SUPPLEMENTAL INDENTURE No. 1, dated as of January 29, 2021, among CTO Realty Growth, Inc. (formerly known as Consolidated-Tomoka Land Co.), a Florida Corporation (the “Company”), CTO NEWCO REIT, Inc., a Maryland corporation, which will be renamed as of the date hereof and immediately following the effectiveness hereof to CTO Realty Growth, Inc. (the “Successor”), and U.S. Bank National Association, a national banking association having a corporate trust office at 225 Water Street, Jacksonville, Florida 32202, as trustee, (the “Trustee”), under the Indenture dated as of February 3, 2020 (the “Indenture”), this Supplemental Indenture No. 1 being supplemental thereto.
Recitals of the Company and the Successor
WHEREAS, the Indenture was authorized, executed and delivered by the Company to provide for the issuance of the Company’s 3.875% Convertible Senior Notes due 2025 (the “Notes”) by the Company;
WHEREAS, on August 26, 2020, the Board of Directors of the Company approved an Agreement and Plan of Merger, dated as of September 3, 2020, by and between the Company and the Successor pursuant to which the Company will merge with and into the Successor, with Successor as the surviving corporation as of the date hereof (the “Merger”);
WHEREAS, immediately following the Merger and the effectiveness hereof, the Successor will change its name to CTO Realty Growth, Inc.;
WHEREAS, Section 9.01 of the Indenture provides, among other things, that the Company shall not merge with or into, another Person (such term and all other capitalized terms used herein without definition having the meanings assigned to them in the Indenture), unless the Successor Company expressly assumes, by supplemental indenture, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the obligations of the Company under the Notes and the Indenture;
WHEREAS, Section 8.01(b) of the Indenture provides that, without the consent of any Holder, the Company (when authorized by a Board Resolution) and the Trustee, at any time and from time to time, may enter into one or more supplemental indentures, in form satisfactory to the Trustee, to evidence the succession by a Successor Company and to provide for the assumption by a Successor Company of the Company’s obligations under the Notes and the Indenture;
WHEREAS, the Company has heretofore delivered or is delivering contemporaneously herewith to the Trustee an Officer’s Certificate and an Opinion of Counsel, in each case described in Section 9.03 of the Indenture;
WHEREAS, each of the Company and the Successor has duly authorized the execution and delivery of this Supplemental Indenture No. 1 to provide for the assumption by the Successor of all of the Company’s obligations under the Indenture; and has duly authorized the assumption of the Notes outstanding under the Indenture by the Successor; and all acts necessary to make this Supplemental Indenture No. 1 a valid agreement of the Company and the Successor, and to make the Indenture and the Notes valid obligations of the Successor, have been performed.
