EXHIBIT 10.4
CORPORATE PROPERTY ASSOCIATES 16 - GLOBAL INCORPORATED
00 XXXXXXXXXXX XXXXX
XXX XXXX, XX 00000
AMENDED AND RESTATED SALES AGENCY AGREEMENT
______ ____, 2005
Xxxxx Financial LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Corporate Property Associates 16 - Global Incorporated, a Maryland
corporation (the "Company"), hereby confirms its agreement with you as follows:
1. Introduction. This Sales Agency Agreement (the "Agreement") sets forth
the understandings and agreements between the Company and you whereby you will
offer and sell on a best efforts basis for the account and risk of the Company,
along with a group of Selected Dealers (as defined in Section 3(c) below) to be
formed with your assistance, up to 55,000,000 shares of common stock of the
Company, par value $0.001 per share (the "Shares"), registered on Form S-11 at
$10 per share (subject to certain volume discounts) (the "Offering"). The Shares
are more fully described in the Registration Statement referred to below.
2. Representations and Warranties of the Company.
The Company represents, warrants and agrees that:
(a) Registration Statement and Prospectus. The Company has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-11 (File No. 333-119265), containing a related preliminary prospectus,
for the registration of the Shares under the Securities Act of 1933, as amended
(the "Securities Act") and the regulations thereunder (the "Regulations"), and
will prepare and file with the Commission any amendments to the registration
statement necessary for the registration statement to become effective,
including an amended preliminary prospectus. The registration statement, as
amended, and the amended prospectus on file with the Commission at the time the
registration statement became effective (including financial statements,
exhibits and all other documents related thereto filed as a part thereof or
incorporated therein), and any registration statement filed under Rule 462(b) of
the Securities Act, are herein called the "Registration Statement" and the
"Prospectus," respectively, except that if the Registration Statement is amended
by a post-effective amendment, the term "Registration Statement" shall, from and
after the declaration of effectiveness of such post-effective amendment, refer
to the Registration Statement as so amended and the term "Prospectus" shall
refer to the Prospectus as so amended, and if the Prospectus filed by the
Company pursuant to Rule 424(b) or 424(c) of the Regulations shall differ from
the Prospectus on file at the time the Registration Statement or any
post-effective amendment shall become effective, the term "Prospectus" shall
refer to the Prospectus filed pursuant to either of such Rules from and after
the date on which it shall have been filed with the Commission. Further, if a
separate prospectus is filed and becomes effective
with respect solely to the Distribution Reinvestment and Stock Purchase Plan
("DRIP")(a "DRIP Prospectus"), the term "Prospectus" shall refer to such DRIP
Prospectus from and after the declaration of effectiveness of such DRIP
Prospectus.
(b) Compliance with the Securities Act. The Registration Statement has
been prepared and filed by the Company and has been declared effective by the
Commission. Neither the Commission nor any state securities authority has issued
any order preventing or suspending the use of any Prospectus or preliminary
prospectus filed with the Registration Statement or any amendments thereto and
no proceeding for that purpose has been instituted, or to the Company's
knowledge, are threatened or contemplated by the Commission or by the states
securities authorities. At the time the Registration Statement became effective
(the "Effective Date") and at the time that any post-effective amendments
thereto or any additional registration statement filed under Rule 462(b) of the
Securities Act becomes effective, the Registration Statement or any amendment
thereto (1) complied, or will comply, as to form in all material respects with
the requirements of the Securities Act and the Regulations and (2) did not or
will not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein not misleading. When the
Prospectus or any amendment or supplement thereto is filed with the Commission
pursuant to Rule 424(b) or 424(c) of the Regulations and at all times subsequent
thereto through the date on which the Offering is terminated ("Termination
Date"), the Prospectus (as amended or as supplemented) will comply in all
material respects with the requirements of the Securities Act and the
Regulations, and will not include any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, and each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the Securities Act, complied when so filed
in all material respects with the Securities Act and the Regulations and did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(c) The Company. The Company has been duly incorporated and validly exists
as a corporation in good standing under the laws of the State of Maryland with
full power and authority to conduct the business in which it is engaged in as
described in the Prospectus. The Company is duly qualified to do business as a
foreign corporation and is in good standing in each other jurisdiction in which
it owns or leases property of a nature, or transacts business of a type that
would make such qualification necessary except where the failure to be so
qualified or in good standing could not have, individually or in the aggregate,
a material adverse effect on the financial condition, stockholders' equity,
results of operation or business of the Company taken as a whole (a "Material
Adverse Effect").
(d) The Shares. The Shares, when issued, will be duly and validly issued,
fully paid and non-assessable and will conform in all material respects to the
description thereof contained in the Prospectus; no holder thereof will be
subject to personal liability for the obligations of the Company solely by
reason of being such a holder; such Shares are not subject to the preemptive
rights of any shareholder of the Company; and all corporate action required to
be taken for the authorization, issue and sale of such Shares has been validly
and sufficiently taken.
(e) Violations. The Company is not in violation of its Articles of
Incorporation ("Articles") or Bylaws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties is bound.
(f) Taxes. The Company has filed all Federal, state and foreign income tax
returns which have been required to be filed on or before the due date (taking
into account all extensions of time to file),
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other than taxes which the Company is contesting in good faith, and has paid or
provided for the payment of all taxes indicated by said returns and all
assessments received by the Company to the extent that such taxes or assessment
have become due and are not being contested in good faith.
(g) Pending Action. Except as disclosed in the Registration Statement and
the Prospectus, there is no action, suit or proceeding pending or, to the best
of the knowledge, information and belief of the Company, threatened to which the
Company is a party, before or by any court or governmental agency or body which
would reasonably be expected to have a Material Adverse Effect.
(h) Financial Statements. The financial statements of the Company,
including the notes thereto, filed as part of the Registration Statement and
those included in the Prospectus present fairly in all material respects the
financial position of the Company as of the date indicated and the results of
its operations for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis and comply with the requirements of Regulation S-X
promulgated by the Commission; and PricewaterhouseCoopers LLP, whose report is
filed with the Commission as a part of the Registration Statement, are
independent accountants as required by the Securities Act and the Regulations.
(i) No Subsequent Material Events. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
may otherwise be stated in or contemplated by the Registration Statement and the
Prospectus, (a) there has not been any material adverse change in the condition
(financial or otherwise) of the Company or in the earnings, affairs or business
prospects of the Company, whether or not arising in the ordinary course of
business, and (b) there have not been any material transactions entered into by
the Company except in the ordinary course of business.
(j) Investment Company Act. The Company does not intend to conduct its
business so as to be an "investment company" as that term is defined in the
Investment Company Act of 1940, as amended and the rules and regulations
thereunder, and it will exercise reasonable diligence to ensure that it does not
become an "investment company" within the meaning of the Investment Company Act
of 1940.
(k) Authorization of Agreement. This Agreement and the Advisory Agreement
(the "Advisory Agreement") between the Company and Xxxxx Asset Management Corp.
(the "Advisor") have been duly and validly authorized, executed and delivered by
the Company and constitute the valid agreements of the Company enforceable in
accordance with their terms. The execution and delivery of this Agreement and
the Advisory Agreement, the consummation of the transactions herein and therein
contemplated and the compliance with the terms of this Agreement and the
Advisory Agreement by the Company will not conflict with or constitute a default
under (1) the Articles or bylaws of the Company or (2) any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which the Company is a
party, or (3) any law, order, rule or regulation, writ, injunction or decree of
any government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company, or any of its property, except in the case
of clauses (2) and (3), where such conflict, breach, violation or default would
not reasonably be expected to have individually or in the aggregate, a Material
Adverse Effect and except to the extent that the enforceability of the indemnity
and/or contribution provisions contained in Section 8 of this Agreement may be
limited under applicable securities law; and no consent, approval, authorization
or order of any court or other governmental agency or body has been or is
required for the performance of this Agreement or the Advisory Agreement by the
Company, or for the consummation of the transactions contemplated hereby and
thereby (except such as have been obtained under the Securities Act or as may be
required under state securities or "blue sky" laws in connection with the
distribution of the Shares).
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(l) Description of Agreements. The Company is not a party to or bound by
any contract or other instrument of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described and filed as required.
(m) Qualification as a Real Estate Investment Trust. The Company intends
to satisfy the requirements of the Internal Revenue Code of 1986 as amended (the
"Code") for qualification of the Company as a real estate investment trust.
Commencing with the taxable year ending December 31, 2004, the Company is
organized and operated in conformity with the requirements for qualification as
a real estate investment trust under Sections 856 through 860 of the Code and
its proposed method of operation as described in the Prospectus will enable it
to continue to meet the requirements for taxation as a real estate investment
trust under the Code.
(n) Xxxxx-Xxxxx-Xxxxxx Act and USA Patriot Act. The Company complies with
the applicable privacy provision of the Xxxxx-Xxxxx-Xxxxxx Act and the
applicable provisions of the USA Patriot Act, in all material respects.
3. Sales of Shares. On the basis of the representations, warranties and
covenants herein contained, but subject to the terms and conditions herein set
forth, the Company hereby appoints you as its sales agent ("Sales Agent") to
solicit purchasers, along with the Selected Dealers, for the Shares during the
period (the "Effective Term") from the Effective Date to the Termination Date,
including the Shares pursuant to the DRIP, each in the manner described in the
Registration Statement. Subject to the performance by the Company of all
obligations to be performed by it hereunder and the completeness and accuracy of
all of its representations and warranties, you agree to use your best efforts as
Sales Agent, promptly following written or telegraphic receipt of notice of the
Effective Date from the Company, to offer and sell such number of Shares as
contemplated by this Agreement at the price stated in the Prospectus.
(a) Purchase of Shares. The purchase of Shares must be made during the
offering period described in the Prospectus, or after such offering period in
the case of purchases made pursuant to the DRIP (each such purchase hereinafter
defined as an "Order"). Persons desiring to purchase Shares are required to (i)
deliver to you or the appropriate Selected Dealer a check in the amount of $10
per Share purchased (subject to certain volume discounts or other discounts as
described in the Prospectus, or such other per share price as may be applicable
pursuant to the DRIP) payable to Deutsche Bank Trust Company Americas, as escrow
agent (the "Escrow Agent"), or (ii) authorize a debit of such amount to the
account such purchaser maintains with you, the appropriate Selected Dealer. For
investors residing in certain states, an order form in the form attached to the
Prospectus (each an "Order Form") must be completed and submitted to the
Company. On a daily basis, you will submit all checks received from investors
and transfer, via Federal Reserve bank wire, the total amount debited from
investor accounts for the purchase of Shares along with a list including the
name, address and telephone number of, the social security number or taxpayer
identification number of, the brokerage account number of (if applicable), the
number of Shares purchased by, any election to participate in the DRIP by, and
the total dollar amount of investment by, each investor on whose behalf checks
are submitted or the wire transfer is made. You also will forward all Order
Forms to the Company. You shall use your best efforts to wire such funds or
transmit checks to the Escrow Agent not later than noon of the next business day
after receipt by you from your customer of each Order. You will advise the
Escrow Agent 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 Order or to accept or reject Orders
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in the order of their receipt by the Company or otherwise. Within 30 days of
receipt of an Order, the Company must accept or reject such Order. If the
Company elects to reject such Order, within 10 business days after such
rejection, it will notify the purchaser of such fact and cause the return of
such purchaser's funds submitted with such application and any interest earned
thereon. If you receive no notice of rejection within 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
to make every reasonable effort to determine that the purchase of Shares is a
suitable and appropriate investment for each potential purchaser of Shares based
on information provided by such purchaser regarding such purchaser's financial
situation and investment objectives. You agree to maintain copies of the Orders
received from investors.
(b) Closing Dates and Delivery of Shares. In no event shall a sale of
Shares to an investor be completed until at least five business days after the
date the investor receives a copy of the Prospectus. On the date Shares are
first issued to Shareholders (such date being herein referred to as the "Initial
Closing Date"), the Escrow Agent will at such time and place as instructed by
you and the Company (which instruction shall be subject to the satisfaction on
such date of the conditions contained herein), deliver to the Company or its
designee immediately available funds in an amount equal to the Escrow Funds on
deposit in the Escrow Account prior to the date designated by the Company. If,
after the Initial Closing Date, additional sales of Shares are made, on each
such date (each such date being referred to as an "Additional Closing Date") and
at each such time and place as instructed by you and the Company (which
instruction shall be subject to the satisfaction on each such date of the
conditions contained herein), the Escrow Agent shall be required to deliver to
the Company or its designee immediately available funds in an amount equal to
the Escrow Funds on deposit in the Escrow Account prior to the date specified by
the Company. The Initial Closing Date and each Additional Closing Date are each
herein referred to as a "Closing Date. " Closing dates for purchases made
pursuant to the DRIP will be as set forth in the DRIP.
(c) Selected Dealers. The Shares offered and sold under this Agreement,
other than sales made by the Company directly to its officers and directors,
shall be offered and sold only by you as Sales Agent and by a selling group of
brokers or dealers (the "Selected Dealers"), all of whom must be members in good
standing of the National Association of Securities Dealers, Inc. (the "NASD"),
who execute Selected Dealer Agreements with you substantially in the form
attached hereto as Exhibit A, all of whom are acceptable to the Company and you
(which acceptance shall not be unreasonably withheld by you). You will assist
the Company in forming the selling group of Selected Dealers. No firm shall be
invited to join the selling group of Selected Dealers if it is (i) currently
subject to any suspension or expulsion pursuant to the rules and regulations of
the Commission, the state securities commissions of any of the fifty states, the
New York Stock Exchange, Inc. or the American Stock Exchange, Inc. as those
rules and regulations relate to broker-dealers, or the rules and regulations of
the NASD or (ii) a "discount broker" as that term is commonly understood in the
brokerage industry. The Company and the Advisor or an affiliate thereof agree to
participate in your marketing efforts to the extent that you may reasonably
request and, without limiting the generality of the foregoing, agree to visit
the offices of Selected Dealers as you may reasonably designate.
(d) Compensation. In consideration for your execution of this Agreement,
and for the performance of your obligations hereunder, the Company agrees to pay
or cause to be paid to you a selling commission (the "Selling Commission") of
six and one-half percent ($0.65) of the price of each Share (except for Shares
sold pursuant to the DRIP) sold by you or by a Selected Dealer; provided,
however, that your Selling Commission shall be reduced with respect to volume
sales of Shares to single purchasers (as defined in the Prospectus). In the case
of such volume sales to single purchasers, on orders of $250,000 or more your
Selling Commission 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
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reduced for each incremental share purchase in the total volume ranges set forth
in the table below. Such reduced share 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 SHARE FOR SELLING COMMISSION PER SHARE ON
VOLUME DISCOUNT RANGE FOR A SINGLE INCREMENTAL SHARE IN VOLUME DISCOUNT TOTAL SALE FOR INCREMENTAL SHARE IN
PURCHASER RANGE VOLUME DISCOUNT RANGE
$ 2000 - $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/her or its investment of $500,000 and the Selling
Commission would be $28,940. On the first $250,000 of the investment there would
be no discount and the purchaser would receive 25,000 Shares at $10 per share.
On the remaining $250,000, the per share price would be $9.85 and the purchaser
would receive 25,380 Shares.
A refund will be made to the purchaser for any fractional Shares based on
the public offering price if such refund is in excess of $1.00. In the foregoing
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 $9.35 per Share.
Selling Commissions paid will in all cases be the same for the same level of
sales.
Notwithstanding the foregoing, Selling Commissions for all purchases made
by an investor pursuant to the DRIP shall be five percent of the purchase price
of each Share purchased pursuant to the DRIP.
The Company will pay to you for reallowance to Selected Dealers only, the
amount of any due diligence expense reimbursement paid to the Selected Dealers
which you have agreed to pay in the amount of up to one-half percent of the
price of each Share sold by each Selected Dealer to which you have agreed to pay
such a fee.
From your total commissions, you agree to reallow to each Selected Dealer
with whom you have entered into a Selected Dealer Agreement an amount of up to
$0.65 commission per Share (except in the case of Shares purchased under the
DRIP in which case the commission reallowance will be an amount up to $0.50 per
Share) for Shares sold by the Company pursuant to Orders solicited by such
Selected Dealer and up to the full amount of any Selected Dealer Fee (as defined
in the Selected Dealer Agreement) paid to you by the Company on behalf of any
Selected Dealer. The Company will also reimburse you for the amount of the
Selected Dealer Fee paid to Selected Dealers, if any, which fee will be up to
two percent of the price of each Share sold by the Selected Dealer.
Additionally, the Company may pay to you the Selected Dealer Fee of up to two
percent for Shares sold directly by you. No payment of commissions will be made
by the Company with respect to Orders (or portions thereof), which are rejected
by the Company. In addition, we will not pay you a Selected Dealer Fee if 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 (including such
Selected Dealer Fee) exceed the limitations prescribed by
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the NASD. Selling Commissions will be paid on any Closing Date with respect to
the Shares sold to purchasers whose Shares are issued on such Closing Date. The
Company will not pay a Selected Dealer Fee for Shares sold through the DRIP.
The Company represents that neither it nor any of its affiliates have
offered or sold any Shares pursuant to this Offering, other than directly to the
Company's officers and directors, and agrees that, through the date on which the
Offering is terminated (the "Termination Date"), the Company will not offer or
sell any Shares otherwise than through you as herein provided, except to its
officers and directors.
(e) Finders Fee. Neither the Company nor any Selected Dealer participating
in the Offering shall, directly or indirectly, pay or award any finder's fees,
commissions or other compensation to any person engaged by a potential investor
for investment advice as an inducement to such advisor to advise the purchase of
Shares; provided, however, that normal Selling Commissions payable to a
registered broker-dealer or other properly licensed person for selling Shares
shall not be prohibited hereby.
(f) Wholesaling Activities. You hereby agree to provide the following
additional services for the Company:
(i) reviewing sales literature prepared by the Company to be used in
the offer and sale of the Shares for compliance with the Securities Act and the
Regulations thereunder, the Conduct Rules of the National Association of
Securities Dealers, Inc. and the "blue sky" laws of any jurisdiction in which
such material is used ("Blue Sky Law"). The sales literature may include, but
not be limited to, a slide presentation, a property acquisition report, a
brochure and seminar invitations for presentation and distribution to the public
and an audio program, a video program and a brochure for presentation and
distribution to broker-dealers;
(ii) assisting broker-dealers participating in the Offering by
coordinating broker-dealer seminars, informational meetings, preparing and
distributing brochures and other sales literature designed for broker-dealers
and providing information and answering any questions with regard to the
Offering; and
(iii) assisting the Company in enlisting broker-dealers to
participate in the Offering as selected dealers.
The Company agrees to reimburse you for your identified expenses incurred
in connection with the activities described in this Section 3(f), including
travel and entertainment expenses, compensation of your employees in connection
with wholesaling activities, expenses incurred in coordinating broker-dealer
seminars and meetings, and wholesaling expense reimbursements paid by you or
your affiliates to other entities.
4. Covenants. The Company covenants to you and each Selected Dealer that
it will:
(a) Commission Orders. Use its best efforts to cause the Registration
Statement and any subsequent amendments thereto, to become effective as promptly
as possible, and will promptly notify you and confirm the notice in writing if
requested, (i) when the Registration Statement and any post-effective amendment
thereto become effective, (ii) of the issuance by the Commission or any state
securities authority of any jurisdiction of any stop order or of the initiation,
or the threatening, of any proceedings for that purpose or of the suspension of
the qualification of the Shares for offering or sale in any jurisdiction or of
the institution or threatening of any proceedings for any of such purposes,
(iii) of the receipt of any comments from the Commission with respect to the
Registration Statement, and (iv) of any request by the Commission for any
amendment to the Registration Statement as filed or any
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amendment or supplement to the Prospectus or for additional information relating
thereto. The Company will make every reasonable effort to prevent the issuance
by the Commission of a stop order or a suspension order and if the Commission
shall enter a stop order or suspension order at any time, the Company will make
every reasonable effort to obtain the lifting of such order at the earliest
possible moment.
(b) Registration Statement. Deliver to you and Selected Dealers without
charge such number of copies of each preliminary prospectus filed with the
Registration Statement and each amendment thereto, and as soon as the
Registration Statement or any amendment or supplement thereto become effective,
such number of copies of the Prospectus (as amended or supplemented), the
Registration Statement and supplements and amendments thereto, if any (without
exhibits), as you may reasonably request. The Company hereby consents to the use
of the Prospectus or any amendment or supplement thereto by you and Selected
Dealers both in connection with the Offering and for such period of time
thereafter as the Prospectus is required to be delivered in connection
therewith.
(c) "Blue Sky" Qualifications. Endeavor in good faith, in cooperation with
you, Selected Dealers and counsel to Selected Dealers, at or prior to the time
the Registration Statement becomes effective, to seek the approval of the
Offering by the NASD, and to qualify the Shares for offering and sale under the
securities laws of all 50 states and the District of Columbia, except in those
jurisdictions you may reasonably designate (the "Designated Jurisdictions"),
provided, however, the Company shall not be obligated to subject itself to
taxation as a party doing business in any such jurisdiction. In each
jurisdiction where such qualification shall be effected, the Company will,
unless you agree that such action is not at the time necessary or advisable,
file and make such statements or reports as are or may reasonably be required by
the laws of such jurisdiction.
(d) Amendments and Supplements. If during the time when a Prospectus is
required to be delivered under the Securities Act, any event relating to the
Company shall occur as a result of which it is necessary, in the opinion of the
Company's counsel, to amend or supplement the Prospectus in order to make the
Prospectus not misleading in light of the circumstances existing at the time it
is delivered to an investor, the Company will forthwith prepare and furnish
without expense to you and the Selected Dealers, a reasonable number of copies
of an amendment or amendments of, or a supplement or supplements to, the
Prospectus which will amend or supplement the Prospectus so that as amended or
supplemented it will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. During the time when a Prospectus is required to be
delivered under the Securities Act, the Company shall comply in all material
respects with all requirements imposed upon it by the Securities Act, as from
time to time in force, so far as necessary to permit the continuance of sales of
the Shares in accordance with the provisions hereof and the Prospectus.
(e) Copies of Reports. During the period the Shares remain outstanding,
you will be furnished with the following:
(i) as soon as practicable after they have been sent by the Company
to the Shareholders or to any class of security holders of the Company or filed
with the Commission, two copies of each annual and interim financial and each
other report, application or document;
(ii) as soon as practicable, two copies of every press release
issued by the Company and every material news item and article in respect of the
Company or its affairs released by the Company; and
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(iii) additional documents and information with respect to the
Company and its affairs as you may from time to time reasonably request.
(f) Sales Material. Will deliver to you from time to time, all advertising
and supplemental sales material (whether designated solely for broker-dealer use
or otherwise) proposed to be used or delivered in connection with the Offering,
prior to the use or delivery to third parties of such material, and will not so
use or deliver, in connection with the Offering, any such material to which you
or your counsel shall reasonably object or disapprove within seven days of
delivery of such material to you or which shall be reasonably disapproved by
your counsel within such seven-day period.
(g) Use of Proceeds. Apply the proceeds from the sale of Shares as set
forth in the section of the Prospectus entitled "Estimated Use of Proceeds" and
operate the business of the Company in accordance with the descriptions of its
business set forth in the Prospectus.
(h) Prospectus Delivery. In case you or any Selected Dealer is required to
deliver a Prospectus in connection with sales of any of the Shares at any time
nine months or more after the Effective Date, upon your or such Selected
Dealer's request, the Company will, at its expense, prepare and deliver to you
or such Selected Dealer as many copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Securities Act.
(i) Financial Statements. Make generally available to its security holders
as soon as practicable, but not later than 60 days after the close of the period
covered thereby, an earnings statement of the Company (in form complying with
the provisions of Rule 158 under the Securities Act) covering a period of 12
months beginning after the Effective Date but not later than the first day of
the Company's fiscal quarter next following the Effective Date.
(j) Compliance with Exchange Act. Comply with the requirements of the
Securities Exchange Act of 1934 ("Exchange Act") relating to the Company's
obligation to file periodic reports including annual reports on Form 10-K,
quarterly reports on Form 10-Q and current reports on Form 8-K.
5. Covenants of the Sales Agent. You covenant and agree with the Company
as follows;
(a) Compliance with Laws. In connection with the offer and sale of Shares,
you shall comply with any applicable requirements of the Securities Act, the
Exchange Act and the applicable state securities or "blue sky" laws, and the
rules and regulations thereunder.
(b) Accuracy of Information. No information supplied by you for use in the
Registration Statement will contain any untrue statements of a material fact or
omit to state any material fact necessary to make such information not
misleading.
(c) No Additional Information. You will not give any information or make
any representation in connection with the offering of the Shares other than that
contained in the Prospectus.
(d) Sale of Shares. You shall act as Sales Agent and solicit, directly or
through Selected Dealers, purchasers of the Shares only in the jurisdictions in
which you have been advised by the Company that such solicitations can be made
and in which you or the soliciting Selected Dealer, as the case may be, are
qualified to so act.
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6. Payment of Expenses.
(a) Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or if this Agreement is terminated, the Company will
pay, in addition to the compensation described in Section 3(d) (which you may
retain up to the point of termination unless this agreement is terminated
without any Shares being sold, in which case no such compensation shall be
paid), all fees and expenses incurred in connection with the formation,
qualification and registration of the Company and in marketing, distributing and
processing the Shares under applicable Federal and state law, and any other fees
and expenses actually incurred and directly related to the offering and sale of
the Shares and your other obligations under this Agreement, including such fees
and expenses as: (i) the preparing, printing, filing and delivering of the
Registration Statement (as originally filed and all amendments thereto) and of
any preliminary prospectus and of the Prospectus and any amendments thereof or
supplements thereto and the preparing and printing of the Selected Dealer
Agreements, this Agreement and Order Forms, including the cost of all copies
thereof and any financial statements or exhibits relating to the foregoing
supplied to you or the Selected Dealers in quantities reasonably requested by
you; (ii) the preparing and printing of the solicitation material and related
documents and the filing and/or recording of such certified certificates or
other documents necessary to comply with the laws of the State of Maryland for
the formation of a corporation and thereafter for the continued good standing of
a Company; (iii) the issuance and delivery of the Shares, including any transfer
or other taxes payable thereon; (iv) any escrow arrangements in connection with
the transactions described herein, including any compensation or reimbursement
to an escrow agent for its services as such; (v) the qualification or
registration of the Shares under state securities or "blue sky" laws; (vi) the
filing fees payable to the Commission and to the NASD; (vii) the preparation and
printing of advertising material in connection with and relating to the
Offering, including the cost of all sales literature and investor and
broker-dealer sales and information meetings; (viii) the cost and expenses of
counsel and accountants of the Company; and (ix) any other expenses of issuance
and distribution of the Shares. The Company shall also reimburse directly all
other entities for the expenses of the type described in clauses (i) through
(ix) of the preceding sentence incurred directly by those entities at your
request.
(b) Sales Incentive Programs. Subject to the satisfactory completion of
any regulatory reviews and examinations which may be required, the prior review
and approval and the rules of the NASD (including Rule 2710 (c)(6)(B)(xiii)) and
approval by the Company or the Advisor, the Company, the Advisor and Affiliates
of the Advisor may establish sales incentive programs for your associated
persons or the associated persons of Selected Dealers only. Sales incentives
will be deemed to be additional compensation. The aggregate value of incentives
paid directly to an individual associated person during the Offering will not
exceed $100 in any given year.
(c) Limitation. Notwithstanding the foregoing, the total compensation paid
to the Sales Agent and Selected Dealers from any source in connection with the
Offering pursuant to Section 3(d) hereof and this Section 6 shall not exceed the
limitations prescribed by the NASD. The Company and you agree to monitor the
payment of all fees and expense reimbursements to assure that the NASD
limitations are not exceeded.
7. Conditions of Your Obligations. Your obligations hereunder shall be
subject to the continued accuracy throughout the Effective Term of the
representations, warranties and agreements of the Company, to the performance by
the Company of its obligations hereunder and to the following terms and
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement
shall have initially become effective not later than 5:30 P.M., Eastern time, on
the date of this Agreement or such later date and time as shall be consented to
in writing by you and, at any time during the term of this Agreement, no
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stop order shall have been issued or proceedings therefor initiated or
threatened by the Commission; and all requests for additional information on the
part of the Commission and state securities administrators shall have been
complied with to the reasonable satisfaction of your counsel and no stop order
or similar order shall have been issued or proceedings therefor initiated or
threatened by any state securities authority in any jurisdiction in which the
Company intends to offer Shares (except in the Designated Jurisdictions).
(b) Accountant's Letter. On the Effective Date you shall have received
from PricewaterhouseCoopers LLP a letter, in form and substance reasonably
satisfactory to you in all material respects.
(c) Stop Orders. On the Effective Date and during the Effective Term no
order suspending the sale of the Shares in any jurisdiction (except the
Designated Jurisdictions) nor any stop order issued by the Commission shall have
been issued, and on the Effective Date and during the Effective Term no
proceedings relating to any such suspension or stop orders shall have been
instituted, or to the knowledge of the Company, shall be contemplated.
(d) Information Concerning the Advisor. On the Effective Date, you shall
receive a letter dated the Effective Date from the Advisor, confirming that: (1)
the Advisory Agreement has been duly and validly authorized, executed and
delivered by the Advisor and constitutes a valid agreement of the Advisor
enforceable in accordance with its terms; (2) the execution and delivery of the
Advisory Agreement, the consummation of the transactions therein contemplated
and compliance with the terms of the Advisory Agreement by the Advisor will not
conflict with or constitute a default under its articles of incorporation or
bylaws or any indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Advisor is a party, or any law, order, rule or
regulation, writ, injunction or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Advisor, or any of its property; (3) no consent, approval, authorization or
order of any court or other governmental agency or body has been or is required
for the performance of the Advisory Agreement by the Advisor, or for the
consummation of the transactions contemplated thereby; and (4) the Advisor is a
corporation duly formed, validly existing and in good standing under the laws of
the State of Delaware and is duly qualified to do business as a foreign
corporation in each other jurisdiction in which the nature of its business would
make such qualification necessary.
If any of the conditions specified in this Section 7 shall not have been
fulfilled when and as required by this Agreement, this Agreement and all your
obligations hereunder may be canceled by you by notifying the Company of such
cancellation in writing or by telecopy at any time, and any such cancellation or
termination shall be without liability of any party to any other party except as
otherwise provided in Sections 3(d), 6, 8, 9 and 10 hereof.
All certificates, letters and other documents referred to in this Section
7 will be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel. The Company will
furnish you with conformed copies of such certificates, letters and other
documents, as you shall reasonably request.
8. Indemnification.
(a) Indemnification by the Company. Subject to the conditions set forth
below and those included in the Articles and Bylaws, the Company agrees to
indemnify and hold harmless you, each Selected Dealer and each person, if any,
who controls you or any such Selected Dealer within the
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meaning of Section 15 of the Securities Act, from and against any and all loss,
liability, claim, damage and expense whatsoever (including but not limited to
any and all expenses whatsoever reasonably incurred in investigating, preparing
for, defending against or settling any litigation, commenced or threatened, or
any claim whatsoever) arising out of or based upon: (1) any untrue or alleged
untrue statement of a material fact contained (i) in the Registration Statement
at the time it became effective or in the Prospectus (as from time to time
amended or supplemented) or any related preliminary prospectus; or (ii) in any
application or other document (in this Section 8 collectively called
"application") executed by the Company or based upon information furnished by
the Company and filed in any jurisdiction in order to qualify the Shares under
the securities laws thereof; or (2) the omission or alleged omission from the
Registration Statement at the time it became effective or from the Prospectus of
a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made not
misleading; provided however that the Company shall not be liable in any such
case to the extent any such statement or omission was made in reliance upon and
in conformity with written information furnished to the Company by you expressly
for use in the Registration Statement or related preliminary prospectus or
Prospectus or any amendment or supplement thereof or in any of such applications
or in any such sales as the case may be. Notwithstanding the foregoing, the
Company shall not indemnify the Sales Agent for any losses, liabilities or
expenses arising from or out of an alleged violation of federal or state
securities laws unless: there has been a successful adjudication on the merits
of each count involving alleged securities law violations as to the particular
indemnitee, (ii) such claims have been dismissed with prejudice on the merits by
a court of competent jurisdiction as to the particular indemnitee or (iii) a
court of competent jurisdiction approves a settlement of the claims against a
particular indemnitee and finds that indemnification of the settlement and the
related costs should be made, and the court considering the request for
indemnification has been advised of the position of the Commission and of the
published position of any state securities regulatory authority in which
securities of the Company were offered or sold as to indemnification for
violations of securities laws.
(b) Indemnification by You. Subject to the conditions set forth below, you
agree to indemnify and hold harmless the Company, each of its directors, those
of its officers who have signed the Registration Statement and each other
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act to the same extent as the foregoing indemnity from the Company
but only with respect to an untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in the
Registration Statement (as from time to time amended or supplemented) or
Prospectus, or any related preliminary prospectus, or any application made in
reliance upon or, in conformity with, written information furnished by you
expressly for use in such Registration Statement or Prospectus or any amendment
or supplement thereto, or in any related preliminary prospectus or in any of
such applications.
(c) Procedure for Making Claims. Each indemnified party shall give prompt
notice to each indemnifying party of any claim or action (including any
governmental investigation) commenced against it in respect of which indemnity
may be sought hereunder, but failure to so notify any indemnifying party shall
not relieve it from any liability that it may have otherwise than on account of
this indemnity agreement. The indemnifying party, jointly with any other
indemnifying parties receiving such notice, shall assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to them
which are different from or in addition to those available to such indemnifying
party. Any indemnified party shall have the right to employ a separate counsel
in any such action and to participate in the defense thereof but the reasonable
fees and expenses of such counsel shall be borne by such party unless such party
has objected in accordance with the preceding sentence, in which event such fees
and expenses shall be borne by the indemnifying parties. Except as set forth in
the preceding sentence, if an indemnifying party assumes the defense of such
action, the indemnifying party shall not be liable for any fees and expenses of
separate counsel for the
2
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indemnified parties incurred thereafter in connection with such action. In no
event shall the indemnifying parties be liable for the reasonable fees and
expenses of more than one counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
The indemnity agreements contained in this Section 8 and the warranties
and representations contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
party and shall survive any termination of this Agreement. An indemnifying party
shall not be liable to an indemnified party on account of any settlement of any
claim or action effected without the consent of such indemnifying party. The
Company agrees promptly to notify you of the commencement of any litigation or
proceedings against the Company in connection with the issue and sale of the
Shares or in connection with the Registration Statement or Prospectus.
(d) Contribution. Subject to the limitations set forth in Section 8(a)
hereof and in order to provide for just and equitable contribution where the
indemnification provided for in this Section 8 is unavailable to or insufficient
to hold harmless an indemnified party under subsection (a) or (b) above in
respect of any losses, liabilities, claims, damages or expenses (or actions in
respect thereof) referred to therein, except by reason of the terms thereof, the
Company on the one hand and you on the other shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, liabilities,
claims, damages or expenses (or actions in respect thereof) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and you on the other from the Offering based on the public offering
price of the Shares sold and the Selling Commissions received by you with
respect to such Shares sold. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits referred
to above but also the relative fault of the Company on the one hand and you on
the other in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and you on the other shall be
deemed to be in the same proportion as the total proceeds from the Offering (net
of commissions but before deducting expenses) received by the Company bear to
the total commissions received by you. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Company on the one hand or you on the other. The
Company agrees with you that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation, or by
any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, liabilities, claims,
damages or expenses (or action in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
you shall not be required to contribute any amount in excess of the amount by
which the total price of the Shares sold by you to the public exceeds the amount
of any damages which you have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act or Section 10(b) of the Securities Exchange Act of 1934, as
amended) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, any person that
controls you within the meaning of Section 15 of the Securities Act shall have
the same right to contribution as you, and each person who controls the Company
within the meaning of Section 15 of the Securities Act shall have the same right
to contribution as the Company.
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9. Representations and Agreements to Survive. All representations,
warranties and agreements contained in this Agreement or in certificates shall
remain operative and in full force and effect regardless of any investigation
made by any party, and shall survive the Termination Date.
10. Effective Date, Term and Termination of this Agreement.
(a) This Agreement shall become effective as of the date it is executed by
all parties hereto. You or the Company may elect to terminate this Agreement
prior to the time the Registration Statement is declared effective by the
Commission without liability of any party to any other party, except as provided
in Section 10(e) hereof.
(b) You shall have the right to terminate this Agreement at any time
during the Effective Term without liability of any party to any other party
except as provided in Section 10(e) hereof if: (i) any representations or
warranties hereunder shall be found to have been incorrect; or (ii) the Company
shall fail, refuse or be unable to perform any condition of its obligations
hereunder, or (iii) the Prospectus shall have been amended or supplemented
despite your objection to such amendment or supplement as provided in subsection
(a) of Section 2 hereof, or (iv) all trading on the New York Stock Exchange or
the American Stock Exchange shall have been suspended, or minimum or maximum
prices for trading generally shall have been fixed, or maximum ranges for prices
for all securities shall have been required, on the New York Stock Exchange or
the American Stock Exchange by such exchanges or by order of the Commission or
any other governmental authority having jurisdiction; or (v) the United States
shall have become involved in a war or major hostilities or a material
escalation of hostilities or acts of terrorism involving the United States or
other national or international calamity or crisis (other than hostilities
including Iraq and Afghanistan); or (vi) a banking moratorium shall have been
declared by a state or federal authority or person; or (vii) the Company shall
have sustained a material or substantial loss by fire, flood, accident,
hurricane, earthquake, theft, sabotage or other calamity or malicious act which,
whether or not said loss shall have been insured, will in your good faith
opinion make it inadvisable to proceed with the offering and sale of the Shares;
or (viii) there shall have been, subsequent to the dates information is given in
the Registration Statement and the Prospectus, such change in the business,
properties, affairs, condition (financial or otherwise) or prospects of the
Company whether or not in the ordinary course of business or in the condition of
securities markets generally as in your good faith judgment would make it
inadvisable to proceed with the offering and sale of the Shares, or which would
materially adversely affect the operations of the Company.
(c) If this Agreement shall be terminated for reason of any failure on the
part of the Company to perform any undertaking or satisfy any condition of this
Agreement to be performed or satisfied by them pursuant to Section 7 hereof, you
may elect to terminate this Agreement without liability of any party to any
other party except as provided in Section 10(e) hereof.
(d) The Company shall have the right to terminate this Agreement without
cause on 60 days' notice in writing to you without penalty, subject to liability
as provided in Section 10(e) hereof.
(e) In the event this Agreement is terminated by any party pursuant to
Sections 10(a), 10(b), 10(c) or 10(d) hereof, the Company shall pay all expenses
of the Offering as required by Section 6 hereof and no party will have any
additional liability to any other party except for any liability which may exist
under Section 8 hereof; and provided further, that if you terminate your
participation in the Offering in other than good faith, the Company shall not be
responsible for the expenses described in clause (vii) of subsection (a) of
Section 6 hereof other than expenses of counsel to the Selected Dealers. In no
event will the Company be liable to reimburse you for expenses other than your
actual and reasonable out-of-pocket expenses.
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(f) If you elect to terminate this Agreement as provided in this Section
10, you shall notify the Company promptly by telephone or telegram with
confirmation by letter. If the Company elects to terminate this Agreement as
provided in this Section 10, the Company shall notify you promptly by telephone
or telegram with confirmation by letter.
11. Notices.
(a) All communications hereunder, except as herein otherwise specifically
provided, shall be in writing and if sent to you shall be mailed, or personally
delivered, to you at 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and if sent
to the Company shall be mailed, or personally delivered, to the Company at 00
Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Mr. Wm. Xxxx Xxxxx and
Xx. Xxxxxx XxXxx.
(b) Notice shall be deemed to be given by you to the Company or by the
Company to you when it is mailed or personally delivered as provided in
subsection (a) of this Section 11.
12. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon you, the Company, and the controlling persons, directors
and officers referred to in Section 8 hereof, and their respective successors,
legal representatives and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained,
except that the Selected Dealers shall have the rights granted to them pursuant
to Section 8 hereof. Notwithstanding the foregoing, this Agreement may not be
assigned without the consent of the parties hereto.
13. Construction. This Agreement shall be construed in accordance with the
laws of the State of New York applicable to agreements to be made and performed
entirely within such state.
14. Finders' Fees. You shall have no liability for any finders' fees owed
in connection with the transactions contemplated by this Agreement.
15. Severability. Any provision of this Agreement, which is invalid or
unenforceable in any jurisdiction, shall be ineffective to the extent of such
invalidity or unenforceability without invalidating or rendering unenforceable
the remaining provisions hereof, and any such invalidity or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provisions in
any other jurisdiction.
16. Additional Offerings. The terms of this Agreement may be extended to
cover additional offerings of shares of the Company by the execution by the
parties hereto of an addendum identifying the shares and registration statement
relating to such additional offering. Upon execution of such addendum, the terms
"Shares", "Offering", "Registration Statement" and "Prospectus" set forth herein
shall be deemed to be amended as set forth in such addendum.
15
If the foregoing correctly sets forth the understanding between you and
the Company, please so indicate in the space provided on the attached page for
that purpose, whereupon this letter shall constitute a binding agreement between
us.
CORPORATE PROPERTY ASSOCIATES 16 -
GLOBAL INCORPORATED
By:____________________________________
Its:___________________________________
Accepted as of the Date first
above Written:
XXXXX FINANCIAL LLC
By:___________________________________
Its:__________________________________
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EXHIBIT INDEX
Exhibit A - Selected Dealer Agreement
