EXHIBIT 4.3
[FORM OF EXCHANGE NOTE]
[FACE OF NOTE]
O'CHARLEY'S INC.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.07(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
9% SENIOR SUBORDINATED NOTES DUE 2013
No. R-__ $___________________
CUSIP No. 670823 AB 9
O'Charley's Inc., a Tennessee corporation, promises to pay to Cede & Co. or
registered assigns the principal sum of _______________ Dollars on November 1,
2013.
Interest Payment Dates: May 1 and November 1, commencing May 1, 2004
Record Dates: April 15 and October 15.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
Dated:
------------------------
O'CHARLEY'S INC.
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
Certificate of Authentication:
THE BANK OF NEW YORK,
as Trustee, certifies that this is one of
the Notes referred to in the within-
mentioned Indenture.
Date:
-------------------------
By
----------------------------------------
Authorized Signatory
[REVERSE OF NOTE]
O'CHARLEY'S INC.
9% SENIOR SUBORDINATED NOTES DUE 2013
1. Interest. O'Charley's Inc., a Tennessee corporation (the "Company"),
promises to pay interest on the principal amount of this Note at 9% per annum
from November 4, 2003 until maturity. The Company will pay interest semiannually
on May 1 and November 1 of each year (each an "Interest Payment Date"), or if
any such day is not a Business Day, on the next succeeding Business Day.
Interest on the Notes will accrue from the most recent Interest Payment Date on
which interest has been paid or, if no interest has been paid, from November 4,
2003; provided that if there is no existing Default in the payment of interest,
and if this Note is authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue from
such next succeeding Interest Payment Date; provided further that the first
Interest Payment Date shall be May 1, 2004. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a rate
equal to the interest rate then in effect; it shall pay interest on overdue
installments of interest (without regard to any applicable grace periods) from
time to time on demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company shall pay interest on the Notes
(except defaulted interest) to the persons who are registered holders of Notes
at the close of business on the record date immediately preceding the Interest
Payment Date, even if such Notes are cancelled after the record date and on or
before the Interest Payment Date, except as provided in Section 2.11 of the
Indenture with respect to defaulted interest. The Notes shall be payable as to
principal, premium, if any, and interest at the office or agency of the Company
maintained for such purpose in the Borough of Manhattan, The City of New York
maintained for such purposes, provided that payment by wire transfer of
immediately available funds shall be required with respect to principal of,
premium, if any, and interest on, all Global Notes and all other Notes the
Holders of which shall have provided wire transfer instructions to the Company
or the Paying Agent. Holders must surrender Notes to a Paying Agent to collect
principal payments. The Company will pay principal of, premium, if any, and
interest on the Notes in money of the United States of America that at the time
of payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, the Trustee will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-registrar without notice, as provided in the Indenture (defined below).
Neither the Company nor any of its Subsidiaries may act as Paying Agent or
Registrar.
4. Indenture. The Company issued the Notes under an Indenture, dated as
of November 4, 2003 (the "Indenture"), among the Company, the Subsidiary
Guarantors and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 as in effect on the date of the Indenture.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note conflicts with
the express provisions of the Indenture, the provisions of the Indenture shall
govern and be controlling. The Indenture pursuant to which the Notes are issued
provides that an unlimited aggregate principal amount of Notes may be issued
thereunder.
5. Guarantees. The Notes are general senior subordinated unsecured
obligations of the Company. The Company's obligation to pay principal, premium,
if any, and interest with respect to the Notes is unconditionally guaranteed on
a senior subordinated basis, jointly and severally, by the Subsidiary Guarantors
pursuant to Article Eleven of the Indenture. Certain limitations to the
obligations of the Subsidiary Guarantors are set forth in further detail in the
Indenture.
6. Subordination. Each Holder by accepting this Note agrees, that
payment of principal, premium, if any, and interest on (or any other Obligations
relating to) the Notes is subordinated in right of payment, to the extent and in
the manner provided in Article Ten of the Indenture, to the prior payment in
full in cash of all Senior Debt of the Company (whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Debt. Each Holder by
accepting this Note agrees, that any payment in respect of the Subsidiary
Guarantee of each Subsidiary Guarantor is subordinated in right of payment, to
the extent and in the manner provided in Article Twelve of the Indenture, to the
prior payment in full in cash of all Senior Debt of the Company and such
Subsidiary Guarantor (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the subordination is for the
benefit of the holders of Senior Debt.
7. Optional Redemption. Except as described below, the Notes will not
be redeemable at the Company's option prior to November 1, 2008. At any time on
or after November 1, 2008, the Company may, at its option, redeem all or any
portion of the Notes, subject to any restrictions or other provisions relating
thereto in any Senior Debt, at the redemption prices (expressed as percentages
of the principal amount of the Notes) set forth below, plus, in each case,
accrued interest thereon to the applicable redemption date, if redeemed during
the 12-month period beginning November 1 of the years indicated below:
Year Percentage
---- ----------
2008 104.500%
2009 103.000%
2010 101.500%
2011 and thereafter 100.000%
Notwithstanding the foregoing, at any time and from time to time on or
prior to November 1, 2006, the Company may redeem in the aggregate up to 35% of
the aggregate original principal amount of the Notes issued under the Indenture
with the net cash proceeds of one or more Equity Offerings, at a redemption
price (expressed as a percentage of principal amount) of 109.000%, plus accrued
and unpaid interest, if any, to the redemption date (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date); provided, however, that (1) at least 65% of the
aggregate principal amount of the Notes originally issued under the Indenture
must remain outstanding after each such redemption and (2) any such redemption
must occur within 60 days of the date of the closing of the Equity Offering.
8. Mandatory Redemption. The Company shall not be required to make
mandatory redemption payments or sinking fund payments with respect to the
Notes.
9. Selection and Notice of Redemption. Notice of redemption will be
mailed to the Holder's registered address at least 30 days but not more than 60
days before the redemption date to each Holder of Notes to be redeemed. If less
than all Notes are to be redeemed, the Trustee shall select the Notes to be
redeemed in multiples of $1,000 pro rata, by lot or by any other method that the
Trustee considers fair and appropriate; provided that if the Notes are listed on
any securities exchange, that such method complies with the requirements of such
exchange. Notes in denominations larger than $1,000 may be redeemed in part. On
and after the redemption date interest ceases to accrue on Notes or portions of
them called for redemption (unless the Company shall default in the payment of
the redemption price or accrued interest).
10. Repurchase at Option of Holder. (a) Upon the occurrence of a Change
of Control, each Holder of Notes will have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
such Holder's Notes pursuant to a Change of Control Offer at an offer price in
cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest thereon, to the date of purchase. Within 30 days following any
Change of Control, the Company will mail a notice to each Holder describing,
among other things, the transaction or transactions that constitute the Change
of Control and offering to repurchase Notes on the date specified in such
notice, which date shall be no earlier than 30 days and no later than 90 days
from the date such notice is mailed, pursuant to the procedures required by the
Indenture and described in such notice.
(b) Within 365 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply such Net Proceeds at its option to (1) prepay, repay
or purchase Senior Debt and, if the Senior Debt repaid is revolving credit
Indebtedness, to correspondingly reduce commitments with respect thereto;
provided, however, that if any Net Proceeds received in any Build-to-Suit
Sale-Leaseback Transaction or any Expansion Equipment Sale-Leaseback Transaction
are used to repay revolving credit Indebtedness, no corresponding reduction in
commitments with respect thereto will be required; or (2) to purchase
Replacement Assets or to make a capital expenditure in or that is used or useful
in a Permitted Business or enter into a
commitment to do so. Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph shall constitute "Excess
Proceeds." Within 30 days after the aggregate amount of Excess Proceeds exceeds
$10.0 million, the Company shall make an "Asset Sale Offer" to all Holders of
Notes, and all holders of other Indebtedness that is pari passu with the Notes
or any Subsidiary Guarantee containing provisions similar to those set forth in
this Indenture with respect to offers to purchase with the proceeds of sales of
assets, to purchase the maximum principal amount of Notes and such other pari
passu Indebtedness that may be purchased out of the Excess Proceeds. The offer
price in any Asset Sale Offer shall be equal to 100% of principal amount of the
Notes purchased plus accrued and unpaid interest thereon to the date of
purchase, and shall be payable in cash. If any Excess Proceeds remain after
consummation of an Asset Sale Offer, the Company may use such Excess Proceeds
for any purpose not otherwise prohibited by this Indenture. If the aggregate
principal amount of Notes and such other pari passu Indebtedness tendered into
such Asset Sale Offer exceeds the amount of Excess Proceeds, the Trustee shall
select the Notes and such other pari passu Indebtedness to be purchased on a pro
rata basis based on the principal amount of Notes and such other pari passu
Indebtedness tendered. Upon completion of each Asset Sale Offer, the amount of
Excess Proceeds shall be reset at zero.
11. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and whole multiples of $1,000. A
Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company is not required to transfer or exchange any Notes selected for
redemption. Also, the Company is not required to transfer or exchange any Notes
for a period of 15 days before the mailing of a notice of redemption of Notes to
be redeemed.
12. Persons Deemed Owners. The registered Holder of a Note may be
treated as the owner of it for all purposes and neither the Company, any
Subsidiary Guarantor, the Trustee nor any Agent shall be affected by notice to
the contrary.
13. Amendment, Supplement, Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in aggregate principal amount of the Notes, and
any past default or noncompliance with any provision may be waived with the
consent of the Holders of a majority in aggregate principal amount of the Notes.
Without the consent of any Holder, the Company may modify, amend or supplement
the Indenture or the Notes to: cure any ambiguity, defect or inconsistency;
provide for uncertificated Notes in addition to or in place of certificated
Notes; provide for the assumption of the Company's or any Subsidiary Guarantor's
Obligations to the Holders of the Notes in the case of a merger or consolidation
or sale of all or substantially all of the Company's or such Subsidiary
Guarantor's assets pursuant to the provisions of Section 5.01, 4.20(B) or 4.11
of the Indenture; to make any change that would provide any additional benefit
or rights to the Holders or that does not adversely affect the legal rights
under the Indenture of any such Holder; to comply with requirements of the
Commission in order to effect or maintain the qualification of this Indenture
under the TIA; to comply with Sections 4.20 (Release of Subsidiary Guarantees)
and 4.22 (Additional Subsidiary Guarantors) of the Indenture; evidence and
provide
for the acceptance of appointment by a successor Trustee; or to provide for the
issuance of Additional Notes in accordance with the Indenture.
14. Defaults and Remedies. If an Event of Default (other than an Event
of Default related to bankruptcy or insolvency of the Company, any Subsidiary
Guarantor or any Significant Subsidiary (or any Subsidiaries of the Company
that, taken together as a whole, would constitute a Significant Subsidiary))
under the Indenture occurs and is continuing, then and in every such case the
Trustee or the Holders of at least 25% in principal amount of the outstanding
Notes may declare the unpaid principal of, premium, if any, and accrued and
unpaid interest on, all the Notes then outstanding to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee, if given
by Holders) specifying the respective Event of Default and upon any such
declaration such principal, premium, if any, and accrued and unpaid interest
shall become immediately due and payable; provided, however, that so long as any
Obligations under any Credit Agreement shall be outstanding or the commitments
thereunder have not been terminated, that acceleration shall not be effective
until the earlier of (1) the acceleration of all Obligations under the Credit
Agreement or (2) five business days after receipt by the administrative agent
under the Credit Agreement of written notice of the acceleration of the Notes.
If an Event of Default related to bankruptcy or insolvency of the Company, any
Subsidiary Guarantor or any Significant Subsidiary (or any Subsidiaries of the
Company that, taken together as a whole, would constitute a Significant
Subsidiary) occurs, all unpaid principal of, and accrued interest on, the Notes
then outstanding will become due and payable immediately, without any
declaration or other act on the part of the Trustee or any Holder. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture. The
Trustee may require indemnity and security satisfactory to it before it enforces
the Indenture or the Notes. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Notes may direct the Trustee in
its exercise of any trust or power.
15. Trustee Dealings with Company and Subsidiary Guarantors. The
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with the Company, the
Subsidiary Guarantors or their respective Subsidiaries or Affiliates with the
same rights it would have if it were not Trustee.
16. Authentication. This Note shall not be valid until the Trustee or
an authenticating agent signs the certificate of authentication on the other
side of this Note.
17. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company will cause
CUSIP numbers to be printed on the Notes as a convenience to Holders of the
Notes. No representation is made as to the accuracy of such numbers as printed
on the Notes and reliance may be placed only on the other identification numbers
printed hereon.
18. No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company, any Subsidiary Guarantor or the Trustee,
shall not have any liability for any obligations of the Company, any Subsidiary
Guarantor or the Trustee, under the Notes, the Subsidiary Guarantees or the
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
19. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to: O'Charley's Inc., 3038
Sidco Drive, Nashville, Tennessee 37204, Attention: A. Chad Fitzhugh.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to:
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint as agent to
-------------------------------------------
transfer this Note on the books of the Company. The agent may substitute
another to act for him.
- --------------------------------------------------------------------------------
Your Signature:
-----------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
Your Name:
----------------------------------------------------------------------
Date:
------------------------------------------
Signature Guarantee:
------------------------------------------------------------
FORM OF OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.11 or Section 4.16 of the Indenture, check the box: [ ]
If you want to have only part of this Note purchased by the Company
pursuant to Section 4.11 or Section 4.16 of the Indenture, state the amount (in
integral multiples of $1,000:
$
--------------------------
Date: Signature:
---------------------- --------------------------------
(Sign exactly as your name appears on the
other side of this Note)
Name:
---------------------------------------------------------------------------
Signature Guarantee:
------------------------------------------------------------
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
========================================================================================
PRINCIPAL
AMOUNT OF AMOUNT OF AMOUNT OF THIS SIGNATURE OF
DECREASE IN INCREASE IN GLOBAL NOTE AUTHORIZED
PRINCIPAL PRINCIPAL FOLLOWING SUCH SIGNATORY OF
DATE OF AMOUNT OF THIS AMOUNT OF THIS DECREASE OR TRUSTEE OR NOTES
EXCHANGE GLOBAL NOTE GLOBAL NOTE INCREASE CUSTODIAN
========================================================================================