1
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
2
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
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Bankers Trust Company, a
New York banking corporation (the "Trustee"), having a corporate trust ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
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 up to $40,250,000, 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
in an aggregate principal amount up to $40,250,000 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.
3
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 A 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 First Supplemental Indenture or the Series
A 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 First Supplemental Indenture and the
Series A 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,
including 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 First 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 First 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:
-------------------- ------------------------
Secretary Its:
-----------------------
[Corporate Seal]
BANKERS TRUST COMPANY
Attest:
By:
-------------------- ------------------------
Title: Its:
-----------------------
[Corporate Seal]
4
Exhibit A to First Supplemental Indenture
[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 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
5
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.
__% 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 up to $40,250,000
(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 and First Supplemental
Indenture (such Indenture and First Supplemental Indenture, together with any
indenture supplemental thereto, called the "Indenture"), each dated as of
_________, 1996 and 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
6
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 [ ],
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 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 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.
7
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 ▇▇▇▇▇ 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.
8
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
9
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.
10
ASSIGNMENT FORM
Via Hand Delivery or Registered Mail, Return Receipt Requested
Bankers Trust Company, Corporate Trust and Agency Group
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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 ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇