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Exhibit 4.2 Form of Supplemental Indenture
COMMERCIAL NET LEASE REALTY, INC.
as Issuer
to
FIRST UNION NATIONAL BANK
as Trustee
Supplemental Indenture No. 3
Dated as of September 20, 2000
------------------------------------------------
Supplementing the Indenture dated as of March 25, 1998
------------------------------------------------
$20,000,000
of
8.50% Notes due 2010
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SUPPLEMENTAL INDENTURE NO. 3, dated as of September 20, 2000
(the "Supplemental Indenture No. 3"), between COMMERCIAL NET LEASE REALTY, INC.,
a corporation duly organized and existing under the laws of the State of
Maryland (herein called the "Company"), and First Union National Bank, a
national banking association duly organized and existing under the laws of the
United States of America, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company and the Trustee are parties to an Indenture, dated
as of March 25, 1998 (the "Original Indenture"), as supplemented by Supplemental
Indenture No. 1 dated as of March 25, 1998 and Supplemental Indenture No. 2
dated as of June 21, 1999 (together with the Original Indenture and this
Supplemental Indenture No. 3, the "Indenture") a form of which has been filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, as an exhibit to the Company's Registration Statement on Form S-3
(Registration No. 333-24773), providing for the issuance from time to time of
Debt Securities of the Company (the "Securities").
The Company has heretofore issued, pursuant to the Indenture,
$100,000,000 aggregate principal amount of 7-1/8% Notes due 2008 and
$100,000,000 aggregate principal amount of 8.125% notes due 2004.
The Company has commenced an offering of 8.50% Notes due 2010
(the "8.50% Notes").
Section 3.1 of the Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be established
in an indenture supplemental to the Indenture.
Section 9.1(7) of the Indenture provides for the Company and
the Trustee to enter into an indenture supplemental to the Indenture to
establish the form or terms of Securities of any series as provided by Sections
2.1 and 3.1 of the Indenture.
The Board of Directors of the Company has duly adopted
resolutions authorizing the Company to execute and deliver this Supplemental
Indenture No. 3.
All the conditions and requirements necessary to make this
Supplemental Indenture No. 3, when duly executed and delivered, a valid and
binding agreement in accordance with its terms and for the purposes herein
expressed, have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 3 WITNESSETH:
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For and in consideration of the premises and the purchase of
each of the series of Securities provided for herein by the Holders thereof, it
is mutually covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities, as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.1. Relation to Indenture.
This Supplemental Indenture No. 3 constitutes an integral part
of the Indenture.
SECTION 1.2. Definitions.
For all purposes of this Supplemental Indenture No. 3, the
following terms shall have the meanings specified except as otherwise expressly
provided for or unless the context otherwise requires. Capitalized terms used
but not defined herein shall have the respective meanings assigned to them in
the Indenture. All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this Supplemental
Indenture No. 3.
"8.50% Notes" has the meaning given in the Recitals of the
Company.
"Acquired Indebtedness" means Indebtedness of a Person (i)
existing at the time such Person becomes a Subsidiary or (ii) assumed in
connection with the acquisition of assets from such Person, in each case, other
than Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be
deemed to be incurred on the date of the related acquisition of assets from any
Person or the date the acquired Person becomes a Subsidiary.
"Advisor Transaction" means the merger of CNL Realty Advisors,
Inc. with and into a wholly-owned subsidiary of the Company which was
consummated on January 1, 1998.
"Annual Debt Service Charge" for any period means the
aggregate interest expense for such period in respect of, and the amortization
during such period of any original issue discount of, Indebtedness of the
Company and its Subsidiaries and the amount of dividends which are payable
during such period in respect of any Disqualified Stock.
"Business Day" means any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in the
City of New York or in the City of Charlotte are authorized or required by law,
regulation or executive order to close.
"Capital Stock" means, with respect to any Person, any capital
stock (including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
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"Consolidated Income Available for Debt Service" for any
period means Earnings from Operations of the Company and its Subsidiaries plus
amounts which have been deducted, and minus amounts which have been added, for
the following (without duplication): (i) interest on Indebtedness of the Company
and its Subsidiaries, (ii) provision for taxes of the Company and its
Subsidiaries based on income, (iii) amortization of debt discount, (iv)
provisions for gains and losses on properties and property depreciation and
amortization, (v) the effect of any noncash charge resulting from a change in
accounting principles in determining Earnings from Operations for such period
and (vi) amortization of deferred charges.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business for this transaction
shall be principally administered, which office at the date hereof is located at
000 Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, and for purposes of
the Place of Payment provisions of Sections 3.5 and 10.2 of the Indenture, is
located at 0000 Xxxx X.X. Xxxxxx Xxxx., Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000.
"Disqualified Stock" means, with respect to any Person, any
Capital Stock of such Person which by the terms of such Capital Stock (or by the
terms of any security into which it is convertible or for which it is
exchangeable or exercisable), upon the happening of any event or otherwise (i)
matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise (other than Capital Stock which is redeemable solely in exchange for
common stock), (ii) is convertible into or exchangeable or exercisable for
Indebtedness or Disqualified Stock or (iii) is redeemable at the option of the
holder thereof, in whole or in part (other than Capital Stock which is
redeemable solely in exchange for Capital Stock which is not Disqualified Stock
or the redemption price of which may, at the option of such Person, be paid in
Capital Stock which is not Disqualified Stock), in each case on or prior to the
Stated Maturity of the Notes.
"Earnings from Operations" for any period means net earnings
excluding (i) gains and losses on sales of investments, extraordinary items and
property valuation losses and (ii) costs and expenses associated with the
Advisor Transaction, net as reflected in the financial statements of the Company
and its Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP (which will include the fair market value, at the time of
issuance, of the shares of the Company's common stock, $.01 par value, issuable
to the former stockholders of CNL Realty Advisors, Inc. as a result of the
Advisor Transaction, and reasonable attorneys' and accountants' fees and
miscellaneous other expenses incurred by the Company in connection therewith),.
"Encumbrance" means any mortgage, lien, charge, pledge or
security interest of any kind.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder by the Commission.
"GAAP" means generally accepted accounting principles as used
in the United States applied on a consistent basis as in effect from time to
time; provided that solely for purposes of any calculation required by the
financial covenants contained herein, "GAAP" shall
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mean generally accepted accounting principles as used in the United States on
the date hereof, applied on a consistent basis.
"Indebtedness" of the Company or any Subsidiary means any
indebtedness of the Company or any Subsidiary, whether or not contingent, in
respect of (i) borrowed money or evidenced by bonds, notes, debentures or
similar instruments whether or not such indebtedness is secured by any
Encumbrance existing on property owned by the Company or any Subsidiary, (ii)
indebtedness for borrowed money of a Person other than the Company or a
Subsidiary which is secured by any Encumbrance existing on property owned by the
Company or any Subsidiary, to the extent of the lesser of (x) the amount of
indebtedness so secured and (y) the fair market value (as determined in good
faith by the Board of Directors of the Company) of the property subject to such
Encumbrance, (iii) the reimbursement obligations, contingent or otherwise, in
connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade
payable, or all conditional sale obligations or obligations under any title
retention agreement, (iv) the principal amount of all obligations of the Company
or any Subsidiary with respect to redemption, repayment or other repurchase of
any Disqualified Stock, or (v) any lease of property by the Company or any
Subsidiary as lessee which is reflected on the Company's consolidated balance
sheet as a capitalized lease in accordance with GAAP, and also includes, to the
extent not otherwise included, any obligation by the Company or any Subsidiary
to be liable for, or to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business), Indebtedness of
another Person (other than the Company or any Subsidiary) (it being understood
that Indebtedness shall be deemed to be incurred by the Company or any
Subsidiary whenever the Company or such Subsidiary shall create, assume,
guarantee or otherwise become liable in respect thereof).
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Note, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated payment
of each dollar of principal being redeemed or paid and the amount of interest
(exclusive of interest accrued to the date of redemption or accelerated payment)
that would have been payable in respect of such dollar if such redemption or
accelerated payment had not been made, determined by discounting, on a
semi-annual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date such notice of
Redemption is given or declaration of acceleration is made) from the respective
dates on which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the aggregate
principal amount of the Notes being redeemed or paid.
"Redemption Price" has the meaning specified in Section 2.5
hereof.
"Reinvestment Rate" means .25 percent (twenty-five one
hundredths of one percent) plus the arithmetic mean of the yields under the
respective headings "This Week" and "Last Week" published in the Statistical
Release under the caption "Treasury Constant Maturities" for the maturity
(rounded to the nearest month) corresponding to the remaining life to maturity,
as of the payment date of the principal being redeemed or paid. If no maturity
exactly
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corresponds to such maturity, yields for the two published maturities most
closely corresponding to such maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding in each of
such relevant periods to the nearest month. For such purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Make-Whole Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities or, if such
statistical release is not published at the time of any determination of the
Make-Whole Amount, then such other reasonably comparable index which shall be
designated by the Company.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which a majority of (i) the voting power of the
voting equity securities or (ii) the outstanding equity interests of which are
owned, directly or indirectly, by such Person. For the purposes of this
definition, "voting equity securities" means equity securities having voting
power for the election of directors, whether at all times or only so long as no
senior class of security has such voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i) the
Undepreciated Real Estate Assets and (ii) all other assets of the Company and
its Subsidiaries determined on a consolidated basis in accordance with GAAP
(but excluding accounts receivable and intangibles).
"Total Unencumbered Assets" means the sum of (i) those
Undepreciated Real Estate Assets not subject to an Encumbrance for borrowed
money and (ii) all other assets of the Company and its Subsidiaries not subject
to an Encumbrance for borrowed money, all determined on a consolidated basis in
accordance with GAAP (but excluding accounts receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate assets of the
Company and its Subsidiaries on such date, before depreciation and amortization,
determined on a consolidated basis in accordance with GAAP.
"Unsecured Indebtedness" means Indebtedness which is not
secured by any Encumbrance upon any of the properties of the Company or any
Subsidiary.
ARTICLE TWO
THE SERIES OF NOTES
SECTION 2.1. Title of the Securities.
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There shall be a series of Securities designated the "8.50%
Notes due 2010."
SECTION 2.2. Limitation on Aggregate Principal Amount.
(a) The aggregate principal amount of the 8.50% Notes
shall be limited to $20,000,000, and, except as provided in this Section and in
Section 3.6 of the Indenture, the Company shall not execute and the Trustee
shall not authenticate or deliver 8.50% Notes in excess of such aggregate
principal amount.
(b) Nothing contained in this Section 2.2 or elsewhere in
this Supplemental Indenture No. 3, or in the 8.50% Notes, is intended to or
shall limit execution by the Company or authentication or delivery by the
Trustee of 8.50% Notes under the circumstances contemplated by Sections 3.3,
3.4, 3.5, 3.6, 9.6, 11.7 and 13.5 of the Indenture.
SECTION 2.3. Interest and Interest Rates; Maturity Date of
8.50% Notes.
(a) The 8.50% Notes will bear interest at a rate of 8.50%
per annum, from September 20, 2000 or from the immediately preceding Interest
Payment Date to which interest has been paid or duly provided for, payable
semi-annually in arrears on March 20 and September 20 of each year, commencing
March 20, 2001 (each, an "Interest Payment Date"), to the Person in whose name
such 8.50% Note is registered at the close of business on March 10 or September
10 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date (each, a "Regular Record Date"). Interest on the 8.50%
Notes will be computed on the basis of a 360-day year comprised of twelve 30-day
months.
(b) The interest so payable on any 8.50% Note which is
not punctually paid or duly provided for on any Interest Payment Date
("Defaulted Interest") shall forthwith cease to be payable to the Person in
whose name such 8.50% Note is registered on the relevant Regular Record Date,
and such Defaulted Interest shall instead be payable either (i) to the Person in
whose name such 8.50% Note is registered on the Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice of which
shall be given to the Holder of such 8.50% Note not less than 10 days prior to
such Special Record Date or (ii) may be paid at any time in any other lawful
manner in accordance with the Indenture.
(c) If any Interest Payment Date or Stated Maturity falls
on a day that is not a Business Day, the required payment shall be made on the
next Business Day as if it were made on the date such payment was due and no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date or Stated Maturity, as the case may be.
(d) The 8.50% Notes will mature on September 20, 2010.
SECTION 2.4. Limitations on Incurrence of Indebtedness.
(a) The Company will not, and will not permit any
Subsidiary to, incur any Indebtedness if, immediately after giving effect to the
incurrence of such additional Indebtedness and the application of the proceeds
thereof, the aggregate principal amount of all
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outstanding Indebtedness of the Company and its Subsidiaries (determined on a
consolidated basis in accordance with GAAP) is greater than 60% of the sum of
(without duplication) (i) the Total Assets of the Company and its Subsidiaries
as of the end of the calendar quarter covered in the Company's Annual Report on
Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently
filed with the Commission (or, if such filing is not permitted under the
Exchange Act, with the Trustee) prior to the incurrence of such additional
Indebtedness and (ii) the purchase price of any real estate assets or mortgages
receivable acquired, and the amount of any securities offering proceeds received
(to the extent such proceeds were not used to acquire real estate assets or
mortgages receivable or used to reduce Indebtedness), by the Company or any
Subsidiary since the end of such calendar quarter, including those proceeds
obtained in connection with the incurrence of such additional Indebtedness.
(b) In addition to the limitation set forth in subsection
(a) of this Section 2.4, the Company will not, and will not permit any
Subsidiary to, incur any Indebtedness if the ratio of Consolidated Income
Available for Debt Service to the Annual Debt Service Charge for the four
consecutive fiscal quarters most recently ended prior to the date on which such
additional Indebtedness is to be incurred shall have been less than 1.5:1, on a
pro forma basis after giving effect thereto and to the application of the
proceeds therefrom, and calculated on the assumption that (i) such Indebtedness
and any other Indebtedness incurred by the Company and its Subsidiaries since
the first day of such four-quarter period and the application of the proceeds
therefrom, including to refinance other Indebtedness, had occurred at the
beginning of such period; (ii) the repayment or retirement of any other
Indebtedness by the Company and its Subsidiaries since the first day of such
four-quarter period had been repaid or retired at the beginning of such period
(except that, in making such computation, the amount of Indebtedness under any
revolving credit facility shall be computed based upon the average daily balance
of such Indebtedness during such period); (iii) in the case of Acquired
Indebtedness or Indebtedness incurred in connection with any acquisition since
the first day of such four-quarter period, the related acquisition had occurred
as of the first day of such period with the appropriate adjustments with respect
to such acquisition being included in such pro forma calculation; and (iv) in
the case of any acquisition or disposition by the Company or its Subsidiaries of
any asset or group of assets since the first day of such four-quarter period,
whether by merger, stock purchase or sale, or asset purchase or sale, such
acquisition or disposition or any related repayment of Indebtedness had occurred
as of the first day of such period with the appropriate adjustments with respect
to such acquisition or disposition being included in such pro forma calculation.
(c) In addition to the limitations set forth in
subsections (a) and (b) of this Section 2.4, the Company will not, and will not
permit any Subsidiary to, incur any Indebtedness secured by any Encumbrance upon
any of the property of the Company or any Subsidiary if, immediately after
giving effect to the incurrence of such additional Indebtedness and the
application of the proceeds thereof, the aggregate principal amount of all
outstanding Indebtedness of the Company and its Subsidiaries (determined on a
consolidated basis in accordance with GAAP) which is secured by any Encumbrance
on property of the Company or any Subsidiary is greater than 40% of the sum of
(without duplication) (i) the Total Assets of the Company and its Subsidiaries
as of the end of the calendar quarter covered in the Company's
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Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be,
most recently filed with the Commission (or, if such filing is not permitted
under the Exchange Act, with the Trustee) prior to the incurrence of such
additional Indebtedness and (ii) the purchase price of any real estate assets or
mortgages receivable acquired, and the amount of any securities offering
proceeds received (to the extent that such proceeds were not used to acquire
real estate assets or mortgages receivable or used to reduce Indebtedness), by
the Company or any Subsidiary since the end of such calendar quarter, including
those proceeds obtained in connection with the incurrence of such additional
Indebtedness.
(d) The Company and its Subsidiaries may not at any time
own Total Unencumbered Assets equal to less than 150% of the aggregate
outstanding principal amount of the Unsecured Indebtedness of the Company and
its Subsidiaries on a consolidated basis.
(e) For purposes of this Section 2.4, Indebtedness shall
be deemed to be "incurred" by the Company or a Subsidiary whenever the Company
or such Subsidiary shall create, assume, guarantee or otherwise become liable in
respect thereof.
SECTION 2.5. Redemption.
The 8.50% Notes may be redeemed at any time at the option of
the Company, in whole or in part, at a redemption price equal to the sum of (i)
the principal amount of the Notes being redeemed plus accrued interest thereon
to the Redemption Date and (ii) the Make-Whole Amount, if any, with respect to
such 8.50% Notes (the "Redemption Price").
SECTION 2.6. Places of Payment.
The Places of Payment where the 8.50% Notes may be presented
or surrendered for payment, where the 8.50% Notes may be surrendered for
registration of transfer or exchange and where notices and demands to and upon
the Company in respect of the 8.50% Notes and the Indenture may be served shall
be in the City of Charlotte, North Carolina, and the office or agency for such
purpose shall initially be located at First Union National Bank, 0000 Xxxx X.X.
Xxxxxx Xxxx., Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000.
SECTION 2.7. Method of Payment.
Payment of the principal of and interest on the 8.50% Notes
will be made at the office or agency of the Company maintained for that purpose
(which shall initially be an office or agency of the Trustee), in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that, at the
option of the Company, payments of principal and interest on the Notes (other
than payments of principal and interest due at Stated Maturity) may be made (i)
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or (ii) by wire transfer to an account
maintained by the Person entitled thereto located within the United States,
provided, that such Person owns 8.50% Notes in an aggregate principal amount of
at least $1,000,000 and such Person makes a written request therefor for the
appropriate Interest Payment Date.
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SECTION 2.8. Currency.
Principal and interest on the 8.50% Notes shall be payable in
Dollars.
SECTION 2.9. Registered Securities; Global Form.
The 8.50% Notes shall be issuable and transferable in fully
registered form as Registered Securities, without coupons. The 8.50% Notes shall
each be issued in the form of one or more permanent Global Securities. The
depository for the 8.50% Notes shall be The Depository Trust Company ("DTC").
The 8.50% Notes shall not be issuable in definitive form except as provided in
Section 3.5 of the Indenture.
SECTION 2.10. Form of Notes.
The 8.50% Notes shall be substantially in the form attached as
Exhibit A hereto.
SECTION 2.11. Registrar and Paying Agent.
The Trustee shall initially serve as Registrar and Paying
Agent for the Notes.
SECTION 2.12. Defeasance.
The provisions of Sections 14.2 and 14.3 of the Indenture,
together with the other provisions of Article XIV of the Indenture, shall be
applicable to the 8.50% Notes. The provisions of Section 14.3 of the Indenture
shall apply to the covenants set forth in Section 2.4 of this Supplemental
Indenture No. 3 and to those covenants specified in Section 14.3 of the
Indenture.
SECTION 2.13. Waiver of Certain Covenants.
Notwithstanding the provisions of Section 10.11 of the
Indenture, the Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 10.4 to 10.8, inclusive, of
the Indenture, with Section 2.4 of this Supplemental Indenture No. 3 and with
any other term, provision or condition with respect to the 8.50% Notes (except
any such term, provision or condition which could not be amended without the
consent of all Holders of the 8.50% Notes), if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding 8.50% Notes or such series thereof, as applicable, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition. Except to the extent so expressly
waived, and until such waiver shall become effective, the obligations of the
Company in respect of any such term, provision or condition shall remain in full
force and effect.
SECTION 2.14. Acceleration of Maturity; Recission and
Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the
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principal (or, if any Securities are Original Issue Discount Securities or
Indexed Securities, such portion of the principal as may be specified in the
terms thereof) of, and the Make-Whole Amount, if any, on, all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or specified portion thereof shall become immediately
due and payable. If an Event of Default with respect to the Securities of any
series set forth in Section 5.1(6) of the Indenture occurs and is continuing,
then in every such case all the Securities of that series shall become
immediately due and payable, without notice to the Company, at the principal
amount thereof (or, if any Securities are Original Issue Discount Securities or
Indexed Securities, such portion of the principal as may be specified in the
terms thereof) plus accrued interest to the date the Securities of that series
are paid plus the Make-Whole Amount, if any, on the Securities of that series.
SECTION 2.15. Provision of Financial Information.
Whether or not the Company is subject to Section 13 or 15(d)
of the Exchange Act, the Company will, to the extent permitted under the
Exchange Act, file with the Commission the annual reports, quarterly reports and
other documents which the Company would have been required to file with the
Commission pursuant to such Section 13 or 15(d) if the Company were so subject,
such documents to be filed with the Commission on or prior to the respective
dates (the "Required Filing Dates") by which the Company would have been
required to file such documents if the Company were so subject. The Company will
also in any event (x) within 15 days of each Required Filing Date (i) if the
Company is not then subject to such Section 13 or 15(d), transmit by mail to all
Holders of Notes, as their names and addresses appear in the Security Register,
without cost to such Holders, copies of the annual reports and quarterly reports
that the Company would have been required to file with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act if the Company were subject to such
Sections and (ii) file with the Trustee copies of the annual reports, quarterly
reports and other documents that the Company would have been required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the
Company were subject to such Sections and (y) if filing such documents by the
Company with the Commission is not permitted under the Exchange Act, promptly
upon written request and payment of the reasonable cost of duplication and
delivery, supply copies of such documents to any prospective Holder.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Indenture.
Except as expressly modified or amended hereby, the Indenture
continues in full force and effect and is in all respects confirmed and
preserved.
SECTION 3.2. Fiscal Year.
The Company shall notify the Trustee of its fiscal year and
any change thereof.
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SECTION 3.3. Governing Law.
This Supplemental Indenture No. 3 and each Note shall be
governed by and construed in accordance with the laws of the State of New York.
This Supplemental Indenture No. 3 is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and shall, to the extent applicable, be
governed by such provisions.
SECTION 3.4. Counterparts.
This Supplemental Indenture No. 3 may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture No. 3 to be duly executed by their respective officers
hereunto duly authorized, all as of the day and year first written above.
COMMERCIAL NET LEASE REALTY, INC.,
as Issuer
By:
--------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
as Trustee
By:
--------------------------------
Name:
Title:
