EXHIBIT 4.3
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EXECUTION COPY
SUPPLEMENTAL INDENTURE, dated as of May 2, 2006 (this "SUPPLEMENTAL
INDENTURE"), among MeriStar Hospitality Corporation, a Maryland corporation
("MERISTAR"), Alcor Acquisition LLC, a Delaware limited liability company
("SUCCESSOR"), and U.S. Bank Trust National Association, as trustee (the
"TRUSTEE").
RECITALS
WHEREAS, MeriStar and the Trustee have executed and delivered an
Indenture, dated as of July 1, 2003 (the "ORIGINAL INDENTURE"), as
supplemented by an Officers' Certificate dated July 1, 2003 (the "OFFICERS'
CERTIFICATE," and, together with the Original Indenture, the "SUPPLEMENTED
ORIGINAL INDENTURE" and, as amended by this Supplemental Indenture,
collectively, the "INDENTURE"), to establish the terms of and provide for the
issuance and delivery by MeriStar of its 9.50% Convertible Subordinated Notes
due 2010 (the "NOTES");
WHEREAS, MeriStar and Successor have entered into an Agreement and
Plan of Merger, dated as of February 20, 2006 (the "MERGER AGREEMENT"), by and
among MeriStar, MeriStar Hospitality Operating Partnership, L.P. ("MeriStar
Operating Partnership"), Alcor Holdings LLC ("Alcor Holdings"), Alcor
Acquisition Inc., Successor and Alcor Acquisition L.P. ("Alcor L.P."),
pursuant to which, upon satisfaction of the terms of the Merger Agreement,
MeriStar will merge with and into Successor, a wholly owned subsidiary of
Alcor Holdings, with Successor being the surviving company (the "MERGER"), and
Alcor L.P., whose general partner is an indirect, wholly owned subsidiary of
Alcor Holdings, will merge with and into MeriStar Operating Partnership, with
MeriStar Operating Partnership being the surviving partnership;
WHEREAS, Section 9.01 of the Original Indenture provides that
MeriStar and the Trustee may enter into supplemental indentures without the
consent of any Holder to comply with Article 8 of the Original Indenture;
WHEREAS, Section 5.6 of the Officers' Certificate provides that in
the event of certain mergers, the successor to such merger and the Trustee
shall enter into a supplemental indenture to comply with such Section;
WHEREAS, Successor desires to enter into this Supplemental Indenture
and to provide that, effective as of the Effective Time (as defined below),
Successor will expressly assume all of the obligations of MeriStar under the
Indenture and the Notes and to provide that upon a Holder's conversion of a
Note in accordance with the terms of the Indenture from and after the
Effective Time, such Holder will receive the amount of cash which such Holder
would have received upon the Merger if such Holder had converted such Note
immediately prior to the Effective Time; and
WHEREAS, all things necessary for the execution of this Supplemental
Indenture, and to make this Supplemental Indenture a valid supplement to the
Supplemented Original Indenture according to its terms and a valid and binding
agreement of Successor, have been done.
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NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows for the benefit of each other and for the equal and ratable benefit of
the Holders of the Notes:
ARTICLE 1
REPRESENTATIONS OF MERISTAR AND SUCCESSOR
SECTION 1.01. MeriStar represents and warrants to the Trustee as
follows:
(i) MeriStar is a Maryland corporation duly organized, validly
existing and in good standing under the laws of the State of Maryland.
(ii) The execution, delivery and performance by it of this
Supplemental Indenture have been authorized and approved by all necessary
corporate action on its part.
SECTION 1.02. Successor represents and warrants to the Trustee as
follows:
(i) Successor is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Delaware.
(ii) 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.
SECTION 1.03. Each of MeriStar and Successor represents and
warrants to the Trustee that upon the later of the filling 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 2
RATIFICATION; DEFINITIONS
SECTION 2.01. SUPPLEMENTAL INDENTURE. This Supplemental Indenture
constitutes an integral part of, is supplemental to, and is entered into in
accordance with, Section 9.01 of the Original Indenture and Section 5.6 of the
Officers' Certificate and, except as modified, amended and supplemented by
this Supplemental Indenture, the provisions of the Supplemented Original
Indenture are ratified and confirmed in all respects and shall remain in full
force and effect.
SECTION 2.02. DEFINITIONS. For all purposes of this Supplemental
Indenture:
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(a) Capitalized terms used herein without definition shall have
the meanings specified in the Supplemented Original Indenture; and
(b) The terms "herein," "hereof," "hereunder" and other words of
similar import refer to this Supplemental Indenture.
ARTICLE 3
AMENDMENTS TO THE SUPPLEMENTED ORIGINAL INDENTURE
SECTION 3.01. ASSUMPTION OF OBLIGATIONS BY SUCCESSOR. Successor
hereby expressly assumes all of the obligations of MeriStar under the Notes
and the Indenture, including, without limitation, (i) the due and punctual
payment of the principal, premium, if any, and interest on all of the Notes,
as applicable, (ii) the payment of the Fixed Sum Conversion Amount (as defined
below) upon conversion of any Note and (iii) the performance and observance of
every covenant of the Indenture on the part of MeriStar to be performed or
observed.
SECTION 3.02. AMENDMENT TO THE FIRST PARAGRAPH. The first
paragraph of each of the Original Indenture and the Officers' Certificate is
hereby amended so that the term "the Company" as used therein shall mean
Successor. Pursuant to Section 8.03 of the Original Indenture, Successor shall
succeed to, and be substituted for, and may exercise every right and power of,
MeriStar under the Supplemented Original Indenture and the Notes with the same
effect as if Successor had been named as "the Company" therein; and
thereafter, MeriStar shall be relieved of all obligations and covenants under
the Supplemented Original Indenture and the Notes.
SECTION 3.03. AMENDMENTS TO CERTAIN DEFINITIONS. Section 1.01 of
the Original Indenture is hereby amended so that the terms "Effective Time,"
"Merger," "Merger Agreement," "Successor" and "Fixed Sum Conversion Amount"
shall have the meanings therein given them in this Supplemental Indenture.
SECTION 3.04. AMENDMENT TO RIGHT TO CONVERT. Pursuant to Section
5.6 of the Officers' Certificate, and subject to the terms and conditions of
the Notes and the Supplemented Original Indenture, from and after the
Effective Time, any Note outstanding on the Effective Time shall be
convertible into a fixed sum of $1,026.52 in cash, without interest, less any
required withholding taxes, per $1,000 principal amount at maturity thereof
(the "FIXED SUM CONVERSION AMOUNT"). The Notes and Section 5.1 of the
Officers' Certificate are hereby deemed amended accordingly.
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SECTION 3.05. AMENDMENT TO SECTION 5.5 OF THE OFFICERS'
CERTIFICATE. The Fixed Sum Conversion Amount shall not be subject to further
adjustment pursuant to Section 5.5 of the Officers' Certificate. The Notes and
Section 5.5 of the Officers' Certificate are hereby amended accordingly.
SECTION 3.06. AMENDMENT TO SECTION 1.05 OF THE ORIGINAL INDENTURE.
Clause (b) of Section 1.05 of the Original Indenture is hereby amended with
respect to the Notes by replacing the address of the relevant issuer with the
following:
Alcor Holdings LLC
c/o Blackstone Real Estate Partners V L.P.
345 Park Avenue
New York, NY 10154
Attention: Kenneth A. Caplan
ARTICLE 4
AMENDMENTS TO CERTAIN PROVISIONS OF THE NOTES;
NOTATION ON THE NOTES
SECTION 4.01. AMENDMENTS TO THE NOTES. Paragraph 17 of the reverse
of the Notes is hereby amended by replacing it in its entirety with the
following:
"Subject to the provisions of the Indenture, the Holder
hereof has the right, at its option, at any time from and
after the Effective Time and prior to the close of business
on April 1, 2010, to convert the principal hereof or any
portion of such principal which is $1,000 principal amount
at maturity or an integral multiple thereof, for a fixed sum
of $1,026.52 in cash, without interest, less any required
withholding taxes, per $1,000 principal amount at maturity
thereof, upon surrender of this Note, together with a
conversion notice as provided in the Indenture, to Alcor
Acquisition LLC at the office or agency of Alcor Acquisition
LLC maintained for that purpose in the Borough of Manhattan,
The City of New York, or at the option of such Holder, the
Corporate Trust Office, and, unless the cash payable on
conversion is to be paid in the same name as this Note, duly
endorsed by, or accompanied by instruments of transfer in
form satisfactory to the Company duly executed by, the
Holder or by its duly authorized attorney. No adjustment in
respect of accrued interest will be made upon any
conversion; provided, however, that if this Note shall be
surrendered for conversion during the period from the close
of business on any record date for the payment of interest
to the close of business on the Business Day preceding the
interest payment date, this Note must be accompanied by an
amount, in New York Clearing House funds or other funds
acceptable to the Company, equal to the interest payable on
such interest payment date on the principal amount at
maturity being converted."
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SECTION 4.02. NOTATION ON NOTES.
(a) The Notes, as amended by the provisions of this Supplemental
Indenture, shall bear a notation substantially to the following effect:
"THE TERMS OF THIS NOTE HAVE BEEN AMENDED TO THE EXTENT
PROVIDED IN THE SUPPLEMENTAL INDENTURE, DATED AS OF MAY 2,
2006, AMONG ALCOR ACQUISITION LLC, MERISTAR HOSPITALITY
CORPORATION AND THE TRUSTEE. THE TERMS OF THIS NOTE INCLUDE
THOSE STATED IN THE INDENTURE, AS SUPPLEMENTED BY THE
SUPPLEMENTAL INDENTURE, AND HOLDERS ARE REFERRED TO THE
INDENTURE AND THE SUPPLEMENTAL INDENTURE FOR A STATEMENT OF
THOSE TERMS."
(b) The Trustee hereby agrees to cause the Notes to bear the
above notation pursuant to, and upon satisfaction of, the conditions set forth
in Article 9 of the Original Indenture and Section 5.6 of the Officers'
Certificate.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. EFFECTIVENESS. This Supplemental Indenture shall
become effective as of the Effective Time.
SECTION 5.02. EFFECT OF HEADINGS. The Section headings herein are
for convenience only and shall not affect the construction hereof.
SECTION 5.03. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included or deemed included in this Supplemental Indenture by
any of the provisions of the Trust Indenture Act, such required provision
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, such provision of the Trust Indenture Act shall be deemed to apply
to this Supplemental Indenture as so modified or shall be excluded, as the
case may be.
SECTION 5.04. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution
of this Supplemental Indenture, the Supplemented Original Indenture shall be
modified in accordance herewith, and this Supplemental Indenture shall form a
part of the Supplemented Original Indenture for all purposes; and every Holder
of Securities heretofore and hereafter authenticated and delivered hereunder
shall be bound hereby.
SECTION 5.05. SUCCESSORS AND ASSIGNS. All agreements of Successor
in this Supplemental Indenture shall bind its successors. All agreements of
the Trustee in this Supplemental Indenture shall bind its successors.
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SECTION 5.06. MODIFICATION OF NOTES. In order to give effect to
this Supplemental Indenture, the modification, annotation and/or exchange of
the Notes shall be evidenced by a substitution of the relevant page thereto.
SECTION 5.07. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE AND THE
NOTES WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
SECTION 5.08. MULTIPLE ORIGINALS. 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. One signed
copy is enough to prove this Supplemental Indenture.
SECTION 5.09. SEPARABILITY CLAUSE. In case any provision in this
Supplemental Indenture or the Notes 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.
SECTION 5.10. TRUSTEE. The Trustee makes no representations as to
the validity or sufficiency of this Supplemental Indenture. The recitals and
statements herein are deemed to be those of Successor and MeriStar and not of
the Trustee.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned, being duly authorized,
have executed this Supplemental Indenture on behalf of the respective parties
hereto as of the date first above written.
MERISTAR HOSPITALITY CORPORATION
By: /s/ Bruce G. Wiles
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Name: Bruce G. Wiles
Title: President
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ALCOR ACQUISITION LLC
By: /s/ Kenneth A. Caplan
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Name: Kenneth A. Caplan
Title: Managing Director and
Vice President
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U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By /s/ Angelita Pena
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Name: Angelita Pena
Title: Assistant Vice President