first to occur of (a) the date on which the Guaranteed
Obligations have been paid and performed in full and all other obligations of
the Guarantor to HPT under this Agreement have been irrevocably satisfied in
full and (b) the Coverage Date; PROVIDED, HOWEVER, if at any time, all or any
part of any payment applied on account of the Guaranteed Obligations is or must
be rescinded or returned for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of the Manager), this
Agreement, to the extent such payment is or must


 


A-10





















 


be rescinded or returned, shall be deemed to have continued in
existence notwithstanding any such termination. Notwithstanding anything contained
in this Agreement to the contrary, in no event shall the Guarantor’s liability
under SECTION 3 hereof exceed the sum of Fifty Million Dollars
($50,000,000) less (ii) the aggregate amount paid by the Guarantor under SECTION 3
in excess of the aggregate of any amounts reimbursed to it pursuant to the
terms of the Management Agreement.


 


10.                                 NOTICES. (a) Any and
all notices, demands, consents, approvals, offers, elections and other
communications required or permitted under this Agreement shall be deemed
adequately given if in writing and the same shall be delivered either by hand,
by telecopier with written acknowledgment of receipt (provided a copy thereof
is sent by Federal Express or similar expedited commercial carrier for delivery
on the next business day), or Federal Express or similar expedited commercial
carrier, addressed to the recipient of the notice, postpaid and registered or
certified with return receipt requested (if by mail), or with all freight
charges prepaid (if by Federal Express or similar carrier).


 


(b)                                 All notices required
or permitted to be sent hereunder shall be deemed to have been given 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 date of receipt or
refusal, except that whenever under this Agreement a notice is either received
on a day which is not a Business Day or is required to be delivered on or
before a specific day which is not a Business Day, the day of receipt or required
delivery shall automatically be extended to the next Business Day.


 


(c)                                  All such notices
shall be addressed,


 


if to HPT to:


 


c/o Hospitality Properties Trust


400 Centre Street


Newton, Massachusetts  02458


Attn: 
Mr. John G. Murray


[Telecopier No. (617) 969-5730]


 


with a copy to:


 


Sullivan & Worcester LLP


One Post Office Square


Boston, Massachusetts  02109


Attn: 
Warren M. Heilbronner, Esq.


[Telecopier No. (617) 338-2880]


 


A-11





















 


if to the Guarantor to:


 


Intercontinental Hotels Group PLC


67 Alma Road


Windsor


Berkshire SL4 3HD


ENGLAND


Attn: Company Secretary


Telecopier No. +44 1753 410101


 


with a copy to:


 


Intercontinental Hotels Resources Group, Inc.


Three Ravinia Drive


Suite 100


Atlanta, Georgia 30346


Attn:  Vice
President, Asset Management


[Telecopier No. 770-604-5340]


 


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


 


11.                                 SUCCESSORS AND
ASSIGNS. Whenever in this Agreement, any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party, including without limitation the holders, from time to time, of the
Guaranteed Obligations; and all representations, warranties, covenants and
agreements by or on behalf of the Guarantor which are contained in 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 to matters regarding the internal affairs of HPT and issues of or
limitations on any personal liability of the shareholders and trustees of HPT
for obligations of HPT, as to which the laws of the State of Maryland shall
govern, this Agreement 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
York applicable to contracts between residents of New York which are to be
performed entirely within New York, regardless of (i) where any such instrument
is executed or delivered; or (ii) where any payment or other performance
required by any such


 


A-12





















 


instrument is made or required to be made; or (iii) where any breach of
any provision of any such instrument occurs, or any cause of action otherwise accrues;
or (iv) where any action or other proceeding is instituted or pending; or (v)
the nationality, citizenship, domicile, principal place of business, or jurisdiction
of organization or domestication of any party; or (vi) whether the laws of the
forum jurisdiction otherwise would apply the laws of a jurisdiction other than
Massachusetts; or (vii) any combination of the foregoing.


 


All actions and proceedings arising out of or
in any way relating to this Agreement shall be brought, heard, and determined
exclusively in an otherwise appropriate federal or state court located within
the State of New York. Guarantor hereby (i) submits to the exclusive
jurisdiction of any New York federal or state court of otherwise competent
jurisdiction for the purpose of any action or proceeding arising out of or
relating to this Agreement and (ii) voluntarily and irrevocably waives, and
agrees not to assert by way of motion, defense, or otherwise in any such action
or proceeding, any claim or defense that it is not personally subject to the
jurisdiction of such a court, that such a court lacks personal jurisdiction
over Guarantor or the matter, that the action or proceeding has been brought in
an inconvenient or improper forum, that the venue of the action or proceeding
is improper, or that this Agreement may not be enforced in or by such a court.
To the maximum extent permitted by applicable law, Guarantor consents to
service of process by registered mail, return receipt requested, or by any
other manner provided by law.


 


TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES HERETO WAIVES ITS RIGHTS TO TRIAL BY JURY WITH RESPECT
TO THIS AGREEMENT OR ANY MATTER ARISING IN CONNECTION HEREWITH.


 


13.                                 MODIFICATION OF
AGREEMENT. No modification or waiver of any provision of this Agreement, nor
any consent to any departure by the Guarantor therefrom, shall in any event be
effective unless 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 the purpose for which given. No notice to or demand on the
Guarantor in any case shall entitle the Guarantor to any other or further
notice or demand in the same, similar or other circumstances.


 


14.                                 WAIVER OF RIGHTS BY
HPT. Neither any failure nor any delay on HPT’s part in exercising any right,
power or privilege under this Agreement shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or


 


A-13





















 


further exercise, or the exercise of any other right, power or
privilege.


 


15.                                 SEVERABILITY. In case
any one or more of the provisions contained in this Agreement should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any
way be affected or impaired thereby, but this Agreement shall be reformed and
construed and enforced to the maximum extent permitted by applicable law.


 


16.                                 ENTIRE CONTRACT. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and shall supersede and take the place of
any other instruments purporting to be an agreement of the parties hereto
relating to the subject matter hereof.


 


17.                                 HEADINGS;
COUNTERPARTS. Headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument, and in pleading or
proving any provision of this Agreement, it shall not be necessary to produce
more than one of such counterparts.


 


18.                                 REMEDIES CUMULATIVE.
No remedy herein conferred upon HPT is intended to be exclusive of any other
remedy, and subject to the limitations set forth in SECTION 9 above, each
and every remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or by
statute or otherwise.


 


19.                                 NONLIABILITY OF
TRUSTEES. THE DECLARATION OF TRUST ESTABLISHING TRUST, A COPY OF WHICH,
TOGETHER WITH ALL AMENDMENTS THERETO (THE “DECLARATION”), IS DULY FILED WITH
THE DEPARTMENT 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 NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, TRUST. ALL PERSONS DEALING
WITH TRUST, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF TRUST FOR THE PAYMENT
OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.


 


20.                                 EFFECTIVE DATE. This
Agreement shall be of no force or effect unless and until the Effective Date
occurs.


 


A-14





















 


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


 


	
   

  	
  INTERCONTINENTAL HOTELS GROUP PLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Its:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ACKNOWLEDGED AND AGREED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  HPT TRS IHG-1, INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  HOSPITALITY PROPERTIES TRUST

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  	
   

  	
   

  
									



 


A-15





















 


EXHIBIT B


 


NEW STAYBRIDGE GUARANTY


 


GUARANTY AGREEMENT


 


THIS GUARANTY AGREEMENT (this “AGREEMENT”) is
made and given as of                 
    , 20    , by INTERCONTINENTAL
HOTELS GROUP PLC, a corporation organized and existing under the laws 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, a Maryland real estate investment trust
(together with its successors and assigns, “Trust”; and Trust together with the
Tenant, “HPT”).


 


W I T N E S S E T H :


 


WHEREAS, on February     ,
2005, the Guarantor delivered to HPT that certain Amended and Restated
Consolidated Guaranty Agreement (the “CONSOLIDATED GUARANTY”); and


 


WHEREAS, the New Portfolio Coverage Date (as
such term is defined in the Consolidated Guaranty) has occurred and the
Guarantor wishes to terminate its obligations the Consolidated Guaranty in
accordance 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 terminate its obligations under the Consolidated
Guaranty as aforesaid; and


 


WHEREAS, the termination of its obligations
under the Consolidated Guaranty as aforesaid constitutes a direct material
benefit to the Guarantor;


 


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


 


1.                                       CERTAIN TERMS.
Capitalized terms used and not otherwise defined in this Agreement shall have
the meanings


 





















 


ascribed to such terms in the Management Agreement. The following terms
as used in this Agreement shall have the meanings set forth below:


 


“ACCOUNTING PRINCIPLES” shall mean generally
accepted accounting principles, as adopted in the United States of America,
consistently applied or, if the Guarantor’s principal place of business is the
United Kingdom, generally accepted accounting principles, as adopted in the
United Kingdom, consistently applied.


 


“COLLATERAL AGENCY AGREEMENT” shall mean a
written agreement, in form and substance reasonably acceptable to HPT, among
HPT, the Guarantor and the Collateral Agent pursuant to which the Collateral
Agent shall agree to hold any cash delivered to such Collateral Agent pursuant
to the terms of this Agreement as collateral agent on behalf of HPT, as the
same may be amended, restated, supplemented or otherwise modified from time to
time with the consent of the parties thereto. Among other things, the
Collateral Agency Agreement shall provide that (a) the Collateral Agent shall
look solely to the Guarantor for any amounts owed to the Collateral Agent in
connection with such agreement, (b) the Collateral Agent shall not offset any
amount owed to the Collateral Agent against the cash delivered to it pursuant
to the Collateral Agency Agreement and this Agreement, (c) the Collateral Agent
shall hold such cash as trust funds and not commingle such cash with any assets
of the Collateral Agent and (d) HPT shall be entitled to apply any cash
collateral held by the Collateral Agent to the overdue obligations of the
Guarantor hereunder in such order and at such times as HPT may determine in its
sole judgment.


 


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


 


“COVERAGE DATE” shall mean the date which is
the day after the second (2nd) consecutive calendar year for which the Priority
Coverage Ratio is equal to or exceeds 1.3.


 


“GUARANTEED OBLIGATIONS” shall mean the
payment to Tenant of (a) all of the Owner’s Priority as and when due under the
Management Agreement determined without respect to Gross Revenue or Operating
Profits and (b) any and all liquidated damages due to Tenant under the
Management Agreement.


 


B-2





















 


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


 


“MANAGER” shall mean Intercontinental Hotels
Group Resources, Inc.


 


“OUTSTANDING BALANCE” shall mean, from time
to time, the Seventy Million Dollars ($70,000,000) less the excess of the
aggregate amount paid by the Guarantor under SECTION 3 hereof over the
aggregate amount reimbursed to the Guarantor pursuant to SECTION 10.1(l)
of the Management Agreement.


 


“PROVIDE COLLATERAL” or “PROVIDED COLLATERAL”
shall mean:


 


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


 


(b)                                 the deposit of cash
equal to the then Outstanding Balance with the Collateral Agent to be held by
the Collateral Agent in accordance with the Collateral Agency Agreement
provided:(i) the Collateral Agency Agreement has been executed and delivered by
the parties thereto; (ii) HPT has a perfected first priority security interest
in any cash delivered to the Collateral Agent; (iii) HPT has received favorable
opinions of counsel, in form and substance reasonably satisfactory to HPT, with
respect to such perfected first priority interest, the valid existence and good
standing of the other parties to the Collateral Agency Agreement, the due
execution and delivery thereof by such other parties, the enforceability of the
Collateral Agency Agreement against such parties, and that any cash held by the
Collateral Agent pursuant to the Collateral Agency Agreement shall not be “property
of the estate” of Collateral Agent should any event described in SECTIONS
17.1(a), (b) or (c) of the Management Agreement shall occur with respect to the
Collateral Agent; or


 


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


 


provided, however, the Guarantor shall not be deemed to have Provided
Collateral if at any time the Outstanding Balance exceeds the sum of (i) the
then remaining balance drawable under


 


B-3





















 


the Satisfactory Letter of Credit or the balance of the cash deposited
by the Guarantor hereunder, PLUS (ii) proceeds of any Satisfactory Letter of
Credit or cash deposited hereunder, in either case, applied to the Guaranteed
Obligations.


 


“PRIORITY COVERAGE RATIO” shall mean, for any
period, the ratio of (a) the excess of Gross Revenue for such period over the
sum of the amounts distributed or applied for such period pursuant to SECTIONS
10.1(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 Percentage
Priority.


 


“RATING AGENCIES” shall mean, collectively,
Standard’s & Poor’s Rating Services or its successor and Moody’s Investor
Services, Inc. or its successors; PROVIDED, HOWEVER, if the Rating Agencies (i)
cease operations without successors or (ii) cease to issue credit ratings, “Rating
Agencies” shall mean a nationally recognized organization periodically issuing
ratings of the financial strength and/or credit of United States domestic and international
banking institutions reasonably agreed to by HPT and the Guarantor.


 


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


 


“SATISFACTORY LETTER OF CREDIT” shall mean a
clean irrevocable letter of credit in form and substance reasonably
satisfactory to HPT in an amount equal to the Outstanding Balance issued by a
bank with a credit rating of not less than A2/A (or, if after the date hereof
the 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) from
the Rating Agencies, having an expiration date of not earlier than one year
after the date on which it was issued and which permits for partial draws.


 


“SUBSTITUTE GUARANTOR” shall mean a Person
who assumes the Guarantor’s obligations hereunder in accordance with the terms
of SECTION 2.7 below and is either (a) a Person who satisfies the Rating
Agencies’ requirements for a single purpose bankruptcy remote entity who has
Provided Collateral or (b) a Person(s) with (i) a tangible net worth determined
in accordance with the Accounting Principles 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 Hundred Million Dollars (exclusive of any note,
instrument, security or claim issued by,


 


B-4





















 


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


 


2.                                       REPRESENTATIONS
AND COVENANTS. The Guarantor represents, warrants, covenants and agrees that:


 


2.1                                 VALIDITY OF AGREEMENT.
The Guarantor has duly and validly executed and delivered this Agreement; this
Agreement constitutes the legal, valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws of general application affecting the rights and remedies of
creditors; and the execution, delivery and performance of this Agreement have
been duly authorized by all requisite action of the Guarantor and such
execution, delivery and performance by the Guarantor will not result in any
breach of the terms, conditions or provisions of, or conflict with or
constitute a default under, or result in the creation of any lien, charge or
encumbrance upon any of the property or assets of the Guarantor pursuant to the
terms of, any indenture, mortgage, deed of trust, note, other evidence of
indebtedness, agreement or other instrument to which the Guarantor is a party
or 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 Guarantor
or any order or other public regulation of any governmental commission, bureau
or administrative agency applicable to the Guarantor.


 


2.2                                 PAYMENT OF EXPENSES.
The Guarantor agrees, as principal obligor and not as guarantor only, to pay to
HPT forthwith, upon demand, in immediately available Federal funds, all costs
and expenses (including court costs and reasonable legal expenses) incurred or
expended by HPT in connection with the enforcement of this Agreement, together
with interest at the Interest Rate on amounts recoverable under this Agreement
from the time such amounts become due until payment.


 


2.3                                 REPORTS. The Guarantor
shall timely deliver to HPT the Consolidated Financials required under the
Management Agreement and otherwise comply with the terms of the Management
Agreement applicable to it.


 


2.4                                 FINANCIAL CONDITION OF
GUARANTOR; STATUS OF GUARANTOR. So long as the Guarantor’s obligations under SECTION 3
below are outstanding, unless the Guarantor shall have Provided Collateral to
secure its obligations hereunder:


 


B-5





















 


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


 


(b)                                 The Guarantor shall
not engage in any Reorganization unless following such Reorganization it has
(i) a tangible net worth determined in accordance with the Accounting
Principles in an amount 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 Hundred Million Dollars ($100,000,000) (exclusive of any note,
instrument, security or claim issued by, against or in any way dependent on the
credit of, an Affiliate of Guarantor).


 


2.5                                 SECURITY. Upon the
termination of the Guarantor’s obligations under SECTION 3 or if the
excess of aggregate amount paid by the Guarantor under SECTION 3 over the
aggregate amount reimbursed to it pursuant to Section 10.1(l) of the
Management Agreement equals not less than Fifty Million dollars ($50,000,000),
HPT will return to the Guarantor any Satisfactory Letter of Credit previously
delivered to HPT or any unapplied cash collateral then being held by HPT
hereunder and shall direct the Collateral Agent to return any cash being held
by it under the Collateral Agency Agreement to the Guarantor. HPT shall be
entitled to draw upon any Satisfactory Letter of Credit delivered to it (a) for
the full amount thereof if at any time there is less than thirty (30) days
until the expiry date of such Satisfactory Letter of Credit; (b) for the full
amount thereof if the bank that issued such Satisfactory 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 Agencies changes in a material way, their
then equivalents in HPT’s reasonable judgment) from the Rating Agencies and
such satisfactory Letter of Credit shall not have been replaced within thirty
(30) days with a new Satisfactory Letter of Credit delivered to HPT; or (c) to
the extent and in the amounts then due and payable hereunder, if the Guarantor
shall fail to pay or perform any of its obligations under this Guaranty in
accordance with the terms hereof. HPT shall be entitled to apply any cash
collateral held by it or the Collateral Agent to the overdue obligations of the
Guarantor hereunder in such order and at such times as HPT may determine in its
sole judgment. Any cash collateral held by HPT shall not be commingled with its
other funds, and shall be invested, at the Guarantor’s risk, in interest bearing
investments reasonably acceptable to the


 


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


 


2.6                                 LEGAL EXISTENCE. The
Guarantor shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence. The Guarantor has
appointed attorneys Alston & Bird LLP, having an address at 1201 West
Peachtree Street, Atlanta, Georgia 30309-3424, Attn: Managing Partner as its
agent for service of process. Managing Partner as its agent for service of
process. The Guarantor acknowledges and agrees that service of process on such
agent shall constitute service of process on Guarantor with respect to any and
all claims hereunder or under any other Transaction Document.


 


2.7                                 SUBSTITUTE GUARANTOR.
The then Guarantor (the “DEPARTING GUARANTOR”) shall be released from
obligations under SECTION 3 hereof on the following terms and conditions:


 


(a)                                  a Substitute
Guarantor shall assume pursuant to a written instrument satisfactory to HPT all
of the Guarantor’s obligations hereunder; and


 


(b)                                 HPT shall receive an
opinion of counsel satisfactory to HPT with respect to, among other things, the
existence and good standing of the Substitute Guarantor and the due execution,
delivery and enforceability of such assumption.


 


Upon the satisfaction of the foregoing
conditions and the expiration of all applicable preference or similar periods,
HPT shall deliver a release to the Departing Guarantor of its obligations
hereunder 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 Accounting
Principles 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
Hundred Million Dollars (exclusive of any note, instrument, security or claim
issued by, against or in any way dependent on the credit of, an Affiliate of
Guarantor), HPT shall return to the Departing Guarantor any letter of credit or
cash delivered by the Departing Guarantor and held by HPT hereunder and shall
direct the Collateral Agent to return to the Departing Guarantor any cash
delivered by the Departing Guarantor and held by such Collateral Agent pursuant
to the terms of the Collateral Agency Agreement.


 


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3.                                       GUARANTEE.


 


(a)                                  The Guarantor hereby
unconditionally guarantees that the Guaranteed Obligations which become due and
payable during the term of the Management Agreement shall be 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 any mandatory or voluntary
prepayment pursuant to any Transaction Document, or otherwise.


 


(b)                                 This guarantee is a
guarantee of payment and not of collectibility and is absolute and in no way
conditional or contingent. In case any part of the Guaranteed Obligations shall
not have been paid when due and payable or performed at the time performance is
required, subject to any applicable cure periods, the Guarantor shall, pay or
cause to be paid to HPT the amount thereof as is then due and payable and
unpaid (including interest and other charges, if any, due thereon through the
date of payment in accordance with the applicable provisions of the Transaction
Documents) or perform or cause to be performed such obligations in accordance
with the Transaction Documents. Simultaneously with the giving of any notice of
default to the Manager under the Management Agreement, Tenant shall give a copy
of such notice to the Guarantor. Tenant shall accept any cure of such default
by the Guarantor provided such cure is completed within the applicable cure
period under the Management Agreement.


 


4.                                       UNENFORCEABILITY
OF GUARANTEED OBLIGATIONS, ETC. If the Manager is for any reason under no legal
obligation to discharge any of the Guaranteed Obligations, or if any other
moneys included in the Guaranteed Obligations have become unrecoverable from
the Manager by operation of law or for any other reason, including, without
limitation, the invalidity or irregularity in whole or in part of any
Guaranteed Obligation or of any Transaction Document or any limitation on the
liability of the Manager thereunder or any limitation on the method or terms of
payment thereunder which may now or hereafter be caused or imposed in any
manner whatsoever, the guarantees contained in this Agreement shall
nevertheless remain in full force and effect in accordance with the terms set
forth herein and shall be binding upon the Guarantor to the same extent as if
the Guarantor at all times had been the principal debtor on all such Guaranteed
Obligations.


 


5.                                       ADDITIONAL
GUARANTEES. This Agreement shall be in addition to any other guarantee or other
security for the Guaranteed Obligations and it shall not be prejudiced or
rendered unenforceable by the invalidity of any such other


 


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


 


6.                                       CONSENTS AND
WAIVERS, ETC. The Guarantor hereby acknowledges receipt of correct and complete
copies of each of the Transaction Documents and consents to all of the terms
and provisions thereof, as the same may be from time to time hereafter amended
or changed in accordance therewith, and waives, to the extent the Guarantor
lawfully may do so, (a) presentment, demand for payment, and protest of
nonpayment, of any of the Guaranteed Obligations, (b) notice of acceptance of
this Agreement and of diligence, presentment, demand and protest, (c) notice of
any default hereunder and any default, breach or nonperformance or a Manager
Event of Default under any of the Guaranteed Obligations or the Transaction
Documents, except as expressly provided in SECTION 3, (d) notice of the
terms, time and place of any private or public sale of collateral held as security
for the Guaranteed Obligations, (e) demand for performance or observance of,
and any enforcement of any provision of, or any pursuit or exhaustion of rights
or remedies against the Manager or any other guarantor of the Guaranteed
Obligations, under or pursuant to the Transaction Documents, or any agreement
directly or indirectly relating thereto and any requirements of diligence or
promptness on the part of the holders of the Guaranteed Obligations in
connection therewith, and (f) any and all demands and notices of every kind and
description with respect to the foregoing or which may be required to be given
by any statute or rule of law.


 


7.                                       NO IMPAIRMENT,
ETC. The obligations, covenants, agreements and duties of the Guarantor under
this Agreement shall not be affected or impaired by any assignment or transfer
in whole or in part of any of the Guaranteed Obligations without notice to the
Guarantor, or any waiver by HPT or any holder of any of the Guaranteed
Obligations or by the holders of all of the Guaranteed Obligations of the
performance or observance by the Manager or any other guarantor of any of the
agreements, covenants, terms or conditions contained in the Guaranteed
Obligations or the Transaction Documents or any indulgence in or the extension
of the time for payment by the Manager or any other guarantor of any amounts
payable under or in connection with the Guaranteed Obligations or the
Transaction Documents or any other instrument or agreement relating to the Guaranteed
Obligations or of the time for performance by the Manager or any other
guarantor of any other obligations under or arising out of any of the foregoing
or the extension or renewal thereof, or the modification or amendment made with
the consent of the Guarantor of any duty, agreement or obligation of the
Manager or any other


 


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guarantor set forth in any of the foregoing, or the voluntary or
involuntary sale or other disposition of all or substantially all the assets of
the Manager or any other guarantor or insolvency, bankruptcy, or other similar
proceedings affecting the Manager or any 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 the performance or observance of any
agreement, covenant, term or condition contained in any of the foregoing
without the consent of the holders of the Guaranteed Obligations by operation
of law.


 


8.                                       REIMBURSEMENT,
SUBROGATION, ETC. The Guarantor hereby covenants and agrees that the Guarantor
will not enforce or otherwise exercise any rights of reimbursement,
subrogation, contribution or other similar rights against the Manager or any
other person with respect to the Guaranteed Obligations prior to the
irrevocable payment in full of all amounts then due and owing but unpaid under
the Management Agreement, and until the Guaranteed Obligations have been satisfied
in full, the Guarantor shall not have any right of subrogation, and the
Guarantor waives any defense it may have based upon any election of remedies by
HPT which destroys the Guarantor’s subrogation rights or the Guarantor’s rights
to proceed against the Manager for reimbursement, including, without limitation,
any loss of rights the Guarantor may suffer by reason of any rights, powers or
remedies of the Manager in connection with any anti-deficiency laws or any
other laws limiting, qualifying or discharging the indebtedness to HPT. Until
all obligations of the Manager pursuant to the Transaction Documents shall have
been irrevocably paid and satisfied in full, the Guarantor waives any right to
enforce any remedy which HPT now has or may in the future have against the Manager,
any other guarantor or any other person and any benefit of, or any right to
participate in, any security whatsoever now or in the future held by HPT.
Nothing contained in this SECTION 8 shall limit the Guarantor’s rights under
SECTION 10.1(l) of the Management Agreement.


 


9.                                       DEFEASANCE;
GUARANTY LIMITATIONS. The Guarantor’s obligations under SECTION 3 shall
terminate upon the first to occur of (a) the date on which the Guaranteed
Obligations have been paid and performed in full and all other obligations of
the Guarantor to HPT under this Agreement have been irrevocably satisfied in
full and (b) the Coverage Date; PROVIDED, HOWEVER, if at any time, all or any
part of any payment applied on account of the Guaranteed Obligations is or must
be rescinded or returned for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of the Manager), this
Agreement, to the extent such payment is or must


 


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be rescinded or returned, shall be deemed to have continued in
existence notwithstanding any such termination. Notwithstanding anything
contained in this Agreement to the contrary, the Guarantor’s liability under SECTION 3
hereof in the aggregate 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’s Priority attributable to the Original Hotels and (ii) an additional
Sixteen Million Dollars ($16,000,000) with respect to the portion of Owner’s
Priority attributable to the Expansion Hotels, and (b) thereafter, Seventy
Million Dollars ($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 Manager under Section 10.3 of the Management Agreement which
Manager elects to be deemed advances hereunder pursuant to said Section and
such liability shall be increased by any reimbursements made to the Guarantor
pursuant to Section 10.1(l) of the Management Agreement.


 


10.                                 NOTICES. (a) Any and
all notices, demands, consents, approvals, offers, elections and other
communications required or permitted under this Agreement shall be deemed
adequately given if in writing and the same shall be delivered either by hand,
by telecopier with written acknowledgment of receipt (provided a copy thereof
is sent by Federal Express or similar expedited commercial carrier for delivery
on the next business day), or Federal Express or similar expedited commercial
carrier, addressed to the recipient of the notice, postpaid and registered or
certified with return receipt requested (if by mail), or with all freight
charges prepaid (if by Federal Express or similar carrier).


 


(b)                                 All notices required
or permitted to be sent hereunder shall be deemed to have been given 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 date of receipt or
refusal, except that whenever under this Agreement a notice is either received
on a day which is not a Business Day or is required to be delivered on or
before a specific day which is not a Business Day, the day of receipt or
required delivery shall automatically be extended to the next Business Day.


 


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(c)                                  All such notices
shall be addressed,


 


if to HPT to:


 


c/o Hospitality Properties Trust


400 Centre Street


Newton, Massachusetts  02458


Attn: 
Mr. John G. Murray


[Telecopier No. (617) 969-5730]


 


with a copy to:


 


Sullivan & Worcester LLP


One Post Office Square


Boston, Massachusetts  02109


Attn: 
Warren M. Heilbronner, Esq.


[Telecopier No. (617) 338-2880]


 


if to the Guarantor to:


 


Intercontinental Hotels Group PLC


67 Alma Road


Windsor


Berkshire SL4 3HD


ENGLAND


Attn: Company Secretary


Telecopier No. +44 1753 410101


 


with a copy to:


 


Intercontinental Hotels Group, Inc.


Three Ravinia Drive


Suite 100


Atlanta, Georgia 30346


Attn: 
Vice President, Asset Management


[Telecopier No. 770-604-5340]


 


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


 


11.                                 SUCCESSORS AND
ASSIGNS. Whenever in this Agreement, any of the parties hereto is referred to,
such reference shall be deemed to include the successors and assigns of such
party, including without 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 contained
in 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 to matters regarding the internal affairs of HPT and issues of or
limitations on any personal liability of the shareholders and trustees of HPT
for obligations of HPT, as to which the laws of the State of Maryland shall
govern, this Agreement 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
York applicable to contracts between residents of New York which are to be
performed entirely within New York, regardless of (i) where any such instrument
is executed or delivered; or (ii) where any payment or other performance
required by any such instrument is made or required to be made; or (iii) where
any breach of any provision of any such instrument occurs, or any cause of
action otherwise accrues; or (iv) where any action or other proceeding is
instituted or pending; or (v) the nationality, citizenship, domicile, principal
place of business, or jurisdiction of organization or domestication of any
party; or (vi) whether the laws of the forum jurisdiction otherwise would apply
the laws of a jurisdiction other than Massachusetts; or (vii) any combination
of the foregoing.


 


All actions and proceedings arising out of or
in any way relating to this Agreement shall be brought, heard, and determined
exclusively in an otherwise appropriate federal or state court located within
the State of New York. Guarantor hereby (i) submits to the exclusive
jurisdiction of any New York federal or state court of otherwise competent
jurisdiction for the purpose of any action or proceeding arising out of or
relating to this Agreement and (ii) voluntarily and irrevocably waives, and
agrees not to assert by way of motion, defense, or otherwise in any such action
or proceeding, any claim or defense that it is not personally subject to the
jurisdiction of such a court, that such a court lacks personal jurisdiction
over Guarantor or the matter, that the action or proceeding has been brought in
an inconvenient or improper forum, that the venue of the action or proceeding
is improper, or that this Agreement may not be enforced in or by such a court.
To the maximum extent permitted by applicable law, Guarantor consents to
service of process by registered mail, return receipt requested, or by any
other manner provided by law.


 


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TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES HERETO WAIVES ITS RIGHTS TO TRIAL BY JURY WITH RESPECT
TO THIS AGREEMENT OR ANY MATTER ARISING IN CONNECTION HEREWITH.


 


13.                                 MODIFICATION OF
AGREEMENT. No modification or waiver of any provision of this Agreement, nor
any consent to any departure by the Guarantor therefrom, shall in any event be
effective unless 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 the purpose for which given. No notice to or demand on the
Guarantor in any case shall entitle the Guarantor to any other or further
notice or demand in the same, similar or other circumstances.


 


14.                                 WAIVER OF RIGHTS BY
HPT. Neither any failure nor any delay on HPT’s part in exercising any right,
power or privilege under this Agreement shall operate as a waiver thereof, nor
shall a single or partial exercise thereof preclude any other or further
exercise, or the exercise of any other right, power or privilege.


 


15.                                 SEVERABILITY. In case
any one or more of the provisions contained in this Agreement should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any
way be affected or impaired thereby, but this Agreement shall be reformed and
construed and enforced to the maximum extent permitted by applicable law.


 


16.                                 ENTIRE CONTRACT. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and shall supersede and take the place of
any other instruments purporting to be an agreement of the parties hereto
relating to the subject matter hereof.


 


17.                                 HEADINGS;
COUNTERPARTS. Headings in this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument, and in pleading or
proving any provision of this Agreement, it shall not be necessary to produce
more than one of such counterparts.


 


18.                                 REMEDIES CUMULATIVE.
No remedy herein conferred upon HPT is intended to be exclusive of any other
remedy, and subject to the limitations set forth in SECTION 9 above, each
and every remedy 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 in
equity or by statute or otherwise.


 


19.                                 NONLIABILITY OF
TRUSTEES. THE DECLARATION OF TRUST ESTABLISHING TRUST, A COPY OF WHICH, TOGETHER
WITH ALL AMENDMENTS THERETO (THE “DECLARATION”), IS DULY FILED WITH THE
DEPARTMENT 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 NOT
INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE
OR AGENT OF TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, TRUST. ALL PERSONS DEALING
WITH TRUST, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF TRUST FOR THE PAYMENT
OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.


 


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WITNESS the execution 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:

  	
   

  	
   

  	
   

  	
   

  
								



 


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