EXHIBIT 4.1
-----------
EXECUTION COPY
FOURTH SUPPLEMENTAL INDENTURE
"Supplemental Indenture", dated as of May 2, 2006, among MeriStar
Hospitality Operating Partnership, L.P., a Delaware limited partnership (the
"Company"), MeriStar Hospitality Finance Corp., a Delaware corporation
("MeriStar Finance," and, together with the Company, the "Issuers"), MeriStar
Hospitality Corporation, a Maryland corporation ("MeriStar"), Alcor
Acquisition LLC, a Delaware limited liability company ("Successor"), the
subsidiary guarantors parties hereto (the "Subsidiary Guarantors"), and U.S.
Bank Trust National Association, as trustee (the "Trustee").
WHEREAS, the Issuers, MeriStar, the Subsidiary Guarantors and the
Trustee have heretofore executed and delivered a certain Indenture, dated as
of January 26, 2001, as supplemented by the First Supplemental Indenture dated
as of December 19, 2001, the Second Supplemental Indenture dated as of
February 7, 2002 and the Third Supplemental Indenture dated as of April 13,
2006 (as supplemented, the "Indenture"; capitalized terms not otherwise
defined herein shall have the meanings set forth in the Indenture), and the
Issuers have issued pursuant to the Indenture their 9% Senior Notes due 2008
(the "Notes"), which are guaranteed by MeriStar and the Subsidiary Guarantors
(together, the "Guarantors");
WHEREAS, the Company, MeriStar, Successor and certain other entities
have entered into an Agreement and Plan of Merger, dated as of February 20,
2006 (the "Merger Agreement"), which contemplates the execution and filing on
May 2, 2006 of the Articles of Merger with the Maryland State Department of
Assessments and Taxation and a Certificate of Merger with the Secretary of
State of the State of Delaware providing for the merger of MeriStar with and
into Successor (the "Merger"), with Successor continuing its existence under
Delaware law;
WHEREAS, Section 5.1 of the Indenture provides, among other things,
that MeriStar shall not be prevented from merging with or into another
corporation, Person or entity PROVIDED that, among other things, such
corporation, Person or entity into which MeriStar shall have merged shall
assume upon any such merger, all of the obligations of MeriStar under its
Guarantee of the Notes and the Indenture pursuant to a supplemental indenture;
WHEREAS, Section 9.1 of the Indenture provides, among other things,
that, the Issuers, any Guarantors and the Trustee may amend or supplement the
Indenture and any Guarantee with respect to the Notes, without the consent of
any Holder, for one or more of the following purposes: (i) to provide for the
assumption of MeriStar's obligations under its Guarantee of the Notes in the
case of a merger involving MeriStar pursuant to Article 5 of the Indenture;
and (ii) to make any change that does not adversely affect the legal rights of
Holders under the Indenture;
WHEREAS, each of the Issuers, MeriStar, the Subsidiary Guarantors and
Successor have been authorized by resolutions of their General Partner, Board
of Directors or Members, as the case may be, to enter into this Supplemental
Indenture; and
WHEREAS, all acts, conditions, proceedings and requirements necessary
to make this Supplemental Indenture a valid, binding and legal agreement
enforceable in accordance with its terms for the purposes expressed herein, in
accordance with its terms, have been duly done and performed.
NOW, THEREFORE, in consideration of the premises and the covenants
and agreements contained herein, and for other good and valuable consideration
the receipt of which is hereby acknowledged, the Issuers, MeriStar, the
Subsidiary Guarantors, Successor and the Trustee hereby agree as follows:
ARTICLE I
REPRESENTATIONS OF MERISTAR AND SUCCESSOR
1.1. MeriStar represents and warrants to the Trustee as follows:
(a) MeriStar is a Maryland corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland.
(b) The execution, delivery and performance by it of this
Supplemental Indenture have been authorized and approved by all necessary
corporate action on its part.
1.2. Successor represents and warrants to the Trustee as follows:
(a) Successor is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance by it of this
Supplemental Indenture have been authorized and approved by all necessary
limited liability company action on its part.
1.3. Each of the Subsidiary Guarantors represents and warrants to
the Trustee as follows:
(a) It is duly organized, validly existing and in good standing
under its jurisdiction of organization.
(b) The execution, delivery and performance by it of this
Supplemental Indenture have been authorized and approved by all necessary
company or partnership action, as applicable, on its part.
1.4. Each of MeriStar and Successor represents and warrants to
the Trustee that upon the later of the filing and acceptance for record by the
Maryland State Department of Assessments and Taxation and the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware or
at such other time thereafter as is provided therein (the "Effective Time"),
the Merger will be effective in accordance with the terms of the Merger
Agreement and applicable law.
ARTICLE II
ASSUMPTION AND AGREEMENTS
2.1. In accordance with Section 5.1 of the Indenture, Successor
hereby expressly assumes all of the obligations of MeriStar under its
Guarantee of the Notes and the Indenture.
2.2. Pursuant to Section 5.2 of the Indenture, Successor shall
succeed to, and be substituted for, and may exercise every right and power of,
MeriStar under the Indenture and its Guarantee of the Notes with the same
effect as if Successor had been named as "the Parent" in the Indenture and the
Notes; and thereafter MeriStar shall be relieved of all further obligations
and covenants under the Indenture and its Guarantee of the Notes.
ARTICLE III
AMENDMENTS
The references in:
3.1. The preambles to the Indenture to "MeriStar Hospitality
Corporation, a Maryland corporation (the "Parent")" are hereby amended to read
"Alcor Acquisition LLC, a Delaware limited liability company ("Alcor")";
3.2. Section 11.2 to the addresses for notices for each of the
Issuers and MeriStar are hereby amended to read:
"If to any Issuer:
MeriStar Hospitality Operating Partnership, L.P.
c/o Blackstone Real Estate Partners V L.P.
345 Park Avenue
New York, NY 10154
Attention: Kenneth A. Caplan
Telecopier No.: (212) 583-5202
With a copy to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
Attention: Brian M. Stadler, Esq.
Andrew R. Keller, Esq.
Telecopier No.: (212) 455-2502"
"If to Alcor:
Alcor Acquisition LLC
c/o Blackstone Real Estate Partners V L.P.
345 Park Avenue
New York, NY 10154
Attention: Kenneth A. Caplan
Telecopier No.: (212) 583-5202
With a copy to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
Attention: Brian M. Stadler, Esq.
Andrew R. Keller, Esq.
Telecopier No.: (212) 455-2502"
3.3. Each other reference in the Indenture and the Notes to "the
Parent" shall be amended and deemed to be a reference to "Alcor".
3.4. Except as amended hereby, the Indenture, the Notes and the
Guarantees of the Notes are in all respects ratified and confirmed and all the
terms thereof shall remain in full force and effect and the Indenture, as so
amended, shall be read, taken and construed as one and the same instrument.
ARTICLE IV
MISCELLANEOUS
4.1. This Supplemental Indenture shall become effective as of the
Effective Time.
4.2. The internal law of the State of New York shall govern and
be used to construe this Supplemental Indenture.
4.3. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
4.4. The Article headings herein are for convenience only and
shall not affect the construction hereof.
4.5. If any provision of this Supplemental Indenture limits,
qualifies or conflicts with any provision of the Trust Indenture Act that may
not be so limited, qualified or conflicted with, such provision of such Act
shall control. If any provision of this Supplemental Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the provision of such Act shall be deemed to apply to the Indenture
as so modified or to be excluded by this Supplemental Indenture, as the case
may be.
4.6. In case any provision in this Supplemental Indenture shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
4.7. Nothing in this Supplemental Indenture, the Indenture or the
Notes, express or implied, shall give to any person, other than the parties
hereto and thereto and their successors hereunder and thereunder and the
Holders of Notes, any benefit of any legal or equitable right, remedy or claim
under the Indenture, this Supplemental Indenture or the Notes.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
ISSUERS:
MERISTAR HOSPITALITY OPERATING
PARTNERSHIP, L.P., a Delaware
limited partnership
By: MeriStar Hospitality Corporation,
as general partner
By /s/ Bruce G. Wiles
----------------------------------
Name: Bruce G. Wiles
Title: President
MERISTAR HOSPITALITY FINANCE
CORP. a Delaware corporation
By /s/ Bruce G. Wiles
----------------------------------
Name: Bruce G. Wiles
Title: President
PARENT:
MERISTAR HOSPITALITY CORPORATION,
a Maryland corporation
By /s/ Bruce G. Wiles
----------------------------------
Name: Bruce G. Wiles
Title: President
SUCCESSOR:
ALCOR ACQUISITION LLC, a Delaware
limited liability company
By: /s/ Kenneth A. Caplan
----------------------------------
Name: Kenneth A. Caplan
Title: Managing Director and
Vice President
SUBSIDIARY GUARANTORS:
MERISTAR LP, L.L.C., a Nevada limited
liability company
By /s/ Bruce G. Wiles
----------------------------------
Name: Bruce G. Wiles
Title: President
MERISTAR HOTEL LESSEE, INC., a Delaware
corporation
By /s/ Bruce G. Wiles
----------------------------------
Name: Bruce G. Wiles
Title: President
AGH PSS I, INC., a Delaware corporation
By /s/ Bruce G. Wiles
----------------------------------
Name: Bruce G. Wiles
Title: President
MERISTAR ACQUISITION COMPANY, L.L.C., a
Delaware limited liability company
By: MeriStar Hospitality Operating
Partnership, L.P., a Delaware
limited partnership, member
By: MeriStar Hospitality
Corporation, a Maryland
corporation, general partner
By /s/ Bruce G. Wiles
------------------------
Name: Bruce G. Wiles
Title: President
AGH UPREIT LLC, a Delaware limited
liability company
By: MeriStar Hospitality Operating
Partnership, L.P., a Delaware
limited partnership, member
By: MeriStar Hospitality
Corporation, a Maryland
corporation, general partner
By /s/ Bruce G. Wiles
------------------------
Name: Bruce G. Wiles
Title: President
MERISTAR SUB 4C, L.P.
MERISTAR SUB 4F, L.P.
MERISTAR SUB 4E, L.P.
MERISTAR SUB 4H, L.P.
MERISTAR SUB 4B, L.P.
MERISTAR SUB 1D, L.P.
MERISTAR SUB 1C, L.P.. each a Delaware
limited partnership
By: MeriStar Hospitality Operating
Partnership, L.P., a Delaware
limited partnership, member
By: MeriStar Hospitality
Corporation, a Maryland
corporation, general partner
By /s/ Bruce G. Wiles
------------------------
Name: Bruce G. Wiles
Title: President
MERISTAR SUB 7H, L.L.C.
MERISTAR SUB 1B, L.L.C.
MERISTAR SUB 7G, L.L.C.
MERISTAR SUB 6J, L.L.C.
MERISTAR SUB 6K, L.L.C.
MERISTAR SUB 6I, L.L.C.
MERISTAR SUB 3D, L.L.C.
MERISTAR SUB 5R, L.L.C.
MERISTAR SUB 5A, L.L.C.
MERISTAR SUB 6G, L.L.C.
MERISTAR SUB 3A, L.L.C.
MERISTAR SUB 1A, L.L.C.
MERISTAR SUB 5E, L.L.C.
MERISTAR SUB 5D, L.L.C.
MERISTAR SUB 4J, L.L.C.
CAPSTAR CHERRY HILL COMPANY, L.L.C.
MERISTAR SUB 6C, L.L.C.
MERISTAR SUB 4D, L.L.C.
MERISTAR SUB 6E, L.L.C.
MERISTAR SUB 6D, L.L.C.
MERISTAR SUB 7E, L.L.C.
MERISTAR SUB 3C, L.L.C.
MERISTAR SUB 7F, L.L.C.
MERISTAR SUB 7D, L.L.C.
MERISTAR SUB 8E, L.L.C.
MERISTAR SUB 8C, L.L.C.
MERISTAR SUB 6B, L.L.C.
MERISTAR SUB 6A, L.L.C.
MERISTAR SUB 6F, L.L.C.
MERISTAR SUB 8B, L.L.C.
MERISTAR SUB 5K, LLC
MERISTAR SUB 5H, LLC
MERISTAR SUB 2A, LLC
MERISTAR SUB 8G, LLC, each a Delaware
limited liability Company
By: MeriStar Hospitality Operating
Partnership, L.P., a Delaware
limited partnership, member
By: MeriStar Hospitality
Corporation, a Maryland
corporation, general partner
By /s/ Bruce G. Wiles
------------------------
Name: Bruce G. Wiles
Title: President
MERISTAR SUB 6L, LLC, a Delaware limited
liability company
By: AGH UPREIT LLC,
a Delaware limited liability
company, member
By: MeriStar Hospitality Operating
Partnership, L.P., a Delaware
limited partnership, member
By: MeriStar Hospitality
Corporation, a Maryland
corporation, member
By /s/ Bruce G. Wiles
------------------------
Name: Bruce G. Wiles
Title: President
MeriStar Hospitality Operating
Partnership, L.P., a Delaware limited
partnership, member
By: MeriStar Hospitality Corporation,
a Maryland corporation, general
partner
By: /s/ Bruce G. Wiles
------------------------------
Name: Bruce G. Wiles
Title: President
MDV LIMITED PARTNERSHIP, a Texas limited
partnership
MERISTAR SUB 4A, LTD., a Texas limited
partnership
MERISTAR SUB 5G, LIMITED PARTNERSHIP, a
Florida limited partnership
MERISTAR SUB 6H, L.P., a Delaware
limited partnership
By: AGH UPREIT LLC,
a Delaware limited liability
company, their general partner
By: MeriStar Hospitality Operating
Partnership, L.P., a Delaware
limited partnership, member
By: MeriStar Hospitality
Corporation, a Maryland
corporation, general
partner
By /s/ Bruce G. Wiles
------------------------
Name: Bruce G. Wiles
Title: President
MERISTAR SUB 6M COMPANY, a Maryland
general partnership
By: MeriStar Sub 6A, L.L.C.,
a Delaware limited liability
company, partner
By: MeriStar Hospitality Operating
Partnership, L.P., a Delaware
limited partnership, member
By: MeriStar Hospitality
Corporation, a Maryland
corporation, general
partner
By /s/ Bruce G. Wiles
------------------------
Name: Bruce G. Wiles
Title: President
MeriStar Sub 6F, L.L.C.,
a Delaware limited liability company,
partner
By: MeriStar Hospitality Operating
Partnership, L.P., a Delaware
limited partnership, member
By: MeriStar Hospitality
Corporation, a Maryland
corporation, general
partner
By /s/ Bruce G. Wiles
------------------------
Name: Bruce G. Wiles
Title: President
MERISTAR SUB 7A JOINT VENTURE, an Ohio
general partnership
By: AGH UPREIT LLC,
a Delaware limited liability
company, partner
By: MeriStar Hospitality Operating
Partnership, L.P., a Delaware
limited partnership, member
By: MeriStar Hospitality
Corporation, a Maryland
corporation, member
By /s/ Bruce G. Wiles
------------------------
Name: Bruce G. Wiles
Title: President
MeriStar Hospitality Operating
Partnership, L.P., a Delaware limited
partnership, member
By: MeriStar Hospitality Corporation,
a Maryland corporation, general
partner
By: /s/ Bruce G. Wiles
-----------------------------
Name: Bruce G. Wiles
Title: President
MERISTAR SUB 8F, LTD., a Texas general
partnership
By: MeriStar Sub 8G, LLC
a Delaware limited liability
company, its general partner
By: MeriStar Hospitality Operating
Partnership, L.P., a Delaware
limited partnership, its
managing member
By: MeriStar Hospitality
Corporation, a Maryland
corporation, its general
partner
By /s/ Bruce G. Wiles
------------------------
Name: Bruce G. Wiles
Title: President
MERISTAR HOSPITALITY FINANCE CORP. II,
a Delaware corporation
By: /s/ Bruce G. Wiles
----------------------------------
Name: Bruce G. Wiles
Title: President
MERISTAR HOSPITALITY FINANCE CORP. III,
a Delaware corporation
By: /s/ Bruce G. Wiles
----------------------------------
Name: Bruce G. Wiles
Title: President
Effective as to the following
Guarantor as of the effective time of
the merger of MeriStar Sub 5G, Limited
Partnership into MeriStar Sub 5G, LP:
MERISTAR SUB 5G, LP, a Delaware
limited partnership
By: ALCOR GP LLC, a Delaware limited
liability company, general partner
By: /s/ Kenneth A. Caplan
----------------------------------
Name: Kenneth A. Caplan
Title: Managing Director and
Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: /s/ Angelita Pena
----------------------------------
Name: Angelita Pena
Title: Assistant Vice President