EX-4 2 ex4-1form8k_050206.txt EXHIBIT 4.1 EXHIBIT 4.1 ----------- EXECUTION COPY FOURTH SUPPLEMENTAL INDENTURE "Supplemental Indenture", dated as of May 2, 2006, among MeriStar Hospitality Operating Partnership, L.P., a Delaware limited partnership (the "Company"), MeriStar Hospitality Finance Corp., a Delaware corporation ("MeriStar Finance," and, together with the Company, the "Issuers"), MeriStar Hospitality Corporation, a Maryland corporation ("MeriStar"), Alcor Acquisition LLC, a Delaware limited liability company ("Successor"), the subsidiary guarantors parties hereto (the "Subsidiary Guarantors"), and U.S. Bank Trust National Association, as trustee (the "Trustee"). WHEREAS, the Issuers, MeriStar, the Subsidiary Guarantors and the Trustee have heretofore executed and delivered a certain Indenture, dated as of January 26, 2001, as supplemented by the First Supplemental Indenture dated as of December 19, 2001, the Second Supplemental Indenture dated as of February 7, 2002 and the Third Supplemental Indenture dated as of April 13, 2006 (as supplemented, the "Indenture"; capitalized terms not otherwise defined herein shall have the meanings set forth in the Indenture), and the Issuers have issued pursuant to the Indenture their 9% Senior Notes due 2008 (the "Notes"), which are guaranteed by MeriStar and the Subsidiary Guarantors (together, the "Guarantors"); WHEREAS, the Company, MeriStar, Successor and certain other entities have entered into an Agreement and Plan of Merger, dated as of February 20, 2006 (the "Merger Agreement"), which contemplates the execution and filing on May 2, 2006 of the Articles of Merger with the Maryland State Department of Assessments and Taxation and a Certificate of Merger with the Secretary of State of the State of Delaware providing for the merger of MeriStar with and into Successor (the "Merger"), with Successor continuing its existence under Delaware law; WHEREAS, Section 5.1 of the Indenture provides, among other things, that MeriStar shall not be prevented from merging with or into another corporation, Person or entity PROVIDED that, among other things, such corporation, Person or entity into which MeriStar shall have merged shall assume upon any such merger, all of the obligations of MeriStar under its Guarantee of the Notes and the Indenture pursuant to a supplemental indenture; WHEREAS, Section 9.1 of the Indenture provides, among other things, that, the Issuers, any Guarantors and the Trustee may amend or supplement the Indenture and any Guarantee with respect to the Notes, without the consent of any Holder, for one or more of the following purposes: (i) to provide for the assumption of MeriStar's obligations under its Guarantee of the Notes in the case of a merger involving MeriStar pursuant to Article 5 of the Indenture; and (ii) to make any change that does not adversely affect the legal rights of Holders under the Indenture; WHEREAS, each of the Issuers, MeriStar, the Subsidiary Guarantors and Successor have been authorized by resolutions of their General Partner, Board of Directors or Members, as the case may be, to enter into this Supplemental Indenture; and WHEREAS, all acts, conditions, proceedings and requirements necessary to make this Supplemental Indenture a valid, binding and legal agreement enforceable in accordance with its terms for the purposes expressed herein, in accordance with its terms, have been duly done and performed. NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, and for other good and valuable consideration the receipt of which is hereby acknowledged, the Issuers, MeriStar, the Subsidiary Guarantors, Successor and the Trustee hereby agree as follows: ARTICLE I REPRESENTATIONS OF MERISTAR AND SUCCESSOR 1.1. MeriStar represents and warrants to the Trustee as follows: (a) MeriStar is a Maryland corporation duly organized, validly existing and in good standing under the laws of the State of Maryland. (b) The execution, delivery and performance by it of this Supplemental Indenture have been authorized and approved by all necessary corporate action on its part. 1.2. Successor represents and warrants to the Trustee as follows: (a) Successor is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. (b) The execution, delivery and performance by it of this Supplemental Indenture have been authorized and approved by all necessary limited liability company action on its part. 1.3. Each of the Subsidiary Guarantors represents and warrants to the Trustee as follows: (a) It is duly organized, validly existing and in good standing under its jurisdiction of organization. (b) The execution, delivery and performance by it of this Supplemental Indenture have been authorized and approved by all necessary company or partnership action, as applicable, on its part. 1.4. Each of MeriStar and Successor represents and warrants to the Trustee that upon the later of the filing and acceptance for record by the Maryland State Department of Assessments and Taxation and the filing of the Certificate of Merger with the Secretary of State of the State of Delaware or at such other time thereafter as is provided therein (the "Effective Time"), the Merger will be effective in accordance with the terms of the Merger Agreement and applicable law. ARTICLE II ASSUMPTION AND AGREEMENTS 2.1. In accordance with Section 5.1 of the Indenture, Successor hereby expressly assumes all of the obligations of MeriStar under its Guarantee of the Notes and the Indenture. 2.2. Pursuant to Section 5.2 of the Indenture, Successor shall succeed to, and be substituted for, and may exercise every right and power of, MeriStar under the Indenture and its Guarantee of the Notes with the same effect as if Successor had been named as "the Parent" in the Indenture and the Notes; and thereafter MeriStar shall be relieved of all further obligations and covenants under the Indenture and its Guarantee of the Notes. ARTICLE III AMENDMENTS The references in: 3.1. The preambles to the Indenture to "MeriStar Hospitality Corporation, a Maryland corporation (the "Parent")" are hereby amended to read "Alcor Acquisition LLC, a Delaware limited liability company ("Alcor")"; 3.2. Section 11.2 to the addresses for notices for each of the Issuers and MeriStar are hereby amended to read: "If to any Issuer: MeriStar Hospitality Operating Partnership, L.P. c/o Blackstone Real Estate Partners V L.P. 345 Park Avenue New York, NY 10154 Attention: Kenneth A. Caplan Telecopier No.: (212) 583-5202 With a copy to: Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, NY 10017 Attention: Brian M. Stadler, Esq. Andrew R. Keller, Esq. Telecopier No.: (212) 455-2502" "If to Alcor: Alcor Acquisition LLC c/o Blackstone Real Estate Partners V L.P. 345 Park Avenue New York, NY 10154 Attention: Kenneth A. Caplan Telecopier No.: (212) 583-5202 With a copy to: Simpson Thacher & Bartlett LLP 425 Lexington Avenue New York, NY 10017 Attention: Brian M. Stadler, Esq. Andrew R. Keller, Esq. Telecopier No.: (212) 455-2502" 3.3. Each other reference in the Indenture and the Notes to "the Parent" shall be amended and deemed to be a reference to "Alcor". 3.4. Except as amended hereby, the Indenture, the Notes and the Guarantees of the Notes are in all respects ratified and confirmed and all the terms thereof shall remain in full force and effect and the Indenture, as so amended, shall be read, taken and construed as one and the same instrument. ARTICLE IV MISCELLANEOUS 4.1. This Supplemental Indenture shall become effective as of the Effective Time. 4.2. The internal law of the State of New York shall govern and be used to construe this Supplemental Indenture. 4.3. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. 4.4. The Article headings herein are for convenience only and shall not affect the construction hereof. 4.5. If any provision of this Supplemental Indenture limits, qualifies or conflicts with any provision of the Trust Indenture Act that may not be so limited, qualified or conflicted with, such provision of such Act shall control. If any provision of this Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the provision of such Act shall be deemed to apply to the Indenture as so modified or to be excluded by this Supplemental Indenture, as the case may be. 4.6. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 4.7. Nothing in this Supplemental Indenture, the Indenture or the Notes, express or implied, shall give to any person, other than the parties hereto and thereto and their successors hereunder and thereunder and the Holders of Notes, any benefit of any legal or equitable right, remedy or claim under the Indenture, this Supplemental Indenture or the Notes. IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written. ISSUERS: MERISTAR HOSPITALITY OPERATING PARTNERSHIP, L.P., a Delaware limited partnership By: MeriStar Hospitality Corporation, as general partner By /s/ Bruce G. Wiles ---------------------------------- Name: Bruce G. Wiles Title: President MERISTAR HOSPITALITY FINANCE CORP. a Delaware corporation By /s/ Bruce G. Wiles ---------------------------------- Name: Bruce G. Wiles Title: President PARENT: MERISTAR HOSPITALITY CORPORATION, a Maryland corporation By /s/ Bruce G. Wiles ---------------------------------- Name: Bruce G. Wiles Title: President SUCCESSOR: ALCOR ACQUISITION LLC, a Delaware limited liability company By: /s/ Kenneth A. Caplan ---------------------------------- Name: Kenneth A. Caplan Title: Managing Director and Vice President SUBSIDIARY GUARANTORS: MERISTAR LP, L.L.C., a Nevada limited liability company By /s/ Bruce G. Wiles ---------------------------------- Name: Bruce G. Wiles Title: President MERISTAR HOTEL LESSEE, INC., a Delaware corporation By /s/ Bruce G. Wiles ---------------------------------- Name: Bruce G. Wiles Title: President AGH PSS I, INC., a Delaware corporation By /s/ Bruce G. Wiles ---------------------------------- Name: Bruce G. Wiles Title: President MERISTAR ACQUISITION COMPANY, L.L.C., a Delaware limited liability company By: MeriStar Hospitality Operating Partnership, L.P., a Delaware limited partnership, member By: MeriStar Hospitality Corporation, a Maryland corporation, general partner By /s/ Bruce G. Wiles ------------------------ Name: Bruce G. Wiles Title: President AGH UPREIT LLC, a Delaware limited liability company By: MeriStar Hospitality Operating Partnership, L.P., a Delaware limited partnership, member By: MeriStar Hospitality Corporation, a Maryland corporation, general partner By /s/ Bruce G. Wiles ------------------------ Name: Bruce G. Wiles Title: President MERISTAR SUB 4C, L.P. MERISTAR SUB 4F, L.P. MERISTAR SUB 4E, L.P. MERISTAR SUB 4H, L.P. MERISTAR SUB 4B, L.P. MERISTAR SUB 1D, L.P. MERISTAR SUB 1C, L.P.. each a Delaware limited partnership By: MeriStar Hospitality Operating Partnership, L.P., a Delaware limited partnership, member By: MeriStar Hospitality Corporation, a Maryland corporation, general partner By /s/ Bruce G. Wiles ------------------------ Name: Bruce G. Wiles Title: President MERISTAR SUB 7H, L.L.C. MERISTAR SUB 1B, L.L.C. MERISTAR SUB 7G, L.L.C. MERISTAR SUB 6J, L.L.C. MERISTAR SUB 6K, L.L.C. MERISTAR SUB 6I, L.L.C. MERISTAR SUB 3D, L.L.C. MERISTAR SUB 5R, L.L.C. MERISTAR SUB 5A, L.L.C. MERISTAR SUB 6G, L.L.C. MERISTAR SUB 3A, L.L.C. MERISTAR SUB 1A, L.L.C. MERISTAR SUB 5E, L.L.C. MERISTAR SUB 5D, L.L.C. MERISTAR SUB 4J, L.L.C. CAPSTAR CHERRY HILL COMPANY, L.L.C. MERISTAR SUB 6C, L.L.C. MERISTAR SUB 4D, L.L.C. MERISTAR SUB 6E, L.L.C. MERISTAR SUB 6D, L.L.C. MERISTAR SUB 7E, L.L.C. MERISTAR SUB 3C, L.L.C. MERISTAR SUB 7F, L.L.C. MERISTAR SUB 7D, L.L.C. MERISTAR SUB 8E, L.L.C. MERISTAR SUB 8C, L.L.C. MERISTAR SUB 6B, L.L.C. MERISTAR SUB 6A, L.L.C. MERISTAR SUB 6F, L.L.C. MERISTAR SUB 8B, L.L.C. MERISTAR SUB 5K, LLC MERISTAR SUB 5H, LLC MERISTAR SUB 2A, LLC MERISTAR SUB 8G, LLC, each a Delaware limited liability Company By: MeriStar Hospitality Operating Partnership, L.P., a Delaware limited partnership, member By: MeriStar Hospitality Corporation, a Maryland corporation, general partner By /s/ Bruce G. Wiles ------------------------ Name: Bruce G. Wiles Title: President MERISTAR SUB 6L, LLC, a Delaware limited liability company By: AGH UPREIT LLC, a Delaware limited liability company, member By: MeriStar Hospitality Operating Partnership, L.P., a Delaware limited partnership, member By: MeriStar Hospitality Corporation, a Maryland corporation, member By /s/ Bruce G. Wiles ------------------------ Name: Bruce G. Wiles Title: President MeriStar Hospitality Operating Partnership, L.P., a Delaware limited partnership, member By: MeriStar Hospitality Corporation, a Maryland corporation, general partner By: /s/ Bruce G. Wiles ------------------------------ Name: Bruce G. Wiles Title: President MDV LIMITED PARTNERSHIP, a Texas limited partnership MERISTAR SUB 4A, LTD., a Texas limited partnership MERISTAR SUB 5G, LIMITED PARTNERSHIP, a Florida limited partnership MERISTAR SUB 6H, L.P., a Delaware limited partnership By: AGH UPREIT LLC, a Delaware limited liability company, their general partner By: MeriStar Hospitality Operating Partnership, L.P., a Delaware limited partnership, member By: MeriStar Hospitality Corporation, a Maryland corporation, general partner By /s/ Bruce G. Wiles ------------------------ Name: Bruce G. Wiles Title: President MERISTAR SUB 6M COMPANY, a Maryland general partnership By: MeriStar Sub 6A, L.L.C., a Delaware limited liability company, partner By: MeriStar Hospitality Operating Partnership, L.P., a Delaware limited partnership, member By: MeriStar Hospitality Corporation, a Maryland corporation, general partner By /s/ Bruce G. Wiles ------------------------ Name: Bruce G. Wiles Title: President MeriStar Sub 6F, L.L.C., a Delaware limited liability company, partner By: MeriStar Hospitality Operating Partnership, L.P., a Delaware limited partnership, member By: MeriStar Hospitality Corporation, a Maryland corporation, general partner By /s/ Bruce G. Wiles ------------------------ Name: Bruce G. Wiles Title: President MERISTAR SUB 7A JOINT VENTURE, an Ohio general partnership By: AGH UPREIT LLC, a Delaware limited liability company, partner By: MeriStar Hospitality Operating Partnership, L.P., a Delaware limited partnership, member By: MeriStar Hospitality Corporation, a Maryland corporation, member By /s/ Bruce G. Wiles ------------------------ Name: Bruce G. Wiles Title: President MeriStar Hospitality Operating Partnership, L.P., a Delaware limited partnership, member By: MeriStar Hospitality Corporation, a Maryland corporation, general partner By: /s/ Bruce G. Wiles ----------------------------- Name: Bruce G. Wiles Title: President MERISTAR SUB 8F, LTD., a Texas general partnership By: MeriStar Sub 8G, LLC a Delaware limited liability company, its general partner By: MeriStar Hospitality Operating Partnership, L.P., a Delaware limited partnership, its managing member By: MeriStar Hospitality Corporation, a Maryland corporation, its general partner By /s/ Bruce G. Wiles ------------------------ Name: Bruce G. Wiles Title: President MERISTAR HOSPITALITY FINANCE CORP. II, a Delaware corporation By: /s/ Bruce G. Wiles ---------------------------------- Name: Bruce G. Wiles Title: President MERISTAR HOSPITALITY FINANCE CORP. III, a Delaware corporation By: /s/ Bruce G. Wiles ---------------------------------- Name: Bruce G. Wiles Title: President Effective as to the following Guarantor as of the effective time of the merger of MeriStar Sub 5G, Limited Partnership into MeriStar Sub 5G, LP: MERISTAR SUB 5G, LP, a Delaware limited partnership By: ALCOR GP LLC, a Delaware limited liability company, general partner By: /s/ Kenneth A. Caplan ---------------------------------- Name: Kenneth A. Caplan Title: Managing Director and Vice President U.S. BANK TRUST NATIONAL ASSOCIATION, as Trustee By: /s/ Angelita Pena ---------------------------------- Name: Angelita Pena Title: Assistant Vice President