EXECUTION COPY
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EXHIBIT 4.14
MERISTAR HOSPITALITY OPERATING PARTNERSHIP, L.P.,
MERISTAR HOSPITALITY FINANCE CORP.,
MERISTAR HOSPITALITY CORPORATION,
and
SUBSIDIARY GUARANTORS
$300,000,000
SERIES A AND SERIES B
9% SENIOR NOTES DUE 2008
$200,000,000
SERIES C AND SERIES D
9 % SENIOR NOTES DUE 2011
INDENTURE
Dated as of January 26, 2001
U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
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TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE............................ 1
SECTION 1.1. DEFINITIONS................................................ 1
SECTION 1.2. OTHER DEFINITIONS.......................................... 16
SECTION 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.......... 17
SECTION 1.4. RULES OF CONSTRUCTION...................................... 18
SECTION 1.5. ONE CLASS OF SECURITIES.................................... 18
ARTICLE 2 THE NOTES............................................................. 18
SECTION 2.1. FORM AND DATING............................................ 18
SECTION 2.2. EXECUTION AND AUTHENTICATION............................... 20
SECTION 2.3. REGISTRAR AND PAYING AGENT................................. 20
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST........................ 21
SECTION 2.5. HOLDERS LISTS.............................................. 21
SECTION 2.6. TRANSFER AND EXCHANGE...................................... 21
SECTION 2.7. REPLACEMENT NOTES.......................................... 22
SECTION 2.8. OUTSTANDING NOTES.......................................... 22
SECTION 2.9. TREASURY NOTES............................................. 23
SECTION 2.10. TEMPORARY NOTES............................................ 23
SECTION 2.11. CANCELLATION............................................... 23
SECTION 2.12. DEFAULTED INTEREST......................................... 23
SECTION 2.13. RECORD DATE................................................ 24
SECTION 2.14. CUSIP NUMBER............................................... 24
SECTION 2.15. RESTRICTIVE LEGENDS........................................ 24
SECTION 2.16. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITY.................. 27
SECTION 2.17. SPECIAL TRANSFER PROVISIONS................................ 28
ARTICLE 3 REDEMPTIONS AND OFFERS TO PURCHASE.................................... 29
SECTION 3.1. NOTICES TO TRUSTEE......................................... 29
SECTION 3.2. SELECTION OF NOTES TO BE REDEEMED OR PURCHASED............. 30
SECTION 3.3. NOTICE OF REDEMPTION....................................... 31
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION............................. 31
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE................................ 32
SECTION 3.6. NOTES REDEEMED IN PART..................................... 32
SECTION 3.7. OPTIONAL REDEMPTION........................................ 32
SECTION 3.8. MANDATORY REDEMPTION....................................... 33
SECTION 3.9. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS........ 33
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ARTICLE 4 COVENANTS.......................................................................................... 35
SECTION 4.1. PAYMENT OF NOTES........................................................................ 35
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY......................................................... 35
SECTION 4.3. SEC REPORTS............................................................................. 36
SECTION 4.4. COMPLIANCE CERTIFICATE.................................................................. 36
SECTION 4.5. TAXES................................................................................... 37
SECTION 4.6. STAY, EXTENSION AND USURY LAWS.......................................................... 37
SECTION 4.7. LIMITATION ON RESTRICTED PAYMENTS....................................................... 37
SECTION 4.8. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES. 41
SECTION 4.9. LIMITATION ON ADDITIONAL INDEBTEDNESS AND ISSUANCE OF CERTAIN CAPITAL STOCK............. 42
SECTION 4.10. LIMITATION ON SALE OF ASSETS............................................................ 44
SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES.............................................. 46
SECTION 4.12. LIMITATION ON LIENS..................................................................... 47
SECTION 4.13. CORPORATE EXISTENCE..................................................................... 47
SECTION 4.14. CHANGE OF CONTROL....................................................................... 47
SECTION 4.15. SUBSIDIARY GUARANTEES................................................................... 48
SECTION 4.16. LINE OF BUSINESS........................................................................ 48
SECTION 4.17. PAYMENTS FOR CONSENT.................................................................... 49
SECTION 4.18. MAINTENANCE OF TOTAL UNENCUMBERED ASSETS................................................ 49
SECTION 4.19. CONSENTS UNDER THE CREDIT AGREEMENT..................................................... 49
SECTION 4.20. CERTAIN COVENANTS OF MERISTAR FINANCE................................................... 49
SECTION 4.21. COVENANTS UPON ATTAINMENT AND MAINTENANCE OF AN INVESTMENT GRADE RATING................. 49
ARTICLE 5 SUCCESSORS......................................................................................... 49
SECTION 5.1. WHEN THE COMPANY MAY MERGE, ETC......................................................... 49
SECTION 5.2. SUCCESSOR SUBSTITUTED................................................................... 50
ARTICLE 6 DEFAULTS AND REMEDIES.............................................................................. 51
SECTION 6.1. EVENTS OF DEFAULT....................................................................... 51
SECTION 6.2. ACCELERATION............................................................................ 53
SECTION 6.3. OTHER REMEDIES.......................................................................... 53
SECTION 6.4. WAIVER OF PAST DEFAULTS................................................................. 54
SECTION 6.5. CONTROL BY MAJORITY..................................................................... 54
SECTION 6.6. LIMITATION ON SUITS..................................................................... 54
SECTION 6.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.................................................... 55
SECTION 6.8. COLLECTION SUIT BY TRUSTEE.............................................................. 55
SECTION 6.9. TRUSTEE MAY FILE PROOFS OF CLAIM........................................................ 55
SECTION 6.10. PRIORITIES.............................................................................. 56
SECTION 6.11. UNDERTAKING FOR COSTS................................................................... 56
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ARTICLE 7 TRUSTEE............................................................................................ 56
SECTION 7.1. DUTIES OF TRUSTEE....................................................................... 56
SECTION 7.2. RIGHTS OF TRUSTEE....................................................................... 57
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE............................................................ 58
SECTION 7.4. TRUSTEE'S DISCLAIMER.................................................................... 59
SECTION 7.5. NOTICE OF DEFAULTS...................................................................... 59
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS........................................................... 59
SECTION 7.7. COMPENSATION AND INDEMNITY.............................................................. 59
SECTION 7.8. REPLACEMENT OF TRUSTEE.................................................................. 60
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC........................................................ 61
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION........................................................... 62
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY....................................... 62
ARTICLE 8 DISCHARGE OF INDENTURE............................................................................. 62
SECTION 8.1. DEFEASANCE AND DISCHARGE OF THIS INDENTURE AND THE NOTES................................ 62
SECTION 8.2. LEGAL DEFEASANCE AND DISCHARGE.......................................................... 63
SECTION 8.3. COVENANT DEFEASANCE..................................................................... 64
SECTION 8.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.............................................. 64
SECTION 8.5. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST; OTHER MISCELLANEOUS
PROVISION............................................................................... 66
SECTION 8.6. REPAYMENT TO THE ISSUERS................................................................ 67
SECTION 8.7. REINSTATEMENT........................................................................... 67
ARTICLE 9 AMENDMENTS......................................................................................... 67
SECTION 9.1. WITHOUT CONSENT OF HOLDERS.............................................................. 67
SECTION 9.2. WITH CONSENT OF HOLDERS................................................................. 68
SECTION 9.3. COMPLIANCE WITH TRUST INDENTURE ACT..................................................... 70
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS....................................................... 70
SECTION 9.5. NOTATION ON OR EXCHANGE OF NOTES........................................................ 70
SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS, ETC......................................................... 70
ARTICLE 10 GUARANTEES........................................................................................ 71
SECTION 10.1. GUARANTEES.............................................................................. 71
SECTION 10.2. WHEN A SUBSIDIARY GUARANTOR MAY MERGE, ETC.............................................. 72
SECTION 10.3. LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY.......................................... 73
SECTION 10.4. RELEASE OF A GUARANTOR.................................................................. 73
ARTICLE 11 MISCELLANEOUS..................................................................................... 74
SECTION 11.1. TRUST INDENTURE ACT CONTROLS............................................................ 74
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SECTION 11.2. NOTICES..................................................... 74
SECTION 11.3. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS................. 75
SECTION 11.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.......... 75
SECTION 11.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION............... 76
SECTION 11.6. RULES BY TRUSTEE AND AGENTS................................. 76
SECTION 11.7. LEGAL HOLIDAYS.............................................. 76
SECTION 11.8. RECOURSE AGAINST OTHERS..................................... 76
SECTION 11.9. DUPLICATE ORIGINALS......................................... 77
SECTION 11.10. GOVERNING LAW............................................... 77
SECTION 11.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS............... 77
SECTION 11.12. SUCCESSORS.................................................. 77
SECTION 11.13. SEVERABILITY................................................ 77
SECTION 11.14. COUNTERPART ORIGINALS....................................... 77
SECTION 11.15. TABLE OF CONTENTS, HEADINGS, ETC............................ 77
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EXHIBITS
Exhibit A-1 Form of 9% Note
Exhibit A-2 Form of 9 % Note
Exhibit B Form of Supplemental Indenture
Exhibit C Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S
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INDENTURE dated as of January 26, 2001 among MeriStar Hospitality
Operating Partnership, L.P., a Delaware limited partnership (the "Company"),
MeriStar Hospitality Finance Corp., a Delaware corporation ("MeriStar Finance";
and collectively with the Company, the "Issuers"), MeriStar Hospitality
Corporation, a Maryland corporation (the "Parent"), the Subsidiary Guarantors
(as defined herein) and U.S. Bank Trust National Association, as trustee (the
"Trustee").
Each of the parties hereto agrees as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the 9% Series A
Senior Notes due 2008 of the Issuers (the "Initial 9% Notes"), the 9% Series B
Senior Notes due 2008 of the Issuers if and when issued in the Exchange Offer
(the "Exchange 9% Notes," and, together with the Initial 9% Notes, the "9%
Notes"), the 9% Series C Senior Notes of the Issuers due 2011 (the "Initial 9%
Notes") and the 9% Series D Senior Notes of the Issuers due 2011 if and when
issued in the Exchange Offer (the "Exchange 9?% Notes," and together with the
Initial 9% Notes, the "9% Notes"). The 9% Notes and the 9% Notes are
collectively referred to herein as the "Notes," the Exchange 9% Notes and the
Exchange 9% Notes are collectively referred to herein as the "Exchange Notes"
and the Initial 9% Notes and the Initial 9% Notes are collectively referred to
herein as the "Initial Notes."
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.1. DEFINITIONS.
"Adjusted Consolidated Net Tangible Assets" means the total amount of
the assets of the Parent, the Company and their respective Restricted
Subsidiaries on a consolidated basis (less applicable depreciation, amortization
and other valuation reserves), except to the extent resulting from write-ups of
capital assets (excluding write-ups in connection with accounting for
acquisitions in conformity with GAAP), after deducting from the total amount of
assets: (1) all of the current liabilities of the Parent, the Company and their
respective Restricted Subsidiaries on a consolidated basis, excluding
intercompany items, and (2) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, all as set
forth on the most recent quarterly or annual consolidated balance sheet of the
Parent, the Company and their respective Restricted Subsidiaries, prepared in
conformity with GAAP and filed with the SEC or otherwise provided to the
Trustee.
"Adjusted Total Assets" means, for any Person, the Total Assets for
such Person and its Restricted Subsidiaries as of any Transaction Date, as
adjusted to reflect the application of the proceeds of the incurrence of
Indebtedness and issuance of Disqualified Stock on such Transaction Date.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified
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Person. For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities,
by agreement or otherwise; provided, however, that beneficial ownership of 10%
or more of the voting securities of a Person shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-Registrar or agent for
service of notices and demands.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Clearstream that apply to such
transfer or exchange.
"Asset Sale" means (i) the sale, lease (other than operating leases in
respect of facilities which are ancillary to the operation of the Company's, the
Parent's or a Restricted Subsidiary's Hospitality Related Business properties or
assets), conveyance or other disposition of any property or assets of the
Company, the Parent or any Restricted Subsidiary (including by way of a sale and
leaseback transaction), (ii) the issuance or sale of Equity Interests of any of
the Company's or the Parent's Restricted Subsidiaries or (iii) any Event of
Loss, other than, with respect to clauses (i), (ii) and (iii) above, the
following: (1) the sale or disposition of personal property held for sale in the
ordinary course of business, (2) the sale or disposal of damaged, worn out or
other obsolete property in the ordinary course of business as long as such
property is no longer necessary for the proper conduct of the business of the
Company, the Parent or such Restricted Subsidiary, as applicable, (3) the
transfer of assets by the Company or the Parent to one of its respective
Restricted Subsidiaries or by a Restricted Subsidiary of the Company or the
Parent to the Company or the Parent or to another Restricted Subsidiary of the
Company or the Parent, (4) (A) the exchange of one or more lodging facilities
and related assets held by the Company, the Parent or a Restricted Subsidiary of
the Company or the Parent for one or more lodging facilities and related assets
of any person or entity, provided that if any other assets are received by the
Company, the Parent or such Restricted Subsidiary in such exchange, such other
consideration is in cash or Cash Equivalents; provided, further, that such cash
or Cash Equivalent consideration shall be deemed to be cash proceeds of an Asset
Sale for the purposes of calculating "Net Proceeds" and applying Net Proceeds,
if any, as described in Section 4.10 hereof, or (B) the issuance of OP Units or
Preferred OP Units as full or partial consideration for the acquisition of
lodging facilities and related assets, provided that the Board of Directors of
the Parent has determined that the terms of any exchange or acquisition are fair
and reasonable and that the fair market value of the assets received by the
Company, the Parent or such Restricted Subsidiary, as set forth in an opinion of
a Qualified Appraiser, are equal to or greater than the fair market value of the
assets exchanged, sold or issued by the Company, the Parent or such Restricted
Subsidiary of the Company or the Parent, (5) any Restricted Payment, permitted
under Section 4.7 hereof, (6) the sale, lease, conveyance or other disposition
of all or substantially all of the assets of the Company or the Parent in
compliance with the provisions of Section 4.14 and Article V hereof, (7) the
conversion of or foreclosure or any mortgage or note, provided that the Company,
the Parent or a Restricted Subsidiary of the Company or the Parent receives the
real property underlying any such mortgage or note or (8) any transaction or
series of related transactions that would otherwise be an Asset Sale where the
fair market value of the assets,
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sold, leased, conveyed or otherwise disposed of was less than $5.0 million or an
Event of Loss or related series of Events of Loss pursuant to which the
aggregate value of property or assets involved in such Event of Loss or Events
of Loss is less than $5.0 million.
"Assumed Indebtedness" means, with respect to any specified Person:
(i) Indebtedness of any other Person existing at the time such other Person
merged with or into or became a Subsidiary of such specified Person and (ii)
Indebtedness encumbering any asset acquired by such specified Person, in each
case excluding Indebtedness incurred in connection with, or in contemplation of
such other Person merging with or into or becoming a Subsidiary of, such
specified Person.
"Board of Directors" means the Board of Directors of the Parent or any
authorized committee of the Board of Directors.
"Business Day" means any day that is not a Saturday, Sunday or a day
on which banking institutions in New York, New York or the city in which the
Corporate Trust Office is located are authorized or obliged by law or executive
order to close.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be so required to be capitalized on the balance sheet in
accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock, including,
without limitation, with respect to partnerships, partnership interests (whether
general or limited) and any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, such partnership.
"Cash Equivalents" means (i) securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality thereof having maturities of not more than six months from the
date of acquisition, (ii) certificates of deposit and eurodollar time deposits
with maturities of six months or less from the date of acquisition, bankers
acceptances with maturities not exceeding six months from the date of
acquisition and overnight bank deposits, in each case with any domestic
commercial bank having capital and surplus in excess of $500 million, (iii)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (i) and (ii) entered into with any
financial institution meeting the qualifications specified in clause (ii) above,
(iv) commercial paper or commercial paper master notes having a rating of at
least P-2 or the equivalent thereof by Xxxxx'x Investors Service, Inc. or at
least A-2 or the equivalent thereof by Standard & Poor's Corporation and in each
case maturing within six months after the date of acquisition, (v) money market
mutual funds that provide daily purchase and redemption features, and (vi)
corporate debt with maturities of not greater than six months and with a rating
of at least A or the equivalent thereof by Standard & Poor's Corporation and a
rating of at least A2 or the equivalent thereof by Xxxxx'x Investors Service,
Inc.
"Change of Control" means the occurrence of any of the following: (i)
the sale, lease or transfer, in one or a series of related transactions, of all
or substantially all of the
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Company's or the Parent's assets to any person or group (as such term is used in
Section 13(d)(3) of the Exchange Act), (ii) the adoption of a plan relating to
the liquidation or dissolution of the Company or the Parent, (iii) the
acquisition by any person or group (as such term is used in Section 13(d)(3) of
the Exchange Act) of a direct or indirect interest in more than 50% of the
ownership of the Parent or, other than by the Parent, of the Company, or the
voting power of the voting stock of the Parent or, other than by the Parent, the
Company's general partner interest, by way of purchase, merger or consolidation
or otherwise (other than a creation of a holding company that does not involve a
change in the beneficial ownership of the Company or the Parent as a result of
such transaction), (iv) the merger or consolidation of the Company or the Parent
with or into another Person or the merger of another Person into the Company or
the Parent with the effect that immediately after such transaction the
stockholders of the Company or the Parent immediately prior to such transaction
hold, directly or indirectly, less than 50% of the total voting power of all
securities generally entitled to vote in the election of directors, managers, or
trustees, or no longer hold the general partner interest, of the Person
surviving such merger or consolidation or (v) the first day on which a majority
of the members of the Board of Directors of the Parent are not Continuing
Directors.
"Clearstream" means Clearstream Banking, S.A. or its successor.
"Company" means MeriStar Hospitality Operating Partnership, L.P., a
Delaware limited partnership, until a successor replaces it in accordance with
the applicable provisions of this Indenture, and thereafter, means such
successor.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus: (a) an
amount equal to any extraordinary loss plus any net loss realized in connection
with an Asset Sale, to the extent such losses were deducted in computing
Consolidated Net Income, plus (b) provisions for taxes based on income or
profits of such Person for such period, to the extent such provision for taxes
was included in computing Consolidated Net Income, plus (c) Consolidated
Interest Expense of such Person for such period to the extent such expense was
deducted in computing Consolidated Net Income, plus (d) Consolidated
Depreciation and Amortization Expense of such Person for such period, to the
extent deducted in computing Consolidated Net Income less (e) noncash items
increasing such Consolidated Net Income for such period in each case, on a
consolidated basis for such Person and its Restricted Subsidiaries and
determined in accordance with GAAP. Notwithstanding the foregoing, the
provision for taxes on the income or profits of, the depreciation and
amortization of and the interest expense of, a Restricted Subsidiary of the
referent Person shall be added to Consolidated Net Income to compute
Consolidated Cash Flow only to the extent (and in the same proportion) that the
Net Income of such Restricted Subsidiary was included in calculating the
Consolidated Net Income of such Person and only if a corresponding amount would
be permitted at the date of determination to be dividended to such Person by
such Restricted Subsidiary without prior governmental approval (that has not
been obtained), and without direct or indirect restriction pursuant to the terms
of its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to that Restricted
Subsidiary or its stockholders. Any calculation of the Consolidated Cash Flow
of an individual hotel property shall be calculated in a manner consistent with
the foregoing.
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"Consolidated Current Liabilities" as of the date of determination
means the aggregate amount of liabilities of the Parent, the Company and their
respective Restricted Subsidiaries, determined on a consolidated basis, which
may properly be classified as current liabilities (including taxes payable as
accrued), on a consolidated basis, after eliminating (i) all intercompany items
between the Parent, the Company and any of their respective Restricted
Subsidiaries and (ii) all current maturities of long-term Indebtedness, all as
determined in accordance with GAAP consistently applied.
"Consolidated Depreciation and Amortization Expense" means, with
respect to any Person for any period, the total amount of depreciation and
amortization expense (including amortization of goodwill and other intangibles
but excluding amortization of prepaid cash expenses that were paid in a prior
period) and the total amount of non-cash charges (other than non-cash charges
that represent an accrual or reserve for cash charges in future periods or which
involved a cash expenditure in a prior period) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis as determined in accordance
with GAAP.
"Consolidated Interest Expense" means, with respect to any Person for
any period, without duplication, the sum of (a) interest expense, whether paid
or accrued, to the extent such expense was deducted in computing Consolidated
Net Income (including amortization of original issue discount, non-cash interest
payments, the interest component of Capital Lease Obligations, and net payments
(if any) pursuant to Hedging Obligations, but excluding amortization of deferred
financing fees), (b) commissions, discounts and other fees and charges paid or
accrued with respect to letters of credit and bankers acceptance financing and
(c) interest for which such Person or its Restricted Subsidiaries is liable,
whether or not actually paid, pursuant to Indebtedness or under a Guarantee of
Indebtedness of any other Person, in each case, calculated for such Person and
its Restricted Subsidiaries for such period on a consolidated basis as
determined in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP (it being understood that the net income of Restricted Subsidiaries
shall be consolidated with that of a Person only to the extent of the
proportionate interest of such Person in such Restricted Subsidiaries), provided
that: (i) the Net Income of any Person that is not a Restricted Subsidiary or
that is accounted for by the equity method of accounting shall be excluded,
whether or not distributed to such Person or one of its Restricted Subsidiaries,
(ii) the Net Income of any Person that is a Restricted Subsidiary and that is
restricted from declaring or paying dividends or other distributions, directly
or indirectly, by operation of the terms of its charter, any applicable
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation or otherwise shall be included only to the extent of the amount of
dividends or distributions paid to the referent Person or a Restricted
Subsidiary, (iii) the Net Income of any Person acquired in a pooling-of-
interests transaction for any period prior to the date of such acquisition shall
be excluded and (iv) the cumulative effect of changes in accounting principles
shall be excluded.
"Consolidated Net Tangible Assets" as of any date of determination,
means the total amount of assets (less accumulated depreciation and
amortization, allowances for doubtful receivables, other applicable reserves and
other similar items properly deducted in determining
6
net assets) which would appear on a consolidated balance sheet of the Parent,
the Company and their respective Restricted Subsidiaries, determined on a
consolidated basis in accordance with GAAP, and after giving effect to purchase
accounting and after deducting therefrom Consolidated Current Liabilities and,
to the extent otherwise included, the amounts of: (i) minority interests in
consolidated Subsidiaries held by Persons other than the Parent, the Company or
one of their respective Subsidiaries; (ii) excess of cost over fair value of
assets of businesses acquired, as determined in good faith by the Board of
Directors; (iii) any revaluation or other write-up in book value of assets
subsequent to the date of this Indenture as a result of a change in the method
of valuation in accordance with GAAP consistently applied; (iv) unamortized debt
discount and expenses and other unamortized deferred charges, goodwill, patents,
trademarks, service marks, trade names, copyrights, licenses, organization or
developmental expenses and other intangible items; (v) treasury stock; and (vi)
cash set apart and held in a sinking or other analogous fund established for the
purpose of redemption or other retirement of Capital Stock to the extent such
obligation is not reflected in Consolidated Current Liabilities.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Parent who (i) was a member of such
Board of Directors on the date of this Indenture or (ii) was nominated for
election or elected to such Board of Directors with the affirmative vote of at
least a majority of the Continuing Directors who were members of such Board at
the time of such nomination or election.
"Corporate Trust Office" shall be at the address of the Trustee
specified in Section 11.2 or such other address as the Trustee may give notice
to the Issuers.
"Credit Agreement" means the Second Amended and Restated Credit
Agreement, dated as of August 3, 1998 and subsequently amended, entered into
between and among the Company and the lenders party thereto, providing for
borrowings and letters of credit, including any related notes, security
documentation, guarantees, collateral documents, instruments and agreements
executed in connection therewith, in each case as amended, modified,
supplemented, restructured, renewed, restated, refunded, replaced or refinanced
or extended, in each case on a senior basis, from time to time on one or more
occasions with respect to the Company or the Parent.
"Credit Facilities" means, with respect to the Company or the Parent,
one or more senior debt facilities (including, without limitation, the Credit
Agreement) or commercial paper facilities with banks or other institutional
lenders providing for borrowings, receivables financings (including through the
sale of receivables to such lenders or to special purpose entities formed to
borrow from such lenders against such receivables) or letters of credit, in each
case, as amended, restated, modified, renewed, refunded, replaced or refinanced
in whole or in part from time to time.
"Default" with respect to any series of Notes means any event that is
or with the passage of time or the giving of notice or both would be an Event of
Default with respect to the Notes of such series.
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"Disqualified Stock" means any Capital Stock (other than OP Units and
Preferred OP Units) which, by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable), or upon the happening
of any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder thereof, in
whole or in part, on or prior to the first anniversary of the later of the date
on which the 9?% Notes mature or the date on which the 9% Notes mature.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for Capital Stock).
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system, or its successor.
"Event of Loss" means, with respect to any property or asset (tangible
or intangible, real or personal), any of the following: (A) any loss,
destruction or damage of such property or asset or (B) any actual condemnation,
seizure or taking by the power of eminent domain or otherwise of such property
or asset, or confiscation of such property or asset or the requisition of the
use of such property or asset.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Indebtedness" means Indebtedness of the Parent, the Company
and their respective Restricted Subsidiaries in existence on the date of this
Indenture (after giving effect to the use of proceeds of the Notes issued
hereunder), excluding, for this purpose, amounts outstanding under the Credit
Agreement and other Indebtedness outstanding pursuant to clause (b) of the
second paragraph of Section 4.9 as in effect on the date of this Indenture.
"Existing Preferred OP Units" means Preferred OP Units issued and
outstanding on the date of this Indenture.
"Fixed Charge Coverage Ratio" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person for such period
to the Fixed Charges of such Person for such period. In the event that the
Company, the Parent or any of their respective Restricted Subsidiaries incurs,
assumes, guarantees or redeems any Indebtedness (other than revolving credit
borrowings that provide working capital in the ordinary course of business) or
issues or redeems Preferred Stock subsequent to the commencement of the period
for which the Fixed Charge Coverage Ratio is being calculated but prior to the
date on which the event for which the calculation of the Fixed Charge Coverage
Ratio is made (the "Calculation Date"), then the Fixed Charge Coverage Ratio
shall be calculated giving pro forma effect to such incurrence, assumption,
guarantee or redemption of Indebtedness, or such issuance or redemption of
Preferred Stock, as if the same had occurred at the beginning of the applicable
four-quarter reference period. For purposes of making the computation referred
to above, acquisitions, dispositions and discontinued operations (as determined
in accordance with GAAP) that have been made by the Company, the Parent or any
of their respective Restricted Subsidiaries, including all mergers,
consolidations and dispositions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation Date
8
shall be calculated on a pro forma basis assuming that all such acquisitions,
dispositions, discontinued operations, mergers, consolidations (and the
reduction of any associated fixed charge obligations resulting therefrom) had
occurred on the first day of the four-quarter reference period.
"Fixed Charges" means, with respect to any Person for any period, the
sum of (a) Consolidated Interest Expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued, to the extent such
expense was deducted in computing Consolidated Net Income and (b) the product of
(i) all cash dividend or distribution payments on any series of Preferred Stock
of such Person or its Restricted Subsidiaries (other than Preferred Stock owned
by such Person or its Restricted Subsidiaries), times (ii) a fraction, the
numerator of which is one and the denominator of which is one minus the then-
current combined federal, state and local statutory tax rate of such Person,
expressed as a decimal, in each case, on a consolidated basis and in accordance
with GAAP; provided, however, that if the cash dividend or distribution on such
Preferred Stock is deductible for federal tax purposes, then the fraction shall
be equal to one.
"Funds From Operations" for any period means the Consolidated Net
Income of the Parent for such period excluding gains or losses from debt
restructurings and sales of depreciable operating property, plus depreciation on
real estate assets and amortization related to real estate assets and other non-
cash charges related to real estate assets, after adjustments for unconsolidated
partnerships and joint ventures plus minority interests, if applicable (it being
understood that the accounts of such Person's Restricted Subsidiaries shall be
consolidated only to the extent of such Person's proportionate interest
therein).
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which were in effect on the date of this Indenture.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which obligations
or guarantee the full faith and credit of the United States of America is
pledged.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business) or otherwise
incurring, assuming or becoming liable for the payment of any principal, premium
or interest, direct or indirect, in any manner (including, without limitation,
letters of credit and reimbursement agreements in respect thereof), of all or
any part of any Indebtedness or other obligation (including agreements to keep-
well and to purchase assets, goods, securities or services).
"Guarantor" means (a) the Parent and (b) any Subsidiary Guarantor, and
in each case its successor, if any.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate
9
collar agreements and (ii) other agreements or arrangements designed to protect
such Person against fluctuations in interest rates or currency exchange rates.
"Holder" means the Person in whose name a Note of any series is
registered on the Registrar's books.
"Hospitality-Related Business" means the lodging business and other
businesses necessary for, incident to, in support of, connected with,
complementary to or arising out of the lodging business, including, without
limitation, (i) developing, managing, operating, improving or acquiring lodging
facilities, restaurants and other food-service facilities and convention or
meeting facilities, and marketing services related thereto, (ii) acquiring,
developing, operating, managing or improving any real estate taken in
foreclosure (or similar settlement) by the Company, the Parent or any of their
respective Restricted Subsidiaries, or any real estate ancillary or connected to
any lodging owned, managed or operated by the Company, the Parent or any of
their respective Restricted Subsidiaries, (iii) owning and managing mortgages
in, or other Indebtedness secured by Liens on, lodging and real estate related
or ancillary to lodging or (iv) other related activities thereto.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or representing Capital
Lease Obligations or the balance deferred and unpaid of the purchase price of
any property or representing any Hedging Obligations, except any such balance
that constitutes an accrued expense or trade payable, if and to the extent any
of the foregoing indebtedness (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet of such Person
prepared in accordance with GAAP, and also includes, to the extent not otherwise
included, the Guarantee of any Indebtedness of such Person or any other Person.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Investment Grade" means a rating of the Notes by both S&P and
Xxxxx'x, each such rating being in one of such agency's four highest generic
rating categories that signifies investment grade (i.e., currently BBB- (or the
equivalent) or higher by S&P and Baa3 (or the equivalent) or higher by Xxxxx'x);
provided in each case such ratings are publicly available; provided, further,
that in the event Moody's or S&P is no longer in existence for purposes of
determining whether the Notes are rated "Investment Grade," such organization
may be replaced by a nationally recognized statistical rating organization (as
defined in rule 436 under the Securities Act) designated by the Company, notice
of which shall be given to the Trustee.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of loans
(including Guarantees), advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the ordinary
course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities and all other items that are
or would be classified as investments on a balance sheet prepared in accordance
with GAAP. If the Company, the Parent or any Restricted Subsidiary of the
Company or the Parent sells or
10
otherwise disposes of any Equity Interests of any direct or indirect Restricted
Subsidiary of the Company or the Parent such that, after giving effect to any
such sale or disposition, the Company or the Parent, as the case may be, no
longer owns, directly or indirectly, greater than 50% of the outstanding common
stock of such Restricted Subsidiary, the Company or the Parent, as the case may
be, shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the investments in such Restricted
Subsidiary not sold or disposed of.
"Issuance Date" means the date of this Indenture.
"Issuers" means each of the Company and MeriStar Finance, until a
successor replaces either such party in accordance with the applicable
provisions of this Indenture, and thereafter, means, with respect to such
replaced party, such successor.
"Lien" means, with respect to any asset, or income or profits
therefrom, any mortgage, lien, pledge, charge, security interest or encumbrance
of any kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law (including any conditional sale or
other title retention agreement, any lease in the nature thereof, any option or
other agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction).
"Liquidated Damages" has the meaning assigned to such term in the
Registration Rights Agreements.
"MeriStar Finance" means MeriStar Hospitality Finance Corp., a
Delaware corporation, until a successor replaces it in accordance with the
applicable provisions of this Indenture, and thereafter, means such successor.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Income" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of Preferred Stock dividends, excluding, however, any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with any Asset Sale, and excluding any
extraordinary gain (but not loss), together with any related provision for taxes
on such extraordinary gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Company, the Parent or any of their respective Restricted Subsidiaries in
respect of any Asset Sale, net of the direct costs relating to such Asset Sale
(including, without limitation, legal, accounting and investment banking fees,
and sales commissions), and any relocation expenses incurred as a result
thereof, taxes paid or payable as a result thereof (after taking into account
any available tax credits or deductions and any tax sharing arrangements),
amounts required to be applied to the repayment of Indebtedness secured by a
Lien on the asset or assets the subject of such Asset Sale and any reserve for
adjustment in respect of the sale price of such asset or assets.
11
"Non-Recourse Indebtedness" means Indebtedness (a) as to which none of
the Company, the Parent or any of their respective Restricted Subsidiaries (i)
provides credit support (other than in the form of a Lien on an asset serving as
security for Non-Recourse Indebtedness of the Company, the Parent or any of
their respective Restricted Subsidiaries) pursuant to any undertaking, agreement
or instrument that would constitute Indebtedness, (ii) is directly or indirectly
liable (other than in the form of a Lien on an asset serving as security for
Non-Recourse Indebtedness of the Company, the Parent or any of their respective
Restricted Subsidiaries) or (iii) constitutes the lender and (b) no default with
respect to which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company, the Parent or any of their respective Restricted Subsidiaries to
declare a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity.
"Notes" means the Notes of any series issued under this Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officers" means the Chairman of the Board, the President, the Chief
Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, Controller, Secretary, any Assistant Secretary or any Vice President
of the Company or the Company's general partner, the Parent or MeriStar Finance,
as applicable.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President, the Chief Operating Officer, or a Vice
President and by the Chief Financial Officer, the Treasurer, an Assistant
Treasurer, the Controller, the Secretary or an Assistant Secretary, as
applicable, of each of the Company's general partner, the Parent and MeriStar
Finance, as applicable, except with respect to certificates required to be
furnished by the Issuers and the Parent to the Trustee pursuant to Section 4.4
hereof, in which event "Officers' Certificate" means a certificate signed by the
principal executive officer or principal financial officer of each of the
Company's general partner, the Parent or MeriStar Finance, as applicable.
"OP Units" means limited partnership interests in the Company or any
successor operating partnership that require the issuer thereof to pay dividends
or distributions which are tied to dividends paid on the Parent's common stock
and which by their terms may be converted into, or exercised or redeemed for,
cash or the Parent's common stock.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee complying with the requirements of this
Indenture.
"Parent" means MeriStar Hospitality Corporation, a Maryland
corporation, until a successor replaces it in accordance with the applicable
provisions of this Indenture, and thereafter, means such successor.
12
"Participant" means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account with the Depositary, Euroclear or
Clearstream, respectively (and, with respect to The Depository Trust Company,
shall include Euroclear and Clearstream).
"Permitted Investments" means any (a) Investments in the Company or
the Parent, (b) Investments in any Restricted Subsidiary of the Company or the
Parent, (c) Investments in Cash Equivalents, (d) Investments by the Company, the
Parent or any Restricted Subsidiary of the Company or the Parent in a Person, if
as a result of such Investment (i) such Person becomes a Restricted Subsidiary
of the Company or the Parent or (ii) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company, the Parent or a Restricted
Subsidiary of the Company or the Parent, (e) Investments in Unrestricted
Subsidiaries or Permitted Joint Ventures, provided that such Investments are in
entities solely or principally engaged in Hospitality-Related Businesses and
that the aggregate of such Investments does not exceed the greater of (i) $50.0
million or (ii) 5% of Consolidated Net Tangible Assets collectively, (f)
Investments in MeriStar Investment Partners, L.P. in an aggregate amount not to
exceed $10.0 million collectively and (g) loans to MeriStar Hotels & Resorts
Inc. in an aggregate amount not to exceed $25.0 million at any time outstanding.
"Permitted Joint Venture" means any corporation, partnership, limited
liability company or partnership or other similar entity formed to hold lodging
properties in which the Company or the Parent, directly or indirectly, owns less
than a 50.1% interest.
"Permitted Refinancing" means Refinancing Indebtedness or Refinancing
Disqualified Stock, as the case may be, to the extent (a) the principal amount
of Refinancing Indebtedness or the liquidation preference amount of Refinancing
Disqualified Stock, as the case may be, does not exceed the principal amount of
Indebtedness or the liquidation preference amount of Disqualified Stock, as the
case may be, so extended, refinanced, renewed, replaced, defeased or refunded
(plus the amount of premiums and reasonable expenses incurred in connection
therewith); (b) such Refinancing Indebtedness or Refinancing Disqualified Stock,
as the case may be, is scheduled to mature or is redeemable at the option of the
holder, as the case may be, no earlier than the Indebtedness or Disqualified
Stock, as the case may be, being extended, refinanced, renewed, replaced,
defeased or refunded; (c) in the case of Refinancing Indebtedness, the
Refinancing Indebtedness has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; (d) in the case
of Refinancing Disqualified Stock, the Disqualified Stock has a Weighted Average
Life to Mandatory Redemption equal to or greater than the Weighted Average Life
to Mandatory Redemption of the Disqualified Stock being extended, refinanced,
renewed, replaced, defeased or refunded; (e) if the Indebtedness or the
Disqualified Stock, as the case may be, being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated or junior in right of payment to
the Notes, the Refinancing Indebtedness or Refinancing Disqualified Stock, as
the case may be, is subordinated or junior in right of payment to the Notes on
terms at least as favorable to the holders of Notes as those contained in the
documentation governing the Indebtedness or the Disqualified Stock, as the case
may be, being extended, refinanced, renewed, replaced, defeased or refunded and
(f) such Refinancing Indebtedness or Refinancing Disqualified Stock is incurred
or issued either by the
13
Parent, by the Company or by a Restricted Subsidiary who is the obligor on the
Indebtedness or Disqualified Stock being extended, refinanced, renewed,
replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Physical Securities" means permanent certificated Notes in registered
form, in substantially the form set forth in Exhibit A-1, in the case of the 9%
Notes, or Exhibit A-2, in the case of the 9?% Notes.
"Preferred OP Units" means limited partnership interests in the
Company or any successor operating partnership that require the issuer thereof
to pay regularly scheduled fixed distributions thereon, which are not related to
dividends on the Parent's common stock, and which by their terms may be
converted into, or exercised or redeemed for, cash or the Parent's common stock.
"Preferred Stock" means (i) any Equity Interest with a preferential
right in the payment of dividends or distributions or upon liquidation, and (ii)
any Disqualified Stock.
"Refinancing Disqualified Stock" means Disqualified Stock issued in
exchange for, or the proceeds of which are used, to extend, refinance, renew,
replace, defease or refund Disqualified Stock or Indebtedness permitted to be
issued pursuant to the tests set forth in the first paragraph of Section 4.9
hereof or Indebtedness referred to in clauses (c), (e), (g), (i) and (j) of the
second paragraph of Section 4.9 hereof.
"Refinancing Indebtedness" means Indebtedness issued in exchange for,
or the proceeds of which are used to extend, refinance, renew, replace, defease
or refund Indebtedness permitted to be incurred pursuant to the tests set forth
in the first paragraph of Section 4.9 hereof or Indebtedness referred to in
clauses (c), (e), (g), (i) and (j) of the second paragraph of Section 4.9
hereof.
"Registration Rights Agreements" means (a) that certain Registration
Rights Agreement dated as of the Issuance Date among the Issuers, the Parent,
the Subsidiary Guarantors and Xxxxxx Brothers Inc. and XX Xxxxx Securities
Corporation (the "Initial Purchasers") setting forth certain registration rights
with respect to the Notes and (b) that certain Registration Rights Agreement
dated as of the Issuance Date among the Issuers, the Parent, the Subsidiary
Guarantors, Oak Hill Securities Fund, L.P., Oak Hill Securites Fund II, L.P.,
Xxxxxx Enterprises-Special, L.P, and P&P.K. Family Limited Partnership setting
forth certain registration rights with respect to the Notes.
"Restricted Investments" means an Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted Security" has the meaning assigned to such term in Rule
144(a)(3) under the Securities Act.
14
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"S&P" means Standard & Poor's Ratings Services and its successors.
"Secured Indebtedness" means any Indebtedness or Disqualified Stock
secured by a Lien upon property of the Company, the Parent or any of their
respective Restricted Subsidiaries, other than Indebtedness under a Credit
Facility secured only by a Stock Pledge.
"Securities Act" means the Securities Act of 1933, as amended.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of this Indenture.
"Stock Pledge" means a first priority security interest in the equity
interests of Subsidiaries of the Company or Subsidiaries of the Parent.
"Subsidiary" means, with respect to any Person, (1) any corporation,
association or other business entity of which more than 50% of the voting power
of the outstanding voting stock is owned, directly or indirectly, by such
Person, by such Person and one or more subsidiaries of such Person or by one or
more subsidiaries of such Person, or the accounts of which would be consolidated
with those of such Person in its consolidated financial statements in accordance
with GAAP, if such statements were prepared as of such date; and (2) any
partnership: (a) in which such Person or one or more subsidiaries of such Person
is, at the time, a general partner and owns alone or together with us a majority
of the partnership interest; or (b) in which such Person or one or more
subsidiaries of such Person is, at the time, a general partner and which is
controlled by such Person in a manner sufficient to permit its financial
statements to be consolidated with the financial statements of such Person in
conformity with GAAP and the financial statements of which are so consolidated.
"Subsidiary Debt" means, without duplication, all Unsecured
Indebtedness (including Guarantees other than Guarantees by Restricted
Subsidiaries of Secured Indebtedness) of which a Restricted Subsidiary of the
Company or the Parent (other than the Company) other than a Guarantor is the
obligor. A release of the Subsidiary Guarantee of a Guarantor which remains a
Restricted Subsidiary of the Company or the Parent shall be deemed to be an
incurrence of Subsidiary Debt in an amount equal to the proportionate interest
of the Company or the Parent in the Unsecured Indebtedness of such Guarantor.
"Subsidiary Guarantor" means (a) each of the Company's Subsidiaries
that guarantees the Credit Agreement on the date of this Indenture and (b) any
Restricted Subsidiary that becomes a guarantor of the Notes pursuant to the
terms of this Indenture, and in each case, its successor, if any.
15
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-
77bbbb) as in effect on the date on which this Indenture is qualified under the
TIA.
"Total Assets" means the sum of: (a) Undepreciated Real Estate
Assets; and (b) all other assets (excluding intangibles) of the Parent, the
Company and their respective Restricted Subsidiaries determined on a
consolidated basis.
"Total Unencumbered Assets" as of any date means the sum of: (a) those
Undepreciated Real Estate Assets not securing any portion of Secured
Indebtedness; and (b) all other assets (but excluding intangibles) of the
Parent, the Company and their respective Restricted Subsidiaries not securing
any portion of Secured Indebtedness determined on a consolidated basis in
accordance with GAAP.
"Transaction Date" means, with respect to the incurrence of any
Indebtedness or issuance of Disqualified Stock by the Company, the Parent or any
their respective Restricted Subsidiaries, the date such Indebtedness is to be
incurred or such Disqualified Stock is to be issued and, with respect to any
Restricted Payment, the date such Restricted Payment is to be made.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Trust Officer" means any officer in the Corporate Trust Office of the
Trustee.
"Undepreciated Real Estate Assets" means, as of any date, the cost
(being the original cost to the Company, the Parent or any their respective
Restricted Subsidiaries plus capital improvements) of real estate assets of the
Company, the Parent and their respective Restricted Subsidiaries on such date,
before depreciation and amortization of such real estate assets, determined on a
consolidated basis.
"Unrestricted Subsidiary" means (i) any Subsidiary that is (or has
been under this Indenture) designated by the Board of Directors as an
Unrestricted Subsidiary pursuant to a board resolution, but only to the extent
that such Subsidiary: (a) has no Indebtedness other than Non-Recourse
Indebtedness; (b) is not party to any agreement, contract, arrangement or
understanding with the Company, the Parent or any Restricted Subsidiary of the
Company or the Parent unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company, the Parent or
such Restricted Subsidiary than those that might be obtained at the same time
from Persons who are not affiliates of the Company; (c) is a Person with respect
to which none of the Company, the Parent or any of their respective Restricted
Subsidiaries has any direct or indirect obligation (x) to subscribe for
additional Equity Interests or (y) to maintain or preserve such Person's
financial condition or to cause such Person to achieve any specified levels of
operating results (other than pursuant to agreements relating to the management
of hotels entered into between Restricted Subsidiaries and Unrestricted
Subsidiaries in the ordinary course of such Subsidiaries' business, consistent
with past practice); and (d) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company, the
Parent or any of their respective Restricted Subsidiaries. Any such designation
by the Board of Directors made after the Issuance Date shall be evidenced to
16
the Trustee by filing with the Trustee a certified copy of the board resolution
giving effect to such designation and an officer's certificate certifying that
such designation complied with the foregoing conditions and was permitted by
Section 4.7 hereof. If, at any time, any Unrestricted Subsidiary would fail to
meet the foregoing requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture
and any Indebtedness of such Subsidiary shall be deemed to be incurred by a
Restricted Subsidiary of the Company or the Parent as of such date (and, if such
Indebtedness is not permitted to be incurred as of such date under Section 4.9
hereof, the Company and the Parent shall be in default of such covenant). The
Board of Directors of the Parent may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary, provided that such designation shall
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the
Company or the Parent of any outstanding Indebtedness of such Unrestricted
Subsidiary, and such designation shall only be permitted if (i) such
Indebtedness is permitted under Section 4.9 hereof and (ii) no Default or Event
of Default would be in existence following such designation. MeriStar Finance
shall not under any circumstances be designated as an Unrestricted Subsidiary.
"Unsecured Indebtedness" means any Indebtedness or Disqualified Stock
of the Company, the Parent or any of their respective Restricted Subsidiaries
that is not Secured Indebtedness.
"Weighted Average Life to Mandatory Redemption" means, when applied to
any Disqualified Stock at any date, the number of years obtained by dividing (a)
the sum of the products obtained by multiplying (x) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect thereof, by (y)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (b) the then outstanding
liquidation preference amount of such Disqualified Stock.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (x) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (y) the
number of years (calculated to the nearest one twelfth) that will elapse between
such date and the making of such payment, by (b) the then outstanding principal
amount of such Indebtedness.
SECTION 1.2. OTHER DEFINITIONS.
Defined in
Term Section
---- -------
"Affiliate Transaction" 4.11
"Agent Members" 2.16
"Asset Sale Offer" 4.10
"Asset Sale Offer Price" 4.10
"Bankruptcy Law" 6.1
"Change of Control Offer" 4.14
17
"Change of Control Payment" 4.14
"Change of Control Payment Date" 4.14
"Covenant Defeasance" 8.3
"Custodian" 6.1
"defeasance trust" 8.4
"Depositary" 2.1
"Event of Default" 7.1
"Excess Proceeds" 4.10
"Exchange Global Note" 2.1
"Global Notes" 2.1
"incur" 4.9
"incurrence" 4.9
"insolvent" 10.3
"Legal Defeasance" 8.2
"Legal Holiday" 11.7
"Paying Agent" 2.3
"Payment Blockage Notice" 10.3
"Private Placement Legend" 2.15
"Public Equity Offering" 3.7
"Registrar" 2.3
"Regulation S" 2.1
"Regulation S Global Note" 2.1
"Regulation S Permanent Global Note" 2.1
"Regulation S Temporary Global Note" 2.1
"Restricted Payments" 4.7
"Rule 144A" 2.1
"Rule 144A Global Note" 2.1
SECTION 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means any Issuer, any Guarantor and any
successor obligor.
18
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
SECTION 1.4. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) provisions apply to successive events and transactions.
SECTION 1.5. ONE CLASS OF SECURITIES.
The Initial Notes of any series and the Exchange Notes of such series
shall vote and consent together on all matters as one class and none of the
Initial Notes of such series or the Exchange Notes of such series shall have the
right to vote or consent as a separate class on any matter.
ARTICLE 2
THE NOTES
SECTION 2.1. FORM AND DATING.
The 9% Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A-1 hereto, the terms of which are
incorporated in and made a part of this Indenture with respect to such series,
and the 9?% Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A-2, the terms of which are incorporated in
and made a part of this Indenture with respect to such series. Subject to
Section 2.7 hereof, the 9% Notes shall be issued at any time, or from time to
time, in an aggregate principal amount not to exceed $300,000,000, and the 9?%
Notes shall be issued at any time, or from time to time, in an aggregate
principal amount not to exceed $200,000,000. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or agreements to
which any Issuer or any Guarantor is subject or usage. Each Note shall be dated
the date of its authentication. The Notes shall be issued initially in
denominations of $1,000 and integral multiples thereof.
Notes offered and sold in reliance on Rule 144A under the Securities
Act ("Rule 144A") shall be issued initially in the form of one or more permanent
global notes in registered form without interest coupons, in substantially the
form set forth in Exhibit A-1, in the case of the 9% Notes, or Exhibit A-2, in
the case of the 9?% Notes (each, a "Rule 144A Global Note"), deposited with the
Trustee, as custodian for The Depository Trust Company (the "Depositary"),
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duly executed by the Issuers and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Rule 144A Global Notes of each
series may from time to time be increased or decreased by adjustments made on
the records of the Trustee, as custodian for the Depositary, as hereinafter
provided.
Notes offered and sold in reliance on Regulation S under the
Securities Act ("Regulation S") shall be issued initially in the form of one or
more temporary global notes in registered form without interest coupons, in
substantially the form set forth in Exhibit A-1, in the case of the 9% Notes, or
Exhibit A-2, in the case of the 9?% Notes (each a "Regulation S Temporary Global
Note"), which shall be deposited with the Trustee, as custodian for the
Depositary, and registered in the name of the Depositary or the nominee of the
Depositary for the accounts of designated agents holding on behalf of Euroclear
or Clearstream, duly executed by the Issuers and authenticated by the Trustee as
hereinafter provided. The Restricted Period for any series of Notes shall be
terminated upon the receipt by the Trustee of (i) a written certificate from the
Depositary, together with copies of certificates from Euroclear and Clearstream
certifying that they have received certification of non-United States beneficial
ownership of 100% of the aggregate principal amount of the Regulation S
Temporary Global Note of such series (except to the extent of any beneficial
owners thereof who acquired an interest therein during the Restricted Period
pursuant to another exemption from registration under the Securities Act and who
will take delivery of a beneficial ownership interest in a 144A Global Note of
such series bearing a Private Placement Legend, all as contemplated by Section
2.17 hereof), and (ii) an Officers' Certificate from the Issuers. Following the
termination of the Restricted Period, beneficial interests in a Regulation S
Temporary Global Note of any series shall be exchanged for beneficial interests
in one or more permanent global notes of such series in registered form without
interest coupons, in substantially the form set forth in Exhibit A-1, in the
case of the 9% Notes, or Exhibit A-2, in the case of the 9?% Notes (each a
"Regulation S Permanent Global Note," and collectively with the Regulation S
Temporary Global Note, the "Regulation S Global Notes") pursuant to the
Applicable Procedures. Simultaneously with the authentication of Regulation S
Permanent Global Notes of any series, the Trustee shall cancel the Regulation S
Temporary Global Notes with respect to such series. The aggregate principal
amount of the Regulation S Temporary Global Notes of each series and the
Regulation S Permanent Global Notes of each series may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depositary or its nominee, as the case may be, in connection with transfers of
interest as hereinafter provided.
Exchange Notes exchanged for interests in the Rule 144A Global Notes,
the Regulation S Global Notes or any Physical Securities of any series will be
issued in the form of one or more permanent global notes in registered form
without interest coupons, substantially in the form of Exhibit A-1, in the case
of the 9% Notes, or Exhibit A-2, in the case of the 9?% Notes (each, an
"Exchange Global Note"), deposited with the Trustee, as custodian for the
Depositary, duly executed by the Issuers and authenticated by the Trustee as
hereinafter provided.
The Rule 144A Global Notes, the Regulation S Temporary Global Notes,
the Regulation S Permanent Global Notes and the Exchange Global Notes are
collectively referred to herein as the "Global Notes."
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The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Clearstream" and "Customer Handbook" of Clearstream shall be
applicable to transfers of beneficial interests in the Regulation S Temporary
Global Notes and the Regulation S Global Notes that are held by Participants
through Euroclear or Clearstream.
SECTION 2.2. EXECUTION AND AUTHENTICATION.
An Officer of each of Issuer shall sign the Notes for the Issuers by
manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time the Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature of the Trustee shall be conclusive evidence that
the Note has been authenticated under this Indenture. The form of Trustee's
certificate of authentication to be borne by the Notes shall be substantially as
set forth in Exhibits A-1 and A-2 hereto.
The Trustee shall, upon a written order of the Issuers signed by two
Officers of each of the Issuers, authenticate Notes of each series for original
issue up to an aggregate principal amount stated in Section 2.1 hereof with
respect to such series. The aggregate principal amount of Notes of any series
outstanding at any time may not exceed the amount set forth herein with respect
to such series, except as provided in Section 2.7.
The Trustee may appoint an authenticating agent to authenticate Notes.
Unless limited by the terms of such appointment, an authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the
Issuers or an Affiliate of the Issuers.
SECTION 2.3. REGISTRAR AND PAYING AGENT.
The Issuers shall maintain (i) an office or agency where Notes may be
presented for registration of transfer or for exchange (including any co-
registrar, the "Registrar") and (ii) an office or agency where Notes may be
presented for payment (the "Paying Agent"). The Registrar shall keep a register
of the Notes and of their transfer and exchange. The Issuers may appoint one or
more co-registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent. The Issuers may change any Paying
Agent or Registrar without notice to any Holder. The Issuers shall notify the
Trustee of the name and address of any Agent not a party to this Indenture. If
the Issuers fail to appoint or maintain another entity as Registrar or Paying
Agent, the Trustee shall act as such. Either Issuer or any of its Subsidiaries
may act as Paying Agent or Registrar. The Issuers shall enter into an
appropriate agency agreement with any Agent not a party to this Indenture, which
shall incorporate the provisions of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Issuers shall
notify the Trustee of the name and address of any such Agent. If the Issuers
fail to maintain a Registrar or Paying Agent, or fail to give the foregoing
notice, the
21
Trustee shall act as such, and shall be entitled to appropriate compensation in
accordance with Section 7.7 hereof.
The Issuers initially appoint the Trustee as Registrar, Paying Agent
and agent for service of notices and demands in connection with the Notes.
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST.
The Issuers shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders of Notes of any series or the Trustee all money held by the Paying Agent
for the payment of principal of, premium, if any, or interest or Liquidated
Damages (as defined in the Registration Rights Agreements), if any, on the Notes
of such series, and will notify the Trustee of any default by the Issuers or
Guarantors, if any, in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee. The Issuers at any time may require a Paying Agent to pay all
money held by it to the Trustee. Upon payment over to the Trustee, the Paying
Agent (if other than an Issuer) shall have no further liability for the money
delivered to the Trustee. If either Issuer or any of its Subsidiaries acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent.
SECTION 2.5. HOLDERS LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of Notes of each series and shall otherwise comply with TIA Section
312(a). If the Trustee is not the Registrar, the Issuers shall furnish to the
Trustee at least seven (7) Business Days before each interest payment date and
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Holders, including the aggregate principal amount thereof, and the
Issuers and the Guarantors shall otherwise comply with TIA Section 312(a).
SECTION 2.6. TRANSFER AND EXCHANGE.
(a) Where Notes of any series are presented to the Registrar with a
request to register the transfer thereof or exchange them for an equal principal
amount of Notes of such series of other denominations, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met; provided, however, that any Note presented or surrendered
for registration of transfer or exchange shall be duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Registrar and
the Trustee duly executed by the Holder thereof or by his attorney duly
authorized in writing. To permit registrations of transfer and exchanges, the
Issuers shall issue and the Trustee shall authenticate Notes at the Registrar's
request, subject to such rules as the Trustee may reasonably require.
(b) The Issuers and the Registrar shall not be required (i) to issue,
to register the transfer of, or to exchange Notes of any series during a period
beginning at the opening of business on a Business Day fifteen (15) days before
the day of any selection of Notes of such series for redemption or purchase
under Section 3.2 and ending at the close of business on the
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day of selection, or (ii) to register the transfer of or exchange any Note so
selected for redemption or purchase in whole or in part, except the unredeemed
or unpurchased portion of any Note being redeemed or purchased in part.
(c) No service charge shall be made for any registration of a
transfer or exchange (except as otherwise expressly permitted herein), but the
Issuers may require payment by the Holder of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than such transfer tax or similar governmental charge payable upon
exchanges pursuant to Section 2.10, 3.6 or 9.5).
(d) Prior to due presentment for registration of transfer of any
Note, the Trustee, any Agent and the Issuers may deem and treat the Person in
whose name any Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of, premium, if any, and interest on
such Note and for all other purposes whatsoever, whether or not such Note is
overdue, and neither the Trustee, any Agent, nor any Issuer shall be affected by
notice to the contrary.
(e) Any Holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interests in such Global Note may be
effected only through a book entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in such
Global Note shall be required to be reflected in a book entry.
SECTION 2.7. REPLACEMENT NOTES.
If any mutilated Note of any series is surrendered to the Trustee, or
either the Issuers or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note of any series, the Issuers shall issue
and the Trustee, upon the written order of the Issuers signed by two Officers of
each Issuer, shall authenticate a replacement Note of such series if an
indemnity bond is supplied by the Holder that is sufficient in the judgment of
the Trustee and the Company to protect the Issuers, the Trustee, each Agent and
each authenticating agent from any loss which any of them may suffer if a Note
is replaced. The Issuers and the Trustee may charge for its expenses in
replacing a Note.
Every replacement Note is an additional Obligation of the Issuers.
SECTION 2.8. OUTSTANDING NOTES.
The Notes of any series outstanding at any time are all the Notes of
such series authenticated by the Trustee except for those cancelled by it, those
delivered to it for cancellation, those reductions in interest in a Global Note
of such series effected by the Trustee in accordance with the provision hereof,
and those described in this Section as not outstanding.
If a Note is replaced pursuant to Section 2.7 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.1 hereof, it ceases to be outstanding and interest on it ceases to accrue.
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Subject to Section 2.9 hereof, a Note does not cease to be outstanding
because an Issuer or an Affiliate of an Issuer holds the Note.
SECTION 2.9. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes of any series have concurred in any direction, waiver or consent, Notes of
such series owned by any Issuer, any Guarantor, or any Affiliate of any Issuer
or any Guarantor, shall be considered as though not outstanding, except that for
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes of such series which a Trust
Officer knows to be so owned shall be so considered. The Issuers agree to
notify the Trustee of the existence of any Notes of any series owned by any
Issuer, by any Guarantor or by any Affiliate of any Issuer or any Guarantor.
SECTION 2.10. TEMPORARY NOTES.
Until definitive Notes of any series are ready for delivery, the
Issuers may prepare and the Trustee shall authenticate temporary Notes of such
series. Temporary Notes shall be substantially in the form of definitive Notes
but may have variations that the Issuers and the Trustee consider appropriate
for temporary Notes. Without unreasonable delay, the Issuers shall prepare and
the Trustee, upon receipt of the written order of the Issuers signed by two
Officers of each Issuer, shall authenticate definitive Notes of such series in
exchange for temporary Notes of such series. Until such exchange, temporary
Notes of any series shall be entitled to the same rights, benefits and
privileges as definitive Notes of such series.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
SECTION 2.11. CANCELLATION.
The Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall destroy
cancelled Notes (subject to the record retention requirement of the Exchange
Act) unless an Issuer directs them to be returned to them. The Issuers may not
issue new Notes of any series to replace Notes of such series that have been
redeemed or paid or that have been delivered to the Trustee for cancellation.
All cancelled Notes held by the Trustee shall be destroyed and certification of
their destruction delivered to the Issuers unless by a written order, signed by
an Officer of each of the Issuers, the Issuers shall direct that cancelled Notes
be returned to them.
SECTION 2.12. DEFAULTED INTEREST.
If the Issuers default in a payment of interest on the Notes of any
series, they shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders of the Notes of such series on a subsequent special record date,
which date shall be at the earliest practicable date but in all events at least
24
five (5) Business Days prior to the payment date, in each case at the rate
provided in the Notes of such series and in Section 4.1 hereof. The Issuers
shall, with the consent of the Trustee, fix or cause to be fixed each such
special record date and payment date. At least fifteen (15) days before the
special record date, the Issuers (or the Trustee, in the name of and at the
expense of the Issuers) shall mail to Holders a notice that states the special
record date, the related payment date and the amount of such interest to be
paid.
SECTION 2.13. RECORD DATE.
The record date for purposes of determining the identity of Holders of
Notes of any series entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture shall be determined as provided for
in TIA Section 316(c).
SECTION 2.14. CUSIP NUMBER.
The Issuers in issuing the Notes of any series may use a "CUSIP"
number, and if they do so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided, that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Notes, and that
reliance may be placed only on the other identification numbers printed on the
Notes. The Issuers will promptly notify the Trustee in writing of any change in
the CUSIP number.
SECTION 2.15. RESTRICTIVE LEGENDS.
Each 144A Global Note and Physical Security that constitutes a
Restricted Security shall bear the following legend (the "Private Placement
Legend") unless otherwise agreed by the Issuers and the Holder thereof:
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE OR OTHER SECURITIES LAWS. NEITHER THE SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 903 OR 904
REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH
IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE
144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISIONS
THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF
ANY PREDECESSOR OF THIS SECURITY)
25
OR THE LAST DAY ON WHICH MERISTAR HOSPITALITY OPERATING PARTNERSHIP,
L.P., MERISTAR HOSPITALITY FINANCE CORP. OR ANY OF THEIR RESPECTIVE
AFFILIATES WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY
APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO MERISTAR
HOSPITALITY OPERATING PARTNERSHIP, L.P., MERISTAR HOSPITALITY FINANCE
CORP. OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT,
PURSUANT TO RULE 904 OF REGULATION S OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND; PROVIDED THAT MERISTAR HOSPITALITY OPERATING
PARTNERSHIP, L.P., THE TRUSTEE AND THE TRANSFER AGENT AND REGISTRAR
RESERVE THE RIGHT PRIOR TO ANY OFFER, SALE OR OTHER TRANSFER PURSUANT
TO CLAUSES (D) OR (E) ABOVE TO REQUIRE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATIONS AND OTHER INFORMATION SATISFACTORY TO MERISTAR
HOSPITALITY OPERATING PARTNERSHIP, L.P., THE TRUSTEE AND THE TRANSFER
AGENT AND REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF
THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE
BOUND BY THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING
TO ALL THE SECURITIES.
Each Temporary Regulation S Global Note shall bear the following
legend on the face thereof:
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PRIOR TO EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT")) ("REGULATION S"), THIS SECURITY MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES (AS
DEFINED IN REGULATION S) OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, A
U.S. PERSON (AS DEFINED IN REGULATION S), EXCEPT TO A PERSON
REASONABLY BELIEVED TO BE A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A ("RULE 144A") UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND THE INDENTURE
REFERRED TO HEREIN.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE
BOUND BY THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENTS RELATING
TO ALL THE SECURITIES.
Each Global Note shall also bear the following legend on the face
thereof:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH
NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF A
SUCCESSOR DEPOSITARY, OR ANY NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. TRANSFERS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF CEDE & CO., OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR
TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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SECTION 2.16. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITY.
(a) The Global Notes initially shall (i) be registered in the name of
the Depositary or the nominee of such Depositary, (ii) be delivered to the
Trustee as custodian for such Depositary and (iii) bear the appropriate legends
as set forth in Section 2.15.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Note, and the Depositary may be treated by the Issuers, the Trustee and
any agent of an Issuer or the Trustee as the absolute owner of the Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Issuers, the Trustee or any agent of the Issuers or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a Holder of any Note.
(b) Transfers of any Global Note shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Except as provided below, owners of beneficial interests in Global
Notes will not be entitled to receive Physical Securities. If required to do so
pursuant to any applicable law or regulation, beneficial owners may obtain
Physical Securities in exchange for their beneficial interests in a Global Note
upon written request in accordance with the Depositary's and the Registrar's
procedures. In addition, Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in a Global Note of
a particular series if (i) the Depositary notifies the Issuers that it is
unwilling or unable to continue as depositary for such Global Note or the
Depositary ceases to be a clearing agency registered under the Exchange Act, at
a time when the Depositary is required to be so registered in order to act as
depositary, and in each case a successor depositary is not appointed by the
Issuers within 90 days of such notice or, (b) the Issuers execute and deliver to
the Trustee and Registrar an Officers' Certificate stating that such Global Note
shall be so exchangeable or (c) an Event of Default has occurred and is
continuing with respect to such series and the Registrar has received a written
request from the Depositary to issue Physical Securities; provided that in no
event shall the Regulation S Temporary Global Note be exchanged by the Issuers
for Physical Securities prior to (x) the expiration of the Restricted Period and
(y) the receipt by the Registrar of any certificates required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in a Global Note to beneficial owners pursuant to paragraph
(b) above, the Registrar shall (if one or more Physical Securities are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the beneficial interest in such Global Note to be
transferred, and the Issuers shall execute, and the Trustee shall authenticate
and deliver, one or more Physical Securities of like tenor and amount.
(d) In connection with the transfer of an entire Global Note to
beneficial owners pursuant to paragraph (b) above, such Global Note shall be
deemed to be surrendered to the Trustee for cancellation, and the Issuers shall
execute, and the Trustee shall authenticate and
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deliver, to each beneficial owner identified by the Depositary in exchange for
its beneficial interest in such Global Note, an equal aggregate principal amount
of Physical Securities of authorized denominations.
(e) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Note pursuant to paragraph (b)
or (c) above shall, except as otherwise provided by paragraphs (a)(i)(x) and (c)
of Section 2.17, bear the legend regarding transfer restrictions applicable to
the Physical Securities set forth in Section 2.15.
(f) The Holder of a Global Note may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Notes.
SECTION 2.17. SPECIAL TRANSFER PROVISIONS.
(a) Transfers to Non-U.S. Persons. The following provisions shall
-----------------------------
apply with respect to the registration of any proposed transfer of a Note
constituting a Restricted Security to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is after January
26, 2003, or (y) the proposed transferor has delivered to the Registrar a
certificate substantially in the form of Exhibit C hereto; and
(ii) if the proposed transferee is an Agent Member and the Notes to
be transferred consist of Physical Securities which after transfer are to
be evidenced by an interest in the Global Note, upon receipt by the
Registrar of instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global Note
in an amount equal to principal amount of the Physical Securities to be
transferred, and the Trustee shall cancel the Physical Securities so
transferred.
(b) Transfers to QIBs. The following provisions shall apply with
-----------------
respect to the registration of any proposed transfer of a Note constituting a
Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for on
the form of Note stating, or has otherwise advised the Issuers and the
Registrar in writing, that the sale has been effected in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Note stating, or has otherwise
advised the Issuers and the Registrar in writing, that it is purchasing the
Notes for its own account or an account with respect to which it exercises
sole investment discretion and that any such account is a QIB within the
meaning of Rule 144A, and it is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Issuers as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is
29
relying upon its foregoing representations in order to claim the exemption
from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member and the Notes to
be transferred consist of Physical Securities which after transfer are to
be evidenced by an interest in the Global Note, upon receipt by the
Registrar of instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global Note
in an amount equal to principal amount of the Physical Securities to be
transferred, and the Trustee shall cancel the Physical Securities so
transferred.
(c) Private Placement Legend. Upon the registration of the transfer,
------------------------
exchange or replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the registration of the transfer, exchange or replacement of Notes bearing
the Private Placement Legend, the Registrar shall deliver only Notes that bear
the Private Placement legend unless (i) the circumstance contemplated by
paragraph (a)(i)(x) of this Section 2.17 exists or (ii) there is delivered to
the Registrar an Opinion of Counsel reasonably satisfactory to the Company and
the Trustee to the effect that neither such legend nor the related restrictions
on transfer are required in order to maintain compliance with the provisions of
the Securities Act.
(d) General. By its acceptance of any Note bearing the Private
-------
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
(e) Notwithstanding anything to the contrary contained herein, (i)
prior to the expiration of the Restricted Period, transfers of beneficial
interests in a Temporary Regulation S Global Note may not be made to a U.S.
Person or for the account or benefit of a U.S. Person (other than the Initial
Purchasers), and (ii) a beneficial interest in a Regulation S Temporary Global
Note may not be exchanged for a Physical Security or transferred to a Person who
takes delivery thereof in the form of a Physical Security prior to (x) the
expiration of the Restricted Period and (y) the receipt by the Registrar of any
certificates required pursuant to Rule 903(c)(3)(ii)(B) under the Securities
Act, except in the case of a transfer pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 903 or Rule 904.
The Registrar shall retain for at least two years copies of all
letters, notices and other written communications received pursuant to Section
2.16 hereof or this Section 2.17. The Issuers shall have the right to inspect
and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable written notice to the
Registrar.
ARTICLE 3
REDEMPTIONS AND OFFERS TO PURCHASE
SECTION 3.1. NOTICES TO TRUSTEE.
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If the Issuers elect to redeem Notes of any series pursuant to the
optional redemption provisions of Section 3.7 hereof, they shall furnish to the
Trustee, at least 45 days but not more than 90 days before a redemption date
(unless a shorter notice period shall be satisfactory to the Trustee), an
Officers' Certificate setting forth (i) the Section of this Indenture pursuant
to which the redemption shall occur, (ii) the redemption date, (iii) the
principal amount of Notes to be redeemed and (iv) the redemption price.
If the Company is required to make an offer to purchase Notes of any
series pursuant to the provisions of Sections 4.10 or 4.14, it shall furnish to
the Trustee, an Officers' Certificate setting forth (i) the Section of this
Indenture pursuant to which the offer to purchase shall occur, (ii) the offer's
terms, (iii) the purchase price, (iv) the principal amount of the Notes to be
purchased and (v) a statement to the effect that (a) the Company, the Parent or
one of their respective Restricted Subsidiaries has made an Asset Sale and that
the conditions set forth in Sections 3.9 and 4.10 have been satisfied or (b) a
Change of Control has occurred and the conditions set forth in Section 4.14 have
been satisfied, as applicable.
SECTION 3.2. SELECTION OF NOTES TO BE REDEEMED OR PURCHASED.
In the event that less than all of the Notes of a series are to be
purchased in an Asset Sale Offer or redeemed at any time, the Trustee shall
select the Notes of such series to be redeemed or purchased among the Holders of
the Notes of such series in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes of such series are
listed, or, if the Notes of such series are not so listed, on a pro rata basis,
by lot or by such method as the Trustee shall deem fair and appropriate (and in
such manner as complies with applicable legal requirements). The Issuers shall
give written notice to the Trustee of such requirements of any securities
exchange not less than forty-five (45) nor more than ninety (90) days prior to
the date on which notice of such redemption or purchase is to be given. In the
event a partial redemption is made with the proceeds of a Public Equity
Offering, selection of the Notes of the applicable series or portions thereof
for redemption shall be made by the Trustee only on a pro rata basis or on as
nearly a pro rata basis as practicable (subject to procedures of the
Depositary), unless such method is otherwise prohibited. In the event of
partial redemption, other than pro rata, the particular Notes to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption date by the Trustee from the outstanding
Notes of such series not previously called for redemption. In the event that
less than all of the Notes of a series properly tendered in an Asset Sale Offer
are to be purchased, the particular Notes of such series to be purchased shall
be selected promptly upon the expiration of such Asset Sale Offer.
The Trustee shall promptly notify the Issuers in writing of the Notes
of any series selected for redemption or purchase and, in the case of any Note
selected for partial redemption or purchase, the principal amount thereof to be
redeemed or purchased. Notes and portions of them selected shall be in
principal amounts of $1,000 or whole multiples of $1,000; except that if all of
the Notes of any series of a Holder are to be redeemed or purchased, the entire
outstanding principal amount of Notes of such series held by such Holder shall
be redeemed or purchased. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
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In the event the Company is required to make an Asset Sale Offer
pursuant to Section 3.9 and Section 4.10 hereof, and the amount of Excess
Proceeds to be applied to such purchase would result in the purchase of a
principal amount of Notes of any series which is not evenly divisible by $1,000,
the Trustee shall promptly refund to the Company the portion of such Excess
Proceeds that is not necessary to purchase the immediately lesser principal
amount of Notes that is so divisible.
SECTION 3.3. NOTICE OF REDEMPTION.
At least thirty (30) days but not more than sixty (60) days before a
redemption date, the Issuers shall mail, or cause to be mailed, by first class
mail, a notice of redemption to each Holder whose Notes are to be redeemed at
its registered address.
The notice shall identify the CUSIP number of the Notes, if any, and
the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note of the same series in principal amount
equal to the unredeemed portion will be issued;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Issuers default in making such redemption
payment, interest and Liquidated Damages, if any, on Notes called for redemption
ceases to accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' name and at their expense.
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.3
hereof, Notes called for redemption become due and payable on the redemption
date at the redemption price. On and after the redemption date, unless the
Issuers default in the payment of the redemption price, interest and Liquidated
Damages, if any, will cease to accrue on the Notes or portions of
32
them called for redemption and all rights of Holders of such Notes will
terminate except for the right to receive the redemption price. Upon surrender
to the Paying Agent, the Holders of such Notes shall be paid the redemption
price plus accrued interest and Liquidated Damages, if any, to the redemption
date, but interest installments and unpaid Liquidated Damages, if any, whose
maturity is on or prior to the redemption date will be payable to the Holder of
record at the close of business on the relevant record dates referred to in the
Notes. A notice of redemption may not be conditional.
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE.
At least one Business Day before the redemption date, the Issuers
shall deposit with the Trustee or with the Paying Agent money in immediately
available funds sufficient to pay the redemption price of and, if applicable,
accrued interest and Liquidated Damages, if any, on all Notes to be redeemed on
that date. The Trustee or the Paying Agent shall promptly, and in any event
within two Business Days after the redemption date, return to the Issuers any
money deposited with the Trustee or the Paying Agent by the Issuers in excess of
the amounts necessary to pay the redemption price of and, if applicable, accrued
interest and Liquidated Damages, if any, on all Notes to be redeemed.
If the Issuers comply with the provisions of the preceding paragraph,
interest and Liquidated Damages, if any, on the Notes or the portions of Notes
to be redeemed will cease to accrue on the applicable redemption date, whether
or not such Notes are presented for payment. If any Note called for redemption
shall not be so paid upon surrender for redemption because of the failure of the
Issuers to comply with the preceding paragraph, interest will be paid on the
unpaid principal, from the redemption date until such principal is paid, and to
the extent lawful on any interest not paid on such unpaid principal, from the
redemption date until such unpaid interest is paid, in each case at the rate
provided in the Notes of such series and in Section 4.1 hereof.
SECTION 3.6. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Issuers shall
issue and the Trustee shall authenticate for the Holder at the expense of the
Issuers a new Note equal in principal amount to the unredeemed portion of the
Note surrendered; provided, however, that no Note of $1,000 or less in principal
amount shall be purchased or redeemed in part.
SECTION 3.7. OPTIONAL REDEMPTION.
Prior to January 15, 2004, the Issuers may redeem, on any one or more
occasions, with the net cash proceeds of one or more public offerings of the
common equity of the Parent (a "Public Equity Offering") (within 60 days of the
consummation of any such Public Equity Offering), (a) up to 35% of the aggregate
principal amount of the 9% Notes issued at a redemption price equal to 109% of
the principal amount of such 9% Notes plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the redemption date and (b) up to 35% of
the aggregate principal amount of the 9 % Notes issued at a redemption price
equal to 109 % of the principal amount of such 9 % Notes plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the redemption date;
provided, however, that at least 65%
33
of the aggregate principal amount of the Notes of such series originally issued
remains outstanding immediately after each such redemption.
SECTION 3.8. MANDATORY REDEMPTION.
Subject to the Company's obligation to make an offer to purchase Notes
pursuant to Section 4.10 and Section 4.14, the Issuers are not required to make
mandatory redemption or sinking fund payments with respect to the Notes.
SECTION 3.9. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
Within 30 days after the date that Excess Proceeds exceed $10.0
million and an Asset Sale Offer is required under Section 4.10 hereof, the
Company shall mail or cause the Trustee to mail (in the Company's name and at
its expense and pursuant to an Officers' Certificate) an offer to purchase to
each Holder of Notes pursuant to the terms of this Section 3.9 and to holders of
other Indebtedness that ranks by its terms pari passu in right of payment with
the Notes and the terms of which contain substantially similar requirements with
respect to the application of net proceeds from asset sales as are contained
herein.
The Asset Sale Offer (as defined in Section 4.10) with respect to the
Notes shall be mailed by the Company (or the Trustee) to Holders of Notes of
each series at their last registered address with a copy to the Trustee and the
Paying Agent and shall set forth (a) notice that an Asset Sale has occurred,
that the Company is making an Asset Sale Offer, pursuant to this Section 3.9,
and that each Holder of Notes of each series then outstanding has the right to
require the Company to repurchase, for cash, such Holder's Notes at the Asset
Sale Offer Price, plus accrued and unpaid interest and Liquidated Damages
thereon, if any, to the payment date; (b) the purchase price per $1,000 of
principal amount and the payment date of the Asset Sale Offer, (c) the maximum
amount of Excess Proceeds, required to be applied to such Asset Sale Offer with
respect to the Notes; (d) that any Notes properly tendered pursuant to the Asset
Sale Offer will be accepted for payment (subject to reduction as provided in
this Section 3.9) on the payment date of the Asset Sale Offer and any Notes not
properly tendered will remain outstanding and continue to accrue interest and
Liquidated Damages, if applicable; (e) that unless the Company defaults in the
payment of the Asset Sale Offer Price, all Notes accepted for payment pursuant
to the Asset Sale Offer shall cease to accrue interest and Liquidated Damages
after the payment date of the Asset Sale Offer; (f) that Holders electing to
have any Notes purchased pursuant to an Asset Sale Offer will be required to
surrender the Notes, with the form entitled Option of Holder to Elect Purchase
on the reverse of the Notes completed, or transfer by book-entry transfer, to
the Issuers, the Depository or the Paying Agent specified in the notice at the
address specified in the notice prior to the close of business on the third
Business Day preceding the payment date of the Asset Sale Offer; (g) that
Holders will be entitled to withdraw their tendered Notes and their election to
require the Company to purchase the Notes provided that the Paying Agent
receives, not later than the close of business on the second Business Day
preceding the payment date of the Asset Sale Offer, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount and series of Notes tendered for purchase, and a statement that such
Holder is withdrawing such Holder's tendered Notes and such Holder's election to
have such Notes purchased; (h) that, if the aggregate principal amount of Notes
surrendered by
34
Holders exceeds the amount of the Asset Sale Offer, the Company shall select the
Notes of each series to be purchased by lot on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only Notes in
denominations of $1,000, or integral multiples thereof, shall be purchased or
otherwise in accordance with this Indenture); and (i) that Holders whose Notes
are being purchased only in part will be issued new Notes equal in principal
amount to the unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer). If the payment date of the Asset Sale Offer is on or after
an interest payment record date and on or before the related interest payment
date, any accrued interest and Liquidated Damages will be paid to the Person in
whose name a Note is registered at the close of business on such record date,
and no additional interest will be payable to Holders who tender a Note pursuant
to the Asset Sale Offer.
The Company shall fix the payment date of the Asset Sale Offer for
such purchase no earlier than 30 but no more than 60 days after the Asset Sale
Offer is mailed as set forth above, except as may otherwise be required by
applicable law.
The Company shall comply, to the extent applicable, with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable, in the event that the Company is required to repurchase Notes
pursuant to this Section 3.9. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section 3.9,
the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under this Indenture by
virtue thereof.
On the payment date of the Asset Sale Offer, the Company shall, to the
extent permitted by law, (x) accept for payment Notes or portions thereof
properly tendered pursuant to the Asset Sale Offer, (y) deposit with the Paying
Agent the amount of money, in immediately available funds, equal to the maximum
Excess Proceeds required under Section 4.10 to be applied to such Asset Sale
Offer with respect to such Notes and (z) deliver or cause to be delivered to the
Trustee, Notes so accepted together with an Officers' Certificate stating the
Notes or portions thereof tendered to the Company. If the aggregate purchase
price of all Notes of any series properly tendered exceeds the maximum amount of
Excess Proceeds required to be applied to such Asset Sale Offer with respect to
such Notes, as applicable, the Notes or portions thereof to be purchased shall
be selected pursuant to Section 3.2 hereof. The Paying Agent shall promptly
mail to each Holder of Notes so accepted for payment a check in an amount equal
to the aggregate purchase price of the Notes purchased by the Company from such
Holder and the Trustee shall promptly authenticate and mail to each Holder a new
Note of the same series equal in principal amount to any unpurchased portion of
any Note surrendered, if any, or return any unpurchased Note to such Holder;
provided, however, that each such new Note shall be in a principal amount of
$1,000 or an integral multiple thereof. The Company shall publicly announce in a
newspaper of national circulation or in a press release provided to a nationally
recognized financial wire service the results of the Asset Sale Offer on the
payment date.
Other than as specifically provided in this Section 3.9, each purchase
pursuant to this Section 3.9 shall be made pursuant to the provisions of
Sections 3.1, 3.2, 3.5 and 3.6 hereof.
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ARTICLE 4
COVENANTS
SECTION 4.1. PAYMENT OF NOTES.
The Issuers shall pay or cause to be paid the principal of, premium,
if any, and interest and Liquidated Damages, if any, on the Notes on the dates
and in the manner provided in this Indenture and the Notes. Principal, premium,
if any, and interest and Liquidated Damages, if any, shall be considered paid on
the due date if the Paying Agent, if other than an Issuer or a Subsidiary of an
Issuer, holds as of 9:00 a.m. Eastern Time on the due date money deposited by
the Issuers in immediately available funds and designated for and sufficient to
pay all principal, premium, if any, and interest and Liquidated Damages, if any,
then due. Such Paying Agent shall return to the Issuers promptly, and in any
event, no later than five days following the date of payment, any money
(including accrued interest) that exceeds such amount of principal, premium, if
any, and interest paid on the Notes. The Issuers shall pay all Liquidated
Damages, if any, in the same manner and on the same dates as set forth above and
in the amounts set forth in the Registration Rights Agreements.
The Issuers shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 1% per annum in excess of the interest rate then applicable to the Notes to
the extent lawful. In addition, the Issuers shall pay interest (including post-
petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages, if any, (without regard to any
applicable grace period) at the same rate to the extent lawful.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Issuers shall maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee or Registrar) where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Issuers in respect of the Notes and this Indenture may be served. The
Issuers shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Issuers
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Issuers may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Issuers of their obligations to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Issuers shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
The Issuers hereby designate the Corporate Trust Office of the Trustee
as one such office or agency of the Issuers in accordance with Section 2.3.
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SECTION 4.3. SEC REPORTS.
(a) The Issuers and the Parent shall, whether or not required by the
rules and regulations of the SEC, submit to the SEC for public availability
(unless the SEC will not accept such a submission) and provide to the Trustee
and the Holders of outstanding Notes of any series copies of all quarterly and
annual reports and other information, documents and reports specified in
Sections 13 and 15(d) of the Exchange Act for so long as the Notes of any such
series are outstanding (which shall include, without limitation, a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report thereon by its certified
independent accountants). The Issuers and the Parent shall make such
information available to investors and securities analysts who request it in
writing. Such information may be combined into one or two reports if permitted
by the rules and regulations of the SEC.
(b) If an Issuer, the Parent or a Subsidiary Guarantor is required
to furnish annual or quarterly reports to its stockholders pursuant to the
Exchange Act, the Issuers and the Parent shall cause such annual report or
quarterly or other financial report furnished to be filed with the Trustee and
mailed to the Holders at their addresses appearing in the register of Notes
maintained by the Registrar.
(c) The Issuers, the Parent and the Subsidiary Guarantors shall
deliver all reports and other documents and information to the Holders under
this Section 4.3. The Trustee shall, if requested to by the Issuers, deliver
such reports, other documents and information to the Holders, but at the sole
expense of the Issuers.
(d) The Issuers and the Parent, for so long as the Notes of any
series are outstanding, will continue to provide to Holders and to prospective
purchasers of Notes of such series the information required by Rule 144A(d)(4).
(e) Notwithstanding anything contrary herein, the Trustee shall have
no duty to review such documents for purposes of determining compliance with any
provision of this Indenture.
SECTION 4.4. COMPLIANCE CERTIFICATE.
(a) Each of the Issuers and the Parent shall deliver to the Trustee,
within sixty (60) days after the end of each fiscal year, an Officers'
Certificate stating that a review of the activities of the Parent, the Issuers
and their respective Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining whether
each of the Parent, the Issuers and their respective Subsidiaries has kept,
observed, performed and fulfilled its obligations under this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge each of the Parent, each Issuer and their
respective Subsidiaries has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action each of the Parent, each Issuer and their respective Subsidiaries is
37
taking or propose to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest or Liquidated Damages, if
any, on the Notes are prohibited (or if such event has occurred, a description
of the event and what action each is taking or proposes to take with respect
thereto).
(b) Each of the Issuers and the Parent shall, so long as any of the
Notes are outstanding, deliver to the Trustee, forthwith upon any Officer
becoming aware of (i) any Default or Event of Default or (ii) any event of
default under any other mortgage, indenture or instrument which with the passage
of time or giving of notice would be a Default or an Event of Default under
Section 6.1 hereof, an Officers' Certificate specifying such Default or Event of
Default and what action the Issuers or the Parent are taking or propose to take
with respect thereto.
SECTION 4.5. TAXES.
Each of the Issuers and the Parent shall, and shall cause each of
their respective Subsidiaries to pay prior to delinquency, all material taxes,
assessments, and governmental levies except as contested in good faith and by
appropriate proceedings.
SECTION 4.6. STAY, EXTENSION AND USURY LAWS.
Each of the Issuers, the Parent and the Subsidiary Guarantors
covenant, and the Company and the Parent shall cause any future Guarantors to
covenant (to the extent they may lawfully do so), that it will not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture. Each of the Issuers, the Parent and the Subsidiary Guarantors
(to the extent it may lawfully do so) hereby expressly waives, and the Company
and the Parent will cause any future Guarantor (to the extent it may lawfully do
so) expressly to waive, all benefit or advantage of any such law, and covenants
that it will not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law has been enacted.
SECTION 4.7. LIMITATION ON RESTRICTED PAYMENTS.
The Company and the Parent shall not, and shall not permit any of
their respective Restricted Subsidiaries to, directly or indirectly: (i) declare
or pay any dividend or make any distribution on account of the Company's, the
Parent's or any of their respective Restricted Subsidiaries' Equity Interests
(other than: (1) dividends or distributions payable in Equity Interests (other
than Disqualified Stock) of the Company or the Parent; (2) dividends or
distributions by a Restricted Subsidiary of the Company or the Parent (other
than the Company), provided that to the extent that a portion of such dividend
or distribution is paid to a holder of Equity Interests of a Restricted
Subsidiary other than the Company, the Parent or a Restricted Subsidiary of the
Company or the Parent, such portion of such dividend or distribution is not
greater than such holder's pro rata aggregate common equity interest in such
Restricted Subsidiary; and (3) dividends or distributions payable on Existing
Preferred OP Units and
38
Preferred OP Units issued in compliance with Section 4.9 hereof); (ii) purchase,
redeem or otherwise acquire or retire for value any Equity Interests of the
Company, the Parent or any Restricted Subsidiary of the Company or the Parent or
other Affiliate of the Company or the Parent (other than (A) any Equity
Interests owned by the Company, the Parent or any Restricted Subsidiary of the
Company or the Parent, (B) any Existing Preferred OP Units and (C) any Preferred
OP Units issued in compliance with Section 4.9 hereof); (iii) purchase, redeem
or otherwise acquire or retire for value any Indebtedness of the Company, the
Parent or any Restricted Subsidiary of the Company or the Parent that is
subordinated or junior in right of payment, by its terms, to the Notes or any
Guarantee thereof prior to the scheduled final maturity or sinking fund payment
dates for payment of principal and interest in accordance with the original
documentation for such subordinated or junior Indebtedness; or (iv) make any
Investment (all such payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as "Restricted Payments"), unless, at
the time of such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(b) the Company and the Parent would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
tests set forth in the first paragraph of Section 4.9 hereof; and
(c) such Restricted Payment, together with the aggregate of all
other Restricted Payments made by the Company, the Parent and their respective
Restricted Subsidiaries after the date of this Indenture (excluding Restricted
Payments permitted by clauses (ii), (iii), (iv), (v) and (vii) (X) of the second
next succeeding paragraph), is less than the sum, without duplication, of (i)
95% of the aggregate amount of the Funds From Operations (or, if the Funds From
Operations is a loss, minus 100% of the amount of such loss) (determined by
excluding income resulting from transfers of assets by the Company, the Parent
or any of their respective Restricted Subsidiaries to an Unrestricted
Subsidiary) accrued on a cumulative basis during the period (taken as one
accounting period) beginning on the first day of the fiscal quarter immediately
following the date of issuance of the Notes to the end of the Parent's most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment, plus (ii) 100% of the
aggregate net proceeds (including the fair market value of non-cash proceeds as
determined in good faith by the Board of Directors) received by the Company or
the Parent from the issue or sale, in either case, since the date of this
Indenture of either (A) Equity Interests of the Company or the Parent or of (B)
debt securities of the Company or the Parent that have been converted or
exchanged into such Equity Interests (other than Equity Interests (or
convertible or exchangeable debt securities) sold to a Restricted Subsidiary of
the Company or the Parent and other than Disqualified Stock or debt securities
that have been converted or exchanged into Disqualified Stock), plus (iii) in
case, after the date of this Indenture, any Unrestricted Subsidiary has been
redesignated a Restricted Subsidiary pursuant to the terms of this Indenture or
has been merged, consolidated or amalgamated with or into, or transfers or
conveys assets to, or is liquidated into, the Company, the Parent or a
Restricted Subsidiary of the Company or the Parent and provided that no Default
or Event of Default shall have occurred and be continuing or would occur as a
39
consequence thereof, the lesser of (A) the book value (determined in accordance
with GAAP) at the date of such redesignation, combination or transfer of the
aggregate Investments made by the Company, the Parent and their respective
Restricted Subsidiaries in such Unrestricted Subsidiary (or of the assets
transferred or conveyed, as applicable) and (B) the fair market value of such
Investments in such Unrestricted Subsidiary at the time of such redesignation,
combination or transfer (or of the assets transferred or conveyed, as
applicable), in each case as determined in good faith by the Board of Directors
of the Parent, whose determination shall be conclusive and evidenced by a
resolution of such Board and, in each case, after deducting any Indebtedness
associated with the Unrestricted Subsidiary so designated or combined or with
the assets so transferred or conveyed, plus (iv) 100% of any dividends,
distributions or interest actually received in cash by the Company, the Parent
or a Restricted Subsidiary of the Company or the Parent after the date of this
Indenture from (A) a Restricted Subsidiary the Net Income of which has been
excluded from the computation of Funds From Operations, (B) an Unrestricted
Subsidiary, (C) a Person that is not a Subsidiary or (D) a Person that is
accounted for on the equity method (except in the case of each of clauses (B),
(C) and (D), to the extent any such amounts are included in the calculation of
Funds From Operations).
Notwithstanding the foregoing, the Company or the Parent may declare
or pay any dividend or make any distribution that is necessary to maintain the
Parent's status as a REIT under the Internal Revenue Code if:
(a) the aggregate principal amount of all of the outstanding
Indebtedness of the Company, the Parent and their respective
Restricted Subsidiaries on a consolidated basis at such time is
less than 80% of the Parent's Adjusted Total Assets; and
(b) no Default or Event of Default shall have occurred and be
continuing.
Notwithstanding the foregoing, the provisions of this Section 4.7 will
not prohibit:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions of this Indenture; (ii) (X) the redemption,
purchase, retirement or other acquisition of any OP Unit or Preferred OP
Unit in exchange for Equity Interests of the Parent (other than
Disqualified Stock) and (Y) the redemption, purchase, retirement or other
acquisition of any Equity Interests of the Company, the Parent or a
Restricted Subsidiary of the Company or the Parent (other than OP Units or
Preferred OP Units) in exchange for, or out of the proceeds of, the
substantially concurrent sale (other than to a Restricted Subsidiary of the
Company or the Parent) of other Equity Interests of the Company or the
Parent (other than any Disqualified Stock); provided that in the case of
(X) and (Y) the amount of any proceeds that is utilized for such
redemption, repurchase, retirement or other acquisition shall be excluded
from clause (c)(ii) of the first paragraph of this Section 4.7; (iii) the
defeasance, redemption, repayment or purchase of Indebtedness of the
Company, the Parent or any Restricted Subsidiary of the Company or the
Parent that is subordinated or junior in right of payment, by its terms, to
the Notes or any Guarantee thereof in a Permitted Refinancing; (iv) the
defeasance, redemption, repayment or purchase of Indebtedness of the
Company, the Parent or any Restricted
40
Subsidiary of the Company or the Parent that is subordinated or junior in
right of payment, by its terms, to the Notes or any Guarantee thereof with
the proceeds of a substantially concurrent sale (other than to a Subsidiary
of the Company or the Parent) of Equity Interests (other than Disqualified
Stock) of the Company or the Parent; provided that the amount of any
proceeds that is utilized for such defeasance, redemption, repayment or
purchase shall be excluded from clause (c) (ii) of the first paragraph of
this Section 4.7; (v) the purchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or the Parent
pursuant to any management equity subscription agreement, stock option
agreement or stock award; provided, however, that the aggregate price paid
for all such purchased, redeemed, acquired or retired Equity Interests
shall not exceed $3,000,000 in any 12 month period; (vi) payments or
distributions to dissenting stockholders pursuant to applicable law
pursuant to or in connection with a consolidation, merger or transfer of
assets that complies with the provisions of this Indenture applicable to
mergers, consolidations and transfers of all or substantially all of the
property or assets of the Company or the Parent; (vii)(X) the making of any
Permitted Investment described in clauses (a), (b), (c), (d), (f) or (g) of
the definition thereof and (Y) the making of any Permitted Investment
described in clause (e) thereof; and (viii) payments that would otherwise
be Restricted Payments, in an aggregate amount not to exceed $35 million
collectively, provided that at the time of, and after giving effect to, the
proposed payment, the Company and the Parent could have incurred at least
$1.00 of additional Indebtedness under the first paragraph of Section 4.9;
provided however, that, in the case of clauses (ii)(Y), (iii), (iv), (v),
(vi), (vii)(Y) and (viii), no Default or Event of Default shall have
occurred and be continuing or would occur as a consequence thereof.
In determining whether any Restricted Payment is permitted by this
Section 4.7, the Company or the Parent may allocate or reallocate all or any
portion of such Restricted Payment among the clauses (i) through (viii) of the
preceding paragraph or among such clauses and the first paragraph of this
Section 4.7 including clauses (a), (b) and (c), provided that at the time of
such allocation or reallocation, all such Restricted Payments, or allocated
portions thereof, would be permitted under the various provisions of this
Section 4.7.
The amount of all Restricted Payments (other than cash) shall be the
fair market value (evidenced by a resolution of the Board of Directors set forth
in an Officers' Certificate delivered to the Trustee) on the date of the
Restricted Payment of the asset(s) proposed to be transferred by the Company,
the Parent or such Restricted Subsidiary, as the case may be, pursuant to the
Restricted Payment. Not later than (i) the end of any calendar quarter in which
any Restricted Payment is made or (ii) the making of a Restricted Payment which,
when added to the sum of all previous Restricted Payments made in a calendar
quarter, would cause the aggregate of all Restricted Payments made in such
quarter to exceed $5.0 million, the Company shall deliver to the Trustee an
Officers' Certificate stating that such Restricted Payment is permitted and
setting forth the basis upon which the calculations required by this Section 4.7
were computed, which calculations may be based upon the Parent's latest
available financial statements.
The Board of Directors may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if such designation would not cause a Default or
Event of Default. For
41
purposes of making the determination as to whether such designation would cause
a Default or Event of Default, all outstanding Investments by the Company, the
Parent and their Restricted Subsidiaries (except to the extent repaid in cash)
in the Subsidiary so designated will be deemed to be Restricted Payments at the
time of such designation and will reduce the amount available for Restricted
Payments under the first paragraph of this Section 4.7. All such outstanding
Investments will be deemed to constitute Investments in an amount equal to the
greatest of (x) the net book value of such Investments at the time of such
designation, (y) the fair market value of such Investments at the time of such
designation and (z) the original fair market value of such Investments at the
time they were made. Such designation will only be permitted if such Restricted
Payment would be permitted at such time and if such Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary.
Any such designation by the Board of Directors shall be evidenced to
the Trustee by filing with the Trustee a certified copy of the resolution of the
Board of Directors of the Parent giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing conditions.
SECTION 4.8. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES.
Neither the Company nor the Parent shall, and neither the Company nor
the Parent shall not permit any of their respective Restricted Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to (a) (i) pay dividends or make any other distributions to the
Company, the Parent or any of their respective Restricted Subsidiaries (A) on
its Capital Stock or (B) with respect to any other interest or participation in,
or measured by, its profits, or (ii) pay any Indebtedness owed to the Company,
the Parent or any of their respective Restricted Subsidiaries, (b) make loans or
advances or capital contributions to the Company, the Parent or any of their
respective Restricted Subsidiaries, or (c) sell, lease or transfer any of its
properties or assets to the Company, the Parent or any of their respective
Restricted Subsidiaries, except for such encumbrances or restrictions existing
under or by reasons of (i) Existing Indebtedness as in effect on the date of
this Indenture, (ii) any Credit Facility, provided that the encumbrances or
restrictions contained in such facility as amended, modified, supplemented,
restructured, renewed, restated, refunded, replaced or refinanced or extended
from time to time on one or more occasions are no more restrictive than those
contained in the Credit Agreement as in effect on the date of this Indenture,
(iii) this Indenture and the Notes, (iv) applicable law, (v) any instrument
governing Indebtedness or Capital Stock of a Person acquired by the Company, the
Parent or any of their respective Restricted Subsidiaries or of any Person that
becomes a Restricted Subsidiary as in effect at the time of such acquisition or
such Person becoming a Restricted Subsidiary (except to the extent such
Indebtedness was incurred in connection with or in contemplation of such
acquisition or such Person becoming a Restricted Subsidiary), which encumbrance
or restriction is not applicable to any Person, or the properties or assets of
any Person, other than the Person, or the property or assets of the Person, so
acquired, provided that the Consolidated Cash Flow of such Person is not taken
into account (to the extent of such restriction) in determining whether such
acquisition was permitted by the terms of this Indenture, (vi) restrictions of
the nature described in clause (c) above by reason of customary non-
42
assignment provisions in leases entered into in the ordinary course of business
and consistent with past practices, (vii) purchase money obligations for
property acquired in the ordinary course of business that impose restrictions of
the nature described in this clause (c) above on the property so acquired,
(viii) Permitted Refinancings, provided that the encumbrances or restrictions
contained in the agreements governing such Permitted Refinancings are no more
restrictive than those contained in the agreements governing the Indebtedness or
Disqualified Stock being refinanced, or (ix) customary restrictions in security
agreements or mortgages securing Indebtedness of a Restricted Subsidiary to the
extent such restrictions restrict the transfer of the property subject to such
security agreements and mortgages.
SECTION 4.9. LIMITATION ON ADDITIONAL INDEBTEDNESS AND ISSUANCE OF
CERTAIN CAPITAL STOCK.
Neither the Company nor the Parent shall, and neither the Company nor
the Parent shall permit any of their respective Restricted Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable with respect to (collectively, "incur" and
correlatively, an "incurrence" of) any Indebtedness (including Assumed
Indebtedness), neither the Company nor the Parent shall issue, and neither the
Company nor the Parent shall permit any of their respective Restricted
Subsidiaries to issue, any shares of Disqualified Stock, and neither the Company
nor the Parent shall permit any of its Restricted Subsidiaries (other than the
Company) to issue any Preferred Stock; provided, however, that the Company or
any Guarantor may incur Indebtedness or issue shares of Disqualified Stock if
(i) the aggregate principal amount of all outstanding Indebtedness and
Disqualified Stock of the Company, the Parent and their respective Restricted
Subsidiaries (including amounts of Refinancing Indebtedness outstanding pursuant
to clause (e) of the next paragraph or otherwise) determined on a consolidated
basis is less than or equal to 65% of the Parent's Adjusted Total Assets, after
giving effect to, on a pro forma basis, such incurrence or issuance and the
receipt and application of the proceeds thereof; and (ii) the Fixed Charge
Coverage Ratio of the Parent for the Parent's most recently ended four full
fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred
or such Disqualified Stock is issued would have been at least 2.0 to 1,
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock had been issued, as the case may be, at the beginning of such
four-quarter period; provided that the Company, the Parent or any of their
respective Restricted Subsidiaries may not incur any Subsidiary Debt or any
Secured Indebtedness if immediately after giving effect to, on a pro forma
basis, such incurrence of such additional Subsidiary Debt or Secured
Indebtedness and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Subsidiary Debt or Secured Indebtedness of
the Company, the Parent and their respective Restricted Subsidiaries (including
amounts of Refinancing Indebtedness outstanding pursuant to clause (e) of the
next paragraph or otherwise) on a consolidated basis is greater than 45% of the
Parent's Adjusted Total Assets.
The foregoing provisions shall not apply to:
(a) the incurrence by the Company's or the Parent's Unrestricted
Subsidiaries of Non-Recourse Indebtedness; provided, however, that if any such
Indebtedness ceases to be Non-
43
Recourse Indebtedness of an Unrestricted Subsidiary, such event shall be deemed
to constitute an incurrence of Indebtedness by one of the Company's or the
Parent's Restricted Subsidiaries;
(b) the incurrence by the Company, the Parent or their respective
Restricted Subsidiaries of Indebtedness pursuant to the Credit Facilities in an
aggregate principal amount not to exceed $900.0 million at any one time
outstanding, minus any Net Proceeds that have been applied to permanently reduce
the outstanding amount of such Indebtedness pursuant to clause (a) of the second
paragraph of Section 4.10 hereof;
(c) the incurrence by the Company, the Parent and their respective
Restricted Subsidiaries of Existing Indebtedness;
(d) the incurrence by the Company, the Parent or their respective
Restricted Subsidiaries of Indebtedness under Hedging Obligations that do not
increase the Indebtedness of the Company, the Parent or the Restricted
Subsidiary, as the case may be, other than as a result of fluctuations in
interest or foreign currency exchange rates provided that such Hedging
Obligations are incurred for the purpose of providing interest rate protection
with respect to Indebtedness permitted under this Indenture or to provide
currency exchange protection in connection with revenues generated in currencies
other than U.S. dollars;
(e) the incurrence or the issuance by the Company or the Parent of
Refinancing Indebtedness or Refinancing Disqualified Stock or the incurrence or
issuance by a Restricted Subsidiary of Refinancing Indebtedness or Refinancing
Disqualified Stock; provided, however, that such Refinancing Indebtedness or
Refinancing Disqualified Stock is a Permitted Refinancing;
(f) the incurrence by the Company, the Parent or any of their
respective Restricted Subsidiaries of intercompany Indebtedness between or among
the Company, the Parent and/or any of their respective Restricted Subsidiaries;
provided, however, that (a) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person other
than a Restricted Subsidiary and (b) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company, the Parent or a
Restricted Subsidiary shall be deemed, in each case, to constitute an incurrence
of such Indebtedness by the Company, the Parent or such Restricted Subsidiary,
as the case may be;
(g) the incurrence of Indebtedness represented by the Notes and any
Guarantee thereof;
(h) the incurrence by the Company, the Parent or any of their
respective Restricted Subsidiaries, in the ordinary course of business and
consistent with past practice, of surety, performance or appeal bonds;
(i) the incurrence by the Company, the Parent or any of their
respective Restricted Subsidiaries of Indebtedness (in addition to Indebtedness
permitted by any other clause of this paragraph) in an aggregate principal
amount at any time outstanding not to exceed $50.0 million collectively;
44
(j) the incurrence by the Company, the Parent or any of their
respective Restricted Subsidiaries of Assumed Indebtedness; provided that, after
giving effect to the incurrence thereof, the Company, the Parent and their
respective Restricted Subsidiaries could incur at lease $1.00 of additional
Indebtedness pursuant to the tests described in the preceding paragraph;
(k) the issuance of Preferred OP Units by the Company or any of its
Restricted Subsidiaries as full or partial consideration for the acquisition of
lodging facilities and related assets, provided that, after giving effect to the
issuance thereof, the Company, the Parent and their respective Restricted
Subsidiaries could incur at least $1.00 of additional Indebtedness pursuant to
the tests described in the preceding paragraph; and
(j) the incurrence of Indebtedness by the Company, the Parent or any
of their respective Restricted Subsidiaries arising from agreements providing
for indemnification, adjustment of purchase price or similar obligations, or
from Guarantees or letters of credit, surety bonds or performance bonds securing
any of obligations of the Company, the Parent or any of their respective
Restricted Subsidiaries pursuant to such agreements, in any case incurred in
connection with the disposition of any business, assets or Restricted Subsidiary
(other than Guarantees of Indebtedness incurred by any Person acquiring all or
any portion of such business, assets or Restricted Subsidiary for the purpose of
financing such acquisition), in a principal amount not to exceed the gross
proceeds actually received by the Company, the Parent and their respective
Restricted Subsidiaries on a consolidated basis in connection with such
disposition.
SECTION 4.10. LIMITATION ON SALE OF ASSETS.
Neither the Company nor the Parent shall, and neither the Company nor
the Parent shall permit any of their respective Restricted Subsidiaries to,
conduct an Asset Sale, unless (x) the Company, the Parent or the Restricted
Subsidiary, as the case may be, receives consideration at the time of such Asset
Sale at least equal to the fair market value of the assets sold or otherwise
disposed of (evidenced by a resolution of the Board of Directors set forth in an
Officers' Certificate delivered to the Trustee) and (y) at least 75% of the
consideration therefor received by the Company, the Parent or such Restricted
Subsidiary, as the case may be, is in the form of cash or Cash Equivalents;
provided, however, that, with respect to the sale of one or more hotel
properties, up to 75% of the consideration may consist of Indebtedness of the
purchaser of those hotel properties if that Indebtedness is secured by a first
priority Lien on the properties sold; provided, further, however, the principal
amount of the following shall be deemed to be cash for purposes of this
provision: (A) any liabilities (as shown on the Company's, the Parent's or such
Restricted Subsidiary's most recent balance sheet or in the notes thereto), of
the Company, the Parent or any Restricted Subsidiary (other than liabilities
that are by their terms subordinated to the Notes or any Guarantee thereof) that
are assumed by the transferee of any such assets and (B) any notes or other
obligations received by the Company, the Parent or any such Restricted
Subsidiary from such transferee that are converted by the Company, the Parent or
such Restricted Subsidiary into cash within 90 days after the closing of such
Asset Sale (to the extent of the cash received). Notwithstanding the foregoing,
the restriction in clause (y) above will not apply with respect to mortgages,
other notes receivable or other securities received by the Company, the Parent
or any Restricted Subsidiary from a transferee of any assets to the extent
45
such mortgages, other notes receivable or other securities are Investments
permitted to be made by the Company, the Parent or such Restricted Subsidiary
under Section 4.7 hereof.
In the event and to the extent that the Net Proceeds received by the
Company, the Parent and their respective Restricted Subsidiaries collectively
from one or more Asset Sales occurring on or after the Issuance Date in any
period of 12 consecutive months exceed 10% of Adjusted Consolidated Net Tangible
Assets (determined as of the date closest to the commencement of such 12-month
period for which a consolidated balance sheet of the Company, the Parent and
their respective Restricted Subsidiaries has been filed with the SEC or
otherwise provided to the Trustee), then the Company or the Parent shall, or
shall cause the relevant Restricted Subsidiary to, within 365 days after the
date the Net Proceeds so received exceed 10% of Adjusted Consolidated Net
Tangible Assets: (a) apply the Net Proceeds from such Asset Sale to prepay any
Indebtedness under any Credit Facility, in order to effect a permanent reduction
in the amount of Indebtedness that may be incurred pursuant to clause (b) of the
second paragraph of Section 4.9 hereof, or (b) invest the Net Proceeds from such
Asset Sale in property or assets used in a Hospitality-Related Business,
provided that the Company, the Parent or such Restricted Subsidiary will have
complied with this clause (b) if, within 365 days of such Asset Sale, the
Company, the Parent or such Restricted Subsidiary, as applicable, shall have
commenced and not completed or abandoned an Investment in compliance with this
clause (b) and shall have segregated such Net Proceeds from the general funds of
the Company, the Parent and their respective Subsidiaries for that purpose and
such Investment is substantially completed within 180 days after the first
anniversary of such Asset Sale. Any Net Proceeds from an Asset Sale that are
not applied or invested as provided in the first sentence of this paragraph will
be deemed to constitute "Excess Proceeds". When the aggregate amount of Excess
Proceeds exceeds $10.0 million, the Company shall make an offer, to all Holders
of Notes and to holders of other Indebtedness that ranks by its terms pari passu
in right of payment with the Notes and the terms of which contain substantially
similar requirements with respect to the application of net proceeds from asset
sales as are contained in this Indenture (an "Asset Sale Offer") to purchase on
a pro rata basis the maximum principal amount of Notes of each series, that is
an integral multiple of $1,000, that may be purchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of the principal
amount thereof plus accrued and unpaid interest and Liquidated Damages thereon,
if any, to the date of purchase (the "Asset Sale Offer Price"), in accordance
with the procedures set forth in this Indenture. To the extent that the
aggregate amount of Notes and other such Indebtedness tendered pursuant to an
Asset Sale Offer is less than the Excess Proceeds, the Company may use any
remaining Excess Proceeds for general corporate purposes. If the aggregate
principal amount of Notes of any series surrendered by Holders thereof exceeds
the amount of Excess Proceeds available for purchase thereof, the Trustee shall
select the Notes of such series to be purchased in the manner described under
Section 3.3 hereof. Upon completion of such offer to purchase, the amount of
Excess Proceeds shall be reset at zero. Pending the final application of any
Net Proceeds from an Asset Sale pursuant to this paragraph, the Company or any
Restricted Subsidiary may temporarily reduce Indebtedness of the Company or a
Restricted Subsidiary that ranks by its terms senior to the Notes or otherwise
invest such Net Proceeds in Cash Equivalents.
Any offer to purchase the Notes pursuant to this Section 4.10 shall be
made pursuant to the provisions of Section 3.9 hereof. Simultaneously with the
notification of such offer to the Trustee, the Company shall provide the Trustee
with an Officer's is Certificate
46
setting forth the calculations used in determining the amount of Excess Proceeds
to be applied to the purchase of the Notes. The Company will comply, to the
extent applicable, with the requirements of Rule 14e-1 under the Exchange Act
and other securities laws and regulations thereunder to the extent such laws and
regulations are applicable in connection with any offer to purchase and the
purchase of Notes as described above. To the extent that the provisions of any
securities laws or regulations conflict with Section 3.9 and this Section 4.10,
the Company shall comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations under the provisions of
Section 3.9 and this Section 4.10 to make an Asset Sale Offer.
SECTION 4.11. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
Neither the Company nor the Parent shall, and neither the Company nor
the Parent shall permit any of their respective Restricted Subsidiaries to,
sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into any contract,
agreement, understanding, loan, advance or Guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction"), unless
(a) such Affiliate Transaction is on terms that are no less favorable to the
Company, the Parent or the relevant Restricted Subsidiary than those that would
have been obtained in a comparable transaction by the Company, the Parent or
such Restricted Subsidiary on an arm's length basis with an unrelated Person,
(b) the Company delivers to the Trustee (i) with respect to any Affiliate
Transaction involving aggregate payments in excess of $5.0 million, an Officers'
Certificate certifying that such Affiliate Transaction complies with clause (a)
above and such Affiliate Transaction is approved by a majority of the
disinterested members of the Board of Directors and (ii) with respect to any
Affiliate Transaction involving aggregate payments in excess of $10.0 million
(other than an Affiliate Transaction involving the acquisition or disposition of
a lodging facility by the Company, the Parent or a Restricted Subsidiary of the
Company or the Parent), an opinion as to the fairness to the Company, the Parent
or such Restricted Subsidiary from a financial point of view issued, at the
option of the Company, by an investment banking firm of national standing or a
Qualified Appraiser and (c) the Company delivers to the Trustee in the case of
an Affiliate Transaction involving the acquisition or disposition of a lodging
facility by the Company, the Parent or a Restricted Subsidiary of the Company or
the Parent and (x) involving aggregate payments of more than $5.0 million and
less than $25.0 million, an appraisal by a Qualified Appraiser to the effect
that the transaction is being undertaken at fair market value or (y) involving
aggregate payments of $25.0 million or more, an opinion as to the fairness of
the transaction to the Company, the Parent or such Restricted Subsidiary from a
financial point of view issued by an investment banking firm of national
standing; provided, however, that the following shall not be deemed Affiliate
Transactions: (A) any employment, deferred compensation, stock option,
noncompetition, consulting or similar agreement entered into by the Company, the
Parent or any of their respective Restricted Subsidiaries in the ordinary course
of business and consistent with the past practice of the Company, the Parent or
such Restricted Subsidiary, (B) transactions between or among the Company, the
Parent and/or their respective Restricted Subsidiaries, (C) the incurrence of
fees in connection with the provision of hotel management services, provided
that such fees are paid in the ordinary course of business and are consistent
with past practice and (D) Restricted Payments permitted by Section 4.7 hereof.
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SECTION 4.12. LIMITATION ON LIENS.
Neither the Company nor the Parent shall, and neither the Company nor
the Parent shall permit any of their respective Restricted Subsidiaries to,
secure any Indebtedness under the Credit Agreement or any other Indebtedness
incurred pursuant to clause (b) of the second paragraph of Section 4.9 by a Lien
(other than a Stock Pledge) unless contemporaneously therewith effective
provision is made to secure the Notes equally and ratably with the Indebtedness
under the Credit Agreement or any such other Indebtedness incurred pursuant to
clause (b) of the second paragraph of Section 4.9 for so long as the
Indebtedness under any of the Credit Agreement or any other such Indebtedness
incurred pursuant to clause (b) of the second paragraph of Section 4.9 is
secured by such Lien; provided, however, that this provision shall not become
effective until such time as it is permitted by the Credit Agreement.
SECTION 4.13. CORPORATE EXISTENCE.
Subject to Section 4.14 and Article 5 hereof, each of the Issuers and
the Parent shall do or cause to be done all things necessary to preserve and
keep in full force and effect (i) its corporate or limited partnership, as the
case may be, existence and the corporate, limited partnership or limited
liability company, as the case may be, existence of each of its Subsidiaries, in
accordance with its respective organizational documents (as the same may be
amended from time to time) and (ii) its (and its Subsidiaries') rights (charter
and statutory), licenses and franchises; provided, however, that the Issuers and
the Parent shall not be required to preserve any such right, license or
franchise, or the corporate, limited partnership or limited liability company,
existence of any of its Subsidiaries, if the Board of Directors of the Parent
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Parent, the Company and their respective
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders.
SECTION 4.14. CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder of Notes shall
have the right to require that the Company purchase all or a portion of such
Holder's Notes pursuant to the offer described below (the "Change of Control
Offer"), at a purchase price in cash equal to 101% of the principal amount
thereof plus accrued and unpaid interest and Liquidated Damages, if any, to the
date of purchase (the "Change of Control Payment").
Within 10 days following the date upon which the Change of Control
occurs, the Company must send, by first class mail, a notice to each Holder,
with a copy to the Trustee, which notice shall govern the terms of the Change of
Control Offer. Such notice shall state, among other things, the purchase date,
which must be no earlier than 30 days nor later than 60 days from the date such
notice is mailed, other than as may be required by law (the "Change of Control
Payment Date"). Holders electing to have a Note purchased pursuant to a Change
of Control Offer will be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note completed, to
the Trustee or Paying Agent, if any, at the address specified in the notice
prior to the close of business on the third business day prior to the Change of
Control Payment Date.
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The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.14, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.14 to make a Change of Control Offer.
On the Change of Control Payment Date, the Company will, to the extent
permitted by law, (x) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (y) deposit with the Paying
Agent an amount equal to the aggregate Change of Control Payment in respect of
all Notes or portions thereof so tendered and (z) deliver, or cause to be
delivered, to the Trustee for cancellation the Notes so accepted together with
an Officers' Certificate stating the aggregate principal amount of Notes or
portions thereof being purchased by the Company. The Paying Agent shall
promptly mail to each Holder of Notes so accepted the Change of Control Payment
for such Notes, and the Trustee shall promptly authenticate and mail to each
Holder a new Note of the same series equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided, however, that
each such new Note shall be in principal amount of $1,000 or an integral
multiple thereof. The Company will publicly announce in a newspaper of national
circulation or in a press release provided to a nationally recognized financial
wire service the results of the Change of Control Offer on the Change of Control
Payment Date.
The Company will not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in this Indenture applicable to a Change of Control made by the Company
and purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
SECTION 4.15. SUBSIDIARY GUARANTEES.
Prior to guaranteeing any other Indebtedness of the Company or the
Parent, a Restricted Subsidiary of the Company or the Parent that is also a
Significant Subsidiary must execute and deliver to the Trustee a supplemental
indenture in the form of Exhibit B hereto pursuant to which such Restricted
Subsidiary shall Guarantee, on an unsecured senior basis, all of the Obligations
of the Issuers with respect to the Notes together with an opinion of counsel
(which counsel may be an employee of the Company) to the effect that the
supplemental indenture has been duly executed and delivered by such Restricted
Subsidiary and is in compliance in all material respects with the terms of this
Indenture.
SECTION 4.16. LINE OF BUSINESS.
For so long as any Notes are outstanding, neither the Company nor the
Parent shall, and neither the Company nor the Parent shall permit any of their
respective Restricted Subsidiaries to, engage in any business or activity other
than a Hospitality-Related Business.
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SECTION 4.17. PAYMENTS FOR CONSENT.
None of the Parent, any Issuer or any of their respective Subsidiaries
shall, directly or indirectly, pay or cause to be paid any consideration,
whether by way of interest, fee or otherwise, to any Holder of any Notes of any
series for or as an inducement to any consent, waiver or amendment of any of the
terms or provisions of this Indenture or the Notes of such series unless such
consideration is offered to be paid or agreed to be paid to all Holders of the
Notes of such series that consent, waive or agree to amend in the time frame set
forth in the solicitation documents relating to such consent, waiver or
agreement.
SECTION 4.18. MAINTENANCE OF TOTAL UNENCUMBERED ASSETS.
The Company, the Parent and their respective Restricted Subsidiaries
shall maintain Total Unencumbered Assets of not less than 150% of the aggregate
outstanding principal amount of the Company's, the Parent's and their respective
Restricted Subsidiaries' Unsecured Indebtedness (including amounts of
Refinancing Indebtedness outstanding pursuant to clause (e) of the second
paragraph of Section 4.9 or otherwise); provided, however, that this provision
shall not become effective until such time as it is permitted by the Credit
Agreement.
SECTION 4.19. CONSENTS UNDER THE CREDIT AGREEMENT.
The Company and the Parent shall use commercially reasonable efforts
to obtain the consent of the required lenders under the Credit Agreement to the
effectiveness of Sections 4.12 and 4.18 hereof as promptly as practicable.
SECTION 4.20. CERTAIN COVENANTS OF MERISTAR FINANCE.
Notwithstanding anything to the contrary contained herein, MeriStar
Finance shall not (a) own any assets other than nominal equity capital, (b)
incur any Indebtedness other than (i) the Notes and (ii) Guarantees of certain
Indebtedness existing on the Issuance Date and (c) engage in any business other
than the co-issuance of the Notes and the Guarantees of the Indebtedness
described in clause (b)(ii).
SECTION 4.21. COVENANTS UPON ATTAINMENT AND MAINTENANCE OF AN
INVESTMENT GRADE RATING.
The provisions of Sections 4.7, 4.8, 4.11 and 4.12 shall not be
applicable in the event, and only for so long as, the Notes are rated Investment
Grade and no Default or Event of Default has occurred and is continuing.
ARTICLE 5
SUCCESSORS
SECTION 5.1. WHEN THE COMPANY MAY MERGE, ETC.
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Neither of the Issuers nor the Parent shall consolidate or merge with
or into (whether or not such Issuer or the Parent, as the case may be, is the
surviving entity), or sell, assign, transfer, lease, convey or otherwise dispose
of all or substantially all of its respective properties or assets in one or
more related transactions to, another corporation, Person or entity unless:
(i) such Issuer or the Parent, as the case may be, is the surviving
corporation or the Person formed by or surviving any such consolidation or
merger (if other than such Issuer or the Parent, as the case may be) or to
which such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia;
(ii) the Person formed by or surviving any such consolidation or
merger (if other than such Issuer or the Parent, as the case may be) or the
Person to which such sale, assignment, transfer, lease, conveyance or other
disposition will have been made assumes all the obligations of such
Issuer's or the Parent's respective obligations, as the case may be, under
the Notes or the Guarantee thereof, as the case may be, and this Indenture,
pursuant to a supplemental indenture;
(iii) at the time of such transaction and immediately after such
transaction after giving pro forma effect thereto, no Default or Event of
Default exists or would exist;
(iv) such Issuer or the Parent, as the case may be, or any Person
formed by or surviving such consolidation or merger, or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have
been made shall, at the time of such transaction and after giving pro forma
effect thereto as if such transaction had occurred at the beginning of the
applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the tests set forth in the first
paragraph of Section 4.9 hereof; and
(v) the Issuers and the Parent shall have delivered to the Trustee
prior to the consummation of the proposed transaction an Officers'
Certificate and an Opinion of Counsel to the combined effect that such
consolidation, merger, sale, assignment, transfer, lease, conveyance or
other disposition, and, if applicable, any supplemental indenture executed
in connection therewith, comply with this Indenture. The Trustee shall be
entitled to conclusively rely upon such Officers' Certificate and Opinion
of Counsel.
SECTION 5.2. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger or lease, sale, assignment,
disposition, conveyance or transfer of all or substantially all of the assets of
any Issuer or the Parent, as the case may be, in accordance with Section 5.1
hereof, the successor Person formed by such consolidation or into which such
Issuer or the Parent, as the case may be, is merged or to which such sale,
lease, conveyance, assignment, disposition or transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, such Issuer
or the Parent, as the case may be, under this Indenture and the Notes or the
Guarantee thereof, as the case may be, with the
51
same effect as if such successor had been named as such Issuer or the Parent, as
the case may be, herein or therein and thereafter (except in the case of a
lease) the predecessor Person shall be relieved of all further obligations and
covenants under this Indenture and the Notes or the Guarantee, as the case may
be.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
Each of the following shall constitute an Event of Default under this
Indenture with respect to any series of Notes:
(1) default for 30 days in the payment when due of interest or
Liquidated Damages, if any, on the Notes of such series;
(2) default in payment when due of principal of or premium, if any,
on the Notes of such series at maturity, upon redemption or otherwise (including
the failure to make a payment to purchase Notes of such series tendered pursuant
to a Change of Control Offer or an Assets Sale Offer);
(3) failure by any Issuer or the Parent to comply with Section 5.1
or the failure by any Subsidiary Guarantor to comply with Section 10.2;
(4) failure by any Issuer, the Parent, any Guarantor or any
Restricted Subsidiary for 30 days in the performance of any other covenant,
warranty or agreement in this Indenture or the Notes of such series after
written notice shall have been given to the Company by the Trustee or to the
Company and the Trustee from Holders of at least 25% in principal amount of the
Notes of such then outstanding;
(5) the failure to pay at final stated maturity (giving effect to
any applicable grace periods and any extensions thereof) the principal amount of
Non-Recourse Indebtedness of the Company, the Parent or any of their respective
Restricted Subsidiaries with an aggregate principal amount in excess of the
lesser of (A) 10% of the total assets of the Company, the Parent and their
respective Restricted Subsidiaries measured as of the end of the Parent's most
recent fiscal quarter for which internal financial statements are available
immediately preceding the date on which such default occurred, determined on a
pro forma basis and (B) $50 million, and such failure continues for a period of
10 days or more, or the acceleration of the final stated maturity of any such
Non-Recourse Indebtedness (which acceleration is not rescinded, annulled or
otherwise cured within 10 days of receipt by the Company, the Parent or such
Restricted Subsidiary of notice of any such acceleration);
(6) the failure to pay at final stated maturity (giving effect to
any applicable grace periods and any extensions thereof) the principal amount of
any Indebtedness (other than Non-Recourse Indebtedness) of the Company, the
Parent or any Restricted Subsidiary of the Company or the Parent and such
failure continues for a period of 10 days or more, or the acceleration of the
final stated maturity of any such Indebtedness (which acceleration is not
rescinded, annulled or otherwise cured within 10 days of receipt by the Company,
the Parent or
52
such Restricted Subsidiary of notice of any such acceleration) if the aggregate
principal amount of such Indebtedness, together with the principal amount of any
other such Indebtedness in default for failure to pay principal at final
maturity or which has been accelerated, in each case with respect to which the
10-day period described above has passed, aggregates $10.0 million or more at
any time;
(7) failure by the Company, the Parent or any of their respective
Restricted Subsidiaries to pay final judgments rendered against them (other than
judgment liens without recourse to any assets or property of the Company, the
Parent or any of their respective Restricted Subsidiaries other than assets or
property securing Non-Recourse Indebtedness) aggregating in excess of $10.0
million, which judgments are not paid, discharged or stayed for a period of 60
days (other than any judgments as to which a reputable insurance company has
accepted full liability);
(8) except as permitted by this Indenture, any Guarantee with
respect to the Notes shall be held in a judicial proceeding to be unenforceable
or invalid or shall cease for any reason to be in full force and effect or any
Guarantor (or its successors or assigns) or any Person acting on behalf of such
Guarantor (or its successors or assigns), shall deny or disaffirm its
obligations or shall fail to comply with any obligations under its Guarantee
with respect to the Notes;
(9) the Company, the Parent, any of the Company's or the Parent's
Subsidiaries that would constitute a Significant Subsidiary of the Company or
the Parent or any group of the Company's and/or the Parent's Subsidiaries that,
taken together, would constitute a Significant Subsidiary of the Company or the
Parent, pursuant to or within the meaning of the Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in
an involuntary case,
(c) consents to the appointment of a Custodian of it or for all
or substantially all of its property,
(d) makes a general assignment for the benefit of its
creditors,
(e) admits in writing its inability to pay its debts as they
become due; and
(10) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(a) is for relief in an involuntary case against the Company,
the Parent, any Subsidiary of the Company or the Parent that is a
Significant Subsidiary of the Company or the Parent or any group of
the Company's and/or the Parent's Subsidiaries that, taken together,
would constitute a Significant Subsidiary of the Company or the
Parent,
53
(b) appoints a Custodian of the Company, the Parent, any
Subsidiary of the Company or the Parent that is a Significant
Subsidiary of the Company or the Parent or any group of the Company's
and/or the Parent's Subsidiaries that, taken together, would
constitute a Significant Subsidiary of the Company or the Parent, or
for all or substantially all of the property of the Company, the
Parent, any Subsidiary of the Company or the Parent that is a
Significant Subsidiary of the Company or the Parent, or any group of
the Company's and/or the Parent's Subsidiaries that, taken together,
would constitute a Significant Subsidiary of the Company or the
Parent, or
(c) orders the liquidation of the Company, the Parent, any
Subsidiary of the Company or the Parent that is a Significant
Subsidiary of the Company or the Parent or any group of the Company's
and/or the Parent's Subsidiaries that, taken together, would
constitute a Significant Subsidiary of the Company or the Parent,
and the order or decree remains unstayed and in effect for 60 consecutive
days.
The term "Bankruptcy Law" means, title 11, U.S. Code or any similar
federal or state law for the relief of debtors, each as amended from time to
time. The term Custodian means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
SECTION 6.2. ACCELERATION.
If any Event of Default (other than an Event of Default specified in
clauses (9) and (10) of Section 6.1 hereof) with respect to Notes of a series
occurs and is continuing, the Trustee by written notice to the Issuers, or the
Holders of at least 25% in aggregate principal amount of the then outstanding
Notes of such series by written notice to the Issuers and the Trustee, may
declare all Notes of such series to be due and payable immediately. Upon the
effectiveness of such declaration, all amounts due and payable on the Notes of
such series, as determined in the succeeding paragraphs, shall be due and
payable effective immediately. If an Event of Default specified in clause (9)
or (10) of Section 6.1 hereof occurs, all outstanding Notes shall ipso facto
become and be immediately due and payable immediately without further action or
notice on the part of or by the Trustee or any Holder.
In the event that the maturity of the Notes of any series is
accelerated pursuant to this Section 6.2, 100% of the principal amount thereof
shall become due and payable plus premium, if any, and accrued and unpaid
interest and Liquidated Damages, if any, to the date of payment.
SECTION 6.3. OTHER REMEDIES.
If an Event of Default with respect to Notes of any series occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of, premium, if any, or interest on the Notes of such
series or to enforce the performance of any provision of the Notes of such
series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or
54
any Holder in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or acquiescence
in the Event of Default. All remedies are cumulative to the extent permitted by
law.
SECTION 6.4. WAIVER OF PAST DEFAULTS.
Subject to Section 9.2 hereof, Holders of a majority in aggregate
principal amount of the then outstanding Notes of any series by notice to the
Trustee may waive an existing Default or Event of Default and its consequences
with respect to the Notes of such series except a continuing Default or Event of
Default in the payment of the principal of, premium, if any, or interest or
Liquidated Damages, if any, on any Note of such series held by a non-consenting
Holder. Upon any such waiver, such Default shall cease to exist with respect to
the Notes of such series, and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this Indenture with respect to
the Notes of such series but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 6.5. CONTROL BY MAJORITY.
The Holders of a majority in aggregate principal amount of the then
outstanding Notes of any series may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it with respect to the Notes of such series.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture, or that the Trustee determines may be unduly prejudicial to
the rights of other Holders or that may involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction.
SECTION 6.6. LIMITATION ON SUITS.
A Holder may pursue a remedy with respect to this Indenture or the
Notes of any series only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default with respect to such series or the Trustee receives such notice
from an Issuer or the Parent;
(2) the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes of such series make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(5) during such 60-day period the Holders of a majority in aggregate
principal amount of the then outstanding Notes of such series do not give the
Trustee a direction inconsistent with the request.
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A Holder may not use this Indenture to prejudice the rights of another Holder or
to obtain a preference or priority over another Holder.
SECTION 6.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal, premium, if any, and
interest and Liquidated Damages, if any, on such Note, on or after the
respective due dates expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder.
SECTION 6.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(1) or (2) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against any Issuer or any Guarantor for the whole
amount of principal, premium, if any, and interest and Liquidated Damages, if
any, remaining unpaid on the Notes of any affected series and interest on
overdue principal and, to the extent lawful, interest and such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.9. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 7.7 hereof) and the Holders allowed in any
judicial proceedings relative to any Issuer or any Guarantor (or any other
obligor upon the Notes of the affected series), their creditors or their
property and shall be entitled and empowered to collect, receive and distribute
any money or securities or other property payable or deliverable on any such
claims and to distribute the same, and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.7 hereof out of the estate in
any such proceeding shall be denied for any reason, payment of the same shall be
secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders of the Notes
of the affected series may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes of
the affected series or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
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SECTION 6.10. PRIORITIES.
If the Trustee collects or receives any money or securities or other
property pursuant to this Article with respect to Notes of any series, it shall
pay out the money or securities or other property in the following order:
First: to the Trustee, its agents and counsel for amounts due under
Section 7.7 hereof with respect to such series of Notes, including payment of
all compensation, expense and liabilities incurred, and all advances made, by
the Trustee and the costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes of such
series for principal, premium, if any, and interest and Liquidated Damages, if
any, ratably, without preference or priority of any kind (including defaulted
interest), according to the amounts due and payable on the Notes of such series
for principal, premium, if any, and interest and Liquidated Damages, if any,
respectively;
Third: without duplication, to Holders for any other obligations
owing to the Holders under the Notes of such series or this Indenture; and
Fourth: to the Issuers or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any such
payment to Holders.
SECTION 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7 hereof, or a suit by Holders of more than 10% in
aggregate principal amount of the then outstanding Notes of any series.
ARTICLE 7
TRUSTEE
SECTION 7.1. DUTIES OF TRUSTEE.
(1) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
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(2) Except during the continuance of an Event of Default with
respect to the Notes of a series:
(a) the duties of the Trustee with respect to the Notes of any
series shall be determined solely by the express provisions of this
Indenture and the Trustee need perform only those duties with respect
to such series that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations with respect to
such series shall be read into this Indenture against the Trustee; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(3) The Trustee may not be relieved from liabilities for its own
grossly negligent action, its own grossly negligent failure to act, or its own
willful misconduct, except that:
(a) this paragraph does not limit the effect of paragraph (2)
of this Section 7.1;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was grossly negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
it takes or omits to take with respect to Notes of any series in good
faith in accordance with a direction received by it pursuant to
Section 6.5.
(4) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(1), (2) and (3) of this Section.
(5) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee may refuse to
perform any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Issuers.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.2. RIGHTS OF TRUSTEE.
Subject to TIA Section 315:
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(1) The Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel. The Trustee may consult
with counsel and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(3) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Issuers shall be sufficient if
signed by an Officer of each of the Issuers.
(6) Without limiting the provisions of Section 7.1(5), the Trustee
shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of the Holders of a majority in
aggregate principal amount of the then outstanding Notes of any series pursuant
to this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction.
(7) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(8) Except with respect to Section 4.1, the Trustee shall have no
duty to inquire as to the performance of any Issuer's or the Parent's covenants
in Article 4. In addition, the Trustee shall not be deemed to have knowledge of
any Default or Event of Default with respect to any series except (i) any Event
of Default occurring pursuant to Sections 6.1(1), 6.1(2) or 4.1 or (ii) any
Default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with any Issuer, the Parent,
any Subsidiary of the Company or the Parent or any Affiliate of the foregoing
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. However, the Trustee is subject to Sections 7.10 and
7.11 hereof.
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SECTION 7.4. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Issuers' use of the proceeds from the Notes or any money
paid to the Issuers or upon the Issuers' direction under any provision hereof,
it shall not be responsible for the use or application of any money received by
any Paying Agent other than the Trustee and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other document
in connection with the sale of the Notes or pursuant to this Indenture other
than its certificate of authentication.
SECTION 7.5. NOTICE OF DEFAULTS.
If a Default or Event of Default with respect to a series occurs and
is continuing and subject to Section 7.2(8) if it is known by a Trust Officer of
the Trustee, the Trustee shall mail to Holders of such series a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal or interest on any Note
of a series, the Trustee may withhold the notice if and so long as a Trust
Officer in good faith determines that withholding the notice is in the interests
of Holders. The Trustee shall comply with TIA Section 315(b).
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15 beginning with May 15, 2001, the
Trustee shall mail to Holders a brief report dated as of such reporting date
that complies with TIA Section 313(a) (but if no event described in TIA Section
313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA Section
313(b). The Trustee shall also transmit by mail all reports as required by TIA
Section 313(c).
A copy of each report at the time of its mailing to Holders shall be
submitted to the SEC and each stock exchange, if any, on which the Notes are
listed. The Issuers shall promptly notify the Trustee when the Notes are listed
on or delisted by any stock exchange.
SECTION 7.7. COMPENSATION AND INDEMNITY.
The Issuers agree to pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers agree to reimburse the Trustee
promptly upon request for all reasonable disbursements, advances and expenses
incurred or made by it in addition to the compensation for its services. Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee's agents and counsel.
The Issuers agree to indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, except as set
forth in the next paragraph. The Trustee shall notify the Issuers promptly of
any claim for which it may seek indemnity. Failure by the Trustee to so notify
the Issuers shall not relieve the Issuers of its obligations hereunder except to
the extent the
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Issuers have been prejudiced thereby. The Issuers shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
and, if the Issuers or the Trustee shall have been advised by its respective
counsel that representation of the Trustee and the Issuers by the same counsel
would be inappropriate under applicable standards of professional conduct
(whether or not such representation by the same counsel has been proposed), the
Issuers shall pay the reasonable fees and expenses of such counsel. The Issuers
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld. The provisions of this paragraph shall survive the
satisfaction and discharge of this Indenture.
The Issuers need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through its own gross negligence or
willful misconduct.
The obligations of the Issuers under this Section 7.7 shall survive
the satisfaction and discharge of this Indenture.
To secure the Issuers' payment obligations in this Section, the
Trustee shall have a Lien on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on particular
Notes of any series. Such Lien shall survive the satisfaction and discharge of
this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(9) or (10) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.8. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign at any time with respect to one or both series
of Notes by so notifying the Issuers in writing at least 30 days prior to the
date of the proposed resignation. The Holders of a majority in aggregate
principal amount of the then outstanding Notes of any series may remove the
Trustee for such series by so notifying the Trustee and the Issuers. The
Issuers may remove the Trustee at its discretion or if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuers shall promptly appoint a successor
Trustee. Within one year after the
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successor Trustee takes office, the Holders of a majority in principal amount of
the then outstanding Notes of any series may appoint a successor Trustee for
such series to replace the successor Trustee for such series appointed by the
Issuers.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers, or
the Holders of at least 10% in aggregate principal amount of the then
outstanding Notes of any series may petition any court of competent jurisdiction
for the appointment of a successor Trustee for the Notes of such series.
Subject to the provision of TIA Section 315(e), if the Trustee after
written request by any Holder who has been a bona fide holder of a Note or Notes
of any series for at least six months fails to comply with Section 7.10, such
Holder, on behalf of himself and others similarly situated, may petition any
court of competent jurisdiction for the removal of the Trustee for such series
and the appointment of a successor Trustee with respect to such series.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture with respect to the affected series. The successor Trustee
shall mail a notice of its succession to the Holders of the Notes of each
applicable series. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.7. Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the Issuers' obligations under Section 7.7 hereof shall continue for the benefit
of the retiring Trustee.
In the case of an appointment hereunder of a separate or successor
Trustee with respect to the Notes of one or more series, the Issuers, the
Parent, any retiring Trustee and each successor or separate Trustee with respect
to the Notes of any applicable series shall execute and deliver an Indenture
supplemental hereto (1) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of any retiring Trustee with respect to the Notes of any series as to which any
such retiring Trustee is not retiring shall continue to be vested in such
retiring Trustee and (2) that shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustee co-trustees of the same trust and that each such
separate, retiring or successor Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any such other Trustee.
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
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SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state thereof authorized under such laws to exercise corporate
trustee powers, shall be subject to supervision or examination by Federal or
state authority and shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a). The Trustee is subject to TIA Section
310(b). The provisions of TIA Section 310 shall apply to the Issuers as the
obligors of the Notes.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
The provisions of TIA Section 311 shall apply to the Issuers as the obligors of
the Notes.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1. DEFEASANCE AND DISCHARGE OF THIS INDENTURE AND THE
NOTES.
(a) The Issuers may, at the option of the Board of Directors of the
Parent, evidenced by a resolution set forth in an Officers' Certificate, at any
time, with respect to the Notes of a particular series, elect to have either
Section 8.2 or 8.3 hereof be applied to all outstanding Notes of such series
upon compliance with the conditions set forth below in this Article 8.
(b) The Issuers may terminate their obligations (and the obligations
of any Guarantor in respect of the Guarantees with respect to the Notes of the
applicable series) under the Notes of a particular series and this Indenture
with respect to the Notes of such series (except those obligations referred to
in the penultimate paragraph of this Section 8.1(b)) if all such Notes of such
series thereto authenticated and delivered (except lost, stolen or destroyed
Notes of such series that have been replaced or paid and Notes of such series
for whose payment cash in United States dollars has theretofore been deposited
in trust or segregated and held in trust by the Issuers and thereafter repaid to
the Issuers, as provided in Section 8.6, or discharged from such trust) have
been delivered to the Trustee for cancellation and the Issuers have paid all
sums payable by it hereunder, or if (i) either (x) pursuant to Article 3, the
Issuers shall have given notice to the Trustee and mailed a notice of redemption
to each Holder of the redemption of all of the Notes of such series under
arrangements satisfactory to the Trustee for the giving of such notice or (y)
all Notes of such series have otherwise become due and payable hereunder, (ii)
the Issuers shall have irrevocably deposited or caused to be deposited with the
Trustee or a trustee satisfactory to the Trustee, under the terms of an
irrevocable trust agreement in form and substance satisfactory
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to the Trustee, as trust funds in trust solely for the benefit of the Holders of
such series for that purpose, cash in United States dollars in such amount as is
sufficient without consideration of reinvestment of such interest, to pay
principal of, premium, if any, interest and Liquidated Damages, if any, on the
outstanding Notes of such series to maturity or redemption; provided that the
Trustee shall have been irrevocably instructed to apply such deposit to the
payment of said principal, premium, if any, interest and Liquidated Damages, if
any, with respect to the Notes of such series; (iii) no Default or Event of
Default with respect to this Indenture or the Notes of such series shall have
occurred and be continuing on the date of such deposit or shall occur as a
result of such deposit and such deposit will not result in a breach or violation
of, or constitute a default under, any other instrument to which the Company,
the Parent, any Guarantor or any or their respective Subsidiaries is a party or
by which any of such parties is bound; (iv) the Issuers shall have paid all
other sums payable by them hereunder; and (v) the Issuers shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent relating to the satisfaction and discharge of this
Indenture have been complied with. Such Opinion of Counsel shall also state that
such satisfaction and discharge does not result in a default under the Credit
Agreement (if then in effect) or any other agreement or instrument then known to
such counsel that binds or affects the Issuers or any Guarantor.
Notwithstanding the foregoing paragraph, each Issuer's (and any
Guarantor's) obligations in Sections 2.5, 2.6, 2.7, 2.8, 4.1, 4.2, 7.7, 8.6 and
8.7 shall survive with respect to the Notes of any series until the Notes of
such series are no longer outstanding pursuant to the last paragraph of Section
2.8. After the Notes of such series are not longer outstanding, the Issuers'
obligations in Sections 7.7, 8.6 and 8.7 shall survive with respect to such
series.
After such delivery or irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Issuers' obligations (and the
obligations of any Guarantors in respect of Guarantees of the Notes of such
series) under the Notes of the affected series and this Indenture with respect
to the Notes of such series except for those surviving obligations specified
above.
SECTION 8.2. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Issuers' exercise under Section 8.1(a) hereof of the option
applicable to this Section 8.2 with respect to the Notes of a particular series,
the Issuers and the Guarantors shall be deemed to have been discharged from
their obligations with respect to all outstanding Notes of such series and
Guarantees with respect to the Notes of such series on the date the conditions
set forth below are satisfied (hereinafter, "Legal Defeasance"). For this
purpose, such Legal Defeasance means that the Issuers shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding Notes
of the affected series, which shall thereafter be deemed to be outstanding only
for the purposes of Section 8.5 hereof and the other Sections of this Indenture
referred to in clauses (i) and (ii) of this Section 8.2, and to have satisfied
all their other obligations under such Notes and this Indenture with respect to
such series (and the Trustee, on demand of and at the expense of the Issuers,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of outstanding Notes of such series to
receive payments in respect of the principal of, premium, if any, and interest
and Liquidated
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Damages, if any, on such Notes when such payments are due, solely from amounts
deposited with the Trustee, as provided in Section 8.4 hereof, (ii) the Issuers'
and the Guarantors' obligations with respect to the Notes of such series under
Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.10 and 4.2 hereof, (iii) the rights, powers,
trusts, duties, indemnities and immunities of the Trustee and the Issuers'
obligations in connection therewith and (iv) this Article 8.
SECTION 8.3. COVENANT DEFEASANCE.
Upon the Issuers' exercise under Section 8.1(a) hereof of the option
applicable to this Section 8.3 with respect to any series of Notes, the Issuers
and the Guarantors, if any, shall be released from their obligations under the
covenants contained in Sections 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14,
4.16, 4.18, 5.1 and 10.2 with respect to the outstanding Notes of such series on
and after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Notes of such series shall thereafter be deemed
not outstanding for the purposes of any direction, waiver, consent or
declaration or act of Holders of Notes of such series (and the consequences of
any thereof) in connection with such covenants, but shall continue to be deemed
outstanding for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Notes of the affected series, the Issuers and the Guarantors may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.1(3) or 6.1(4) hereof but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected thereby. In
addition, upon the Issuers' exercise under Section 8.1 hereof of the option
applicable to this Section 8.3, any event described in Sections 6.1(3) through
6.1(8) hereof shall not constitute Events of Default.
SECTION 8.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
8.2 or Section 8.3 hereof to the outstanding Notes of any series:
(a) the Issuers shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10 hereof who shall agree to comply with the provisions of this
Article 8 applicable to it), in trust (the "defeasance trust"), for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Notes of such series, (a)
cash in United States dollars in an amount, or (b) non-callable Government
Securities which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, cash in United States dollars in an
amount, or (c) a combination thereof, in such amounts as will be sufficient in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge the principal of, premium, if any, and interest
65
(including defaulted interest) and Liquidated Damages, if any, on the
outstanding Notes of such series and any other obligations owing to the Holders
of the Notes of such series, under the Notes of such series or this Indenture
with respect to such series on the stated maturity or on the applicable
redemption date, as the case may be, of such principal or installment of
principal of, premium, if any, interest and Liquidated Damages, if any, on the
outstanding Notes of such series, provided that the Trustee shall have been
irrevocably instructed to apply such money or the proceeds of such non-callable
Government Securities to said payments with respect to the Notes of such series;
(b) in the case of an election under Section 8.2 hereof, the Issuers
shall have delivered to the Trustee an Opinion of Counsel in the United States
(which counsel may be an employee of the Company or any Subsidiary of the
Company) reasonably acceptable to the Trustee confirming that (A) the Issuers
have received from, or there has been published by, the Internal Revenue Service
a ruling or (B) since the Issuance Date, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes of the affected series will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same time, as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of an election under Section 8.3 hereof, the Issuers
shall have delivered to the Trustee an Opinion of Counsel in the United States
(which counsel may be an employee of the Company or any Subsidiary of the
Company) reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes of the affected series will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant Defeasance had not
occurred;
(d) no Default or Event of Default with respect to the Notes of the
applicable series shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the borrowing
of funds applied to such deposit) or, insofar as Section 6.1(9) or 6.1(10)
hereof is concerned, at any time in the period ending on the 123rd day after the
date of such deposit (or greater period of time in which any such deposit of
trust funds may remain subject to bankruptcy or insolvency laws insofar as those
apply to the deposit by the Issuers) (it being understood that this condition
shall not be deemed satisfied until the expiration of such period);
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture with respect to the Notes of such
series) to which any Issuer, the Parent or any of their respective Subsidiaries
is a party or by which the Company, the Parent or any of their respective
Subsidiaries is bound;
(f) in the case of an election under either Section 8.2 or 8.3
hereof, the Issuers shall have delivered to the Trustee an Opinion of Counsel to
the effect that, as of the date of such opinion, (A) the trust funds will not be
subject to any rights of holders of Indebtedness other than
66
the Notes of the applicable series and (B) assuming no intervening bankruptcy of
the Issuers or the Parent between the date of deposit and the 123rd day
following the deposit and assuming no Holder of the Notes of the applicable
series is an insider of the Issuer or the Parent, after the 123rd day following
the deposit, as of the date of such opinion, the trust funds will not be subject
to avoidance under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code (or any
successor provision thereto) and related judicial decisions or any other
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally under any United States or state law;
(g) in the case of an election under either Section 8.2 or 8.3
hereof, the Issuers shall have delivered to the Trustee an Officers' Certificate
stating that the deposit made by the Issuers pursuant to its election under
Section 8.2 or 8.3 hereof was not made by the Issuers with the intent of
preferring the Holders of Notes of such series over other creditors of the
Issuers or with the intent of defeating, hindering, delaying or defrauding
creditors of the Issuers or others; and
(h) the Issuers shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel in the United States (which counsel may be
an employee of the Company or any Subsidiary of the Company), each stating that
all conditions precedent provided for relating to either the Legal Defeasance
under Section 8.2 hereof or the Covenant Defeasance under Section 8.3 hereof (as
the case may be) have been complied with as contemplated by this Section 8.4.
SECTION 8.5. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.6 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.1(b) or Section 8.4 hereof in respect of the
outstanding Notes of a series shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including an Issuer acting
as Paying Agent) as the Trustee may determine, to the Holders of such Notes of
such series of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Issuers and the Guarantors shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or
non-callable Government Securities deposited pursuant to Section 8.1(b) or
Section 8.4 hereof or the principal, premium, if any, and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the outstanding Notes of such series.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuers from time to time upon the Issuers'
request any money or non-callable Government Securities held by it as provided
in Section 8.4 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
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certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.4(a) hereof), are in excess of the amount thereof
which would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
SECTION 8.6. REPAYMENT TO THE ISSUERS.
The Trustee shall promptly pay to the Issuers after request therefor
any excess money held with respect to Notes of a particular series at such time
in excess of amounts required to pay any of the Issuers' Obligations then owing
with respect to the Notes of such series.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuers, in trust for the payment of the principal of, premium, if any,
or interest on any Note of a particular series and remaining unclaimed for one
year after such principal, premium, if any, or interest has become due and
payable shall be paid to the Issuers on their request or (if then held by an
Issuer) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Issuers for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuers as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Issuers cause to be published once, in The New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Issuers.
SECTION 8.7. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any cash or non-
callable Government Securities in accordance with Section 8.1(b), Section 8.2,
Section 8.3 or Section 8.4 hereof, as the case may be, with respect to the Notes
of a particular series by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations of the Issuers and the Guarantors under this
Indenture with respect to such series, the Notes of such series and the
Guarantees with respect to the Notes of such series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.1(b), Section
8.2, Section 8.3 or Section 8.4 hereof until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 8.1(b),
Section 8.2, Section 8.3 or Section 8.4 hereof, as the case may be; provided,
however, that, if any Issuer or any Guarantor makes any payment of principal of,
premium, if any, or interest on any Note of such series following the
reinstatement of its obligations, such Issuer or such Guarantor shall be
subrogated to the rights of the Holders of such Note to receive such payment
from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.1. WITHOUT CONSENT OF HOLDERS.
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The Issuers, any Guarantors and the Trustee, as applicable, may amend
or supplement this Indenture, the Notes, and any Guarantee with respect to the
Notes without the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(c) to provide for the assumption of an Issuers' or the
Parent's obligations to Holders of the Notes under this Indenture or
any Guarantor's obligations under its Guarantee of the Notes in the
case of a merger, consolidation or sale of assets involving such
Issuer, the Parent or such Guarantor, as applicable, pursuant to
Article 5 or Article 10 hereof;
(d) to make any change that would provide any additional rights
or benefits to the Holders of the Notes (including providing for
Guarantees of the Notes and any supplemental indenture required
pursuant to Section 4.15 hereof) or that does not adversely affect the
legal rights under this Indenture of any such Holder;
(e) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA; and
(f) to release a Guarantor in accordance with Section 10.4
hereof.
Upon the request of the Issuers, the Parent and any Guarantor,
accompanied by a resolution of the Board of Directors of such Issuer, the Parent
or such Guarantor, as applicable, authorizing the execution of any such amended
or supplemental indenture and upon receipt by the Trustee of the documents
described in Section 9.6 hereof, the Trustee shall join with the Issuers, the
Parent and any such Guarantors in the execution of any amended or supplemental
indenture authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations which may be therein contained,
but the Trustee shall not be obligated to enter into such amended or
supplemental indenture which adversely affects its own rights, duties or
immunities under this Indenture, or otherwise.
SECTION 9.2. WITH CONSENT OF HOLDERS.
Except as provided below in this Section 9.2, the Issuers, the Parent,
any Guarantors and the Trustee together may amend this Indenture, the Notes and
any Guarantee of the Notes with the written consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes of each
series affected by such amendment (including consents obtained in connection
with a purchase of or a tender offer or exchange offer for Notes of the affected
series).
Upon the request of the Issuers, accompanied by a resolution of the
Board of Directors of each of the Issuers and the Parent, authorizing the
execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence satisfactory to the
69
Trustee of the consent of the Holders as aforesaid, and upon receipt by the
Trustee of the documents described in Section 9.6 hereof, the Trustee shall join
with the Issuers, the Parent and any Guarantors, as the case may be, in the
execution of such supplemental indenture unless such supplemental indenture
adversely affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Section 9.2 becomes effective,
the Issuers shall mail to the Holders of each Note affected thereby a notice
briefly describing the amendment or waiver. Any failure of the Issuers to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture or waiver. Subject to
Sections 6.4 and 6.7 hereof, the Holders of a majority in aggregate principal
amount of the then-outstanding Notes of each series affected thereby (including
consents obtained in connection with a purchase of or a tender offer or exchange
offer for Notes of such series) may waive any existing default or compliance in
a particular instance by any Issuer or any Guarantor with any provision of this
Indenture or the Notes of such series. However, without the consent of each
Holder affected, an amendment or waiver under this Section may not (with respect
to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes of any series whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note
or alter or waive any of the provisions with respect to the redemption of the
Notes;
(c) reduce the rate of or change the time for payment of interest on
any Note;
(d) waive a Default or an Event of Default in the payment of
principal of or premium, if any, or interest on any Notes (except a rescission
of acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes of the applicable series and a
waiver of the payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the
Note;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive payments
of principal of or premium, if any, or interest or Liquidated Damages on the
Notes;
(g) waive a redemption payment with respect to any Note;
(h) modify or change any provision of this Indenture or the related
definitions affecting the ranking of the Notes or any Guarantee of the Notes in
a manner which adversely affects the Holders in any material respect;
70
(i) except pursuant to Article 8 or pursuant to Section 10.4,
release any Guarantor from its obligations under a Guarantee of the Notes, or
change any such Guarantee of the Notes in any manner that would adversely affect
the Holders in any material respect;
(j) make any change to Section 3.9, Section 4.10 or Section 4.14; or
(k) make any change in the foregoing amendment and waiver
provisions.
SECTION 9.3. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to this Indenture or the Notes shall be set forth in
an amendment or supplemental indenture that complies with the TIA as then in
effect.
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Note is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as
to his or her Note if the Trustee receives written notice of revocation before
the date the waiver or amendment becomes effective. An amendment or waiver
becomes effective in accordance with its terms and thereafter binds every
Holder.
The Issuers may fix a record date for determining which Holders must
consent to such amendment or waiver. If the Issuers fix a record date, the
record date shall be fixed at (i) the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of Holders
furnished to the Trustee prior to such solicitation pursuant to Section 2.5, or
(ii) such other date as the Issuers shall designate.
SECTION 9.5. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment or
waiver on any Note of an affected series thereafter authenticated. The Issuers
in exchange for all Notes of a series may issue and the Trustee shall
authenticate new Notes of such series that reflect the amendment or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment or waiver.
SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 9 if the amendment does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing such amendment or supplemental
indenture, the Trustee shall be entitled to receive, and, subject to Section 7.1
hereof, shall be fully protected in relying upon, an Officers' Certificate and
an Opinion of Counsel as conclusive evidence that such amendment or supplemental
indenture is authorized or permitted by this Indenture, that it is not
inconsistent herewith, and that it will be
71
valid and binding upon the Issuers, the Parent and the Guarantors in accordance
with its terms. The Issuers, the Parent and any Guarantors may not sign an
amendment or supplemental indenture until the Board of Directors of each Issuer,
the Parent or any Guarantor, as applicable, approves it.
ARTICLE 10
GUARANTEES
SECTION 10.1. GUARANTEES.
Each Guarantor, jointly and severally, unconditionally guarantees, on
an unsecured senior basis, to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, irrespective
of the validity and enforceability of this Indenture, the Notes or the
Obligations of the Issuers under this Indenture or the Notes, that: (i) the
principal of, premium, if any, and interest and Liquidated Damages, if any, on
the Notes will be paid in full when due, whether at the maturity or interest
payment or mandatory redemption date, by acceleration, call for redemption,
offer to purchase or otherwise, and interest on the overdue principal of,
premium, and interest and Liquidated Damages, if any, on the Notes and all other
Obligations of the Issuers to the Holders or the Trustee under this Indenture or
the Notes will be promptly paid in full or performed, all in accordance with the
terms of this Indenture and the Notes; (ii) in case of any extension of time of
payment or renewal of any Notes or any of such other Obligations, they will be
paid in full when due or performed in accordance with the terms of the extension
or renewal, whether at maturity, by acceleration or otherwise; and (iii) any and
all costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Holder in enforcing any rights under any Guarantee with respect
to the Notes will be paid. Failing payment when due of any amount so guaranteed
for whatever reason, any Guarantor will be obligated (subject to any grace
periods allowed pursuant to Section 6.1 hereof) to pay the same whether or not
such failure to pay has become an Event of Default which could cause
acceleration pursuant to Section 6.2 hereof. An Event of Default under this
Indenture or the Notes shall constitute an event of default under any Guarantee
of the Notes, and shall entitle the Holders of Notes to accelerate the
Obligations of any Guarantor hereunder in the same manner and to the same extent
as the Obligations of the Issuers. Each Guarantor agrees that its Obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Issuers, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of any Guarantor.
Any Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of either or both
of the Issuers, protest, notice and all demands whatsoever and covenants that
its Guarantee with respect to the Notes will not be discharged except by
complete performance of its Obligations under the Notes and this Indenture. If
any Holder or the Trustee is required by any court or otherwise to return to any
Issuer, any Guarantor or any Custodian, Trustee, liquidator or other similar
official acting in relation to either any Issuer or any Guarantor any amount
paid by any such entity to the Trustee or such Holder, any Guarantee to the
Notes, to the extent theretofore discharged, shall be reinstated in full force
and effect. Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holder in respect of any Obligations guaranteed
hereby until
72
payment in full of all Obligations guaranteed hereby. Each Guarantor agrees
that, as between it, on the one hand, and the Holders of Notes and the Trustee,
on the other hand, (x) the maturity of the Obligations guaranteed hereby may be
accelerated as provided in Article 6 hereof for the purposes hereof,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby, and (y) in the
event of any acceleration of such Obligations as provided in Article 6 hereof,
such Obligations (whether or not due and payable) shall forthwith become due and
payable by such Guarantor for the purpose of such Guarantee of the Notes. A
Guarantor shall have the right to seek contribution from any non-paying
Guarantor so long as the exercise of such right does not impair the rights of
the Holder under its Guarantee of the Notes.
Each Holder of a Note by its acceptance thereof agrees to and shall be
bound by the provisions of this Section 10.1.
SECTION 10.2. WHEN A SUBSIDIARY GUARANTOR MAY MERGE,
ETC.
No Subsidiary Guarantor shall consolidate or merge with or into
(whether or not such Subsidiary Guarantor is the surviving person), another
corporation, Person or entity whether or not affiliated with such Subsidiary
Guarantor unless:
(a) the person formed by or surviving any such consolidation or
merger (if other than such Subsidiary Guarantor) assumes all the
Obligations of such Subsidiary Guarantor pursuant to a supplemental
indenture in the form of Exhibit B hereto and under the Notes and this
Indenture;
(b) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(c) such Subsidiary Guarantor or any Person formed by or
surviving any such consolidation or merger would be permitted by
virtue of the tests set forth in the first paragraph of Section 4.9
hereof to incur, immediately after giving effect to such transaction,
at least $1.00 of additional Indebtedness under those tests.
The Subsidiary Guarantor shall deliver to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate to the
foregoing effect and an Opinion of Counsel, covering clauses (a) and (b) (in the
case of clause (b), to such counsel's knowledge), stating that the proposed
transaction and such supplemental indenture comply with this Indenture. The
Trustee shall be entitled to conclusively rely upon such Officers' Certificate
and Opinion of Counsel.
Notwithstanding the foregoing, (A) a Subsidiary Guarantor may
consolidate with or merge with or into the Company; provided, however, that the
surviving Person (if other than the Company) shall expressly assume by
supplemental indenture complying with the requirements of this Indenture, the
due and punctual payment of the principal of, premium, if any, and interest and
Liquidated Damages, if any, on all of the Notes, and the due and punctual
performance and observance of all the covenants and conditions of this Indenture
and the Notes to be performed by the Company; (B) a Subsidiary Guarantor may
consolidate with or merge
73
with or into any other Subsidiary Guarantor and (C) a Subsidiary Guarantor may
consolidate with or merge with or into the Parent; provided, however, that the
surviving Person (if other than the Parent) shall expressly assume by
supplemental indenture complying with the requirements of this Indenture the due
and punctual performance and observance of all the covenants and conditions of
this Indenture to be performed by the Parent.
SECTION 10.3. LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY.
For purposes of this Article 10 and any Guarantee of the Notes by a
Subsidiary Guarantor, each Subsidiary Guarantor's liability will be that amount
from time to time equal to the aggregate liability of such Subsidiary Guarantor
hereunder and thereunder, but shall be limited to the lesser of (i) the
aggregate amount of the obligations of the Issuers under the Notes and this
Indenture or (ii) the amount, if any, which would not have (A) rendered such
Subsidiary Guarantor "insolvent" (as such term is defined in the federal
Bankruptcy Code and in the Debtor and Creditor Law of the State of New York) or
(B) left it with unreasonably small capital at the time its Guarantee of the
Notes was entered into, after giving effect to the incurrence of existing
Indebtedness immediately prior to such time; provided that, it shall be a
presumption in any lawsuit or other proceeding in which a Subsidiary Guarantor
is a party that the amount guaranteed pursuant to the Guarantee of the Notes is
the amount set forth in clause (i) above unless any creditor, or representative
of creditors of such Subsidiary Guarantor, or debtor in possession or trustee in
bankruptcy of the Subsidiary Guarantor, otherwise proves in such a lawsuit that
the aggregate liability of the Subsidiary Guarantor is limited to the amount set
forth in clause (ii). In making any determination as to the solvency or
sufficiency of capital of a Subsidiary Guarantor in accordance with the previous
sentence, the right of such Subsidiary Guarantor to contribution from other
Subsidiary Guarantors and any other rights such Subsidiary Guarantor may have,
contractual or otherwise, shall be taken into account.
SECTION 10.4. RELEASE OF A GUARANTOR.
Concurrently with the payment in full of all of the Issuers'
Obligations under the Notes of any series and this Indenture with respect to
such series (other than with respect to any indemnification obligations), each
Guarantor shall be released from and relieved of its Obligations with respect to
the Notes of such series under this Article 10. In the event of a sale or other
disposition of all or substantially all of the assets of any Subsidiary
Guarantor, which sale or other disposition is otherwise in compliance with the
terms of this Indenture, by way of merger, consolidation or otherwise, or a sale
or other disposition of all of the capital stock of any Subsidiary Guarantor,
then such Subsidiary Guarantor (in the event of a sale or other disposition, by
way of such a merger, consolidation or otherwise, of all of the capital stock of
such Subsidiary Guarantor) or the corporation acquiring the property (in the
event of a sale or other disposition of all or substantially all of the assets
of such Subsidiary Guarantor) will be automatically and unconditionally released
and relieved of any obligations under its Guarantee of the Notes. The Trustee
shall deliver an appropriate instrument evidencing any such release under this
Section 10.4 upon receipt of a request by the Issuers accompanied by an
Officers' Certificate and an Opinion of Counsel certifying as to the compliance
with this Section 10.4. The provisions of Section 10.2 shall not apply to any
merger or consolidation pursuant to which a Subsidiary Guarantor is released
from its Obligations under this 10.4.
74
ARTICLE 11
MISCELLANEOUS
SECTION 11.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by operation of TIA Section 318(c), the imposed duties shall
control.
SECTION 11.2. NOTICES.
Any notice or communication by the Issuers, the Parent or the Trustee
to the others is duly given if in writing and delivered in Person or mailed by
first-class mail (registered or certified, return receipt requested), or sent by
telex, telecopier or overnight air courier guaranteeing next Business Day
delivery, to the other's address:
If to any Issuer:
MeriStar Hospitality Operating Partnership, L.P.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx Xxxxx, Chief Financial Officer
Telecopier No.: (000) 000-0000
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to the Parent:
MeriStar Hospitality Corporation
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx Xxxxx, Chief Financial Officer
Telecopier No.: (000) 000-0000
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
75
If to the Trustee:
U. S. Bank Trust National Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Telecopier No.: (000)000-0000
The Issuers, the Parent or the Trustee by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next Business Day
delivery.
Any notice or communication to a Holder shall be mailed by first-class
mail to his address shown on the register kept by the Registrar. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.
If a notice or communication is mailed or given in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Issuers mail a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 11.3. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuers, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 11.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Issuers or the Parent to the
Trustee to take any action under this Indenture, the Issuers shall furnish to
the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.5) stating that, in the opinion of the signers,
all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
76
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.5) stating that, in the opinion of such counsel,
all such conditions precedent and covenants have been complied with.
SECTION 11.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to Section 4.4 and TIA Section 314(a)(4)) shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel
may rely on an Officers' Certificate or certificate of public
officials.
SECTION 11.6. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.7. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday, or a day on which banking
institutions in The City of New York are authorized or obligated by law,
regulation or executive order to remain closed. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue on such
payment for the intervening period.
SECTION 11.8. RECOURSE AGAINST OTHERS.
No past, present or future director, officer, partner, employee,
agent, manager, stockholder, incorporator or other Affiliate, as such of any
Issuer or of any Guarantor shall have any liability for any obligations of any
Issuer or any Guarantor under the Notes, or this Indenture
77
or a Guarantee of the Notes, if any, or for any claim based upon, in respect of
or by reason of such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. This waiver and release are part of
the consideration for issuance of the Notes. Such waiver and release may not be
effective to waive or release liabilities under the federal securities laws.
SECTION 11.9. DUPLICATE ORIGINALS.
The parties may sign any number of copies of this Indenture. One
signed copy is enough to prove this Indenture.
SECTION 11.10. GOVERNING LAW.
THIS INDENTURE, THE NOTES AND THE GUARANTEES OF THE NOTES AND THE
RIGHTS AND DUTIES OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 11.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of any Issuer, the Parent or any of their respective
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 11.12. SUCCESSORS.
All agreements of the Issuers, the Parent and the Guarantors in this
Indenture and the Notes shall bind their successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 11.13. SEVERABILITY.
In case any provision in this Indenture or in 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 11.14. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 11.15. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
78
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed hereto by their respective duly authorized officers as of the date first
written above.
Issuers:
-------
MERISTAR HOSPITALITY OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership
By: MeriStar Hospitality Corporation, as
general partner
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
MERISTAR HOSPITALITY FINANCE CORP., a
Delaware corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
Parent:
------
MERISTAR HOSPITALITY CORPORATION, a
Maryland corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
79
Trustee:
-------
U.S. BANK TRUST NATIONAL ASSOCIATION, as
Trustee
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
Title: Trust Officer
Subsidiary Guarantors:
---------------------
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/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
AGH PSS I, INC., a Delaware corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
80
AGH UPREIT LLC, a Delaware limited liability company
By: MeriStar Hospitality Corporation, a Maryland
corporation, member
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, member
By: MeriStar Hospitality Corporation, a
Maryland corporation, general partner
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
CAPSTAR HOUSTON SW PARTNERS, L.P.
CAPSTAR MEDALLION HOUSTON PARTNERS, L.P.
CAPSTAR MEDALLION DALLAS PARTNERS, L.P.
CAPSTAR MEDALLION AUSTIN PARTNERS, L.P.
CAPSTAR MIDLAND PARTNERS, L.P.
CAPSTAR DALLAS PARTNERS, L.P.
CAPSTAR MOCKINGBIRD PARTNERS, L.P.
Each of the above being a Delaware limited partnership
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, general partner
By: MeriStar Hospitality Corporation, a
Maryland corporation, general partner
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
81
EQUISTAR SCHAUMBURG COMPANY, L.L.C.
EQUISTAR BELLEVUE COMPANY, L.L.C.
EQUISTAR CLEVELAND COMPANY, L.L.C.
EQUISTAR XXXXXX COMPANY, L.L.C.
EQUISTAR VIRGINIA COMPANY, L.L.C.
EQUISTAR BALLSTON COMPANY, L.L.C.
EQUISTAR SALT LAKE COMPANY, L.L.C.
EQUISTAR ATLANTA GP COMPANY, L.L.C.
EQUISTAR ATLANTA LP COMPANY, L.L.C.
CAPSTAR WASHINGTON COMPANY, L.L.C.
CAPSTAR CS COMPANY, L.L.C.
CAPSTAR SAN XXXXX COMPANY, L.L.C.
CAPSTAR LOUISVILLE COMPANY, L.L.C.
CAPSTAR LEXINGTON COMPANY, L.L.C.
CAPSTAR OKLAHOMA CITY COMPANY, L.L.C.
CAPSTAR CHERRY HILL COMPANY, L.L.C.
CAPSTAR XXXXXX COMPANY, L.L.C.
CAPSTAR KC COMPANY, L.L.C.
CAPSTAR NATIONAL AIRPORT COMPANY, L.L.C.
CAPSTAR GEORGETOWN COMPANY, L.L.C.
CAPSTAR JEKYLL COMPANY, L.L.C.
CAPSTAR DETROIT AIRPORT COMPANY, L.L.C.
CAPSTAR TUCSON COMPANY, L.L.C.
CAPSTAR MESA COMPANY, L.L.C.
CAPSTAR MORRISTOWN COMPANY, L.L.C.
CAPSTAR INDIANAPOLIS COMPANY, L.L.C.
CAPSTAR CHICAGO COMPANY, L.L.C.
CAPSTAR WINDSOR LOCKS COMPANY, L.L.C.
CAPSTAR HARTFORD COMPANY, L.L.C.
CAPSTAR CROSS KEYS COMPANY, L.L.C.
CAPSTAR COLUMBIA COMPANY, L.L.C.
CAPSTAR XXXXXX PARK COMPANY, L.L.C.
CAPSTAR XXXXXXXXX COMPANY, L.L.C.
Each of the above being 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/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
82
MERISTAR SANIBEL INN COMPANY, LLC
MERISTAR SUNDIAL BEACH COMPANY, LLC
MERISTAR SAFETY HARBOR COMPANY, LLC
MERISTAR SEASIDE INN COMPANY, LLC
MERISTAR PLANTATION SHOPPING CENTER COMPANY, LLC
MERISTAR SONG OF THE SEA COMPANY, LLC
MERISTAR SHIRLEY'S PARCEL COMPANY, LLC
MERISTAR SANIBEL GOLF COMPANY, LLC
MERISTAR MARCO ISLAND COMPANY, LLC
MERISTAR S.S. PLANTATION COMPANY, LLC
MERISTAR HOTEL (CALGARY AIRPORT) LLC
MERISTAR HOTEL (VANCOUVER) LLC
MERISTAR HOTEL (SURREY) LLC
MERISTAR HOTEL (BURNABY) LLC
AGH 75 ARLINGTON HEIGHTS LLC
Each of the above being 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/ Xxxxxxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
MERISTAR SANTA BARBARA, L.P., a Delaware limited
partnership
MERISTAR CATHEDRAL CITY, L.P., a Delaware limited
partnership
MERISTAR LAJV, L.P., 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/ Xxxxxxxxxxx X. Xxxxxxx
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
83
75 ARLINGTON HEIGHTS LIMITED PARTNERSHIP,
L.P., a Delaware limited partnership
By: AGH 75 Arlington Heights LLC, a Delaware
limited liability company, 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/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
BCHI ACQUISITION, 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, general
partner
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, member
By: MeriStar Hospitality Corporation, a
Maryland corporation, general partner
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
84
MDV LIMITED PARTNERSHIP, a Texas limited
partnership
183 HOTEL ASSOCIATES, LTD., a Texas limited
partnership
LAKE BUENA VISTA PARTNERS, LTD., a Florida
limited partnership
DURHAM I-85 LIMITED PARTNERSHIP, a Delaware limited
partnership
COCOA BEACH HOTELS, LTD., a Florida 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/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
85
HOTEL COLUMBIA COMPANY, a Maryland general
partnership
By: CapStar Columbia Company, 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/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
By: CapStar Xxxxxx Park Company, 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/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
MERISTAR LP, INC.,
a Nevada corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
86
3100 GLENDALE 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, general
partner
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
By: MeriStar Hospitality Operating Partnership, L.P.,
a Delaware limited partnership, partner
By: MeriStar Hospitality Corporation, a
Maryland corporation, general partner
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
MERISTAR HOTEL LESSEE, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice President, Legal
EXHIBIT A-1
(Face of Note)
9% [Series A] [Series B] Senior Notes due 2008
CUSIP:____________
No.___ $___________
MERISTAR HOSPITALITY OPERATING PARTNERSHIP, L.P.
and
MERISTAR HOSPITALITY FINANCE CORP.
promise to pay to ___________________________, or registered assigns, the
principal sum of ________________________________ Dollars on January 15, 2008.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
Dated: __________________________
MERISTAR HOSPITALITY OPERATING
PARTNERSHIP, L.P.
By: MeriStar Hospitality Corporation, as
general partner
By: ____________________________
Name:
Title:
MERISTAR HOSPITALITY FINANCE CORP.
By: ____________________________
Name:
Title:
A-1-1
Trustee's Certificate of Authentication:
This is one of the [Global] Notes
referred to in the within-
mentioned Indenture:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By _____________________________
Authorized Signatory
A-1-2
(Back of Note)
9% [Series A] [Series B] Senior Notes due 2008
of
MeriStar Hospitality Operating Partnership, L.P.
and
MeriStar Hospitality Finance Corp.
[IF A RESTRICTED SECURITY, INSERT: THE SECURITY EVIDENCED HEREBY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ''SECURITIES
ACT''), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THE SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A ''QUALIFIED INSTITUTIONAL
BUYER'' (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN ''OFFSHORE TRANSACTION''
PURSUANT TO RULE 903 OR 904 REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO
(X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
RULE 144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISIONS THEREUNDER)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS
SECURITY) OR THE LAST DAY ON WHICH MERISTAR HOSPITALITY OPERATING PARTNERSHIP,
L.P., MERISTAR HOSPITALITY FINANCE CORP. OR ANY OF THEIR RESPECTIVE AFFILIATES
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE ''RESALE
RESTRICTION TERMINATION DATE''), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO MERISTAR HOSPITALITY OPERATING PARTNERSHIP, L.P., MERISTAR
HOSPITALITY FINANCE CORP. OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A ''QUALIFIED
INSTITUTIONAL BUYER'' AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION
A-1-3
REQUIREMENTS OF THE SECURITIES ACT, AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND; PROVIDED THAT MERISTAR HOSPITALITY OPERATING PARTNERSHIP, L.P.,
THE TRUSTEE AND THE TRANSFER AGENT AND REGISTRAR RESERVE THE RIGHT PRIOR TO ANY
OFFER, SALE OR OTHER TRANSFER PURSUANT TO CLAUSES (D) OR (E) ABOVE TO REQUIRE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND OTHER INFORMATION
SATISFACTORY TO MERISTAR HOSPITALITY OPERATING PARTNERSHIP, L.P., THE TRUSTEE
AND THE TRANSFER AGENT AND REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS ''OFFSHORE TRANSACTION,'' ''UNITED STATES'' AND ''U.S.
PERSON'' HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL THE SECURITIES.]
[IF A TEMPORARY REGULATION S GLOBAL NOTE INSERT: PRIOR TO EXPIRATION OF THE 40-
DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT OF 1933 (THE ''SECURITIES ACT'')) (''REGULATION S''), THIS
SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES (AS DEFINED IN REGULATION S) OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, A U.S. PERSON (AS DEFINED IN REGULATION S), EXCEPT TO A PERSON REASONABLY
BELIEVED TO BE A ''QUALIFIED INSTITUTIONAL BUYER'' (AS DEFINED IN RULE 144A
(''RULE 144A'') UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A AND THE INDENTURE REFERRED TO HEREIN.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL THE SECURITIES.]
[IF A GLOBAL NOTE INSERT: UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH
NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF A SUCCESSOR
DEPOSITARY OR ANY NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE.
A-1-4
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Capitalized terms used herein shall have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. MeriStar Hospitality Partnership, L.P., a Delaware
limited partnership (the "Company") and MeriStar Hospitality Finance Corp., a
Delaware corporation ("MeriStar Finance," and together with the Company, the
"Issuers"), promise to pay interest on the principal amount of this 9% [Series
A] [Series B] Senior Note due 2008 (the "Note") at the rate and in the manner
specified below.
The Issuers shall pay interest on the principal amount of this Note in
cash at the rate per annum shown above and shall pay the Liquidated Damages, if
any, payable pursuant to Section 5 of the Registration Rights Agreements
referred to below. The Issuers shall pay interest and Liquidated Damages, if
any, semi-annually on each January 15 and July 15 commencing July 15, 2001 or if
any such day is not a Business Day (as defined in the Indenture referred to
below), on the next succeeding Business Day (each an "Interest Payment Date").
Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months for the actual number of days elapsed. Interest shall
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of the original issuance of this Note. To
the extent lawful, the Issuers shall pay interest on overdue principal and
premium at the rate of 1% per annum in excess of the then applicable interest
rate on this Note; it shall pay interest on overdue installments of interest
(without regard to any applicable grace periods) at the same rate to the extent
lawful.
(2) METHOD OF PAYMENT. The Issuers will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who
are registered Holders of Notes at the close of business on the January 1 and
July 1 immediately preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes will be payable as to principal, premium, if any, and
interest and Liquidated Damages, if any, at the office or agency of the Issuers
maintained for such purpose within or without the City and State of New York,
or, at the option of the Issuers, payment of interest and Liquidated Damages, if
any, may be made by check mailed to the Holders at their addresses set forth in
the register of Holders; provided that payment by wire transfer of immediately
available funds will be required with respect to principal and premium, if any,
and interest and Liquidated Damages, if any, on all Global Notes and all other
Notes the Holders of
A-1-5
which shall have provided wire transfer instructions to the Issuers or the
Paying Agent. Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, U.S. Bank Trust National
Association, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Issuers may change any Paying Agent or Registrar without notice
to any Holder. Any Issuer or any of its Subsidiaries may act in any such
capacity.
(4) INDENTURE. The Company issued the Notes under an Indenture dated
as of January 26, 2001 (the "Indenture") among the Issuers, MeriStar Hospitality
Corporation, a Maryland corporation (the "Parent"), the Subsidiary Guarantors
and the Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The terms of the Indenture shall govern any
inconsistencies between the Indenture and the Notes.
(5) OPTIONAL REDEMPTION. Prior to January 15, 2004, the Issuers may
redeem, on any one or more occasions, with the net cash proceeds of one or more
public offerings of the common equity of the Parent (a "Public Equity Offering")
(within 60 days of the consummation of any such Public Equity Offering), up to
35% of the aggregate principal amount of the Notes originally issued at a
redemption price equal to 109% of the principal amount of such Notes plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the
redemption date; provided, however, that at least 65% of the aggregate principal
amount of Notes originally issued remains outstanding immediately after any such
redemption.
(6) OFFERS TO PURCHASE. Subject to the Company's obligation to make
an offer to purchase Notes in connection with Asset Sales and a Change of
Control (as described in the Indenture), the Issuers have no mandatory
redemption or sinking fund obligations with respect to the Notes. Notice of any
such offer to purchase will be given as provided in the Indenture. Holders of
Notes that are the subject of an offer to purchase may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect Purchase"
appearing below and taking certain other actions, all as set forth in the
Indenture.
(7) NOTICE OF REDEMPTION. Notice of redemption will be mailed, by
first class mail, at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at its registered
address. Notes in denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000, unless all of the Notes held by a Holder are
to be redeemed. On and after the redemption date interest ceases to accrue on
Notes or portions thereof called for redemption.
(8) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of $1,000
of principal amount. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees
A-1-6
required by law or permitted by the Indenture. The Issuers and the Registrar
shall not be required to issue, exchange or register the Notes during a period
beginning at the opening of business 15 days before the day of any selection of
Notes for redemption under Section 3.2 of the Indenture and ending at the close
of business on the day of selection, or to exchange or register any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part, or to exchange or register a Note between a
record date and the next succeeding Interest Payment Date.
(9) PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
(10) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes, and any existing Default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the Notes then outstanding. Without the consent
of any Holder of a Note, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of an Issuer's or the Parent's obligations to Holders
of the Notes under the Indenture or any Guarantor's Obligations under its
Guarantee in the case of a merger, consolidation or sale of assets involving an
Issuer, the Parent or such Guarantor, as applicable, pursuant to Article 5 or
Article 10 of the Indenture, to make any change that would provide any
additional rights or benefits to the Holders of the Notes (including providing
for Guarantees of the Notes and any supplemental indenture required pursuant to
Section 4.15 of the Indenture) or that does not adversely affect the legal
rights under the Indenture of any such Holder, to comply with requirements of
the SEC in order to effect or maintain the qualification of the Indenture under
the TIA and to release a Guarantor in accordance with the Indenture.
(11) DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest or Liquidated Damages, if any,
on the Notes; (ii) default in payment when due of the principal of or premium,
if any, on the Notes at maturity, upon redemption or otherwise (including the
failure to make a payment to purchase Notes tendered pursuant to a Change of
Control Offer or an Assets Sale Offer); (iii) failure by any Issuer or the
Parent to comply with Section 5.1 of the Indenture or the failure by any
Subsidiary Guarantor to comply with Section 10.2 of the Indenture; (iv) failure
by any Issuer, the Parent, any Guarantor or any Restricted Subsidiary for 30
days in the performance of any other covenant, warranty or agreement in the
Indenture or the Notes after written notice shall have been given to the Company
by the Trustee or to the Company and the Trustee from Holders of at least 25% in
principal amount of the Notes of such then outstanding; (v) the failure to pay
at final stated maturity (giving effect to any applicable grace periods and any
extensions thereof) the principal amount of Non-Recourse Indebtedness of the
Company, the Parent or any of their respective Restricted Subsidiaries with an
aggregate principal amount in excess of the lesser of (A) 10% of the total
assets of the Company, the Parent and their respective Restricted Subsidiaries
measured as of the end of the Parent's most recent fiscal quarter for which
internal financial statements are available immediately prior to the date on
which such default occurred, determined on a pro forma basis and (B) $50
million, and such failure continues for a period of
A-1-7
10 days or more, or the acceleration of the final stated maturity of any such
Non-Recourse Indebtedness (which acceleration is not rescinded, annulled or
otherwise cured within 10 days of receipt by the Company, the Parent or such
Restricted Subsidiary of notice of such acceleration); (vi) the failure to pay
at final stated maturity (giving effect to any applicable grace periods and any
extensions thereof) the principal amount of any Indebtedness (other than Non-
Recourse Indebtedness) of the Company, the Parent or any Restricted Subsidiary
of the Company or the Parent and such failure continues for a period of 10 days
or more, or the acceleration of the final stated maturity of any such
Indebtedness (which acceleration is not rescinded, annulled or otherwise cured
within 10 days of receipt by the Company, the Parent or such Restricted
Subsidiary of notice of any such acceleration) if the aggregate principal amount
of such Indebtedness, together with the principal amount of any other such
Indebtedness, in default for failure to pay principal at final maturity or which
has been accelerated, in each case with respect to which the 10-day period
described above has passed, aggregates $10.0 million or more at any time; (vii)
failure by the Company, the Parent or any of their respective Restricted
Subsidiaries to pay final judgments rendered against them (other than judgment
liens without recourse to any assets or property of the Company, the Parent or
any of their respective Restricted Subsidiaries other than assets or property
securing Non-Recourse Indebtedness) aggregating in excess of $10.0 million,
which judgments are not paid, discharged or stayed for a period of 60 days
(other than any judgments as to which a reputable insurance company has accepted
full liability); (viii) except as permitted by the Indenture, any Guarantee with
respect to the Notes shall be held in a judicial proceeding to be unenforceable
or invalid or shall cease for any reason to be in full force and effect or any
Guarantor (or its successors or assigns), or any Person acting on behalf of such
Guarantor (or its successors or assigns), shall deny or disaffirm its
obligations or shall fail to comply with any obligations under its Guarantee
with respect to the Notes; and (ix) certain events of bankruptcy or insolvency
with respect to the Company, the Parent, any of the Company's or the Parent's
Subsidiaries that would constitute a Significant Subsidiary or any group of the
Company's and/or the Parent's Subsidiaries that, taken together, would
constitute a Significant Subsidiary. If any Event of Default occurs and is
continuing, the Trustee, by written notice to the Issuers, or the Holders of at
least 25% in principal amount of the then outstanding Notes by written notice to
the Issuers and the Trustee may declare all the Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, with respect to the
Company, the Parent, any of the Company's or the Parent's Subsidiaries that
would constitute a Significant Subsidiary or any group of the Company's and/or
the Parent's Subsidiaries that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable without further
action or notice. Under certain circumstances, the Holders of a majority in
principal amount of the outstanding Notes may rescind any acceleration with
respect to the Notes and its consequences. Holders of the Notes may not enforce
the Indenture or the Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
(12) GUARANTEES OF NOTES. Payment of principal, premium, if any, and
interest and Liquidated Damages, if any, (including interest on overdue
principal and overdue interest, if lawful) on the Notes are unconditionally
guaranteed by the Guarantors pursuant to, and subject to the terms of, Article
10 of the Indenture.
A-1-8
(13) SECURITY. The Notes will be senior, unsecured obligations of the
Issuers.
(14) NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder shall have any liability for any obligations of any
Issuer or any Guarantor under the Notes, any Guarantee with respect to the Notes
or the Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of the Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver and release may not be
effective to waive or release liabilities under the federal securities laws.
(15) AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
(16) ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
(17) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Issuers have caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
(18) [SERIES A NOTES] REGISTRATION RIGHTS. Pursuant to the
Registration Rights Agreement (as defined in the Indenture), and subject to
certain terms and conditions stated therein, the Issuers will be obligated to
consummate an Exchange Offer pursuant to which the Holders of the Notes shall
have the right to exchange this Note for Exchange Notes, which have been
registered under the Securities Act, in like principal amount and having terms
identical in all material respect to the Note. In certain circumstances, and
subject to certain terms and conditions, Holders of the Notes shall have the
right to receive liquidated damages if the Issuers shall have failed to fulfill
their obligations under the Registration Rights Agreement.
The Issuers will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
MeriStar Hospitality Operating Partnership, L.P.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx Xxxxx,
Chief Financial Officer
Telecopier No.: (000) 000-0000
A-1-9
Assignment Form
To assign this Note, fill in the form below: (I) or
(we) assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's Social Security or tax I.D. No.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
___________________________________________
agent to transfer this Note on the books of the Issuers. The agent may
substitute another to act for him.
Date: ______________________
Your Signature:
(Sign exactly as your name appears on the face of
this Note)
Signature Guarantee:* _______________________
______________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-1-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
[_] Section 4.10 [_] Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased: $___________
Date:______________ Your Signature:___________________________________
(Sign exactly as your name appears on the Note)
Tax Identification No:____________________________
Signature Guarantee:*/____________________________
__________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-1-11
Transfer and Exchange
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of the declaration by SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) January 26, 2001, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer and that this Note is being transferred:
Check One
(1) ___ to an Issuer or a subsidiary thereof;
or
(2) ___ pursuant to and in compliance with
Rule 144A under the Securities Act; or
(3) ___ outside the United States to a
"foreign person" in compliance with Rule
904 of Regulation S under the Securities
Act; or
(4) ___ pursuant to an effective registration
statement under the Securities Act; or
(5) ___ pursuant to another available
exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of any
Person other than the registered Holder thereof; provided that if box (3) or (5)
is checked, the Company or the Trustee may require, prior to registering any
such transfer of the Notes in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (4)) and other
information as the Trustee or the Company has reasonably requested to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Security in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.17 of the Indenture shall have
been satisfied.
Dated: ___________ Signed:_________________________________
(Sign exactly as name appears on the other side of this
Security)
Signature Guarantee:________________________________________
A-1-12
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuers as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: ___________________ Signed:_________________________
NOTICE: To be executed
by an executive officer
A-1-13
SCHEDULE OF EXCHANGES OF CERTIFICATED NOTES
The following exchanges of a part of this Global Note for Certificated
Notes have been made:
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized
Principal Principal Amount Note following officer of
Amount of of this such decrease Trustee or Note
Date of Exchange this Global Note Global Note (or increase) Custodian
---------------- ---------------- ---------------- ---------------- ---------------
X-0-00
XXXXXXX X-0
(Face of Note)
9?% [Series C] [Series D] Senior Notes due 2011
CUSIP:____________
No.___ $___________
MERISTAR HOSPITALITY OPERATING PARTNERSHIP, L.P.
and
MERISTAR HOSPITALITY FINANCE CORP.
promise to pay to _______________________________, or registered assigns, the
principal sum of __________________________________ Dollars on January 15, 2011.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
Dated: __________________________
MERISTAR HOSPITALITY OPERATING PARTNERSHIP, L.P.
By: MeriStar Hospitality Corporation, as
general partner
By: _____________________________
Name:
Title:
MERISTAR HOSPITALITY FINANCE CORP.
By: ____________________________
Name:
Title:
A-2-1
Trustee's Certificate of Authentication:
This is one of the [Global] Notes
referred to in the within-
mentioned Indenture:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By _____________________________
Authorized Signatory
A-2-2
(Back of Note)
9 % [Series C] [Series D] Senior Notes due 2011
of
MeriStar Hospitality Operating Partnership, L.P.
and
MeriStar Hospitality Finance Corp.
[IF A RESTRICTED SECURITY, INSERT: THE SECURITY EVIDENCED HEREBY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THE SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION"
PURSUANT TO RULE 903 OR 904 REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO
(X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY
RULE 144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISIONS THEREUNDER)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY PREDECESSOR OF THIS
SECURITY) OR THE LAST DAY ON WHICH MERISTAR HOSPITALITY OPERATING PARTNERSHIP,
L.P., MERISTAR HOSPITALITY FINANCE CORP. OR ANY OF THEIR RESPECTIVE AFFILIATES
WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE
RESTRICTION TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO MERISTAR HOSPITALITY OPERATING PARTNERSHIP, L.P., MERISTAR
HOSPITALITY FINANCE CORP. OR ANY OF THEIR RESPECTIVE SUBSIDIARIES, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION
A-2-3
REQUIREMENTS OF THE SECURITIES ACT, AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND; PROVIDED THAT MERISTAR HOSPITALITY OPERATING PARTNERSHIP, L.P.,
THE TRUSTEE AND THE TRANSFER AGENT AND REGISTRAR RESERVE THE RIGHT PRIOR TO ANY
OFFER, SALE OR OTHER TRANSFER PURSUANT TO CLAUSES (D) OR (E) ABOVE TO REQUIRE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND OTHER INFORMATION
SATISFACTORY TO MERISTAR HOSPITALITY OPERATING PARTNERSHIP, L.P., THE TRUSTEE
AND THE TRANSFER AGENT AND REGISTRAR. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL THE SECURITIES.]
[IF A TEMPORARY REGULATION S GLOBAL NOTE INSERT: PRIOR TO EXPIRATION OF THE 40-
DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT OF 1933 (THE "SECURITIES ACT")) ("REGULATION S"), THIS
SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES (AS DEFINED IN REGULATION S) OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, A U.S. PERSON (AS DEFINED IN REGULATION S), EXCEPT TO A PERSON REASONABLY
BELIEVED TO BE A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
("RULE 144A") UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A AND THE INDENTURE REFERRED TO HEREIN.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO BE BOUND BY THE
PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT RELATING TO ALL THE SECURITIES.]
[IF A GLOBAL NOTE INSERT: UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY ANY SUCH
NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR NOMINEE OF A SUCCESSOR
DEPOSITARY OR ANY NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE.
A-2-4
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Capitalized terms used herein shall have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. MeriStar Hospitality Partnership, L.P., a Delaware
limited partnership (the "Company") and MeriStar Hospitality Finance Corp., a
Delaware corporation ("MeriStar Finance," and together with the Company, the
"Issuers"), promise to pay interest on the principal amount of this 9?% [Series
C] [Series D] Senior Note due 2011 (the "Note") at the rate and in the manner
specified below.
The Issuers shall pay interest on the principal amount of this Note in
cash at the rate per annum shown above and shall pay the Liquidated Damages, if
any, payable pursuant to Section 5 of the Registration Rights Agreements
referred to below. The Issuers shall pay interest and Liquidated Damages, if
any, semi-annually on each January 15 and July 15 commencing July 15, 2001 or if
any such day is not a Business Day (as defined in the Indenture referred to
below), on the next succeeding Business Day (each an "Interest Payment Date").
Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months for the actual number of days elapsed. Interest shall
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of the original issuance of this Note. To
the extent lawful, the Issuers shall pay interest on overdue principal and
premium at the rate of 1% per annum in excess of the then applicable interest
rate on this Note; it shall pay interest on overdue installments of interest
(without regard to any applicable grace periods) at the same rate to the extent
lawful.
(2) METHOD OF PAYMENT. The Issuers will pay interest on the Notes
(except defaulted interest) and Liquidated Damages, if any, to the Persons who
are registered Holders of Notes at the close of business on the January 1 and
July 1 immediately preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes will be payable as to principal, premium, if any, and
interest and Liquidated Damages, if any, at the office or agency of the Issuers
maintained for such purpose within or without the City and State of New York,
or, at the option of the Issuers, payment of interest and Liquidated Damages, if
any, may be made by check mailed to the Holders at their addresses set forth in
the register of Holders; provided that payment by wire transfer of immediately
available funds will be required with respect to principal and premium, if any,
and interest and Liquidated Damages, if any, on all Global Notes and all other
Notes the Holders of
A-2-5
which shall have provided wire transfer instructions to the Issuers or the
Paying Agent. Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
(3) PAYING AGENT AND REGISTRAR. Initially, U.S. Bank Trust National
Association, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Issuers may change any Paying Agent or Registrar without notice
to any Holder. Any Issuer or any of its Subsidiaries may act in any such
capacity.
(4) INDENTURE. The Company issued the Notes under an Indenture dated
as of January 26, 2001 (the "Indenture") among the Issuers, MeriStar Hospitality
Corporation, a Maryland corporation (the "Parent"), the Subsidiary Guarantors
and the Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The terms of the Indenture shall govern any
inconsistencies between the Indenture and the Notes.
(5) OPTIONAL REDEMPTION. Prior to January 15, 2004, the Issuers may
redeem, on any one or more occasions, with the net cash proceeds of one or more
public offerings of the common equity of the Parent (a "Public Equity Offering")
(within 60 days of the consummation of any such Public Equity Offering), up to
35% of the aggregate principal amount of the Notes originally issued at a
redemption price equal to 109?% of the principal amount of such Notes plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the
redemption date; provided, however, that at least 65% of the aggregate principal
amount of Notes originally issued remains outstanding immediately after any such
redemption.
(6) OFFERS TO PURCHASE. Subject to the Company's obligation to make
an offer to purchase Notes in connection with Asset Sales and a Change of
Control (as described in the Indenture), the Issuers have no mandatory
redemption or sinking fund obligations with respect to the Notes. Notice of any
such offer to purchase will be given as provided in the Indenture. Holders of
Notes that are the subject of an offer to purchase may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect Purchase"
appearing below and taking certain other actions, all as set forth in the
Indenture.
(7) NOTICE OF REDEMPTION. Notice of redemption will be mailed, by
first class mail, at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be redeemed at its registered
address. Notes in denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000, unless all of the Notes held by a Holder are
to be redeemed. On and after the redemption date interest ceases to accrue on
Notes or portions thereof called for redemption.
(8) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of $1,000
of principal amount. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees
A-2-6
required by law or permitted by the Indenture. The Issuers and the Registrar
shall not be required to issue, exchange or register the Notes during a period
beginning at the opening of business 15 days before the day of any selection of
Notes for redemption under Section 3.2 of the Indenture and ending at the close
of business on the day of selection, or to exchange or register any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part, or to exchange or register a Note between a
record date and the next succeeding Interest Payment Date.
(9) PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
(10) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes, and any existing Default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the Notes then outstanding. Without the consent
of any Holder of a Note, the Indenture or the Notes may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of an Issuer's or the Parent's obligations to Holders
of the Notes under the Indenture or any Guarantor's Obligations under its
Guarantee in the case of a merger, consolidation or sale of assets involving an
Issuer, the Parent or such Guarantor, as applicable, pursuant to Article 5 or
Article 10 of the Indenture, to make any change that would provide any
additional rights or benefits to the Holders of the Notes (including providing
for Guarantees of the Notes and any supplemental indenture required pursuant to
Section 4.15 of the Indenture) or that does not adversely affect the legal
rights under the Indenture of any such Holder, to comply with requirements of
the SEC in order to effect or maintain the qualification of the Indenture under
the TIA and to release a Guarantor in accordance with the Indenture.
(11) DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest or Liquidated Damages, if any,
on the Notes; (ii) default in payment when due of the principal of or premium,
if any, on the Notes at maturity, upon redemption or otherwise (including the
failure to make a payment to purchase Notes tendered pursuant to a Change of
Control Offer or an Assets Sale Offer); (iii) failure by any Issuer or the
Parent to comply with Section 5.1 of the Indenture or the failure by any
Subsidiary Guarantor to comply with Section 10.2 of the Indenture; (iv) failure
by any Issuer, the Parent, any Guarantor or any Restricted Subsidiary for 30
days in the performance of any other covenant, warranty or agreement in the
Indenture or the Notes after written notice shall have been given to the Company
by the Trustee or to the Company and the Trustee from Holders of at least 25% in
principal amount of the Notes of such then outstanding; (v) the failure to pay
at final stated maturity (giving effect to any applicable grace periods and any
extensions thereof) the principal amount of Non-Recourse Indebtedness of the
Company, the Parent or any of their respective Restricted Subsidiaries with an
aggregate principal amount in excess of the lesser of (A) 10% of the total
assets of the Company, the Parent and their respective Restricted Subsidiaries
measured as of the end of the Parent's most recent fiscal quarter for which
internal financial statements are available immediately prior to the date on
which such default occurred, determined on a pro forma basis and (B) $50
million, and such failure continues for a period of
A-2-7
10 days or more, or the acceleration of the final stated maturity of any such
Non-Recourse Indebtedness (which acceleration is not rescinded, annulled or
otherwise cured within 10 days of receipt by the Company, the Parent or such
Restricted Subsidiary of notice of such acceleration); (vi) the failure to pay
at final stated maturity (giving effect to any applicable grace periods and any
extensions thereof) the principal amount of any Indebtedness (other than Non-
Recourse Indebtedness) of the Company, the Parent or any Restricted Subsidiary
of the Company or the Parent and such failure continues for a period of 10 days
or more, or the acceleration of the final stated maturity of any such
Indebtedness (which acceleration is not rescinded, annulled or otherwise cured
within 10 days of receipt by the Company, the Parent or such Restricted
Subsidiary of notice of any such acceleration) if the aggregate principal amount
of such Indebtedness, together with the principal amount of any other such
Indebtedness, in default for failure to pay principal at final maturity or which
has been accelerated, in each case with respect to which the 10-day period
described above has passed, aggregates $10.0 million or more at any time; (vii)
failure by the Company, the Parent or any of their respective Restricted
Subsidiaries to pay final judgments rendered against them (other than judgment
liens without recourse to any assets or property of the Company, the Parent or
any of their respective Restricted Subsidiaries other than assets or property
securing Non-Recourse Indebtedness) aggregating in excess of $10.0 million,
which judgments are not paid, discharged or stayed for a period of 60 days
(other than any judgments as to which a reputable insurance company has accepted
full liability); (viii) except as permitted by the Indenture, any Guarantee with
respect to the Notes shall be held in a judicial proceeding to be unenforceable
or invalid or shall cease for any reason to be in full force and effect or any
Guarantor (or its successors or assigns), or any Person acting on behalf of such
Guarantor (or its successors or assigns), shall deny or disaffirm its
obligations or shall fail to comply with any obligations under its Guarantee
with respect to the Notes; and (ix) certain events of bankruptcy or insolvency
with respect to the Company, the Parent, any of the Company's or the Parent's
Subsidiaries that would constitute a Significant Subsidiary or any group of the
Company's and/or the Parent's Subsidiaries that, taken together, would
constitute a Significant Subsidiary. If any Event of Default occurs and is
continuing, the Trustee, by written notice to the Issuers, or the Holders of at
least 25% in principal amount of the then outstanding Notes by written notice to
the Issuers and the Trustee may declare all the Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, with respect to the
Company, the Parent, any of the Company's or the Parent's Subsidiaries that
would constitute a Significant Subsidiary or any group of the Company's and/or
the Parent's Subsidiaries that, taken together, would constitute a Significant
Subsidiary, all outstanding Notes will become due and payable without further
action or notice. Under certain circumstances, the Holders of a majority in
principal amount of the outstanding Notes may rescind any acceleration with
respect to the Notes and its consequences. Holders of the Notes may not enforce
the Indenture or the Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
(12) GUARANTEES OF NOTES. Payment of principal, premium, if any, and
interest and Liquidated Damages, if any, (including interest on overdue
principal and overdue interest, if lawful) on the Notes are unconditionally
guaranteed by the Guarantors pursuant to, and subject to the terms of, Article
10 of the Indenture.
A-2-8
(13) SECURITY. The Notes will be senior, unsecured obligations of the
Issuers.
(14) NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator or stockholder shall have any liability for any obligations of any
Issuer or any Guarantor under the Notes, any Guarantee with respect to the Notes
or the Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of the Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver and release may not be
effective to waive or release liabilities under the federal securities laws.
(15) AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
(16) ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
(17) CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Issuers have caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
(18) [SERIES C NOTES] REGISTRATION RIGHTS. Pursuant to the
Registration Rights Agreement (as defined in the Indenture), and subject to
certain terms and conditions stated therein, the Issuers will be obligated to
consummate an Exchange Offer pursuant to which the Holders of the Notes shall
have the right to exchange this Note for Exchange Notes, which have been
registered under the Securities Act, in like principal amount and having terms
identical in all material respect to the Note. In certain circumstances, and
subject to certain terms and conditions, Holders of the Notes shall have the
right to receive liquidated damages if the Issuers shall have failed to fulfill
their obligations under the Registration Rights Agreement.
The Issuers will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
MeriStar Hospitality Operating Partnership, L.P.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx Xxxxx,
Chief Financial Officer
Telecopier No.: (000) 000-0000
A-2-9
Assignment Form
To assign this Note, fill in the form below: (I) or
(we) assign and transfer this Note to
________________________________________________________________________________
(Insert assignee's Social Security or tax I.D. No.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
___________________________________________
agent to transfer this Note on the books of the Issuers. The agent may
substitute another to act for him.
Date: _____________________________
Your Signature:
(Sign exactly as your name appears on the face of
this Note)
Signature Guarantee:* _______________________
______________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-2-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.14 of the Indenture, check the box below:
[_] Section 4.10 [_] Section 4.14
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.14 of the Indenture, state the
amount you elect to have purchased: $___________
Date:______________ Your Signature:_______________________________
(Sign exactly as your name appears on the Note)
Tax Identification No:________________________
Signature Guarantee:*/________________________
__________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-2-11
Transfer and Exchange
In connection with any transfer of this Note occurring prior to the
date which is the earlier of (i) the date of the declaration by SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act") covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) January 26, 2001, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer and that this Note is being transferred:
Check One
(1) ___ to an Issuer or a subsidiary thereof;
or
(2) ___ pursuant to and in compliance with
Rule 144A under the Securities Act; or
(3) ___ outside the United States to a
"foreign person" in compliance with Rule
904 of Regulation S under the Securities
Act; or
(4) ___ pursuant to an effective registration
statement under the Securities Act; or
(5) ___ pursuant to another available
exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of any
Person other than the registered Holder thereof; provided that if box (3) or (5)
is checked, the Company or the Trustee may require, prior to registering any
such transfer of the Notes in its sole discretion, such legal opinions,
certifications (including an investment letter in the case of box (4)) and other
information as the Trustee or the Company has reasonably requested to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Security in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.17 of the Indenture shall have
been satisfied.
Dated: ___________ Signed:_________________________________
(Sign exactly as name appears on the other side of this
Security)
Signature Guarantee:________________________________________
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TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Issuers as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: ___________________ Signed:_________________________
NOTICE: To be executed
by an executive officer
A-2-13
SCHEDULE OF EXCHANGES OF CERTIFICATED NOTES
The following exchanges of a part of this Global Note for Certificated
Notes have been made:
Amount of Amount of Principal Amount Signature of
decrease in increase in of this Global authorized
Principal Principal Amount Note following officer of
Date of Amount of of this such decrease Trustee or Note
Exchange this Global Note Global Note (or increase) Custodian
-------- ---------------- ----------- ------------- ---------
A-2-14
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE
This "Supplemental Indenture", dated as of ________, between
_________________ (the "Guarantor"), a subsidiary of [MeriStar Hospitality
Operating Partnership, L.P., a Delaware limited partnership] [MeriStar
Hospitality Corporation, a Maryland corporation], and U.S. Bank Trust National
Association, as trustee under the indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, MeriStar Hospitality Operating Partnership (the "Company"),
MeriStar Hospitality Finance Corp. ("MeriStar Finance," and together with the
Company, the "Issuers"), MeriStar Hospitality Corporation (the "Parent") and the
Subsidiary Guarantors parties thereto, have heretofore executed and delivered to
the Trustee an indenture (the "Indenture"), dated as of January 26, 2001,
providing for the issuance of up to an aggregate principal amount of
$300,000,000 of 9% Senior Notes due 2008 (the "2008 Notes") and up to an
aggregate principal amount of $200,000,000 of 9% Senior Notes due 2011 (the
"2011 Notes," and together with the 2008 Notes, the "Notes");
WHEREAS, Section 4.15 of the Indenture provides that under certain
circumstances the Company and the Parent are required to cause the Guarantor to
execute and deliver to the Trustee a supplemental indenture pursuant to which
the Guarantor shall unconditionally guarantee all of the Issuers' Obligations
under the Notes pursuant to a Guarantee on the terms and conditions set forth
herein; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guarantor hereby agrees, jointly and
severally with all other Guarantors, to guarantee the Issuers' obligations under
the Notes on the terms and subject to the conditions set forth in Article 10 of
the Indenture and to be bound by all other applicable provisions of the
Indenture.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, shareholder or agent of the Guarantor, as such,
shall have any liability for any obligations of any Issuer or any Guarantor
under the Notes, any Guarantees, the
B-1
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes. Such waiver or
release may not be effective to waive or release liabilities under the federal
securities laws.
4. NEW YORK LAW TO GOVERN. The internal law of the State of New York
shall govern and be used to construe this Supplemental Indenture.
5. COUNTERPARTS. 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.
6. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated:____________, ____
[Guarantor]
By: ____________________________
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By: _____________________________
Name:
Title:
B-2
EXHIBIT C
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
U.S. Bank Trust National Association
000 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department
Re: MeriStar Hospitality Operating Partnership,
L.P. and MeriStar Hospitality Finance Corp.
(the "Issuers") __% Senior Notes due ____ (the
"Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $____________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
1. the offer of the Notes was not made to a Person in the United
States;
2. either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been pre-
arranged with a buyer in the United States;
3. no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
4. the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
5. we have advised the transferee of the transfer restrictions
applicable to the Notes.
C-1
You and the Issuers are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
By: ______________________
Authorized Signature
C-2
