EXHIBIT 10.4
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THIRD AMENDMENT TO REVOLVING CREDIT AGREEMENT
Third Amendment to Revolving Credit Agreement (this "Amendment") dated as of
July 31, 2002 (the "Amendment Date"), between Meristar H & R Operating Company,
L.P. ("Borrower") and Meristar Hospitality Operating Partnership, L.P.
("Lender").
RECITALS
A. Lender and Borrower are parties to that certain Revolving Credit
Agreement dated as of August 3, 1998, as amended by Amendment to Revolving
Credit Agreement dated as of February 29, 2000, as further amended by Second
Amendment to Revolving Credit Agreement dated as of January 28, 2002 (as
amended, the "Credit Agreement"). Any defined terms used in this Amendment and
not otherwise defined herein shall have the meaning given to them in the Credit
Agreement.
B. Meristar Hotels & Resorts, Inc. and Interstate Hotels Corporation
("IHC") entered into that certain Agreement and Plan of Merger, dated as of May
1, 2002, and that certain Amendment No. 1 to Agreement and Plan of Merger, dated
as of June 3, 2002 (as so amended, the "Merger Plan").
C. Contemporaneously with the execution of this Amendment, Borrower;
Societe Generale, as Administrative Agent; XX Xxxxx Securities Corporation, as
Joint Lead Arranger and Book Runner; Solomon Xxxxx Xxxxxx, Inc. as Joint Lead
Arranger, Book Runner and Co-Syndication Agent; Credit Lyonnais New York Branch,
as Documentation Agent; Xxxxxx Brothers, Inc., as Joint Lead Arranger, Book
Runner and Co-Syndication Agent; and other lenders (collectively, the "Senior
Lenders") are entering into that certain Senior Secured Credit Agreement dated
as of July 31, 2002 (the "Senior Credit Agreement").
D. Borrower has requested Lender's consent to the Merger Plan and the
transactions contemplated thereby and Lender is willing to consent to the Merger
Plan and such transactions if Borrower enters into this Amendment.
E. Borrower and Lender desire to amend the Credit Agreement in certain
respects.
F. Borrower and Lender desire to amend, restate and consolidate all
outstanding promissory notes by Borrower in favor of Lender pursuant to the
Revolving Credit Agreement including, but not limited to, that certain Term Note
dated January 1, 2002 in the amount of $13,069,000.
NOW, THEREFORE, Borrower and Lender agree as follows:
1. DEFINITIONS. Section 1.01 of the Credit Agreement is hereby
amended by (i) amending the definitions of: "Commitment," "Financial Institution
Senior Indebtedness," "Guarantor," "Maturity Date," and "Parent," as set forth
below and (ii) adding the defined term: "New Term Note".
"Financial Institution Senior Indebtedness" means the
Indebtedness evidenced by the Senior Credit Agreement and any
modification, extension, refinancing, or replacement thereof.
"Guarantor" shall mean Parent and each Subsidiary that from
time to time guarantees the Senior Credit Facility.
"Maturity Date" means the fifth (5th) anniversary of the
Amendment Date.
"New Term Note" means the Amended and Restated Promissory Note
dated as of the date hereof by the Borrower payable to the order of
Lender in the amount of $56,069,000, the form of which is attached
hereto as EXHIBIT B. Any reference to "Note" or "Term Note" in the
Credit Agreement shall be amended to refer to the New Term Note.
"Parent" means Interstate Hotels & Resorts, Inc. (fka Meristar
Hotels & Resorts, Inc.), a Delaware corporation, the surviving entity
of the merger pursuant to the Merger Plan.
2. PRINCIPAL BALANCE. After application of the payment required
pursuant to Section 6(a) of this Amendment, the outstanding principle balance
under the Credit Agreement is $56,069,000.
3. MATURITY DATE. The Maturity Date is hereby extended to the
date which is the fifth (5th) anniversary of the Amendment Date.
4. REPRESENTATIONS AND WARRANTIES. Borrower hereby ratifies and
confirms that the representations and warranties contained in Article IV of the
Credit Agreement are true and correct in all material respects as of the date
hereof except as may be disclosed in the filings of Parent with the Securities
and Exchange Commission prior to the Amendment Date.
5. AMENDMENT TO ARTICLE VII. Article VII of the Credit Agreement
is hereby deleted in its entirety and replaced with the following:
ARTICLE VII. FINANCIAL COVENANTS.
So long as any Note or any amount under any Credit Document
shall remain unpaid, unless the Lender shall otherwise consent
in writing, the Borrower agrees to comply and to cause the
Parent and the Parent's Subsidiaries to comply with the
following covenants:
Section 7.01. DEFINED TERMS. All defined terms used
in the covenants contained in subsections 7.02 - 7.05
of this Article VII shall have the respective
meanings set forth in the Senior Credit Agreement.
Section 7.02 INTEREST COVERAGE RATIO. The Parent
shall maintain at the end of each Rolling Period (a)
for the Rolling Periods ending on June 30, 2002
through September 30, 2002 an Interest Coverage Ratio
of not less than
1.75 to 1.00 and (b) for any Rolling Period ending on
December 31, 2002 through September 30, 2003, an
Interest Coverage Ratio of not less than 2.25 to
1.00, and (c) for any Rolling Period thereafter, an
Interest and Coverage Ratio of not less than 2.50 to
1.00.
Section 7.03 SENIOR INTEREST COVERAGE RATIO. The
Parent shall maintain at the end of each Rolling
Period (a) for the Rolling Period ending on June 30,
2002, a Senior Interest Coverage Ratio of not less
than 2.75 to 1.00, (b) for any Rolling Period ending
on September 30, 2002, a Senior Interest Coverage
Ratio of not less than 3.00 to 1.00 and (c) for any
Rolling Period thereafter, a Senior Interest Coverage
Ratio of not less than 3.50 to 1.00.
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 the chart for that
period.
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BEGINNING DATE OF ENDING DATE OF APPLICABLE LEVERAGE RATIO
APPLICABLE PERIOD PERIOD
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Amendment Date The day immediately prior to the 5.50 to 1.00
Status Reset Date (as defined in
the Senior Credit Agreement)
during the Fiscal Quarter
commencing October 1, 2002
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The Status Reset Date during the The day immediately prior to the 5.00 to 1.00
Fiscal Quarter commencing October Status Reset Date during the
1, 2002 Fiscal Quarter commencing January
1, 2003
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The Status Reset Date during the The day immediately prior to the 4.75 to 1.00
Fiscal Quarter commencing January Status Reset Date during the
1, 2003 Fiscal Quarter commencing July 1,
2003
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The Status Reset Date during the The day immediately prior to the 4.25 to 1.00
Fiscal Quarter commencing July 1, Status Reset Date during the
2003 Fiscal Quarter commencing October
1, 2003
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The Status Reset Date during the The day immediately prior to the 4.00 to 1.00
Fiscal Quarter commencing October Status Reset Date during the
1, 2003 Fiscal Quarter commencing January
1, 2004
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The Status Reset Date during the No ending date 3.50 to 1.00
Fiscal Quarter commencing January
1, 2004
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Section 7.05 SENIOR LEVERAGE RATIO. The Parent shall
not on any date permit the Total Senior Ratio to
exceed during the applicable period indicated in the
following chart the amount set forth in such chart
for such period:
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BEGINNING DATE OF ENDING DATE OF APPLICABLE SENIOR LEVERAGE
APPLICABLE PERIOD PERIOD RATIO
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Closing Date The day immediately prior to the 4.00 to 1.00
Status Reset Date during the
Fiscal Quarter commencing January
1, 2003
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The Status Reset Date during the The day immediately prior to the 3.25 to 1.00
Fiscal Quarter commencing January Status Reset Date during the
1, 2003 Fiscal Quarter commencing January
1, 2004
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The Status Reset Date during the No ending date 2.50 to 1.00
Fiscal Quarter commencing January
1, 2004
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6. CONDITIONS PRECEDENT TO THIS AMENDMENT. This Amendment is
subject to fulfillment, on or before the Amendment Date, in each case in form
and substance satisfactory to Lender and its legal counsel in their sole and
absolute discretion, of the following:
(a) Borrower shall make a principal payment to the Lender
on the Amendment Date in the amount of Three Million Dollars
($3,000,000);
(b) Borrower shall deliver to Lender the duly executed
original New Term Note;
(c) Guarantor shall deliver to Lender the duly executed
Amended and Restated Guaranty dated as of the date hereof and attached
hereto as EXHIBIT C executed by Guarantors in favor of Lender securing
the obligations of Borrower under the Credit Agreement;
(d) Borrower shall deliver or cause to be delivered duly
executed complete copies of the Senior Credit Agreement and all
documents and instruments being executed in connection with the Senior
Credit Agreement;
(e) The outstanding principal balance of the indebtedness
under the Credit Agreement (after giving effect to the payment required
pursuant to Section 6(a) of this Amendment) shall not exceed the
"Maximum OPCO Loan Amount" (as such term is defined in the Second
Amended and Restated Senior Secured Credit Agreement, dated as of
August 3, 1998, among Lender, as borrower, Societe Generale, Southwest
Agency, as arranger and administrative agent, and the other lenders
named therein, as amended from time) and Borrower's Responsible Officer
shall have certified to such effect in writing to Lender;
(f) There shall have been no further amendment to the
Merger Plan which has not been approved by Lender;
(g) IHC shall have delivered to Lender a certificate of
no material adverse effect stating that, since May 1, 2002, there has
been no change in or effect on the business, assets, properties,
results of operations or financial condition of IHC or any subsidiary
of IHC that is, or is reasonably likely to be, materially adverse to
IHC and its subsidiaries, taken as a whole, or that could reasonably be
expected to materially impair the ability of IHC to perform its
obligations under the Merger Plan or to consummate the terms of, and
other transactions contemplated by, the Merger Plan; and
(h) Lender shall have received from counsel to Borrower
an opinion as to the due execution, delivery and enforceability of this
Amendment and all other Credit Documents executed by Borrower or Parent
in connection herewith. Such opinion shall be addressed to Lender,
dated as of the Amendment Date and in form and substance reasonably
satisfactory to Lender and its counsel.
7. CONSENT TO MERGER. Upon satisfaction of each of the conditions
precedent above, Lender hereby consents to the Merger Plan and the transactions
contemplated thereby and agrees to waive the applicability of Section 2.06(c)
and Section 9.01(j) of the Credit Agreement with respect to the Change In
Control and the other transactions contemplated by the Merger Plan. Nothing
contained herein shall constitute a consent or waiver with respect to any other
Change In Control.
8. NO FURTHER ADVANCES. Notwithstanding anything to the contrary
contained in the Credit Agreement (i) the Commitment is reduced to zero, all
funds have been advanced under the Credit Agreement and Lender has no
obligations to fund any additional Advances, and (ii) any amount repaid or
prepaid may not be reborrowed or readvanced under the Credit Agreement, it
being the intent of the parties that the loans made pursuant to the Credit
Agreement shall be treated as a term loan.
9. FEES. Borrower agrees to pay on demand all out-of-pocket costs
and expenses of Lender in connection with the preparation, execution, delivery,
due diligence, administration, modification and amendment of this Amendment,
including, without limitation, all reasonable out-of-pocket costs and expenses,
if any, of Lender in connection with the enforcement (whether through
negotiation, legal proceedings or otherwise) of this Amendment, the Credit
Agreement and the other Credit Documents.
10. RATIFICATION. As amended hereby, the Credit Agreement is
ratified and remains in full force and effect.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first written above.
BORROWER:
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Meristar H & R Operating Company, L.P.
By: Interstate Hotels & Resorts, Inc., its
general partner
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
LENDER:
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Meristar Hospitality Operating Partnership, L.P.
By: Meristar Hospitality Corporation, its general
partner
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Senior Vice President and
General Counsel
EXHIBIT B
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Form of New Term Note
AMENDED AND RESTATED PROMISSORY NOTE
Amount: $56,069,000 Date: July 31, 2002
FOR VALUE RECEIVED, MERISTAR H&R OPERATING COMPANY, L.P. ("Maker"), a
Delaware limited partnership, hereby promises to pay to MERISTAR HOSPITALITY
OPERATING PARTNERSHIP, L.P. or order ("Payee"), at 0000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxxx, X.X. 00000, or at such other place as Payee shall from time to time
designate, the principal amount of $56,069,000 together with interest on the
unpaid principal balance hereof from time to time at the "Interest Rate" (as
hereinafter defined).
1. Definitions.
(a) "Revolving Credit Agreement" shall mean that certain Revolving
Credit Agreement, dated as of August 3, 1998, as amended by Amendment to
Revolving Credit Agreement, dated as of February 29, 2000, Second Amendment to
Revolving Credit Agreement dated as of January 28, 2002, and Third Amendment to
Revolving Credit Agreement dated July 31, 2002.
(b) "Senior Credit Agreement" shall mean that certain Senior
Secured Credit Agreement, dated as of July 31, 2002, among Maker, Societe
Generale, XX Xxxxx Securities Corporation, Credit Lyonnais New York Branch,
Xxxxxxx Xxxxx Barney, Inc., Xxxxxx Brothers, Inc., and the other lenders.
(c) "Interest Rate" shall mean a per annum rate equal to the
lessor of (a) sum of (i) "LIBOR" (as defined in the Revolving Credit Agreement)
determined as of the first day of each month during the term of this Note for a
one-month period plus (ii) 6.50% and (b) the "Maximum Rate" (as defined in the
Revolving Credit Agreement).
(d) "Maturity Date" shall mean the Maturity Date as defined in the
Revolving Credit Agreement.
2. Payments. (a) Subject to the provisions of Section 2(c) of
this Note, Maker shall pay interest to Payee on the outstanding principal amount
hereof at the Interest Rate in arrears on the last day of each calendar quarter
commencing September 30, 2002 until the Maturity Date.
(b) Maker shall repay the outstanding principal amount of this
Note together with all accrued and unpaid interest thereon on the Maturity Date.
(c) Maker and Payee acknowledge that if Maker is prevented from
paying any interest to Payee by virtue of the provisions of the Senior Credit
Agreement such unpaid interest shall accrue and be payable on the Maturity Date
or such earlier date on which Maker may be permitted to pay the same pursuant to
such provisions.
3. Prepayment. This Note and the indebtedness hereby evidenced
may be prepaid, in whole or in part, together with accrued and unpaid interest
thereon at the election of Maker without payment or premium or penalty, upon ten
(10) days prior written notice to Payee.
4. Default Acceleration. (a) An "Event of Default" shall occur
under this Note if (i) Maker shall fail to make any payment of interest when due
and such failure continues for a period of ten (10) days; (ii) Maker shall fail
to pay the principal amount of this Note when due; or (iii) any "Event of
Default" shall occur under the Revolving Credit Agreement, as it may be amended
from time to time after the date hereof.
(b) Upon the occurrence and during the continuance of any Event of
Default, Payee shall have the right upon written notice to the Maker to
accelerate the repayment of this Note and the indebtedness hereby evidenced.
5. Default Rate. Upon the occurrence and during the continuance
of any Event of Default, the unpaid principal balance of this Note shall bear
interest at the lesser of (a) the Interest Rate plus 3% per annum and (b) the
Maximum Rate.
6. Nature of Indebtedness. The indebtedness evidenced by this
Note amends, restates and consolidates all outstanding promissory notes by Maker
in favor of Lender pursuant to the Revolving Credit Agreement including, but not
limited to, all Notes issued pursuant to the Revolving Credit Agreement and that
certain Term Note dated January 1, 2002 in the amount of $13,069,000.
7. Costs. In addition to, and not in lieu of, any other sums
otherwise payable to Payee hereunder, Payee shall be entitled to reimbursement
from Maker for all reasonable costs, expenses and fees (including reasonable
attorney's fees) incurred by Payee in connection with the collection of this
Notes and/or the indebtedness hereby evidenced.
8. Waivers. Maker herby waives presentment, demand, protest,
notice of protest ad notice of any other kind except for such notice as is
expressly provided for hereunder.
9. Governing Law. This Note shall be governed by the laws of the
State of New York.
10. Amendment; Waivers. No waiver or amendment of this Note may be
made other than in writing executed by Payee and Maker.
11. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL. (A)
EXCEPT AS PROVIDED IN SUBSECTION (B), MAKER AGREES THAT ALL DISPUTES AMONG MAKER
AND PAYEE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS NOTE, OR ANY OF THE
OTHER CREDIT DOCUMENTS WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE,
SHALL BE RESOLVED EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN NEW YORK,
NEW YORK, BUT MAKER ACKNOWLEDGES THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW
YORK. MAKER WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) MAKER AGREES THAT THE LENDER OR ANY INDEMNITEE SHALL HAVE THE RIGHT TO
PROCEED AGAINST MAKER OR ITS PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH
PERSON TO (I) OBTAIN PERSONAL JURISDICTION OVER MAKER OR (II) ENFORCE A JUDGMENT
OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. MAKER AGREES THAT IT WILL
NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT BY SUCH PERSON
TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH PERSON. MAKER WAIVES
ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON
HAS COMMENCED A PROCEEDING DESCRIBED IN THIS SUBSECTION (B). (C) MAKER WAIVES
PERSONAL SERVICE OF ANY PROCESS UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS OF ANY WRITS, PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING
BY THE MAILING THEREOF BY PAYEE BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO MAKER ADDRESSED AS PROVIDED HEREIN. NOTHING HEREIN SHALL IN ANY WAY
BE DEEMED TO LIMIT THE ABILITY OF PAYEE TO SERVE ANY SUCH WRITS, PROCESS OR
SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. MAKER IRREVOCABLY
WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO
THIS NOTE OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE. (D) MAKER
IRREVOCABLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF,
CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN
PAYEE AND MAKER IN CONNECTION WITH THIS NOTE OR ANY OTHER INSTRUMENT, DOCUMENT
OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. MAKER AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY AND THAT LENDER MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS NOTE WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
MAKER TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
12. No Usury. This Note is subject to the express condition that
at no time shall Maker be obligated to pay any interest on the principal balance
of this Note at a rate in excess of the Maximum Rate. If by the terms of this
Note, Maker is obligated to pay interest at a rate in excess of the Maximum
Rate, then the Interest Rate or Default Rate, as applicable, shall be deemed
immediately reduced to the Maximum Rate and all previous payments in excess of
the Maximum Rate shall be deemed to have been payments in reduction of principal
and not on account of interest. All sums to be paid to Payee under this Note
shall, to the extent permitted by
law, be amortized, prorated, allocated and spread over the full term of this
Note so that the rate of interest does not exceed the Maximum Rate from time to
time in effect.
IN WITNESS WHEREOF, Maker has executed this Note as of the date first
written above.
MERISTAR H & R OPERATING COMPANY, L.P.
By: Interstate Hotels & Resorts, Inc., its
general partner
By: ____________________________________________
Name:
Title:
EXHIBIT C
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AMENDED AND RESTATED GUARANTY
This Amended and Restated Guaranty (this "GUARANTY") is made and
entered into effective for all purposes as of the 31ST day of JULY, 2002, by the
parties signatory hereto or to an Accession Agreement (as hereinafter defined)
(collectively, the "GUARANTOR" whether one or more) to and for the benefit of
Meristar Hospitality Operating Partnership, L.P. (the "LENDER") to the Credit
Agreement herein described.
INTRODUCTION
WHEREAS, this Guaranty is given in connection with that certain
Revolving Credit Agreement dated as of August 3, 1998, as amended by Amendment
to Revolving Credit Agreement dated as of February 29, 2000, as further amended
by Second Amendment to revolving Credit Agreement dated as of January 28, 2002
(as amended or modified from time to time, the "CREDIT AGREEMENT"), among
MERISTAR H & R OPERATING COMPANY, L.P., a Delaware limited partnership (the
"BORROWER"); and Lender.
WHEREAS, pursuant to the terms of the Credit Agreement the Lender has
made a loan to Borrower.
WHEREAS, Borrower has requested that Lender agree to further amend the
Credit Agreement by that certain Third Amendment to Revolving Credit Agreement
dated as of the date hereof by and between Lender and Borrower (the "Third
Amendment to Revolving Credit Agreement"). Guarantor will derive substantial
direct and indirect benefit from the transactions contemplated by the Credit
Agreement;
WHEREAS, the Lenders have required the execution and delivery of this
Guaranty as a condition precedent to the execution of the Third Amendment to
Revolving Credit Agreement. This Guaranty amends, restates and consolidates all
outstanding guaranties in favor of Lender granted pursuant to the terms of the
Credit Agreement. The Lenders would not be willing to execute the Third
Amendment to Revolving Credit Agreement in the absence of the execution and
delivery by Guarantor of this Guaranty.
NOW, THEREFORE, in order to induce the Lender to enter into the Third
Amendment to Credit Agreements, each Guarantor hereby agrees as follows:
Section 1. DEFINED TERMS. All terms used in this Guaranty, but
not defined herein, shall have the meaning given such terms in the Credit
Agreement.
Section 2. GUARANTY. Each Guarantor hereby unconditionally and
irrevocably guarantees the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of the Borrower now
or hereafter existing under the Credit Agreement, the Note, and any other Credit
Document, whether for principal, interest, fees, expenses, or otherwise (all of
such obligations being the "GUARANTEED OBLIGATIONS") and any and all expenses
(including reasonable counsel fees and expenses) incurred by the Lender in
enforcing any rights under this Guaranty. Each Guarantor agrees that its
guaranty obligation under this Guaranty is a guarantee
-1-
of payment, not of collection and that such Guarantor is primarily liable for
the payment of the Guaranteed Obligations.
Section 3. LIMIT OF LIABILITY. Each Guarantor that is a
Subsidiary of the Borrower shall be liable under this Guaranty with respect to
the Guaranteed Obligations only for amounts aggregating up to the largest amount
that would not render its guaranty obligation hereunder subject to avoidance
under Section 548 of the United States Bankruptcy Code or any comparable
provisions of any state law.
Section 4. GUARANTY ABSOLUTE. Each Guarantor guarantees that the
Guaranteed Obligations will be paid and performed strictly in accordance with
the terms of the Credit Agreement and the other Credit Documents, as applicable,
regardless of any law, regulation, or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Lender with
respect thereto. The liability of each Guarantor under this Guaranty shall be
absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Credit
Agreement, any other Credit Document, or any other agreement or instrument
relating thereto;
(b) any change in the time, manner, or place of payment of, or in
any other term of, any of the Guaranteed Obligations, or any other amendment or
waiver of or any consent to departure from the Credit Agreement or any Credit
Document,
(c) any exchange, release, or nonperfection of any collateral, if
applicable, or any release or amendment or waiver of or consent to departure
from any other agreement or guaranty, for any of the Guaranteed Obligations; or
(d) any other circumstances which might otherwise constitute a
defense available to, or a discharge of the Borrower or a Guarantor.
Section 5. CONTINUATION AND REINSTATEMENT, ETC. Each Guarantor
agrees that, to the extent that the Borrower makes payments to the Lender or
Lender receives any proceeds of any property of Borrower or any Guarantor and
such payments or proceeds or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside, or otherwise required to
be repaid, then to the extent of such repayment the Guaranteed Obligations shall
be reinstated and continued in full force and effect as of the date such initial
payment or collection of proceeds occurred. The Guarantor shall defend and
indemnify the Lender from and against any claim or loss under this Section 5
(including reasonable attorneys' fees and expenses) in the defense of any such
action or suit.
Section 6. CERTAIN WAIVERS.
6.01 NOTICE. Each Guarantor hereby waives promptness, diligence,
notice of acceptance, notice of acceleration, notice of intent to accelerate and
any other notice with respect to any of the Guaranteed Obligations and this
Guaranty.
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6.02 OTHER REMEDIES. Each Guarantor hereby waives any requirement
that the Lender protect, secure, perfect, or insure any Lien or any Property
subject thereto or exhaust any right or take any action against the Borrower or
any other Person or any collateral, if any, including any action required
pursuant to a any law, statute, ordinance, decree, requirement, order, judgment,
rule, regulation, (or official interpretation of any of the foregoing) of, and
the terms of any license or permit issued by, any Governmental Authority.
6.03 WAIVER OF SUBROGATION.
(a) Each Guarantor hereby irrevocably waives, until payment in
full of all Guaranteed Obligations, any claim or other rights which it may
acquire against the Borrower that arise from such Guarantor's obligations under
this Guaranty or any other Credit Document, including, without limitation, any
right of subrogation (including, without limitation, any statutory rights of
subrogation under Section 509 of the Bankruptcy Code, 11 U.S.C. ss. 509, or
otherwise), reimbursement, exoneration, contribution, indemnification, or any
right to participate in any claim or remedy of the Lender against the Borrower
or any collateral which the Lender now has or acquires. If any amount shall be
paid to any Guarantor in violation of the preceding sentence and the Guaranteed
Obligations shall not have been paid in full, such amount shall be held in trust
for the benefit of the Lender and shall promptly be paid to the Lender to be
applied to the Guaranteed Obligations, whether matured or unmatured, as Lender
may elect. Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by the Credit Agreement
and that the waiver set forth in this Section 6.03(a) is knowingly made in
contemplation of such benefits.
(b) Each Guarantor further agrees that it will not enter into any
agreement providing, directly or indirectly, for any contribution,
reimbursement, repayment, or indemnity by the Borrower or any other Person on
account of any payment by such Guarantor to the Lender under this Guaranty.
6.04 CALIFORNIA WAIVERS.
(a) Guarantor understands and agrees that the waivers contained in
this Section 6.04 are waivers of substantive rights and defenses to which
Guarantor might otherwise be entitled under state and federal law. The rights
and defenses waived include, without limitation, those provided by California
laws of suretyship and guaranty, antideficiency laws, and the Uniform Commercial
Code. Guarantor acknowledges that Guarantor has provided these waivers of rights
and defenses with the intention that they be fully relied upon by the Lender.
(b) Guarantor waives Guarantor's rights of subrogation,
reimbursement, indemnity and contribution, and any other rights and defenses
available to Guarantor by reason of Sections 2787 to 2855, inclusive, of the
California Civil Code, as amended or recodified from time to time, including
without limitation (i) any defenses Guarantor may have to the Guaranteed
Obligations by reason of an election of remedies by the Lender, and (ii) any
rights or defenses Guarantor may have by reason of protection afforded to
Borrower with respect to the Guaranteed Obligations pursuant to the
antideficiency or other laws of the State of California limiting or discharging
Borrower's indebtedness, including, without limitation, Sections 580a, 580b,
580d, or 726 of the California Code of Civil Procedure, as amended or recodified
from time to time.
-3-
(c) If and to the extent such waivers of Guarantor's rights of
subrogation, reimbursement, indemnity and contribution, and any other rights and
defenses waived by Guarantor hereunder are unenforceable, Guarantor hereby
agrees that all such rights shall be junior and subordinate to the rights of the
Lender to obtain payment and performance of the Guaranteed Obligations and to
all rights of the Lender in and to any property, including the Property, which
now or hereafter serves or could serve as collateral security for the Guaranteed
Obligations.
(d) The above waivers include, but are not limited to, the waiver
by Guarantor of:
(i) all rights and defenses arising out of an election of
remedies by the Lender, even though that election of remedies has
destroyed Guarantor's rights or subrogation and/or reimbursement
against Borrower by the operation of Section 580d of the California
Code of Civil Procedure or otherwise;
(ii) all rights and protections of any kind which
Guarantor may have for any reason which would affect or limit the
amount of any recovery by the Lender from Guarantor including, without
limitation, the right to any fair market value hearing pursuant to
Section 580a of the California Code of Civil Procedure.
(iii) any and all benefits available to sureties and
creditors which might otherwise be available to Guarantor under
California Civil Code Sections 2809 (reduction of surety's obligation
where larger than principal's), 2810 (liability of surety when
principal is not liable), 2815 (revocation of continuing guaranty),
2819 (exoneration of surety), 2839 (performance of principal obligation
or offer of performance), 2845 (requiring creditor to proceed against
principal), 2849 (security for performance of principal obligation),
2850 (hypothecation of surety's property), 2899 (order of resort to
property), and 3433 (creditor's entitlement to satisfy claim from
several funds), as amended or recodified from time to time; and
(e) Guarantor shall not be discharged, released or exonerated, in
any way, from its absolute, unconditional and independent liabilities hereunder,
even though any rights or defenses which Guarantor may have against Borrower,
the Lender or others may be destroyed, diminished or otherwise affected, by:
(i) Any declaration by the Lender of a default in respect
of any of the Guaranteed Obligations;
(ii) The exercise by the Lender of any rights or remedies
against Borrower or any other person;
(iii) The failure of the Lender to exercise any rights or
remedies against Borrower or any other person; or
Section 7. REPRESENTATIONS AND WARRANTIES. Each Guarantor hereby
represents and warrants as follows:
-4-
7.01 CORPORATE AUTHORITY. Such Guarantor is either a corporation,
limited liability company or limited partnership duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization. The execution, delivery and performance by such Guarantor of this
Guaranty are within such Guarantor's organizational powers, have been duly
authorized by all necessary organizational action and do not contravene (a) such
Guarantor's organizational authority or (b) any law or material contractual
restriction affecting such Guarantor or its Property.
7.02 GOVERNMENT APPROVAL. No authorization or approval or other
action by and no notice to or filing with, any Governmental Authority is
required for the due execution, delivery and performance by such Guarantor of
this Guaranty.
7.03 BINDING OBLIGATIONS. This Guaranty is the legal, valid and
binding obligation of such Guarantor enforceable against such Guarantor in
accordance with its terms subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium, or similar law affecting creditors'
rights (whether considered in a proceeding at law or in equity).
Section 8. COVENANTS. Each Guarantor will comply with all
covenant provisions of Article V and Article VI of the Credit Agreement to the
extent such provisions are applicable.
8.01 ADDITIONAL COVENANT. As soon as possible and in any event
within five days after the incurrence of any Indebtedness (as defined in the
Senior Credit Agreement) by the Parent or any Subsidiary of the Parent other
than the Obligations or any other Indebtedness (as defined in the Senior Credit
Agreement) permitted under the Credit Agreement, the Parent shall notify the
Lender in writing of such incurrence.
Section 9. CONTRIBUTION. As a result of the transactions
contemplated by the Credit Agreement, each of the Guarantors will benefit,
directly and indirectly, from the Guaranteed Obligations and in consideration
thereof desire to enter into a contribution agreement among themselves as set
forth in this Section 9 to allocate such benefits among themselves and to
provide a fair and equitable arrangement to make contributions in the event any
payment is made by any Guarantor hereunder to the Lender (such payment being
referred to herein as a "CONTRIBUTION," and for purposes of this Guaranty,
includes any exercise of recourse by the Lender against any Property of a
Guarantor and application of proceeds of such Property in satisfaction of such
Guarantor's obligations under this Guaranty). The Guarantors hereby agree as
follows:
9.01 CALCULATION OF CONTRIBUTION. In order to provide for just and
equitable contribution among the Guarantors in the event any Contribution is
made by a Guarantor (a "FUNDING GUARANTOR"), such Funding Guarantor shall be
entitled to a contribution from certain other Guarantors for all payments,
damages and expenses incurred by that Funding Guarantor in discharging any of
the Guaranteed Obligations, in the manner and to the extent set forth in this
Section. The amount of any Contribution under this Guaranty shall be equal to
the payment made by the Funding Guarantor to the Lender or any other beneficiary
pursuant to this Guaranty and shall be determined as of the date on which such
payment is made.
-5-
9.02 BENEFIT AMOUNT DEFINED. For purposes of this Guaranty, the
"BENEFIT AMOUNT" of any Guarantor as of any date of determination shall be the
net value of the benefits to such Guarantor and all of its Subsidiaries
(including any Subsidiaries which may be Guarantors) from extensions of credit
made by the Lender to the Borrower under the Credit Agreement; provided, that in
determining the contribution liability of any Guarantor which is a Subsidiary to
its direct or indirect parent corporation or of any Guarantor to its direct or
indirect Subsidiary, the Benefit Amount of such Subsidiary and its Subsidiaries,
if any, shall be subtracted in determining the Benefit Amount of the parent
corporation.
9.03 CONTRIBUTION OBLIGATION. Each Guarantor shall be liable to a
Funding Guarantor in an amount equal to the greater of (A) the (i) ratio of the
Benefit Amount of such Guarantor to the total amount of Guaranteed Obligations,
multiplied by (ii) the amount of Guaranteed Obligations paid by such Funding
Guarantor and (B) 95% of the excess of the fair saleable value of the property
of such Guarantor over the total liabilities of such Guarantor (including the
maximum amount reasonably expected to become due in respect of contingent
liabilities) determined as of the date on which the payment made by a Funding
Guarantor is deemed made for purposes of this Guaranty (giving effect to all
payments made by other Funding Guarantors as of such date in a manner to
maximize the amount of such contributions).
9.04 ALLOCATION. In the event that at any time there exists more
than one Funding Guarantor with respect to any Contribution (in any such case,
the "APPLICABLE CONTRIBUTION"), then payment from other Guarantors pursuant to
this Guaranty shall be allocated among such Funding Guarantors in proportion to
the total amount of the Contribution made for or on account of the Borrower by
each such Funding Guarantor pursuant to the Applicable Contribution. In the
event that at any time any Guarantor pays an amount under this Guaranty in
excess of the amount calculated pursuant to clause (A) of Subsection 9.03 above,
that Guarantor shall be deemed to be a Funding Guarantor to the extent of such
excess and shall be entitled to contribution from the other Guarantors in
accordance with the provisions of this Section.
9.05 SUBSIDIARY PAYMENT. The amount of contribution payable under
this Section by any Guarantor shall be reduced by the amount of any contribution
paid hereunder by a Subsidiary of such Guarantor.
9.06 EQUITABLE ALLOCATION. If as a result of any reorganization,
recapitalization, or other corporate change in the Borrower or any of its
Subsidiaries, or as a result of any amendment, waiver or modification of the
terms and conditions of other Sections of this Guaranty or the Guaranteed
Obligations, or for any other reason, the contributions under this Section
become inequitable as among the Guarantors, the Guarantors shall promptly modify
and amend this Section to provide for an equitable allocation of contributions.
Any of the foregoing modifications and amendments shall be in writing and signed
by all Guarantors.
9.07 ASSET OF PARTY TO WHICH CONTRIBUTION IS OWING. The Guarantors
acknowledge that the right to contribution hereunder shall constitute an asset
in favor of the Guarantor to which such contribution is owing.
9.08 SUBORDINATION. No payments payable by a Guarantor pursuant to
the terms of this Section 9 shall be paid until all amounts then due and payable
by the Borrower to any Lender,
-6-
pursuant to the terms of the Credit Documents, are paid in full in cash. In
addition, any Indebtedness (as defined in the Senior Credit Agreement) payable
by a Guarantor to the Borrower or by the Borrower to a Guarantor shall be
subordinate to all amounts then due and payable by the Borrower to any Lender,
pursuant to the terms of the Credit Documents. Nothing contained in this Section
9 shall affect the obligations of any Guarantor to any Lender under the Credit
Agreement.
Section 10. MISCELLANEOUS.
10.01 ADDRESSES FOR NOTICES. All notices and other communications
provided for hereunder shall be in writing, including telegraphic communication
and delivered or teletransmitted to the Lender, as set forth in the Credit
Agreement and to each Guarantor, at the address set forth under such Guarantor's
signature hereto or in the Accession Agreement executed by such Guarantor, or to
such other address as shall be designated by any Guarantor or the Lender in
written notice to the other parties. All such notices and other communications
shall be effective when delivered or teletransmitted to the above addresses.
10.02 AMENDMENTS, ETC. No waiver or amendment of any provision of
this Guaranty nor consent to any departure by any Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Lender; PROVIDED
that any waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given. Notwithstanding the foregoing, in the
event that any Subsidiary or Affiliate of the Borrower hereafter is required in
a accordance with the terms of the Credit Agreement or otherwise agrees to
become a guarantor of the Borrower's obligations under the Credit Documents,
then such Subsidiary or Affiliate may become a party to this Guaranty by
executing an Accession Agreement ("ACCESSION AGREEMENT") in the form attached
hereto as ANNEX 1 and each Guarantor and the Lender hereby agrees that upon such
Subsidiary's or Affiliate's execution of such Accession Agreement, this Guaranty
shall be deemed to have been amended to make such Person a Guarantor hereunder
for all purposes and a party hereto and no signature is required on behalf of
the other Guarantors or the to make such an amendment to this Guaranty
effective.
10.03 NO WAIVER; REMEDIES. No failure on the part of Lender to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
10.04 RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default, the Lender is hereby authorized at any
time, to the fullest extent permitted by law, to set off and apply any deposits
(general or special, time or demand, provisional or final) and other
indebtedness owing by the Lender to the account of any Guarantor against any and
all of the obligations of such Guarantor under this Guaranty, irrespective of
whether or not the Lender shall have made any demand under this Guaranty and
although such obligations may be contingent and unmatured. The Lender agrees
promptly to notify each Guarantor affected by any such set-off after any such
set-off and application made by the Lender provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights
-7-
of the Lender under this Section 10.04 are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the
Lender may have.
10.05. CONTINUING GUARANTY; TRANSFER OF INTEREST. This Guaranty shall
create a continuing guaranty and shall (a) remain in full force and effect until
payment in full and termination of the Guaranteed Obligations, (b) be binding
upon each Guarantor, its successors and assigns, and (c) inure, together with
the rights and remedies of the Lender and its respective successors, transferees
and assigns. Without limiting the generality of the foregoing clause, when the
Lender assigns or otherwise transfers any interest held by it under the Credit
Agreement, or other Credit Document to any other Person pursuant to the terms of
the Credit Agreement or other Credit Document, that other Person shall thereupon
become vested with all the benefits held by such Lender under this Guaranty.
Upon the payment in full and termination of the Guaranteed Obligations, the
guaranties granted hereby shall terminate and all rights hereunder shall revert
to each Guarantor to the extent such rights have not been applied pursuant to
the terms hereof. Upon any such termination, the Lender will, at each
Guarantor's expense, execute and deliver to such Guarantor such documents as
such Guarantor shall reasonably request and take any other actions reasonably
requested to evidence or effect such termination.
10.06. GOVERNING LAW. ANY DISPUTE BETWEEN THE GUARANTOR, THE LENDER,
OR ANY INDEMNITEE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS GUARANTY OR
ANY OF THE OTHER CREDIT DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT,
EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS
(INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW,
BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE
OF NEW YORK.
10.07. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) EXCLUSIVE JURISDICTION. EXCEPT AS PROVIDED IN SUBSECTION (B),
EACH OF THE PARTIES HERETO AGREES THAT ALL DISPUTES AMONG THEM ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH, THIS GUARANTY OR ANY OF THE OTHER CREDIT DOCUMENTS
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED
EXCLUSIVELY BY STATE OR FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK, BUT THE
PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE
HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW YORK. EACH OF THE PARTIES
HERETO WAIVES IN ALL DISPUTES BROUGHT PURSUANT TO THIS SUBSECTION (A) ANY
OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
(B) OTHER JURISDICTIONS. THE GUARANTOR AGREES THAT THE LENDER OR
ANY INDEMNITEE SHALL HAVE THE RIGHT TO PROCEED AGAINST THE GUARANTOR OR ITS
PROPERTY IN A COURT IN ANY LOCATION TO ENABLE SUCH PERSON TO (1) OBTAIN PERSONAL
JURISDICTION OVER THE GUARANTOR OR (2)
-8-
ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PERSON. THE
GUARANTOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY
PROCEEDING BROUGHT BY SUCH PERSON TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN
FAVOR OF SUCH PERSON. THE GUARANTOR WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE
LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED A PROCEEDING DESCRIBED
IN THIS SUBSECTION (B).
(C) SERVICE OF PROCESS. THE GUARANTOR WAIVES PERSONAL SERVICE OF
ANY PROCESS UPON IT AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
WRITS, PROCESS OR SUMMONSES IN ANY SUIT, ACTION OR PROCEEDING BY THE MAILING
THEREOF BY THE LENDER BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE
GUARANTOR ADDRESSED AS PROVIDED HEREIN. NOTHING HEREIN SHALL IN ANY WAY BE
DEEMED TO LIMIT THE ABILITY OF THE LENDER TO SERVE ANY SUCH WRITS, PROCESS OR
SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW THE GUARANTOR
IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED
OR DELIVERED IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH,
RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS GUARANTY WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
(E) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH
OTHER PARTY HERETO THAT IT HAS DISCUSSED THIS GUARANTY AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 10.07, WITH ITS COUNSEL.
-9-
SIGNATURE PAGE OF GUARANTY
Each Guarantor has caused this Guaranty to be duly executed as of the
date first above written.
ADDRESS: INTERSTATE HOTELS & RESORTS, INC.
a Delaware corporation
________________________ By: ___________________________________
________________________ Name: ___________________________________
________________________ Title: ___________________________________
BRIDGESTREET CORPORATE HOUSING
WORLDWIDE, INC.
a Delaware corporation
________________________ By: ___________________________________
________________________ Name: ___________________________________
________________________ Title: ___________________________________
MERISTAR MANAGEMENT (CANMORE) LTD.
a British Columbia (Canada) corporation
________________________ By: ___________________________________
________________________ Name: ___________________________________
________________________ Title: ___________________________________
MERISTAR MANAGEMENT
(VANCOUVER-METRTOWN) LTD.
a British Columbia (Canada) corporation
________________________ By: ___________________________________
________________________ Name: ___________________________________
________________________ Title: ___________________________________
BRIDGESTREET CANADA, INC.
an Ontario (Canada) corporation
________________________ By: ___________________________________
________________________ Name: ___________________________________
________________________ Title: ___________________________________
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SIGNATURE PAGE TO GUARANTY
ADDRESS: BRIDGESTREET ACCOMMODATIONS, LTD.
Incorporated under the laws of England and
Wales
________________________ By: ___________________________________
________________________ Name: ___________________________________
________________________ Title: ___________________________________
BRIDGESTREET ACCOMMODATIONS
LONDON LIMITED
Incorporated under the laws of England and
Wales
________________________ By: ___________________________________
________________________ Name: ___________________________________
________________________ Title: ___________________________________
BRIDGESTREET WARDROBE PLACE LIMITED
Incorporated under the laws of England and
Wales
________________________ By: ___________________________________
________________________ Name: ___________________________________
________________________ Title: ___________________________________
LORYT(1) LIMITED
Incorporated under the laws of England and
Wales
________________________ By: ___________________________________
________________________ Name: ___________________________________
________________________ Title: ___________________________________
APALACHEE BAY SAS
Incorporated under the laws of France
________________________ By: ___________________________________
________________________ Name: ___________________________________
________________________ Title: ___________________________________
-11-
SIGNATURE PAGE TO GUARANTY
ADDRESS: MERISTAR MANAGEMENT COMPANY, L.L.C.
a Delaware limited liability company
________________________ MERISTAR AGH COMPANY, L.L.C.
________________________ a Delaware limited liability company
________________________
CAPSTAR WINSTON COMPANY, L.L.C.
a Delaware limited liability company
CAPSTAR BK COMPANY, L.L.C.
a Delaware limited liability company
CAPSTAR KCII COMPANY, L.L.C.
a Delaware limited liability company
CAPSTAR WYANDOTTE COMPANY, L.L.C.
a Delaware limited liability company
CAPSTAR ST. LOUIS COMPANY, L.L.C.
a Delaware limited liability company
MERISTAR LAUNDRY, L.L.C.
a Delaware limited liability company
MERISTAR PRESTON CENTER, L.L.C.
a Delaware limited liability company
MERISTAR HGI COMPANY, L.L.C.
a Delaware limited liability company
MERISTAR STORRS COMPANY, L.L.C.
a Delaware limited liability company
MERISTAR VACATIONS, L.L.C.
a Delaware limited liability company
THE NETEFFECT STRATEGIC ALLIANCE, LLC
a Delaware limited liability company
MERISTAR FLAGSTONE, LLC
a Delaware limited liability company
By: MeriStar H & R Operating Company, L.P.
a Delaware limited partnership, its
managing member
By: Interstate Hotels & Resorts, Inc.
a Delaware corporation, its
general partner
By:______________________________
Name:____________________________
Title:___________________________
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SIGNATURE PAGE TO GUARANTY
ADDRESS: BRIDGESTREET MARYLAND, LLC
a Delaware limited liability company
________________________ BRIDGESTREET MINNEAPOLIS, LLC
________________________ a Delaware limited liability company
________________________
BRIDGESTREET MIDWEST, LLC
a Delaware limited liability company
BRIDGESTREET ARIZONA, LLC
a Delaware limited liability company
BRIDGESTREET NEVADA, LLC
a Delaware limited liability company
BRIDGESTREET SOUTHWEST, LLC
a Delaware limited liability company
BRIDGESTREET OHIO, LLC
a Delaware limited liability company
BRIDGESTREET CALIFORNIA, LLC
a Delaware limited liability company
BRIDGESTREET COLORADO, LLC
a Delaware limited liability company
BRIDGESTREET NORTH CAROLINA, LLC
a Delaware limited liability company
BRIDGESTREET RALEIGH, LLC
a Delaware limited liability company
By: MeriStar H & R Operating Company, L.P.
a Delaware limited partnership, their
sole member
By: Interstate Hotels & Resorts, Inc.
a Delaware corporation, its
general partner
By: __________________________
Name: __________________________
Title: __________________________
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SIGNATURE PAGE TO GUARANTY
ADDRESS: BRIDGESTREET TEXAS, L.P.
a Delaware limited partnership
________________________ By: BridgeStreet Nevada, LLC
________________________ a Delaware limited liability company,
________________________ its partner
By: MeriStar H & R Operating Company,
L.P. a Delaware limited
partnership, its member
By: Interstate Hotels & Resorts,
Inc. a Delaware corporation,
its general partner
By: __________________________
Name: __________________________
Title: __________________________
By: BridgeStreet Arizona, LLC
a Delaware limited liability
company, its partner
By: MeriStar H & R Operating
Company, L.P.
a Delaware limited
partnership, its member
By: Interstate Hotels &
Resorts, Inc.
a Delaware
corporation, its
general partner
By:__________________
Name:________________
Title:_______________
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SIGNATURE PAGE TO GUARANTY
ADDRESS: INTERSTATE HOTELS COMPANY
a Delaware corporation
________________________ INTERSTATE INVESTMENT CORPORATION
________________________ a Delaware corporation
________________________
INTERSTATE PARTNER CORPORATION
a Delaware corporation
INTERSTATE PROPERTY CORPORATION
a Delaware corporation
INTERSTATE/KP HOLDING CORPORATION
a Delaware corporation
NORTHRIDGE HOLDINGS, INC.
a Delaware corporation
IHC HOLDINGS, INC.
a Delaware corporation
INTERSTATE MEMBER INC.
a Delaware corporation
CROSSROADS HOSPITALITY MANAGEMENT
COMPANY a Delaware corporation
COLONY HOTELS AND RESORTS COMPANY
a Delaware corporation
By: ___________________________________
Name: ___________________________________
Title: ___________________________________
NORTHRIDGE INSURANCE COMPANY
a corporation organized under the laws of
the Cayman Islands
________________________ By: ___________________________________
________________________ Name: ___________________________________
________________________ Title: ___________________________________
-15-
SIGNATURE PAGE TO GUARANTY
INTERSTATE PROPERTY PARTNERSHIP, L.P.
a Delaware limited partnership
________________________ By: Interstate Property Corporation
________________________ a Delaware corporation, its general
________________________ partner
By: ________________________________
Name: ________________________________
Title: ________________________________
INTERSTATE/DALLAS GP, L.L.C.
a Delaware limited liability company
________________________ By: Interstate Property Corporation
________________________ a Delaware corporation, its managing
________________________ member
By: ________________________________
Name: ________________________________
Title: ________________________________
INTERSTATE KISSIMMEE PARTNER, L.P.
a Delaware limited partnership
________________________ By: Interstate/KP Holding Corporation
________________________ a Delaware corporation, its general
________________________ partner
By: ________________________________
Name: ________________________________
Title: ________________________________
-16-
SIGNATURE PAGE TO GUARANTY
ADDRESS: INTERSTATE PITTSBURGH HOLDINGS, L.L.C.
a Delaware limited liability company
________________________ INTERSTATE MANCHESTER COMPANY, L.L.C.
________________________ a Delaware limited liability company
________________________
By: Interstate Property Partnership, L.P.
a Delaware limited liability company,
their sole member
By: Interstate Property Corporation
a Delaware corporation, its
general partner
By: ___________________________
Name: ___________________________
Title: ___________________________
________________________ INTERSTATE HOUSTON PARTNER, L.P.
________________________ a Delaware limited partnership
________________________
INTERSTATE/DALLAS PARTNERSHIP, L.P.
a Delaware limited partnership
By: Interstate Property Corporation
a Delaware corporation, their general
partner
By: ________________________________
Name: ________________________________
Title: ________________________________
________________________ INTERSTATE HOTELS, LLC
________________________ a Delaware limited liability company
________________________
By: Northridge Holdings, Inc.
a Delaware corporation, its managing
member
By: ________________________________
Name: ________________________________
Title: ________________________________
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SIGNATURE PAGE TO GUARANTY
ADDRESS: CONTINENTAL DESIGN AND SUPPLIES COMPANY,
L.L.C. a Delaware limited liability company
________________________ IHC MOSCOW SERVICES, L.L.C.
________________________ a Delaware limited liability company
________________________
PAH-HILLTOP GP, LLC
a Delaware limited liability company
PAH-CAMBRIDGE HOLDINGS, LLC
a Delaware limited liability company
CROSSROADS HOSPITALITY COMPANY, L.L.C.
a Delaware limited liability company
IHC INTERNATIONAL DEVELOPMENT (UK), L.L.C.
a Delaware limited liability company
IHC SERVICES COMPANY, L.L.C.
a Delaware limited liability company
CROSSROADS HOSPITALITY TENANT COMPANY,
L.L.C. a Delaware limited liability company
By: Interstate Hotels, LLC
a Delaware limited liability company,
their managing member
By: Northridge Holdings, Inc.
a Delaware corporation, its
managing member
By: ___________________________
Name: ___________________________
Title: ___________________________
________________________ HILLTOP EQUIPMENT LEASING COMPANY, L.P.
________________________ a Delaware limited partnership
________________________
By: PAH-Hilltop GP, LLC
a Delaware limited liability company,
its general partner
By: Interstate Hotels, LLC
a Delaware limited liability
company, its sole member
By: Northridge Holdings, Inc.
a Delaware corporation, its
managing member
By: _________________________
Name:________________________
Title:_______________________
-18-
ANNEX 1
Amended and Restated Guaranty
ACCESSION AGREEMENT
_______________________ [NAME OF ENTITY], a [limited partnership/corporation]
(the "Company"), hereby agrees with (i) Meristar Hospitality Operating
Partnership, L.P. (the "Lender") under the Revolving Credit Agreement dated as
of August 3, 1998 (as amended or modified from time to time, the "Credit
Agreement") between MERISTAR H & R OPERATING COMPANY, L.P., a Delaware limited
partnership, as the Borrower and the Lender, and (ii) the parties to the Amended
and Restated Guaranty (the "Guaranty") dated as of July 31, 2002 and executed in
connection with the Third Amendment to Credit Agreement by and between Borrower
and Lender, as follows:
The Company hereby agrees and confirms that, as of the date hereof, it
(a) intends to be a party to the Guaranty and undertakes to perform all the
obligations expressed therein, respectively, of an Indemnitor and a Guarantor
(as defined in the Guaranty), (b) agrees to be bound by all of the provisions of
the Guaranty as if it had been an original party to such agreement, (c) confirms
that the representations and warranties set forth in the Guaranty with respect
to the Company, a party thereto, are true and correct in all material respects
as of the date of this Accession Agreement and (d) has received and reviewed
copies of each of the Guaranty.
For purposes of notices under the Guaranty the address for the Company
is as follows:
_____________________________________________________
_____________________________________________________
Attention:___________________________________________
Telephone:___________________________________________
Telecopy:____________________________________________
This Accession Agreement shall be governed by and construed in
accordance with the laws of the State of New York
IN WITNESS WHEREOF this Accession Agreement was executed and delivered
as of the ___ day of ___________________, 20__.
[NAME OF ENTITY]
____________________________________________
By:_________________________________________
Title:______________________________________
-19-
