NATIONAL RETAIL PROPERTIES, INC. 5,000,000 Shares of Common Stock (Par Value $0.01 Per Share) UNDERWRITING AGREEMENT
Exhibit 1.1
Execution Version
Execution Version
5,000,000 Shares of Common Stock
(Par Value $0.01 Per Share)
March 22, 2007
CITIGROUP GLOBAL MARKETS INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As the Representative of the
several Underwriters named in Schedule I hereto
several Underwriters named in Schedule I hereto
Ladies and Gentlemen:
National Retail Properties, Inc., a Maryland corporation (the “Company”), proposes to issue
and sell to the several Underwriters (the “Underwriters”) named in Schedule I hereto for
whom you are acting as Representative (the “Representative”) 5,000,000 shares (the “Firm Shares”)
of its common stock, par value $0.01 per share (the “Common Stock”). The Company also proposes to
grant to the Underwriters an option to purchase up to an additional 750,000 shares of Common Stock
solely to cover over-allotments (the “Option Shares”; the Option Shares, together with the Firm
Shares, hereinafter called the “Shares”). The respective amounts of the Shares to be so purchased
by the several Underwriters are set forth opposite their names in Schedule I hereto.
As the Representative, you have advised the Company (a) that you are authorized to enter into
this underwriting agreement (this “Agreement”) on behalf of the several Underwriters, and (b) that
the several Underwriters are willing, acting severally and not jointly, to purchase the number of
Shares set forth opposite their names in Schedule I.
The Company wishes to confirm as follows its agreement with you in connection with the
purchase of the Shares by the several Underwriters.
1. Registration Statement and Prospectus. The Company has prepared and filed with the
Securities and Exchange Commission (the “Commission”) in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Act”), an automatic shelf registration statement, as defined in Rule 405, on
Form S-3 (file number 333-132095) under the Act (“Registration Statement 333-132095”), which
registration statement included a combined prospectus dated February 28, 2006 (the “Basic
Prospectus”), relating to an indeterminate aggregate offering price or number of, among other
securities, the Shares, and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a supplement to the
prospectus included in such registration statement (the “Prospectus Supplement”) specifically
relating to the Shares and the plan of distribution thereof pursuant to Rule 424. Registration
Statement 333-132095, including any amendments thereto filed prior to the Execution Time, became
effective upon filing. Except where the context otherwise requires, Registration Statement
333-132095, on each date and time that such registration statement and any post-effective amendment
or amendments thereto became or becomes effective (each, an “Effective Date”), including all
documents filed as part thereof and including any information contained in a Prospectus (as defined
below) subsequently filed with the Commission pursuant to Rule 424(b) and deemed part of such
registration statement, collectively, are herein called the “Registration Statement,” and the Basic
Prospectus, as supplemented by the final Prospectus Supplement, in the form first used by the
Company in connection with confirmation of sales of the Shares, is herein called the “Prospectus”;
and the term “Preliminary Prospectus” means any preliminary form of the Prospectus Supplement. The
Basic Prospectus together with the Preliminary Prospectus, as amended or supplemented, immediately
prior to the date and time that this Agreement is executed and delivered by the parties hereto (the
“Execution Time”) is hereafter called the “Pricing Prospectus,” and any “issuer free writing
prospectus” (as defined in Rule 433) relating to the Shares is hereafter called an “Issuer Free
Writing Prospectus.” The Pricing Prospectus, as supplemented by (i) the Issuer Free Writing
Prospectuses, if any, attached and listed in Schedule II hereto or that the parties hereto
shall hereafter expressly agree in writing to treat as part of the Disclosure Package (as defined
below), if any, taken together, and (ii) the information conveyed to investors at or about the time
of pricing as set forth on Schedule II hereto, are hereafter collectively called the
“Disclosure Package.” Any reference in this Agreement to the Registration Statement, the Disclosure
Package, the Prospectus or any amendment or supplement thereto shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Act (the “Incorporated Documents”), as of each Effective Date or the Execution Time or the date of
the Prospectus, as the case may be (it being understood that the several specific references in
this Agreement to documents incorporated by reference in the Registration Statement, the Disclosure
Package or the Prospectus are for clarifying purposes only and are not meant to limit the
inclusiveness of any other definition herein). For purposes of this Agreement, all references to
the Registration Statement, the Disclosure Package or the Prospectus or any amendment or supplement
thereto shall be deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system.
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included,” “stated” or “described” in the Registration Statement, the
Disclosure Package or the Prospectus (and all other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other information which is or is
deemed to be incorporated by reference in the Registration Statement, the Disclosure Package or the
Prospectus, as the case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, the Disclosure Package or the Prospectus shall be deemed to include
the filing of any document under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder (the “Exchange Act”), which is or is deemed to
be incorporated by reference in the Registration Statement, the Disclosure Package or the
Prospectus, as the case may be.
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2. Agreement to Sell and Purchase.
(a) The Company hereby agrees, subject to all the terms and conditions set forth herein, to
issue and sell to the Underwriters and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and conditions set forth
herein, each Underwriter agrees, severally and not jointly, to purchase from the Company, at a
purchase price of $23.650 per Share, the number of Firm Shares set forth opposite their respective
names on Schedule I to this Agreement.
(b) Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to the number of Option Shares set forth in Schedule
I hereto at the same purchase price set forth in Section 2(a), less an amount per share equal
to any dividends or distributions declared by the Company and payable on the Firm Shares but not
payable on the Option Shares. Said option may be exercised only to cover over-allotments in the
sale of the Firm Shares by the Underwriters. Said option may be exercised in whole or in part at
any time on or before the 30th day after the date of the Prospectus upon written or telegraphic
notice by the Representative to the Company setting forth the number of the Option Shares as to
which the several Underwriters are exercising the option and the settlement date (each, an “Option
Closing Date”). Each purchase date must be at least one (1) Business Day after the written notice
is given and may not be earlier than the Closing Date for the Firm Shares nor later than ten (10)
Business Days after the date of such notice. The number of Option Shares to be purchased by each
Underwriter shall be the same percentage of the total number of the Option Shares to be purchased
by the several Underwriters as such Underwriter is purchasing of the Firm Shares.
3. Offering by Underwriters. It is understood that the several Underwriters propose
to offer the Shares for sale to the public as soon after this Agreement has become effective as in
their judgment is advisable and initially to offer the Shares upon the terms set forth in the
Prospectus. Each Underwriter, severally and not jointly, represents and agrees as follows:
(a) unless it has or shall have obtained, as the case may be, the prior written consent of the
Company, it has not made and will not make any offer relating to the Shares that would constitute
an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus”
(as defined in Rule 405) required to be filed by the Company with the Commission or retained by the
Company under Rule 433, other than the free writing prospectus containing the information contained
in the final term sheet prepared and filed pursuant to Section 5(b) hereto; provided that
the prior written consent of the parties hereto shall be deemed to have been given in respect of
the Free Writing Prospectuses included in Schedule II hereto and any electronic road show.
4. Delivery of the Shares and Payment Therefor. Delivery of and payment for the
Shares shall be made at 10:00 a.m., New York City time, on March 27, 2007, or at such time on such
later date not more than three (3) Business Days after the foregoing date as the Representative
shall designate, which date and time may be postponed by mutual written agreement of the
Representative and the Company (such date and time of delivery and payment for the Shares being
herein called the “Closing Date”) or on the applicable Option Closing Date
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(or at such other time on the same or on such other date, in any event not later than the
third Business Day thereafter, as the Underwriters and the Company may agree in writing). Delivery
of the Shares shall be made against payment by the Representative of the purchase price thereof, to
or upon the order of the Company by wire transfer payable in same-day funds to an account specified
by the Company. The Shares will be delivered to the Representative for the respective accounts of
the several Underwriters through the facilities of The Depository Trust Company (“DTC”) and will be
made available for inspection by the Underwriters by 1:00 p.m., New York City time at least 24
hours prior to the Closing Date or any Option Closing Date, as the case may be, at such place as
the Underwriters and the Company shall agree. The certificates evidencing the Shares to be
purchased hereunder shall be made available to, or at the direction of, the Representative in New
York City for inspection and packaging not later than 9:30 a.m., New York City time, on the
Business Day next preceding the Closing Date or any Option Closing Date, as the case may be. The
certificates evidencing the Shares to be purchased hereunder shall be delivered to, or at the
direction of, the Representative on the Closing Date or the Option Closing Date, as the case may
be, against payment of the purchase price therefor by wire transfer of immediately available funds
to the order of the Company.
5. Agreements of the Company. The Company agrees with the Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered, it is necessary for a
post-effective amendment to the Registration Statement to be declared effective before the offering
of the Shares may commence, the Company will use its best efforts to cause such post-effective
amendment to become effective as soon as possible and will advise the Representative promptly and,
if requested by the Representative, will confirm such advice in writing, immediately after such
post-effective amendment has become effective.
(b) If, at any time prior to the filing of the Prospectus pursuant to Rule 424(b), any event
occurs as a result of which the Disclosure Package would (x) include any untrue statement of a
material fact or omit to state any material fact necessary to make the statements therein in the
light of the circumstances under which they were made or the circumstances then prevailing not
misleading or (y) conflict with the information contained in the Registration Statement, the
Company will (i) notify promptly the Representative so that any use of the Disclosure Package may
cease until it is amended or supplemented; (ii) amend or supplement the Disclosure Package to
correct such statement, omission or conflicting information; and (iii) supply any amendment or
supplement to the Representative in such quantities as may be reasonably requested.
(c) The Company will advise the Representative promptly and, if requested by the
Representative, will confirm such advice in writing: (i) of any review, issuance of comments, or
request by the Commission or its staff on or for an amendment of or a supplement to the
Registration Statement, any Preliminary Prospectus or the Prospectus or for additional information
regarding the Company, its affiliates or its filings with the Commission, whether or not such
filings are incorporated by reference into the Registration Statement, any Preliminary Prospectus
or the Prospectus; (ii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of qualification of the Shares for
offering or sale in any jurisdiction or the initiation of any proceeding for such
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purpose or any examination pursuant to Section 8(e) of the Act relating to the Registration
Statement or Section 8A of the Act in connection with the offering of the Shares; (iii) of the
receipt by the Company of any notification with respect to the suspension of the qualification of
the Shares for sale in any jurisdiction or the institution or threatening of any proceeding for
such purpose; and (iv) within the period of time referred to in the first sentence in subsection
(f) below, of any change in the Company’s condition (financial or other), business, prospects,
properties, net worth or results of operations, or of the happening of any event, which results in
any statement of a material fact made in the Registration Statement or the Prospectus (as then
amended or supplemented) being untrue or which requires the making of any additions to or changes
in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state
a material fact required by the Act to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as
then amended or supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the Registration Statement,
the Company will make every reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(d) The Company will furnish to the Representative and counsel to the Representative, without
charge: (i) ten (10) signed copies of the Registration Statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all exhibits to the
registration statement; (ii) such number of conformed copies of the Registration Statement as
originally filed and of each amendment thereto, but without exhibits, as the Underwriters may
request; (iii) such number of copies of the Incorporated Documents, without exhibits, as the
Representative may request; and (iv) ten (10) copies of the exhibits to the Incorporated Documents.
The Company will pay all of the expenses of printing or other production of all documents relating
to the offering.
(e) The Company will not file any amendment to the Registration Statement or make any
amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in
the first sentence in subsection (f) below, file any document which upon filing becomes an
Incorporated Document, of which the Representative shall not previously have been advised or to
which, after the Representative shall have received a copy of the document proposed to be filed,
the Representative shall reasonably object; and no such further document, when it is filed, will
contain an untrue statement of a material fact or will omit to state a material fact required to be
stated therein or necessary in order to make the statements therein not misleading. The Company
will give the Representative notice of its intention to make any other filing pursuant to the
Exchange Act from the Execution Time to the Closing Time and will furnish the Representative with
copies of any such documents a reasonable amount of time prior to such proposed filing.
(f) As soon after the execution and delivery of this Agreement as possible and thereafter from
time to time for such period as in the opinion of counsel for the Underwriters a prospectus is
required by the Act to be delivered in connection with sales by the Underwriters or any dealer
(including circumstances where such requirement may be satisfied pursuant to Rule 172), the Company
will file promptly all reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act and the Company will expeditiously deliver to the
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Underwriters and each dealer, without charge, as many copies of the Prospectus (and of any
amendment or supplement thereto), any Preliminary Prospectus and any Issuer Free Writing Prospectus
as the Representative may request. The Company consents to the use of the Prospectus (and of any
amendment or supplement thereto) in accordance with the provisions of the Act and with the
securities or blue sky laws of the jurisdictions in which the Shares are offered by the several
Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering
and sale of the Shares and for such period of time thereafter as the Prospectus is required by the
Act to be delivered in connection with sales by any Underwriters or dealers. If during such period
of time: (i) any event shall occur as a result of which, in the judgment of the Company, or in the
opinion of counsel for the Underwriters, the Prospectus as supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not
misleading; or (ii) if it is necessary to supplement the Prospectus or amend the Registration
Statement (or to file under the Exchange Act any document which, upon filing, becomes an
Incorporated Document) in order to comply with the Act, the Exchange Act or any other law, the
Company will promptly notify the Representative of such event and forthwith prepare and, subject to
the provisions of paragraph (e) above, file with the Commission an appropriate supplement or
amendment thereto (or to such document), and will expeditiously furnish to the Underwriters and
dealers a reasonable number of copies thereof. In the event that the Company and the
Representative agree that the Prospectus should be amended or supplemented, the Company, if
requested by the Representative, will promptly issue a press release announcing or disclosing the
matters to be covered by the proposed amendment or supplement.
(g) The Company will: (i) cooperate with the Underwriters and with counsel for the
Underwriters in connection with the registration or qualification of the Shares for offering and
sale by the Underwriters and by dealers under the securities or blue sky laws of such jurisdictions
as the Underwriters may designate; (ii) maintain such qualifications in effect so long as required
for the distribution of the Shares; (iii) pay any fee of the National Association of Securities
Dealers, Inc., in connection with its review of the offering; and (iv) file such consents to
service of process or other documents necessary or appropriate in order to effect such registration
or qualification; provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take any action which would
subject it to service of process in suits, other than those arising out of the offering or sale of
the Shares, in any jurisdiction where it is not now so subject.
(h) The Company agrees that, unless it has or shall have obtained the prior written consent of
the Representative, it has not made and will not make any offer relating to the Shares that would
constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405) required to be filed by the Company with the Commission or
retained by the Company under Rule 433, other than the free writing prospectus containing the
information contained in the final term sheet prepared and filed pursuant to Section 5(t) hereto;
provided that the prior written consent of the parties hereto shall be deemed to have been
given in respect of the Free Writing Prospectuses included in Schedule II hereto and any
electronic road show. Any such free writing prospectus consented to by the Representative or the
Company is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company agrees
that (x) it has treated and will treat, as the case may be, each Permitted Free
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Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will
comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted
Free Writing Prospectus, including in respect of timely filing with the Commission, legending and
record keeping.
(i) The Company will make generally available to its security holders and to the
Representative a consolidated earnings statement, which need not be audited, covering a 12-month
period commencing after the effective date of this Agreement and ending not later than 15 months
thereafter, as soon as practicable after the end of such period, which consolidated earnings
statement shall satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(j) During the period commencing on the date hereof and ending on the date occurring three
years hereafter, the Company will furnish to the Representative: (i) as soon as available, if
requested, a copy of each report of the Company mailed to stockholders or filed with the
Commission; and (ii) from time to time such other information concerning the Company as the
Representative may reasonably request.
(k) If this Agreement shall terminate or shall be terminated after execution pursuant to any
provisions hereof, or if this Agreement shall be terminated by the Underwriters because of any
inability, failure or refusal on the part of the Company to comply with the terms or fulfill any of
the conditions of this Agreement, the Company shall reimburse the Underwriters for all
out-of-pocket expenses (including fees and expenses of counsel for the Underwriters) incurred by
the Underwriters in connection herewith.
(l) The Company will apply the net proceeds from the sale of the Shares substantially in
accordance with the description set forth in the Prospectus.
(m) If Rule 430A, 430B or 430C of the Act is employed, the Company will timely file the
Prospectus pursuant to Rule 424(b) under the Act and will advise the Underwriters of the time and
manner of such filing.
(n) The Company has not taken, nor will it take, directly or indirectly, any action designed
to, or that might reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares.
(o) The Company will comply and will use its best efforts to cause its tenants to comply in
all material respects with all applicable Environmental Laws (as hereinafter defined).
(p) The Company will use its best efforts to continue to qualify as a real estate investment
trust (a “REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”), and to continue
to have each of its corporate subsidiaries (other than its taxable REIT subsidiaries) comply with
all applicable laws and regulations necessary to maintain a status as a REIT or a “qualified REIT
subsidiary” under the Code.
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(q) The Company will use all reasonable best efforts to do or perform all things required to
be done or performed by the Company prior to the Closing Date to satisfy all conditions precedent
to the delivery of the Shares pursuant to this Agreement.
(r) The Company will not, without the prior written consent of the Representative, offer,
sell, contract to sell or otherwise dispose of any Common Stock or securities of the Company that
are similar to the Common Stock, including, but not limited to any securities that are convertible
into or exchangeable for, or that represent the right to receive, any such similar securities for a
period of sixty (60) days after the Closing Date; provided, however, that the
Company may (i) issue and sell Common Stock pursuant to the conversion or exchange of convertible
or exchangeable securities or the exercise of warrants or options, in each case outstanding at the
Execution Time, (ii) grant employee stock options and restricted shares pursuant to the terms of
any equity incentive plan in effect at the Execution Time, (iii) issue and sell Common Stock or
securities convertible into Common Stock in connection with the acquisition of Properties (as
hereinafter defined) or in connection with joint ventures or similar arrangements, so long as the
recipients agree in writing not to sell or transfer the Common Stock or securities convertible into
Common Stock for a period of sixty (60) days from the date of the Prospectus without the prior
written consent of the Representative, (iv) issue and sell Common Stock pursuant to the dividend
reinvestment and stock purchase plan of the Company in effect at the Execution Time, and (v)
issuances, for no consideration, of no more than 100 shares of Common Stock to one or more persons
unaffiliated with the Company as door or drawing prizes in connection with the Company’s marketing
efforts.
(s) The Company will comply with all applicable securities and other applicable laws, rules
and regulations, including, without limitation, the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx
Act”), and use its best efforts to cause the Company’s directors and officers, in their capacities
as such, to comply with such laws, rules and regulations, including, without limitation, the
provisions of the Xxxxxxxx-Xxxxx Act.
(t) Unless requested otherwise by the Representative, the Company will prepare a final term
sheet, containing solely a description of final terms of the Shares and the offering thereof, in
the form and substance approved by the Representative and attached as Exhibit A hereto and
will file such final term sheet with the Commission as soon as practical after the Execution Time.
The Company will file any other Issuer Free Writing Prospectus to the extent required by Rule 433
under the Securities Act and will pay any required registration fee for this offering pursuant to
Rule 456(b)(1) under the Securities Act within the time period required by such rule (without
regard to the proviso therein relating to the four (4) Business Days extension to the payment
deadline) and in any event prior to the Closing Date. The Company will retain, pursuant to
reasonable procedures developed in good faith, copies of each Issuer Free Writing Prospectus that
is not filed with the Commission in accordance with Rule 433(g) under the Securities Act.
(u) The Company will use best efforts to complete all required filings with the New York Stock
Exchange and other necessary actions in order to cause the Shares to be listed and admitted and
authorized for trading on the New York Stock Exchange, subject to notice of issuance.
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6. Representations and Warranties of the Company. The Company hereby represents and
warrants to each of the Underwriters:
(a) The Basic Prospectus and each Preliminary Prospectus, if any, included as part of the
registration statement as originally filed or as part of any amendment or supplement thereto, or
filed pursuant to Rule 424 under the Act, complied when so filed in all material respects with the
provisions of the Act.
(b) The Company and the transactions contemplated by this Agreement meet all of the
requirements for using Form S-3 under the Act pursuant to the standards for such form in effect
currently and immediately prior to October 21, 1992. The Registration Statement, including any
amendments thereto filed prior to the Execution Time, became effective upon filing. No stop order
suspending the effectiveness of the Registration Statement is in effect, and no proceedings or
examination under Section 8(d) or 8(e) of the Act are pending before or, to the best of the
Company’s knowledge, threatened by the Commission. The Company is not the subject of a pending
proceeding under Section 8A of the Act in connection with the offering of the Shares. The
Registration Statement meets the requirements set forth in Rule 415(a)(1)(x) under the Act and
complies in all other material respects with such Rule. The Registration Statement, in the form in
which it became effective, and also in such form as it may be when any post-effective amendment
thereto shall become effective, and the Preliminary Prospectus and the Prospectus and any
supplement or amendment thereto, each when filed with the Commission under Rule 424(b) under the
Act, complied or will comply in all material respects with the provisions of the Act and the
Exchange Act. The Company has not received from the Commission any notice pursuant to Rule
401(g)(2) of the Act objecting to the use of the automatic shelf registration statement form. On
each Effective Date and at the Execution Time, the Registration Statement did not contain an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements made therein not misleading. On the date of any filing pursuant
to Rule 424(b) and on the Closing Date and each Option Closing Date, the Prospectus (together with
any supplement thereto) will not, include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The representation and warranty
contained in this Section 6(b) does not apply to statements in or omissions from the Registration
Statement, the Disclosure Package or the Prospectus made in reliance upon and in conformity with
information relating to the Underwriters furnished to the Company in writing by or on behalf of the
Underwriters expressly for use therein.
(c) (i) The Disclosure Package, and (ii) each electronic road show when taken together as a
whole with the Disclosure Package, did not at the Execution Time, and will not on the Closing Date
and each Option Closing Date, contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence does not apply to statements in
or omissions from the Disclosure Package made in reliance upon and in conformity with information
relating to the Underwriters furnished to the Company in writing by or on behalf of the
Underwriters expressly for use therein.
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(d) (i) At the time of filing the Registration Statement, (ii) at the time of the most recent
amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such
amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or
15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer
relating to the Shares in reliance on the exemption in Rule 163, and (iv) at the Execution Time
(with such date being used as the determination date for purposes of this clause (iv)), the Company
was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405.
(e) (i) At the earliest time after the filing of the Registration Statement that the Company
or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of
the Shares and (ii) as of the Execution Time (with such date being used as the determination date
for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined
in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405
that it is not necessary that the Company be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus and the final term sheet prepared and filed pursuant
to Section 5(t) hereof does not include any information that conflicts with the information
contained in the Registration Statement, including any Incorporated Document by reference therein
and any prospectus supplement deemed to be a part thereof that has not been superseded or modified.
The foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information furnished to the Company by any
Underwriter through the Representative specifically for use therein, it being understood and agreed
that the only such information furnished by or on behalf of any Underwriter consists of the
information described as such in Section 12 hereof.
(g) The Incorporated Documents heretofore filed, when they were filed (or, if any amendment
with respect to any such document was filed, when such amendment was filed), conformed in all
material respects with the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder. The Company has given the Representative notice of any filings made
pursuant to the Exchange Act within 48 hours prior to the Execution Time. No such document when it
was filed (or, if an amendment with respect to any such document was filed, when such amendment was
filed), contained an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading.
(h) The Shares have been duly and validly authorized and conform in all material respects to
the description thereof contained in the Registration Statement, the Disclosure Package and the
Prospectus and, when issued and delivered pursuant to this Agreement, will be fully paid and
non-assessable free and clear of any pledge, lien, encumbrance, security interest or other claim,
and the issuance and sale of the Shares by the Company is not subject to preemptive or other
similar rights arising by operation of law, under the articles of incorporation, by-laws or other
organizational documents of the Company or under any agreement to which the Company or any one of
its subsidiaries is a party; no person has a right of participation or first refusal with respect
to the sale of the Shares by the Company. The form of certificate for the Shares will be in valid and sufficient form in compliance with
Maryland law and the New York Stock Exchange requirements.
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(i) As of the Closing Date, 65,744,011 shares of Common Stock of the Company will be issued
and outstanding; all of the outstanding shares of Common Stock of the Company have been duly and
validly authorized and issued and are fully paid and nonassessable and are free of any preemptive
or similar rights. There are no outstanding (i) securities or obligations of the Company or any of
its subsidiaries convertible into or exchangeable for any equity interests of the Company or any
such subsidiary, (ii) warrants, rights or options to subscribe for or purchase from the Company or
any such subsidiary any such equity interests or any such convertible or exchangeable securities or
obligations or (iii) obligations of the Company or any such subsidiary to issue any equity
interests, any such convertible or exchangeable securities or obligation, or any such warrants,
rights or options. Except as disclosed in the Registration Statement, the Disclosure Package and
the Prospectus (or any amendment or supplement thereto), there are no persons with registration or
other similar rights to have any equity or debt securities, including securities which are
convertible into or exchangeable for equity securities, registered pursuant to the Registration
Statement or otherwise registered by the Company under the Act.
(j) Each of the Company and each of its subsidiaries is a corporation, limited liability
company, partnership or trust, as applicable, duly organized, validly existing and in good standing
under the laws of the state of its formation, as set forth on Schedule III hereto, with
full corporate, partnership or trust power, as applicable, and authority to own, lease and operate
its properties and to conduct its business as described in the Registration Statement, the
Disclosure Package and the Prospectus, and each is duly registered and qualified to conduct its
business, and is in good standing, in each jurisdiction or place where the nature of its properties
or the conduct of its business requires such registration or qualification, except where the
failure so to register or qualify does not have a material adverse effect on the condition
(financial or other), prospects, earnings, business, properties, net worth or results of operations
of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in
the ordinary course of business (“Material Adverse Effect”).
(k) Neither the Company nor any of its subsidiaries does any business in Cuba.
(l) The Company has no subsidiary or subsidiaries other than as set forth on Schedule
III hereto, and does not control, directly or indirectly, any corporation, partnership, joint
venture, association or other business association. The issued shares of capital stock of each of
the Company’s subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable and are owned legally and beneficially by the Company free and clear of any security
interests, liens, encumbrances, equities or claims.
(m) There are no legal or governmental actions, suits or proceedings pending or, to the
knowledge of the Company, threatened, against the Company or any of its subsidiaries, or to which
the Company or any properties of the Company or any of its subsidiaries is subject, that (A) are
required to be described in the Registration Statement or the Prospectus but are not described as
required; (B) could reasonably be expected to have a material adverse effect on the
11
performance of this Agreement or the consummation of any of the transactions contemplated
hereby; or (C) could reasonably be expected to have a Material Adverse Effect, except as set forth
in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement
thereto). There are no statutes, regulations, capital expenditures, off-balance sheet
transactions, contingencies or agreements, contracts, indentures, leases or other instruments or
documents of a character that are required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as an exhibit to the Registration Statement
or any Incorporated Document that are not described, filed or incorporated as required by the Act
or the Exchange Act (and the Pricing Prospectus contains in all material respects the same
description of the foregoing matters contained in the Prospectus). The statements in the
Prospectus under the heading “Federal Income Tax Considerations” and in the Pricing Prospectus and
the Prospectus Supplement under the heading “Certain Federal Income Tax Considerations” fairly
summarize the matters therein described.
(n) Neither the Company nor any of its subsidiaries is: (A) in violation of (i) its
respective articles of incorporation or by-laws, (ii) any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or its subsidiaries, which violation
would have a Material Adverse Effect, or (iii) any decree of any court or governmental agency or
body having jurisdiction over the Company or its subsidiaries; or (B) in default in any material
respect in the performance of any obligation, agreement, condition or covenant (financial or
otherwise) contained in any bond, debenture, note or any other evidence of indebtedness or in any
material agreement, indenture, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which the Company or its subsidiaries or any of their respective
properties may be bound, and no such default is foreseeable.
(o) (A) As of the date of this Agreement, the Company owns either directly or through
investment interests, 726 properties (the “Properties”). To the best of the Company’s knowledge,
neither the Company nor any of its subsidiaries is in violation of any municipal, state or federal
law, rule or regulation concerning any of their Properties, which violation would have a Material
Adverse Effect; (B) to the best of the Company’s knowledge, each of the Properties complies with
all applicable zoning laws, ordinances and regulations in all material respects and, if and to the
extent there is a failure to comply, such failure does not materially impair the value of any of
such Properties and will not result in a forfeiture or reversion of title thereof; (C) neither the
Company nor any of its subsidiaries has received from any governmental authority any written notice
of any condemnation of, or zoning change affecting any of, the Properties, and the Company does not
know of any such condemnation or zoning change which is threatened and which if consummated would
have a material adverse effect on the Company or any of such Properties; (D) the leases under which
the Company leases the Properties as lessor (the “Leases”) are in full force and effect and have
been entered into in the ordinary course of business of the Company; (E) the Company and each of
its subsidiaries has complied with its respective obligations under the Leases in all material
respects and the Company does not know of any default by any other party to the Leases which, alone
or together with other such defaults, would have a Material Adverse Effect or material adverse
effect on any of the properties subject to a Lease; and (F) all liens, charges, encumbrances,
claims or restrictions on or affecting the Properties and assets (including the Properties) of the
Company and its subsidiaries that are required to be disclosed in the Prospectus are disclosed
therein.
12
(p) Neither the issuance and sale of the Shares, the execution, delivery or performance of
this Agreement by the Company, nor the consummation by the Company of the transactions contemplated
hereby (including the application of the proceeds from the sale of the Shares), nor the fulfillment
of the terms hereof: (A) requires any consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative agency or other
governmental body, agency or official (except such as may be required for the registration of the
Shares under the Act and compliance with the securities or blue sky laws of various jurisdictions),
or conflicts or will conflict with or constitutes or will constitute a breach or violation of, or a
default under, the articles of incorporation or by-laws of the Company or any of its subsidiaries;
or (B) conflicts or will conflict with or constitutes or will constitute a breach of, or a default
under, any agreement, indenture, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any properties of the Company or any of its
subsidiaries may be bound, or violates or will violate any statute, law, regulation or filing or
judgment, injunction, order or decree applicable to the Company or any of its subsidiaries or any
properties of the Company or any of its subsidiaries, or will result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to the terms of any agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its subsidiaries may be bound, or to
which any property or assets of the Company or any of its subsidiaries is subject.
(q) To the Company’s knowledge, each of KPMG LLP and Ernst & Young LLP, who have certified or
shall certify certain financial statements and schedules included or incorporated by reference in
the Registration Statement, the Pricing Prospectus and the Prospectus (or any amendment or
supplement thereto), was, as of March 22, 2007 and during the periods covered by the financial
statements on which we reported, an independent registered public accounting firm with respect to
the Company as required by the Act and the Exchange Act and the applicable published rules and
regulations thereunder and by the Public Company Accounting Oversight Board.
(r) The financial statements, together with related schedules and notes, included or
incorporated by reference in the Registration Statement, the Pricing Prospectus and the Prospectus
(and any amendment or supplement thereto), present fairly in all material respects the financial
position, results of operations and changes in financial position of the Company and its
subsidiaries on the basis stated in the Registration Statement and the Incorporated Documents at
the respective dates or for the respective periods to which they apply. Such statements and
related schedules and notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as disclosed therein. The
other financial and statistical information and data included or incorporated by reference in the
Registration Statement, the Pricing Prospectus and the Prospectus (and any amendment or supplement
thereto) are accurately presented and prepared on a basis consistent with such financial statements
and the books and records of the Company and its subsidiaries. The pro forma financial statements
and other pro forma financial information included, or incorporated by reference in, the
Registration Statement, the Pricing Prospectus and the Prospectus include assumptions that provide
a reasonable basis for presenting the significant effects directly attributable to the transactions
and events described therein, the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma adjustments reflect
13
the proper application of those adjustments to the historical financial statement amounts in
the pro forma financial statements included in the Prospectus, the Pricing Prospectus and the
Registration Statement. The pro forma financial statements included in the Prospectus, the Pricing
Prospectus and the Registration Statement comply as to form in all material respects with the
applicable accounting requirements of Regulation S-X under the Act and the pro forma adjustments
have been properly applied to the historical amounts in the compilation of those statements. The
Company has filed with the Commission all financial statements, together with related schedules and
notes, required to be filed pursuant to Regulation S-X under the Act.
(s) The Company has the corporate power to issue, sell and deliver the Shares as provided
herein; the execution and delivery of, and the performance by the Company of its obligations under,
this Agreement have been duly and validly authorized by the Company, and this Agreement has been
duly executed and delivered by the Company and constitutes the valid and legally binding agreement
of the Company, enforceable against the Company in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting
creditors’ rights generally and by general principles of equity and to the extent that rights to
indemnity and contribution hereunder may be limited by federal or state securities laws.
(t) Except as disclosed in the Registration Statement, the Disclosure Package and the
Prospectus (or any amendment or supplement thereto), subsequent to the respective dates as of which
such information is given in the Registration Statement, the Disclosure Package and the Prospectus
(or any amendment or supplement thereto), neither the Company nor any of its subsidiaries has
incurred any liability or obligation (financial or other), direct or contingent, or entered into
any transaction (including any off-balance sheet activities or transactions), not in the ordinary
course of business, that is material to the Company and its subsidiaries, and there has not been
any change in the capital stock, or material increase in the short-term debt or long-term debt
(including any off-balance sheet activities or transactions), of either the Company or its
subsidiaries, or any material adverse change, or any development involving or which may reasonably
be expected to involve, a prospective material adverse change, in the condition (financial or
other), business, prospects, net worth or results of operations of either the Company or its
subsidiaries.
(u) The Company and each of its subsidiaries has good and marketable title to all property
(real and personal) described in the Disclosure Package and the Prospectus as being owned by each
of them (including the Properties), free and clear of all liens, claims, security interests or
other encumbrances that would materially and adversely affect the value thereof or materially
interfere with the use made or presently contemplated to be made thereof by them as described in
the Prospectus, except such as are described in the Registration Statement, the Disclosure Package
and the Prospectus, or in any document filed as an exhibit to the Registration Statement, and each
property described in the Disclosure Package and the Prospectus as being held under lease by the
Company or any of its subsidiaries is held by it under a valid, subsisting and enforceable lease.
14
(v) The “significant subsidiaries” of the Company as defined in Section 1-02(w) of Regulation
S-X are set forth in Schedule III hereto (the “Significant Subsidiaries”).
(w) The Company has not distributed and, prior to the later to occur of (x) the Closing Date
and (y) completion of the distribution of the Shares, will not distribute, any offering material in
connection with the offering and sale of the Shares other than the Registration Statement, the
Disclosure Package or the Prospectus. The Company has not, directly or indirectly: (i) taken any
action designed to cause or to result in, or that has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares; or (ii) since the filing of the
Registration Statement (A) sold, bid for, purchased, or paid anyone any compensation for soliciting
purchases of, the Shares or (B) paid or agreed to pay to any person any compensation for soliciting
another to purchase any other securities of the Company.
(x) The Company and each of its subsidiaries possess all certificates, permits, licenses,
franchises and authorizations of governmental or regulatory authorities (the “permits”) as are
necessary to own their respective properties and to conduct their respective businesses in the
manner described in the Disclosure Package and the Prospectus, where such failure to possess could
have a Material Adverse Effect, subject to such qualifications as may be set forth in the
Disclosure Package and the Prospectus. The Company and each of its subsidiaries has fulfilled and
performed all of their respective material obligations with respect to such permits, and no event
has occurred which allows, or after notice or lapse of time would allow, revocation or termination
thereof or which would result in any other material impairment of the rights of the holder of any
such permit, subject in each case to such qualification as may be set forth in the Disclosure
Package and the Prospectus. Except as described in the Disclosure Package and the Prospectus,
exclusive of any supplement thereto, neither the revocation or modification of any permit singly or
in the aggregate, nor the announcement of an unfavorable decision, ruling or finding with respect
to any permit, would have a Material Adverse Effect.
(y) The Company and each of its subsidiaries have established and maintain disclosure controls
and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) that are designed to
ensure that information required to be disclosed by the Company in the reports that it files or
submits under the Exchange Act is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms and is accumulated and communicated to the
Company’s management, including its chief executive officer and chief financial officer, or persons
performing similar functions, as appropriate to allow timely decisions regarding required
disclosure; and the Company and each of its subsidiaries maintain a system of internal control over
financial reporting sufficient to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles and which includes policies and procedures that (i)
pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the
transactions and dispositions of the assets of the Company and each of its subsidiaries, (ii)
provide reasonable assurance that transactions are recorded as necessary to permit preparation of
financial statements in accordance with generally accepted accounting principles and that receipts
and expenditures of the Company and each of its subsidiaries are being made only in accordance with
the authorization of management, and (iii) provide reasonable assurance regarding prevention or
timely detection of unauthorized acquisitions, use or dispositions of assets that could have a
material effect on the financial statements. The Company’s disclosure controls and procedures have
been evaluated for effectiveness as of the end of the period covered by the Company’s most recently
filed annual
15
report on Form 10-K which precedes the date of the Prospectus and were effective in all
material respects to perform the functions for which they were established. Based on the most
recent evaluation of its internal control over financial reporting, the Company was not aware of
(i) any material weaknesses in the design or operation of internal control over financial reporting
or (ii) any fraud, whether or not material, that involves management or other employees who have a
significant role in the Company’s internal control over financial reporting. There has been no
change in the Company’s internal control over financial reporting that has occurred during its most
recently completed fiscal quarter that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial reporting.
(z) There is and has been no failure on the part of the Company and any of the Company’s
directors or officers, in their capacities as such, to comply with any provision of the
Xxxxxxxx-Xxxxx Act and the rules and regulations promulgated in connection therewith, including
Section 402 related to loans to insiders and Sections 302 and 906 related to certifications.
(aa) To the Company’s knowledge, neither the Company and its subsidiaries nor any employee or
agent of the Company and its subsidiaries has made any payment of funds of the Company or its
subsidiaries or received or retained any funds in violation of any law, rule or regulation, which
payment, receipt or retention of funds is of a character required to be disclosed in the
Prospectus.
(bb) No labor problem or dispute with the employees of the Company and/or any of its
subsidiaries or any of the Company’s or its subsidiaries’ principal suppliers, contractors or
customers, exists, is threatened or imminent that could result in a Material Adverse Effect. To
the Company’s knowledge, no labor problem or dispute with the Company’s or its subsidiaries’
tenants exists, is threatened or imminent that could result in a Material Adverse Effect.
(cc) The Company has filed all foreign, federal, state and local tax returns that are required
to be filed, which returns are complete and correct, or has requested extensions thereof (except in
any case in which the failure so to file would not have a Material Adverse Effect, except as set
forth in the Disclosure Package and the Prospectus) and has paid all taxes required to be paid by
it and any other assessment, fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or penalty that is currently
being contested in good faith or as would not have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in the Disclosure Package and the Prospectus (exclusive of any
supplement thereto).
(dd) No holder of any security of the Company has any right to require registration of the
Shares or any other security of the Company because of the filing of the Registration Statement or
consummation of the transactions contemplated by this Agreement, which right has not been waived in
connection with the transactions contemplated by this Agreement. The holders of outstanding shares
of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the
Shares.
16
(ee) The Company and its subsidiaries own or possess all patents, trademarks, trademark
registrations, service marks, service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets and rights described in the Disclosure Package and the Prospectus as
being owned by them or necessary for the conduct of their respective businesses. The Company is
not aware of any claim to the contrary or any challenge by any other person to the rights of the
Company and its subsidiaries with respect to the foregoing.
(ff) The Company is not now, and after sale of the Shares to be sold by the Company hereunder
and the application of the net proceeds from such sale as described in the Pricing Prospectus and
the Prospectus under the caption “Use of Proceeds,” will not be, an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.
(gg) (i)To the best of the Company’s knowledge, the Company, its subsidiaries, the Properties and
the operations conducted thereon comply and heretofore have complied with all applicable
Environmental Laws, and no expenditures are required or advisable to maintain or achieve such
compliance and except as is disclosed in the Environmental Reports (defined below) and except for
non-compliance and expenditures that have not and will not likely to have a material adverse effect
on the relevant Property.
(ii) Neither the Company nor any of its subsidiaries has at any time and, to the
best of the Company’s knowledge, no other party has at any time, handled, buried,
stored, retained, refined, transported, processed, manufactured, generated,
produced, spilled, allowed to seep, leak, escape or xxxxx, or be pumped, poured,
emitted, emptied, discharged, injected, dumped, transferred or otherwise disposed of
or dealt with, Hazardous Materials (as defined below) on, to, under or from the
Properties, except as disclosed in environmental site assessment reports obtained by
the Company on or before the date hereof in connection with the purchase of any of
the Properties and provided to the Underwriters or their counsel (collectively, the
“Environmental Reports”) and except for those circumstances that have not had and
will not have a material adverse effect on the relevant Property. Neither the
Company nor any of its subsidiaries intends to use the Properties or any
subsequently acquired properties for the purpose of handling, burying, storing,
retaining, refining, transporting, processing, manufacturing, generating, producing,
spilling, seeping, leaking, escaping, leaching, pumping, pouring, emitting,
emptying, discharging, injecting, dumping, transferring or otherwise disposing of or
dealing with Hazardous Materials.
(iii) To the best of the Company’s knowledge, no seepage, leak, escape, xxxxx,
discharge, injection, release, emission, spill, pumping, pouring, emptying or
dumping of Hazardous Materials into any surface water, groundwater, soil, air or
other media on or adjacent to the Properties has occurred, is occurring or is
reasonably expected to occur, except as is disclosed in the Environmental Reports
and except for those circumstances not likely to have a material adverse effect on
the relevant Property.
17
(iv) Neither the Company nor any of its subsidiaries has received notice from any
Governmental Authority or other person of, or has knowledge of, any occurrence or
circumstance which, with notice, passage of time, or failure to act, would give rise
to any claim under or pursuant to any Environmental Law or under common law
pertaining to Hazardous Materials on or originating from the existing Properties or
any act or omission of any party with respect to the existing Properties, except as
disclosed in the Environmental Reports.
(v) To the best of the Company’s knowledge, none of the Properties is included or
proposed for inclusion on any federal, state, or local lists of sites which require
or might require environmental cleanup, including, but not limited to, the National
Priorities List or CERCLIS List issued pursuant to CERCLA (as defined below) by the
United States Environmental Protection Agency or any analogous state list.
(vi) In the ordinary course of its business, the Company periodically reviews the
effect of Environmental Laws on the business, operations and properties of the
Company and its subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or compliance
with Environmental Laws, or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties). On the
basis of such review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a Material Adverse
Effect, whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package and the Prospectus.
As used herein, “Hazardous Material” shall include, without limitation, any flammable
explosives, radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic
substances, or related materials, asbestos, polychlorinated biphenyls (“PCBs”), petroleum products
and by-products and substances defined or listed as “hazardous substances,” “toxic substances,”
“hazardous waste,” or “hazardous materials” in any Federal, state or local Environmental Law.
As used herein, “Environmental Law” shall mean all laws, common law duties, regulations or
ordinances (including any orders or agreements) of any Federal, state or local governmental
authority having or claiming jurisdiction over any of the Properties (a “Governmental Authority”)
that are designed or intended to protect the public health and the environment or to regulate the
handling of Hazardous Materials, including, without limitation, the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.)
(“CERCLA”), the Hazardous Material Transportation Act, as amended (49 U.S.C. Section 1801 et seq.),
the Resource Conservation and Recovery Act, as amended (42 U.S.C. Section 6901 et seq.), the
Federal Water Pollution Control Act, as amended (33 U.S.C. Section 1251 et seq.), and the Clean Air
Act, as amended (42 U.S.C. Section 7401 et seq.), and any and all analogous future federal or
present or future state or local laws.
18
(hh) The Company is organized in conformity with the requirements for qualification as a real
estate investment trust under Sections 856 through 860 of the Code and the rules and regulations
thereunder. As of the close of every taxable year during the Company’s existence, the Company has
had no earnings and profits accumulated in a non-REIT year within the meaning of Section
857(a)(2)(B) of the Code. The Company’s past and proposed method of operation have enabled it, and
will enable it, to meet the requirements for taxation as a REIT under the Code.
(ii) The Company has eleven (11) “taxable REIT subsidiaries” within the meaning of Section
856(l) of the Code and with respect to each such “taxable REIT subsidiary,” the election under
Section 856(l)(1)(b) of the Code has been, or will be, timely made and has not been revoked or
taxable REIT subsidiary status was imposed under the provisions of Section 856(l)(2) of the Code.
Each of the Company’s corporate subsidiaries, except for its taxable REIT subsidiaries, is in
compliance with all requirements applicable to a REIT or a “qualified REIT subsidiary” within the
meaning of Section 856(i) of the Code and all applicable regulations under the Code, and the
Company is not aware of any fact that would negatively impact such qualifications. Each of the
Company’s non-corporate subsidiaries qualifies as a partnership or a disregarded entity for federal
income tax purposes.
(jj) The Company and each of its subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent and customary in
the businesses in which they are engaged and the value of their properties. All policies of
insurance and fidelity or surety bonds insuring the Company or any of its subsidiaries or their
respective businesses, assets, employees, officers and directors are in full force and effect. The
Company and its subsidiaries are in compliance with the terms of such policies and instruments in
all material respects and there are no claims by the Company or any of its subsidiaries under any
such policy or instrument as to which any insurance company is denying liability or defending under
a reservation of rights clause. Neither the Company nor any of its subsidiaries has been refused
any insurance coverage sought or applied for, and the Company does not have any reason to believe
that the Company and each of its subsidiaries will not be able to renew its respective existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue their respective businesses at a cost that would not have
a Material Adverse Effect.
(kk) The Company and its subsidiaries have title insurance on each of the Properties owned in
fee simple in amounts at least equal to the cost of acquisition of such property; with respect to
an uninsured loss on any of the Properties, the title insurance shortfall would not have a Material
Adverse Effect.
(ll) No subsidiary of the Company is currently prohibited, directly or indirectly, from paying
any dividends to the Company, from making any other distribution on such subsidiary’s capital
stock, from repaying to the Company any loans or advances to such subsidiary from the Company or
from transferring and of such subsidiary’s assets or property to the Company or any other
subsidiary of the Company, except as described in the Disclosure Package and the Prospectus.
19
(mm) There are no transfer taxes or other similar fees or charges under Federal law or the
laws of any state, or any political subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance by the Company or sale by the Company of
the Shares.
(nn) Each of the Company and its subsidiaries has fulfilled its obligations, if any, under the
minimum funding standards of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Employee Retirement Income Security
Act of 1974 (“ERISA”) and the regulations and published interpretations thereunder with respect to
each “plan” (as defined in Section 3(3) of ERISA and such regulations and published
interpretations) in which employees of the Company and its subsidiaries are eligible to
participate. Each such plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published interpretations. Neither the
Company nor any of its subsidiaries has incurred any unpaid liability to the Pension Benefit
Guaranty Corporation (other than for the payment of premiums in the ordinary course) or to any such
plan under Title IV of ERISA.
(oo) To the knowledge of the Company, no stock options awards granted by the Company have been
retroactively granted, or the exercise or purchase price of any stock option award determined
retroactively.
(pp) The Company’s authorized capitalization is as set forth in the Registration Statement,
the Disclosure Package and the Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the Registration Statement, the
Disclosure Package and the Prospectus; the outstanding shares of Common Stock of the Company have
been duly and validly authorized and issued in compliance with all Federal and state securities
laws, and are fully paid and non-assessable.
(qq) Application has been made to list the Shares on the New York Stock Exchange.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees, affiliates and agents of each Underwriter and each person who controls any
Underwriter, within the meaning of either the Act or the Exchange Act, against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the registration of the Shares as
originally filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus or the information contained in the
final term sheet required to be prepared and filed pursuant to Section 5(t) hereto or in any
amendment thereof or supplement thereto; or (ii) arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading; or (iii) arise out of or are based upon a breach of the
representations and warranties in this Agreement. The Company agrees to
20
reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in any
such case arising in connection with this Section 7 to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through the Representative
specifically for inclusion therein. This indemnity agreement will be in addition to any liability,
which the Company may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration Statement, and each
person who controls the Company within the meaning of either the Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the Company by or on
behalf of such Underwriter through the Representative in writing specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to
any liability, which any Underwriter may otherwise have. The Company acknowledges that the only
information furnished in writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus is as set forth in
Section 12 hereof.
(c) Promptly after receipt by an indemnified party under this Section 7 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 7, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the indemnifying party: (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the indemnifying party
of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party
in any action for which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however, that
such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying
party’s election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel
if: (i) the use of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest; (ii) the actual or potential defendants in,
or targets of, any such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be legal defenses available to
it and/or other indemnified parties which are different from or additional to those available to
the indemnifying party; (iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a reasonable time after notice
of the institution of such
21
action; or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying party will not, without
the prior written consent of the indemnified parties, settle or compromise, or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action), unless such
settlement, compromise or consent includes an unconditional release of each indemnified party from
all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 7 is
unavailable to, or insufficient to hold harmless, an indemnified party for any reason, the Company
and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection with investigating
or defending the same) (collectively “Losses”) to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and by the Underwriters, on the other, from the offering
of the Shares; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among the Underwriters relating to the offering of the Shares) be
responsible for any amount in excess of the underwriting discount or commission applicable to the
Shares purchased by the Underwriters hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company, on the one hand, and of the Underwriters, on the other, in
connection with the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by it, and benefits
received by the Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions, in each case as set forth on the cover page of the Prospectus. Relative fault shall
be determined by reference to, among other things: (i) whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information provided by the Company, on the one hand, or the Underwriters, on the other; (ii)
the intent of the parties and their relative knowledge; (iii) access to information; and (iv) the
opportunity to correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and agent of an Underwriter
shall have the same rights to contribution as the Underwriters, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable terms and conditions
of this paragraph (d).
22
8. Conditions of Underwriters’ Obligations. The obligations of the Underwriters to
purchase the Shares hereunder are subject to the following conditions:
(a) (i) The Prospectus, and any supplement thereto, have been filed in the manner and within
the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); the final term sheet
contemplated by Section 5(b) hereto and any other material required to be filed by the Company
pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time
periods prescribed for such filings by Rule 433 and (ii) any request of the Commission for
additional information (to be included in the Registration Statement or the Prospectus or
otherwise) shall have been complied with to the satisfaction of the Underwriters.
(b) Subsequent to the Execution Time, or, if earlier, the dates as of which information is
given in the Registration Statement (exclusive of any amendment thereto), the Disclosure Package
and the Prospectus (exclusive of any amendment thereof), there shall not have occurred: (i) any
change, or any development involving a prospective change, in or affecting the condition (financial
or otherwise), earnings, business, properties, net worth, or results of operations of the Company
and its subsidiaries, whether or not arising from transactions in the ordinary course of business,
except as set forth in the Disclosure Package and the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement), the effect of which, in the sole
judgment of the Representative is so material and adverse as to make it impractical or inadvisable
to proceed with the offering or delivery of the Shares as contemplated by the Registration
Statement (exclusive of any amendments thereto), the Disclosure Package and the Prospectus
(exclusive of any supplement thereto); or (ii) any event or development relating to or involving
the Company and its subsidiaries or any officer or director of the Company and its subsidiaries
which makes any statement made in the Disclosure Package or the Prospectus untrue or which, in the
opinion of the Company and its counsel or the Representative and their counsel, requires the making
of any addition to or change in the Disclosure Package in order to state a material fact required
by the Act or any other law to be stated therein, or necessary in order to make the statements
therein not misleading, if amending or supplementing the Disclosure Package to reflect such event
or development would, in the opinion of the Representative, adversely affect the market for the
Shares.
(c) The Representative shall have received on the Closing Date and, if applicable, each Option
Closing Date an opinion of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the Company, dated as
of such date and addressed to the Representative, to the effect that:
(i) The Company and each of the Significant Subsidiaries: (x) is a
corporation, limited liability company, partnership or trust duly
incorporated and validly existing in good standing under the laws of its
state of formation, with full corporate, partnership or trust power, as
applicable, and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement, the
Disclosure Package and the Prospectus (and any amendment or supplement
thereto); and, (y) based solely on certificates of public officials and
officers of the Company and the Significant Subsidiaries, are
duly registered and qualified to conduct their business; and (z) are in good
standing in each jurisdiction or place where the nature of its properties or
the conduct of its business requires such registration or qualification,
except where the failure so to register or qualify does not have a material
adverse effect on the condition (financial or other), business, properties,
net worth or results of operations of the Company and the Significant
Subsidiaries;
23
(ii) To the knowledge of such counsel, the Company has no subsidiary or
subsidiaries other than as set forth on Schedule III hereto, and
does not control, directly or indirectly, any corporation, partnership,
joint venture, association or other business association. To the knowledge
of such counsel, the subsidiaries that meet the definition of “Significant
Subsidiary,” as such term is defined in Section 210.1-02 of Regulation S-X
are set forth on Schedule III hereto. The issued shares of capital
stock of each of the Company’s subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and are owned legally and
beneficially by the Company and, to the knowledge of such counsel, after due
inquiry, free and clear of any security interests, liens, encumbrances,
equities or claims;
(iii) The authorized capital stock and debt securities of the Company
conform in all material respects as to legal matters to the description
thereof contained under the captions “Description of Debt Securities,”
“Description of Preferred Stock,” “Description of Depositary Shares,”
“Description of Common Stock” and “Description of Warrants” in the Basic
Prospectus; and, except as set forth in the Disclosure Package and the
Prospectus, no options, warrants or other rights to purchase, agreements or
other obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding;
(iv) All the shares of capital stock of the Company outstanding prior to the
issuance of the Shares have been duly authorized and validly issued, and are
fully paid and non-assessable;
(v) The Shares have been duly authorized and, when issued and delivered
pursuant to the Agreement and paid for by the Underwriters pursuant to the
Agreement, will be fully paid and non-assessable; the Shares conform in all
material respects as to legal matters to the description thereof contained
under the caption “Description of Common Stock” in the Basic Prospectus;
24
(vi) The holders of outstanding shares of capital stock of the Company are
not entitled to statutory preemptive or other statutory rights to subscribe
for the Shares; and, except as set forth in the Disclosure Package and the
Prospectus, to the knowledge of such counsel, no options, warrants
or other rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in the Company are
outstanding;
(vii) To the knowledge of such counsel, no holder of securities of the
Company is entitled to have such securities registered under the
Registration Statement which right has not been waived in connection with
the transactions contemplated by this Agreement;
(viii) The form of certificate for the Shares conforms to the requirements
of the New York Stock Exchange and Maryland General Corporation Law, if any;
the Shares have been duly authorized for listing, subject to official notice
of issuance, on the New York Stock Exchange;
(ix) The Registration Statement has become effective under the Act; any
required filing of the Basic Prospectus, any Preliminary Prospectus or the
Prospectus, and any supplements thereto, pursuant to Rule 424(b) or any
required filing of an Issuer Free Writing Prospectus has been made in the
manner and within the time period required by Rule 424(b) and Rule 433,
respectively; to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no proceedings
for that purpose have been instituted or threatened;
(x) The Company has the corporate power and authority to enter into this
Agreement and to issue, sell and deliver the Shares to the Underwriters as
provided herein. This Agreement has been duly authorized, executed and
delivered by the Company;
(xi) To the knowledge of such counsel, neither the Company nor any of its
subsidiaries is: (A) in violation of its respective articles of
incorporation, by-laws or other organizational documents; or (B) in default
in the performance of any material obligation, agreement or condition
contained in any bond, debenture, note or other evidence of indebtedness set
forth on Schedule A attached to such opinion, except as disclosed in the
Prospectus;
(xii) Neither the issue, offer, sale or delivery of the Shares, the
execution, delivery or performance by the Company of this Agreement,
compliance by the Company with the provisions hereof nor consummation by the
Company of the transactions contemplated hereby (including the application
of the proceeds from the sale of the Shares): (A) conflicts or will
conflict with or constitutes or will constitute or result in a breach of, or
a default under, (1) the articles of incorporation, by-laws or other
organizational documents of the Company or any of the Significant
Subsidiaries or (2) any material agreement, indenture, lease or other
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any properties of the Company or any of its
25
subsidiaries is bound (other than any financial covenants contained therein
as to which such counsel needs express no opinion) (x) that is set forth on
Schedule IV hereto (the “Material Agreements”) or (y) which is
otherwise known to such counsel; or (B) results or will result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or its subsidiaries, pursuant to any of the
Material Agreements; or (C) violates or will violate any statute, law, rule
or regulation of the United States of America or the State of Maryland, or
judgment, order or decree applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or any of its subsidiaries or any of its or their properties;
(xiii) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative
agency or other governmental body, agency, or official is required on the
part of the Company (except as have been obtained under the Act or such as
may be required under state securities or blue sky laws governing the
purchase and distribution of the Shares) for the valid issuance and sale of
the Shares to the Underwriters as contemplated by this Agreement;
(xiv) (A) The Registration Statement, the Preliminary Prospectus and the
Prospectus, and any supplements or amendments thereto (except for the
financial statements and the notes thereto and the schedules and other
financial and statistical data included therein), comply as to form in all
material respects with the requirements of the Act; and (B) each of the
Incorporated Documents (except for the financial statements and the notes
thereto and the schedules and other financial and statistical data included
therein, as to which counsel need not express any opinion) complies as to
form in all material respects with the Exchange Act and the rules and
regulations of the Commission thereunder;
(xv) To the knowledge of such counsel, there is no action, suit or
proceeding pending or threatened by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of
its subsidiaries or any of its or their property of a character required to
be described in the Registration Statement or Prospectus (or any amendment
or supplement thereto), and there are no agreements, contracts, indentures,
leases or other instruments or documents that are required to be described
in the Registration Statement or the Prospectus (or any amendment or
supplement thereto) or to be filed or incorporated by reference as an
exhibit to the Registration Statement or any Incorporated Document that are
not described, filed or incorporated as required, as the case may be;
26
(xvi) Such counsel is not aware of any certificates, authorizations,
licenses or permits required by any federal regulatory authority which are
necessary for the Company and/or its subsidiaries to conduct their
respective businesses other than any such certificates, authorizations,
licenses or permits which have been obtained or where such failure to
possess such certificates, authorizations, licenses or permits could not
reasonably be expected to have a Material Adverse Effect. To the knowledge
of such counsel, neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any certificate, authorization, license or permit issued by
any federal, state, municipal or foreign regulatory authority which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect;
(xvii) The Company is not subject to registration as an investment company
under the Investment Company Act of 1940, as amended, and the transactions
contemplated by this Agreement (including the application of the proceeds
from the sale of the Shares), will not cause the Company to become an
investment company subject to registration under the Investment Company Act
of 1940, as amended;
(xviii) The Company was a “real estate investment trust” as defined by
Section 856(a) of the Code for its taxable years ended December 31, 1984
through December 31, 2006, and its current and proposed method of operation
and ownership will enable it to meet the requirements for qualification and
taxation as a REIT under the Code for its taxable year ending December 31,
2007 and for all future taxable years; and the statements in the Basic
Prospectus set forth under the caption “Federal Income Tax Considerations”
and in the Pricing Prospectus and the Prospectus Supplement under the
caption “Certain Federal Income Tax Considerations,” insofar as they purport
to describe or summarize certain provisions of the agreements, statutes or
regulations referred to therein, are accurate descriptions or summaries in
all material respects, and the discussion thereunder expresses the opinion
of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP insofar as it relates to matters of
United States federal income tax law and legal conclusions with regard to
those matters;
(xix) The statements in the Disclosure Package and the Prospectus, insofar
as they are descriptions of contracts or agreements or constitute statements
of law or legal conclusions, are accurate and present fairly the information
required to be shown in all material respects; and
(xx) Although counsel has not undertaken, except as otherwise indicated in
its opinion, to determine independently, and does not assume any
responsibility for, the accuracy or completeness of the statements in the
Registration Statement, such counsel has participated in the preparation of
the Registration Statement, the Disclosure Package and the Prospectus,
including review and discussion of the contents thereof (including review
and discussion of the contents of all Incorporated
27
Documents), and nothing has come to the attention of such counsel that has
caused it to believe that the Registration Statement (including the
Incorporated Documents), at the time the Registration Statement became
effective, or the Disclosure Package, at the Execution Time and as of the
date of such opinion, or the Prospectus, as of its date and as of the
Closing Date and each Option Closing Date contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that
any amendment or supplement to the Prospectus, as of its respective date,
and as of the date of such opinion contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such counsel need
express no opinion with respect to the financial statements and the notes
thereto and the schedules and other financial data included in the
Registration Statement or the Prospectus or any Incorporated Document).
(d) The Representative shall have received on the Closing Date and, if applicable, each Option
Closing Date an opinion of Hunton & Xxxxxxxx LLP, counsel for the Underwriters, dated as of such
date and addressed to the Representative with respect to such matters as the Underwriters may
request.
(e) The Representative shall have received letters addressed to the Underwriters and dated as
of the date hereof, the Closing Date and, if applicable, each Option Closing Date from each of KPMG
LLP and Ernst & Young LLP, independent registered public accounting firms, substantially in the
form heretofore approved by the Underwriters; provided that the letter delivered on the
Closing Date or any applicable Option Closing Date shall use a “cut-off” date no more than three
(3) Business Days prior to the Closing Date or such Option Closing Date, as the case may be.
(f) (A) No stop order suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the
Company, shall be contemplated by the Commission at or prior to the Closing Date or any Option
Closing Date; (B) there shall not have been any change in the capital stock of the Company nor any
material increase in the short-term or long-term debt (including any off-balance sheet activities
or transactions) of the Company and its subsidiaries (other than in the ordinary course of
business) from that set forth or contemplated in the Registration Statement, the Disclosure Package
or the Prospectus (or any amendment or supplement thereto); (C) there shall not have been, since
the respective dates as of which information is given in the Registration Statement, the Disclosure
Package and the Prospectus (or any amendment or supplement thereto), except as may otherwise be
stated in the Registration Statement, the Disclosure Package and Prospectus (or any amendment or
supplement thereto), any material adverse change in the condition (financial or other), business,
prospects, properties, net worth or results of operations of the Company or its subsidiaries; (D)
the Company and its subsidiaries shall not have any liabilities or obligations (financial or
other), direct or contingent (whether or not in the ordinary course of business), that are material
to the Company or its subsidiaries, other than those reflected in the Registration Statement or the
Disclosure Package and the Prospectus
(or any amendment or supplement thereto); and (E) all the representations and warranties of
the Company contained in this Agreement shall be true and correct at and as of the Execution Time
and on and as of the Closing Date and each Option Closing Date as if made at and as of such time or
on and as of such date, and the Representative shall have received a certificate, dated the Closing
Date and each Option Closing Date and signed by either the chief executive officer or chief
operating officer and the chief financial officer of the Company (or such other officers as are
acceptable to the Representative), to the effect set forth in this Section 8(f) and in Section 8(g)
hereof.
28
(g) The Company shall not have failed at or prior to the Closing Date and each Option Closing
Date to have performed or complied with any of its agreements herein contained and required to be
performed or complied with by it hereunder, at or prior to the Closing Date and each Option Closing
Date.
(h) Subsequent to the Execution Time, there shall not have been any decrease in the rating of
any of the Company’s debt securities by any “nationally recognized statistical rating organization”
(as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(i) The Company shall have completed all required filings with the New York Stock Exchange and
other necessary actions in order to cause the Shares to be listed and admitted and authorized for
trading on the New York Stock Exchange, subject to notice of issuance.
(j) On or about the date of this Agreement, but in no event later than the Closing Date, the
Representative shall have received an agreement substantially in the form of Exhibit B
hereto signed by the persons listed on Schedule V hereto.
(k) The Company shall have furnished or caused to be furnished to the Representative such
further certificates and documents as the Representative shall have requested.
All such opinions, certificates, letters and other documents will be in compliance with the
provisions hereof only if they are satisfactory in form and substance to the Representative and
their counsel.
Any certificate or document signed by any officer of the Company and delivered to the
Underwriters, or to counsel for the Underwriters, shall be deemed a representation and warranty by
the Company to the Underwriters as to the statements made therein.
If any of the conditions specified in this Section 8 shall not have been fulfilled in all
material respects when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Representative and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled by
the Representative at, or at any time prior to, the Closing Date or any Option Closing Date,
with respect to any Option Shares remaining to be purchased. Notice of such cancellation
shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
29
With respect to the Closing Date and each Option Closing Date, the documents required to be
delivered by this Section 8 shall be delivered at the offices of Hunton & Xxxxxxxx LLP, Attn:
Xxxxxx X. Xxxxxx, Esq., counsel for the Underwriters, at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxx Xxxxxxxx on or prior to such date.
9. Expenses. The Company agrees to pay the following costs and expenses and all other
costs and expenses incident to the performance by the Company of its obligations hereunder: (i)
the preparation, printing or reproduction, and filing with the Commission of the registration
statement (including financial statements and exhibits thereto), each Preliminary Prospectus, if
any, the Prospectus, each Issuer Free Writing Prospectus and each amendment or supplement to any of
them; (ii) the printing (or reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the registration statement, each Preliminary
Prospectus, the Prospectus, each Issuer Free Writing Prospectus , the Incorporated Documents, and
all amendments or supplements to any of them, as may be reasonably requested for use in connection
with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance
and delivery of certificates for the Shares, including any stamp or other taxes in connection with
the original issuance and sale of the Shares; (iv) the printing (or reproduction) and delivery of
this Agreement, the preliminary and supplemental blue sky memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the offering of the Shares; (v)
the registration or qualification of the Shares for offer and sale under the securities or blue sky
laws of the several states as provided in Section 5(g) hereof (including the reasonable fees,
expenses and disbursements of counsel for the Underwriters relating to the preparation, printing or
reproduction, and delivery of the preliminary and supplemental blue sky memoranda and such
registration and qualification); (vi) the filing fees and the fees and expenses of counsel for the
Underwriters in connection with any filings required to be made with the National Association of
Securities Dealers, Inc.; (vii) the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective purchasers of the Shares;
and (viii) the fees and expenses of the Company’s accountants and counsel (including local and
special counsel) for the Company).
10. Default by an Underwriter. If any one or more Underwriters shall fail to purchase
and pay for any of the Shares agreed to be purchased by such Underwriter or Underwriters hereunder
and such failure to purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated severally to take
up and pay for (in the respective proportions which the number of Shares set forth opposite their
names in Schedule I hereto bears to the number of Shares set forth opposite the names of
all the remaining Underwriters) the Shares which the defaulting Underwriter or Underwriters agreed
but failed to purchase; provided, however, that in the event that the number of
Shares which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed
10% of the aggregate number of Shares set forth in Schedule I hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any obligation to
purchase any, of the Shares, and if such nondefaulting Underwriters do not purchase all the Shares,
this Agreement will terminate without liability to any nondefaulting Underwriter or the Company.
In the event of a default by
any Underwriter as set forth in this Section 10, the Closing Date shall be postponed for such
period, not exceeding five (5) Business Days, as the Representative shall determine in order that
the required changes in the Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
30
11. Termination of Agreement. This Agreement shall be subject to termination in the
absolute discretion of the Representative, without liability on the part of the Underwriters to the
Company, by notice to the Company, if, prior to the Closing Date: (i) there shall have occurred
any change, or any development involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, business, properties, net worth, or results of operations of
the Company and its subsidiaries, whether or not arising from transactions in the ordinary course
of business, except as set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement), the effect of which, in the sole judgment of the
Representative, is so material and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of
any amendments thereto) and the Prospectus (exclusive of any supplement thereto); (ii) there shall
have occurred any downgrading in the rating of any debt securities or preferred stock of the
Company by any “nationally recognized statistical rating organization” (as defined for purposes of
Rule 436(g) under the Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or preferred stock of the Company (other
than an announcement with positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) trading in the Company’s common stock or outstanding
preferred stock shall have been suspended by the Commission or the New York Stock Exchange or
trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market shall have been suspended or materially limited; (iv) a general moratorium
on commercial banking activities in New York or Florida shall have been declared by either federal
or state authorities; (v) the Company or any of its subsidiaries shall have sustained a substantial
loss by fire, flood, accident or other calamity which renders it impracticable, in the reasonable
judgment of the Representative, to consummate the sale of the Shares and the delivery of the Shares
by the Underwriters at the initial public offering price; or (vi) there shall have occurred any
outbreak or escalation of hostilities or other international or domestic calamity, crisis or change
in political, financial or economic conditions, the effect of which on the financial markets of the
United States is such as to make it, in the sole judgment of the Representative, impracticable or
inadvisable to commence or continue the offering of the as contemplated by the Registration
Statement (exclusive of any amendments thereto) and the Prospectus (exclusive of any supplement
thereto). Notice of such termination may be given to the Company by telegram, telecopy or
telephone and shall be subsequently confirmed by letter.
12. Information Furnished by the Underwriters. The statements in the third, ninth and
tenth paragraphs under the heading “Underwriting” in any Preliminary Prospectus and in the
Prospectus Supplement, constitute the only information furnished by or on behalf of the
Underwriters as such information is referred to in the last sentence of Section 6(b) and Section
7(b) hereof.
31
13. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of
the Underwriters set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Underwriters or the Company or
any of the officers, directors, employees, agents or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the Shares. The provisions of Sections 5(k),
7 and 9 hereof shall survive the termination or cancellation of this Agreement.
14. Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) the Underwriters have been retained solely to act as underwriters in connection with the
sale of the Shares and that no fiduciary, advisory or agency relationship between the Company and
the Underwriters has been created in respect of any of the transactions contemplated by this
Agreement or the process leading thereto, irrespective of whether any of the Underwriters has
advised or is advising the Company on other matters;
(b) the price of the Shares set forth in this Agreement was established by the Company
following discussions and arms-length negotiations with the Representative, and the Company is
capable of evaluating and understanding and understands and accepts the terms, risks and conditions
of the transactions contemplated by this Agreement;
(c) it has been advised that the Underwriters and their affiliates are engaged in a broad
range of transactions which may involve interests that differ from those of the Company and that
the Underwriters have no obligation to disclose such interests and transactions to the Company by
virtue of any fiduciary, advisory or agency relationship; and
(d) it waives, to the fullest extent permitted by law, any claims they may have against the
Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty.
15. Notices. All communications hereunder will be in writing and effective only on
receipt, and, if sent to the Representative, will be mailed, delivered or telefaxed to Citigroup
Global Markets Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax no.: 000-000-0000),
Attention: General Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed to
the office of the Company at 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (fax no.:
000-000-0000), Attention: Xxxxx X. Xxxxxxx, Executive Vice President and Chief Financial Officer.
16. Successors. This Agreement has been made solely for the benefit of the
Underwriters, the Company, its directors and officers, and the other controlling persons referred
to in Section 7 hereof and their respective successors and assigns, to the extent provided herein.
This Agreement will inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and controlling persons referred to in Section
7 hereof, and no other person shall acquire or have any right under or by virtue of this Agreement.
Neither the term “successor” nor the term “successors and assigns” as used in this Agreement shall
include a purchaser from the Underwriters of any of the Shares in his status as such purchaser.
32
17. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
18. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
19. Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby.
20. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original, and all of which together shall constitute one and the same
agreement.
21. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.
22. Definition. The term which follows, when used in this Agreement, shall have the
meaning indicated.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New
York City.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Rule 158,” “Rule 163,” “Rule 164,” “Rule 172,” “Rule 401,” “Rule 405,” “Rule 415,” “Rule
424,” “Rule 433” and “Rule 456” refer to such rules under the Act.
“Well-Known Seasoned Issuer” shall mean a well-known seasoned issuer, as defined in Rule 405.
[Signature page follows.]
33
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement among the Company and the several Underwriters.
| Very truly yours, | ||||||
| NATIONAL RETAIL PROPERTIES, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Name: | Xxxxx X. Xxxxxxx | |||||
| Title: | Exec. VP – CFO | |||||
Accepted and agreed to as of
the date first above written:
the date first above written:
CITIGROUP GLOBAL MARKETS INC.
By:
|
/s/ Xxxxxx Xxxxx | |||
Title:
|
Vice President |
For itself and as a Representative of the other
Underwriters named on Schedule I hereto.
Underwriters named on Schedule I hereto.
[Signature Page to Underwriting Agreement for Shares of Common Stock]
SCHEDULE I
| Number of Firm | Number of Option | |||||||
| Shares to be | Shares to be | |||||||
| Underwriters | Purchased | Purchased | ||||||
Citigroup Global Markets Inc. |
2,425,000 | 363,750 | ||||||
Wachovia Capital Markets, LLC |
848,750 | 127,500 | ||||||
X.X. Xxxxxxx & Sons, Inc. |
315,250 | 47,250 | ||||||
Banc of America Securities LLC |
315,250 | 47,250 | ||||||
BB&T Capital Markets, a division of
Xxxxx & Xxxxxxxxxxxx, Inc. |
315,250 | 47,250 | ||||||
Xxxxxxx Xxxxx & Associates, Inc. |
315,250 | 47,250 | ||||||
Xxxxxx, Xxxxxxxx & Company, Incorporated |
315,250 | 47,250 | ||||||
Comerica Securities, Inc. |
50,000 | 7,500 | ||||||
PNC Capital Markets, Inc. |
50,000 | 7,500 | ||||||
SunTrust Capital Markets, Inc. |
50,000 | 7,500 | ||||||
Total |
5,000,000 | 750,000 | ||||||
SCHEDULE II
FREE WRITING PROSPECTUSES INCLUDED IN THE DISCLOSURE PACKAGE
1) Final Term Sheet, in the form attached as Exhibit A hereto (not used)
INFORMATION CONVEYED TO INVESTORS AT OR ABOUT THE TIME OF PRICING
Price per share
|
$24.70 | |
Offering Size
|
5,000,000 shares, or 5,750,000 shares if the Underwriters exercise their over-allotment in full | |
Closing Date
|
March 27, 2007 |
SCHEDULE III
LIST OF SUBSIDIARIES
| Name of Subsidiary | ||||
Net Lease Realty I, Inc. |
||||
Net Lease Realty III, Inc. |
||||
NNN Ster Florida, LLC |
||||
(f/k/a CNLR Ster Florida, LLC) |
||||
NNN Ster Texas LP |
||||
(f/k/a CNLR Ster Texas LP) |
||||
Net Lease Funding, Inc. |
||||
National Retail Properties Trust |
||||
National Retail Properties, L.P. |
||||
(f/k/a Commercial Net Lease Realty, L.P.) |
||||
CNLR GP Corp. |
||||
CNLR LP Corp. |
||||
CNLR Texas GP Corp. |
||||
NNN TRS, Inc. |
||||
(f/k/a CNLRS Exchange I, Inc.) |
||||
NNN Acquisitions, Inc. |
||||
NNN Development, Inc. |
||||
(f/k/a CNLRS Development, Inc.) |
||||
Orange Avenue Mortgage Investments, Inc. |
||||
CNL SBA License, Inc. |
||||
CNL Commercial Mortgage Funding, Inc. |
||||
NAPE Acquisition, Inc. |
||||
CCMH I, LLC |
||||
CCMH II, LLC |
||||
CCMH III, LLC |
||||
CCMH IV, LLC |
||||
CCMH V, LLC |
||||
CCMH VI, LLC |
||||
CNLRS Equity Ventures Plano, Inc. |
||||
NNN Ster Paradise Valley Arizona, LLC |
||||
(f/k/a CNLR Ster Paradise Valley
Arizona, LLC) |
||||
CNLRS P&P, L.P. |
| Name of Subsidiary | ||||
CNLR Equity Ventures, Inc. |
||||
NNN Equity Ventures, Inc. |
||||
(f/k/a CNLRS Equity Ventures II, Inc.) |
||||
Net Lease Realty VI, LLC |
||||
WG Grand Prairie TX, LLC |
||||
NNN BJ’s Orlando FL, LLC |
||||
(f/k/a CNLR BJ’s Orlando FL, LLC) |
||||
CNLR DC Acquisitions I, LLC |
||||
NNN RAD Monticello NY, LLC |
||||
(f/k/a CNLR RAD Monticello NY, LLC |
||||
CNLRS Acquisitions, Inc. |
||||
CNLRS Bismark ND, LLC |
||||
CNLRS WG Long Beach MS, LLC |
||||
CNLRS Yosemite Park CO, LLC |
||||
Gator Xxxxxxx, LLC |
||||
Net Lease Institutional Realty, LP |
||||
NNN Brokerage Services, Inc. |
||||
CNLRS RGI Xxxxxx Springs, LLC |
||||
CNLRS BEP, L.P. |
||||
CNLRS Rockwall, L.P. |
||||
CNLRS Equity Ventures BEP, Inc. |
||||
CNLRS Equity Ventures Rockwall, Inc. |
||||
NNN Equity Ventures Xxxxxxxx Crossing, Inc. |
||||
NNN Xxxxxxxx Crossing, L.P. |
||||
NNN Equity Ventures Preston Park, Inc. |
| Significant Subsidiaries | ||||
National Retail Properties, L.P. |
||||
(f/k/a Commercial Net Lease Realty, L.P.) |
||||
CNLR DC Acquisitions I, LLC |
||||
NNN TRS, Inc. |
||||
(f/k/a CNLRS Exchange I, Inc.) |
SCHEDULE IV
MATERIAL AGREEMENTS
Indenture by and between the Company and U.S. Bank National Association, successor to Wachovia
Bank, National Association (f/k/a First Union National Bank), as trustee, dated as of March 25,
1998.
Supplemental Indenture No. 1 by and between the Company and U.S. Bank National Association,
successor to Wachovia Bank, National Association (f/k/a First Union National Bank), as trustee,
dated as of March 25, 1998.
Supplemental Indenture No. 2 by and between the Company and U.S. Bank National Association,
successor to Wachovia Bank, National Association (f/k/a First Union National Bank), as trustee,
dated as of June 21, 1999.
Supplemental Indenture No. 3 by and between the Company and U.S. Bank National Association,
successor to Wachovia Bank, National Association (f/k/a First Union National Bank), as trustee,
dated as of September 20, 2000.
Supplemental Indenture No. 4 by and between the Company and U.S. Bank National Association,
successor to Wachovia Bank, National Association, as trustee, dated as of May 30, 2002.
Supplemental Indenture No. 5 by and between the Company and U.S. Bank National Association,
successor to Wachovia Bank, National Association, as trustee, dated as of June 18, 2004.
Supplemental Indenture No. 6 by and between the Company and U.S. Bank National Association,
successor to Wachovia Bank, National Association, as trustee, dated as of November 17, 2005.
Supplemental Indenture No. 7 by and between the Company and U.S. Bank National Association, as
trustee, dated as of September 13, 2006.
Eighth Amended and Restated Line of Credit and Security Agreement, dated December 13, 2005, by
and among the Company, certain lenders and Wachovia Bank, National Association, as the Agent,
relating to a $300,000,000 loan.
First Amendment to Eighth Amended and Restated Line of Credit and Security Agreement, dated
February 20, 2007, by and among the Company, certain lenders and Wachovia Bank, National
Association, as the Agent.
Form of Lease Agreement, between an affiliate of the Company, as landlord and SSP Partners, as
tenant.
SCHEDULE V
List of Individuals Signing Lock-Up Agreements Pursuant to Section 8(j)
Xxxx X. Xxxxx
Xxxxx X. Xxxxxxx
Xxxxx Xxxxxx
Xxxxxxxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxx Xxxxxx
Xxxxxxxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxxx
EXHIBIT A
FINAL TERM SHEET (not used)
Free Writing Prospectus
|
Registration Statement No. 333-132095 |
|
Dated [ ], 2007
|
Filed Pursuant to Rule 433 of the Securities Act of 1933 |
National Retail Properties, Inc.
Shares of Common Stock
Shares of Common Stock
Issuer:
|
National Retail Properties, Inc. | |
Security:
|
Shares of Common Stock | |
Shares Offered:
|
[ ] common shares | |
Over-allotment Shares:
|
[ ] common shares | |
Public Offering Price:
|
$[ ] per common share; $[ ] total (not including over-allotment option) | |
Underwriting Discounts
and Commissions:
|
$[ ] per common share; $[ ] total (not including over-allotment option) | |
Proceeds to the Issuer
(before expenses):
|
$[ ] per common share; $[ ] total (not including over-allotment option) | |
Estimated Issuer Expenses:
|
$[ ], excluding underwriting discounts and commissions | |
Use of Proceeds:
|
Issuer intends to use approximately $[ ] million of the net proceeds from this offering to [to reduce the outstanding balance under the Issuer’s unsecured revolving credit facility] | |
Bookrunner:
|
Citigroup Global Markets Inc. | |
Lead manager:
|
Wachovia Capital Markets, LLC |
Underwriting Allocation:
|
Citigroup Global Markets Inc. | [ ] | ||
| Wachovia Capital Markets, LLC | [ ] | |||
| X.X. Xxxxxxx & Sons, Inc. | [ ] | |||
| Banc of America Securities LLC | [ ] | |||
| BB&T Capital Markets, a division of Xxxxx & | ||||
| Xxxxxxxxxxxx, Inc. | [ ] | |||
| Xxxxxxx Xxxxx & Associates, Inc. | [ ] | |||
| Xxxxxx, Xxxxxxxx & Company, Incorporated | [ ] |
Settlement Date:
|
March [___], 2007 | |
Selling Concession:
|
Not to exceed $[ ] per common share | |
Reallowance to Other Dealers:
|
Not to exceed $[ ] per common share | |
Type of Security:
|
SEC Registered |
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more
complete information about the issuer and this offering. You may get these documents for free by
visiting XXXXX on the SEC web site at xxx.xxx.xxx. Alternatively, the issuer, any
Underwriter or any dealer participating in the offering will arrange to send to you the prospectus
if you request it by calling Citigroup Global Markets Inc., toll-free 1-[___].
Any disclaimers or other notices that may appear below are not applicable to this communication and
should be disregarded. Such disclaimers or other notices were automatically generated as a result
of this communication being sent via Bloomberg or another email system.
EXHIBIT B
[Form of lock-up for officers pursuant to Section 8(j)]
March [__], 2007
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
For itself and as Representative of the several
Underwriters to be named in the
within-mentioned Underwriting e Agreement
Underwriters to be named in the
within-mentioned Underwriting e Agreement
Re: Proposed Public Offering by National Retail Properties, Inc.
Dear Sirs:
The undersigned, a stockholder and an officer of National Retail Properties, Inc., a Maryland
corporation (the “Company”), understands that Citigroup Global Markets Inc. (the “Representative”)
proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company
providing for the public offering of shares (the “Shares”) of the Company’s common stock, par value
$0.01 per share (the “Common Stock”). In recognition of the benefit that such an offering will
confer upon the undersigned as a stockholder and an officer of the Company, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the Underwriting Agreement that, during a
period of sixty (60) days from the date of the Underwriting Agreement, the undersigned will not,
without the prior written consent of the Representative, directly or indirectly, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant for the sale of, or otherwise dispose of or transfer any
shares of the Company’s Common Stock or any securities convertible into or exchangeable or
exercisable for Common Stock, whether now owned or hereafter acquired by the undersigned or with
respect to which the undersigned has or hereafter acquires the power of disposition, or file, or
cause to be filed, any registration statement under the Securities Act of 1933, as amended, with
respect to any of the foregoing (collectively, the “Lock-Up Shares”) or (ii) enter into any swap or
any other agreement or any transaction that transfers, in whole or in part, directly or indirectly,
the economic consequence of ownership of the Lock-Up Shares, whether any such swap or transaction
is to be settled by delivery of Common Stock or other securities, in cash or otherwise.
The undersigned also agrees and consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of the Lock-Up Shares except in
compliance with the foregoing restrictions.
| Very truly yours, |
| Signature: | ||||
| Print Name: | ||||
