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EXHIBIT 4.3
SHOLODGE, INC.
AND
BANKERS TRUST COMPANY,
TRUSTEE
_________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of ___________ ____, 1996
__% Senior Subordinated Notes due 2006, Series A
Supplemental to Indenture dated as of __________ ____, 1996
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FIRST SUPPLEMENTAL INDENTURE, dated as of [ ], 1996 (the
"First Supplemental Indenture"), to the Indenture, dated as of [ ], 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 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxx 00000, and Bankers Trust Company,
a New York banking corporation (the "Trustee"), having its corporate trust
xxxxxx xx Xxxx Xxxxxx Xxxxxx, 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 First Supplemental Indenture in order to
establish and provide for the issuance by the Company of a series of Notes
designated as its _____% Senior Subordinated Notes due 2006, Series A in the
aggregate principal amount of $35,000,000, substantially in the form attached
hereto as Exhibit "A" (the "Series A 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 First Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this First 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 A 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 A Notes, that the Indenture is supplemented and amended, to the
extent and for the purposes expressed herein, as follows:
1. Establishment of Series A Notes under the Indenture. The
Company hereby establishes the Series A Notes in the form of Exhibit A hereto
and on the terms set forth therein as a series of Notes under the Indenture
pursuant to this First Supplemental Indenture.
2. Optional Redemption by the Company. In accordance with
Section 6.1 of the Indenture, the Series A Notes will be subject to optional
redemption by the Company as provided in the form of Series A Note attached as
Exhibit A hereto.
IN WITNESS WHEREOF, SHOLODGE, INC. has caused this First Supplemental
Indenture to be signed and acknowledged by its Chairman of the Board, President
or one of its
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Vice Presidents, and its corporate seal to be affixed hereunto, and the same to
be attested by its Secretary; and Bankers Trust Company has caused this First
Supplemental Indenture to be signed and acknowledged by its President or one of
its Vice Presidents, and its corporate seal to be affixed hereunto, and the
same to be attested by its Secretary; all as of the day and year first above
written.
SHOLODGE, INC.
Attest:
____________________ By:_______________________
Secretary Its:______________________
[Corporate Seal] BANKERS TRUST COMPANY
Attest:
____________________ By:_________________________
Secretary Its:________________________
[Corporate Seal]
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[FORM OF FACE OF NOTES]
No. ShoLodge, Inc. $
[ ]% SENIOR SUBORDINATED NOTE DUE 2006, SERIES A
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[ ], 2006, 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 [ ]% per annum, payable
quarterly on February 1, May 1, August 1 and November 1, commencing February 1,
1997, 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 the main
office of Bankers Trust Company, Trustee under the Indenture referred to on the
reverse side hereof, in New York, New York; 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 Bankers Trust Company, 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.
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Dated: SHOLODGE, INC.
By: ____________________________________
Title:__________________________________
[CORPORATE SEAL]
Attest:
_________________________
Title: Secretary
[FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This Note is one of the Notes described or provided for in the
Indenture referred to on the reverse side hereof.
Bankers Trust Company
as Trustee
By:________________
Authorized Officer
[FORM OF REVERSE OF NOTE]
ShoLodge, Inc.
__% SENIOR SUBORDINATED NOTE DUE 2006, SERIES A
This Note is one of a duly authorized issue of Notes of the Company
designated as its __% Senior Subordinated Notes due 2006, Series A (herein
called the "Notes"), limited in aggregate principal amount of $35,000,000
(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 (herein, together with any
indenture supplemental thereto, called the "Indenture"), dated as of _________,
1996, duly executed and delivered by ShoLodge, Inc. to Bankers Trust Company,
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.
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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, commencing [
], 1999, 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 [ ] in the years indicated below are as follows:
General Redemption Prices
If redeemed during the 12 month period beginning [ ],
1999 ......................... 104%
2000 ......................... 103%
2001.......................... 102%
2002.......................... 101%
2003 and thereafter .......... 100%
Unless the Notes have been declared due and payable prior to their
maturity by reason of an Event of Default and such Event of Default has not
been waived and such declaration has not been rescinded or annulled, a holder
has the right to present Notes for payment prior to their 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 may specify),
subject to the following limitations: (a) the Company will have no obligation
to redeem any Notes prior to December 1, 1999, except on the death of a holder
as described below, and (b) the Company will have no obligation to redeem Notes
(on the death of a holder or otherwise) in excess of the following annual
maximum amounts (collectively, the "Annual Amount Limitations") of (i) $50,000
per holder and (ii) an aggregate amount for all Notes submitted for redemption
equal to five percent (5%) of the aggregate original principal amount of the
Notes of all series issued under the Indenture (the "Five Percent Limitation").
Notes submitted for redemption, except for Notes submitted for redemption
following the death of a holder, must be submitted by November 1 of any year,
commencing on November 1, 1999, for redemption on the following December 1. If
the $50,000 per holder limitation has been reached and the Five Percent
Limitation has not been reached, if Notes have been properly presented for
payment on behalf of beneficial holders who are natural persons, each in an
aggregate principal amount exceeding $50,000, the Company will redeem such
Notes in order of their receipt (except Notes presented for payment in the
event of death of a holder, which will be given priority in order of their
receipt), up to the aggregate limitation of five percent (5%) of the aggregate
principal amount of the Notes of all series issued under this Indenture,
notwithstanding the $50,000 limitation.
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Subject to the Annual Amount Limitations (and unless the Notes have
been declared due and payable prior to their maturity by reason of an Event of
Default and such Event of Default has not been waived and such declaration has
not been rescinded or annulled), Notes submitted for redemption upon the death
of any holder (or any portion of the principal amount of such Notes which is
$1,000 or an integral multiple thereof, as the holder may specify), will be
redeemed within sixty (60) days following receipt by the Trustee of a written
request therefor from such holder's personal representative, or surviving joint
tenant(s), tenant by the entirety or tenant(s) in common.
The price to be paid by the Company for all Notes presented to it for
redemption pursuant to these provisions is 100% of the principal amount thereof
to be redeemed, plus accrued but unpaid interest on such principal amount to
the date of payment.
In the case of Notes registered in the name of banks, trust companies
or broker-dealers who are members of a national securities exchange or the
National Association of Securities Dealers, Inc. ("Qualified Institutions"),
the $50,000 per holder limitation applies to each beneficial owner of Notes
held by any Qualified Institution as if such beneficial owner were a separate
holder. A Note held in tenancy by the entirety, joint tenancy or tenancy in
common will be deemed to be held by a single holder, and the death of a tenant
by the entirety, joint tenant or tenant in common will be deemed the death of a
holder. The death of a person who, during his or her lifetime, was entitled to
substantially all of the beneficial ownership interest of a Note, will be
deemed the death of a holder, regardless of the registered holder, if such
beneficial interest can be established to the satisfaction of the Trustee.
Such beneficial interest will normally be deemed to exist in typical cases of
street name or nominee ownership, ownership by a custodian for the benefit of a
minor under the Uniform Gifts to Minors Act, community property or other joint
ownership arrangements between a husband and wife (including individual
retirement accounts or Xxxxx plans maintained solely by or for the decedent, or
by or for the decedent and his or her spouse) and trusts and certain other
arrangements whereby a person has substantially all of the beneficial ownership
interests in the Notes during his or her lifetime. Beneficial interests shall
include the power to sell, transfer or otherwise dispose of a Note and the
right to receive the proceeds therefrom, as well as interest and principal
payable with respect thereto.
Notes may be presented for redemption by delivering to the Trustee:
(a) a written request for redemption, in form satisfactory to the Trustee,
signed by the registered holder or his or her duly authorized representative,
(b) the Note to be redeemed and (c) in the case of a surviving tenant or
personal representative of a deceased holder or beneficial owner, appropriate
evidence of death and such other additional documents as the Trustee shall
require, including, but not limited to, inheritance or estate tax waivers and
evidence of authority of the personal representative. In their request for
prepayment on behalf of a beneficial owner, Qualified Institutions must submit
evidence, satisfactory to the Trustee, that they hold Notes on behalf of such
beneficial owner and that the aggregate requests for prepayment tendered by
such Qualified Institution on behalf of such beneficial owner per year do not
exceed $50,000. In addition, any request for prepayment made by a Qualified
Institution on behalf of a beneficial owner must be delivered to the Trustee by
registered mail, return receipt requested.
Any Notes tendered or any request for prepayment may be withdrawn by
written request received by the Trustee prior to the issuance of a check in
payment thereof.
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Notes presented for redemption as set forth above will be redeemed in
order of their receipt by the Trustee, except that Notes presented for payment
in the event of death of a holder will be given priority in order of their
receipt over other Notes. Notes not redeemed in any such period because they
have not been presented prior to November 1 of that period or because of the
Annual Amount Limitations will be held in order of their receipt for redemption
during the following twelve (12) month period(s) until redeemed, unless sooner
withdrawn by the holder. Holders of Notes presented for redemption shall be
entitled to and shall receive scheduled monthly payments of interest thereon on
scheduled Interest Payment Dates until their Notes are redeemed.
In the case of any Notes which are presented for redemption in part
only, upon such redemption the Company shall execute and the Trustee shall
authenticate and deliver to or on the order of the holder of such Notes,
without service charge, a new Note or Notes, of any authorized denomination or
denominations as requested by such holder, in aggregate principal amount equal
to the unredeemed portion of the principal of the Notes so presented. The
Company may redeem, in acceptance of tenders made pursuant hereto, Notes in
excess of the principal amount that the Company is obligated to redeem, and may
purchase Notes in the open market. However, the Company may not use any Notes
purchased in the open market as a credit against its redemption obligations
hereunder.
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). The $50,000 per holder limitation and the Five Percent
Limitations shall not apply to any such redemption.
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.
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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
corporate trust office of Bankers Trust Company, in New York, New York, 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.
[END OF FORM OF NOTES]
