EXHIBIT 4.6
SHOLODGE, INC.
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
TRUSTEE
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FIFTH SUPPLEMENTAL INDENTURE
Dated as of _________ __, 2002
Supplemental to Indenture dated as of November 15, 1996
SIXTH SUPPLEMENTAL INDENTURE, dated as of _________ __, 2002 (the
"Fifth 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 desires and has requested the Trustee to join it
in the execution and delivery of this Fifth Supplemental Indenture in order to
amend certain portions of the Indenture, on the terms set forth herein;
WHEREAS, Section 14.2 of the Indenture provides that a supplemental
Indenture may be entered into by the Company and the Trustee for such purpose
with the consent of the holders of not less than fifty-one percent (51%) in
aggregate principal amount of the Notes then outstanding;
WHEREAS, the holders of __% in aggregate principal amount of the Notes
currently outstanding have consented to the amendments to the Indenture
contained in this Fifth Supplemental Indenture;
WHEREAS, all other conditions set forth in the Indenture for the
execution and delivery of this Fifth Supplemental Indenture have been complied
with; and
WHEREAS, all things necessary to make this Fifth 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:
The Company mutually covenants and agrees with the Trustee, for the
equal and proportionate benefit of all holders of the Notes, that the
Indenture is supplemented and amended, to the extent and for the purposes
expressed herein, as follows:
1. In Section 1.1 of the Indenture, the definitions of "Annual
Amount Limitations", "Five Percent Limitation" and "Redemption Register" shall
be deleted in their entirety.
2. Section 4.12 of the Indenture entitled "Limitations on
Dividends and other Payments" shall be replaced in its entirety with the
following:
"4.12 Limitations on Dividends and Other Payments. The Company
will not, and will cause its Subsidiaries not to, directly or
indirectly, do any of the following (each, a "Restricted Payment");
(i) declare or pay any dividend or other distribution of property or
assets in respect of the capital stock of the Company other than a
dividend payable solely in shares of capital stock of the Company;
(ii) repurchase any shares of the
Company's capital stock; (iii) repay or defease any Indebtedness
subordinate in right of payment of interest or principal to the Notes
(except that so long as the Notes are not in default, required
payments of principal and interest may be made in accordance with the
terms of such subordinated Indebtedness); or (iv) exchange any shares
of capital stock of the Company for newly-issued Indebtedness of the
Company or any of its Subsidiaries. Notwithstanding the foregoing, the
Company (and any of its Subsidiaries) may declare or make a Restricted
Payment, if (x) such Restricted Payment, when aggregated with all
other Restricted Payments made by the Company and its Subsidiaries
after November 15, 1996, is less than the sum of (A) $14,000,000, plus
(B) fifty percent (50%) of the Company's aggregate Consolidated Net
Income earned in each fiscal quarter during the period commencing on
October 7, 1996 and ending on the last day of the fiscal quarter
immediately preceding such Restricted Payment (or minus 100% of the
Company's aggregate Consolidated Net Loss (if any) incurred in each
fiscal quarter during the period commencing on October 7, 1996 and
ending on the last day of the fiscal quarter immediately preceding
such Restricted Payment), plus (C) the aggregate net proceeds
(including the Fair Market Value of non-cash proceeds) received by the
Company from public or private offerings of Equity Securities after
the date of this Indenture (including the issuance of Equity
Securities upon the conversion of convertible Indebtedness or upon the
exercise of options, warrants or rights to acquire Equity Securities)
to any person other than a Subsidiary, and (y) if such Restricted
Payment consists of the payment of a dividend, then the amount of such
Restricted Payment permitted under subsection (x) above at the time of
such dividend must be at least $5,500,000; provided that, in either
case, notwithstanding the foregoing, the Company will not, and will
cause its Subsidiaries not to, make any Restricted Payment if the
making of the Restricted Payment would cause the Company or any of its
Subsidiaries not to be in compliance with the terms, conditions and
provisions of the Indenture or any other indenture or loan agreement
to which the Company or any of its Subsidiaries is a party."
3. Section 4.15 of the Indenture entitled "Minimum Consolidated
Net Worth" shall be replaced in its entirety with the following:
"4.15 Minimum Consolidated Net Worth. The Company will not
permit its Consolidated Net Worth on the last day of any fiscal
quarter to be less than the sum of (i) $72,000,000, plus (ii) fifty
percent (50%) of the Company's cumulative Consolidated Net Income
since October 6, 1996."
4. Section 7.1 of the Indenture entitled "Redemption Right at
Holder's Option," shall be deleted in its entirety.
5. Section 7.2 of the Indenture entitled "Redemption Procedure"
shall be deleted in its entirety.
6. Section 7.3 of the Indenture entitled "Withdrawal" shall be
deleted in its entirety.
7. Section 7.4 of the Indenture entitled "Redemption Register"
shall be deleted in its entirety.
8. Section 7.5 of the Indenture entitled "Deposit of Redemption
Price" shall be deleted in its entirety.
9. Trustee Disclaimer. The Trustee makes no representations as to
the validity or sufficiency of this Fifth Supplemental Indenture and assumes
no responsibility for the recitals contained herein or therein which shall be
taken as the statements of the Company.
10. Governing Law. This Fifth Supplemental Indenture 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 Fifth 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 Fifth 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
TRUST COMPANY AMERICAS
Attest:
Attest:
By:
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Secretary Its:
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[Corporate Seal]
