EXHIBIT 4.6
SHOLODGE, INC.
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
TRUSTEE
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FIFTH SUPPLEMENTAL INDENTURE
Dated as of _________ __, 2003
Supplemental to Indenture dated as of November 15, 1996
FIFTH SUPPLEMENTAL INDENTURE, dated as of _________ __, 2003 (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 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
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 amended by adding the following sentence
at the end of the Section:
Notwithstanding the provisions of Section 4.12 set forth above,
from and after January 1, 2003, (x) the Company shall be permitted to
repurchase shares of its capital stock up to $3,500,000 in addition to
any Restricted Payments otherwise permitted by this Section 4.12 and (y)
the Company shall not 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.
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) $60,000,000, 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]