Exhibit 10.5
ASSET MANAGEMENT AGREEMENT
THIS ASSET MANAGEMENT AGREEMENT, dated as of July 1, 2008, is between
CORPORATE PROPERTY ASSOCIATES 17-GLOBAL INCORPORATED, a Maryland corporation
("CPA: 17"), CPA:17 LIMITED PARTNERSHIP, a Delaware limited partnership of which
CPA:17 is a general partner (the "Operating Partnership"), and W.P. XXXXX & Co.
B.V., a Netherlands company (the "Manager").
WITNESSETH:
WHEREAS, CPA: 17 intends to qualify as a REIT (as defined below), and to
invest its funds in investments permitted by the terms of any prospectus
pursuant to which it raised equity capital and Sections 856 through 860 of the
Code (as defined below);
WHEREAS, CPA: 17 desires to avail itself of the experience, sources of
information, and assistance of, and certain facilities available to, the Manager
with respect to disposition opportunities and asset management, for properties
located outside of the United States, and to have the Manager undertake the
duties and responsibilities hereinafter set forth, on behalf of, and subject to
the supervision of the Board of Directors of CPA: 17, all as provided herein;
and
WHEREAS, the Manager is willing to render such services, subject to the
supervision of the Board of Directors, on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms have the
definitions hereinafter indicated:
Acquisition Expense. Acquisition Expense as defined under the Advisory
Agreement.
Acquisition Fees. The Acquisition Fees as defined under the Advisory
Agreement.
Adjusted Investor Capital. As of any date, the Initial Investor
Capital reduced by any Redemptions, other than Redemptions intended to
qualify as a liquidity event for purposes of this Agreement, and by any
other Distributions on or prior to such date determined by the Board to be
from Cash from Sales and Financings.
Adjusted Net Income. For any period, the total consolidated revenues
recognized in such period by CPA: 17, less the total consolidated expenses
of CPA: 17 recognized in such period, excluding additions to reserves for
depreciation and amortization, bad debts or other similar non-cash
reserves; provided, however, that Adjusted Net Income for purposes of
calculating total allowable Operating Expenses shall exclude any gain,
losses or writedowns from the sale of CPA: 17's assets.
1
Advisor. CPA: 17's external advisor. As of the date of this Agreement,
the Advisor is Xxxxx Asset Management Corp.
Advisory Agreement. The Advisory Agreement, dated as of November 12,
2007, between CPA: 17 and the Advisor, as the same may be amended,
supplemented, extended and renewed, and any successor advisory agreement.
Affiliate. An Affiliate of another Person shall include any of the
following: (i) any Person directly or indirectly owning, controlling, or
holding, with power to vote ten percent or more of the outstanding voting
securities of such other Person; (ii) any Person ten percent or more of
whose outstanding voting securities are directly or indirectly owned,
controlled, or held, with power to vote, by such other Person; (iii) any
Person directly or indirectly controlling, controlled by, or under common
control with such other Person; (iv) any executive officer, director,
trustee or general partner of such other Person; or (v) any legal entity
for which such Person acts as an executive officer, director, trustee or
general partner.
Agreement. This Asset Management Agreement.
Appraised Value. Value according to an appraisal made by an
Independent Appraiser, which may take into consideration any factor deemed
appropriate by such Independent Appraiser, including, but not limited to,
the terms and conditions of any lease of a relevant property, the quality
of any lessee's, borrower's or other counter-party's credit and the
conditions of the credit markets. The Appraised Value of a Property may be
greater than the construction cost or the replacement cost of the Property.
Articles of Incorporation. Articles of Incorporation of CPA: 17 under
the General Corporation Law of Maryland, as amended from time to time,
pursuant to which CPA: 17 is organized.
Asset Management Fee. The Asset Management Fee as defined in Section
9(a) hereof.
Average Invested Assets. The average during any period of the
aggregate book value of the assets of CPA: 17 invested, directly or
indirectly, in Properties and in Loans, before deducting reserves for
depreciation, bad debts, impairments, amortization and all other similar
non-cash reserves, computed by taking the average of such values at the end
of each month during such period.
Board or Board of Directors. The Board of Directors of CPA: 17.
Bylaws. The bylaws of CPA: 17.
Cash from Financings. Net cash proceeds realized by CPA: 17 from the
financing of Investments or the refinancing of any indebtedness of CPA:17
secured by real estate located outside the United States.
2
Cash from Sales. Net cash proceeds realized by CPA: 17 from the sale,
exchange or other disposition of any of its assets located outside the
United States after deduction of all expenses incurred in connection
therewith. Cash from Sales shall not include Cash from Financings.
Cash from Sales and Financings. The total sum of Cash from Sales and
Cash from Financings.
Cause. With respect to the termination of this Agreement, fraud,
criminal conduct, willful misconduct or willful or negligent breach of
fiduciary duty by the Manager that, in each case, is determined by a
majority of the Independent Directors to be materially adverse to CPA: 17,
or a breach of a material term or condition of this Agreement by the
Manager and the Manager has not cured such breach within 30 days of written
notice thereof or, in the case of any breach that cannot be cured within 30
days by reasonable effort, has not taken all necessary action within a
reasonable time period to cure such breach.
Closing Date. The first date on which Shares were issued pursuant to
an Offering.
Code. Internal Revenue Code of 1986, as amended.
Competitive Real Estate Commission. The real estate or brokerage
commission paid for the purchase or sale of a property that is reasonable,
customary and competitive in light of the size, type and location of the
property.
Contract Sales Price. The total consideration received by CPA: 17 for
the sale of a Property.
CPA: 17. Corporate Property Associates 17 - Global Incorporated, a
corporation organized under the laws of the State of Maryland, together
with its consolidated subsidiaries (unless the context otherwise requires).
Cumulative Return. For the period for which the calculation is being
made, the percentage resulting from dividing (A) the total Distributions
for such period (not including Distributions out of Cash from Sales and
Financings), by (B) the product of (i) either (x) until such time as CPA:
17 has invested 90% of the net proceeds of CPA: 17's initial Offering
(excluding net proceeds from the sale of Shares pursuant to CPA: 17's
distribution reinvestment program), the average Adjusted Investor Capital
for such period (calculated on a daily basis) or (y) from and after such
time as CPA: 17 has invested 90% of the net proceeds of CPA: 17's initial
Offering (excluding net proceeds from the sale of Shares pursuant to CPA:
17's distribution reinvestment program), the net proceeds from the sale of
Shares (excluding net proceeds from the sale of Shares pursuant to CPA:
17's distribution reinvestment program), as adjusted for Redemptions other
than Redemptions intended to qualify as a liquidity event for purposes of
this Agreement, and by any other Distributions on or prior to such date
determined by the Board to be from Cash from Sales and Financings, and (ii)
the number of years (including fractions thereof) elapsed during such
period. Notwithstanding the foregoing, neither the Shares
3
received by the Advisor or its Affiliates for any consideration other than
cash, nor the Distributions in respect of such Shares, shall be included in
the foregoing calculation.
Directors. The persons holding such office, as of any particular time,
under the Articles of Incorporation, whether they be the directors named
therein or additional or successor directors.
Distributions. Distributions declared by the Board.
GAAP. Generally accepted accounting principles in the United States.
Good Reason. With respect to the termination of this Agreement, (i)
any failure to obtain a satisfactory agreement from any successor to CPA:
17 or the Operating Partnership to assume and agree to perform CPA: 17's or
the Operating Partnership's, as applicable, obligations under this
Agreement; or (ii) any material breach of this Agreement of any nature
whatsoever by CPA: 17 or the Operating Partnership; provided that (a) such
breach is of a material term or condition of this Agreement and (b) CPA: 17
or the Operating Partnership, as applicable, has not cured such breach
within 30 days of written notice thereof or, in the case of any breach that
cannot be cured within 30 days by reasonable effort, has not taken all
necessary action within a reasonable time period to cure such breach.
Gross Offering Proceeds. The aggregate purchase price of Shares sold
in any Offering.
Independent Appraiser. A qualified appraiser of real estate as
determined by the Board, who is not affiliated, directly or indirectly,
with CPA: 17, the Manager or their respective Affiliates. Membership in a
nationally recognized appraisal society such as the American Institute of
Real Estate Appraisers or the Society of Real Estate Appraisers shall be
conclusive evidence of such qualification.
Independent Director. A Director of CPA: 17 who meets the criteria for
an Independent Director specified in the Bylaws.
Individual. Any natural person and those organizations treated as
natural persons in Section 542(a) of the Code.
Initial Investor Capital. The total amount of capital invested from
time to time by Shareholders (computed at the Original Issue Price per
Share), excluding any Shares received by the Manager, the Advisor or their
respective Affiliates for any consideration other than cash.
Investment. An investment made by CPA:17, directly or indirectly, in a
Property, Loan or, subject to Section 4(b) Other Permitted Investment.
Loan Refinancing Fee. The Loan Refinancing Fee as defined in Section
9(b) hereof.
4
Loans. The notes and other evidences of indebtedness or obligations
acquired or entered into by CPA: 17 as lender which are secured or
collateralized by personal property, or fee or leasehold interests in real
estate or other assets, in each case located outside the United States,
including but not limited to first or subordinate mortgage loans,
construction loans, development loans, loans secured by capital stock or
any other assets or form of equity interest and any other type of loan or
financial arrangement, such as providing or arranging for letters of
credit, providing guarantees of obligations to third parties, or providing
commitments for loans. The term "Loans" shall not include leases, which are
not recognized as leases for Federal income tax reporting purposes.
Long term Net Leased Property. Long term Net Leased Property as
defined under the Advisory Agreement.
Manager. W.P. Xxxxx & Co. B.V., a company organized under the laws of
The Netherlands.
Market Value. The value calculated by multiplying the total number of
outstanding Shares by the average closing price of the Shares over the 30
trading days beginning 180 calendar days after the Shares are first listed
on a national security exchange or included for quotation on Nasdaq, as the
case may be.
Nasdaq. The national automated quotation system operated by the
National Association of Securities Dealers, Inc.
Offering. The offering of Shares pursuant to a Prospectus.
Operating Expenses. All consolidated operating, general and
administrative expenses paid or incurred by CPA: 17, as determined under
GAAP, except the following (insofar as they would otherwise be considered
operating, general and administrative expenses under GAAP): (i) interest
and discounts and other cost of borrowed money; (ii) taxes (including state
and Federal income tax, property taxes and assessments, franchise taxes and
taxes of any other nature); (iii) expenses of raising capital, including
Organization and Offering Expenses, printing, engraving, and other
expenses, and taxes incurred in connection with the issuance and
distribution of CPA: 17's Shares and Securities; (iv) Acquisition Expenses,
real estate commissions on resale of property and other expenses connected
with the acquisition, disposition, origination, ownership and operation of
Investments, including the costs of foreclosure, insurance premiums, legal
services, brokerage and sales commissions, maintenance, repair and
improvement of property; (v) Acquisition Fees payable to the Advisor or any
other party; (vi) Subordinated Disposition Fees payable to the Manager or
any other party under this Agreement and the corresponding fees payable to
the Advisor under the Advisory Agreement or to any other party; (vi)
distributions paid by the Operating Partnership to the Special General
Partner under the agreement of limited partnership of the Operating
Partnership in respect of gains realized on dispositions of Investments;
(vii) amounts paid to effect a redemption or repurchase of the special
general partner interest held by the Special General Partner pursuant to
the agreement of limited partnership of the Operating Partnership; and
(viii) non-cash items, such as depreciation, amortization,
5
depletion, and additions to reserves for depreciation, amortization,
depletion, losses and bad debts. Notwithstanding anything herein to the
contrary, Operating Expenses shall include the Asset Management Fee and any
Loan Refinancing Fee, in each case payable under this Agreement and the
corresponding fees payable under the Advisory Agreement and, solely for the
purposes of determining compliance with the 2%/25% Guidelines,
distributions of profits and cash flow made by the Operating Partnership to
the Special General Partner pursuant to the agreement of limited
partnership of the Operating Partnership, other than distributions
described in clauses (vi) and (vii) of this definition.
Organization and Offering Expenses. Organization and Offering Expenses
as defined under the Advisory Agreement.
Original Issue Price. For any share issued in an Offering, the price
at which such Share was initially offered to the public by CPA: 17,
regardless of whether selling commissions were paid in connection with the
purchase of such Shares from CPA: 17.
Other Permitted Investment Asset. An asset, other than cash, cash
equivalents, short term bonds, auction rate securities and similar short
term investments, acquired by CPA: 17 for investment purposes that is not a
Loan or a Property but that is attributable to an investment or activities
of CPA: 17 outside the United States and is consistent with the investment
objectives and policies of CPA: 17.
Person. An Individual, corporation, partnership, joint venture,
association, company, trust, bank, or other entity, or government or any
agency or political subdivision of a government.
Preferred Return. A Cumulative Return of five percent computed from
the Closing Date through the date as of which such amount is being
calculated.
Property or Properties. CPA: 17's partial or entire interest in real
property (including leasehold interests) located outside the United States
and personal or mixed property connected therewith. An investment which
obligates CPA: 17 to acquire a Property will be treated as a Property for
purposes of this Agreement.
Property Management Fee. A fee for property management services
rendered by the Advisor or its Affiliates in connection with assets of CPA:
17 acquired directly or through foreclosure.
Prospectus. Any prospectus pursuant to which CPA: 17 offers Shares in
a public offering, as the same may at any time and from time to time be
amended or supplemented after the effective date of the registration
statement in which it is included.
Redemptions. An amount determined by multiplying the number of Shares
redeemed by the Original Issue Price.
REIT. A real estate investment trust, as defined in Sections 856-860
of the Code.
6
Securities. Any stock, shares (other than currently outstanding Shares
and subsequently issued Shares), voting trust certificates, bonds,
debentures, notes or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise or in general any instruments
commonly known as "securities" or any certificate of interest, shares or
participation in temporary or interim certificates for receipts (or,
guarantees of, or warrants, options or rights to subscribe to, purchase or
acquire any of the foregoing), which subsequently may be issued by CPA: 17.
Shareholders. Those Persons who at the time any calculation hereunder
is to be made are shown as holders of record of Shares on the books and
records of CPA: 17.
Shares. All of the shares of common stock of CPA: 17, $.001 par value,
and any other shares of common stock of CPA: 17.
"Special General Partner." W. P. Xxxxx Holdings, LLC and any permitted
transferee of the special general partnership interest under the agreement
of limited partnership of the Operating Partnership.
Sponsor. W.P. Xxxxx & Co. LLC and any other Person directly or
indirectly instrumental in organizing, wholly or in part, CPA: 17 or any
person who will control, manage or participate in the management of CPA:
17, and any Affiliate of any such person. Sponsor does not include a person
whose only relationship to CPA: 17 is that of an independent property
manager and whose only compensation is as such. Sponsor also does not
include wholly independent third parties such as attorneys, accountants and
underwriters whose only compensation is for professional services.
Subordinated Acquisition Fee. The Subordinated Acquisition Fee as
defined under the Advisory Agreement.
Subordinated Disposition Fee. The Subordinated Disposition Fee as
defined in Section 9(d) hereof.
Termination Date. The effective date of any termination of this
Agreement.
Two Percent/25% Guidelines. 2%/25% Guidelines." The requirement, as
provided for in Section 13 hereof, that, in any 12-month period ending on
the last day of any fiscal quarter, Operating Expenses under this Agreement
and the Advisory Agreement not exceed the greater of two percent of CPA:
17's Average Invested Assets during such 12-month period or 25% of CPA:
17's Adjusted Net Income over the same 12-month period.
2. APPOINTMENT. CPA: 17 hereby appoints the Manager to serve as its manager
on the terms and conditions set forth in this Agreement, and the Manager hereby
accepts such appointment.
3. DUTIES OF THE MANAGER. During the term of this Agreement, the Manager
agrees, for and in consideration of the compensation set forth below, to
supervise and direct the management and operation of the Properties on behalf of
CPA: 17 and for the account of CPA:
7
17, in an efficient and satisfactory manner consistent with like quality
properties and at all times maintain or contract for systems and personnel
sufficient to enable it to carry out all of its duties, obligations and
functions under this Agreement. In performance of this undertaking, subject to
the supervision of the Board and consistent with the provisions of the Articles
of Incorporation and Bylaws of CPA: 17 and any Prospectus pursuant to which
Shares are offered, the Manager shall, with respect to the Properties, either
directly or by engaging an Affiliate:
(a) demand, collect and receive (i) all rents, utility charges, common
area charges, insurance charges, VAT payments and real estate and personal
property tax and assessment charges, (ii) all other pass-through or xxxx-back
charges, sums, costs or expenses of any nature whatsoever payable by tenants
under the terms of any or all of the leases and any other agreements relating to
all or any portion of the Properties, and (iii) all other revenues, issues and
profits accruing from the Properties and any covenant calculations and insurance
certificates;
(b) calculate and administer rent calculations; maintain and review
tenant covenant calculations; calculate and submit lender covenant calculations;
and maintain letters of credits and security deposit information;
(c) serve as primary contact to all tenants, field inquiries and
requests; process easements and landlord lien waivers; manage third party asset
managers and coordinate loan closings with third party asset managers; inspect
at-risk properties, oversee inspections by lenders and third-party property
inspection firms, and coordinate site visits and reports; ascertain necessary
repair and monitor deferred maintenance, and ensure tenant compliance; schedule
and coordinate tenant improvement projects and leasing efforts; create expense
budgets for vacant properties as needed and pro forma expense budgets for
at-risk properties; assist in executing redevelopment strategies; provide or
source technical expertise when necessary relating to building issues;
formulate, structure and oversee redevelopment projects; and meet with tenants
to discuss potential needs;
(d) assess residual risk and long term viability on all Properties;
perform credit analysis of tenant businesses and economic analysis of holding
and selling Properties; maximize returns for CPA: 17 through early renewals or
sales of Properties; manage bankruptcy process and monitor credit quality of
portfolios; restructure leases as necessary; execute opportunistic mortgage
refinancing; coordinate with annual third party appraisers in valuation process;
and assess and manage market risks and risks associated with legal, tax, and
corporate structure;
(e) supervise the performance of such ministerial and administrative
functions as may be necessary in connection with the daily operations of the
Properties, including but not limited to, overseeing and training for
international compliance functions and staffing; overseeing and ensuring tax,
legal, and regulatory compliance; ensuring timely completion of all obligations
by tenants; and ensuring smooth integration of new investments into asset
management platform;
(f) from time to time, or at any time reasonably requested by the
Board or management of CPA: 17, make reports of its performance of services to
CPA: 17 under this
8
Agreement, including the State of the Assets and bi weekly status reports to be
provided to CPA: 17's management;
(g) provide CPA: 17 with such accounting data and any other
information requested by CPA: 17 concerning the investment activities of CPA: 17
as shall be required to prepare and to file all periodic financial reports and
returns required to be filed with the Securities and Exchange Commission and any
other regulatory agency, including annual financial statements;
(h) perform corporate secretarial work including, but not limited to,
tracking of dates of required filings and annual general meetings for
subsidiaries of CPA: 17; obtaining and coordinating all relevant materials
needed for audit and/or statutory filing, including approvals of financial
information, auditor's representation letters, and minutes and resolutions;
preparing financial analyses of recurring payments; maintaining information for
compliance reports; organizing, planning, and presenting International State of
the Assets meetings; and preparing International Asset Operating Committee
Memos;
(i) do all things necessary to assure its ability to render the
services described in this Agreement;
(j) obtain for, or provide to, CPA: 17 such services as may be
required in disposing of Investments;
Notwithstanding anything to the contrary in this Agreement, CPA: 17
acknowledges that the Manager does not have an office in the United States and
intends to conduct its business in a manner that will not cause Manager to be
deemed to be engaged in a United States trade or business or have a permanent
establishment in the United States.
4. AUTHORITY OF MANAGER.
(a) Pursuant to the terms of this Agreement (and subject to the
restrictions included in Paragraphs (b) of this Section 4 and in Section 7
hereof), and subject to the continuing and exclusive authority of the Board over
the management of CPA: 17, the Board hereby delegates to the Manager the
authority to: (1) arrange for refinancing, or assess changes in the asset or
capital structure of, and dispose of or otherwise deal with, Properties; (2)
enter into leases and service contracts for Properties, and perform other
property level operations; (3) oversee non-affiliated property managers and
other non-affiliated Persons who perform services for CPA: 17; (4) undertake
accounting and other record-keeping functions at the Property level; and (5)
perform its duties set forth in Section 3.
(b) The Manager shall be authorized to perform the services
contemplated by this Agreement with respect to Investments other than Properties
and Loans; provided, however, that if fees for such services will be different
from the fees contemplated by Section 9 of this Agreement, such fees shall be
approved in advance by a majority of the Independent Directors.
(c) The prior approval of the Board, including a majority of the
Independent Directors and a majority of the Directors not interested in the
transaction will be required for: (i) transactions that present issues which
involve conflicts of interest for the Manager or an Affiliate
9
(other than conflicts involving the payment of fees or the reimbursement of
expenses); (ii) the lease of assets to the Sponsor, any Director, the Manager or
any Affiliate of the Manager; (iii) any purchase or sale of an Investment from
or to the Manager or an Affiliate; and (iv) the retention of any Affiliate of
the Manager to provide services to CPA: 17 not expressly contemplated by this
Agreement and the terms of such services by such Affiliate. In addition, the
Manager shall comply with any further approval requirements set forth in the
Bylaws.
(d) The Board may, at any time upon the giving of notice to the
Manager, modify or revoke the authority set forth in this Section 4. If and to
the extent the Board so modifies or revokes the authority contained herein, the
Manager shall henceforth comply with such modification or revocation, provided
however, that such modification or revocation shall be effective upon receipt by
the Manager and shall not be applicable to transactions to which the Manager has
committed CPA: 17 prior to the date of receipt by the Manager of such
notification.
5. BANK ACCOUNTS. The Manager may establish and maintain one or more bank
accounts in its own name. The Manager may establish and maintain one or more
bank accounts for the account of CPA: 17 or in the name of CPA: 17 and may
collect and deposit into any such account or accounts, and disburse from any
such account or accounts, any money on behalf of CPA: 17, provided that no funds
shall be commingled with the funds of the Manager; and the Manager shall from
time to time render appropriate accountings of such collections and payments to
the Board and to the auditors of CPA: 17.
6. RECORDS; ACCESS. The Manager shall maintain appropriate records of all
its activities hereunder and make such records available for inspection by the
Board and by counsel, auditors and authorized agents of CPA: 17, at any time or
from time to time during normal business hours. The Manager shall at all
reasonable times have access to the books and records of CPA: 17.
7. LIMITATIONS ON ACTIVITIES. Anything else in this Agreement to the
contrary notwithstanding, the Manager shall refrain from taking any action
which, in its sole judgment made in good faith, would adversely affect the
status of CPA: 17 as a REIT, subject CPA: 17 to regulation under the Investment
Company Act of 1940, violate any law, rule, regulation or statement of policy of
any governmental body or agency having jurisdiction over CPA: 17, its Shares or
its Securities, or otherwise not be permitted by the Articles of Incorporation
or Bylaws, except if such action shall be ordered by the Board, in which case
the Manager shall notify promptly the Board of the Manager's judgment of the
potential impact of such action and shall refrain from taking such action until
it receives further clarification or instructions from the Board. In such event
the Manager shall have no liability for acting in accordance with the specific
instructions of the Board so given. Notwithstanding the foregoing, the Manager,
its shareholders, directors, officers and employees, and partners, shareholders,
directors and officers of the Manager's partners and Affiliates of any of them,
shall not be liable to CPA: 17, or to the Directors or Shareholders for any act
or omission by the Manager, its partners, directors, officers and employees, or
partners, shareholders, directors or officers of the Manager's partners except
as provided in Sections 18 and 20 hereof.
(a) Notwithstanding the foregoing, the Manager, its shareholders,
directors, officers and employees, and partners, shareholders, directors
and officers of the
10
Manager's shareholders and Affiliates of any of them, shall not be liable
to CPA: 17, the Operating Partnership or to the Directors or Shareholders
for any act or omission by the Manager, its shareholders, directors,
officers and employees, or partners, shareholders, directors or officers of
the Manager's shareholders and Affiliates of any of them if the following
conditions are met:
(a) The Manager, its shareholders, directors, officers and
employees, and partners, shareholders, directors and officers of the
Manager's shareholders and Affiliates of any of them have determined,
in good faith, that the course of conduct which caused the loss or
liability was in the best interests of CPA: 17;
(b) The Manager, its shareholders, directors, officers and
employees, and partners, shareholders, directors and officers of the
Manager's shareholders and Affiliates of any of them were acting on
behalf of or performing services for CPA: 17; and
(c) Such liability or loss was not the result of negligence or
misconduct by the Manager, its shareholders, directors, officers and
employees, and partners, shareholders, directors and officers of the
Manager's shareholders or Affiliates of any of them.
(b) Notwithstanding the foregoing, the Manager and its Affiliates
shall not be indemnified by CPA: 17 or the Operating Partnership for any
losses, liabilities or expenses arising from or out of the alleged
violation of federal or state securities laws unless one or more of the
following conditions are met:
(a) There has been a successful adjudication on the merits of
each count involving alleged securities law violations as to the
particular indemnitee;
(b) Such claims have been dismissed with prejudice on the merits
by a court of competent jurisdiction as to the particular indemnitee;
or
(c) 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 Securities and Exchange Commission
and of the published position of any state securities regulatory
authority in which securities of CPA: 17 were offered or sold as to
indemnification for violation of securities laws.
(c) CPA: 17 and the Operating Partnership shall advance funds to the
Manager or its Affiliates for legal expenses and other costs incurred as a
result of any legal action for which indemnification is being sought only
if all of the following conditions are satisfied:
(a) The legal action relates to acts or omissions with respect to
the performance of duties or services on behalf of CPA: 17;
11
(b) The legal action is initiated by a third party who is not a
Shareholder or the legal action is initiated by a Shareholder acting
in his or her capacity as such and a court of competent jurisdiction
specifically approves such advancement; and
(c) The Manager or the Affiliate undertakes to repay the advanced
funds to CPA: 17, together with the applicable legal rate of interest
thereon, in cases in which such Manager or Affiliate is found not to
be entitled to indemnification.
(d) Notwithstanding the foregoing, the Manager shall not be entitled
to indemnification or be held harmless pursuant to this Section 7 for any
activity which the Manager shall be required to indemnify or hold harmless
CPA: 17 pursuant to Section 22.
(e) Any amounts paid pursuant to this Section 7 shall be recoverable
or paid only out the net assets of CPA: 17 and not from Shareholders.
8. RELATIONSHIP WITH DIRECTORS. There shall be no limitation on any
shareholder, director, officer, employee or Affiliate of the Manager serving as
a Director or an officer of CPA: 17, except that no employee of the Manager or
its Affiliates who also is a Director or officer of CPA: 17 shall receive any
compensation from CPA: 17 for serving as a Director or officer other than for
reasonable reimbursement for travel and related expenses incurred in attending
meetings of the Board; for the avoidance of doubt, the limitations of this
Section 8 shall not apply to any compensation paid by the Manager or any
Affiliate for which CPA: 17 reimbursed the Manager or Affiliate in accordance
with Section 10 hereof.
9. FEES.
(a) Asset Management Fee. CPA: 17 shall pay to the Manager as
compensation for the asset management services rendered to CPA: 17 hereunder an
amount equal to 0.5% of the Average Market Value of a Long-Term Net Leased
Property and 1.75% of the Average Equity Value of a Loan (each, an "Asset
Management Fee"), calculated as set forth below. The Asset Management Fee will
be calculated monthly, beginning with the month in which CPA: 17 and the Manager
execute this Agreement, on the basis of one-twelfth of the applicable Asset
Management Fee for that month, computed as a daily average. The Asset Management
Fee shall be prorated for the number of days during the month that CPA: 17 owns
an Investment.
(b) Loan Refinancing Fee. CPA: 17 shall pay to the Manager for all
qualifying loan refinancings of Properties a Loan Refinancing Fee in the amount
up to one percent of the principal amount of the refinanced loan. Any Loan
Refinancing Fee shall be due and payable upon the funding of the related loan or
as soon thereafter as is reasonably practicable. A refinancing will qualify for
a Loan Refinancing Fee only if the refinanced loan is secured by Property and
(i) the maturity date of the refinanced loan (which must have a term of five
years or more) is less than one year from the date of the refinancing; or (ii)
the terms of the new loan represent, in the judgment of a majority of the
Independent Directors, an improvement
12
over the terms of the refinanced loan; or (iii) the new loan is approved by the
Board, including a majority of the Independent Directors and, in each case, the
Loan Refinancing Fee is found, in the judgment of a majority of the Independent
Directors, to be in the best interest of CPA: 17.
(c) Property Management Fee. No Property Management Fee shall be paid
unless approved by a majority of the Independent Directors.
(d) Subordinated Disposition Fee. If the Manager provides a
substantial amount of services in the sale of an Investment, the Manager shall
be entitled to receive a subordinated disposition fee (the "Subordinated
Disposition Fee") at the time of such disposition, in an amount equal to the
lesser of (1) 50% of the Competitive Real Estate Commission (if applicable) and
(2) 3.0% of the Contract Sales Price of the Investment; provided, however, that
the Subordinated Disposition Fee in respect of Investments that are Loans shall
equal 1.0% of the equity capital invested by CPA: 17 in the Investment. The
total real estate commissions and Subordinated Disposition Fees CPA: 17 pays to
all Persons shall not exceed an amount equal to the lesser of: (1) 6% of the
Contract Sales Price of the Investment or (2) the Competitive Real Estate
Commission. Payment of Subordinated Disposition Fees and accrued interest
thereon, will be subordinated to the Preferred Return and only paid if the
Preferred Return of 5% has been achieved through the end of the prior fiscal
quarter. To the extent that Subordinated Disposition Fees are not paid on a
current basis due to the foregoing limitation, the unpaid fees will be due and
paid at such time as the limitation has been satisfied, together with interest
from the time of disposition of the Investment to which they relate, at the rate
of 5%. The Manager shall present to the Independent Directors such information
as they may reasonably request to review the level of services provided by the
Manager in connection with a disposition and the basis for the calculation of
the amount of the Subordinated Disposition Fees on a quarterly basis. No payment
of Subordinated Disposition Fees shall be made prior to review and approval of
such information by the Independent Directors.
(e) Loans From Affiliates. CPA: 17 shall not borrow funds from the
Manager or its Affiliates unless (A) the transaction is approved by a majority
of the Independent Directors and a majority of the Directors who are not
interested in the transaction as being fair, competitive and commercially
reasonable, (B) the interest and other financing charges or fees received by the
Manager or its Affiliates do not exceed the amount which would be charged by
non-affiliated lending institutions and (C) the terms are not less favorable
than those prevailing for comparable arm's-length loans for the same purpose.
CPA: 17 will not borrow on a long-term basis from the Manager or its Affiliates
unless it is to provide the debt portion of a particular investment and CPA: 17
is unable to obtain a permanent loan at that time or in the judgment of the
Board, it is not in CPA: 17's best interest to obtain a permanent loan at the
interest rates then prevailing and the Board has reason to believe that CPA: 17
will be able to obtain a permanent loan on or prior to the end of the loan term
provided by the Manager or its Affiliates.
(f) Changes To Fee Structure. In the event the Shares are listed on a
national securities exchange or are included for quotation on Nasdaq, CPA: 17
and the Manager shall negotiate in good faith to establish a fee structure
appropriate for an entity with a perpetual life. A majority of the Independent
Directors must approve the new fee structure negotiated with the Manager. In
negotiating a new fee structure, the Independent Directors may consider any of
the factors they deem relevant, including but not limited to: (a) the size of
the Asset Management
13
Fee in relation to the size, composition and profitability of CPA: 17's
portfolio; (b) the rates charged to other REITs and to investors other than
REITs by Managers performing similar services; (c) additional revenues realized
by the Manager and its Affiliates through their relationship with CPA: 17,
including loan administration, underwriting or broker commissions, servicing,
engineering, inspection and other fees, whether paid by CPA: 17 or by others
with whom CPA: 17 does business; (d) the quality and extent of service furnished
by the Manager; (e) the performance of the investment portfolio of CPA: 17,
including income, conversion or appreciation of capital, frequency of problem
investments and competence in dealing with distress situations and (f) the
quality of the portfolio of CPA: 17 in relationship to the portfolio of real
properties owned and managed by W.P. Xxxxx & Co. LLC for its own account. The
new fee structure can be no more favorable to the Manager than the current fee
structure. The Independent Directors shall not approve any new fee structure
that is in their judgment more favorable (taken as a whole) to the Manager than
the current fee structure.
(g) Payment. Compensation payable pursuant to this Section 9 shall be
paid directly to the Manager; provided, however, that any fee payable pursuant
to Section 9 may be paid, at the option of the Manager, in the form of: (i)
cash, (ii) common stock of CPA: 17, or (iii) a combination of cash and common
stock. The Manager shall notify CPA: 17 in writing annually of the form in which
the fee shall be paid. Such notice shall be provided no later than December 31
of the year prior to the year to which such election applies. If no such notice
is provided, the fee shall be paid in cash. For purposes of the payment of
compensation to the Manager in the form of stock, the value of each share of
common stock shall be: (i) the Net Asset Value per Share as determined by the
most recent appraisal of CPA: 17's assets performed by an Independent Appraiser,
or (ii) if an appraisal has not yet been performed, $10 per share. If shares are
being offered to the public at the time a fee is paid with stock, the value
shall be the price of the stock without commissions. The Net Asset Value
determined on the basis of such appraisal may be adjusted on a quarterly basis
by the Board to account for significant capital transactions.
10. EXPENSES. To the extent applicable, in addition to the compensation
paid to the Manager pursuant to Section 9 hereof, the CPA: 17 shall pay directly
or reimburse the Manager for the following expenses:
(i) interest and other costs for borrowed money, including
discounts, points and other similar fees;
(ii) taxes and assessments on income of CPA: 17, to the extent
paid or advanced by the Manager, or on Property and taxes as an expense of
doing business, in each case attributable to Properties or non-United
States activities;
(iii) expenses of managing and operating Properties, whether
payable to an Affiliate of the Manager or a non-affiliated Person;
(iv) fees and expenses of legal counsel for CPA: 17 attributable
to Properties;
14
(v) fees and expense of auditors and accountants for CPA: 17
attributable to Properties;
(vi) expenses related to the Properties and other fees relating
to disposing of investments including personnel and other costs incurred in
transactions relating to Properties where a fee is not payable to the
Manager; and
(vii) all other expenses the Manager incurs in connection with
providing services to CPA: 17 hereunder including reimbursement to the
Manager or its Affiliates for the cost of rent, goods, materials and
personnel incurred by them based upon the compensation of the Persons
involved and an appropriate share of overhead allocable to those Persons as
reasonably determined by the Manager on a basis approved annually by the
Board (including a majority of the Independent Directors).
No reimbursement shall be made for the cost of personnel to the extent that such
personnel are used in transactions for which the Manager receives a separate
fee.
Expenses incurred by the Manager on behalf of CPA: 17 and payable pursuant to
this Section 10 shall be reimbursed quarterly to the Manager within 60 days
after the end of each quarter, subject to the provisions of Section 13 hereof.
The Manager shall prepare a statement documenting the Operating Expenses of CPA:
17 within 45 days after the end of each quarter.
11. OTHER SERVICES. Should the Board request that the Manager or any
partner or employee thereof render services for CPA: 17 other than as set forth
in Section 3 hereof, such services shall be separately compensated and shall not
be deemed to be services pursuant to the terms of this Agreement.
12. FIDELITY BOND. The Manager shall maintain a fidelity bond for the
benefit of CPA: 17 which bond shall insure CPA: 17 from losses of up to
$5,000,000 and shall be of the type customarily purchased by entities performing
services similar to those provided to CPA: 17 by the Manager.
13. LIMITATION ON EXPENSES.
(a) If the aggregate Operating Expenses under this Agreement and the
Advisory Agreement during the 12-month period ending on the last day of any
fiscal quarter of CPA: 17 exceed the greater of (i) two percent of the Average
Invested Assets during the same 12-month period or (ii) 25% of the Adjusted Net
Income of CPA: 17 during the same 12-month period, then subject to paragraph (b)
of this Section 13, such excess amount shall be the sole responsibility of the
Manager and CPA: 17 shall not be liable for payment therefor. CPA: 17 may defer
the payment or distribution to the Advisor and the Special General Partner of
fees, expenses and distributions that would, if paid or distributed, cause
Operating Expenses during such 12-month period to exceed the foregoing
limitations; provided, however, that in determining which items shall be paid
and which may be deferred, priority will be given to the payment of
distributions to the Special General Partner over the payment to the Advisor of
amounts due under this Agreement.
15
(b) Notwithstanding the foregoing, to the extent that the Manager
becomes responsible for any such excess amount as provided in paragraph (a), if
a majority of the Independent Directors finds such excess amount or a portion
thereof justified based on such unusual and non-recurring factors as they deem
sufficient, CPA: 17 shall reimburse the Manager in future quarters for the full
amount of such excess, or any portion thereof, but only to the extent such
reimbursement would not cause CPA: 17's Operating Expenses to exceed the Two
Percent/25% Guidelines in the 12-month period ending on any such quarter. In no
event shall the Operating Expenses paid by CPA: 17 in any 12-month period ending
at the end of a fiscal quarter exceed the Two Percent/25% Guidelines.
(c) Within 60 days after the end of any twelve-month period referred
to in paragraph (a), the Manager shall reimburse CPA: 17 for any amounts
expended by CPA: 17 in such twelve-month period that exceeds the limitations
provided in paragraph (a) unless the Independent Directors determine that such
excess expenses are justified, as provided in paragraph (b), and provided the
aggregate Operating Expenses under this Agreement and the Advisory Agreement for
such later quarter would not thereby exceed the Two Percent/25% Guidelines. To
the extent CPA: 17 is reimbursed for such excess expenses by the Advisor, CPA:
17 shall not also be entitled to reimbursement for such excess from the Manager.
(d) All computations made under paragraphs (a) and (b) of this Section
13 shall be determined in accordance with GAAP applied on a consistent basis.
(e) If the Special General Partner receives distributions pursuant to
the agreement of limited partnership of the Operating Partnership in respect of
realized gains on the disposition of an Investment, Adjusted Net Income, for
purposes of calculating the Operating Expenses, shall exclude the gain from the
disposition of such Investment.
14. OTHER ACTIVITIES OF THE MANAGER. Nothing herein contained shall prevent
the Manager from engaging in other activities, including without limitation
direct investment by the Manager and its Affiliates in assets that would be
suitable for CPA: 17, the rendering of services to other investors (including
other REITs) and the management of other programs advised, sponsored or
organized by the Manager or its Affiliates; nor shall this Agreement limit or
restrict the right of the Manager or any of its Affiliates or of any director,
officer, employee, partner or shareholder of the Manager or its Affiliates to
engage in any other business or to render services of any kind to any other
partnership, corporation, firm, individual, trust or association. The Manager
may, with respect to any investment in which CPA: 17 is a participant, also
render service to each other participant therein. Without limiting the
generality of the foregoing, CPA: 17 acknowledges that the Manager provides or
will provide services to other "Corporate Property Associates" or CPA(R) REIT
funds, whether now in existence or formed hereafter, and that the Manager and
its Affiliates may invest for their own account. The Manager shall be
responsible for promptly reporting to the Board the existence of any actual or
potential conflict of interest that arises that may affect its performance of
its duties under this Agreement.
Neither the Manager nor any Affiliate of the Manager shall be obligated
generally to present any particular investment opportunity to CPA: 17 even if
the opportunity is of a character which, if presented to CPA: 17, could be taken
by CPA: 17.
16
15. RELATIONSHIP OF MANAGER AND COMPANY. CPA: 17 and the Manager agree that
they have not created and do not intend to create by this Agreement a joint
venture or partnership relationship between them and nothing in this Agreement
shall be construed to make them partners or joint venturers or impose any
liability as partners or joint venturers on either of them.
16. TERM; TERMINATION OF AGREEMENT. This Agreement shall continue in force
until September 30, 2008 or until 60 days after the date on which the
Independent Directors shall have notified the Manager of their determination
either to renew this Agreement for an additional one-year period or terminate
this Agreement, as required by CPA:17's Charter.
17. TERMINATION BY COMPANY. At the sole option the Board (including a
majority of the Independent Directors), this Agreement may be terminated
immediately by written notice of termination from CPA: 17 to the Manager upon
the occurrence of events which would constitute Cause or if any of the following
events occur:
(a) If the Manager shall be adjudged bankrupt or insolvent by a court
of competent jurisdiction, or an order shall be made by a court of
competent jurisdiction for the appointment of a receiver, liquidator, or
trustee of the Manager, for all or substantially all of its property by
reason of the foregoing, or if a court of competent jurisdiction approves
any petition filed against the Manager for reorganization, and such
adjudication or order shall remain in force or unstayed for a period of 30
days; or
(b) If the Manager shall institute proceedings for voluntary
bankruptcy or shall file a petition seeking reorganization under the
federal bankruptcy laws, or for relief under any law for relief of debtors,
or shall consent to the appointment of a receiver for itself or for all or
substantially all of its property, or shall make a general assignment for
the benefit of its creditors, or shall admit in writing its inability to
pay its debts, generally, as they become due.
Any notice of termination under Section 16 or 17 shall be effective on
the date specified in such notice, which may be the day on which such notice is
given or any date thereafter. The Manager agrees that if any of the events
specified in Section 17(a) or (b) shall occur, it shall give written notice
thereof to the Board within 15 days after the occurrence of such event.
18. TERMINATION BY EITHER PARTY. This Agreement may be terminated
immediately without penalty (but subject to the requirements of Section 20
hereof) by the Advisor by written notice of termination to CPA: 17 upon the
occurrence of events which would constitute Good Reason or by CPA: 17 without
cause or penalty (but subject to the requirements of Section 20 hereof) by
action of a majority of the Independent Directors or by action of a majority of
the Shareholders, in either case upon 60 days' written notice.
19. ASSIGNMENT PROHIBITION. This Agreement may not be assigned by the
Manager without the approval of the Board (including a majority of the
Independent Directors); provided, however, that such approval shall not be
required in the case of an assignment to a corporation, partnership,
association, trust or organization which may take over the assets and carry on
the affairs of the Manager, provided: (i) that at the time of such assignment,
such successor
17
organization shall be owned substantially by an entity directly
or indirectly controlled by the Sponsor and only if such entity has a net worth
of at least $5,000,000, and (ii) that the board of directors of the Manager
shall deliver to the Board a statement in writing indicating the ownership
structure and net worth of the successor organization and a certification from
the new Manager as to its net worth. Such an assignment shall bind the assignees
hereunder in the same manner as the Manager is bound by this Agreement. The
Manager may assign any rights to receive fees or other payments under this
Agreement without obtaining the approval of the Board. This Agreement shall not
be assigned by CPA: 17 without the consent of the Manager, except in the case of
an assignment by CPA: 17 to a corporation or other organization which is a
successor to CPA: 17, in which case such successor organization shall be bound
hereunder and by the terms of said assignment in the same manner as CPA: 17 is
bound by this Agreement.
20. PAYMENTS TO AND DUTIES OF MANAGER UPON TERMINATION.
(a) After the Termination Date, the Manager shall not be entitled to
compensation for further services hereunder but shall be entitled to receive
from CPA: 17 the following:
(i) all unpaid reimbursements of Operating Expenses payable to
the Manager;
(ii) all earned but unpaid Asset Management Fees payable to the
Manager prior to the Termination Date;
(iii) all earned but unpaid Subordinated Disposition Fees payable
to the Advisor relating to the sale of any Property prior to the
Termination Date; and
(iv) all earned but unpaid Loan Refinancing Fees.
Notwithstanding the foregoing, if this Agreement is terminated by CPA: 17 for
Cause, or by the Manager for other than Good Reason, the Manager will not be
entitled to receive the sums in Section 18(a) above.
(b) Any and all amounts payable to the Advisor pursuant to Section
20(a) and Section 20(c) that, irrespective of the termination, were payable on a
current basis prior to the Termination Date either because they were not
subordinated or all conditions to their payment had been satisfied, shall be
paid within 90 days after the Termination Date. All other amounts payable to the
Advisor pursuant to Section 20(a) and Section 20(c) shall be paid in a manner
determined by the Board, but in no event on terms less favorable to the Advisor
than those represented by a note (i) maturing upon the liquidation of CPA: 17 or
the Operating Partnership or three years from the Termination Date, whichever is
earlier, (ii) with no less than twelve equal quarterly installments and (iii)
bearing a fair, competitive and commercially reasonable interest rate (the
"Note"). The Note, if any, may be prepaid by the Operating Partnership at any
time prior to maturity with accrued interest to the date of payment but without
premium or penalty. Notwithstanding the foregoing, any amounts that relate to
Investments (i) shall be an amount which provides compensation to the Advisor
only for that portion of the holding period for the respective Investments
during which the Advisor provided services to CPA: 17, (ii) shall not be due and
payable until the Investment to which such amount relates is sold or refinanced,
and
18
(iii) shall not bear interest until the Investment to which such amount relates
is sold or refinanced. A portion of the amount shall be paid as each Investment
owned by CPA: 17 on the Termination Date is sold. The portion of such amount
payable upon each such sale shall be equal to (i) such amount multiplied by (ii)
the percentage calculated by dividing the fair value (at the Termination Date)
of the Investment sold by CPA: 17 divided by the total fair value (at the
Termination Date) of all Investments owned by CPA: 17 on the Termination Date.
(c) The Manager shall promptly upon termination:
(i) pay over to the Operating Partnership all money collected and
held for the account of CPA: 17 pursuant to this Agreement, after deducting
any accrued compensation and reimbursement for its expenses to which it is
then entitled;
(ii) deliver to the Board a full accounting, including a
statement showing all payments collected by it and a statement of all money
held by it, covering the period following the date of the last accounting
furnished to the Board;
(iii) deliver to the Board all assets, including Properties, and
documents of CPA: 17 then in the custody of the Manager; and
(iv) cooperate with CPA: 17 to provide an orderly management
transition.
21. INDEMNIFICATION BY CPA: 17.
(a) Neither CPA: 17 nor the Operating Partnership shall indemnify the
Manager or any of its Affiliates for any loss or liability suffered by the
Manager or the Affiliate, or hold the Manager or the Affiliate harmless for any
loss or liability suffered by CPA: 17, except as permitted under Section 7.
(i) The Manager or Affiliate has determined, in good faith, that
the course of conduct which caused the loss or liability was in the best
interests of CPA: 17;
(ii) The Manager or the Affiliate was acting on behalf of or
performing services for CPA: 17; and
22. INDEMNIFICATION BY MANAGER. The Manager shall indemnify and hold
harmless CPA: 17 and the Operating Partnership from liability, claims, damages,
taxes or losses and related expenses including attorneys' fees, to the extent
that such liability, claims, damages, taxes or losses and related expenses are
not fully reimbursed by insurance and are incurred by reason of the Manager's
bad faith, fraud, willful misfeasance, misconduct, negligence or reckless
disregard of its duties.
23. NOTICES. Any notice, report or other communication required or
permitted to be given hereunder shall be in writing unless some other method of
giving such notice, report or other communication is accepted by the party to
whom it is given, and shall be given by being delivered by hand or by overnight
mail or other overnight delivery service to the addresses set forth herein:
19
To the Board, CPA: 17 and Corporate Property Associates 17 Global -
the Operating Partnership: Incorporated
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
To the Manager: W.P. Xxxxx & Co. B.V.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Either party may at any time give notice in writing to the other party of a
change in its address for the purposes of this Section 21.
24. MODIFICATION. This Agreement shall not be changed, modified,
terminated, or discharged, in whole or in part, except by an instrument in
writing signed by both parties hereto, or their respective successors or
assignees.
25. SEVERABILITY. The provisions of this Agreement are independent of and
severable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part.
26. CONSTRUCTION. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of New York.
27. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof. The express terms hereof
control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing.
28. INDULGENCES, NOT WAIVERS. Neither the failure nor any delay on the part
of a party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
29. GENDER. Words used herein regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires.
20
30. TITLES NOT TO AFFECT INTERPRETATION. The titles of Sections and
subsections contained in this Agreement are for convenience only, and they
neither form a part of this Agreement nor are they to be used in the
construction or interpretation hereof.
31. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
32. NAME. W.P. Xxxxx & Co. LLC has a proprietary interest in the name
"Corporate Property Associates" and "CPA(R)." Accordingly, and in recognition of
this right, if at any time CPA: 17 ceases to retain W.P. Xxxxx & Co. B.V., or an
Affiliate thereof to perform the services of Manager, CPA: 17 will, promptly
after receipt of written request from W.P. Xxxxx & Co. B.V., cease to conduct
business under or use the name "Corporate Property Associates" or "CPA(R)" or
any diminutive thereof and CPA: 17 shall use its best efforts to change the name
of CPA: 17 to a name that does not contain the name "Corporate Property
Associates" or "CPA(R)" or any other word or words that might, in the sole
discretion of the Manager, be susceptible of indication of some form of
relationship between CPA: 17 and the Manager or any Affiliate thereof.
Consistent with the foregoing, it is specifically recognized that the Manager or
one or more of its Affiliates has in the past and may in the future organize,
sponsor or otherwise permit to exist other investment vehicles (including
vehicles for investment in real estate) and financial and service organizations
having "Corporate Property Associates" or "CPA(R)" as a part of their name, all
without the need for any consent (and without the right to object thereto) by
CPA: 17 or its Directors.
21
IN WITNESS WHEREOF, the parties hereto have executed this Asset Management
Agreement as of the day and year first above written.
CORPORATE PROPERTY ASSOCIATES 17- GLOBAL
INCORPORATED
By: /s/ Xxxxxx X. XxXxx
-------------------------------------
Name: Xxxxxx X. XxXxx
Title: President and Chief Executive
Officer
CPA: 17 LIMITED PARTNERSHIP
By: Corporate Property Associates 17-
Global Incorporated, its general partner
By: /s/ Xxxxxx X. XxXxx
-------------------------------------
Name: Xxxxxx X. XxXxx
Title: President and Chief Executive
Officer
W.P. XXXXX & CO. B.V.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director
By: /s/ Xxxxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Managing Director
By: /s/ Xxxxxxx xxx Xxxxxx
-------------------------------------
Name: Xxxxxxx xxx Xxxxxx
Title: Managing Director
22
