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EXHIBIT 4.6
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DENAMERICA CORP.,
a Georgia corporation
As Issuer,
AND
STATE STREET BANK AND TRUST COMPANY,
as Trustee
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SUPPLEMENTAL INDENTURE (SERIES B NOTES)
Dated as of July __, 1996
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Supplemental to the Indenture
between
DenAmerica Corp.
and
State Street Bank and Trust Company
dated as of March 29, 1996
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SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE, dated as of July __, 1996, between DENAMERICA
CORP., a corporation duly organized and existing under the laws of the State of
Georgia (the "Company"), having its principal office at 7373 N. Scottsdale Road,
Suite D120, Scottsdale, Arizona 85253, and STATE STREET BANK AND TRUST COMPANY,
a Massachusetts trust company (the "Trustee"), as Trustee under the Indenture,
dated as of March 29, 1996, between the Company and the Trustee (the
"Indenture").
RECITAL OF THE TRUSTEE
WHEREAS, the Company and the Trustee are parties to that certain
Indenture, dated as of March 29, 1996, pertaining to the Company's Series B 13%
Subordinated Notes due 2003 (the "Series B Notes").
RECITALS OF THE COMPANY
WHEREAS, pursuant to a Stock Purchase Agreement dated as of May 31,
1996 between the Company and BEP Holdings, Inc., a Delaware corporation (the
"Seller"), the Company has agreed to purchase from the Seller all of the
outstanding common stock of Black-eyed Pea Restaurants U.S.A., Inc. ("BEP USA");
WHEREAS, a portion of the consideration to be paid by the Company will
consist of a senior subordinated promissory note of the Company (the "Purchase
Price Note");
WHEREAS, on or prior to the date of this Supplemental Indenture, the
Company has repaid the Series A Debt (as defined in the Indenture) in full;
WHEREAS, the Company desires, pursuant to Section 7.1 of the Indenture,
to execute this Supplemental Indenture in order to amend the Indenture to
reflect the issuance of the Purchase Price Note and the repayment of the Series
A Debt, to subordinate the Series B Notes to the Purchase Price Note and make
certain other changes; and
WHEREAS, the Company has duly authorized the execution and delivery of
this Supplemental Indenture and has obtained consents from the Holders of a
majority in aggregate principal amount of the Series B Notes in order for such
provisions to be amended.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree for the equal and proportionate benefit
of all Holders of the Series B Notes, as follows:
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Section 1. Section 1.1 shall be amended as follows:
(a) The definition of "Company Intercreditor Agreement" shall be
deleted in its entirety and replaced with the following:
""Company Intercreditor Agreement" means the Intercreditor
Agreement, dated as of July __, 1996, among the Company, certain
Holders and the Trustee."
(b) The following definitions shall be inserted immediately
following the definition of the term "property":
""Purchase Price Debt" means all Indebtedness of the Company
or any of its Subsidiaries, contingent or otherwise, now or hereafter
existing, under or with respect to: (a) the Purchase Price Debt
Documents in an aggregate outstanding principal amount not exceeding
the sum of (i) $15,000,000, plus (ii) the aggregate principal amount of
Indebtedness evidenced by securities issued in payment of accrued
interest on any Purchase Price Debt, less (iii) the amount of all
permanent payments of principal made under the Purchase Price Debt
Documents from time to time after the date hereof; and (b) interest
(including interest accruing at the contract rate after the
commencement of any Insolvency or Liquidation Proceeding, whether or
not such interest is an allowed claim in such Insolvency or Liquidation
Proceeding) accrued on the outstanding principal described in clause
(a) and other amounts owing under the Purchase Price Debt Documents,
and premiums, fees, costs, expenses, indemnities, reimbursements and
other amounts owing under the Purchase Price Debt Documents.
"Purchase Price Debt Documents" means, collectively, (a) the
Purchase Price Note, (b) each instrument or agreement pursuant to which
obligations under the Purchase Price Note or any subsequent Purchase
Price Debt Document are deferred, extended, renewed, replaced, refunded
or refinanced, in whole or in part, and without limitation as to
parties, maturities, principal amount, interest rates or other
provisions, and (c) each other instrument or agreement executed in
connection with or evidencing, governing, guarantying or securing any
Indebtedness or other obligations under any instrument or agreement
referred to in the foregoing clauses (a) and (b); in each case (with
respect to any instrument or agreement referred to in the foregoing
clauses (a), (b) or (c)), as modified, amended or supplemented from
time to time.
"Purchase Price Note" means the Senior Subordinated Promissory
Note issued by the Company to BEP Holdings, Inc. on June __, 1996.""
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(c) The definition of "Senior Indebtedness" shall be deleted in
its entirety and replaced with the following:
""Senior Indebtedness" means the Senior Credit Agreement Debt
and the Purchase Price Debt."
(d) The definitions of "Senior Series A Intercreditor Agreement"
and "Senior Subordinated Intercreditor Agreement" shall be deleted in their
entirety and replaced with the following:
""Senior Purchase Price Debt Intercreditor Agreement" means
the Senior Intercreditor Agreement, dated as of July __, 1996, between
the Agent under the Credit Agreement and the holder of the Purchase
Price Note.
"Senior Subordinated Intercreditor Agreement" means the
Intercreditor Agreement, dated as of July __, 1996, among the Trustee,
certain Holders and the Agent under the Credit Agreement."
(e) The following definitions shall be inserted immediately
following the definition of the term "Special Default Period":
"Sub-Series B-1 Notes" means the Series B Note evidenced on
June 30, 1996 by Certificate No. B-3 in the principal amount of
$1,456,000.00, and any Series B Notes issued upon the transfer,
exchange or replacement of such Series B Note after June 30, 1996.
"Sub-Series B-2 Notes" means the Series B Notes evidenced on
June 30, 1996 by Certificate Nos. B-1 and B-2 in the aggregate
principal amount of $16,794,000, and any Series B Notes issued upon the
transfer, exchange or replacement of such Series B Notes after June 30,
1996."
(f) The definitions of "Series A Debt," "Series A Documents,"
"Series A Indenture" and "Series A Notes" shall be deleted in their entirety.
Section 2. Except in the case of Sections 3.8, 3.9, 4.9(a),
4.10(e)(ii), 4.12(a)(v), 4.12(b), 4.13(b) and 4.13(c) of the Indenture (which
Sections are being separately amended below):
(a) all references in the Indenture and the Series B Notes to "no
Series A Notes are" shall be deleted and replaced with "the Purchase Price Note
is not";
(b) all references in the Indenture and the Series B Notes to "any
Series A Notes are" shall be replaced with "the Purchase Price Note is";
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(c) all other references in the Indenture and the Series B Notes
to "Series A Notes" shall be deleted and replaced with "Purchase Price Note";
(d) all references in the Indenture and the Series B Notes to
"Series A Indenture" shall be deleted and replaced with "Purchase Price Note";
(e) all references in the Indenture and the Series B Notes to
"Series A Debt" shall be deleted and replaced with "Purchase Price Debt";
(f) all references in the Indenture and the Series B Notes to
"Series A Documents" shall be deleted and replaced with "Purchase Price Debt
Documents"; and
(g) all references in the Indenture and the Series B Notes to
"Senior Series A Intercreditor Agreement" shall be deleted and replaced with
"Senior Purchase Price Debt Intercreditor Agreement".
All references in the Indenture and the Series B Notes to "Section VIII of the
Series A Indenture and" shall be deleted in their entirety.
Section 3. The second paragraph of Section 3.1 shall be deleted in its
entirety and replaced with the following:
"If the Company is required to offer to redeem Sub-Series B-1
Notes or Sub-Series B-2 Notes pursuant to Section 4.13(b)(i) or
4.13(c), respectively, it shall furnish the Trustee, at least five (5)
Business Days before notice of the Offer is to be mailed to Holders, an
Officers' Certificate stating (a) that the Offer is being made pursuant
to Section 4.13(b)(i) or 4.13(c), as the case may be, (b) the
Redemption Date, (c) the maximum principal amount of Sub-Series B-1
Notes or Sub-Series B-2 Notes the Company is offering to redeem
pursuant to the Offer, (d) the Redemption Price, and (e) the amount of
accrued and unpaid interest thereon as of the Redemption Date."
Section 4. Sections 3.8 and 3.9 shall be deleted in their entirety and
replaced with the following:
"Section 3.8 Mandatory Offers.
(a) Subject to the terms and conditions set forth herein, if
the Company is required to offer to redeem Sub-Series B-1 Notes or Sub-
Series B-2 Notes under Section 4.13 hereof, then the Company shall
promptly mail a written offer to each Holder (with a copy to the
Trustee) to redeem Sub-Series B-1 Notes or Sub-Series B-2 Notes (as
applicable) ("Offer"), which Offer shall contain all instructions and
materials necessary
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to enable such Holders to tender Sub-Series B-1 Notes or Sub-Series B-2
Notes (as applicable) for redemption pursuant to the Offer and stating:
(i) that an Offer is being made pursuant to Section 4.13 (b)(i) or (c)
(as applicable), the length of time the Offer shall remain open, and
the maximum aggregate principal amount of the Sub-Series B-1 Notes or
Sub-Series B-2 Notes (as applicable) that the Company is required to
redeem pursuant to such Offer; (ii) the Redemption Price for the Sub-
Series B-1 Notes or Sub-Series B-2 Notes (as applicable), the amount of
accrued and unpaid interest on such Sub-Series B-1 Notes or Sub-Series
B-2 Notes (as applicable) as of the Redemption Date, and the Redemption
Date (which date shall be not less than 20 days nor more than 40 days
after the date the Offer is mailed); (iii) that any Sub-Series B-1
Notes or Sub-Series B-2 Notes (as applicable) not tendered for
redemption will continue to accrue interest if interest is then
accruing; (iv) that, unless the Company fails to deposit with the
Paying Agent on the Redemption Date an amount sufficient to purchase
all Sub-Series B-1 Notes or Sub-Series B-2 Notes (as applicable)
tendered for redemption, interest shall cease to accrue after the
Redemption Date on Sub-Series B-1 Notes or Sub-Series B-2 Notes (as
applicable) tendered for redemption; (v) that Holders electing to
tender any Sub-Series B-1 Notes or Sub-Series B-2 Notes (as applicable)
or portion thereof for redemption will be required to surrender such
Sub-Series B-1 Notes or Sub-Series B- 2 Notes (as applicable), with a
form entitled "Option of Holder to Elect Redemption" completed, to the
Paying Agent at the address specified in the Offer prior to the close
of business on the Business Day preceding the Redemption Date, provided
that Holders electing to tender only a portion of any Sub-Series B-1
Notes or Sub-Series B-2 Notes (as applicable) for redemption must
tender a principal amount of $1,000 or integral multiples thereof; (vi)
that Holders will be entitled to withdraw their election to tender
Sub-Series B-1 Notes or Sub-Series B-2 Notes (as applicable) for
redemption if the Paying Agent receives, not later than the close of
business on the second Business Day preceding the Redemption Date, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of Sub-Series B-1 Notes or
Sub-Series B-2 Notes (as applicable) tendered for redemption, and a
statement that such Holder is withdrawing his election to have such
Sub-Series B-1 Notes or Sub-Series B-2 Notes (as applicable) (or
portions thereof) redeemed; and (vii) that Holders whose Sub-Series B-1
Notes or Sub-Series B-2 Notes (as applicable) are tendered for
redemption in part will be issued new Sub-Series B-1 Notes or
Sub-Series B-2 Notes (as applicable) equal in principal amount to the
unredeemed portion of Sub-Series B-1 Notes or Sub-Series B-2 Notes (as
applicable) surrendered.
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(b) Subject to the provisions of Article VIII and the
restrictions on redemption set forth in the Credit Agreement and the
Purchase Price Note, on the Redemption Date for any Offer, the Company
will (i) in the case of an Offer resulting from one or more Equity
Issuances, redeem the maximum principal amount of Sub-Series B-1 Notes
or Sub-Series B-2 Notes (as applicable) or portions thereof tendered
pursuant to such Offer that can be redeemed out of Excess Securities
Proceeds from such Equity Issuances, (ii) deposit with the Paying Agent
the aggregate Redemption Price of all Sub-Series B-1 Notes or
Sub-Series B-2 Notes (as applicable) or portions thereof to be redeemed
and any accrued and unpaid interest on such Sub-Series B-1 Notes or
Sub-Series B-2 Notes (as applicable) as of the Redemption Date, and
(iii) deliver or cause to be delivered to the Trustee all Sub-Series
B-1 Notes or Sub-Series B-2 Notes (as applicable) tendered pursuant to
the Offer, together with an Officers' Certificate setting forth the
name of each Holder of such Sub-Series B-1 Notes or Sub-Series B-2
Notes (as applicable) and the principal amount of such Sub-Series B-1
Notes or Sub-Series B-2 Notes (as applicable) or portions thereof
tendered by each such Holder. For purposes of this Section 3.8, the
Trustee shall act as the Paying Agent.
(c) With respect to any Offer, (i) if less than all of the
Sub-Series B-1 Notes or Sub-Series B-2 Notes (as applicable) tendered
pursuant to an Offer are to be redeemed by the Company for any reason,
the Company and the Trustee shall select on or prior to the Redemption
Date the Sub-Series B-1 Notes or Sub-Series B-2 Notes (as applicable)
or portions thereof to be redeemed pursuant to Section 3.2, and (ii) if
the Company deposits with the Paying Agent on or prior to the
Redemption Date an amount sufficient to redeem all Sub-Series B-1 Notes
or Sub-Series B-2 Notes (as applicable) that have been tendered,
interest shall cease to accrue on such Sub-Series B-1 Notes or
Sub-Series B-2 Notes (as applicable) as of the Redemption Date;
provided, however, that if the Company fails to deposit an amount
sufficient to redeem all Sub-Series B-1 Notes or Sub-Series B-2 Notes
(as applicable) that have been tendered, the deposited funds shall be
used to redeem on a pro rata basis the Sub-Series B-1 Notes or
Sub-Series B-2 Notes (as applicable) tendered for redemption and
interest shall continue to accrue on all Sub-Series B-1 Notes or
Sub-Series B-2 Notes (as applicable), or the portion thereof, as
applicable, not redeemed.
(d) Subject to the provisions of Article VIII and the
restrictions on redemption set forth in the Credit Agreement and the
Purchase Price Note, promptly after consummation of an Offer, (i) the
Paying Agent shall mail to each Holder of Sub-Series B-1 Notes or
Sub-Series B-2 Notes (as applicable) or portions thereof accepted for
redemption, an amount equal
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to the Redemption Price for, plus any accrued and unpaid interest on,
such Sub-Series B-1 Notes or Sub-Series B-2 Notes (as applicable), (ii)
with respect to any tendered Sub-Series B-1 Notes or Sub-Series B-2
Notes (as applicable) not accepted for redemption in whole or in part,
the Trustee shall return such Sub-Series B-1 Notes or Sub-Series B-2
Notes (as applicable) to the Holder thereof, and (iii) with respect to
any Sub-Series B-1 Notes or Sub-Series B-2 Notes (as applicable)
accepted for redemption, in part, the Trustee shall authenticate and
mail to each such Holder new Sub-Series B-1 Notes or Sub-Series B-2
Notes (as applicable) equal in principal amount to the unredeemed
portion of the tendered Sub-Series B-1 Notes or Sub-Series B-2 Notes
(as applicable).
(e) The Company will (i) publicly announce the results of the
Offer on or as soon as practicable after the Redemption Date, and (ii)
comply with Rule 14e-1 under the Exchange Act and any other securities
laws and regulations to the extent such laws and regulations are
applicable to any Offer.
Section 3.9 Certain Acknowledgments. The Holders acknowledge
that (a) the Purchase Price Note prohibits the redemption of Series B
Notes by the Company at any time while the Purchase Price Note is
outstanding (other than redemptions of Sub-Series B-1 Notes pursuant to
Section 4.13(b)(i) hereof), and (b) that the Company shall not be
permitted by the Purchase Price Note, and shall have no obligation
hereunder, to redeem or make any offer to redeem any Series B Notes at
any time while the Purchase Price Note is outstanding (other than
redemptions of Sub-Series B-1 Notes pursuant to Section 4.13(b)(i)
hereof)."
Section 5. Section 4.9(a) shall be deleted in its entirety and replaced
with the following:
"(a) Indebtedness of the Company under or in respect of the
Purchase Price Note, as in effect on the date of its issuance or as
amended, in an aggregate principal amount not to exceed $15,000,000
(plus any interest which is added to principal or capitalized under the
terms of the Purchase Price Note), less the amount of any repayment or
prepayment of the Purchase Price Note;".
Section 6. Section 4.10(e)(ii) shall be deleted in its entirety and
replaced with the following:
"(ii) Excess Securities Proceeds remaining after (x) the redemption of
Sub-Series B-1 Notes tendered pursuant to an Offer by the Company under
Section 4.13(b)(i), (y) the prepayment of the Purchase Price Note
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pursuant to Section 2(d) thereof with any Excess Securities Proceeds
after such redemption of Sub-Series B-1 Notes and (z) the redemption of
Sub-Series B-2 Notes tendered pursuant to an Offer by the Company under
Section 4.13(c) with any Excess Securities Proceeds after such
redemptions of Sub-Series B-1 Notes and the Purchase Price Note, or"
Section 7. Section 4.12(a)(C) shall be deleted in its entirety and
replaced with the following:
"(C) the Purchase Price Note, provided that such encumbrances or
restrictions are no more burdensome than those in effect under the
Purchase Price Note on the date of its issuance,".
Section 8. Section 4.12(b) shall be deleted in its entirety and
replaced with the following:
"(b) The Company will not enter into or become bound by any
agreement or instrument that directly restricts the Company from making
any payment on or in respect of the Series B Notes, except for the
Credit Agreement, the Purchase Price Note, the Intercreditor Agreements
and the documents governing any refinancing of the Purchase Price Note,
provided, that such restrictions are not more restrictive than the
restrictions provided in the Credit Agreement and the Intercreditor
Agreements as in effect on July __, 1996 and the terms of the Purchase
Price Note as in effect on the date of its issuance."
Section 9. Sections 4.13(b) and (c) shall be deleted in their entirety
and replaced with the following:
"(b) (i) If any Sub-Series B-1 Notes are outstanding on the
closing date of such Equity Issuance, the Company shall, if and to the
extent permitted by the Credit Agreement, and subject to the provisions
of Article VIII, commence an Offer to redeem the maximum principal
amount of Sub-Series B-1 Notes that may be redeemed with such Excess
Securities Proceeds (as permitted by the Credit Agreement), at the
Redemption Price therefor, plus accrued but unpaid interest thereon to
the Redemption Date. The Offer shall be effected in accordance with
Section 3.8 and Article III (to the extent applicable) and the
provisions of this Section 4.13. (ii) If (x) the Purchase Price Note is
outstanding on the closing date of such Equity Issuance and (y) no
Sub-Series B-1 Notes are outstanding on the closing date of such Equity
Issuance or, in the event that there are Sub-Series B-1 Notes
outstanding on such date, there are Excess Securities Proceeds
remaining after the making of the Offer to
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redeem Sub-Series B-1 Notes under Section 4.13(b)(1) above, then the
Excess Securities Proceeds shall be applied to repay the Purchase Price
Note in accordance with Section 2(d) of the Purchase Price Note,
subject to the terms of the Credit Agreement. Any Excess Securities
Proceeds which are in excess of the aggregate principal amount of the
Sub-Series B-1 Notes outstanding on the closing date of such Equity
Issuance (plus accrued but unpaid interest thereon through the
Redemption Date) shall be immediately available for application to the
repayment of the Purchase Price Note in accordance with Section 2(d) of
the Purchase Price Note. If, after the making of redemptions pursuant
to the Offer to the Holders of Sub-Series B-1 Notes, there are any
Excess Securities Proceeds remaining from the portion of the aggregate
Excess Securities Proceeds which was not immediately available for
application to the repayment of the Purchase Price Note by reason of
the preceding sentence, such remaining Excess Securities Proceeds shall
be made available for application to the repayment of the Purchase
Price Note."
(c) If (x) the Sub-Series B-1 Notes are not, and the Purchase
Price Note is not, outstanding on the closing date of such Equity
Issuance or (y) in the event that the Series B-1 Notes are, or the
Purchase Price Note is, outstanding on the closing date of such Equity
Issuance and there are Excess Securities Proceeds remaining after the
making of the Offer to redeem the Sub-Series B-1 Notes under Section
4.13(b)(1) above and the repayment of the Purchase Price Note in
accordance with Section 2(d) of the Purchase Price Note, then the
Company shall, if and to the extent permitted by the Credit Agreement,
and subject to the provisions of Article VIII, commence an Offer to
redeem the maximum principal amount of Sub-Series B-2 Notes that may be
redeemed with such Excess Securities Proceeds (in the case of clause
(x) above) or such remaining Excess Securities Proceeds (in the case of
clause (y) above)(in each case as permitted by the Credit Agreement),
at the Redemption Price therefor, plus accrued but unpaid interest
thereon to the Redemption Date. The Offer shall be effected in
accordance with Section 3.8 and Article III (to the extent applicable)
and the provisions of this Section 4.13. To the extent that any Excess
Securities Proceeds remain after redemption of all Series B Notes
tendered for redemption pursuant to such Offer, the Company may use the
remaining amount for any purpose not prohibited by this Indenture."
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Section 10. Schedule 4.13 shall be amended by adding the following:
"Purchase Price Warrants
See attached Purchase Price Warrant Certificate issued by DenAmerica
to BEP Holdings, Inc. in connection with the issuance of the Purchase
Price Note."
A copy of the Purchase Price Warrant issued by DenAmerica to BEP
Holdings, Inc. in connection with the issuance of the Purchase Price Note shall
be attached to Schedule 4.13.
Section 11. From and after the date hereof, the Indenture, as
supplemented by this Supplemental Indenture, shall be read, taken and construed
as one and the same instrument with respect to the Series B Notes.
Section 12. This Supplemental Indenture may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instruments.
* * * * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the day and year above written.
DENAMERICA CORP.
By:___________________________________
Title:________________________________
Attest:
_____________________________________
Title:_______________________________
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:___________________________________
Title:________________________________
Attest:
_____________________________________
Title:_______________________________
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STATE OF ) ___________________
) ss:
COUNTY OF ) ___________________
On this _____ day of June, 1996, before me, a Notary Public in and for
said County and State, personally appeared the within named _____________
and____________, to me known, who each being first duly and severally sworn did
say that they, said _____________ and____________, are the _____________
and____________ of DENAMERICA CORP., respectively; that the seal affixed to the
foregoing instrument is the seal of said corporation; that said instrument was
signed and sealed in behalf of said corporation by authority of its Board of
Directors; and that _____________ and____________ each acknowledges the
execution of said instrument to be the free act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the date first hereinabove written.
____________________________________________
Notary Public, State of ____________________
[SEAL]
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COMMONWEALTH OF ) Boston
MASSACHUSETTS )
) ss:
COUNTY OF SUFFOLK ) __________________
On this _____ day of June, 1996, before me, a Notary Public in and for
said County and State, personally appeared the within named ___________________,
__________________________ to me known, who each being first duly and severally
sworn did say that s/he, is the __________________________ of STATE STREET BANK
AND TRUST COMPANY; that the seal affixed to the foregoing instrument is the seal
of said corporation; that said instrument was signed and sealed in behalf of
said corporation by authority of its Board of Directors; and that s/he
acknowledges the execution of said instrument to be the free act and deed of
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the date first hereinabove written.
____________________________________________
Notary Public, Commonwealth of Massachusetts
[SEAL]