EXHIBIT 5.1
[LETTERHEAD OF PILLSBURY WINTHROP SHAW PITTMAN LLP]
February 28, 2006
Commercial Net Lease Realty, Inc.
450 South Orange Avenue, Suite 900
Orlando, Florida 32801
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Commercial Net Lease Realty, Inc., a Maryland corporation (the
“Company”), in connection with a registration statement on Form S-3 (the “Registration
Statement”), filed with the Securities and Exchange Commission under Rule 462(e) under the
Securities Act of 1933 (the “Act”). The Registration Statement relates to the proposed
offering and sale from time to time of securities, which may be all or any combination of: (1) debt
securities of the Company (the “Debt Securities”), (2) preferred stock (the “Preferred
Stock”), (3) preferred stock represented by depositary shares (the “Depositary
Shares”), (4) common stock (the “Common Stock”), and/or warrants to purchase Common
Stock or Preferred Stock (the “Warrants”).
The Debt Securities, the Preferred Stock, the Depositary Shares, the Common Stock and the
Warrants are collectively referred to herein as the “Securities.” The Debt Securities will be
offered and sold pursuant to the indenture between Commercial Net Lease Realty, Inc. and Wachovia
Bank, National Association (successor to First Union National Bank, a national banking association
organized under the laws of the United States of America), which is filed as an exhibit to the
Registration Statement (the “Indenture”). The Common Stock and/or Preferred Stock may be
offered in any class or series and to the extent required will be offered and sold pursuant to
articles supplementary or amendments to the Company’s Articles of Incorporation (as defined below),
to be filed with the Maryland State Department of Assessments and Taxation (“SDAT”). Any
Depositary Shares will be issued under one or more deposit agreements (each, a “Deposit
Agreement”), each between the Company and a financial institution identified therein as the
depositary (each, a “Depositary”). Any Warrants will be issued under one or more warrant
agreements (each, a “Warrant Agreement”), each between the Company and a financial
institution identified therein as a warrant agent (each, a “Warrant Agent”).
For the purposes of this opinion, we have examined the following documents:
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an executed copy of the Registration Statement; |
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the First Amended and Restated Articles of Incorporation of
the Company, as amended (the
“Articles of Incorporation”), as certified by SDAT
on February 27, 2006 and as certified
to us by the Secretary of the Company as being in effect as of the date hereof; |
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3. |
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the Bylaws of the Company, as amended, restated or supplemented (the
“Bylaws”), as certified to us by the Secretary of the Company as being in effect
as of the date hereof; |
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4. |
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the Indenture; |
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the resolutions of the Board of Directors of the Company adopted by unanimous
written consent on February 23, 2006 (the “Resolutions”); |
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6. |
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a certificate of an officer of the Company dated as of the date hereof; and |
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7. |
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such other documents, corporate records, certificates of public officials and other instruments
as we have deemed necessary for the purposes of rendering this opinion. |
Commercial Net Lease Realty, Inc.
February 28, 2006
Page 2
In our examination of the aforesaid documents, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the completeness and authenticity of all
documents submitted to us as originals, and the conformity to original documents of all documents
submitted to us as certified, telecopied, photostatic or reproduced copies. In connection with the
opinions expressed below, we have assumed that, at and prior to the time of the sale and delivery
of any Securities pursuant to the Registration Statement, (i) the Board of Directors of the Company
(or the committee of the Board or the officer authorized to act on behalf of the Company) will have
duly established the rights, powers, privileges and preferences and other terms, if any, of any
class or series, as applicable, of the Debt Securities, the Preferred Stock, the Depositary Shares,
the Common Stock or the Warrants, (ii) the Resolutions will have not been amended, modified or
rescinded, (iii) no stop order suspending the effectiveness of the Registration Statement will have
been issued and no proceedings with respect thereto will have been commenced or threatened, and
(iv) there will not have occurred any change in law materially and adversely affecting the power of
the Company to offer and sell the Securities or the validity of the Securities.
We have also assumed that the terms of any Debt Securities, Preferred Stock, Depositary
Shares, Common Stock or Warrants to be established subsequent to the date hereof, the offering,
sale and delivery of any such Securities, and compliance by the Company with the rights, powers,
privileges and preferences and other terms, if any, of such Debt Securities, Preferred Stock,
Depositary Shares, Common Stock or Warrants will not at the time of such offering, sale and
delivery violate or conflict with (i) the Articles of Incorporation, as then amended, restated and
supplemented, and the Bylaws, as then amended, restated and supplemented, of the Company, (ii) any
provision of any license, indenture, instrument, mortgage, contract, document or agreement to which
the Company is then a party or by which the Company is then bound, or (iii) any law or regulation
or any decree, judgment or order then applicable to the Company. We have further assumed that the
number of shares of Common Stock or Preferred Stock to be offered and sold pursuant to the
Registration Statement will not at the time of such offering and sale exceed the amount of such
class of capital shares authorized in the Articles of Incorporation, as then amended, restated or
supplemented, and unissued (and not otherwise reserved for issuance) at such time. We have also
assumed that prior to the offering and sale (i) in the case of Debt Securities, any supplement to
the Indenture will have been executed and delivered by the Company, the trustee and the other
parties thereto that complies with the Trust Indenture Act of 1939 and any other applicable laws;
(ii) in the case of Preferred Stock and Depositary Shares, as applicable, articles supplementary
will have been filed with, and accepted for record by, SDAT; (iii) in the case of Depositary
Shares, a Deposit Agreement will have been executed and delivered by the Company (and any other
maker thereof); and (iv) in the case of Warrants, a Warrant Agreement will have been executed and
delivered by the Company (and any other maker thereof).
To the extent that the obligations of the Company with respect to the Securities may be
dependent upon such matters, we assume for purposes of this opinion that the other party under the
Indenture or any supplement thereto for any Debt Securities, under a Deposit Agreement for any
Depositary Shares and under a Warrant Agreement for any Warrants, namely, the trustee, the
Depositary or the Warrant Agent, respectively, is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization; that such other party is duly
qualified to engage in the activities contemplated by the Indenture or any supplement thereto,
Deposit Agreement or Warrant Agreement, as applicable; that the Indenture or any supplement
thereto, Deposit Agreement or Warrant Agreement, as applicable, has been duly authorized, executed
and delivered by the other party and constitutes the legal, valid and binding obligation of the
other party enforceable against the other party in accordance with its terms; that such other party
is in compliance with respect to performance of its obligations under the Indenture or any
supplement thereto, Deposit Agreement or Warrant Agreement, and with all applicable laws and
regulations; and that such other party has the requisite organizational and legal power and
authority to perform its obligations under the Indenture or any supplement thereto, Deposit
Agreement or Warrant Agreement, as applicable.
Based upon, subject to and limited by the foregoing, we are of the opinion that:
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The Debt Securities will constitute legally valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms when (i) the
final terms of the Debt Securities and the applicable supplement to the Indenture have
been duly established in accordance with the Articles of Incorporation and applicable
law; (ii) the Board of Directors or a duly authorized committee thereof has adopted a
resolution, in form and content as required by applicable law, establishing the final
terms of the Debt Securities and the applicable supplement to the Indenture and duly
authorizing the issuance and delivery of the Debt Securities; and (iii) duly executed
and delivered by the Company against payment therefor and countersigned by the
applicable trustee in accordance with the applicable supplement to the Indenture and
delivered to and paid for by the purchasers of the Debt Securities in the manner
contemplated by the Registration Statement, the applicable prospectus supplement and
such resolution. |
Commercial Net Lease Realty, Inc.
February 28, 2006
Page 3
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Upon adoption by the Board of Directors or an authorized committee thereof of a
resolution in form and content as required by applicable law, and upon issuance and
delivery of and payment in the manner contemplated by, and in accordance with, the
Registration Statement, the applicable prospectus supplement and such resolution, the
Preferred Stock (including any Preferred Stock represented by Depositary Shares) offered
and sold pursuant to the Registration Statement will be legally issued, fully paid and
nonassessable. |
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Upon adoption by the Board of Directors or an authorized committee thereof of a
resolution in form and content as required by applicable law, and upon issuance and
delivery of and payment in the manner contemplated by, and in accordance with, the
Registration Statement, the applicable prospectus supplement and such resolution, the
Common Stock offered and sold pursuant to the Registration Statement will be legally
issued, fully paid and nonassessable. |
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Upon (i) adoption by the Board of Directors or an authorized committee thereof,
of a resolution in form and content as required by applicable law, establishing or
authorizing the terms of the Depositary Shares and the applicable Deposit Agreement and
specifically authorizing for issuance the depositary receipts evidencing the Depositary
Shares and (ii) due execution by the Company of the depositary receipts evidencing the
Depositary Shares, satisfaction of all conditions for delivery of such depositary
receipts established by the authorization of the Company’s Board of Directors or an
authorized committee thereof, and delivery of such depositary receipts by the Company
against payment therefor in the manner contemplated by, and in accordance with, the
Registration Statement, the applicable prospectus supplement, the Deposit Agreement
relating thereto, and such resolution, the depositary receipts evidencing the Depositary
Shares will entitle the holders thereof to the rights specified in such depositary
receipts. |
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Upon (i) adoption by the Board of Directors or an authorized committee thereof,
of a resolution in form and content as required by applicable law, establishing or
authorizing the terms of the Warrants and the applicable Warrant Agreement and (ii) due
execution by the Company of such Warrants and such Warrant Agreement, satisfaction of
all conditions for delivery of such Warrants established by the authorization of the
Company’s Board of Directors or an authorized committee thereof, and delivery of such
Warrants by the Company against payment therefor in the manner contemplated by, and in
accordance with, the Registration Statement, the applicable prospectus supplement, the
Warrant Agreement relating thereto, and such resolution, the Warrants will constitute
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms. |
Our opinions in Paragraphs 1, 4 and 5 above are subject to and limited by the effect of
bankruptcy, insolvency, fraudulent conveyance and other similar laws affecting or relating to the
rights of creditors generally, and are limited by general equitable principles.
This opinion is limited to the laws of the United States, the Maryland General Corporation Law
and, with respect to the opinion expressed in Paragraph 1 above, New York contract law (but not
including any statutes, ordinances, administrative decisions, rules or regulations of any political
subdivision of the State of New York), in each case excluding choice-of-law provisions thereof. We
render no opinions with respect to the law of any other jurisdiction. Our opinion is rendered only
with respect to the laws and the rules, regulations and orders thereunder that are currently in
effect. We assume no obligation to advise you of any changes in the foregoing subsequent to the
delivery of this opinion. This opinion has been prepared solely for your use in connection with
the filing of the Registration Statement, and should not be quoted in whole or in part or otherwise
be referred to, nor otherwise be filed with or furnished to, any governmental agency or other
person or entity, without our express prior written consent.