EXHIBIT 10.20
CORPORATE PROPERTY ASSOCIATES 16 - GLOBAL INCORPORATED
00 XXXXXXXXXXX XXXXX
XXX XXXX, XX 00000
SELECTED DEALER AGREEMENT
______ ____, 2006
Ameriprise Financial Services, Inc.
000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Ladies and Gentlemen:
Corporate Property Associates 16 - Global Incorporated, a Maryland
corporation (the "Company"), hereby confirms its agreement with Ameriprise
Financial Services, Inc. ("Ameriprise") as follows:
1. Introduction. This Selected Dealer Agreement (the "Agreement") sets
forth the understandings and agreements between the Company and Ameriprise
whereby Ameriprise will offer and sell on a best efforts basis for the account
and risk of the Company up to 95,000,000 shares of common stock (the "Common
Stock"), par value $0.001 per share (each a "Share," and collectively, the
"Shares"), of the Company registered on Form S-11 at $10 per share (subject to
certain volume discounts) (the "Offering"), of which 40,000,000 shares are being
offered pursuant to the Company's 2003 Distribution Reinvestment and Stock
Purchase Plan (the "DRIP"). The Shares are more fully described in the
Registration Statement referred to below.
Ameriprise is hereby invited to act as a Selected Dealer for the Offering,
subject to the other terms and conditions set forth below. Upon execution of
this Agreement, Ameriprise agrees to be bound by the terms and conditions of the
Sales Agency Agreement between Xxxxx Financial LLC, as Sales Agent (the "Sales
Agent") and the Company (the "Sales Agency Agreement") (to the extent such terms
apply to Ameriprise and do not conflict with the terms of this Agreement), a
copy of which is attached hereto as Exhibit A and of which this Selected Dealer
Agreement is a part.
2. Representations and Warranties of the Company, the Sales Agent, Xxxxx
Asset Management Corp. (the "Advisor") and W.P. Xxxxx & Co. LLC.
The Company, the Sales Agent, the Advisor and W.P. Xxxxx & Co. LLC, as
applicable, jointly and severally represent, warrant and covenant with
Ameriprise for Ameriprise's benefit that, as of the date hereof and at all times
during the term of this Agreement:
(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 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 proceedings for that purpose have 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. The Prospectus delivered to Ameriprise was identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(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 as
described in the Prospectus, including without limitation to acquire properties
as more fully described in the Prospectus, including land and buildings, as well
as properties upon which properties are to be constructed for the Company or to
be owned by the Company (the "Properties") or make loans, or other permitted
investments as referred to 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, business affairs or business
prospects of the Company and its subsidiaries taken as a whole (a "Material
Adverse Effect").
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(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. All shares of the Company's issued and outstanding
capital stock have been duly authorized and validly issued and are fully paid
and non-assessable; none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of any
stockholder of the Company.
(e) Capitalization. The authorized capital stock of the Company conforms
in all material respects to the description thereof contained in the Prospectus
under the caption "Description of Shares." Except as disclosed in the
Prospectus: no shares of Common Stock are to be reserved for any purpose; there
are no outstanding securities convertible into or exchangeable for any shares of
Common Stock; and there are no outstanding options, rights (preemptive or
otherwise) or warrants to purchase or subscribe for shares of Common Stock or
any other securities of the Company.
(f) Violations. None of the Company, any of its subsidiaries, the Sales
Agent, the Advisor or W.P. Xxxxx & Co. LLC is (i) in violation of its charter or
bylaws, its partnership agreement, declaration of trust or trust agreement, or
limited liability company agreement (or other similar agreement), as the case
may be; (ii) in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company, any of its subsidiaries, the Sales Agent, the
Advisor or W.P. Xxxxx & Co. LLC is a party or by which any of them may be bound
or to which any of the respective properties or assets of the Company, any of
its subsidiaries, the Sales Agent, the Advisor or W.P. Xxxxx & Co. LLC is
subject (collectively, "Agreements and Instruments"); or (iii) 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 (ii) and (iii),
where such conflict, breach, violation or default would not reasonably be
expected to have individually or in the aggregate, a Material Adverse Effect;
and the execution, delivery and performance by the Company and the Advisor of
this Agreement, the Sales Agency Agreement, the Selected Dealer Agreements
between the Company, the Sales Agent and, with the exception of Ameriprise, each
of the selected dealers soliciting subscriptions for shares of the Company's
common stock pursuant to the Offering (collectively, the "Selected Dealer
Agreements") and the Advisory Agreement between the Company and the Advisor (the
"Advisory Agreement"), and the consummation of the transactions contemplated
herein and therein (including the issuance and sale of the Shares and the use of
the proceeds from the sale of the Shares as described in the Prospectus under
the caption "Use of Proceeds") and compliance by the Company and the Advisor
with its obligations hereunder and thereunder have been duly authorized by all
necessary corporate action and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company, any of its subsidiaries, the Sales Agent, the Advisor or
W.P. Xxxxx & Co. LLC pursuant to, any Agreement or Instrument, except for such
conflicts, breaches or defaults or liens, charges or encumbrances that,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect, nor will such action result in any violation of the
provisions of the charter or bylaws of the Company, and of its subsidiaries, the
Sales Agent, the Advisor or W.P. Xxxxx & Co. LLC or any applicable law, rule,
regulation, or governmental or court judgment, order, writ or decree of any
government, governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its property. As used herein, a
"Repayment Event" means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase,
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redemption or repayment of all or a portion of such indebtedness by the Company,
any subsidiary of the Company the Sales Agent, the Advisor or W.P. Xxxxx & Co.
LLC or any of their respective subsidiaries.
(g) Financial Statements. The financial statements of the Company,
including the schedules and 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 and its consolidated subsidiaries
as of the date indicated and the results of its operations, stockholders' equity
and cash flows of the Company and its consolidated subsidiaries 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, with respect to the Company and any
affiliates thereto, independent accountants as required by the Securities Act
and the Regulations and have been registered with the Public Company Accounting
Oversight Board. The selected financial data and the summary financial
information included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statement. The pro forma
financial statements and the related notes thereto included in the Registration
Statement and the Prospectus present fairly the information shown therein, and
have been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to
therein.
(h) 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, (b) there have not been any material transactions entered into by the
Company except in the ordinary course of business, (c) there has not been any
material increase in the long-term indebtedness of the Company and (d) except
for regular dividends on the Company's common stock, there has been no
distribution of any kind declared, paid or made by the Company on any class of
its capital stock.
(i) Investment Company Act. The Company is not, will not become by virtue
of the transactions contemplated by this Agreement and the application of the
net proceeds therefrom, and 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.
(j) Authorization of Agreements. This Agreement, the Sales Agency
Agreement, the Selected Dealer Agreements and the Advisory Agreement between the
Company and the Advisor have been duly and validly authorized, executed and
delivered by the Company, the Sales Agent and the Advisor, as applicable, and
constitute valid, binding and enforceable agreements of the Company, the Sales
Agent and the Advisor, as applicable.
(k) The Advisor. The Advisor is a Delaware corporation duly organized,
validly existing, and in good standing under the laws of the State of Delaware
with full power and authority to conduct its business as described in the
Prospectus, and is or will be qualified to do business and is in good standing
as a foreign corporation in each other jurisdiction in which it is doing
business as such, as described in the Prospectus, which (i) requires such
qualification to enable the Advisor to conduct the business in which it
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is engaged or proposes to engage as described in the Prospectus, or (ii) may
require such qualification and the failure to so qualify might result in
material adverse consequences to the Advisor or the Company.
(l) The Sales Agent. The Sales Agent has been duly formed and is validly
existing as a limited liability company in good standing under the laws of the
State of Delaware with full power and authority to conduct its business as
described in the Prospectus. The Sales Agent is a member of the NASD and is
subject to the supervision and examination of the Commission.
(m) 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.
(n) 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 has been
organized and has operated in conformity with the requirements for qualification
as a real estate investment trust under Sections 856 through 860 of the Code and
its actual method of operation has enabled it 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.
(o) 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.
(p) Sales Material. All advertising and supplemental sales literature
prepared or approved by the Company or any of its affiliates (whether designated
solely for broker-dealer use or otherwise) to be used or delivered by the
Company or any of its affiliates or Ameriprise in connection with the offering
of the Shares will not contain an untrue statement of material fact or omit to
state a material fact required to be stated therein, in light of the
circumstances under which they were made and in conjunction with the Prospectus
delivered therewith, not misleading. Furthermore, all such advertising and
supplemental sales literature used by Ameriprise will have received all required
regulatory approval, which may include but is not limited to, the Commission,
the NASD and state securities agencies, as applicable, prior to use by
Ameriprise.
(q) Good Standing of Subsidiaries. Each "significant subsidiary" of the
Company (as such term is defined in Rule 1-02 of Regulation S-X) (each a
"Subsidiary" and, collectively, the "Subsidiaries") has been duly organized or
formed and is, validly existing as a corporation, partnership, limited liability
company or similar entity in good standing under the laws of the jurisdiction of
its incorporation, has power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to be
so qualified would not reasonably be expected to have a Material Adverse Effect;
except as otherwise disclosed in the Registration Statement, all of the issued
and outstanding capital stock of each such Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in violation of
the preemptive or similar rights of any stockholder of such Subsidiary. The only
subsidiaries of the Company as of the date of the Registration Statement or the
most recent amendment to the Registration Statement, as
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applicable, are the subsidiaries listed on Exhibit 21 to the Registration
Statement or such amendment to the Registration Statement.
(r) No Pending Action. Except as disclosed in the Registration Statement,
there is no action, suit or proceeding pending, or, to the knowledge of the
Company, threatened or contemplated before or by any arbitrator, court or other
government body, domestic or foreign, against or affecting the Company, any of
its subsidiaries, the Sales Agent, the Advisor or W.P. Xxxxx & Co. LLC, which is
required to be disclosed in the Registration Statement (other than as disclosed
therein), or which would reasonably be expected to result in a Material Adverse
Effect, or which would reasonably be expected to materially and adversely affect
the properties or assets thereof or the consummation of the transactions
contemplated by this Agreement; the aggregate of all pending legal or
governmental proceedings to which the Company, any of its subsidiaries, the
Sales Agent, the Advisor or W.P. Xxxxx & Co. LLC is a party or of which any of
their respective property or assets is the subject which are not described in
the Registration Statement, including ordinary routine litigation incidental to
the business, would not reasonably be expected to result in a Material Adverse
Effect or would reasonably be expected to materially adversely affect other
properties or assets of the Company, any of its subsidiaries, the Sales Agent,
the Advisor or W.P. Xxxxx & Co. LLC.
(s) Possession of Intellectual Property. The Company and its subsidiaries
own or possess, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary to carry
on the business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or inadequacy,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.
(t) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency is necessary or required for the
performance by the Company of its obligations under this Agreement, the Sales
Agency Agreement, the Selected Dealer Agreements and the Advisory Agreement, in
connection with the offering, issuance or sale of the Shares or the consummation
of the other transactions contemplated by this Agreement, the Sales Agency
Agreement, the Selected Dealer Agreements and the Advisory Agreement, except
such as have been already made or obtained under the Securities Act or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or as may be
required under state securities laws.
(u) Possession of Licenses and Permits. The Company and its subsidiaries
possess such permits, licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them, except such Governmental Licenses, the failure of
which to possess, would not reasonably be expected to have a Material Adverse
Effect, and the Company and its subsidiaries are in compliance in all material
respects with the terms and conditions of all such Governmental Licenses; all of
the Governmental Licenses are valid and in full force and effect; and neither
the Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses.
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(v) Partnership Agreements. Each of the partnership agreements,
declarations of trust or trust agreements, limited liability company agreements
(or other similar agreements) and, if applicable, joint venture agreements to
which the Company or any of its subsidiaries is a party has been duly
authorized, executed and delivered by the Company or the relevant subsidiary, as
the case may be, and constitutes the valid and binding agreement of the Company
or such subsidiary, as the case may be, enforceable in accordance with its
terms, except as the enforcement thereof may be limited by (A) the effect of
bankruptcy, insolvency or other similar laws now or hereafter in effect relating
to or affecting creditors' rights generally or (B) the effect of general
principles of equity, and the execution, delivery and performance of such
agreements did not, at the time of execution and delivery, and does not
constitute a breach of or default under the charter or bylaws, partnership
agreement, declaration of trust or trust agreement, or limited liability company
agreement (or other similar agreement), as the case may be, of the Company or
any of its subsidiaries or any of the Agreements and Instruments or any law,
administrative regulation or administrative or court order or decree.
(w) Properties. Except as otherwise disclosed in the Prospectus: (i) the
Company and its subsidiaries have good and insurable or good, valid and
insurable title (either in fee simple or pursuant to a valid leasehold interest)
to all properties and assets described in the Prospectus as being owned or
leased, as the case may be, by them and to all properties reflected in the
Company's most recent consolidated financial statements included in the
Prospectus, and neither the Company nor any of its subsidiaries has received
notice of any claim that has been or may be asserted by anyone adverse to the
rights of the Company or any subsidiary with respect to any such properties or
assets (or any such lease) or affecting or questioning the rights of the Company
or any such subsidiary to the continued ownership, lease, possession or
occupancy of such property or assets, except for such claims that could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; (ii) except as disclosed in the Registration Statement or the
Prospectus, there are no liens, charges, encumbrances, claims or restrictions on
or affecting the properties and assets of the Company or any of its subsidiaries
which would reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect; (iii) no person or entity, including, without
limitation, any tenant under any of the leases pursuant to which the Company or
any of its subsidiaries leases (as lessor) any of its properties (whether
directly or indirectly through other partnerships, limited liability companies,
business trusts, joint ventures or otherwise) has a material option or right of
first refusal or any other right to purchase any of such properties; (iv) to the
Company's knowledge, each of the properties of the Company or any of its
subsidiaries has access to public rights of way, either directly or through
insured easements, except where the failure to have such access would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; (v) to the Company's knowledge, each of the properties of the
Company or any of its subsidiaries is served by all public utilities necessary
for the current operations on such property in sufficient quantities for such
operations, except where the failure to have such public utilities could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; (vi) to the knowledge of the Company, each of the properties of
the Company or any of its subsidiaries complies with all applicable codes and
zoning and subdivision laws and regulations, except for such failures to comply
which could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; (vii) all of the leases under which the Company
or any of its subsidiaries holds or uses any real property or improvements or
any equipment relating to such real property or improvements are in full force
and effect, except where the failure to be in full force and effect could not,
individually or in the aggregate, have a Material Adverse Effect, and neither
the Company nor any of its subsidiaries is in default in the payment of any
amounts due under any such leases or in any other default thereunder and the
Company knows of no event which, with the passage of time or the giving of
notice or both, could constitute a default under any such lease, except such
defaults that could not, individually or in the aggregate, have a Material
Adverse Effect; (viii) to the knowledge of the Company, there is no pending or
threatened condemnation, zoning change, or other proceeding or action that could
in any manner affect the size of, use of, improvements on, construction on or
access to the properties of the Company or any of
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its subsidiaries, except such proceedings or actions that, individually or in
the aggregate, could not reasonably be expected to have a Material Adverse
Effect; and (ix) neither the Company nor any of its subsidiaries nor any lessee
of any of the real property or improvements of the Company or any of its
subsidiaries is in default in the payment of any amounts due or in any other
default under any of the leases pursuant to which the Company or any of its
subsidiaries leases (as lessor) any of its real property or improvements
(whether directly or indirectly through partnerships, limited liability
companies, joint ventures or otherwise), and the Company knows of no event
which, with the passage of time or the giving of notice or both, would
constitute such a default under any of such leases, except such defaults as
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(x) Insurance. The Company's subsidiaries have title insurance on all U.S.
real property and improvements described in the Prospectus as being owned or
leased under a ground lease, as the case may be, by the Company's subsidiaries
and to all U.S. real property and improvements reflected in the Company's most
recent consolidated financial statements included in the Prospectus in an amount
at least equal to the original purchase price paid to the sellers of the
property and the Company's subsidiaries are entitled to all benefits of the
insured thereunder. With respect to all non-U.S. real property described in the
Prospectus as being owned or leased by the Company's subsidiaries, each such
subsidiary has received a title opinion or title certificate or other customary
evidence of title assurance, as appropriate for the respective jurisdiction,
showing good and indefeasible title to such properties in fee simple or valid
leasehold estate or its respective equivalent, as the case may be, vested in the
applicable subsidiary. Each property is insured by extended coverage hazard and
casualty insurance in amounts and on such terms as are customarily carried by
lessors of properties similar to those owned by the Company and its subsidiaries
(in the markets in which the Company's and subsidiaries' respective properties
are located), and either the tenant or the Company and its subsidiaries carry
comprehensive general liability insurance and such other insurance as is
customarily carried by lessors of properties similar to those owned by the
Company and its subsidiaries in amounts and on such terms as are customarily
carried by lessors of properties similar to those owned by the Company and its
subsidiaries (in the markets in which the Company's and its subsidiaries'
respective properties are located) and the Company or one of its subsidiaries is
named as an additional insured on all policies (except workers' compensation)
required under the leases for such properties.
(y) Environmental Matters. Except as otherwise disclosed in the
Prospectus: (i) all real property and improvements owned or leased by the
Company or any of its subsidiaries, including, without limitation, the
Environment (as defined below) associated with such real property and
improvements, is free of any Contaminant (as defined below) in violation of
applicable Environmental Laws (as defined below) which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect; (ii)
neither the Company, nor any of its subsidiaries has caused or suffered to exist
or occur any Release (as defined below) of any Contaminant into the Environment
in violation of any applicable Environmental Law that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect or
could result in any violation of any applicable Environmental Laws except for
such violations that could not reasonably be expected to have a Material Adverse
Effect; (iii) neither the Company nor any of its subsidiaries is aware of any
notice from any governmental body claiming any violation of any Environmental
Laws or requiring or calling for any work, repairs, construction, alterations,
removal or remedial action or installation by the Company or any of its
subsidiaries on or in connection with such real property or improvements,
whether in connection with the presence of asbestos-containing materials or mold
in such properties or otherwise, except for such violations, work, repairs,
construction, alterations, removal or remedial actions or installations as could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, nor is the Company aware of any information which may serve as
the basis for any such notice that would individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; (iv) neither the
Company nor any of its subsidiaries has caused or suffered to exist or occur any
environmental condition on any of the
8
properties or improvements of the Company or any of its subsidiaries that would
reasonably be expected to give rise to the imposition of any Lien (as defined
below) under any Environmental Laws, except such Liens which, individually or in
the aggregate, could not have a Material Adverse Effect; and (v) to the
Company's knowledge, no real property or improvements owned or leased by the
Company or any of its subsidiaries is being used or has been used for
manufacturing or for any other operations that involve or involved the use,
handling, transportation, storage, treatment or disposal of any Contaminant,
where such operations require or required permits or are or were otherwise
regulated pursuant to the Environmental Laws and where such permits have not
been or were not obtained or such regulations are not being or were not complied
with, except in all instances where any failure to obtain a permit or comply
with any regulation could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect. "Contaminant" means any pollutant,
hazardous substance, toxic substance, hazardous waste, special waste, petroleum
or petroleum-derived substance or waste, asbestos or asbestos-containing
materials, PCBs, lead, pesticides or regulated radioactive materials or any
constituent of any such substance or waste, as identified or regulated under any
Environmental Law. "Environmental Laws" means the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. 6901, et seq., the Clean Air Act, 42
U.S.C. 7401, et seq., the Clean Water Act, 33 U.S.C. 1251, et seq., the Toxic
Substances Control Act, 15 U.S.C. 2601, et seq., the Occupational Safety and
Health Act, 29 U.S.C. 651, et seq., and all other federal, state and local laws,
ordinances, regulations, rules, orders, decisions, and permits, which are
directed at the protection of human health or the Environment. "Environment"
means any surface water, drinking water, ground water, land surface, subsurface
strata, river sediment, building, structures, and ambient air. "Lien" means any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on any asset. "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping, or
disposing of any Contaminant into the Environment, including, without
limitation, the abandonment or discard of barrels, containers, tanks or other
receptacles containing or previously containing any Contaminant or any release,
emission or discharge as those terms are defined or used in any applicable
Environmental Law.
(z) Registration Rights. There are no persons, other than the Company,
with registration or other similar rights to have any securities registered
pursuant to the Registration Statement or otherwise registered by the Company
under the Securities Act, or included in the offering contemplated hereby.
(aa) Finders' Fees. Neither the Company nor any affiliate thereof has
received or is entitled to receive, directly or indirectly, a finder's fee or
similar fee from any person other than that as described in the Prospectus in
connection with the acquisition, or the commitment for the acquisition, of the
Properties by the Company.
(bb) Taxes. The Company and each of its subsidiaries 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), and has paid or provided for the payment of all taxes indicated by said
returns and all assessments received by the Company and each of its subsidiaries
to the extent that such taxes or assessments have become due, except where the
Company is contesting such assessments in good faith and except for such taxes
and assessments, the failure of which to pay, would not reasonably be expected
to have a Material Adverse Effect.
(cc) Trademarks. Any required consent and authorization has been obtained
for the use of any trademark or service mark in any sales literature or
advertising delivered by the Company to Ameriprise or approved by the Company
for use by Ameriprise and, to the Company's knowledge, its use does not
constitute the unlicensed use of intellectual property.
9
(dd) No Fiduciary Duty. The Company acknowledges and agrees that
Ameriprise is acting solely in the capacity of an arm's length contractual
counterparty to the Company with respect to the offering of the Shares
(including in connection with determining the terms of the offering) and not as
a financial advisor or a fiduciary to, or an agent of, the Company or any other
person. Additionally, Ameriprise is not advising the Company or any other person
as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such
matters and shall be responsible for making its own independent investigation
and appraisal of the transactions contemplated hereby, and Ameriprise shall have
no responsibility or liability to the Company with respect thereto. Any review
by Ameriprise of the Company, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for the benefit
of Ameriprise and shall not be on behalf of the Company.
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 Ameriprise as a Selected Dealer for the
Shares during the period (the "Effective Term") from the date hereof 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, Ameriprise agrees to
use its best efforts, during the term of this Agreement, 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 Ameriprise 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 Ameriprise, or (ii) authorize a debit of such amount to the account such
purchaser maintains with Ameriprise. An order form in the form attached to the
Prospectus (each an "Order Form") must be completed and submitted to the Company
for all investors. On a daily basis, Ameriprise will 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. Ameriprise also will forward all Order Forms received by
Ameriprise to the Company by the third business day following their receipt in
good order by Ameriprise. Ameriprise shall use its best efforts to wire such
funds or transmit checks to Deutsche Bank Trust Company Americas, as escrow
agent (the "Escrow Agent") not later than noon of the next business day after
receipt by Ameriprise from its customer of each order except that, in any case
in which Ameriprise maintains a branch office, and, pursuant to Ameriprise's
internal supervisory procedures, final internal supervisory review is conducted
at a different location, the branch office shall transmit the offering price for
the Shares and the Order Forms to the Ameriprise office conducting such internal
supervisory review by the close of business on the third business day following
their receipt by the branch office in good order and Ameriprise shall review the
Order Forms to ensure their proper execution and form and, if they are
acceptable, transmit the offering price for the Shares covered by the Order
Forms to the Escrow Agent by the close of business on the third business day
after their receipt by Ameriprise. Ameriprise will advise the Escrow Agent
whether the funds Ameriprise is 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. The parties acknowledge that any receipt by Ameriprise
of payments for subscriptions for Shares shall be effected solely as an
administrative convenience, and
10
such receipt of payments shall not be deemed to constitute acceptance of orders
to purchase Shares or sales of Shares by the Company.
All Orders solicited by Ameriprise 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 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 Ameriprise
receives 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. Ameriprise agrees 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. Ameriprise agrees 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 investors (such date being herein referred to as the "Initial
Closing Date"), the Escrow Agent will at such time and place as instructed by
Ameriprise 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 maintained by the Company 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 the Sales Agent 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 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." Share issuance dates for purchases made pursuant to the DRIP
will be as set forth in the DRIP.
(c) Dealers. The Shares offered and sold by Ameriprise under this
Agreement shall be offered and sold only by Ameriprise, a member in good
standing of the National Association of Securities Dealers, Inc. (the "NASD").
The Company, the Sales Agent and the Advisor or an affiliate thereof agree to
participate in Ameriprise's marketing efforts to the extent that Ameriprise may
reasonably request and, without limiting the generality of the foregoing, agree
to visit Ameriprise's offices as Ameriprise may reasonably request.
(d) Compensation. In consideration for Ameriprise's execution of this
Agreement, and for the performance of Ameriprise's obligations hereunder, the
Company agrees to pay or cause to be paid to Ameriprise 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 in which case the
commission will be $0.50 per Share) sold by Ameriprise; provided, however, that
Ameriprise's 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 Ameriprise's
Selling Commission shall be reduced by the amount of the Share purchase price
discount. In the case of such volume sales to single purchasers, Ameriprise's
Selling Commission will be 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 Ameriprise:
11
SELLING COMMISSION PER SHARE
PURCHASE PRICE PER SHARE FOR ON TOTAL SALE FOR INCREMENTAL
VOLUME DISCOUNT RANGE FOR A INCREMENTAL SHARE IN VOLUME SHARE IN VOLUME DISCOUNT
SINGLE PURCHASER DISCOUNT RANGE 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 50,380.71 Shares rather
than 50,000 Shares for his/her or its investment of $500,000 and the Selling
Commission would be $28,940.36. 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 25,380.71 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.
The Company will also re-allow to Ameriprise a dealer fee of up to two percent
(2%) of the full price of each Share sold by Ameriprise (the "Dealer Fee"), if
Ameriprise has executed an Addendum to this Selected
Dealer Agreement related to
the Dealer Fee; provided however, the Dealer Fee shall be reduced as necessary
in order that the underwriting compensation to be paid to all parties in
connection with the Offering does not exceed the limitations prescribed by the
NASD. In this regard, each of the Company and Ameriprise acknowledges and agrees
that the Offering shall be conducted in compliance with Sections 2710 and 2810
of the NASD regulations which prescribe limitations on the amount of
organization and offering expenses that may be paid by the Company in connection
with the Offering. Accordingly, if at any time during the term of the Offering,
the Company determines in good faith that any payment to Ameriprise pursuant to
this Agreement could result in a violation of the applicable NASD regulations,
the Company shall promptly notify Ameriprise and the Company and Ameriprise
agree to cooperate with each other to implement such measures as they determine
are necessary to ensure continued compliance with the applicable regulations.
Such measures may include, without limitation, a reduction in the amount of the
Dealer Fee payable to Ameriprise. Until the parties mutually agree upon
appropriate measures or until such time as the amount that may be paid without
violation of such regulations is finally determined, the Company shall be
entitled to withhold and defer payments to Ameriprise of such portions of the
Dealer Fee and other compensation as the Company reasonably determines are
necessary to permit continued compliance with applicable NASD regulations, but
shall otherwise continue to pay to Ameriprise all amounts that are due and
payable under this Agreement.
For purposes of determining investors eligible for volume discounts,
investments made by accounts with the same primary account holder, as determined
by the account tax identification number, may be combined. This includes
individual accounts and joint accounts that have the same primary holder as an
individual account. Investments made through individual retirement accounts may
also be combined with accounts that have the same tax identification number as
the beneficiary of the individual retirement account. In the event Orders are
combined, the commission payable with respect to the subsequent purchase of
Shares will equal the commission per share which would have been payable in
accordance with the table set forth above if all purchases had been made
simultaneously. Any reduction
12
of the six and one half percent Selling Commission otherwise payable to
Ameriprise will be credited to the purchaser as additional Shares. Unless
purchasers, or Ameriprise on behalf of purchasers, indicate that Orders are to
be combined and provide all other requested information, the Company will not be
held responsible for failing to combine Orders properly.
To the extent Ameriprise is entitled to all or a portion of the 2% Dealer
Fee, Ameriprise may elect to defer over time its receipt of the Dealer Fee to
which it is entitled. In such event, the Dealer Fee to be reallowed will be paid
to Ameriprise over a period of up to ten years (which period will be agreed upon
by the Company and Ameriprise until the Dealer Fee payable to Ameriprise has
been paid in full. Further, if listing of the Company's shares occurs on a
national exchange or the Company's shares are included for quotation on NASDAQ,
any remaining deferred portion of the Dealer Fee payable to Ameriprise will
become immediately due and payable.
No payment of commissions or the Dealer Fee will be made in respect of
Orders (or portions thereof) which are rejected by the Company. Selling
Commissions and the Dealer Fee will be paid on the next business day following
each Closing Date with respect to Shares sold to purchasers whose Shares are
issued on such Closing Date. Selling Commissions and the Dealer Fee will be
payable only with respect to transactions lawful in the jurisdictions where they
occur. Purchases of Shares by W. P. Xxxxx & Co. LLC, the Company, Ameriprise or
its or their respective affiliates or any of their respective directors,
trustees, officers and employees shall be net of commissions.
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 shall not pay a Dealer
Fee for Shares sold through the DRIP.
The Company will pay to Ameriprise, the amount of any bona fide due
diligence expense in the amount of up to one-half percent of the price of each
Share sold by Ameriprise.
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 to registered investment advisers, and
agrees that, through the Termination Date, the Company will not offer or sell
any Shares otherwise than through the Sales Agent as provided in the Sales
Agency Agreement, Ameriprise as herein provided, and the selected dealers other
than Ameriprise as provided in the Selected
Dealer Agreements, except to its
officers and directors and to registered investment advisers.
(e) Finders Fee. Neither the Company nor Ameriprise 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.
4. Covenants. Each of the Company, the Sales Agent, the Advisor and W.P.
Xxxxx & Co. LLC, jointly and severally, covenant and agree with Ameriprise 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 to maintain the effectiveness of the Registration Statement, and
will promptly notify Ameriprise 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
13
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, (iv) of any request by the Commission for any amendment to the
Registration Statement as filed or any amendment or supplement to the Prospectus
or for additional information relating thereto and (v) if the Registration
Statement becomes unavailable for use in connection with the offering of the
Shares for any reason. Each of the Company and the Sales Agent will use its
reasonable best efforts 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, each of the Company and the Sales Agent will use
its reasonable best efforts to obtain the lifting of such order at the earliest
possible moment. The Company shall not accept any order of Shares during the
effectiveness of any stop order.
(b) Registration Statement. Deliver to Ameriprise 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 Ameriprise may
reasonably request. The Company hereby consents to the use of the Prospectus or
any amendment or supplement thereto by Ameriprise 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
Ameriprise, 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 Ameriprise 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 Ameriprise agrees 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) "Blue Sky" Memorandum. To furnish to Ameriprise, and Ameriprise may be
allowed to rely upon, a Blue Sky Memorandum, prepared by Xxxxxxx Procter LLP or
other counsel reasonably acceptable to Ameriprise and the Company, naming the
jurisdictions in which the Shares have been qualified for sale under the
respective securities laws of such jurisdiction. In each jurisdiction where the
Shares have been qualified, the Company will make and file such statements and
reports in each year as are or may be required by the laws of such jurisdiction.
(e) 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 the Registration Statement or 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, or if it
shall be necessary, in the opinion of the Company's counsel, at any such time to
amend the Registration Statement or amend or supplement the Prospectus in order
to comply with the requirements the Securities Act or the Regulations, the
Company will forthwith notify an Ameriprise representative in the Ameriprise
legal department, further, the Company shall prepare and furnish without expense
to Ameriprise, a reasonable number of copies of an amendment or amendments of
the Registration Statement or Prospectus or a supplement or supplements to the
Prospectus which will amend or supplement the Registration Statement or 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, or to
make the Registration Statement
14
or the Prospectus comply with such requirements. Without limiting the generality
of the foregoing, after the Company files a Quarterly Report on Form 10-Q or an
Annual Report on Form 10-K (each, a "Periodic Report"), the Company agrees to
file an amendment to the Registration Statement or supplement to the Prospectus,
as applicable, which incorporates the financial and other information contained
in such Periodic Report (each, a "Periodic Prospectus Supplement") as required
by the rules and regulations promulgated under the Securities Act. 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.
(f) Delivery of Periodic Filings. The Company shall include with any
prospectus or "investor kit" delivered to Ameriprise for distribution to
potential investors in connection with the Offering a copy of the Company's most
recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q.
(g) Periodic Financial Information. On or prior to the date on which there
shall be released to the general public interim financial statement information
related to the Company with respect to each of the first three quarters of any
fiscal year or preliminary financial statement information with respect to any
fiscal year, the Company shall furnish such information to Ameriprise, confirmed
in writing, and shall file such information pursuant to the rules and
regulations promulgated under the Act or the Securities Exchange Act of 1934
("Exchange Act") as required thereunder.
(h) Audited Financial Information. On or prior to the date on which there
shall be released to the general public financial information included in or
derived from the audited financial statements of the Company for the preceding
fiscal year, the Company shall furnish such information to Ameriprise, confirmed
in writing, and shall file such information pursuant to the rules and
regulations promulgated under the Act or the Exchange Act as required
thereunder.
(i) Copies of Reports. During the period the Shares remain outstanding,
Ameriprise 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
(iii) additional documents and information with respect to the
Company and its affairs as Ameriprise may from time to time reasonably request.
(j) Sales Material. The Company will deliver to Ameriprise 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 Ameriprise's customers or registered representatives
without Ameriprise's prior consent, which consent, in the case of material
required by law, rule or regulation of any regulatory body including the NASD to
be delivered, shall not be unreasonably withheld or delayed. For the avoidance
of doubt, ordinary course communications with the Company's shareholders,
including without limitation, the delivery of annual and quarterly reports and
financial information, dividend notices, reports of net asset value and
information regarding the tax treatment of distributions and similar matters
shall not be considered advertising and supplemental sales material, unless the
context otherwise requires.
15
(k) 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.
(l) Prospectus Delivery. In case Ameriprise 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 Ameriprise's request, the Company will,
at its expense, prepare and deliver to Ameriprise as many copies as Ameriprise
may request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Securities Act. The Company is familiar with Rule 15c2-8 under
the Exchange Act, relating to the distribution of preliminary and final
prospectuses, and confirms that it has complied and will comply therewith.
(m) 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.
(n) Compliance with Exchange Act. Comply with the requirements of the
Exchange Act relating to the Company's obligation to file and, as applicable,
deliver to its shareholders periodic reports including annual reports on Form
10-K, quarterly reports on Form 10-Q and current reports on Form 8-K.
(o) Licensing and Compliance. The Company and the Sales Agent covenant
that any persons employed or retained by them to provide sales support or
wholesaling services in support of Ameriprise or its clients shall be licensed
in accordance with all applicable laws, will comply with all applicable federal
and state securities laws and regulations, and will use only sales literature
approved and authorized by the Company, the Sales Agent and Ameriprise.
(p) Reimbursement Policy. The Company, the Sales Agent and any agents of
either, including any wholesalers, shall comply with Ameriprise's wholesaler
reimbursement policy as communicated to the Sales Agent, as amended from time to
time in Ameriprise's sole discretion provided such policy complies with the
rules and regulations of the NASD.
(q) Trade Names and Trademarks. The Company, the Sales Agent and the
Advisor may not use Ameriprise's trade name or any trade name, trademark or
service mark or logo of Ameriprise or any person or entity controlling,
controlled by, or under common control with Ameriprise without Ameriprise's
prior written consent.
5. Covenants of Ameriprise. Ameriprise covenants and agrees with the
Company as follows:
(a) Compliance with Laws. Ameriprise confirms that it is familiar with
Rule 15c2-8 under the Exchange Act, relating to the distribution of preliminary
and final prospectuses, and confirms that it has complied and will comply
therewith in connection with the offering of the Shares contemplated by this
Agreement.
(b) Accuracy of Information. No information supplied by Ameriprise 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.
16
(c) No Additional Information. Ameriprise will not give any information or
make any representation in connection with the offering of the Shares other than
that contained in the Prospectus, the Registration Statement, the Company's
filings under the Act or the Exchange Act or the advertising and supplemental
sales material contemplated by this Agreement.
(d) Sale of Shares. Ameriprise shall solicit purchasers of the Shares only
in the jurisdictions in which Ameriprise has been advised by the Company that
such solicitations can be made and in which Ameriprise is qualified to so act.
Ameriprise shall only solicit purchasers whom Ameriprise reasonably believes
satisfy the applicable suitability standards in effect for the Offering of which
the Company shall have advised Ameriprise in writing.
(e) Broker-Dealer Matters. Ameriprise represents and warrants to the
Company that (i) Ameriprise is a member in good standing of the NASD, (ii)
Ameriprise is licensed as a broker-dealer in all fifty states, Puerto Rico and
the District of Columbia, and (iii) independent contractors and registered
representatives acting on behalf of Ameriprise have the appropriate license(s)
to sell the Shares.
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 Ameriprise
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 Ameriprise's 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 this Agreement and
Order Forms, including the cost of all copies thereof and any financial
statements or exhibits relating to the foregoing supplied to Ameriprise in
quantities reasonably requested by Ameriprise; (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.
(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 Ameriprise's
associated persons 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.
17
(c) Limitation. Notwithstanding the foregoing, the total compensation paid
to Ameriprise 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 Ameriprise agree to monitor the payment
of all fees and expense reimbursements to assure that the NASD limitations are
not exceeded.
7. Conditions of Ameriprise's Obligations. Ameriprise's 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 Ameriprise and, at any time during the term of this Agreement, no
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 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) Closings. The Company, the Advisor and the Sales Agent will deliver or
cause to be delivered to Ameriprise, as a condition of Ameriprise's obligations
hereunder, those documents as described in this Section 7 as of the date hereof
and on or before the fifth business day following the filing of a Periodic
Prospectus Supplement (each such date, a "Documented Closing Date").
(c) Opinion of Counsel. Ameriprise shall receive the favorable opinion of
Clifford Chance US LLP, counsel for the Company, dated as of the date hereof or
as of each Documented Closing Date, addressed to Ameriprise substantially to the
effect that:
(i) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Maryland with
corporate power and authority to own its assets and conduct its business as
described in the Registration Statement and the Prospectus;
(ii) based on certificates from public officials, such counsel
confirms that the Company is in good standing and qualified to do business in
each state set forth on Exhibit A hereto;
(iii) the Shares have been duly authorized and, after being duly
issued and sold in accordance with the terms set forth in the Registration
Statement, will be validly issued, fully paid and non-assessable; no holder of
Shares will be subject to personal liability under the MGCL for the obligations
of the Company solely by reason of being a holder of Shares; the Shares are not
subject to the preemptive rights of any stockholder of the Company under the
Company's Articles of Incorporation ("Articles") or Bylaws ("Bylaws") or the
MGCL, and all corporate action required to be taken by the Company for the
authorization, issue and sale of the Shares has been validly taken;
(iv) each of the Sales Agency Agreement, the Advisory Agreement and
this Agreement has been duly authorized, executed and delivered by or on behalf
of the Company, and each of the Sales Agency Agreement and this Agreement
constitutes the valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms except (A) as enforcement thereof may
be subject to bankruptcy, insolvency, liquidation, reorganization, moratorium or
other similar laws relating to creditors' rights generally including, without
limitation, applicable fraudulent conveyance and transfer laws, (B) as
enforcement thereof may be affected by principles of equity, including without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
whether considered at law
18
or in equity, (C) that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceedings may be brought, and (D) to
the extent that the enforceability of the indemnification and contribution
provisions may be limited by federal or state securities laws or the public
policy underlying such laws;
(v) the Registration Statement, as of the date it was declared
effective, and the Prospectus, as of its date, complied as to form in all
material respects with the requirements for registration on Form S-11 under the
Securities Act and the rules and regulations of the Commission thereunder, it
being understood, however, that such counsel expresses no opinion with respect
to Regulation S-T or the financial statements, schedules or other financial or
accounting data, included in, or omitted from, the Registration Statement or the
Prospectus. For purposes of this paragraph, such counsel has assumed that the
statements made in the Registration Statement and the Prospectus are correct and
complete;
(vi) the Registration Statement filed under Form 8-A pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (the "8-A
Registration Statement") complied as to form, when so filed, in all material
respects with the requirements of the Exchange Act and the rules and regulations
of the Commission thereunder. For purposes of this paragraph, such counsel has
assumed that the statements made in the 8-A Registration Statement are correct
and complete;
(vii) to the knowledge of such counsel, the Company is not a party
to any agreement that would require the inclusion in the Registration Statement
and the Prospectus of shares owned by any person or entity;
(viii) to the knowledge of such counsel, there is no litigation or
governmental proceeding pending against the Company which is required to be
described in the Registration Statement but which is not described in the
Registration Statement; and no consent, approval, authorization, registration,
qualification, license or order of any New York or federal court, regulatory or
other governmental agency or body or under the MGCL is required in connection
with the execution and delivery of, or the consummation by the Company of the
transactions contemplated by, the Sales Agency Agreement, this Agreement or the
Registration Statement and the Prospectus, except such as may be necessary under
New York "blue sky" or securities laws in connection with the Offering or such
as may have been previously obtained;
(ix) neither the execution and delivery by the Company of the Sales
Agency Agreement, this Agreement or the Advisory Agreement nor compliance by the
Company with the terms and provisions thereof will, and consummation by the
Company of the transactions contemplated by the Sales Agency Agreement, this
Agreement and by the Prospectus do not and will not, conflict with or result in
a breach of or constitute a default (or an event which with the giving of notice
or lapse of time or both would constitute a default) under the Articles or
Bylaws, or any New York or federal statute, law, regulation or rule known to
such counsel to be binding on the Company, or of any decree, judgment or order
known to such counsel to be binding on the Company, or any contract, agreement,
indenture, mortgage, deed of trust, lease or sublease, agreement or other
arrangement identified to us in an officer's certificate (which officer's
certificate purports to identify all agreements to which the Company is a party,
or to which any of the Company's properties is subject, the breach of or default
under which would have a Material Adverse Effect);
(x) to the knowledge of such counsel, there are no contracts or
documents of a character required to be described in the Registration Statement
or Prospectus or to be filed as exhibits to the Registration Statement that are
not described or filed;
19
(xi) the statements in the Prospectus under the captions "Risk
Factors-The limit on the number of shares of CPA(R):16 - Global a person may own
may discourage a takeover," "Risk Factors - Maryland law could restrict change
in control," "Risk Factors-Our articles of organization permit our board of
directors to issue stock with terms that may subordinate the rights of the
holders of our current common stock or discourage a third party from acquiring
us," "Description of Shares," and "Management Compensation," insofar as they
purport to describe or summarize certain provisions of the agreements, statutes
or regulations referred to therein, are accurate descriptions or summaries in
all material respects;
(xii) the Company is not required to register as an investment
company as that term is defined in the Investment Company Act of 1940, and will
not be so required to register upon completion of the Offering contemplated by
this Agreement and the application of the net proceeds of the offering as
described in the Prospectus;
(xiii) commencing with the Company's taxable year ended December 31,
2004, the Company has been organized and operated in conformity with the
requirements for qualification and taxation as a REIT under the Code, and its
proposed method of operation (as described in the Registration Statement and in
the Certificate of Representations) will enable the Company to continue to meet
the requirements for qualification and taxation as a REIT under the Code; and
(xiv) the description of the law and legal conclusions contained in
the Registration Statement under the caption "United States Federal Income Tax
Considerations" to the extent they describe applicable United States federal
income tax laws are correct in all material respects.
In addition, such counsel shall state that, in the course of acting as
counsel to the Company in connection with the preparation by the Company of the
Registration Statement and Prospectus, such counsel has reviewed the
Registration Statement and the Prospectus, and has communicated with officers
and other representatives of the Company and the independent public accountants
for the Company with respect to the contents of the Registration Statement and
the Prospectus and related matters. Such counsel has also reviewed and relied
upon certain corporate records and documents, letters from counsel and oral and
written statements of officers and other representatives of the Company and
others as to the existence and consequence of certain factual and other matters.
While the limitations inherent in the independent verification of factual
matters and the character of determinations involved in the preparation of a
disclosure document are such, however, that such counsel need not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus or any amendments to
them, except as set forth in subparagraph (xi) above, such counsel shall state
that, based on the foregoing, nothing came to such counsel's attention that
leads such counsel to believe that the Registration Statement, at the time it
initially became effective or at the time that any post-effective amendment
thereto became effective, contained at such times 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 (except that such
counsel expresses no belief as to financial statements and related notes and
schedules and other financial or accounting data included therein or omitted
therefrom), or that the Prospectus, as of its date, or the date hereof, included
or includes an untrue statement of a material fact or omitted or omits 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 (except that
such counsel expresses no belief as to financial statements and related notes
and schedules and other financial or accounting data included therein or omitted
therefrom).
In rendering the opinions set forth above, counsel may rely, as to matters
of law of states other than New York and the MGCL, upon the opinions of other
counsel, in each case satisfactory in form and
20
substance to Ameriprise and counsel shall state such opinions are satisfactory
in form and scope to them and that they believe Ameriprise may rely on them, and
as to matters of fact, upon communications, statements and certificates from
public officials, and certifications and statements from officers of the
Company. In addition, in making the statement of its belief set forth in the
immediately preceding paragraph, such counsel may assume the accuracy of the
matters set forth in the opinion of Xxxx Xxxxx LLP delivered pursuant to Section
7(d).
(d) Opinion of Counsel. Ameriprise shall receive the favorable opinion of
Xxxx Xxxxx LLP, real estate counsel for the Company, dated as of the date hereof
or as of each Documented Closing Date, addressed to Ameriprise substantially to
the effect that:
(i) The statements under the headings "Description of the
Properties," "Description of Other Investments" and "Risk Factors - Risks
Related to Our Operations - Potential liability for environmental matters could
adversely affect our financial condition" in the Registration Statement and
Prospectus (collectively, the "Reviewed Portions of the Registration Statement
and the Prospectus"), insofar as they purport to describe or summarize
contracts, agreements, statutes, regulations or other legal documents, are
accurate descriptions or summaries of such contracts, agreements, documents,
statutes, rules and regulations; and
(ii) Such counsel has reviewed the Reviewed Portions of the
Registration Statement and the Prospectus and participated in the preparation of
the Reviewed Portions of the Registration Statement and the Prospectus and in
discussions with officers, directors, employees and other representatives of the
Company at which the contents of the Reviewed Portions of the Registration
Statement and the Prospectus and related matters were discussed and no facts
have come to our attention that would cause us to believe that the statements in
the Reviewed Portions of the Registration Statement and the Prospectus at the
time the Registration Statement became effective 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 the
statements in the Reviewed Portions of the Prospectus as of its date or the date
of this opinion 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, in light of the circumstances under which they were made,
not misleading (except that such counsel expresses no belief as to financial
data included in or omitted from the Reviewed Portions of the Registration
Statement and the Prospectus and such counsel expresses no belief as to any
portions of the Registration Statement or Prospectus other than the Reviewed
Portions of the Registration Statement and the Prospectus).
(e) Accountant's Letter. On the date hereof, Ameriprise shall have
received from PricewaterhouseCoopers LLP a comfort letter, in form and substance
reasonably satisfactory to Ameriprise in all material respects.
(f) Update of Accountant's Letter. Ameriprise shall receive from
PricewaterhouseCoopers LLP, dated as of such Documented Closing Date, a comfort
letter, in form and substance reasonably satisfactory to Ameriprise in all
material respects, provided that (i) the specified date referred to in such
subsection shall be a date not more than five days prior to each such Documented
Closing Date, (ii) such comfort letter shall cover the Company's most recent
Annual Report on Form 10-K or Quarterly Report on Form 10-Q (the "Most Recent
Periodic Report") as well as the Registration Statement and Prospectus, as
amended and supplemented through the date of the Periodic Prospectus Supplement
that triggers such Documented Closing Date (the "Current Filing"), and (iii) if
financial statements or financial information of any other entity are included
in the Most Recent Periodic Report or Current Filing, the comfort letter to be
received by Ameriprise shall also cover such financial statements or financial
information.
21
(g) Opinion of Counsel. Ameriprise shall receive the favorable opinion of
Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Advisor, dated as of the date hereof
or as of each Documented Closing Date, addressed to Ameriprise substantially to
the effect that:
(i) The Advisor is validly existing as a corporation and in good
standing under the laws of the State of Delaware.
(ii) Each of this Agreement and the Advisory Agreement has been duly
executed and delivered by or on behalf of the Advisor and is a legal, valid and
binding agreement of the Advisor enforceable against the Advisor in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally, and by general principles of equity and, as to rights of
indemnification or contribution, as may be limited by principles of public
policy or applicable laws related thereto.
(h) Opinion of Counsel. Ameriprise shall receive the favorable opinion of
Xxxxxxx Procter LLP, counsel for the Sales Agent, dated as of the date hereof or
as of each Documented Closing Date, addressed to Ameriprise substantially to the
effect that:
(i) The Sales Agent is validly existing as a corporation limited
liability company and in good standing under the laws of the State of Delaware.
(ii) The Shares have been duly authorized and, when duly issued and
delivered in accordance with the terms set forth in the Sales Agency Agreement
and this Agreement against payment of the consideration described therein, will
be validly issued, fully paid and non-assessable.
(iii) Each of the Sales Agency Agreement and this Agreement has been
duly authorized, executed and delivered by the Sales Agent.
(iv) The Registration Statement is effective under the Securities
Act and no stop order suspending the effectiveness of the Registration Statement
has been issued under the Securities Act.
(i) 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.
(j) Information Concerning the Advisor. On the date hereof, Ameriprise
shall receive a letter dated the date hereof 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
22
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.
(k) Confirmation. As of the date hereof and at each Documented Closing
Date, as the case may be:
(i) the representations and warranties of each of the Company, the
Sales Agent, the Advisor and W.P. Xxxxx & Co. LLC in the Agreement shall be true
and correct with the same effect as if made on the date hereof or the Documented
Closing Date, as the case may be, and each of the Company, the Sale Agent, the
Advisor and W.P. Xxxxx & Co. LLC have performed all covenants or conditions on
their part to be performed or satisfied at or prior to the date hereof or
respective Documented Closing Date;
(ii) the Registration Statement (and any amendments or supplements
thereto) does not include any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus (and any amendments or
supplements thereto) does not include any untrue statement of a material fact or
omits to state any 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;
(iii) there shall have been no material adverse change in the
business, properties, prospects or condition (financial or otherwise) of the
Company subsequent to the date of the balance sheets provided in the
Registration Statement and the Prospectus; and
(iv) since the date hereof, no event has occurred which should have
been set forth in an amendment or supplement to the Prospectus but which has not
been so set forth.
Ameriprise shall receive a certificate dated the date hereof and each Documented
Closing Date, as the case may be, confirming the above. If any of the conditions
specified in this Agreement shall not have been fulfilled when and as required
by this Agreement, all Ameriprise's obligations hereunder and thereunder may be
canceled by Ameriprise 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 of this Agreement. All certificates, letters
and other documents referred to in this Agreement will be in compliance with the
provisions hereof only if they are reasonably satisfactory in form and substance
to Ameriprise and Ameriprise's counsel. The Company will furnish Ameriprise with
conformed copies of such certificates, letters and other documents as Ameriprise
shall reasonably request.
8. Indemnification.
(a) Indemnification by the Company, the Sales Agent, the Advisor and W.P.
Xxxxx & Co. LLC. The Company, the Sales Agent, the Advisor and W.P. Xxxxx & Co.
LLC, jointly and severally, agree to indemnify, defend and hold harmless
Ameriprise and each person, if any, who controls Ameriprise within the meaning
of Section 15 of the Securities Act, and any of their respective officers,
directors, employees and agents 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:
(i) any untrue or alleged untrue statement of a material fact
contained: (i) in the Registration Statement (or any amendment thereto) or in
the Prospectus (as from time to time amended or
23
supplemented) or any related preliminary prospectus; (ii) in any application or
other document (in this Section 8 collectively called "application") executed by
the Company, the Sales Agent, the Advisor or W.P. Xxxxx & Co. LLC or based upon
information furnished by the Company, the Sales Agent, the Advisor or W.P. Xxxxx
& Co. LLC and filed in any jurisdiction in order to qualify the Shares under the
securities laws thereof, or in any amendment or supplement thereto; or (iii) in
the Company's periodic reports such as Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q and current reports on Form 8-K; provided however that none
of the Company, the Sales Agent, the Advisor or W.P. Xxxxx & Co. LLC shall 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, the Sales Agent, the Advisor or W.P. Xxxxx & Co. LLC by Ameriprise
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;
(ii) the omission or alleged omission from (i) the Registration
Statement (or any amendment thereto) or in the Prospectus (as from time to time
amended or supplemented); (ii) any applications; or (iii) the Company's periodic
reports such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and
current reports on Form 8-K, 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 none of the Company,
the Sales Agent, the Advisor or W.P. Xxxxx & Co. LLC shall 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 Ameriprise
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;
(iii) any untrue statement of a material fact or alleged untrue
statement of a material fact contained in any supplemental sales material
(whether designated for broker-dealer use or otherwise) approved by the Company
for use by Ameriprise or any omission or alleged omission to state therein a
material fact required to be stated or necessary in order to make the statements
therein, in light of the circumstances under which they were made and when read
in conjunction with the Prospectus delivered therewith not misleading;
(iv) any communication regarding the annual valuation of the Shares
provided by or on behalf of the Company; and
(v) the breach by the Company, the Sales Agent, the Advisor, W.P.
Xxxxx & Co. LLC, or any employee or agent acting on their behalf, of any of the
representations, warranties, covenants, terms and conditions of this Agreement.
Notwithstanding the foregoing, the Company and the Advisor shall not
indemnify Ameriprise for any losses, liabilities or expenses arising from or out
of an alleged violation of federal or state securities laws unless: (i) 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 Ameriprise. Subject to the conditions set forth
below, Ameriprise agrees to indemnify and hold harmless each of the Company, the
Sales Agent, the Advisor and W.P.
24
Xxxxx & Co. LLC, each of its directors and trustees, those of its officers who
have signed the Registration Statement and each other person, if any, who
controls the Company, the Sales Agent, the Advisor or W.P. Xxxxx & Co. LLC
within the meaning of Section 15 of the Securities Act to the same extent as the
foregoing indemnity from the Company, the Sales Agent, the Advisor and W.P.
Xxxxx & Co. LLC 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 Ameriprise 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 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 Ameriprise 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, the Sales Agent, the Advisor and W.P. Xxxxx & Co. LLC on the one hand
and Ameriprise 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, the Sales Agent, the
Advisor and W.P. Xxxxx & Co. LLC on the one hand and Ameriprise on the other
from the Offering based on the public offering price of the Shares sold and the
Selling Commissions received by Ameriprise 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
25
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, the Sales Agent, the
Advisor and W.P. Xxxxx & Co. LLC on the one hand and Ameriprise 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, the Sales Agent, the Advisor and W.P. Xxxxx & Co. LLC
on the one hand and Ameriprise on the other shall be deemed to be in the same
proportion as (a) the sum of (i) the aggregate net compensation retained by the
Company, the Sales Agent and the Advisor and their affiliates for the purchase
of Shares and (ii) total proceeds from the Offering (net of commissions paid to
Ameriprise but before deducting expenses) received by the Company bears to (b)
the net commissions, marketing support fees, due diligence expense
reimbursements and any other compensation retained by Ameriprise. 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, the Sales Agent,
the Advisor or W.P. Xxxxx & Co. LLC on the one hand or Ameriprise on the other.
The Company agrees with Ameriprise 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), Ameriprise shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Shares subscribed for through Ameriprise were offered to the subscribers
exceeds the amount of any damages which Ameriprise has otherwise been required
to pay by reason of any such untrue or alleged untrue statement or omission or
alleged omission. Further, in no event shall the amount of Ameriprise's
contribution to the liability exceed the net commissions, marketing support
fees, due diligence expense reimbursements and any other compensation retained
by Ameriprise from the proceeds of the Offering. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act or
Section 10(b) of the Exchange Act, 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 Ameriprise within the meaning
of Section 15 of the Securities Act shall have the same right to contribution as
Ameriprise, 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.
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. After this Agreement becomes effective, any party may
terminate it at any time for any reason by giving 30 days' prior written notice
to the other parties.
(b) Additionally, Ameriprise 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(d) 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 Ameriprise's objection to such amendment or supplement as
provided in subsection (a) of Section 2 hereof, or (iv) all trading on the New
26
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 Ameriprise's 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 Ameriprise's 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,
Ameriprise may elect to terminate this Agreement without liability of any party
to any other party except as provided in Section 10(d) hereof.
(d) In the event this Agreement is terminated by any party pursuant to
Sections 10(a), 10(b) or 10(c) 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
Sections 3(d) and 8 hereof. In no event will the Company be liable to reimburse
Ameriprise for expenses other than Ameriprise's actual and reasonable
out-of-pocket expenses.
(e) If Ameriprise elects to terminate this Agreement as provided in this
Section 10, Ameriprise shall notify the Company promptly by telephone or
facsimile with confirmation by letter. If the Company elects to terminate this
Agreement as provided in this Section 10, the Company shall notify Ameriprise
promptly by telephone or facsimile with confirmation by letter.
11. Notices.
(a) All communications hereunder, except as herein otherwise specifically
provided, shall be in writing and if sent to the Sales Agent shall be mailed, or
personally delivered, to 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, if sent
to Ameriprise shall be mailed, or personally delivered, to 570 Ameriprise
Financial Center, Minneapolis, MN 55474 and if sent to the Company, the Advisor
or W.P. Xxxxx & Co. LLC shall be mailed, or personally delivered, to 00
Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Chief Executive Officer,
with a copy to General Counsel.
(b) Notice shall be deemed to be given by any respective party to any
other respective party 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 Ameriprise, the Company, the Advisor and W.P. Xxxxx & Co.
LLC, and the controlling persons, trustees, 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.
27
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. Ameriprise 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.
28
If the foregoing correctly sets forth the parties' understanding, 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:
----------------------------------------
XXXXX FINANCIAL LLC
By:
----------------------------------------
Its:
----------------------------------------
XXXXX ASSET MANAGEMENT CORP.
By:
----------------------------------------
Its:
----------------------------------------
W.P. XXXXX & CO. LLC
By:
----------------------------------------
Its:
----------------------------------------
Accepted as of the Date first above
Written:
AMERIPRISE FINANCIAL SERVICES, INC.
By:
--------------------------------
Its:
--------------------------------
29
CORPORATE PROPERTY ASSOCIATES 16 - GLOBAL INCORPORATED
ADDENDUM TO SELECTED DEALER AGREEMENT
The following reflects the Dealer Fee as agreed upon between Corporate
Property Associates 16 - Global Incorporated (the "Company") and Ameriprise
Financial Services, Inc. ("Ameriprise"), effective ______________.
Each calendar year, Ameriprise shall receive a fee (the "Dealer Fee"), of
two percent of gross offering proceeds received by the Company from sales of the
Company's common stock by Ameriprise in such calendar year.
Eligibility to receive the Dealer Fee is conditioned upon Ameriprise's
compliance with one or more of the following conditions:
1. Ameriprise has and uses internal marketing communications vehicle(s)
to promote the Company. Vehicles may include, but are not restricted
to, newsletters, conference calls, cassette tapes, internal mail,
etc.;
2. Ameriprise will respond to investors' inquiries concerning monthly
statements, valuations, distribution rates, tax information, annual
reports, reinvestment and redemption rights and procedures, the
financial status of the Company and the real estate markets in which
the Company has invested;
3. Ameriprise will assist investors with reinvestments and redemptions;
and/or
4. Ameriprise will provide other services requested by investors from
time to time and will maintain the technology necessary to
adequately service investors.
IN WITNESS WHEREOF, the parties have executed this Addendum on the date
and year shown above.
AMERIPRISE: COMPANY:
AMERIPRISE FINANCIAL SERVICES, INC. CORPORATE PROPERTY ASSOCIATES 16 -
GLOBAL INCORPORATED
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
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EXHIBIT A
SALES AGENCY AGREEMENT
31
