4,000,000 SHARES
COMMERCIAL NET LEASE REALTY, INC.
Common Stock
UNDERWRITING AGREEMENT
New York, New York
November 27, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
First Union Securities, Inc.
X.X. Xxxxxxx & Sons, Inc.
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
Xxxxxxx Xxxxx & Associates, Inc.
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Commercial Net Lease Realty, Inc., a Maryland corporation (the
"Company"), proposes to issue and sell an aggregate of 4,000,000 shares (the
"Firm Securities") of its common stock, $0.01 par value per share (the "Common
Stock"), to the several Underwriters named in Schedule I hereto (the
"Underwriters"). The Company also proposes to sell to the Underwriters, upon the
terms and conditions set forth in Section 2 hereof, up to an additional 600,000
shares (the "Additional Securities") of Common Stock. The Firm Securities and
the Additional Securities are hereinafter collectively referred to as the
"Securities."
The Company wishes to confirm as follows its agreement with the
several Underwriters in connection with the several purchases of the Securities
by the 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"), a registration statement on Form S-3 under the Act
(the "registration statement", file number 333-53796), including a prospectus
relating to the Offered Securities (as defined therein), 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 Securities and the plan of distribution thereof pursuant to Rule 424 under
the Act. The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended to the date of this Agreement. If it is
contemplated, at the time this Agreement is executed, that a post-effective
amendment to the registration statement will be filed and must be declared
effective before the offering of the Securities may commence, the term
"Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. The term "Basic
Prospectus" as used in this Agreement means the prospectus in the form included
in the Registration Statement. The term "Prospectus" means the Basic Prospectus,
as amended or supplemented by the Prospectus Supplement. The term "Preliminary
Prospectus" as used in this Agreement means a prospectus supplement, subject to
completion, that specifically relates to the Securities and which has heretofore
been filed with the Commission, together with the Basic Prospectus. If the
Company has filed an abbreviated registration statement to register Securities
pursuant to Rule 462(b) under the Act (including the exhibits thereto, the "Rule
462(b) Registration Statement"), then any reference herein to the Registration
Statement shall also be deemed to include such Rule 462(b) Registration
Statement. Any reference in this Agreement to the registration statement, the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the
Prospectus 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, and any
reference to any amendment or supplement to the registration statement, the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents filed by the
Company with the Commission after the date of the Basic Prospectus under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") which, upon
filing, are incorporated by reference therein, as required by paragraph (b) of
Item 12 of Form S-3. As used herein, the term "Incorporated Documents" means the
documents which are incorporated by reference in the registration statement, the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto.
2. Agreement to Sell and Purchase. (a) The Company hereby
agrees, subject to all of the terms and conditions set forth herein, to issue
and sell to each Underwriter 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 $12.64 per
share; the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule I hereto (or such number of Firm Securities increased as
set forth in Section 10 hereof). The aggregate proceeds to the Company are
expected to equal $50,560,000 (net of underwriting discounts).
(b) The Company also agrees, subject to all the terms and
conditions set forth herein, to 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, the Underwriters
shall have the right to purchase from the Company, at the purchase price per
share, pursuant to an option (the "over-allotment option") which may be
exercised at any time and from time to time prior to 9:00 P.M., New York City
time, on the 30th day after the date of this Agreement (or, if such 30th day
shall be a Saturday or Sunday or a holiday, on the next business day thereafter
when the New York Stock Exchange is open for trading), up to an aggregate of
600,000 Additional Securities. Additional Securities may be purchased only for
the purpose of covering over-allotments made in connection with the offering of
the Firm Securities. Upon any exercise of the over-allotment option, each
Underwriter, severally and not jointly, agrees to purchase from the Company the
number of Additional Securities (subject to such
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adjustments as the Underwriters may determine in order to avoid fractional
shares) which bears the same proportion to the number of Additional Securities
to be purchased by the Underwriters as the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule I hereto (or such number of
Firm Securities increased as set forth in Section 10 hereof) bears to the
aggregate number of Firm Shares.
3. Offering by Underwriters. The Company has been advised
by Xxxxxxx Xxxxx Xxxxxx Inc. that the Underwriters propose to make a public
offering of their respective portions of the Securities as soon after this
Agreement has become effective as in their judgment is advisable and initially
to offer the Securities upon the terms set forth in the Prospectus.
4. Delivery of the Securities and Payment Therefor.
Delivery of and payment for the Firm Securities and the Additional Securities
(if the option provided for in Section 2(b) hereof shall have been exercised on
or before the third Business Day prior to the Closing Date shall be made at
10:00 AM, New York City time, on November 30, 2001, or at such time on such
later date not more than three Business Days after the foregoing date as the
Underwriters shall designate, which date and time may be postponed by mutual
written agreement of the Underwriters and the Company or as provided in Section
9 hereof (such date and time of delivery and payment for the Securities being
herein called the "Closing Date"). Delivery of the Securities shall be made for
the respective accounts of the several Underwriters, against payment by the
several Underwriters 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. Delivery of the Firm Securities and the Additional Securities shall
be made through the facilities of The Depository Trust Company unless the
Underwriters shall otherwise instruct the Company in writing.
If the option provided for in Section 2(b) hereof is exercised
after the third Business Day prior to the Closing Date, the Company will deliver
the Additional Securities (at the expense of the Company) to the Underwriters,
at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date specified by the
Underwriters (which shall be within three Business Days after exercise of said
option) for the respective accounts of the several Underwriters, against payment
by the several Underwriters 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. If settlement for the Additional Securities occurs
after the Closing Date, the Company will deliver to the Underwriters on the
settlement date for the Additional Securities, and the obligation of the
Underwriters to purchase the Additional Securities shall be conditioned upon
receipt of, supplemental opinions, certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the Closing Date
pursuant to Section 8 hereof.
5. Agreements of the Company. The Company agrees with the
several 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 Securities 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
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Underwriters promptly and, if requested by the Underwriters, will confirm such
advice in writing, immediately after such post-effective amendment has become
effective.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would 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 not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Company promptly will: (1) notify
the Underwriters of such event; (2) prepare, and file with the Commission, an
amendment or supplement which will correct such statement or omission or effect
such compliance; and (3) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(c) The Company will advise the Underwriters promptly and,
if requested by the Underwriters, will confirm such advice in writing: (i) of
any request by the Commission or its staff for amendment of or a supplement to
the Registration Statement, any Preliminary Prospectus or the Prospectus or for
additional information; (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 Securities for offering or sale in any jurisdiction or
the initiation of any proceeding for such purpose; and (iii) 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 Underwriters and counsel
to the Underwriters, without charge: (i) ten signed copies of the registration
statement and any Rule 462(b) Registration Statement as originally filed with
the Commission and of each amendment thereto, including financial statements and
all exhibits to the registration statement and Rule 462(b) 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 Underwriters may request; and (iv) ten
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 (including any filing under Rule 462(b)) 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
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(f) below, file any document which upon filing becomes an Incorporated
Document, of which the Underwriters shall not previously have been advised or to
which, after the Underwriters shall have received a copy of the document
proposed to be filed, the Underwriters 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.
(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 any Underwriter or dealer, the Company
will expeditiously deliver to each Underwriter and each dealer, without charge,
as many copies of the Prospectus (and of any amendment or supplement thereto) as
the Underwriters 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 Securities are offered by the several Underwriters and by all dealers
to whom Securities may be sold, both in connection with the offering and sale of
the Securities and for such period of time thereafter as the Prospectus is
required by the Act to be delivered in connection with sales by any Underwriter
or dealer. If during such period of time: (i) any event shall occur that in the
judgment of the Company, or in the opinion of counsel for the Underwriters, is
required to be set forth in the Prospectus (as then amended or supplemented) or
should be set forth therein in order 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 or amend the Prospectus (or
to file under the Exchange Act any document which, upon filing, becomes an
Incorporated Document) in order to comply with the Act or any other law, the
Company will forthwith prepare and, subject to the provisions of paragraph (d)
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 Underwriters agree that the Prospectus should be amended or supplemented,
the Company, if requested by the Underwriters, 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 Securities for offering and sale by the several
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
Securities; (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
Securities, in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to its
security holders and to the Underwriters 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
5
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.
(i) During the period commencing on the date hereof and
ending on the date occurring three years hereafter, the Company will furnish to
the Underwriters: (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
Underwriters may request.
(j) 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
severally through Xxxxxxx Xxxxx Barney Inc. for all out-of-pocket expenses
(including fees and expenses of counsel for the Underwriters) incurred by the
Underwriters in connection herewith.
(k) The Company will apply the net proceeds from the sale of
the Securities substantially in accordance with the description set forth in the
Prospectus.
(l) If Rule 430A 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.
(m) Except as provided in this Agreement, the Company will
not sell, contract to sell or otherwise dispose of any Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, or
grant any options or warrants to purchase Common Stock, for a period of 90 days
after the date of the Prospectus, without the prior written consent of Xxxxxxx
Xxxxx Xxxxxx Inc. (except that the Company may (i) issue shares of its Common
Stock and its 9% Class A Non-Voting Preferred Stock pursuant to the Agreement
and Plan of Merger, dated as of July 1, 2001, between the Company and Captec Net
Lease Realty, Inc. ("Captec") at anytime grant options or warrants to purchase
Common Stock in connection with the grant of options to certain employees,
officers and directors under the Company's stock option plans or the issuance of
Common Stock upon exercise of such options).
(n) The Company has furnished to the Underwriters "lock-up"
letters, in form and substance satisfactory to the Underwriters, signed by the
individuals listed on Schedule II hereto.
(o) 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 Securities.
(p) The Company will comply and will use its best efforts to
cause the Properties and the tenants to comply in all material respects with all
applicable Environmental Laws (as hereinafter defined).
6
(q) The Company will use its best efforts to have the shares
of Common Stock which it agrees to sell under this Agreement listed, subject to
notice of issuance, on the New York Stock Exchange on or before the Closing
Date.
(r) 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
subsidiaries comply with all applicable laws and regulations necessary to
maintain a status as a "qualified REIT subsidiary" under the Code.
(s) 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
Securities pursuant to this Agreement.
(t) The Company will not, without the prior written consent
of Xxxxxxx Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company, directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any debt
securities issued or guaranteed by the Company (other than the Securities) or
publicly announce an intention to effect any such transaction, until the Closing
Date.
6. Representations and Warranties of the Company. The
Company hereby represents and warrants to each Underwriter:
(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. The
Registration Statement has become effective for the registration under the Act
of the Securities. No stop order suspending the effectiveness of the
Registration Statement is in effect, and, to the best of the Company's
knowledge, no proceedings for such purpose are pending before or threatened by
the Commission. 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 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 and did not and will not at any such times 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. The representation and warranty contained in this Section 6(b)
7
does not apply to statements in or omissions from the registration statement or
the Prospectus made in reliance upon and in conformity with information relating
to any Underwriter furnished to the Company in writing by or on behalf of any
Underwriter expressly for use therein.
(c) 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. 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.
(d) All the outstanding shares of Common Stock of the
Company have been duly authorized and validly issued, are fully paid and
nonassessable and are free of any preemptive or similar rights; the Securities
have been duly authorized and, when issued and delivered to the Underwriters
against payment therefor in accordance with the terms hereof, will be validly
issued, fully paid and nonassessable and free of any preemptive or similar
rights; and the capital stock of the Company conforms to the description thereof
in the registration statement and the Prospectus.
(e) Each of the Company and each of its subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Maryland with full corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Registration Statement 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), business, properties, net worth or results of operations
of the Company and its subsidiaries. Neither the Company nor any of its
subsidiaries does any business in Cuba.
(f) The Company has no subsidiary or subsidiaries other than
Net Lease Realty I, Inc., Net Lease Realty II, Inc., Net Lease Realty III, Inc.,
Net Lease Realty IV, Inc., Net Lease Funding, Inc., CNLR, LP Corp., CNLR GP
Corp., XXX-Falls Church, LLC and Commercial Net Lease Realty Services, Inc. and
does not control, directly or indirectly, any corporation, partnership, joint
venture, association or other business association (other than the general
partner interest of Net Lease Realty III, Inc. in Net Lease Institutional
Funding, L.P.). 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.
(g) 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
8
described as required; (B) could reasonably be expected to have a material
adverse effect on the 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 on the condition (financial or other), 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 or contemplated in the Prospectus (exclusive of
any supplement thereto). There are no statutes, regulations, capital
expenditures, 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. The statements in the Prospectus under the heading "Certain
Federal Income Tax Considerations" and "Federal Income Tax Considerations"
fairly summarize the matters therein described.
(h) 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 on the Company and its subsidiaries, 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 or condition 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.
(i) (A) 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 the Properties (as defined in
the Prospectus), which violation would have a material adverse effect on the
Company and/or its subsidiaries; (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 on the Company or its subsidiaries or 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.
9
(j) Neither the issuance and sale of the Securities, the
execution, delivery or performance of this Agreement by the Company, nor the
consummation by the Company of the transactions contemplated hereby: (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 Securities 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.
(k) To the Company's knowledge, the accountants, KPMG LLP,
who have certified or shall certify the financial statements and schedules
included or incorporated by reference in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), are independent public
accountants with respect to the Company as required by the Act and the
applicable published rules and regulations thereunder.
(l) The financial statements, together with related
schedules and notes, included or incorporated by reference in the Registration
Statement 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 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 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 the proper
application of those adjustments to the historical financial statement amounts
in the pro forma financial statements included in the Prospectus and the
Registration Statement. The pro forma financial statements included in the
Prospectus and the Registration Statement comply as to form in all material
respects with the applicable accounting
10
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.
(m) The execution and delivery of, and the performance by
the Company of its obligations under, this Agreement has 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 only to the extent that rights to indemnity and contribution hereunder
may be limited by federal or state securities laws.
(n) Except as disclosed in the Registration Statement 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 and the Prospectus (or any amendment or supplement thereto), neither
the Company nor any of its subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, 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, 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.
(o) Except as disclosed in the Registration Statement and
the Prospectus (or any amendment or supplement thereto) the Company and each of
its subsidiaries has good and marketable title to all property (real and
personal) described in the Prospectus as being owned by each of them (including
the Properties), free and clear of all liens, claims, security interests or
other encumbrances except such as are described in the Registration Statement
and the Prospectus, or in any document filed as an exhibit to the Registration
Statement, and each property described in 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.
(p) 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
Securities, will not distribute, any offering material in connection with the
offering and sale of the Securities other than the Registration Statement, the
Prospectus or other materials, if any, permitted by the Act. 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 Securities; or (ii) since the filing of the
Registration Statement (A) sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, the Securities or (B) paid or agreed
to pay to any person any compensation for soliciting another to purchase any
other securities of the Company.
(q) The Company and each of its subsidiaries possess all
certificates, permits, licenses, franchises and authorizations of governmental
or regulatory authorities ("permits") as are necessary to own their respective
properties and to conduct their respective businesses in the manner described in
the Prospectus, where such failure to possess could have a material adverse
11
effect on the Company and its subsidiaries, subject to such qualifications as
may be set forth in 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
Prospectus. Except as described in the Prospectus, none of the permits contains
any restriction that is materially burdensome to the Company and/or its
subsidiaries. Except as described in 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 on the
condition (financial or otherwise), prospects, earnings, business or properties
of the Company and its subsidiaries, taken as a whole.
(r) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurances that: (i) transactions are executed in accordance with management's
general or specific authorization; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets; (iii)
access to the financial and corporate books and records and assets is permitted
only in accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(s) 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.
(t) 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 change in the
condition (financial or other), business, net worth or results of operations of
the Company and/or its subsidiaries.
(u) 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 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 or
contemplated in the Prospectus (exclusive of any supplement thereto)) 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,
12
whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(v) No holder of any security of the Company has any right
to require registration shares of Common Stock 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.
(w) 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 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 subsidiary. The Company is not now, and after sale of the Securities to
be sold by the Company hereunder and the application of the net proceeds from
such sale as described in 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.
(x) (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 for circumstances and expenditures that have not had and will not
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 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.
13
(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 material
claim under or pursuant to any Environmental 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.
(v) To the best of the Company's knowledge, none of
the Properties is included or proposed for inclusion on 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.
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
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.
(y) 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)(3)(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 for all years of its taxable operations ending
on or before December 31, 2001.
(z) The Company has only one "taxable REIT subsidiary"
within the meaning of Section 856(l) of the Code and the election under Section
856(l)(1) has been timely made and not revoked. The Company's loan to the
"taxable REIT subsidiary" is adequately secured by a mortgage on real estate and
qualifies as a "real estate asset" within the meaning of Section 856(c)(5)(B) of
the Code. The Company has no other securities that would cause it to fail to
comply with Section 856(c)(4)(B) of the Code.
14
(aa) Each of the Company's corporate subsidiaries, except its
taxable REIT subsidiary, is in compliance with all requirements applicable to 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.
(bb) 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 materially and adversely affect the condition (financial
or otherwise), business, prospects, 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, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(cc) The Company and its subsidiaries have title insurance on
each of the Properties in an amount at least equal to the greater of: (a) the
cost of acquisition of such property; or (b) the replacement cost of the
improvements located on such property.
(dd) 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 or contemplated by the
Prospectus.
(ee) 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
Securities.
(ff) 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
15
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.
7. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Underwriter, the directors, officers,
employees 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: (i) such losses, claims, damages or liabilities (or actions in
respect thereof) 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 Securities as originally filed or in any amendment
thereof, or in the Basic Prospectus, any Preliminary Prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, including without
limitation the statements with respect to Captec in the second paragraph of the
section entitled "Recent Developments" in the Prospectus Supplement; 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 on a breach
of the representations and warranties in this Agreement. The Company agrees to
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 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 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
or Prospectus is as follows: under the heading "Underwriting" or "Plan of
Distribution," (i) the list of Underwriters and their respective participation
in the sale of the Securities, (ii) the sentences related to concessions and
reallowances, and (iii) the paragraph related to stabilization, syndicate
covering transactions and penalty bids in any Preliminary Prospectus and the
Prospectus.
(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
16
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 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 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 Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter 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
17
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 such Underwriter, 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).
8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Securities hereunder are
subject to the following conditions:
(a) (i) 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 Securities may
commence, such post-effective amendment shall have become effective not later
than 5:30 P.M., New York City time, on the date hereof, or at such later date
and time as shall be consented to in writing by the Underwriters; (ii) no stop
order suspending the effectiveness of the registration statement shall have been
issued and no proceeding for that purpose shall have been instituted or, to the
knowledge of the Company or any Underwriter, threatened by the Commission; and
(iii) 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 effective date of this Agreement, or,
if earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereto) 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 or
contemplated 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 Underwriters, is so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendments thereto) and the Prospectus (exclusive of any
18
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 Prospectus untrue or
which, in the opinion of the Company and its counsel or the Underwriters and
their counsel, requires the making of any addition to or change in the
Prospectus 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 Prospectus to reflect such
event or development would, in the opinion of the Underwriters, adversely affect
the market for the Securities.
(c) The Underwriters shall have received on the Closing
Date, an opinion of Xxxx Xxxxxxx, LLP, counsel for the Company, dated the
Closing Date and addressed to the Underwriters, to the effect that:
(i) Each of the Company and each of its
subsidiaries: (x) is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Maryland, with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement thereto);
and, (y) based solely on certificates of public officials and officers
of the Company and its subsidiaries, is duly registered and qualified to
conduct its business; and (z) 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), business, properties, net
worth or results of operations of the Company and its subsidiaries;
(ii) To the knowledge of such counsel, the Company
has no subsidiaries other than Net Lease Realty I, Inc., Net Lease
Realty II, Inc., Net Lease Realty III, Inc., Net Lease Realty IV, Inc.,
Net Lease Funding, Inc., CNLR, LP Corp., CNLR GP Corp., XXX-Falls
Church, LLC and Commercial Net Lease Realty Services, Inc. and does not
control, directly or indirectly, any corporation, partnership, joint
venture, association or other business association (other than the
general partner interest of Net Lease Realty III, Inc. in Net Lease
Institutional Funding, L.P.). 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 of the Company
conforms in all material respects as to legal matters to the description
thereof contained in the Prospectus under the captions "Description of
Debt Securities," "Description of Common Stock" "Description of Common
Stock Warrants" in the Base Prospectus and, except as set forth in the
Final 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;
19
(iv) All the shares of capital stock of the Company
outstanding prior to the issuance of the Securities have been duly
authorized and validly issued, and are fully paid and nonassessable;
(v) The Securities have been duly authorized and,
when issued and delivered to the Underwriters against payment therefor
in accordance with the terms hereof, will be validly issued, fully paid
and nonassessable and free of preemptive rights under Maryland General
Corporation law;
(vi) To the knowledge of such counsel, based upon
such inquiry as such counsel deems appropriate, 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;
(vii) The form of certificates for the Securities
conform to the requirements of the Maryland General Corporation Law, if
any;
(viii) 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) has been made in the manner and within the time
period required by Rule 424(b); 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 and the Registration Statement and the Prospectus (other than
the financial statements and other financial information contained
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the applicable requirements of the
Act, the Exchange Act and the Trust Indenture Act and the respective
rules thereunder; and such counsel has no reason to believe: (A) that on
the effective date of the registration statement, or as of the date
hereof, the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading; or (B) that the Prospectus as of its date and on the Closing
Date included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (in each case, other than the financial
statements and other financial information, contained therein, as to
which such counsel need express no opinion);
(ix) The Company has the corporate power and
authority to enter into this Agreement and to issue, sell and deliver
the Securities to the Underwriters as provided herein. This Agreement
and the Purchase Agreements have been duly authorized, executed and
delivered by the Company and are valid, legal and binding agreements of
the Company, enforceable against the Company in accordance with their
respective terms, except as enforcement of rights to indemnity and
contribution hereunder may be limited by Federal or state securities
laws or principles of public policy and subject to the qualification
that the enforceability of the Company's obligations hereunder and
thereunder may be limited by bankruptcy, fraudulent conveyance,
insolvency,
20
reorganization, moratorium, and other laws relating to or affecting
creditors' rights generally, and by general equitable principles when
applied by a court of law or equity;
(x) To the knowledge of such counsel, neither the
Company nor any of its subsidiaries is: (A) in violation of its
respective articles of incorporation or by-laws; 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 may be
disclosed in the Prospectus;
(xi) Neither the issue, offer, sale or delivery of
the Securities, 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: (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 or by-laws of the Company or any of its subsidiaries or
(2) 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 is bound (x)
that is an exhibit to the Registration Statement or (y) which is 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 agreement,
indenture, lease, mortgage, deed of trust or other instrument,
agreement, obligation, condition or covenant to which the Company or any
of its subsidiaries is bound or a party or to which any properties of
the Company or any of its subsidiaries is subject; or (C) violates or
will violate any statute, law, rule, regulation, 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;
(xii) 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 Securities) for the
valid issuance and sale of the Securities to the Underwriters as
contemplated by this Agreement;
(xiii) (A) The Registration Statement 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, as to which such
counsel need not express any opinion), 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;
21
(xiv) To the knowledge of such counsel, after due
inquiry, 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;
(xv) To the knowledge of such counsel, neither the
Company nor any of its subsidiaries is in violation of any law,
ordinance, administrative or governmental rule or regulation applicable
to the Company or its subsidiaries or of any decree of any court or
governmental agency or body having jurisdiction over the Company or its
subsidiaries;
(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. 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 change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company or its
subsidiaries;
(xvii) The Securities have been approved for listing on
the New York Stock Exchange, subject to official notice of issuance.
(xviii) 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 will not cause the
Company to become an investment company subject to registration under
the Investment Company Act of 1940, as amended;
(xix) Commencing with the Company's initial taxable
year, the Company has qualified as a REIT under the Code for all taxable
years ending on or before December 31, 2000, and its past and proposed
method of operation will enable it to qualify as a REIT under the Code
for its taxable year ending on December 31, 2001; and each of the
Company's subsidiaries is a "qualified REIT subsidiary" within the
meaning of Section 856(i) of the Code or a "taxable REIT subsidiary"
within the meaning of Section 856(l) of the Code;
(xx) To the knowledge of such counsel: (A) neither
the Company nor any of its subsidiaries is in violation of any federal
law or regulation relating to occupational safety and health or to the
environment, including, without limitation, the
22
storage, handling, transportation or disposal of hazardous or toxic
materials; (B) the Company and its subsidiaries have received all
permits, registrations, licenses and other approvals required of them
under applicable federal occupational safety and health and
environmental laws and regulations to conduct their respective
businesses; and (C) the Company and each of its subsidiaries is in
compliance with all terms and conditions of any such permit,
registration, license or approval, except any such violation of law or
regulation, failure to receive required permits, registrations, licenses
or other approvals or failure to comply with the terms and conditions of
such permits, registrations, licenses or approvals which would not,
singly or in the aggregate, result in a material adverse change in the
condition (financial or otherwise), business prospects, net worth or
results of operations of the Company or its subsidiaries;
(xxi) The statements in 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
(xxii) Except as disclosed in the Prospectus, no
holders of securities have rights to the registration of such securities
under the Registration Statement.
(xxiii) 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 and the Prospectus,
including review and discussion of the contents thereof (including
review and discussion of the contents of all Incorporated 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 Prospectus, as of its date and as of the Closing Date or the Closing
Date of the Additional Securites 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 Closing Date or the Closing Date of the Additional
Securities, as the case may be 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 Underwriters shall have received on the Closing Date
an opinion of Xxxxxxx Xxxx & Xxxxxxxxx, counsel for the Underwriters, dated the
Closing Date and addressed to the Underwriters, with respect to the matters
referred to in clauses (x) and (xv)(A) of the foregoing paragraph (c) and such
other related matters as the Underwriters may request.
23
(e) The Underwriters shall have received letters addressed
to the Underwriters and dated the date hereof and the Closing Date from KPMG
LLP, independent certified public accountants, substantially in the forms
heretofore approved by the Underwriters.
(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; (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 of the Company and its subsidiaries
(other than in the ordinary course of business) from that set forth or
contemplated in the Registration Statement 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 and the
Prospectus (or any amendment or supplement thereto), except as may otherwise be
stated in the Registration Statement 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) neither the Company nor any of its
subsidiaries shall not have any liabilities or obligations, direct or contingent
(whether or not in the ordinary course of business), that are material to the
Company or subsidiaries, other than those reflected in the Registration
Statement or 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 on and as of the date hereof and on and as
of the Closing Date as if made on and as of the Closing Date, provided, that,
for purposes of the representations and warranties to be made as of the Closing
Date, the Underwriters shall have received a certificate, dated the Closing Date
and signed by the chief executive officer and the chief financial officer of the
Company (or such other officers as are acceptable to the Underwriters), to the
effect set forth in this Section 8(f) and in Section 8(g) hereof.
(g) The Company shall not have failed at or prior to the
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 or under
the Indenture, at or prior to the Closing Date.
(h) Prior to the Closing Date the Securities shall have been
listed subject to notice of issuance, on the New York Stock Exchange.
(i) The Company shall have furnished or caused to be
furnished to the Underwriters such further certificates and documents as the
Underwriters 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 Underwriters 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 each Underwriter as to
the statements made therein.
24
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 Underwriters and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled by the Underwriters at, or at any time prior to, the Closing
Date. Notice of such cancellation shall be given to the Company in writing or by
telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 8 shall
be delivered at the offices of Xxxxxxx Xxxx & Xxxxxxxxx, counsel for the
Underwriters, at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the Closing
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, 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, 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
Securities; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp taxes in
connection with the original issuance and sale of the Securities; (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 Securities;
(v) the listing of the Shares on the New York Stock Exchange; (vi) the
registration or qualification of the Securities 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); (vii) 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.; (viii) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of
the Securities; and (ix) the fees and expenses of the Company's accountants and
the fees and expenses of counsel (including local and special counsel) for the
Company.
10. Effective Date of Agreement. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) 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 Securities may commence, when notification
of the effectiveness of such post-effective amendment has been released by the
Commission. Until such time as this Agreement shall have become effective, it
may be terminated by the Company, by notifying the Underwriters, or by the
Underwriters, by notifying the Company.
25
If any one or more Underwriters shall fail to purchase and pay
for any of the Securities 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 Firm Securities set forth
opposite their names in Schedule I hereto bears to the aggregate amount of Firm
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate principal
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate principal amount of
Securities 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 Securities, and if such nondefaulting Underwriters do not purchase
all the Securities, 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 Business Days, as the nondefaulting
Underwriters 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.
Any notice under this Section 10 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
11. Termination of Agreement. This Agreement shall be
subject to termination in the absolute discretion of the Underwriters, without
liability on the part of any Underwriter to the Company, by notice to the
Company, if, prior to the Closing Date or any Closing Date for the Additional
Securities (if different from the Closing Date and then only as to the
Additional Securities) as the case may be: (i) 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; (ii) a general
moratorium on commercial banking activities in New York or Florida shall have
been declared by either federal or state authorities; or (iii) 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 judgment of the Underwriters, impracticable or
inadvisable to commence or continue the offering of the Securities at the
offering price to the public set forth on the cover page of the Prospectus or to
enforce contracts for the resale of the Securities by the Underwriters. 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, fifth, sixth and seventh paragraphs under the caption
"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 Sections 6(b) and 7 hereof.
26
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 any Underwriter 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 Securities. The provisions of Sections 7 and 9 hereof shall
survive the termination or cancellation of this Agreement.
14. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telefaxed to the Xxxxxxx Xxxxx Xxxxxx General Counsel (fax no.:
(000) 000-0000) and confirmed to the General Counsel, Xxxxxxx Xxxxx Barney, at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General Counsel; or,
if sent to the Company, will be mailed, delivered or telefaxed to the office of
the Company at 000 Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000,
Attention: Xxxxx X. Xxxxxx, Xx., Chairman and Chief Executive Officer.
15. Successors. This Agreement has been made solely for the
benefit of the several 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 any Underwriter of any of the Securities in his status as such
purchaser.
16. 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 without giving
effect to the conflict or choice of laws principles thereof.
17. 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.
18. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
19. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings 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.
27
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,
COMMERCIAL NET LEASE REALTY, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
The foregoing Agreement is hereby confirmed and accepted as of the date on the
first page hereof.
XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxxxxx Gugliemone
----------------------
Director
For itself and the other several Underwriters named in Schedule I to the
foregoing Agreement.
SCHEDULE I
COMMERCIAL NET LEASE REALTY, INC.
Principal Amount of
Underwriters Securities to be Purchased
------------ --------------------------
Xxxxxxx Xxxxx Barney Inc................................................. 1,400,000
First Union Securities, Inc.............................................. 800,000
X.X. Xxxxxxx & Sons, Inc................................................. 600,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated..................................... 600,000
Xxxxxxx Xxxxx & Associates, Inc.......................................... 600,000
----------
Total............................................................. 4,000,000
SCHEDULE II
COMMERCIAL NET LEASE REALTY, INC.
Persons Subject to Lock-Up
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Xxxxx X. Xxxxxx, Xx.
