Exhibit 4.2
COMMERCIAL NET LEASE REALTY, INC.
as Issuer
to
WACHOVIA BANK, NATIONAL ASSOCIATION
as Trustee
Supplemental Indenture No. 4
Dated as of May 30, 2002
------------------------------------------------
Supplementing the Indenture dated as of March 25, 1998
------------------------------------------------
$50,000,000
of
7.75% Notes due 2012
SUPPLEMENTAL INDENTURE NO. 4, dated as of May 30, 2002 (the
"Supplemental Indenture No. 4"), 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 Wachovia Bank, National
Association (as successor trustee to 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, Supplemental
Indenture No. 2 dated as of June 21, 1999 and Supplemental Indenture No. 3
dated as of September 20, 2000 (together with the Original Indenture,
Supplemental Indentures 1 through 3 and this Supplemental Indenture No. 4, 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. 333-53796),
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,
(a) $100,000,000 aggregate principal amount of 7-1/8% Notes due 2008, (b)
$100,000,000 aggregate principal amount of 8.125% notes due 2004, and (c)
$20,000,000 aggregate principal amount of 8.50% notes due 2010.
The Company has commenced an offering of 7.75% Notes due 2012
(the "7.75 % Notes").
Section 3.1 of the Original 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 Original Indenture provides for the
Company and the Trustee to enter into an indenture supplemental to the
Original Indenture to establish the form or terms of Securities of any series
as provided by Sections 2.1 and 3.1 of the Original Indenture.
The Board of Directors of the Company shall have duly adopted
resolutions authorizing the Company to execute and deliver this Supplemental
Indenture No. 4.
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All the conditions and requirements necessary to make this
Supplemental Indenture No. 4, when duly executed and delivered, a valid and
legally binding agreement in accordance with its terms and for the purposes
herein expressed, have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. 4 WITNESSETH:
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. 4 constitutes an integral part
of the Indenture.
SECTION 1.2. Definitions.
For all purposes of this Supplemental Indenture No. 4, 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. 4.
"7.75% 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.
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"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.
"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 Original 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.
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"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 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
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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 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.
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"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.
There shall be a series of Securities designated the "7.75%
Notes due 2012."
SECTION 2.2. Limitation on Aggregate Principal Amount.
(a) The aggregate principal amount of the 7.75% Notes shall
be limited to $50,000,000, and, except as provided in this Section and in
Section 3.6 of the Original Indenture, the Company shall not execute and the
Trustee shall not authenticate or deliver 7.75% Notes in excess of such
aggregate principal amount.
(b) Nothing contained in this Section 2.2 or elsewhere in
this Supplemental Indenture No. 4, or in the 7.75% Notes, is intended to or
shall limit execution by the Company or authentication or delivery by the
Trustee of 7.75% Notes under the circumstances contemplated by Sections 3.3,
3.4, 3.5, 3.6, 9.6, 11.7 and 13.5 of the Original Indenture.
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SECTION 2.3. Interest and Interest Rates; Maturity Date of
7.75% Notes.
(a) The 7.75% Notes will bear interest at a rate of 7.75%
per annum, from June 4, 2002 or from the immediately preceding Interest
Payment Date to which interest has been paid or duly provided for, payable
semi-annually in arrears on June 1 and December 1 of each year, commencing
December 1, 2002 (each, an "Interest Payment Date"), to the Person in whose
name such 7.75% Note is registered at the close of business on May 20 or
November 20 (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 7.75% 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 7.75% 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 7.75% 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 7.75% 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 7.75% 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 7.75% Notes will mature on June 1, 2012.
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 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
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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 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
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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 7.75% 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 7.75% Notes (the "Redemption Price").
SECTION 2.6. Place of Payment.
The Place of Payment where the 7.75% Notes may be presented or
surrendered for payment, where the 7.75% Notes may be surrendered for
registration of transfer or exchange and where notices and demands to and upon
the Company in respect of the 7.75% 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 Wachovia Bank, National
Association, 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 7.75% 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 7.75% 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.
SECTION 2.8. Currency.
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Principal and interest on the 7.75% Notes shall be payable in
Dollars.
SECTION 2.9. Registered Securities; Global Form.
The 7.75% Notes shall be issuable and transferable in fully
registered form as Registered Securities, without coupons. The 7.75% Notes
shall each be issued in the form of one or more permanent Global Securities.
The depository for the 7.75% Notes shall initially be The Depository Trust
Company ("DTC"). The 7.75% Notes shall not be issuable in definitive form
except as provided in Section 3.5 of the Original Indenture.
SECTION 2.10. Form of Notes.
The 7.75% 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 Original
Indenture, together with the other provisions of Article XIV of the Original
Indenture, shall be applicable to the 7.75% Notes. The provisions of Section
14.3 of the Original Indenture shall apply to the covenants set forth in
Section 2.4 of this Supplemental Indenture No. 4 and to those covenants
specified in Section 14.3 of the Original Indenture.
SECTION 2.13. Waiver of Certain Covenants.
Notwithstanding the provisions of Section 10.11 of the Original
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 Original Indenture, with Section 2.4 of this Supplemental Indenture No. 4
and with any other term, provision or condition with respect to the 7.75%
Notes (except any such term, provision or condition which could not be amended
without the consent of all Holders of the 7.75% Notes), if before or after the
time for such compliance the Holders of at least a majority in principal
amount of all outstanding 7.75% 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.
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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 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
Sections 5.1(1), 5.1(2) and 5.1(6) of the Original 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 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 (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.
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ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Original Indenture.
Except as expressly modified or amended hereby, the Original
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.
SECTION 3.3. Governing Law.
This Supplemental Indenture No. 4 and each Note shall be
governed by and construed in accordance with the laws of the State of New
York. This Supplemental Indenture No. 4 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. 4 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 4 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: Xxxxx Xxxxxxx
Title: Executive Vice President, Chief Financial
Officer, Secretary and Treasurer
WACHOVIA BANK, NATIONAL ASSOCIATION
as Trustee
By:________________________________
Name: Xxxxxxxxx Xxxxx
Title: Trust Officer
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Exhibit A
Form of 7.75% Notes
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