EXHIBIT 4.5
SHOLODGE, INC.
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
TRUSTEE
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FOURTH SUPPLEMENTAL INDENTURE
Dated as of _________ __, 2002
9.95% Senior Subordinated Notes due 2007, Series B-1
Supplemental to Indenture dated as of November 15, 1996
FIFTH SUPPLEMENTAL INDENTURE, dated as of _________ __, 2002 (the
"Fourth Supplemental Indenture"), to the Indenture, dated as of November 15,
1996 (the "Indenture"), between ShoLodge, Inc., a corporation duly organized
under the laws of the State of Tennessee (the "Company"), having its principal
office at 000 Xxxxx Xxxxx Xxxxx, Xxxxxxxxxxxxxx, Xxxxxxxxx 00000, and Bankers
Trust Company (n.k.a. Deutsche Bank Trust Company Americas), a New York
banking corporation (the "Trustee"), having a corporate trust office at
Corporate Trust and Agency Services, MS-NYC 60-2525, Xxx Xxxx, XX 00000.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of
the Indenture to provide for the issuance from time to time of one or more
series of its senior subordinated notes (the "Notes") to be issued in one or
more series as in the Indenture provided;
WHEREAS, the Company desires and has requested the Trustee to join it
in the execution and delivery of this Fourth Supplemental Indenture in order
to establish and provide for the issuance by the Company of a series of Notes
designated as its 9.95% Senior Subordinated Notes due 2007, Series B-1 in the
aggregate principal amount of up to $____________, substantially in the form
attached hereto as Exhibit "A" (the "Series B-1 Notes"), on the terms set
forth herein;
WHEREAS, Section 14.1 of the Indenture provides that a supplemental
Indenture may be entered into by the Company and the Trustee without the
consent of any holder of any Notes for such purpose provided certain
conditions are met;
WHEREAS, the conditions set forth in the Indenture for the execution
and delivery of this Fourth Supplemental Indenture have been complied with;
and
WHEREAS, all things necessary to make this Fourth Supplemental
Indenture a valid agreement of the Company and the Trustee, in accordance with
its terms, and a valid amendment of, and supplement to, the Indenture have
been done;
NOW THEREFORE:
In consideration of the premises and the purchase and acceptance of
the Series B-1 Notes by the holders thereof, the Company mutually covenants
and agrees with the Trustee, for the equal and proportionate benefit of all
holders of the Series B-1 Notes, that the Indenture is supplemented and
amended, to the extent and for the purposes expressed herein, as follows:
1. Establishment of Series B-1 Notes under the Indenture. The
Company hereby establishes the Series B-1 Notes in the form of Exhibit A
hereto in an aggregate principal amount of $_____________ and on the terms set
forth therein as a series of Notes under the Indenture pursuant to this Fourth
Supplemental Indenture.
2. Optional Redemption by the Company. In accordance with Section
6.1 of the Indenture, the Series B-1 Notes will be subject to optional
redemption by the Company as provided in the form of Series B-1 Note attached
as Exhibit A hereto.
3. Trustee Disclaimer. The Trustee makes no representations as to
the validity or sufficiency of this Fourth Supplemental Indenture or the
Series B-1 Notes, and assumes no responsibility for the recitals contained
herein or therein which shall be taken as the statements of the Company.
5. Governing Law. This Fourth Supplemental Indenture and the
Series B-1Notes shall be governed by the laws of the State of Tennessee as to
all matters affecting the duties, liabilities, privileges, rights and
obligations of the Noteholders, the Company and any agents of the foregoing,
include but not limited to, matters of validity, construction, effect and
performance; however, the duties and responsibilities of the Trustee shall be
governed by the laws of the State of New York.
IN WITNESS WHEREOF, SHOLODGE, INC. has caused this Fourth Supplemental
Indenture to be signed and acknowledged by its Chairman of the Board,
President or one of its Vice Presidents, and its corporate seal to be affixed
hereunto, and the same to be attested by its Secretary; and Deutsche Bank
Trust Company Americas has caused this Fourth Supplemental Indenture to be
signed and acknowledged, and its corporate seal to be affixed hereunto, and
the same to be attested; all as of the day and year first above written.
SHOLODGE, INC.
Attest:
By:
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Secretary Its:
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[Corporate Seal]
DEUTSCHE BANK, NA
TRUST COMPANY AMERICAS
Attest:
By:
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Title: Its:
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[Corporate Seal]
Exhibit A to Fourth Supplemental Indenture
[FORM OF FACE OF NOTES]
No. ShoLodge, Inc. $
9.95% SENIOR SUBORDINATED NOTE DUE 2007, SERIES B-1
ShoLodge, Inc., a corporation organized and existing under the laws of
the State of Tennessee (hereinafter called the "Company," which term shall
include any successor corporation as defined in the Indenture referred to on
the reverse side hereof), for value received, hereby promises to pay
to[ ], or registered assigns, the sum of [ ] Dollars on or before
September 1, 2007, in such coin or currency of the United States of America as
at the time of payment is legal tender for public and private debts, and to pay
interest (calculated on the basis of a 360-day year of twelve 30-day months) on
the unpaid principal amount hereof in like coin or currency from the Interest
Payment Date to which interest hereon has been paid immediately preceding the
date hereof (unless the date hereof is an Interest Payment Date to which
interest has been paid, in which case from the date hereof) or, if no interest
has been paid on this Note since the Original Issue Date hereof, as defined in
the Indenture referred to on the reverse side hereof, from such Original Issue
Date, at the rate of 9.95% per annum, payable quarterly on February 1, May 1,
August 1 and November 1, commencing _______ __, 2002, until the principal
hereof shall have been paid or duly provided for. The interest so payable on
any Interest Payment Date will be paid to the person in whose name this Note
is registered at the close of business on the fifteenth day of the month
immediately preceding such Interest Payment Date (whether or not such
fifteenth day shall be a regular business day), unless the Company shall
default in the payment of interest due on such Interest Payment Date, in which
case such defaulted interest shall be paid to the person in whose name this
Note is registered at the close of business on a Special Record Date for the
payment of such defaulted interest established by notice to the registered
holders of Notes given by mail to said holders as their names and addresses
appear in the Note Register (as defined in the Indenture referred to on the
reverse side hereof) not less than 10 days preceding such Special Record Date.
The principal hereof and the interest hereon shall be payable at an office or
agency of the Company maintained for that purpose in New York, New York or
such other office or agency maintained for that purpose; provided, however,
that the interest on this Note may be payable, at the option of the Company,
by check mailed to the person entitled thereto as such person's address shall
appear on the Note Register (including the records of any Note Co-Registrar).
Reference is hereby made to the further provisions of this Note set
forth on the reverse side hereof, and such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Note shall not be entitled to any benefit under the Indenture
referred to on the reverse side hereof, or be or become valid or obligatory
for any purpose, until the authentication certificate endorsed hereon shall
have been signed by Deutsche Bank Trust Company Americas, Trustee under such
Indenture, or a successor trustee thereto under such Indenture.
IN WITNESS WHEREOF, SHOLODGE, INC. has caused this Note to be signed
in its name by its Chairman of the Board, President or one of its Vice
Presidents by his signature or a facsimile thereof, and its corporate seal to
be affixed or printed or engraved hereon, or a facsimile thereof, and attested
by its Secretary by his signature or a facsimile thereof.
Dated: SHOLODGE, INC.
By:
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Title:
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[CORPORATE SEAL]
Attest:
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Title: Secretary
[FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This is one of the Notes described in the within-mentioned Indenture.
Deutsche Bank Trust Company Americas
as Trustee
By:
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Authorized Signatory
[FORM OF REVERSE OF NOTE]
ShoLodge, Inc.
9.95% SENIOR SUBORDINATED NOTE DUE 2007, SERIES B-1
This Note is one of a duly authorized issue of Notes of the Company
designated as its 9.95% Senior Subordinated Notes due 2007, Series B-1 (herein
called the "Notes"), limited in aggregate principal amount of up to
$__________ (except for Notes authenticated and delivered upon transfer of, or
in exchange for or in lieu of other Notes), all issued and to be issued only
in fully registered form without coupons under an Indenture dated as of
November 15, 1996 and Fourth Supplemental Indenture dated as of __________ __,
2002 (such Indenture and Fourth Supplemental Indenture, together with any
indenture supplemental thereto, called the "Indenture"), each duly executed
and delivered by ShoLodge, Inc. to Deutsche Bank Trust Company Americas, New
York, New York, Trustee (the Trustee, together with its successors
being herein called the "Trustee"), to which Indenture (which is hereby made a
part hereof and to all of which the holder by acceptance hereof assents)
reference is hereby made for a description of the respective rights of and
restrictions upon the Company and the holders of the Notes, and the rights,
limitations of rights, duties and immunities of the Trustee in respect
thereof.
The Notes are redeemable at the option of the Company as a whole at
any time, or in part from time to time, prior to maturity, on not less than 30
nor more than 60 days' notice given as provided in the Indenture, upon payment
of the then applicable redemption price (expressed in percentages of the
principal amount) set forth below under the heading "General Redemption
Prices," together in each case with accrued and unpaid interest to the date
fixed for redemption, all subject to the conditions more fully set forth in
the Indenture. The General Redemption Prices (expressed in percentages of the
principal amount) applicable during the 12-month period beginning September 1
in the years indicated below are as follows:
General Redemption Prices
2001 ......................... 103%
2002.......................... 102%
2003.......................... 101%
2004 and thereafter .......... 100%
In case of the redemption of less than all of the outstanding Notes,
the Notes to be redeemed shall be selected by the Trustee by lot or such other
method as the Trustee shall deem reasonable, not more than sixty (60) days
prior to the redemption date, from the outstanding Notes not previously called
for redemption, which method may provide for the selection for redemption of
portions (equal to $1,000 or any integral multiple thereof) of the principal
amount of such Notes of a principal amount larger than $1,000. In the case of
any partial redemption, the Trustee is obligated to notify the Company in
writing of the serial numbers (and, in the case of any Note which is to be
redeemed in part only, the portion of the principal amount thereof to be
redeemed) of the Notes selected for redemption.
In the event that there shall occur a Change in Control (as defined in
the Indenture), the holder of this Note shall have the right, subject to
certain conditions stated in the Indenture, to present it for payment prior to
maturity, and the Company will redeem the same (or any portion of the
principal amount thereof which is $1,000 or an integral multiple thereof, as
the holder shall specify).
To the extent permitted by, and as provided in, the Indenture, the
Company may, by entering into an indenture or indentures supplemental to the
Indenture, modify, alter, add to or eliminate in any manner any provisions of
the Indenture, or the rights of the holders or the rights and obligations of
the Company, upon the consent, as in the Indenture provided, of the holders of
not less than fifty-one percent (51%) in principal amount of the Notes then
outstanding. Notwithstanding the foregoing, no supplemental indenture shall,
without the consent of the
holder of each outstanding Note affected thereby, change the Stated Maturity
of the principal of, or any installment of interest on any Note, or reduce the
principal amount thereof or the rate of interest thereon, reduce the
percentage of the aggregate principal amount of outstanding Notes the consent
of the holders of which is required for any supplemental indenture or for any
waiver of compliance with certain provisions of the Indenture, or modify any
of the provisions of the Indenture relating to the foregoing, all except as
provided in the Indenture.
If an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of and all interest accrued on all
the Notes at any such time outstanding under the Indenture may be declared,
and upon such declaration shall become, immediately due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture. The Indenture provides that such declaration and its consequence
may be waived by the holders of a majority in principal amount of the Notes
then outstanding.
The Notes are issuable as registered Notes without coupons in
denominations of integral multiples of $1,000. Subject to the provisions of
the Indenture, the transfer of this Note is registrable by the registered
holder hereof, in person or by his attorney duly authorized in writing, at the
office or agency of the Company in New York, New York or at any other office
or agency the Company maintains for that purpose on books of the Company to be
kept for that purpose at said office, upon surrender and cancellation of this
Note duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Trustee, and thereupon a new fully
registered Note of the same series, of the same aggregate principal amount and
in authorized denominations, will be issued to the transferee or transferees
in exchange therefor; and this Note, with or without others of the same
series, may in like manner be exchanged for one or more new fully registered
Notes of the same series of other authorized denominations but of the same
aggregate principal amount; all as provided in the Indenture. No service
charge shall be made for any such transfer, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge or
expense that may be imposed in relation thereto.
Prior to due presentment for registration of transfer, the Company,
the Trustee or any agent of the Company or the Trustee may deem and treat the
person in whose name this Note shall be registered at any given time upon the
Note Register as the absolute owner of this Note for the purpose of receiving
any payment of, or on account of, the principal and interest on this Note and
for all other purposes whether or not this Note be overdue; and neither the
Company nor the Trustee, nor any agent of the Company or the Trustee shall be
bound by any notice to the contrary.
No recourse under any obligation, covenant or agreement contained in
the Indenture or in any Note, or because of the creation of the indebtedness
represented hereby, shall be had against any incorporator, any past, present
or future stockholder, or any officer or director of the Company or any
successor corporation, as such under any rule of law, statute or constitution.
In any case where the date fixed for the payment of principal or
interest on any of the Notes or the date fixed for redemption thereof shall
not be a business day, then payment of such principal or interest need not be
made on such date, but may be made on the next succeeding
business day with the same force and effect as if made on the date fixed for
such payment or redemption, and no interest shall accrue for the period from
or after such date.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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ASSIGNMENT FORM
Via Hand Delivery or Registered Mail, Return Receipt Requested
Deutsche Bank Trust Company Americas
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New York, NY
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To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Insert assignee's Soc. Sec. or tax I.D. No.)
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(Print or type assignee's name, address and zip code) and irrevocably appoint
________________ agent to transfer this Note on the books of the Company. The
agent may substitute another to act for him.
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Date Your signature:
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Signature(s) must be guaranteed by an eligible guarantor institution which is
a member of a recognized signature program, i.e., Securities Transfer Agents
Medallion Program ("STAMP"), Stock Exchange Medallion Program ("SEMP") or New
York Stock Exchange Medallion Signature Program ("MSP"). Sign exactly as your
name appears on the Note. If the Assignment Form is executed by a person other
than a registered holder, enclose appropriate evidence of your authority to
effect the assignment.
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