EXHIBIT 10.3
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Agreement") is made and given as of
October 27, 2003, by INTERCONTINENTAL HOTELS GROUP PLC, a corporation organized
and existing under the laws of the United Kingdom (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, the Tenant and Intercontinental Hotels Group Resources, Inc.
(the "Manager") are, on the date hereof, entering into a Management Agreement
(as the same may be amended, modified, supplemented, or otherwise altered, the
"Management Agreement") with respect to certain hotels, all as more particularly
set forth in the Management Agreement; and
WHEREAS, it is a condition precedent to the Tenant's entering into the
Management Agreement and the consummation of certain other transactions
contemplated by the Transaction Documents that the Guarantor enter into this
Agreement; and
WHEREAS, the transactions contemplated by the Management Agreement and
the other 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 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 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.
"Outstanding Balance" shall mean, from time to time, the Fifty Million
Dollars ($50,000,000) less the excess of the aggregate amount paid by the
Guarantor under Section 3 hereof
-2-
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 Obligation;
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, Standard's & Poor's Rating
Services or its successor and Xxxxx'x Investor Services, Inc. or its successors;
provided, however, if (i) the Rating Agencies cease operations without
successors or (ii) cease to issue credit ratings, "Rating Agencies" shall mean a
-3-
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:
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
-4-
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
(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
-5-
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 Xxxxx, Xxxxxxxx & Xxxxxxx, LLP,
having an address at 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxxxx XX,
Xxxxxxx, Xxxxxxx 30309-3500, Attn: Managing Partner as its agent for service of
process. The Guarantor acknowledges and
-6-
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.
-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.
-8-
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
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
-9-
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 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
-10-
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 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.
-11-
(c) All such notices shall be addressed,
if to HPT to:
c/o Hospitality Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxx
[Telecopier No. (000) 000-0000]
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxxx, Esq.
[Telecopier No. (000) 000-0000]
if to the Guarantor to:
International Hotels Group PLC
00 Xxxx Xxxx
Xxxxxxx
Xxxxxxxxx XX0 0XX
ENGLAND
Attn: Company Secretary
Telecopier No. x00 0000 000000
with a copy to:
International Hotels Group, Inc.
0 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Vice President, Asset Management
[Telecopier No. 000-000-0000]
(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
-12-
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 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
-13-
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 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
-14-
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.
-15-
WITNESS the execution hereof under seal as of the date above first
written.
INTERCONTINENTAL HOTELS GROUP PLC
By: /s/ Xxxxxx X. Xxxxxx
Its: Director
By: /s/ Xxxxxxx Xxxxxxxx
Its: Director
ACKNOWLEDGED AND AGREED:
HPT TRS IHG-1, INC.
By: /s/ Xxxx X. Xxxxxx
Its: Vice President
HOSPITALITY PROPERTIES TRUST
By: /s/ Xxxx X. Xxxxxx
Its: President
-16-
