SHOLODGE, INC.
AND
BANKERS TRUST COMPANY,
TRUSTEE
_________________________
SECOND SUPPLEMENTAL INDENTURE
Dated as of September 25, 1997
9.55% Senior Subordinated Notes due 2007, Series B
Supplemental to Indenture dated as of November 15, 1996
SECOND SUPPLEMENTAL INDENTURE, dated as of September 25, 1997 (the
"Second 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, a New York banking corporation (the
"Trustee"), having a 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 Second Supplemental Indenture in
order to establish and provide for the issuance by the Company of a series
of Notes designated as its 9.55% Senior Subordinated Notes due 2007, Series
B in the aggregate principal amount of up to $35,000,000, substantially in
the form attached hereto as Exhibit "A" (the "Series B 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 Second Supplemental Indenture have been complied with;
and
WHEREAS, all things necessary to make this Second 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 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 Notes, that the Indenture is supplemented and
amended, to the extent and for the purposes expressed herein, as follows:
1. ESTABLISHMENT OF SERIES B NOTES UNDER THE INDENTURE. The Company
hereby establishes the Series B Notes in the form of Exhibit A hereto in an
aggregate principal amount of $35,000,000 and on the terms set forth
therein as a series of Notes under the Indenture pursuant to this Second
Supplemental Indenture.
2. OPTIONAL REDEMPTION BY THE COMPANY. In accordance with SECTION
6.1 of the Indenture, the Series B Notes will be subject to optional
redemption by the Company as provided in the form of Series B Note attached
as Exhibit A hereto.
3. REDEMPTION AT OPTION OF HOLDER. In the event that a holder or
his or her duly authorized representative notifies the Trustee of such
person's desire to redeem all or any portion of a Series B Note pursuant to
SECTION 7.1(A) or (B) of the Indenture, the Trustee shall furnish such
holder with the form set forth in Exhibit A to the Indenture (for
redemptions pursuant to SECTION 7.1(A) of the Indenture) or Exhibit B to
the Indenture (for redemptions pursuant to SECTION 7.1(B) of the
Indenture).
4. TRUSTEE DISCLAIMER. The Trustee makes no representations as to
the validity or sufficiency of this Second Supplemental Indenture or the
Series B 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 Second Supplemental Indenture and the Series
B Notes 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 Second 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 Bankers
Trust Company has caused this Second 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:
/s/Xxx Xxxxxxx By: /s/Xxxx Xxxxx
Secretary Its: President
[Corporate Seal]
BANKERS TRUST COMPANY
Attest:
/s/Xxxxx Xxxxx By: /s/Xxxxx Xxxxxxx
Title: Assistant vice president Its: Assistant vice president
[Corporate Seal]
Exhibit A to Second Supplemental Indenture
[FORM OF FACE OF NOTES]
No. ShoLodge, Inc. $
9.55% SENIOR SUBORDINATED NOTE DUE 2007, SERIES B
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 9.55%
per annum, payable quarterly on February 1, May 1, August 1 and November 1,
commencing November 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 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 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.
Dated: SHOLODGE, INC.
By:
Title:
[CORPORATE SEAL]
Attest:
_________________________
Title: Secretary
[FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE]
TRUSTEE'S AUTHENTICATION CERTIFICATE
This is one of the Notes described in the within-mentioned Indenture.
Bankers Trust Company
as Trustee
By:
Authorized Signatory
[FORM OF REVERSE OF NOTE]
ShoLodge, Inc.
9.55% SENIOR SUBORDINATED NOTE DUE 2007, SERIES B
This Note is one of a duly authorized issue of Notes of the Company
designated as its 9.55% Senior Subordinated Notes due 2007, Series B
(herein called the "Notes"), limited in aggregate principal amount of up to
$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 dated as
of November 15, 1996 and Second Supplemental Indenture dated as of
September 25, 1997 (such Indenture and Second Supplemental Indenture,
together with any indenture supplemental thereto, called the "Indenture"),
each 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.
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
September 1, 2000, 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
If redeemed during the 12 month period beginning September 1,
2000 ......................... 104%
2001 ......................... 103%
2002.......................... 102%
2003.......................... 101%
2004 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 under SECTION 7.1 of the Indenture 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 of all
series issued under the Indenture submitted for redemption equal to five
percent (5%) of the aggregate original principal amount of the notes of all
series theretofore 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 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.
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
the holder, regardless of the registered holder. For purposes of a
holder's request for redemption and a request for redemption on behalf of a
deceased holder, such beneficial interest shall be deemed to exist if the
holder certifies 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 holder or decedent, or by or for the holder or 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
Note 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 at
its main office as defined in the Indenture: (a) a written request for
redemption, in the form attached to the Indenture and provided by the
Trustee upon written request, signed by the registered holder or his or her
duly authorized representative, (b) the Note to be redeemed, (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 and (d) certification that the aggregate
requests for prepayment tendered on behalf of a registered holder or
beneficial owner do not exceed (or a description of the amount by which
such aggregate requests exceed) the $50,000 per holder limitation for the
applicable annual redemption period. In addition, any request for
prepayment must be delivered to the Trustee by hand or registered mail,
return receipt requested.
Any Notes tendered or any request for prepayment may be withdrawn by
written request received by the Trustee three (3) business days prior to
the issuance of a check in payment thereof.
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 Limitation 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.
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.
ASSIGNMENT FORM
VIA HAND DELIVERY OR REGISTERED MAIL, RETURN RECEIPT REQUESTED
Bankers Trust Company, Corporate Trust and Agency Group
Four Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
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.)
________________________
________________________
________________________
________________________
(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.
Date________________________ Your signature:_______________________________
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.
TO REDEEM A NOTE PURSUANT TO SECTION 7.1 OF THE INDENTURE, REQUEST A REDEMPTION
FORM AND PROVIDE YOUR NAME AND MAILING ADDRESS, VIA HAND DELIVERY OR REGISTERED
MAIL, RETURN RECEIPT REQUESTED TO:
BANKERS TRUST COMPANY
CORPORATE TRUST AND AGENCY GROUP
FOUR XXXXXX XXXXXX
XXX XXXX, XX 00000
