FORM OF FIFTH SUPPLEMENTAL INDENTURE

EX-4.6 5 g78100exv4w6.txt FORM OF FIFTH SUPPLEMENTAL INDENTURE EXHIBIT 4.6 SHOLODGE, INC. AND DEUTSCHE BANK TRUST COMPANY AMERICAS TRUSTEE ------------------------- 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 130 Maple Drive North, Hendersonville, Tennessee 37075, 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, New York, NY 10005. 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: - -------------------- ----------------------- Secretary Its: ---------------------- [Corporate Seal] DEUTSCHE BANK TRUST COMPANY AMERICAS Attest: Attest: By: - -------------------- ----------------------- Secretary Its: ---------------------- [Corporate Seal]