**Exhibit 4.9**
 
CAPITAL AUTOMOTIVE REIT,
as Issuer
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
FIRST SUPPLEMENTAL TRUST INDENTURE
Dated as of April 15, 2004
Providing for Issuance of
6.75% MONTHLY INCOME NOTES DUE 2019

 

 

TABLE OF CONTENTS       **Page**ARTICLE I DEFINED TERMS  1 ARTICLE II DESCRIPTION OF NOTES  2 SECTION 2.1 Establishment.  2 SECTION 2.2 Payment of Principal and Interest.  3 SECTION 2.3 Global Securities.  4 SECTION 2.4 Transfer.  4 SECTION 2.5 Denominations.  5 SECTION 2.6 Redemption at the Company’s Option.  5 SECTION 2.7 Ranking.  5 SECTION 2.8 Defeasance and Covenant Defeasance.  5 ARTICLE III COVENANTS  6 SECTION 3.1 Limitations on Incurrence of Debt.  6 SECTION 3.2 Maintenance of Unencumbered Total Assets.  6 SECTION 3.3 Restriction on Subsidiary Indebtedness and Preferred Stock.  6 SECTION 3.4 Provision of Financial Information.  7 ARTICLE IV MISCELLANEOUS PROVISIONS  7 SECTION 4.1 Ratification and Incorporation of Base Indenture.  7 SECTION 4.2 Governing Law.  7 SECTION 4.3 Counterparts.  7 SECTION 4.4 Entire Agreement.  7 
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     THIS FIRST SUPPLEMENTAL TRUST INDENTURE is made as of this 15th day ofApril, 2004 (the “Supplemental Indenture”), by and between CapitalAutomotive REIT, a real estate investment trust organized under the laws of theState of Maryland, as issuer (the “Company”), and Wells Fargo Bank,National Association, a national banking association organized under the lawsof the United States of America, as trustee (the “Trustee”).
RECITALS OF THE COMPANY
     WHEREAS, the Company has heretofore entered into that Base Indenture ofeven date herewith (the “Base Indenture,”) with the Trustee, providingfor the issuance from time to time of unsubordinated debentures, notes or otherevidences of indebtedness in series;
     WHEREAS, the Base Indenture is incorporated herein by this reference andthe Base Indenture, as supplemented by this Supplemental Indenture, is hereincalled the “Indenture;”
     WHEREAS, under the Indenture, the Board of Directors of the Company may atany time establish a new series of Securities, including senior notes, inaccordance with the provisions of the Indenture, with the terms of such seriesestablished pursuant to a supplemental indenture executed by the Company andthe Trustee;
     WHEREAS, the Company desires to issue $125,000,000 of its 6.75% MonthlyIncome Notes due 2019, having the terms and conditions hereinafter set forth,in order to pay down existing Indebtedness and pursue other general corporatepurposes;
     WHEREAS, all conditions necessary to authorize the execution and deliveryof this Supplemental Indenture and to make it a valid and binding obligation ofthe Company have been done or performed;
     NOW THEREFORE, for and in consideration of the agreements and obligationsset forth herein and for good and valuable consideration, the sufficiency ofwhich is hereby acknowledged, the parties hereto hereby agree as follows:
**ARTICLE I**
**DEFINED TERMS**
     The following defined terms used herein shall, unless the contextotherwise requires, have the meanings specified below. Capitalized terms usedand not otherwise defined herein shall have the respective meanings given themin the Base Indenture:
     “Corporate Trust Office of the Trustee” means 213 Court Street,Suite 703, Middletown, CT, 06457.
     “Debt Service Coverage Ratio” means, for the period for which suchratio is being calculated, the ratio expressed a fraction, the numerator ofwhich is the Company’s EBITDA and the denominator of which is the scheduledprincipal plus the Company’s interest expense and the preferred dividends as reflected on the Company’sconsolidated financial statements.
 

 

     “Debt to Total Assets Ratio” means, for the period for which suchratio is being calculated, the ratio expressed as a fraction, the numerator ofwhich is the Company’s consolidated long-term Indebtedness (less payments duewithin one year) and the denominator of which shall be the aggregate book valueof all of the Company’s assets plus accumulated depreciation and amortization(less goodwill) as reflected on the Company’s consolidated financialstatements.
     “Depositary” means The Depositary Trust Company.
     “EBITDA” means, for any period, the Company’s net income beforeminority interest (determined on a consolidated basis without duplication inaccordance with GAAP) for such period (calculated before taxes, interestexpense, depreciation, and amortization) excluding any extraordinary or unusualgains or losses during such period, including but limited to, provisions forgains or losses from sales, provision for impairment losses, charges for earlyextinguishment of debt and charges resulting from a change in accountingprinciples.
     “Interest Payment Dates” means the 15th day of each month,commencing on May 15, 2004.
     “Original Issue Date” means April 15, 2004.
     “Redemption Price” means, with respect to any Note to be redeemed,an amount equal to 100% of the principal amount thereof, together with anyaccrued, unpaid interest thereon to the date fixed for redemption.
     “Regular Record Date” means, with respect to each Interest PaymentDate, the close of business on the final calendar day of the preceding month(whether or not a Business Day).
     “Restricted Subsidiary” means, for the avoidance of doubt, CapitalAutomotive L.P. and its subsidiaries.
     “Stated Maturity” means April 15, 2019.
     “Unencumbered Total Assets” means, as of any date, the sum of (i)the cost (the original cost plus the cost of capital improvements) on all ofthe Company’s real estate on such date, before depreciation and amortization,and (ii) the Company’s other assets (but excluding intangibles and accountsreceivable), in each case which assets are unencumbered by any mortgage, lien,charge, pledge or security interest, all determined on a consolidated basis andin accordance with GAAP.
**ARTICLE II**
**DESCRIPTION OF NOTES**
     SECTION 2.1 Establishment.
     (a) There is hereby established a new series of notes to be issued underthe Indenture, to be designated as the Company’s 6.75% Monthly Income Notes due2019 (the “Notes”).
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     (b) There are to be authenticated and delivered $125,000,000 principalamount of Notes. The maximum principal amount of Notes of this series that maybe issued is $143,750,000. Any additional Notes shall have the same interestrate, maturity and other terms as those initially issued.
     (c) The Notes shall be issued in definitive fully registered form. TheNotes shall be issued in the form of one or more Global Securities insubstantially the form set out in Exhibit A hereto. The Depositary withrespect to the Notes shall be The Depository Trust Company.
     (d) The form of the Trustee’s Certificate of Authentication for the Notesshall be in substantially the form attached to the form of Note
     (e) Each Note shall be dated the date of authentication thereof and shallbear interest from April 15, 2004 or from the most recent Interest Payment Dateto which interest has been paid or duly provided for.
     SECTION 2.2 Payment of Principal and Interest.
     (a) The principal of the Notes shall be due at Stated Maturity (unlessearlier redeemed or accelerated). The unpaid principal amount of the Notesshall bear interest at the rate of 6.75% per annum until paid. Interest shallbe paid monthly in arrears on each Interest Payment Date to the Person in whosename the Notes are registered on the Regular Record Date for such InterestPayment Date, provided that interest payable at the Stated Maturity ofprincipal or on a Redemption Date as provided herein shall be paid to thePerson to whom principal is payable. Any such interest that is not sopunctually paid or duly provided for shall forthwith cease to be payable to theHolders on such Regular Record Date and may either be paid to the Person orPersons in whose name the Notes are registered at the close of business on aSpecial Record Date for the payment of such defaulted interest to be fixed bythe Trustee, notice whereof shall be given to Holders of the Notes not lessthan ten (10) days prior to such Special Record Date, or be paid at any time inany other lawful manner not inconsistent with the requirements of anysecurities exchange, if any, on which the Notes shall be listed, and upon suchnotice as may be required by any such exchange, all as more fully provided inthe Base Indenture.
     (b) Payments of interest on the Notes shall include interest accrued tobut excluding the respective Interest Payment Dates. Interest payments for theNotes shall be computed and paid on the basis of a 360-day year of twelve,30-day months. In the event that any date on which interest is payable on theNotes is not a Business Day, then a payment of the interest payable on such date shall be made on the next succeeding day that is aBusiness Day (and without any interest or other payment in respect of any suchdelay), with the same force and effect as if made on the date the payment wasoriginally payable.
     (c) Subject to the rules of the Depositary with respect thereto, paymentof the principal and interest due at the Stated Maturity or earlier redemptionof the Notes shall be made upon surrender of the Notes at the Corporate TrustOffice of the Trustee. The principal of and interest on the Notes shall be paidin such coin or currency of the United States of America as at the time ofpayment is legal tender for payment of public and private debts. Payments ofinterest (including interest on any Interest Payment Date) shall be made,subject to such surrender where
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applicable, at the option of the Company, (i)by check mailed to the address of the Person entitled thereto as such addressshall appear in the Security Register or (ii) by wire transfer or otherelectronic transfer at such place and to such account at a banking institutionin the United States as may be designated in writing to the Trustee at leastsixteen (16) days prior to the date for payment by the Person entitled thereto.
     SECTION 2.3 Global Securities.
     (a) The Notes will be issued in the form of one or more Global Securitiesregistered in the name of the Depositary or its nominee. Except under thelimited circumstances described below, Notes represented by one or more GlobalSecurities will not be exchangeable for, and will not otherwise be issuable as,Notes in definitive form. The Global Securities described above may not betransferred except by the Depositary to a nominee of the Depositary or by anominee of the Depositary to the Depositary or another nominee of theDepositary or to a successor Depositary or its nominee.
     (b) Owners of beneficial interests in such a Global Security will not beconsidered the Holders thereof for any purpose under the Indenture, and noGlobal Security representing a Note shall be exchangeable, except for anotherGlobal Security of like denomination and tenor to be registered in the name ofthe Depositary or its nominee or to a successor Depositary or its nominee. Therights of Holders of such Global Security shall be exercised only through theDepositary.
     (c) A Global Security shall be exchangeable for Notes registered in thenames of persons other than the Depositary or its nominee only if (i) theDepositary notifies the Company that it is unwilling or unable to continue as aDepositary for such Global Security and no successor Depositary shall have beenappointed by the Company, or if at any time the Depositary ceases to be aclearing agency registered under the Securities Exchange Act of 1934, asamended, at a time when the Depositary is required to be so registered to actas such Depositary and no successor Depositary shall have been appointed by theCompany, in each case within 90 days after the Company receives such notice orbecomes aware of such cessation, (ii) the Company in its sole discretiondetermines that such Global Security shall be so exchangeable, or (iii) thereshall have occurred an Event of Default with respect to the Notes. Any GlobalSecurity that is exchangeable pursuant to the preceding sentence shall beexchangeable for Notes registered in such names as the Depositary shall direct.
     SECTION 2.4 Transfer.
     (a) No service charge will be made for any transfer or exchange of Notes,but payment will be required of a sum sufficient to cover any tax or othergovernmental charge that may be imposed in connection therewith.
     (b) The Company shall not be required (a) to issue, transfer or exchangeany Notes during a period beginning at the opening of business fifteen (15)days before the date of the mailing of a notice pursuant to Section 11.5 of theBase Indenture identifying the numbers of the Notes to be called forredemption, and ending at the close of business on the day of the mailing,
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or(b) to transfer or exchange any Notes theretofore selected for redemption inwhole or in part, except the unredeemed portion of any Notes redeemed in part.
     SECTION 2.5 Denominations.
     The Notes may be issued in denominations of $25.00, or any integral multiple thereof.
     SECTION 2.6 Redemption at the Company’s Option.
     (a) The Notes shall be subject to redemption at the option of the Companyat any time, in whole or, from time to time, in part, without premium orpenalty, on or after April 15, 2009, upon not less than 30 nor more than 60days’ written notice, at the Redemption Price.
     (b) In the event of redemption of the Notes in part only, a new Note orNotes for the unredeemed portion shall be issued in the name or names of theHolders thereof upon the surrender thereof.
     (c) The Notes will not have a sinking fund.
     (d) Notice of redemption shall be given as provided in Section 11.5 of theBase Indenture.
     (e) Any redemption of less than all of the Notes shall, with respect tothe principal thereof, be divisible by $25.00.
     (f) If notice of redemption is given as aforesaid, the Notes to beredeemed shall, on the Redemption Date, become due and payable at theRedemption Price, and from and after such date (unless the Company shalldefault in the payment of the Redemption Price) such Notes shall cease to bearinterest. If any Note called for redemption shall not be paid upon surrenderthereof for redemption, the principal shall, until paid, bear interest from thedate fixed for redemption.
     (g) Subject to the foregoing and to applicable law (including, withoutlimitation, United States federal securities laws), the Company or itsaffiliates may, at any time and from time to time, purchase outstanding Notesby tender, in the open market or by private agreement.
     SECTION 2.7 Ranking.
     The Notes will rank *pari passu*with all of the Company’s other unsecuredand unsubordinated debt.
     SECTION 2.8 Defeasance and Covenant Defeasance.
     The Company, at its option by Board Resolution, may at any time elect tohave either Section 4.2 or Section 4.3 of the Base Indenture, relating todefeasance and covenant defeasance of Outstanding Securities, be applied to allof the outstanding Notes, upon compliance with the conditions set forth inArticle IV of the Base Indenture.
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**ARTICLE III**
**COVENANTS**
     SECTION 3.1 Limitations on Incurrence of Debt.
     (a) The Company will not, and will not permit any Subsidiary to incuradditional Indebtedness if, immediately after the incurrence of such additionalIndebtedness the Company’s Debt to Total Assets Ratio, calculated on aconsolidated basis, would exceed seventy percent (70%), measured as of the endof the most recent fiscal year or calendar quarter.
     (b) The Company shall not, and shall not permit any Subsidiary to, incurany Indebtedness if the Company’s Debt Service Coverage Ratio for the fourconsecutive fiscal quarters most recently ended prior to the date on which suchadditional Indebtedness is to be incurred shall have been less than 1.4 to 1,calculated on a pro forma basis after giving effect to the issuance of theNotes and the application of the proceeds therefrom, and calculated on theassumption that the Notes and any other Indebtedness incurred by the Companysince the first day of the four-quarter period and the application of theproceeds therefrom (including to refinance other Indebtedness since the firstday of the four-quarter period) had occurred on the first day of the period.
     SECTION 3.2 Maintenance of Unencumbered Total Assets.
     The Company and its Subsidiaries shall at all times maintain anUnencumbered Total Assets in an amount not less than one-hundred fifty percent(150%) of the aggregate outstanding principal amount of the Company’s and itsSubsidiaries’ consolidated unsecured Indebtedness.
     SECTION 3.3 Restriction on Subsidiary Indebtedness and PreferredStock.
     (a) The Company shall not permit the Partnership or any Subsidiary (i) toincur unsecured Indebtedness, except for (A) Indebtedness payable to theCompany and (B) Indebtedness (not to exceed $4.4 million) issued in exchangefor, or the net proceeds of which are used to refinance, refund, repay ordefease, currently outstanding unsecured Indebtedness payable to third partiesin the amount of $4.4 million, or any refinancings thereof in an amount not toexceed the amount so refinanced, refunded, repaid or defeased (plus premiums,accrued interest, fees and expenses) or (ii) to guarantee unsecuredIndebtedness, unless in each case the Notes will rank *pari passu*, with suchIndebtedness.
     (b) The Company shall not permit the Partnership to issue, other than tothe Company, preferred units of partnership interest in the Partnership, unlessthe Notes will rank senior to any such preferred units.
     (c) If the Partnership issues its Guarantee of the Note in accordance withthe Section 3.1 of the Base Indenture, such Guarantee shall be deemed tosatisfy the foregoing conditions. Notwithstanding the foregoing, the Companyand the Trustee agree that the satisfaction of the provisions of theimmediately preceding sentence shall not be the exclusive means of satisfyingthe restrictions set forth in Section 3.3(a) and 3.3(b) of this SupplementalIndenture.
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     SECTION 3.4 Provision of Financial Information.
     (a) If the Company shall be required to file reports with the SEC pursuantto Section 13 or 15(d) of the Exchange Act, it will file such reports by therequired date and, within 15 days of such date, deliver copies of all suchreports to the Trustee for, and transmit a copy to, each holder of the Notes.If the Company is not required to file reports with the SEC pursuant to Section13 or 15(d) of the Exchange Act, it will deliver to the Trustee and transmit toeach holder of the Notes reports that contain substantially the same kind ofinformation that would have been included in annual and quarterly reports filedwith the SEC had the Company been required to file such reports, suchinformation to be delivered or transmitted within 15 days after the same wouldhave been required to be filed with the SEC had the Company been required tofile such reports.
     (b) Notwithstanding the foregoing, if the Company is not required to filereports with the SEC because information about the Company is contained in thereports filed by another entity with the SEC, the delivery to the Trustee forthe Notes of the reports filed by such entity with the SEC and the transmittalby mail to all holders of the Notes of each annual and quarterly report filedwith the SEC by such entity within the time periods set forth in the precedingsentence shall be deemed to satisfy the Company’s obligations to providefinancial information under the applicable provisions of the Base Indenture.
**ARTICLE IV**
**MISCELLANEOUS PROVISIONS**
     SECTION 4.1 Ratification and Incorporation of Base Indenture.
     As supplemented by this Supplemental Indenture, the Base Indenture is inall respects ratified and confirmed, and the Base Indenture together with thisSupplemental Indenture shall be read, taken and construed as one and the sameinstrument.
     SECTION 4.2 Governing Law.
     This Supplement and the Notes shall be governed by, and construed inaccordance with, the laws of the state of New York (without giving effect tothe conflicts of laws principles thereof).
     SECTION 4.3 Counterparts.
     This Supplemental Indenture may be executed in any number of counterparts,each of which shall be an original; but such counterparts shall togetherconstitute but one and the same instrument.
     SECTION 4.4 Entire Agreement.
     This Supplemental Indenture, together with the Base Indenture, constitutesthe entire agreement between the parties hereto with respect to the subjectmatter hereof, and fully supersedes any prior of contemporaneous agreementsrelating to such subject matter.
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     IN WITNESS WHEREOF, the parties hereto have caused this SupplementalIndenture to be duly executed, all as of the day and year first above written.      CAPITAL AUTOMOTIVE REIT,