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Exhibit 10.2
Xxxxx Financial Corporation
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
CORPORATE PROPERTY ASSOCIATES 15 INCORPORATED
SELECTED DEALER AGREEMENT
April ____________, 2001
Ladies/Gentlemen:
We have agreed to use our best efforts to sell, along with a group of
selected dealers (collectively, the "Selected Dealers") to be formed with our
assistance, up to 40,000,000 shares (the "Shares") of Corporate Property
Associates 15 Incorporated (the "Company"). The Shares are being offered by us,
as Sales Agent for the Company, and by the Selected Dealers. The terms of the
offering of the Shares (the "Offering") are more fully described in the enclosed
prospectus (the "Prospectus"), receipt of which you hereby acknowledge.
We are hereby inviting you to act as a Selected Dealer for the Offering,
subject to the other terms and conditions set forth below. You hereby confirm
that you are a member in good standing of the National Association of Securities
Dealers, Inc. (the "NASD"), that you have complied with all applicable federal
and state broker-dealer registration requirements and that you are not a
"discount broker" as that term is commonly understood in the brokerage industry.
Upon execution of this Selected Dealer Agreement (the "Selected Dealer
Agreement"), you agree to be bound by the terms and conditions of the Sales
Agency Agreement between us, as Sales Agent and the Company (the "Sales Agency
Agreement") (to the extent such terms apply to the Selected Dealers), a copy of
which is attached hereto as Exhibit A and of which this Selected Dealer
Agreement is a part.
Capitalized terms used herein and not otherwise defined herein shall have
the same meaning as in the Sales Agency Agreement.
Upon notification by us, you may offer the Shares at the public offering
price stated in the Prospectus, subject to the terms and conditions hereof. The
public offering price of the Shares and the amount of your Selling Commission
that is re-allowed by us to you with respect to volume sales of Shares to
"single purchasers" on orders of $250,000 or more (as defined in the Prospectus)
shall be reduced by the amount of the Share purchase price discount. In the case
of such volume sales to single purchasers, your Selling Commission will be
reduced for each
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incremental Share purchase in the total volume ranges set forth in the table
below. Such reduced Share price purchase price will not affect the amount
received by the company for investment. The following table sets forth the
reduced Share purchase price and Selling Commission payable to you:
Purchase Price Per Selling Commission Per
Volume Discount Share For Incremental Share on Total Sale for
Range for a Share In Volume Incremental Share in
"Single Purchaser" Discount Range Volume Discount Range
$ 2,000 - $ 250,000 $10.00 $0.65
$ 250,001 - $ 500,000 $ 9.85 $0.50
$ 500,001 - $ 750,000 $ 9.70 $0.35
$ 750,001 - $1,000,000 $ 9.60 $0.25
$1,000,001 - $5,000,000 $ 9.50 $0.15
As an example, a single purchaser would receive 50,380 Shares (rather than
50,000 Shares) for his investment of $500,000 and the Selling Commission would
be $28,940. A refund will be made to the purchaser for any fractional Shares
based on the public offering price if such refunds in excess of $1.00. In the
example, $7.00 would be refunded for the fractional Share.
Selling Commissions for purchases of $5,000,000 or more are negotiable but
in no event will the proceeds to the Company be less than $9.30 per Share. We
agree to re-allow to you a Selected Dealer Fee of one percent of the full price
of each Share sold by you.
We may in our sole discretion pay Selling Commissions of $ per
Share sold for Shares purchased under the dividend reinvestment plan.
Additionally, we may, in our sole discretion pay you a one-half percent
marketing fee, which will be based on such factor as volume of Shares sold by
you, marketing support and bona fide conference fees incurred.
No payment of commissions or the Selected Dealer Fee will be made in
respect of Orders (or portions thereof) which are rejected by the Company,
Selling Commissions and the Selected Dealer Fee will be paid on each Closing
Date with respect to Shares sold to purchasers whose Shares are issued on such
Closing Date. Selling Commissions and the Selected Dealer Fee will be payable
only with respect to transactions lawful in the jurisdictions where they occur.
Purchases of Shares by Xxxxx Property Advisors, its Affiliates or any Selected
Dealer or any of their employees shall be net of commissions.
In no event shall the aggregate underwriting compensation to be paid to
us, you and the other Selected Dealers in connection with the Offering and sale
of the Shares exceed 10% of the gross proceeds of the Offering (not including
due diligence expenses of up to one-half percent of the gross proceeds of the
Offering).
Orders for Shares (each an "Order") must be made during the offering
period described in the Prospectus. An order form, in the form attached to the
Prospectus, (each an "Order Form") must be used in placing an Order for
investors residing in certain states and, for all other investors, Orders may be
placed through such procedures as are normally used by you for the sale of REIT
shares and agreed to by the Company. Persons desiring to purchase Shares are
required to comply with such procedures and, in certain states, to execute or
have executed on their behalf
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one copy of the Order Form. Subscribers purchasing shares by check must make
such checks payable to the Escrow Agent. By noon of the business day following
receipt of funds by you, either by check or by a sweep of customer accounts, you
will deliver via overnight delivery service a check payable to The United States
Trust Company of New York, Escrow Agent, or other acceptable form of payment,
for the full amount of each Order along with an Order Form for each such Order
and a list showing the name, address and telephone number of, the social
security number or taxpayer identification number of, the number of Shares
purchased and the total dollar amount of the investment by, each investor on
whose behalf a check or other payment is delivered. You will advise The United
States Trust Company of New York whether the funds you are submitting are
attributable to individual retirement accounts, Xxxxx plans, or any other
employee benefit plan subject to Title I of the Employee Retirement Income
Security Act of 1974 or from some other type of investor.
All Orders solicited by you will be strictly subject to review and
acceptance by the Company, and the Company reserves the right in its absolute
discretion to reject any such Order or to accept or reject Orders in the order
of their receipt by the Company or otherwise. You agree to maintain, for at
least six years, records of the information used by you to determine whether an
investment in Shares is suitable and appropriate for a potential investor in
Shares.
If the Company elects to reject an Order (such rejection to occur within
30 days after receipt by the Company of such Order), the Company shall, within
10 business days after such rejection, inform you of such rejection and return
the funds (and any interest earned thereon) and other documents submitted by the
rejected purchaser to you for transmission to such purchaser. If no notice of
rejection is received by you with the foregoing time limits or if funds
submitted by the purchaser are released from escrow to the Company within the
foregoing time limits, the Order shall be deemed accepted.
You agree that you will use your best efforts in offering the Shares and
will offer the Shares only in jurisdictions in which you are currently
registered as a securities dealer and only in accordance with the securities
laws of such jurisdictions.
You covenant and agree with respect to your participation in the Offering
to comply with any applicable requirements of the Securities Act of 1933 (the
"`33 Act") and of the Securities Exchange Act of 1934 (the "`34 Act"), and the
published rules and regulations of the Securities and Exchange Commission
thereunder, and the Rules of Fair Practice of the NASD including but not limited
to Rule 2730, Rule 2740 and IM 2740, Rule 2420 and IM 2420 and Rule 2750 and IM
2750.
We shall have full authority to take such action as we may deem advisable
in respect of all matters pertaining to the Offering. Neither you nor any other
person is authorized to give any information or make any representations other
than those contained in the Prospectus and sales literature furnished by the
Company in connection with the Offering, and you agree not to give any such
information or make any such representations. You acknowledge that we will rely
upon your agreements in this paragraph and in the preceding paragraph in
connection with the Sales Agency Agreement. No Selected Dealer is authorized to
act as agent for us when offering any of the Shares to the public or otherwise,
it being understood that you and each other Selected Dealer
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are independent contractors with us. Nothing herein contained shall constitute
you or the Selected Dealers an association, unincorporated business, partnership
or separate entity with each other or an association or partner with us. Nothing
contained in this paragraph is intended to operate as, and the provisions of
this paragraph shall not constitute, a waiver by you of compliance with any
provision of the '33 Act or of the rules and regulations thereunder.
The Company will provide you with such number of copies of the enclosed
Prospectus and such number of copies of amendments and supplements thereto, and
certain supplemental sales material prepared by the Company, as you may
reasonably request for use by you in connection with the offer and sales of the
Shares. In the event you elect to use any such supplemental sales material, you
agree that such material shall not be used in connection with the offer and sale
of the Shares unless accompanied or preceded by the Prospectus as then currently
in effect and as it may be amended or supplemented in the future, and you
expressly agree not to prepare or use any sales material other than the approved
sales material. To the extent that information is provided to you marked "For
Broker/Dealer Use Only," "Internal Use Only" or with other similar language, you
covenant and agree not to provide such information to prospective investors. You
agree that you will not use any other offering materials without the prior
written consent of the Company and us.
This Selected Dealer Agreement shall terminate at the close of business on
the 45th day after the completion of the sale of all of the Shares by the
Company, unless earlier terminated or unless the Sales Agency Agreement is
terminated, in which event this Selected Dealer Agreement will automatically
terminate. Either party may terminate this Selected Dealer Agreement at any time
by written notice, and we shall notify you promptly in the event of any early
termination of this Selected Dealer Agreement.
We will furnish to you a Blue Sky Memorandum naming the jurisdictions in
which we believe the Shares have been qualified for sale under, or are exempt
from the requirements of, the respective securities laws of such jurisdictions,
but we assume no responsibility or obligation as to your right to sell Shares in
any jurisdiction.
Your obligations under this Selected Dealer Agreement shall be subject to
the continued accuracy throughout the Effective Term of the representations,
warranties and agreements of the Company under the Sales Agency Agreement, the
Selected Dealer Agreement and the attached Addendum A and to the performance by
the Company of its obligations under such agreements and to the terms and
conditions set forth in Section 7 of the Sales Agency Agreement.
You confirm that you are familiar with '33 Act Release No. 4968 and Rule
15c2-8 under the '34 Act, relating to the distribution of preliminary and final
prospectuses, and confirm that you have complied, and will comply, therewith.
You shall not directly or indirectly pay or award any finder's fees, commissions
or other compensation to any persons engaged by an investor for investment
advice as an inducement to such adviser to advise a potential investor to
purchase Shares. In addition, you agree not to receive any rebates or give-ups
or to participate in any reciprocal business arrangements (other than for the
underwriting arrangements described herein) which would violate any restrictions
on the Company contained in the Prospectus.
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Addendum A attached hereto is hereby incorporated by reference.
All representations, warranties and agreements contained in this Selected
Dealer Agreement (including Addendum A), the Sales Agency Agreement or in
certificates submitted to you pursuant to this Selected Dealer Agreement or
Sales Agency Agreement shall remain operative and in full force and effect,
regardless of any investigation made by, or on behalf of, you or any person who
controls you, and shall survive the initial closing and termination of the
Offering.
Any communication from you should be in writing addressed to Xxxxx
Financial Corporation, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000. Any notice from
us to you shall be deemed to have been duly given if mailed or telegraphed to
you at the address to which this Selected Dealer Agreement is mailed.
Please confirm your agreement hereto by signing and returning at once to
us the enclosed duplicate of this Selected Dealer Agreement (including Addendum
A), including the information requested in Schedule A attached thereto. This
Selected Dealer Agreement shall be governed by and construed in accordance with
the laws of the State of New York applicable to agreements made and to be
performed entirely within such state.
Very truly yours,
XXXXX FINANCIAL CORPORATION,
Sales Agent
By:__________________________________
Its:_________________________________
CORPORATE PROPERTY ASSOCIATES
15 INCORPORATED, the Company
By:__________________________________
Its:_________________________________
ACCEPTED, as of _______________
AMERICAN EXPRESS FINANCIAL ADVISORS INC.
By:__________________________________
Its:_________________________________
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SCHEDULE A TO SELECTED DEALER AGREEMENT
SELECTED DEALER INFORMATION
[PLEASE PRINT OR TYPE ALL REQUESTED INFORMATION]
___________________________
SELECTED/DEALER
NAME:___________________________________________________________________________
SELECTED/DEALER
ADDRESS:________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
PHONE
NUMBER:_________________________________________________________________________
NAME OF PERSON SIGNING SELECTED DEALER AGREEMENT:_______________________________
________________________________________________________________________________
TITLE OF PERSON SIGNING SELECTED DEALER AGREEMENT:______________________________
________________________________________________________________________________
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