EXHIBIT 10.4
GUARANTY OF LEASES
THIS GUARANTY, dated as of November 17, 1997, by
CAPSTAR HOTEL COMPANY, a Delaware corporation (the
"Guarantor"), for the benefit of XXXX LIMITED PARTNERSHIP, a
North Carolina limited partnership, and WINSTON HOTELS, INC.
(collectively, the "Lessor"), recites and provides:
RECITALS
Simultaneously with the execution hereof, the Lessor
and CapStar Winston Company, L.L.C., a Delaware limited
liability company (the "Lessee"), have executed a certain
First Amendment to Lease of even date herewith and
contemplate subsequently executing a separate First
Amendment to Lease in connection with a certain Asset
Purchase Agreement dated as of October 29, 1997 by and among
the Guarantor, CapStar Management Company, L.P., a Delaware
limited partnership, Winston Hospitality, Inc., a North
Carolina corporation, Xxxxxx X. Xxxxxxx, III and Xxxx X.
Xxxxxx (which amendments, together with the underlying
leases, are hereinafter referred to collectively as the
"Leases") for the lease of various parcels of land, together
with all appurtenances thereto, improvements thereon and
intangible and tangible personal property, and more
particularly described in the Leases (the "Leased
Premises"). It is also contemplated that Lessor and Lessee
may enter into additional hotel leases in the future
("Future Leases"). To the extent the Guarantor confirms in
writing that the obligations under any Future Leases are
guaranteed hereby, the terms "Leases" and "Leased Property"
shall also include, respectively, such Future Leases and the
various parcels of land, together with all appurtenances
thereto, improvements thereon and intangible and tangible
personal property more particularly described in such Future
Leases.
The Lessee is an indirect subsidiary of the Guarantor.
As a condition to executing the Leases, the Lessor has
required the Guarantor to guarantee the prompt and full
payment of rent and all other amounts payable to the Lessor
under the Leases, and the prompt and complete performance of
all covenants contained in the Leases on the Lessee's part
to be performed, subject to the limitations set forth
herein. Because of the substantial economic benefits
accruing to the Guarantor by virtue of the Lessor leasing
the Leased Premises to the Lessee, the Guarantor desires to
guarantee such payment and performance, all on the following
terms and conditions.
GUARANTY
NOW, THEREFORE, for and in consideration of the
premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby
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acknowledged, the Guarantor hereby represents, warrants and
agrees as follows, intending to be legally bound:
ARTICLE 1
REPRESENTATIONS
AND WARRANTIES OF THE GUARANTOR
Section 1.1. The Guarantor makes the following
representations and warranties, upon each of which the
Lessor, its successors and assigns are entitled to rely and
have relied:
Section 1.2. No Conflicts; Defaults. The execution
and delivery of this Guaranty and the performance by the
Guarantor of its obligations hereunder and the consummation
of the transactions contemplated herein are within the
corporate powers of the Guarantor and will not conflict with
or constitute a breach of the Guarantor's certificate of
incorporation or by-laws. Except for consents and approvals
obtained by Guarantor, true, correct and complete copies of
which have been delivered by the Guarantor to the Lessor
prior to the execution and delivery of this Guaranty,
neither the execution, acknowledgment and delivery of, nor
the performance of its obligations under, this Guaranty,
will conflict with or violate, or constitute a default or
require any consent or waiver under, any material provision
of any mortgage, deed of trust, evidence of indebtedness,
order, decree or agreement to which the Guarantor is a party
or by which it or any substantial part of its property is
bound.
Section 1.3. Enforceability. This Guaranty is a
legal, valid and binding instrument enforceable against the
Guarantor in accordance with its terms, as the same may be
limited by applicable bankruptcy, insolvency, reorganization
and similar laws of general application relating to or
affecting creditors' rights generally and general remedies
of equity.
Section 1.4. Representations and Warranties. The
Guarantor has made its own independent investigation of the
financial condition and affairs of the Lessee and has
reviewed the Leases, including the rent terms thereof, prior
to entering into this Guaranty and will continue to make its
appraisal of the creditworthiness of the Lessee, and in
entering into this Guaranty Guarantor has not relied upon
any representation of the Lessor as to the financial
condition, operation or creditworthiness of the Lessee or
with respect to any other matter. The Guarantor agrees that
the Lessor shall have no duty or responsibility now or
hereafter to make any investigation or appraisal of the
Lessee on behalf of the Guarantor or to provide the
Guarantor with any credit or other information which may
come to the Lessor's attention.
Section 1.5. Litigation; Violations of Law. There
are no actions, suits or proceedings of a material nature
pending or threatened in writing against or affecting the
Guarantor which would have a material adverse effect if
adversely decided, and no event has occurred (including,
without limitation, the execution, acknowledgment and
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delivery of this Guaranty and the consummation of the
transactions contemplated hereby) which will violate, be in
conflict with, result in the breach of or constitute (with
or without notice or the passage of time, or both) a default
under any judicial decision, statute, ruling, direction,
rule, regulation, permit, certificate or ordinance of any
governmental authority in any way applicable to the
Guarantor which would have a material adverse effect on
Guarantor. The Guarantor is not in default with respect to
any judgment, order, writ, injunction, decree or demand of
any court, arbitrator, administrative agency or other
governmental or quasi-governmental authority which would
have a material adverse effect on Guarantor.
Section 1.6. Information. All information filed by
the Guarantor with the Securities and Exchange Commission is
true and complete in all material respects and fully and
accurately presents the financial condition of the Guarantor
as of the dates thereof; such information does not omit any
statement of material fact that would make such information
misleading; and no material adverse change has occurred in
the financial condition reflected therein or the Guarantor's
business since the dates thereof or the most recent filing.
Section 1.7. Insolvency Matters. No bankruptcy,
reorganization, arrangement, readjustment of debt,
insolvency or other proceeding has been commenced or
threatened in writing by or against the Guarantor or
consented to or acquiesced in by the Guarantor, and no
material judgment has been entered against the Guarantor
which has not been satisfied or otherwise discharged.
Section 1.8. Organization. The Guarantor is a
corporation duly organized, validly existing and subsisting
under the laws of the State of Delaware and has the power to
enter into this Guaranty and to perform its obligations
hereunder and by proper corporate action has duly authorized
the execution and delivery of this Guaranty and the
performance of its obligations hereunder.
Section 1.9. Taxes. All material tax returns and
reports required by law to be filed by the Guarantor have
been duly filed, and no taxes, assessments, contributions,
fees or other governmental charges upon it or any of its
assets or income which are due and payable thereon are
delinquent, except to the extent such taxes, assessments,
contributions, fees or charges are being contested in good
faith and by proper proceedings and against which
appropriate reserves are being maintained or where failure
to pay would not have a material adverse effect.
Section 1.10. Cross Default. The Guarantor
acknowledges and agrees that a default under the Leases with
respect to one of the Leased Premises shall constitute a
default under the Leases with respect to all of the Leased
Premises, and the Leases may be cross defaulted with other
leases guaranteed by the Guarantor.
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ARTICLE 2
COVENANTS OF THE GUARANTOR
Section 2.1. Definitions.
(a) The term "Obligations" shall mean all obligations,
agreements, covenants, conditions and liabilities of the
Lessee set forth in the Leases and shall include all amounts
due and to become due from the Lessee to the Lessor under
the Leases, whether such amounts are direct or indirect,
fixed or contingent, or liquidated or unliquidated
obligations of the Lessee including, without limitation,
base rent, percentage rent, additional charges,
indemnification payments, damages, interest, service,
finance and other charges, the Lessor's fees, impositions
required to be paid by the Lessee, and other sums, charges,
costs of collection, attorneys' fees and expenses, other
expenses of the Lessor due it under the Leases and amounts
advanced by the Lessor to discharge obligations of the
Lessee, whether such amounts are from time to time reduced,
thereafter increased or entirely extinguished and thereafter
reincurred.
(a) (b) The term "Lessee," as
used herein, shall mean any successor in interest, assignee,
or transferee of Lessee's interest under the Leases.
Section 2.2. Guaranty of Payment and Performance.
The Guarantor hereby unconditionally and absolutely
guarantees to the Lessor the prompt and full payment of and
the prompt and complete performance of all Obligations of
the Lessee to the Lessor, under and in accordance with the
terms and conditions hereof.
Section 2.3. Notwithstanding the aggregate amount of
the Obligations at any time or from time to time payable by
the Lessor to Lessee, and notwithstanding any other
provision in this Guaranty to the contrary, the liability of
the Guarantor to Lessor hereunder shall not exceed the
principal sum of Twenty Million Dollars ($20,000,000) in the
aggregate less amounts paid by the Guarantor hereunder in
respect of such principal sum; provided that whenever, at
any time, or from time to time, Guarantor shall make any
payment to Lessor on account of its liability hereunder, it
will notify Lessor in writing that such payment is made
under this Guaranty for such purpose. The Guarantor agrees
that the Obligations may at any time and from time to time
exceed the amount of the liability of the Guarantor
hereunder without impairing this Guaranty or affecting the
rights and remedies of Lessor hereunder. No payment or
payments made by any Person or received or collected by
Lessor by virtue of any action or proceeding or any set-off
or appropriation or application, at any time or from time to
time, in reduction of or in payment of the Obligations shall
be deemed to modify, reduce, release or otherwise affect the
liability of the Guarantor hereunder which shall,
notwithstanding any such payment or payments, remain liable
for the amount of the Obligations until the Obligations are
paid and performed in full (but subject to the limitations
provided in this paragraph).
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Section 2.4. Nature of Guaranty. This is a guaranty
of payment and not merely of collection. The undersigned
waives any rights of the undersigned pursuant to North
Carolina General Statute Section 26-7 or any similar or
subsequent law.
Section 2.5. Enforcement of Guaranty in First
Instance. The Lessor may collect the amount of the
Obligations, or any part thereof, from the Guarantor without
first exercising its rights against the Lessee, any other
guarantor or any collateral that the Lessor may hold or have
access to, and the Guarantor hereby waives any right to
require the Lessor to attempt, by bringing any action or
proceeding against Lessee or otherwise, to collect the
amount of the Obligations or any part thereof from the
Lessee or any other guarantor or to attempt to realize upon
any collateral that the Lessor may hold or have access to
before enforcing the obligations of the Guarantor hereunder.
Section 2.6. Lessor's Election to Perform
Obligations. After a default by the Lessee in the
performance of one or more of the Obligations and the
expiration of any notice and cure period expressly provided
for in the Leases, the Lessor, at its option, may elect to
perform or cause to be performed any or all of the
Obligations without first exercising its rights against the
Lessee, any other guarantor or any collateral that the
Lessor may hold or have access to, and the Guarantor hereby
waives any right to require the Lessor to attempt, by
bringing any action or proceeding against Lessee or
otherwise, to collect the amount of the Obligations or any
part thereof from the Lessee or any other guarantor or to
attempt to realize upon any collateral that the Lessor may
hold or have access to before performing or causing the
performance of any of the Obligations or enforcing the
obligations of the Guarantor hereunder.
Section 2.7. No Subrogation or Contribution. Until
all of the Obligations have been paid in full and have been
duly and punctually performed, the Guarantor shall not be
subrogated to any right of the Lessor against the Lessee,
any other guarantor or any collateral, and any moneys,
property or other consideration received, after a default by
the Lessee under the Leases, by the Guarantor from the
Lessee prior to payment and performance in full of the
Obligations by the Lessee shall be held in trust for the
Lessor and shall be paid or transferred to the Lessor upon
demand therefor. The Guarantor agrees that it will not
assert any right of contribution against any other guarantor
of the Obligations, whether the obligations of such other
guarantor are evidenced by this Guaranty or other agreement,
until such time as all of the Obligations have been paid and
performed in full to the Lessor.
Section 2.8. Waiver of Defenses.
(a) The Guarantor hereby: (i) waives notice of
acceptance of this Guaranty; (ii) waives presentment,
demand, notice of dishonor, protest and notice of protest;
(iii) agrees that the Obligations or any part thereof may be
renewed, extended, accelerated, modified, compromised or
delegated and that any collateral or other security held for
the payment and performance of the Obligations may be
released,
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exchanged, sold, applied or otherwise dealt with by the
Lessor without notice to the Guarantor and without thereby
releasing the Guarantor from any obligation under this
Guaranty; (iv) waives notice of the financial condition
or other status of the Lessee and any other party obligated
for the payment or performance of the Obligations; and
(v) waives the benefit of the homestead exemption as to its
obligations set forth herein. This Guaranty is intended to
be a full and complete guaranty and indemnity to the Lessor
to the extent of and for any Obligations and to be valid and
enforceable without other or further notice to the
Guarantor. The liability of the Guarantor is absolute and
unconditional and is not conditioned or contingent upon any
other party signing this Guaranty or the obtaining of any
security upon any of the Obligations or the obtaining of the
guaranty of any other party upon any of the Obligations or
any other matter.
(b) The Guarantor further acknowledges that this
Guaranty and the Guarantor's obligations under this Guaranty
are and shall at all times be valid and enforceable
irrespective of (i) any assignment of sublease of the Leases
or (ii) the filing of a petition or the commencement of a
case with respect to the Lessee or the Guarantor under Title
11 of the United States Code, as now constituted or
hereafter amended (the "Bankruptcy Code"), or under any
other applicable Federal or state bankruptcy, insolvency or
similar law, or any modification, impairment, abatement,
reduction, release, limitation, restructure, reinstatement
or cure, in whole or in part, of the Obligations pursuant to
an order by a bankruptcy court or other court of competent
jurisdiction in any action, case or proceeding brought under
the Bankruptcy Code or under any other applicable Federal or
state bankruptcy, insolvency or similar law (including, but
not limited to any stay imposed pursuant to section 362 of
the Bankruptcy Code), it being expressly acknowledged and
agreed by the Guarantor that if any such modification,
impairment, abatement, reduction, release, limitation,
restructure, reinstatement or cure, in whole or part, is so
ordered in any such action, case or proceeding, the
Guarantor's obligations under this Guaranty will
nevertheless continue to be determined as if such order had
not been issued (i.e., as if the Lessee were still obligated
to pay, perform and observe the Obligations strictly in
accordance with the terms, covenants and provisions of the
Leases as in existence prior to the issuance of any such
order).
(c) The Guarantor absolutely, unconditionally and
irrevocably waives any and all right to assert any setoff,
counterclaim or crossclaim of any nature whatsoever with
respect to this Guaranty or the obligations of the Lessee or
any other person or party relating to this Guaranty or the
obligations of the Guarantor hereunder or otherwise with
respect to the Leases in any action, case or proceeding
brought by the Lessor to enforce the obligations of the
Guarantor under this Guaranty (provided, however, that the
foregoing provisions of this sentence shall not be deemed a
waiver of the right of the Guarantor to assert any
compulsory counterclaim in any such action, case or
proceeding brought by the Lessor in any state court if such
counterclaim is compelled under local law or rule or
procedure, or in a court of the United States, nor shall the
foregoing provisions of this sentence be deemed a waiver of
the right of the
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Guarantor to assert any claim which would otherwise constitute
a defense, setoff, counterclaim or crossclaim of any nature
whatsoever against the Lessor in any separate action, case or
proceeding brought by the Guarantor against the Lessor).
(d) The Guarantor acknowledges that no oral or
other agreements, understandings, representations or
warranties exist with respect to this Guaranty or with
respect to the obligations of the Guarantor under this
Guaranty, except those specifically set forth in this
Guaranty, and that this Guaranty sets forth the entire
agreement and understanding of the Guarantor and the Lessor.
Section 2.9. Releases. The Lessor shall have the
right to waive its rights against and to release any
guarantor or other person or entity that is liable for
payment or performance of the Obligations without affecting
(a) the enforceability of this Guaranty against the
Guarantor or (b) any other right or remedy that the Lessor
may have against the Guarantor.
Section 2.10. Costs and Expenses. The Guarantor
hereby agrees to pay to the Lessor all costs and expenses,
including court costs and reasonable attorneys' fees and
expenses, incurred by the Lessor in seeking to enforce, any
of the obligations of the Guarantor hereunder; provided,
however, that in the event of any litigation commenced by
Lessor which proceeds to a judicial conclusion, Lessor shall
only be entitled to recovery of attorney's fees in the event
the Lessor is the prevailing party in such litigation.
Section 2.11. Bankruptcy. In the event that any part
of the Obligations is collected by the Lessor and because of
bankruptcy or other laws relating to debtors' relief such
payment is set aside as a voidable preference or fraudulent
conveyance or the Lessor is otherwise required to repay all
or any portion of the amount so collected to the Lessee or
to any trustee, receiver or otherwise, then this Guaranty
shall continue in full force and effect with regard to such
sums or, if previously terminated, shall be reinstated
without further act or instrument and shall thereafter
remain in full force and effect, as though such payment had
not been made or such termination had not occurred (as the
case may be), and the amount or amounts so repaid shall
become part of the Obligations and shall be guaranteed
hereby. In the event an action, case or proceeding is filed
or commenced under the Bankruptcy Code or under any other
applicable Federal or state bankruptcy, insolvency or
similar law in regard to the Lessee or an action, case or
proceeding is otherwise commenced for the benefit of the
creditors of the Lessee, this Guaranty shall at all times
thereafter remain effective in regard to any payments or
other transfers of assets to the Lessor received from or on
behalf of the Lessee under or in respect of the Obligations
which are held voidable on the grounds of preference,
fraudulent conveyance or otherwise, whether or not the
Obligations have been paid in full or any of the Obligations
have been discharged or released.
Section 2.12. Application of Proceeds. All payments,
whether voluntary or involuntary, received from the Lessee
or on account of the Obligations from any other
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source, including income from and amounts realized on
security and appropriated bank balances, may be applied by
the Lessor toward the payment of the Obligations and in such
order of application as the Lessor may from time to time elect.
Section 2.13. Required Notifications. The Guarantor
will promptly inform the Lessor in writing upon the
commencement of any proceedings by or against the Guarantor
under any applicable bankruptcy, reorganization,
liquidation, insolvency or other similar law now or
hereafter in effect or of any proceeding in which a
receiver, liquidator, trustee or other similar official is
sought to be appointed for the Guarantor or any of its
assets.
Section 2.14. Survivability. The obligations of the
Guarantor contained herein shall survive the expiration or
earlier termination of the Leases until payment in full and
complete performance of all of the Obligations which survive
the termination of the Leases. Further, no expiration or
termination of the Leases, by operation of law or otherwise,
and no re-entry, repossession or removal pursuant to the
Leases or otherwise, and no re-letting of the premises under
the Leases shall relieve the Guarantor of its liabilities
and obligations which arise during the term of the Leases,
all of which shall survive such expiration, termination, re-
entry, repossession, removal or re-letting. The obligations
of the Guarantor contained herein shall survive any
assignment of the Leases or sublease of the Leased Premises
and any changes in control of the Lessee or Lessor.
Section 2.15. Existence, etc. So long as any
Obligations are outstanding, the Guarantor: (a) shall
maintain its corporate existence and shall not dissolve; (b)
shall not sell all or substantially all of its assets unless
it shall receive reasonably equivalent value therefor; and
(c) shall not merge with or into another corporation or
entity unless such surviving corporation or entity is
obligated to perform the obligations of the Guarantor
hereunder, and if requested assumes such obligations in a
writing reasonably satisfactory to Lessor.
ARTICLE 3
EVENTS OF DEFAULT; REMEDIES
Section 3.1. Events of Default. Any of the following
occurrences or acts shall constitute an "Event of Default"
under this Guaranty:
(a) If the Guarantor shall fail to pay any sum,
as and when required to be paid hereunder following any
applicable grace period.
(b) If any representation or warranty made by the
Guarantor contained in this Guaranty or any officer's
certificate, notice, certificate, demand or request
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delivered hereunder or in connection herewith shall be false
or misleading in any material respect as of the date made or
deemed to have been made.
(c) If the Guarantor fails to perform or observe
in any material respect any covenant, term or condition
contained in this Guaranty (other than a failure described
in subparagraphs 3.1(a) or (b) above or an Event of Default
described below) and such failure continues for more than 30
days after the Guarantor's receipt of notice thereof from
the Lessor.
(d) If the Guarantor shall file a petition in
bankruptcy or for reorganization or for an arrangement
pursuant to any federal or state law, or shall be
adjudicated a bankrupt or become insolvent or shall make a
general assignment for the benefit of creditors or shall
admit in writing its inability to pay its debts generally as
they become due, or if a petition proposing the adjudication
of the Guarantor as a bankrupt or its reorganization
pursuant to any federal or state bankruptcy law or any
similar federal or state law shall be filed in any court and
the Guarantor shall consent to or acquiesce in the filing
thereof or such petition shall not be discharged within 60
days after the filing thereof.
(e) If a receiver, trustee or liquidator of the
Guarantor, or of all or substantially all of the assets of
the Guarantor, shall be appointed in any proceeding brought
by the Guarantor, or if any such receiver, trustee or
liquidator shall be appointed in any proceeding brought
against the Guarantor and shall not be discharged within 60
days after such appointment, or if the Guarantor shall
consent to or acquiesce in such appointment.
Section 3.2. Remedies. Upon the occurrence of an
Event of Default, the Lessor shall have all the rights and
remedies available at law or in equity for purposes of
enforcing its rights under this Guaranty.
ARTICLE 4
MISCELLANEOUS PROVISIONS
Section 4.1. Governing Law. This Guaranty, the
rights of the Lessor and the obligations of the Guarantor
shall be governed by and construed in accordance with the
laws of the State of North Carolina (excluding, however,
those dealing with conflicts of law) except to the extent
that such laws are preempted by United States federal law,
in which case such federal law shall govern.
Section 4.2. Successors and Assigns. The
representations, warranties, covenants and conditions set
forth herein shall be binding upon the administrators,
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representatives and permitted successors and assigns of the
Guarantor and shall inure to the benefit of the Lessor, its
successors and assigns.
Section 4.3. Notices. All notices, requests, demands
and other communications with respect hereto shall be in
writing and shall be delivered by hand or sent prepaid by
Federal Express (or a comparable overnight delivery service)
at the following addresses:
If to the Lessor, to:
XXXX Limited Partnership
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: __________________
If to the Guarantor, to:
CapStar Hotel Company
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Chief Executive Officer
with a copy to:
XxXxxxx, Diamond & Ash
000 Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Any notice, request, demand or other communication delivered
or sent in the manner aforesaid shall be deemed given or
made, as the case may be, upon the earlier of the date it is
actually received or (a) on the business day after the day
on which it is delivered by hand, (b) on the business day
after the day on which it is properly delivered to Federal
Express (or a comparable overnight delivery service) or (c)
on the third business day after the day on which it is
deposited in the United States mail. Any addressee may
change its address by notifying the other addressees of the
new address in any manner permitted by this Section.
Section 4.4. Captions; Gender; Number. The captions
hereof are for convenience of reference only and shall
neither limit nor enlarge the provisions hereof.
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All pronouns used herein, whether used in the masculine,
feminine or neuter gender, shall include all other genders.
The singular shall include the plural and vice versa unless
the context requires otherwise.
Section 4.5. Severability. If any provision of this
Guaranty, or the application thereof to any person or
circumstance, shall to any extent be invalid or
unenforceable, the remainder of the provisions hereof, or
the application thereof to other persons or circumstances,
shall not be affected thereby, and each provision hereof
shall be valid and enforceable to the fullest extent
permitted by law.
Section 4.6. Amendments. No provision of this
Guaranty may be amended, waived, discharged or terminated
orally, but only by an instrument in writing signed by the
party against whom enforcement of the amendment, waiver,
discharge or termination is sought. No subsequent guaranty
by the Guarantor or any other person with respect to the
Obligations shall be deemed in lieu of or to supersede this
Guaranty, but such guaranty shall be construed as an
additional or supplementary guaranty unless otherwise
expressly provided for in such subsequent guaranty.
Furthermore, this Guaranty shall be construed to be an
additional or supplementary guaranty to any guaranty
previously executed by the Guarantor or any other guarantor
of the Obligations and shall not terminate any prior
guaranty unless such termination is expressly provided for
herein.
Section 4.7. Service of Process. The Guarantor
hereby agrees that any suit, action or proceeding arising
out of or relating to this Guaranty may be instituted in the
United States District Court for the Eastern District of
North Carolina, at the option of the Lessor; and the
Guarantor hereby waives any objection which it may have to
the laying of the venue of any such suit, action or
proceeding and irrevocably submits to the jurisdiction of
either such court in any such suit, action or proceeding.
Section 4.8. Joint and Several Obligations. Subject
to Section 2.2 hereof, the obligations guaranteed hereunder,
the obligations of the Guarantor hereunder shall be joint
and several with respect to (a) the Lessee, and (b) each and
any other guarantor or obligor of the Lessee's obligations
under the Leases which guarantor or obligor is an affiliate
of the Guarantor, and the Lessor may demand and exercise its
rights and remedies hereunder and/or thereunder against any
such guarantors or obligors separately, or all or any of
them together, at Lessor's option.
Section 4.9. Third Party Beneficiary. Winston
Hotels, Inc., a North Carolina corporation and parent
company of the general partner of the Lessor, shall be
deemed a third party beneficiary of this Guaranty and shall
have the right to enforce the terms of this Guaranty to the
same extent as the Lessor.
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Section 4.10. Counterparts. This Guaranty may be
executed in several counterparts, each of which shall be an
original and all of which together shall constitute one and
the same agreement.
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IN WITNESS WHEREOF, the Guarantor has executed this
Guaranty as of the date first above written.
CAPSTAR HOTEL COMPANY,
a Delaware corporation
[CORPORATE SEAL] By: /s/ XXXXXXX XXXXXXXX
---------------------------
Name: Xxxxxxx Xxxxxxxx
Attest: /s/ Title: Vice President
--------------------------
Assistant Secretary
