Exhibit 4.1
NATIONAL RETAIL PROPERTIES,
INC.
as Issuer
to
U.S. BANK NATIONAL
ASSOCIATION
as Trustee
Tenth Supplemental
Indenture
Dated as of July 6,
2011
Supplementing the Indenture dated as
of March 25, 1998
$300,000,000
of
5.500% Notes due 2021
TENTH SUPPLEMENTAL INDENTURE, dated
as of July 6, 2011 (this “Tenth Supplemental
Indenture”), between NATIONAL RETAIL PROPERTIES, INC., a
corporation duly organized and existing under the laws of the State
of Maryland (herein called the “Company”), and U.S.
BANK NATIONAL ASSOCIATION (as successor trustee to Wachovia Bank,
National Association, (formerly 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, Supplemental
Indenture No. 3 dated as of September 20, 2000,
Supplemental Indenture No. 4 dated as of May 30, 2002,
Supplemental Indenture No. 5 dated as of June 18, 2004,
Supplemental Indenture No. 6 dated as of November 17,
2005, the Seventh Supplemental Indenture dated as of
September 13, 2006, Supplemental Indenture No. 8 dated as
of September 10, 2007 and the Ninth Supplemental Indenture
dated as of March 4, 2008 (together with the Original
Indenture, Supplemental Indenture Nos.1, 2, 3, 4, 5, 6 and 8, the
Seventh Supplemental Indenture, the Ninth Supplemental Indenture
and this Tenth Supplemental Indenture, collectively, 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. 333-157583), 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,
(c) $20,000,000 aggregate principal amount of 8.50% Notes due
2010, (d) $50,000,000 aggregate principal amount of 7.75%
Notes due 2012, (e) $150,000,000 aggregate principal amount of
6.25% Notes dues 2014, (f) $150,000, 000 aggregate principal
amount of 6.15% Notes due 2015, (g) $172,500,000 aggregate
principal amount of 3.95% Convertible Senior Notes due 2026,
(h) $250,000,000 aggregate principal amount of 6.875% Notes
due 2017 and (i) $234,035,000 aggregate principal amount of
5.125% Convertible Senior Notes due 2028.
The Company has commenced an
offering of 5.500% Notes due 2021 (the “5.500%
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.
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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 permitted by Sections
2.1 and 3.1 of the Original Indenture.
The Pricing Committee of the Board
of Directors of the Company has duly adopted resolutions
authorizing the Company to execute and deliver this Tenth
Supplemental Indenture.
All the conditions and requirements
necessary to make this Tenth Supplemental Indenture, 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 TENTH
SUPPLEMENTAL INDENTURE 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 Tenth Supplemental Indenture
constitutes an integral part of the Indenture.
SECTION 1.2. Definitions.
For all purposes of this Tenth
Supplemental Indenture, 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
Original Indenture. All references herein to Articles and Sections,
unless otherwise specified, refer to the corresponding Articles and
Sections of this Tenth Supplemental Indenture.
“5.500% 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
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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.
“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, New York or in the City of St. Paul, Minnesota 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 225 Water Street, Seventh Floor, Jacksonville, Florida
32202, and for purposes of the Place of Payment provisions of
Sections 3.5 and 10.2 of the Original Indenture, is located at 60
Livingston Avenue, St. Paul, Minnesota 55107.
“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
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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 5.500% Notes.
“Earnings from
Operations” for any period means net earnings excluding gains
and losses on sales of investments, extraordinary items and
property valuation losses, 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.
“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 any Subsidiary
whenever the Company or such Subsidiary shall create, assume,
guarantee or otherwise become liable in respect
thereof).
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“Make-Whole Amount”
means, in connection with any optional redemption or accelerated
payment of any 5.500% Note (except for any optional redemption
occurring 90 days or fewer prior to the State Maturity thereof in
accordance with Section 2.5), 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 5.500% Notes being
redeemed or paid.
“Redemption Price” has
the meaning specified in Section 2.5 hereof.
“Reinvestment Rate”
means 0.40 percent (forty 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 preced
