CANDLEWOOD HOTEL CO INC
EXHIBIT 10.43
<DOCUMENT>
<TYPE>EX-10.43
<SEQUENCE>6
<FILENAME>a92131exv10w43.txt
<DESCRIPTION>EXHIBIT 10.43
<TEXT>
<PAGE>

                                                                   EXHIBIT 10.43

                  THIRD AMENDED AND RESTATED GUARANTY AGREEMENT

         THIS THIRD AMENDED AND RESTATED GUARANTY AGREEMENT (this "Agreement")
is made and given as of this 21st day of July, 2003, by CANDLEWOOD HOTEL
COMPANY, INC., a Delaware corporation (the "Guarantor"), for the benefit of HPT
CW PROPERTIES TRUST, a Maryland real estate investment trust ("HPT CW"), JOHN G.
MURRAY, TRUSTEE OF HPT CW MA REALTY TRUST, under Declaration of Trust dated as
of July 18, 2003 ("HPT CW MA"), and HH HPTCW II PROPERTIES LLC, a Delaware
limited liability company ("HPTCW II" and, together with HPT CW and HPT CW MA,
collectively, the "Landlord"), and HOSPITALITY PROPERTIES TRUST, a Maryland real
estate investment trust and the ultimate parent of Landlord (together with the
Landlord and their respective successors and assigns, "HPT").

                              W I T N E S S E T H :

         WHEREAS, pursuant to an Agreement to Lease, dated as of November 19,
1997 (as amended, the "Agreement to Lease"), HPT CW and Candlewood Leasing No.
1, Inc., a Delaware corporation (the "Tenant") entered into that certain Second
Amended and Restated Lease Agreement, dated as of April 12, 2002, as amended by
that certain First Amendment to Second Amended and Restated Lease Agreement,
dated as of the date hereof, between the Landlord and the Tenant (as so amended,
the "Second Amended Lease") with respect to certain real property, related
improvements and personal property, as more particularly described therein; and

         WHEREAS, it is a condition precedent to the Landlord's entering into
the Second Amended Lease that the Guarantor guarantee all of the payment and
performance obligations of the Tenant with respect to the Second Amended Lease;
and

         WHEREAS, the transactions contemplated by the Second Amended Lease 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
Second Amended Lease. The Second Amended Lease and the Incidental Documents are
herein collectively referred to as the "Transaction Documents."

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         2.       GUARANTEED OBLIGATIONS. For purposes of this Agreement, the
term "Guaranteed Obligations" shall mean the payment and performance of each and
every obligation of the Tenant to HPT under the Transaction Documents, whether
now existing or hereafter arising, and including, without limitation, the
payment of the full amount of the Rent payable under the Second Amended Lease.

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

                  3.1   PERFORMANCE OF COVENANTS AND AGREEMENTS. During the term
of this Agreement, the Guarantor will cause the Tenant duly and punctually to
perform all of the covenants and agreements of Tenant set forth in the
Transaction Documents.

                  3.2   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.

                  3.3   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 on amounts
recoverable under this Agreement from the time such amounts become due until
payment at the Interest Rate.

                                     - 2 -

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                  3.4   REPORTS. The Guarantor shall promptly provide to HPT
each of the financial reports, certificates and other documents required of the
Guarantor under the Transaction Documents.

                  3.5   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.

                  3.6   FINANCIAL CONDITION OF GUARANTOR. The Guarantor shall at
all times maintain Net Worth in an amount at least equal to the aggregate of one
year's Minimum Rent payable by the Tenant to the Landlord under the Second
Amended Lease.

         4.       GUARANTEE. The Guarantor hereby unconditionally and
irrevocably guarantees that the Guaranteed Obligations which are monetary
obligations which become due and payable during the term of this Agreement shall
be paid in full when due and payable, whether upon demand, at the stated or
accelerated maturity thereof or upon any mandatory or voluntary prepayment
pursuant to any Transaction Document, or otherwise, and that the Guaranteed
Obligations which are performance obligations which are required to be performed
during the term of this Agreement shall be fully performed at the times and in
the manner such performance is required by the Transaction Documents. With
respect to the Guaranteed Obligations which are monetary obligations, 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, the Guarantor shall, within five (5) days after
receipt of notice from HPT, 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.

         5.       UNENFORCEABILITY OF GUARANTEED OBLIGATIONS, ETC. If the Tenant
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 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 Transaction Document or any
limitation on the liability of the Tenant thereunder or any limitation on the
method or

                                     - 3 -

<PAGE>

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.

         6.       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.

         7.       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 Event of Default under any of the Guaranteed Obligations or
the Transaction Documents, except as expressly provided in Section 4, (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 Tenant 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.

         8.       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

                                     - 4 -

<PAGE>

Tenant 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 Tenant 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 Tenant 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 (whether material or otherwise) of any duty, agreement
or obligation of the 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 Tenant or any other guarantor or insolvency,
bankruptcy, or other similar proceedings affecting the Tenant or any other
guarantor or any assets of the Tenant or any such other guarantor, or the
release or discharge of the 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.

         9.       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 Tenant or any other person with respect to the Guaranteed
Obligations prior to the payment in full of all amounts then due and owing but
unpaid with respect to the Second Amended Lease, 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 Tenant for reimbursement,
including, without limitation, any loss of rights the Guarantor may suffer by
reason of any rights, powers or remedies of the 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 Tenant pursuant to the
Transaction Documents shall have been 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 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.

                                     - 5 -

<PAGE>

         10.      DEFEASANCE. This Agreement shall terminate at such time as the
Guaranteed Obligations have been paid and performed in full and all other
obligations of the Guarantor to HPT under this Agreement have been satisfied in
full; 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 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.

         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 in hand, by telecopier with written acknowledgment of
receipt, or by mail 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

                                     - 6 -

<PAGE>

                  Attn: Nancy S. Grodberg, Esq.
                  [Telecopier No. (617) 338-2880]

         if to the Guarantor to:

                  Candlewood Hotel Company, Inc.
                  8621 E. 21st Street North, Suite 200
                  Wichita, Kansas  67206
                  Attn: Mr. Tim Johnson
                  [Telecopier No. (316) 631-1382]

         with a copy to:

                  GoodSmith, Gregg & Unruh
                  105 West Adams Street, 26th Floor
                  Chicago, Illinois 60603
                  Attn: Kenneth Crews, Esq.
                  [Telecopier No. 312-322-0056]

         (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 The Commonwealth of Massachusetts applicable to
contracts between residents of Massachusetts which are to be performed entirely
within Massachusetts, regardless of (i) where any such

                                     - 7 -

<PAGE>

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.

         To the maximum extent permitted by applicable law, any action to
enforce, arising out of, or relating in any way to, any of the provisions of
this Agreement may be brought and prosecuted in such court or courts located in
The Commonwealth of Massachusetts as may be provided by law; and the parties
consent to the jurisdiction of said court or courts located in Massachusetts and
to service of process by registered mail, return receipt requested, or by any
other manner provided by law.

         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.

                                     - 8 -

<PAGE>

         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 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.      AMENDMENT AND RESTATEMENT. This Agreement amends, restates and
replaces in its entirety that certain Second Amended and Restated Guaranty
Agreement, dated as of April 12, 2002, as the same may have been amended from
time to time, by the Guarantor for the benefit of the HPT CW and HPT.

                         [SIGNATURES ON FOLLOWING PAGE.]

                                     - 9 -

<PAGE>

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

                                                  CANDLEWOOD HOTEL COMPANY, INC.

                                                  By:  /s/ Tim Johnson
                                                     ---------------------------
                                                     Tim Johnson
                                                     Vice President Treasurer

ACKNOWLEDGED AND AGREED:

HPT CW PROPERTIES TRUST

By:      /s/ John G. Murray
   -----------------------------------------
         John G. Murray
         President

HPT CW MA REALTY TRUST

By:      /s/ John G. Murray
   -----------------------------------------
         John G. Murray
         as Trustee and not individually

HH HPTCW II PROPERTIES LLC,
a Delaware limited liability company

By:      /s/ John G. Murray
   -----------------------------------------
         John G. Murray
         President

HOSPITALITY PROPERTIES TRUST

By:      /s/ John G. Murray
   -----------------------------------------
         John G. Murray
         President

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