Exhibit 10.2.4
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED
SENIOR SECURED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR SECURED CREDIT
AGREEMENT (this "Amendment"), dated as of December 14, 2001 (the "Amendment
Date"), is among MERISTAR HOSPITALITY OPERATING PARTNERSHIP, L.P., a Delaware
limited partnership, as the Borrower ("Borrower"); the Guarantors; SOCIETE
GENERALE, SOUTHWEST AGENCY, as Arranger and Administrative Agent (the
"Administrative Agent"); and the Lenders a party hereto.
RECITALS:
A. The Borrower; the Administrative Agent; Bankers Trust Company, as
Arranger and Syndication Agent; ▇▇▇▇▇▇ Commercial Paper Inc., as Arranger and
Documentation Agent; ▇▇▇▇▇ Fargo Bank, National Association, as Documentation
Agent; and the Lenders are parties to that certain Second Amended and Restated
Senior Secured Credit Agreement, dated as of August 3, 1998 (the "Original
Credit Agreement"), as amended by that certain First Amendment to Second Amended
and Restated Senior Secured Credit Agreement dated as of March 3, 1999, as
further amended by that certain Second Amendment to Second Amended and Restated
Senior Secured Credit Agreement dated as of March 31, 2000, as further amended
by that certain Third Amendment to Second Amended and Restated Senior Secured
Credit Agreement dated as of January 1, 2001 (the Original Credit Agreement, as
so amended, being referred to herein as the "Credit Agreement").
B. The Borrower, the Administrative Agent and the Lenders party thereto
executed that certain Waiver to Second Amended and Restated Senior Secured
Credit Agreement (the "Waiver"), dated as of September 30, 2001.
C. The Borrower desires that the Borrower and the Lenders amend certain
financial covenants in and other provisions of the Credit Agreement as more
fully set forth in this Amendment and the Lenders party hereto desire to grant
such amendment subject to the terms and conditions set forth in this Amendment.
NOW, THEREFORE, for and in consideration of the covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. All terms used in this Amendment, but not defined herein, shall have the
meaning given such terms in the Credit Agreement.
2. This Amendment shall become effective as of the Amendment Date if on or
prior to the close of business on December 28, 2001 (the "Termination Date") the
following conditions precedent have been satisfied:
a. Documentation. The Administrative Agent shall have received
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counterparts of this Amendment executed by the Borrower, the Guarantors and
the Super
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Required Lenders.
b. Representations and Warranties. The representations and warranties
------------------------------
contained in this Amendment, and in each Credit Document shall be true and
correct in all material respects both as of the Amendment Date and the date
the other conditions to this Amendment's effectiveness are satisfied except
for changes which individually or in the aggregate do not constitute a
Material Adverse Change.
c. No Default. No Default or Event of Default shall exist as of either
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the Amendment Date or the date the other conditions to this Amendment's
effectiveness are satisfied except for any such Default or Event of Default
as is expressly waived or eliminated by this Amendment.
If this Amendment does not become effective prior to the Termination Date, this
Amendment shall be null and void; provided however that the Borrower shall still
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be obligated to reimburse Societe Generale, Southwest Agency for costs and
expenses incurred in connection with this Amendment.
3. The term "Credit Agreement" as used in the Credit Documents, shall
mean the Amended Credit Agreement, as amended by this Amendment.
4. From and after the Amendment Date, the definition of "Applicable
Margin" is amended by deleting in its entirety the table set forth in such
definition and replacing such table with the following table:
Revolving Advances and Term A Advances Term B Advances
---------------------------------------- --------------------------
Unused
Base Rate LIBOR Commitment Base Rate LIBOR
Advances Advances Fee Advances Advances
------------ ---------- ----------- ------------ -----------
Level I 0% 2.00% .375% 1.50% 3.50%
Status
Level II .50% 2.50% .375% 1.50% 3.50%
Status
Level III 1.00% 3.00% .50% 1.50% 3.50%
Status
Level IV 1.50% 3.50% .50% 2.00% 4.00%
Status
Level V 2.00% 4.00% .50% 2.00% 4.00%
Status
5. From and after the Amendment Date, the definition of "EBITDA" is
amended by adding the phrase ", non-cash employee compensation up to $5,000,000
per Fiscal Year in the aggregate commencing with the 2002 Fiscal Year" after the
word "amortization".
6. From and after the Amendment Date, the definition of "Maximum OPCO
Loan Amount" is amended by replacing the number "5.5" with the phrase "an amount
equal to (1) with respect to OPCO's EBITDA for any Rolling Period ended on or
prior to June 30, 2001, 5.5, (2) with respect to OPCO's EBITDA for the Rolling
Periods ended on September 30, 2001 and December 31, 2001, 6.75, (3) with
respect to OPCO's EBITDA for the Rolling Period ended on March 31, 2002, 8.25,
(4) with respect to OPCO's EBITDA for the Rolling Period ended on June
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30, 2002, 7.75, and (5) with respect to OPCO's EBITDA for any Rolling Period
ended thereafter, 7.00".
7. From and after the Amendment Date, the definition of "Status" is
deleted in its entirety and replaced with the following:
`"Status" means the existence of Level I Status, Level II Status,
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Level III Status, Level IV Status, or Level V Status, as the case may be. As
used in this definition:
"Level I Status" exists at any date if, at such date, the
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Leverage Ratio at the end of the preceding Rolling Period is less than
4.0;
"Level II Status" exists at any date if, at such date, the
---------------
Leverage Ratio at the end of the preceding Rolling Period is equal to
or greater than 4.0 but less than 4.5;
"Level III Status" exists at any date if, at such date, the
---------------
Leverage Ratio at the end of the preceding Rolling Period is equal to
or greater than 4.5 but less than 5.0;
"Level IV Status" exists at any date if, at such date, the
---------------
Leverage Ratio at the end of the preceding Rolling Period is equal to
or greater than 5.0 but less than 5.5; and
"Level V Status" exists at any date if, at such date, the
---------------
Leverage Ratio at the end of the preceding Rolling Period is equal to
or greater than 5.5.
Status shall be determined and changed as of the Status Reset
Date following any Fiscal Quarter; provided that if the Borrower fails
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to timely provide the financial statements needed to recalculate the
Leverage Ratio as required by the provisions of Section 5.05(a) prior
to the 50th day following the end of any Fiscal Quarter, then Status
shall automatically be reset at the Status one level higher than the
Status existing immediately prior to such Status reset until such time
as the Borrower provides such financial statements.'
8. Notwithstanding the definition of "Status Reset Date" or the
other provisions of the Credit Agreement to the contrary, on the Amendment Date
the Status under the Credit Agreement will be reset to Level V Status and such
Status shall not be reduced until the next Status Reset Date following the
Amendment Date.
9. From and after the Amendment Date, the following definitions
shall be added to the Credit Agreement in the correct alphabetical order:
"Additional Designated Senior Indebtedness" means, for the Parent
-----------------------------------------
and its Subsidiaries, Senior Indebtedness of the Parent and its
Subsidiaries (a) which is incurred after the Fourth Amendment Date,
(b) for which the gross proceeds are equal to or greater than
$200,000,000 but do not exceed $500,000,000, (c) which is not subject
to financial covenants which are materially more onerous than the
terms of the Credit Documents, (d) which is not subject to
non-financial covenants or terms which are materially more onerous
than the terms of the Other Existing Senior Indebtedness except as
expressly permitted by this Amendment, (e) which does not prohibit the
Parent or any of the Parent's Subsidiaries from granting Liens on any
of such Person's assets to secure the
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Obligations or any other Senior Indebtedness except as may be expressly
permitted by the provisions of Section 6.11, and (f) for which the Net Cash
Proceeds are used to repay the Obligations in accordance with the terms of
this Agreement.
"Base Revolver Limitation Amount" means (a) after the Amendment Date
-------------------------------
but prior to September 30, 2002, $375,000,000, (b) on or after September
30, 2002, but prior to June 30, 2003, $350,000,000 and (c) on and after
June 30, 2003, $300,000,000.
"Fourth Amendment" means Fourth Amendment to Second Amended and
----------------
Restated Senior Secured Credit Agreement executed by the Borrower, the
Administrative Agent and the Lenders party thereto.
"Fourth Amendment Date" means the "Amendment Date" as such term is
---------------------
used in the Fourth Amendment.
"Non-Applied Cash Proceeds" means the difference of (a) any Net Cash
-------------------------
Proceeds from a Repayment Event after the Fourth Amendment Date minus (b)
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any Revolving Advances (but not in excess of the Net Cash Proceeds from
such Repayment Event) requested by the Borrower within ten (10) days of
such Repayment Event to make an optional prepayment of Advances as provided
in Section 2.07(b).
"Other Existing Senior Indebtedness" means the Parent's $300,000,000
----------------------------------
of 9% Senior Notes with a maturity in 2008 and $200,000,000 of 9 1/8%
Senior Notes with a maturity in 2011.
"Quarterly Dividend Limitation" means:
-----------------------------
(a) for cash distributions paid in the Fiscal Quarter ended December
31, 2001, the cash dividends declared and already paid by the Parent on or
prior to the Fourth Amendment Date.
(b) for cash distributions paid in the Fiscal Quarters ended March 31,
2002, June 30, 2002 and September 30, 2002, the lesser of (i) $.01 per
share of outstanding Parent Common Stock and (ii) $750,000.
(c) for cash distributions paid in the Fiscal Quarter ended December
31, 2002, (i) if the Leverage Ratio at the time of such cash distribution
based upon the EBITDA for the Rolling Period ended September 30, 2002 is
less than 6.75 to 1.00, then $12,500,000, and (ii) if the Leverage Ratio is
not so satisfied, then the lesser of (A) $.01 per share of outstanding
Parent Common Stock and (B) $750,000.
(d) for cash distributions paid in the Fiscal Quarter ended March 31,
2003, (i) if the Leverage Ratio at the time of such cash distribution based
upon the EBITDA for the Rolling Period ended December 31, 2002 is less than
6.50 to 1.00, then $12,500,000, and (ii) if the Leverage Ratio is not so
satisfied, then the lesser of (A) $.01 per share of outstanding Parent
Common Stock and (B) $750,000.
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(e) for cash distributions paid in the Fiscal Quarter ended June 30,
2003, (i) if the Leverage Ratio at the time of such cash distribution based
upon the EBITDA for the Rolling Period ended March 31, 2003 is less than
6.25 to 1.00, then $15,000,000, and (ii) if the Leverage Ratio is not so
satisfied, then the lesser of (A) $.01 per share of outstanding Parent
Common Stock and (B) $750,000.
(f) for cash distributions paid in any Fiscal Quarter thereafter, the
lesser of (i) $.01 per share of outstanding Parent Common Stock and (ii)
$750,000.
"Senior Indebtedness" of any Person means any Indebtedness of such
-------------------
Person and its Subsidiaries on a Consolidated basis which would be all or a
part of such Person's Total Senior Indebtedness.
"Senior Unsecured Leverage Ratio" means the ratio on any date of (a)
-------------------------------
the Parent's Total Senior Unsecured Indebtedness on such date to (b) the
Unencumbered EBITDA of the Parent and the Parent's Subsidiaries on a
Consolidated basis for the Rolling Period immediately preceding such date,
as Unencumbered EBITDA is adjusted for acquisitions and dispositions in the
definition of "Leverage Ratio."
"Subordinate Indebtedness" of any Person means any Indebtedness of
------------------------
such Person and its Subsidiaries on a Consolidated basis which would be all
or a part of such Person's Total Subordinate Indebtedness.
"Total Senior Unsecured Indebtedness" of any Person means all Total
-----------------------------------
Senior Indebtedness of such Person and its Subsidiaries on a Consolidated
basis which is Unsecured Indebtedness.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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10. From and after the Amendment Date, Sections 7.01 7.02, 7.04, 7.07 and
7.09 of the Credit Agreement are deleted in their entirety and replaced with the
following in the applicable location in the Credit Agreement:
"Section 7.01 Interest Coverage Ratio. The Parent shall maintain at
-----------------------
the end of each Rolling Period for the Rolling Periods ending on the dates
indicated in the following chart an Interest Coverage Ratio of not less
than the amount set forth next to such dates:
Ending Date of Rolling Period Interest Coverage Ratio
--------------------------------------- ---------------------------
September 30, 1998 through March 31, 1999 2.20 to 1.0
June 30, 1999 through June 30, 2001 2.50 to 1.0
September 30, 2001 2.10 to 1.0
December 31, 2001 1.80 to 1.0
March 31, 2002 1.60 to 1.0
June 30, 2002 1.50 to 1.0
September 30, 2002 1.45 to 1.0
December 31, 2002 1.55 to 1.0
March 31, 2003 1.65 to 1.0
June 30, 2003 1.75 to 1.0
September 30, 2003 2.00 to 1.0
For any Rolling Period thereafter 2.10 to 1.0"
"Section 7.02 Fixed Charge Coverage Ratio. The Parent shall maintain
---------------------------
at the end of each Rolling Period for the Rolling Periods ending on the
dates indicated in the following chart an Fixed Charge Coverage Ratio of
not less than the amount set forth next to such dates:
Ending Date of Rolling Period Fixed Charge Coverage Ratio
--------------------------------------- ---------------------------
September 30, 1998 through March 31, 1999 1.85 to 1.0
June 30, 1999 through June 30, 2001 2.00 to 1.0
September 30, 2001 1.50 to 1.0
December 31, 2001 1.25 to 1.0
March 31, 2002 1.20 to 1.0
June 30, 2002 1.10 to 1.0
September 30, 2002 1.15 to 1.0
December 31, 2002 1.20 to 1.0
March 31, 2003 1.30 to 1.0
June 30, 2003 1.40 to 1.0
September 30, 2003 1.50 to 1.0
For any Rolling Period thereafter 1.60 to 1.0"
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"Section 7.04 Leverage Ratio. The Parent shall not on any date permit
--------------
the Leverage Ratio to exceed during the applicable period indicated in the
following chart the amount set forth in such chart for such period:
Applicable Period Leverage Ratio
----------------------------------------------- --------------
prior to January 1, 2000 5.50 to 1.0
from January 1, 2000 through September 30, 2001 5.30 to 1.0
from October 1, 2001 through December 31, 2001 5.85 to 1.0
from January 1, 2002 through March 31, 2002 6.85 to 1.0
from April 1, 2002 through September 30, 2002 7.25 to 1.0
from October 1, 2002 through December 31, 2002 7.10 to 1.0
from January 1, 2003 through March 31, 2003 6.75 to 1.0
from April 1, 2003 through June 30, 2003 6.50 to 1.0
from July 1, 2003 through September 30, 2003 6.00 to 1.0
from October 1, 2003 through December 31, 2003 5.75 to 1.0
On and after January 1, 2004 5.50 to 1.0"
"Section 7.07 Unsecured Interest Coverage Ratio. The Parent shall
---------------------------------
maintain at the end of each Rolling Period for the Rolling Periods ending
on the dates indicated in the following chart an Unsecured Interest
Coverage Ratio of not less than the amount set forth next to such dates:
Ending Date of Rolling Period Unsecured Interest Coverage Ratio
------------------------------------ ---------------------------------
September 30, 1998 through June 30, 1999 1.50 to 1.0
September 30, 1999 through June 30, 2000 1.75 to 1.0
September 30, 2000 through June 30, 2001 2.00 to 1.0
September 30, 2001 1.90 to 1.0
December 31, 2001 1.70 to 1.0
March 31, 2002 1.50 to 1.0
June 30, 2002 1.40 to 1.0
September 30, 2002 1.35 to 1.0
December 31, 2002 1.45 to 1.0
March 31, 2003 1.55 to 1.0
June 30, 2003 1.70 to 1.0
September 30, 2003 1.80 to 1.0
For any Rolling Period thereafter 1.90 to 1.0"
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"Section 7.09 Senior Leverage Ratio. The Parent shall not on any date
---------------------
permit the Senior Leverage Ratio to exceed during the applicable period
indicated in the following chart the amount set forth in such chart for
such period:
Applicable Period Senior Leverage Ratio
---------------------------------- ---------------------
prior to October 1, 2001 4.50 to 1.0
from October 1, 2001 through December 31, 2001 4.75 to 1.0
from January 1, 2002 through March 31, 2002 5.50 to 1.0
from April 1, 2002 through September 30, 2002 5.75 to 1.0
from October 1, 2002 through December 31, 2002 5.65 to 1.0
from January 1, 2003 through March 31, 2003 5.30 to 1.0
from April 1, 2003 through June 30, 2003 5.15 to 1.0
from July 1, 2003 through September 30, 2003 4.75 to 1.0
from October 1, 2003 through December 31, 2003 4.50 to 1.0
On and after January 1, 2004 4.25 to 1.0"
11. From and after the Amendment Date, a new Section 7.10 and an additional
paragraph is added to the end of Article VII of the Credit Agreement which reads
in its entirety as follows:
"Section 7.10 Senior Unsecured Leverage Ratio. The Parent shall not on
-------------------------------
any date permit the Senior Unsecured Leverage Ratio to exceed during the
applicable period indicated in the following chart the amount set forth in
such chart for such period:
Applicable Period Senior Unsecured Leverage Ratio
--------------------- -------------------------------
from October 1, 2001 through March 31, 2002 5.50 to 1.0
from April 1, 2002 through September 30, 2002 5.80 to 1.0
from October 1, 2002 through December 31, 2002 5.75 to 1.0
from January 1, 2003 through March 31, 2003 5.35 to 1.0
from April 1, 2003 through June 30, 2003 5.25 to 1.0
from July 1, 2003 through September 30, 2003 4.75 to 1.0
from October 1, 2003 through December 31, 2003 4.50 to 1.0
On and after January 1, 2004 4.25 to 1.0
Until the Status Reset Date occurs in any Fiscal Quarter, with respect to the
Leverage Ratio, Senior Leverage Ratio and Senior Unsecured Leverage Ratio tests,
the Parent shall remain subject to the applicable ratio limitation for the
preceding Fiscal Quarter with the applicable test based upon the EBITDA for the
previously reported Rolling Period."
12. From and after the Amendment Date, a new sentence shall be added
at the end of Section 2.01(a) which reads in its entirety as follows:
"Notwithstanding the foregoing, the sum of (i) the aggregate
outstanding principal amount of the Revolving Advances plus (ii) the
Letter of Credit Exposure plus (iii) the
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aggregate outstanding principal amount of the Swingline Advances at any
time may not exceed the difference of (A) the Base Revolver Limitation
Amount minus (B) the aggregate Non-Applied Cash Proceeds.
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13. From and after the Amendment Date, a new Section 2.04(c) is added to
the Credit Agreement which reads in its entirety as follows:
"(c) Upon the incurrence by the Parent or any of its Subsidiaries of
any additional Senior Indebtedness (including any Additional Designated
Senior Indebtedness), any Secured Non-Recourse Indebtedness, or any
Subordinate Indebtedness after the Fourth Amendment Date which (i)
constitutes a Repayment Event and (ii) in the aggregate equals or exceeds
$200,000,000, if the aggregate amount of the Lenders' Revolving Commitments
have not already been so reduced, then within ten (10) days of the
Repayment Event which causes the Borrower to exceed such $200,000,000
threshold the aggregate amount of the Lenders' Revolving Commitments shall
be reduced to an amount equal to the Base Revolver Limitation Amount."
14. From and after the Amendment Date, for purposes of the definition of
"Repayment Event" (a) the Leverage Ratio shall be deemed to be greater than 4.5,
(b) the $250,000,000 exception to a Repayment Event contained in clause (b) of
the definition of "Repayment Event" shall not be available to Borrower and (c)
the number "6.01" in clause (a)(iv) of the definition shall be changed to
"6.02".
15. From and after the Amendment Date, Section 3.02(a)(ii) of the Credit
Agreement is amended by adding the phrase ", the Senior Leverage Ratio and the
Senior Unsecured Leverage Ratio" after the phrase "Leverage Ratio".
16. From and after the Amendment Date, Section 4.06 of the Credit Agreement
is amended by adding the phrase "Except as disclosed in the Parent's Form 10-Q
filed with the Securities and Exchange Commission in October 2001," at the
beginning of the second to last sentence.
17. From and after the Amendment Date, Section 5.11 of the Credit Agreement
is amended by deleting the second sentence in Section 5.11 in its entirety.
18. From and after the Amendment Date, neither the Borrower, the Parent,
nor any of their respective Subsidiaries shall be permitted to make any
additional Investments under Sections 6.07(c), (d), (e), (f), (g), (h), or (j)
of the Credit Agreement except for (a) Capital Expenditures which are otherwise
permitted by this Amendment and (b) Investments which in their aggregate do not
exceed $10,000,000.
19. From and after the Amendment Date, neither the Borrower, the Parent,
nor any of their respective Subsidiaries shall be permitted to enter into any
(a) Permitted Timeshare Disposition or (b) Permitted Sale/Leaseback Disposition.
20. From and after the Amendment Date, Section 6.04(a) is amended by adding
at the
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end of such section the phrase, "provided that (A) the limitations set
--------
forth in the preceding clause (i) shall not apply during the Fiscal Quarters
ended December 31, 2001 through and including September 30, 2002 and (B) except
as provided in the preceding clause (ii), any such cash payments in any Fiscal
Quarter shall not exceed the Quarterly Dividend Limitation for such Fiscal
Quarter". From and after the Amendment Date, neither the Borrower, the Parent,
nor any of their respective Subsidiaries shall be permitted to make any
Restricted Payments under Section 6.04(e). From and after the Amendment Date,
Section 6.04 is amended by adding at the end of such section the following
paragraph:
"The Parent shall not declare any cash payments to shareholders unless the
Parent believes in good faith that the Parent will be in compliance with
the provisions of this Section 6.04 at the time of actual payment of such
cash payments. In any Fiscal Quarter in which a Quarterly Dividend
Limitation exists which is dependent on the EBITDA of a prior Rolling
Period, the Parent shall not pay the cash payments, if any, permitted in
such Fiscal Quarter until the EBITDA for the applicable Rolling Period is
calculated and Borrower has delivered to the Administrative Agent and the
Lenders a certificate dated within five (5) days of the date of the cash
payments to shareholders in form and substance reasonably acceptable to the
Administrative Agent which sets forth the calculations of the Leverage
Ratio as of such date using the EBITDA for the applicable Rolling Period."
21. From and after the Amendment Date, neither the Borrower, the Parent,
nor any of their respective Subsidiaries shall be permitted to make any Capital
Expenditures except for (a) Capital Expenditures for emergency repairs which do
not exceed $15,000,000 in the aggregate, and (b) other Capital Expenditures
which do not in the aggregate for any Fiscal Quarter exceed the limits set forth
below:
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Time Period Other Capital Expenditure Limitation
------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------
From October 1, 2001 through and including $55,000,000
December 31, 2002
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For any Fiscal Quarter thereafter 4.0% of the total revenues of the Parent's and its
Subsidiaries' Hotel Properties during such Fiscal
Quarter
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22. From and after the Amendment Date, the Borrower and its Subsidiaries
shall be entitled to amend in a manner reasonably acceptable to the
Administrative Agent the Approved Master Amendment and any Approved Management
Agreement between the Borrower or one of the Borrower's Subsidiaries and OPCO or
one of OPCO's Subsidiaries to provide that no default shall be called and no
termination right or other remedy shall be exercised by the Borrower or one of
the Borrower's Subsidiaries, as applicable, under such agreement because of a
shortfall in operating revenue or other economic performance by a Hotel Property
during the calendar years 2001 and 2002.
23. From and after the Amendment Date, Section 6.01 of the Credit Agreement
(and the negative pledge covenants contained therein and in any other Credit
Document) are amended
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to provide that neither the Borrower, the Parent, nor any of their respective
Subsidiaries shall be permitted to incur (a) any additional Secured Recourse
Indebtedness, (b) any additional Secured Non-Recourse Indebtedness except where
(i) no Default or Event of Default then exists and (ii) except for any Secured
Non-Recourse Indebtedness incurred in connection with refinancing the existing
Secured Non-Recourse Indebtedness for the Atlanta Doubletree, the Secured
Non-Recourse Indebtedness is not less than 60% and not greater than 70% of the
Market Value of the Hotel Properties securing such Secured Non-Recourse
Indebtedness, (c) any additional Permitted Sale/Leaseback Indebtedness, (d) any
additional Permitted Timeshare Indebtedness. In addition, from and after the
Amendment Date, Section 6.01 of the Credit Agreement is amended by (a) deleting
the word "and" at the end of clause (g), (b) deleting the period at the end of
clause (h) and replacing such period with the phrase "; and", and (c) by adding
a new clause (i) which reads in its entirety as follows:
"(i) on assets of the Parent and its Subsidiaries approved by the
Administrative Agent as additional security for the Obligations which
secure Additional Designated Senior Indebtedness (and to the extent
securing Additional Designated Senior Indebtedness, such Liens may also
secure the Other Existing Senior Indebtedness), provided that such Liens
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(i) also secure the Obligations on an equal and ratable basis with such
Indebtedness, (ii) are not on the existing Collateral or any future capital
stock, limited liability company interests and partnership interests in
Subsidiaries of the Parent that constitutes Collateral, and (iii) are
granted pursuant to documentation (including documentation granting Liens
to secure the Obligations on an equal and ratable basis) reasonably
acceptable to the Administrative Agent and the Borrower."
24. From and after the Amendment Date, notwithstanding the definitions of
"Secured Non-Recourse Indebtedness", "Secured Recourse Indebtedness" and
"Unsecured Indebtedness" to the contrary, any Additional Designated Senior
Indebtedness and Other Existing Senior Indebtedness which is secured by Liens on
assets of the Parent and its Subsidiaries permitted by the provisions of Section
6.01(i) of the Credit Agreement shall be deemed "Unsecured Indebtedness" for
purposes of the financial covenants and other covenants limiting such types of
Indebtedness, notwithstanding the granting of the permitted Liens to secure such
Additional Designated Senior Indebtedness and Other Existing Senior
Indebtedness.
25. From and after the Amendment Date, Section 6.11 of the Credit Agreement
is amended by deleting the period at the end of Section 6.11 and adding the
following provisions at the end of such Section 6.11:
"provided that in connection with the incurrence of Additional Designated
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Senior Indebtedness of the Parent and its Subsidiaries permitted by the
provisions of this Agreement the Parent and its Subsidiaries may enter into
such agreements which (x) are in form and substance acceptable to the
Administrative Agent in its reasonable discretion, (y) would require the
Parent and its Restricted Subsidiaries (as defined in the Indenture for
such Additional Designated Senior Indebtedness) to comply with a financial
covenant that such Persons' total unencumbered assets to total senior
unsecured Indebtedness exceed 150%, provided that the pledging of Liens on
Hotel Properties for the equal and ratable benefit of the Obligations, the
Additional Designated Senior Indebtedness and the Other Existing Senior
Indebtedness would not be prohibited in any way notwithstanding
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such financial covenant, and (z) would require that assets of the Parent
and its Subsidiaries (other than the existing Collateral and any future
capital stock, limited liability company interests and partnership
interests in Subsidiaries of the Parent that constitutes Collateral) which
secure the Obligations or any other Senior Indebtedness of the Parent
(excluding (i) existing Secured Recourse Indebtedness [except for the
Obligations] and Secured Non-Recourse Indebtedness, (ii) any refinancings
thereof, (iii) up to $300,000,000 of other Senior Indebtedness which is
either a commercial mortgaged back securities facility or Secured
Non-Recourse Indebtedness, and (iv) any other new such Indebtedness
permitted under the financial covenants governing such Additional
Designated Senior Indebtedness without the granting of Liens to secure such
Additional Designated Senior Indebtedness) also secure on an equal and
ratable basis such Additional Designated Senior Indebtedness. In connection
with the incurrence of Additional Designated Senior Indebtedness of the
Parent and its Subsidiaries permitted by the provisions of this Agreement,
the Indenture for the Other Existing Senior Indebtedness may be amended in
a manner reasonably acceptable to the Administrative Agent to add covenants
consistent with the provisions of the preceding clauses (y) and (z). The
foregoing provisions shall in no way make effective Sections 4.12 or 4.18
of the Indenture for the Other Existing Senior Indebtedness."
26. From and after the Amendment Date, the form of Compliance Certificate
shall be revised in a manner reasonably acceptable to the Borrower and the
Administrative Agent to include the changes to the Credit Agreement set forth in
this Amendment, including without limitation, the additional financial covenant
and the limitations on Revolving Advances.
27. The Borrower agrees that notwithstanding anything to the contrary
contained in the Credit Agreement, as soon as available, and in any event no
later than the last day of the following month after the end of every fiscal
month during the Amendment Period, the Borrower shall provide the Administrative
Agent (for distribution to the Lenders) liquidity, cash flow and summary
operating information for such fiscal month prepared by the Borrower in a form
reasonably satisfactory to the Administrative Agent.
28. This Amendment is limited as specified and shall not constitute a
modification, acceptance or amendment of any other provision of the Credit
Agreement or any other Credit Document.
29. Each party hereto represents to the other parties hereto that such
party is authorized to execute this Amendment.
30. The Borrower and the Guarantors represent and warrant to the Lenders
and the Agents that:
a. the representations and warranties contained in this Amendment, and
in each Credit Document are true and correct in all material respects as of
the Amendment Date except for changes which individually or in the
aggregate do not constitute a Material Adverse Change;
b. no Default or Event of Default exists as of the Amendment Date
except for
12
any such Default or Event of Default as is expressly waived or eliminated
by this Amendment; and
c. such Persons have no claims, offsets, or counterclaims with respect
to their respective obligations under the Credit Documents as of the
Amendment Date.
31. This Amendment may be executed in multiple counterparts, each of which
shall be an original, but all of which shall constitute but one Amendment.
Facsimile signatures will be deemed to be original signatures.
13
[SIGNATURE PAGE OF FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR
SECURED CREDIT AGREEMENT]
Executed as of the Amendment Date.
BORROWER:
--------
MERISTAR HOSPITALITY OPERATING
PARTNERSHIP, L.P.
By: MeriStar Hospitality Corporation, its general
partner
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
-14-
[SIGNATURE PAGE OF FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR
SECURED CREDIT AGREEMENT]
JOINDER, CONSENT AND RATIFICATION
The Guarantors join in and consent to the terms and provisions of the
attached Amendment and agree that the Environmental Indemnification Agreement
and the Guaranty and Contribution Agreement (the "Guaranty") executed by the
Guarantors each dated August 3, 1998 remain in full force and effect and that
the Guaranteed Obligations (as defined in the Guaranty) include the additional
obligations of the Borrower under the attached Amendment.
This Joinder, Consent and Ratification is dated as of the date of the
Amendment.
GUARANTORS:
MERISTAR HOSPITALITY
CORPORATION, a Maryland corporation
By:_______________________________________
Name:_____________________________________
Title:____________________________________
MERISTAR LP, INC., a Nevada corporation
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[SIGNATURE PAGE OF FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR
SECURED CREDIT AGREEMENT]
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, its general
partner
By:_____________________________
Name:___________________________
Title:__________________________
AGH UPREIT LLC, a Delaware limited liability
company
By: MeriStar Hospitality Corporation, member
By:___________________________________
Name:_________________________________
Title:________________________________
By: MeriStar Hospitality Operating Partnership, L.P.,
member
By: MeriStar Hospitality
Corporation, general partner
By:____________________________________
Name:__________________________________
Title:_________________________________
[SIGNATURE PAGE OF FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR
SECURED CREDIT AGREEMENT]
MERISTAR SANIBEL INN COMPANY, L.L.C.
MERISTAR MARCO ISLAND COMPANY, L.L.C.
MERISTAR SAFETY HARBOR COMPANY, L.L.C.
MERISTAR SUNDIAL BEACH COMPANY, L.L.C.
MERISTAR S.S. PLANTATION COMPANY, L.L.C.
MERISTAR SHIRLEY'S PARCEL COMPANY, L.L.C.
MERISTAR SEASIDE INN COMPANY, L.L.C.
MERISTAR SANIBEL BEACH COMPANY, L.L.C.
MERISTAR PLANTATION SHOPPING CENTER
COMPANY, L.L.C.
MERISTAR SONG OF THE SEA COMPANY, L.L.C.
MERISTAR SANIBEL GOLF COMPANY, L.L.C.,
MERISTAR HOTEL (CALGARY AIRPORT) LLC
MERISTAR HOTEL (SURREY) LLC
MERISTAR HOTEL (BURNABY) LLC
MERISTAR HOTEL (VANCOUVER) LLC,
each of the above being a Delaware limited
liability company
By: MeriStar Hospitality Operating Partnership, L.P.
a Delaware limited partnership, their managing
member
By: MeriStar Hospitality Corporation,
a Maryland corporation, its general partner
By:_________________________________________
Name:_______________________________________
Title:______________________________________
[SIGNATURE PAGE OF FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR
SECURED CREDIT AGREEMENT]
EQUISTAR SOMERSET COMPANY, L.L.C.
EQUISTAR SCHAUMBURG COMPANY, L.L.C.
EQUISTAR BELLEVUE COMPANY, L.L.C.
EQUISTAR CLEVELAND COMPANY, L.L.C.
EQUISTAR ▇▇▇▇▇▇ COMPANY, L.L.C.
EQUISTAR VIRGINIA COMPANY, L.L.C.
EQUISTAR BALLSTON COMPANY, L.L.C.
EQUISTAR ATLANTA GP COMPANY, L.L.C.
EQUISTAR ATLANTA LP COMPANY, L.L.C.
EQUISTAR SALT LAKE COMPANY, L.L.C.
CAPSTAR CHICAGO COMPANY, L.L.C.
CAPSTAR WASHINGTON COMPANY, L.L.C.
CAPSTAR C.S. COMPANY, L.L.C.
CAPSTAR SAN ▇▇▇▇▇ COMPANY, L.L.C.
CAPSTAR ▇▇▇▇▇▇ 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 HARTFORD COMPANY, L.L.C.
CAPSTAR CROSS KEYS COMPANY, L.L.C.
CAPSTAR ▇▇▇▇▇▇ PARK COMPANY, L.L.C.
CAPSTAR COLUMBIA COMPANY, L.L.C.
CAPSTAR OKLAHOMA CITY COMPANY, L.L.C.
CAPSTAR LEXINGTON COMPANY, L.L.C.
CAPSTAR MESA COMPANY, L.L.C.
CAPSTAR MORRISTOWN COMPANY, L.L.C.
CAPSTAR WINDSOR LOCKS COMPANY, L.L.C.
CAPSTAR ▇▇▇▇▇▇▇▇▇ COMPANY, L.L.C.
CAPSTAR LOUISVILLE COMPANY, L.L.C., each of the
above being a Delaware limited liability company
By: MeriStar Hospitality Operating Partnership, a
Delaware limited partnership, member
By: MeriStar Hospitality Corporation, its general
partner
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
[SIGNATURE PAGE OF FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR
SECURED CREDIT AGREEMENT]
CAPSTAR HOUSTON SW PARTNERS, L.P.
CAPSTAR MOCKINGBIRD PARTNERS, L.P.
CAPSTAR DALLAS PARTNERS, L.P., each of the above being
a Delaware limited partnership
CAPSTAR MEDALLION DALLAS PARTNERS, L.P.
CAPSTAR MEDALLION AUSTIN PARTNERS, L.P.
CAPSTAR MEDALLION HOUSTON PARTNERS, L.P.
CAPSTAR MEDALLION MIDLAND PARTNERS, L.P., each of the
above being a Delaware limited partnership
MERISTAR SANTA ▇▇▇▇▇▇▇, L.P.
MERISTAR CATHEDRAL CITY, L.P.
MERISTAR LAJV, L.P., each of the above being a
Delaware limited partnership
By: MeriStar Hospitality Operating Partnership, a
Delaware limited partnership, general partner
By: MeriStar Hospitality Corporation, its
general partner
By:_______________________________________
Name:_____________________________________
Title:____________________________________
[SIGNATURE PAGE OF FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR
SECURED CREDIT AGREEMENT]
HOTEL COLUMBIA COMPANY, a Maryland general
partnership
By: CapStar Columbia Company, a Delaware
limited liability company, partner
By: MeriStar Hospitality Operating
Partnership, a Delaware limited
partnership, member
By: MeriStar Hospitality Corporation,
its general partner
By:______________________________
Name:____________________________
Title:___________________________
By: CapStar ▇▇▇▇▇▇ Park Company, L.L.C., a
Delaware limited liability company, partner
By: MeriStar Hospitality Operating
Partnership, a Delaware limited
partnership, member
By: MeriStar Hospitality Corporation,
its general partner
By:______________________________
Name:____________________________
Title:___________________________
[SIGNATURE PAGE OF FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR
SECURED CREDIT AGREEMENT]
BCHI ACQUISITION, LLC,
a Delaware limited liability company
By: AGH UPREIT LLC, member
By: MeriStar Hospitality
Corporation, member
By:_________________________________
Name:_______________________________
Title:______________________________
By: MeriStar Hospitality Operating
Partnership, L.P., member
By: MeriStar Hospitality Corporation,
general partner
By:_________________________________
Name:_______________________________
Title:______________________________
By: MeriStar Hospitality Operating
Partnership, L.P., member
By: MeriStar Hospitality Corporation,
general partner
By:_________________________________
Name:_______________________________
Title:______________________________
[SIGNATURE PAGE OF FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR
SECURED CREDIT AGREEMENT]
3100 GLENDALE JOINT VENTURE,
an Ohio general partnership
By: AGH UPREIT LLC, partner
By: MeriStar Hospitality
Corporation, member
By:________________________________
Name:______________________________
Title:_____________________________
By: MeriStar Hospitality Operating Partnership,
L.P., member
By: MeriStar Hospitality
Corporation, general partner
By:________________________________________
Name:______________________________________
Title:_____________________________________
By: MeriStar Hospitality Operating Partnership,
L.P., partner
By: MeriStar Hospitality
Corporation, general partner
By:________________________________________
Name:______________________________________
Title:_____________________________________
[SIGNATURE PAGE OF FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR
SECURED CREDIT AGREEMENT]
MT. ARLINGTON NEW JERSEY, LLC,
a Delaware limited partnership
MDV LIMITED PARTNERSHIP,
a Texas limited partnership
183 HOTEL ASSOCIATES, LTD.,
a Texas limited partnership
455 MEADOWLANDS ASSOCIATES, LTD.
a Texas limited partnership
MADISON WASHINGTON ASSOCIATES
a Delaware limited partnership
LAKE BUENA VISTA PARTNERS, LTD.,
a Florida limited partnership
COCOA BEACH HOTELS, LTD.,
a Florida limited partnership
DURHAM I-85 LIMITED PARTNERSHIP,
a Delaware limited partnership
By: AGH UPREIT LLC, general partner
By: MeriStar Hospitality Corporation,
member
By:__________________________________
Name:________________________________
Title:_______________________________
By: MeriStar Hospitality Operating
Partnership, L.P., member
By: MeriStar Hospitality
Corporation, general partner
By:_____________________________
Name:___________________________
Title:__________________________
[SIGNATURE PAGE OF FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR
SECURED CREDIT AGREEMENT]
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., member
By: MeriStar Hospitality
Corporation, general partner
By:__________________________________
Name:________________________________
Title:_______________________________
AGH 75 ARLINGTON HEIGHTS LLC, a Delaware limited
liability company
By: MeriStar Hospitality Operating Partnership, a
Delaware limited partnership, member
By: MeriStar Hospitality Corporation, its
general partner
By:______________________________________
Name:____________________________________
Title:___________________________________
AGH PSS I, INC., a Delaware corporation
By:______________________________________
Name:____________________________________
Title:___________________________________
MERISTAR HOTEL LESSEE, INC., a Delaware corporation
By:______________________________________
Name:____________________________________
Title:___________________________________
[SIGNATURE PAGE OF FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR
SECURED CREDIT AGREEMENT]
SOCIETE GENERALE, SOUTHWEST
AGENCY, individually and as Arranger
and Administrative Agent
By:_________________________________________________
Name:_______________________________________________
Title:______________________________________________
[SIGNATURE PAGE OF FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR
SECURED CREDIT AGREEMENT]
BANKERS TRUST COMPANY, individually and as Arranger
and Syndication Agent
By:_________________________________________________
Name:_______________________________________________
Title:______________________________________________
[SIGNATURE PAGE OF FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR
SECURED CREDIT AGREEMENT]
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, individually and as
Documentation Agent
By:______________________________________________
Name:____________________________________________
Title:___________________________________________
[SIGNATURE PAGE OF FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR
SECURED CREDIT AGREEMENT]
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
individually and as Arranger and
Documentation Agent
By:_________________________________________________
Name:_______________________________________________
Title:______________________________________________
[SIGNATURE PAGE OF FOURTH AMENDMENT TO SECOND AMENDED AND RESTATED SENIOR
SECURED CREDIT AGREEMENT]
LENDER:
________________________________________________
By:_________________________________________________
Name:_______________________________________________
Title:______________________________________________
