EXHIBIT
10.4
AMENDED AND RESTATED
GUARANTY AND CONTRIBUTION AGREEMENT
This Amended and Restated Guaranty
and Contribution Agreement (this “ Agreement ”)
is made and entered into effective for all purposes as of the 14th
day of January, 2005, 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 SOCIÉTÉ GÉNÉRALE, as
Administrative Agent (the “ Administrative Agent
”) and the Senior Creditors herein described.
INTRODUCTION
WHEREAS, Interstate Operating
Company, L.P. (fka MeriStar H & R Operating Company, L.P.), a
Delaware limited partnership (the “ Borrower ”);
Société Générale, as the Administrative
Agent, the Issuing Bank and the Alternate Currency Swing Line
Lender; SG Americas Securities, LLC (successor-in-interest to SG
Cowen Securities Corporation), as Joint Lead Arranger and Book
Runner; Salomon Smith Barney Inc., as Joint Lead Arranger, Book
Runner and Co-Syndication Agent; Lehman Brothers, Inc., as Joint
Lead Arranger, Book Runner and Co-Syndication Agent; Credit
Lyonnais New York Branch, as Documentation Agent; and the banks and
other lenders a party thereto entered into a Senior Secured Credit
Agreement (the “ Original Credit Agreement ”),
dated as of July 31, 2002;
WHEREAS, in connection with the
Original Credit Agreement, the Guarantor executed or became party
to that certain Guaranty and Contribution Agreement (the “
Original Guaranty ”) dated as of even date as the
Original Credit Agreement.
WHEREAS, the Original Credit
Agreement is being amended and restated in its entirety by that
certain Amended and Restated Senior Secured Credit Agreement dated
as of even date herewith (as amended or modified from time to time,
the “ Credit Agreement ”), among Borrower;
SOCIÉTÉ GÉNÉRALE, as the Administrative
Agent; SG AMERICAS SECURITIES, LLC, as Sole Lead Arranger and Book
Runner; and the other lenders party thereto (collectively, the
“ Lenders ”);
WHEREAS, pursuant to the Credit
Agreement the Lenders are considering making advances to Borrower
and the Issuing Banks are considering issuing letters of credit for
the benefit of Borrower, all as more specifically described
therein;
WHEREAS, the Borrower is the
principal financing entity for capital requirements of its
Subsidiaries, and from time to time the Borrower has made and will
continue to make capital contributions and advances to its
Subsidiaries and the Parent’s other Subsidiaries, including
the Subsidiaries which are parties hereto. Each Guarantor will
derive substantial direct and indirect benefit from the
transactions contemplated by the Credit Agreement;
WHEREAS, the Borrower and/or one or
more of its Subsidiaries may at any time and from time to time
enter into one or more Interest Rate Agreements (a “
Lender Interest Rate Agreement ”) with one or more of
the Lenders or any Affiliate thereof (each a “ Lender IRA
Provider ”; with the Lender IRA Providers, the
Administrative Agent and the Lenders being referred to herein as
the “ Senior Creditors ”);
WHEREAS, the Lenders have required
the execution and delivery of this Agreement as a condition
precedent to the execution of the Credit Agreement. The Lenders
would not be willing to execute the Credit Agreement in the absence
of the execution and delivery by Guarantor of this Agreement. The
Lender IRA Providers will also rely upon the execution and delivery
of this Agreement when executing Lender Interest Rate
Agreements.
WHEREAS, this Agreement constitutes
for all purposes an amendment to the Original Guaranty and not a
new or substitute agreement or a novation of the Original
Guaranty.
1
AGREEMENT
NOW, THEREFORE, in order to induce
the Lenders to make the Advances, the Issuing Bank to issue its
Letters of Credit, and any Lender or its Affiliate to enter into
one or more Interest Rate Agreements, each Guarantor hereby agrees
as follows:
Section 1. Defined Terms
. All terms used in this Agreement, 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
(a) 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 Notes,
and any other Credit Document, whether for principal, interest,
fees, expenses, or otherwise and (b) the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all
obligations of the Borrower now or hereafter existing under any
Lender Interest Rate Agreement, 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
Administrative Agent or any Lender or any Lender IRA Provider in
enforcing any rights under this Agreement. Each Guarantor agrees
that its guaranty obligation under this Agreement is a guarantee 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 Agreement 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, the other Credit Documents, and
any Lender Interest Rate Agreement, 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
Administrative Agent and the Lenders with respect thereto. The
liability of each Guarantor under this Agreement shall be absolute
and unconditional irrespective of:
(a) any lack of validity or
enforceability of the Credit Agreement, any other Credit Document,
any Lender Interest Rate Agreement, 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, any Credit
Document, or any Lender Interest Rate Agreement;
(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 Administrative Agent or any
Lender or the Administrative Agent or any 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 Administrative Agent and each 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
Agreement.
6.02 Other Remedies . Each
Guarantor hereby waives any requirement that the Administrative
Agent or any 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 Legal
Requirement.
6.03 Waiver of Subrogation
.
(a) Each Guarantor hereby
irrevocably waives, until payment in full of all Guaranteed
Obligations and termination of all Commitments, any claim or other
rights which it may acquire against the Borrower that arise from
such Guarantor’s obligations under this Agreement 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. § 509, or otherwise), reimbursement, exoneration,
contribution, indemnification, or any right to participate in any
claim or remedy of the Administrative Agent, or any Lender against
the Borrower or any collateral which the Administrative Agent or
any 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 and all of the
Commitments terminated, such amount shall be held in trust for the
benefit of the Administrative Agent or any Lender and shall
promptly be paid to the Administrative Agent for the benefit of
Administrative Agent and the Lenders to be applied to the
Guaranteed Obligations, whether matured or unmatured, as the
Administrative Agent 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 Administrative
Agent or the Lenders under this Agreement.
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 Administrative
Agent and/or the Lenders.
(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 Administrative Agent and/or the Lenders, 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.
(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 Administrative Agent and/or the Lenders to obtain
payment and performance of the Guaranteed Obligations and to all
rights of the Administrative Agent and/or the Lenders 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
Administrative Agent and/or the Lenders, even though that election
of remedies has destroyed Guarantor’s rights of 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 Administrative Agent and/or the Lenders 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 Administrative Agent, the Lenders or others may be destroyed,
diminished or otherwise affected, by:
(i) Any
declaration by the Administrative Agent and/or the Lenders of a
default in respect of any of the Guaranteed Obligations;
(ii) The
exercise by the Administrative Agent and/or the Lenders of any
rights or remedies against Borrower or any other person;
(iii) The
failure of the Administrative Agent and/or the Lenders 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:
7.01 Corporate Authority .
Such Guarantor is either a corporation,
