FORM OF SELECTED INVESTMENT ADVISOR AGREEMENT
Exhibit 10.6
THIS SELECTED INVESTMENT ADVISOR AGREEMENT (the “Agreement”) is made and entered into as of
the day indicated on Exhibit A attached hereto and by this reference incorporated herein, by and
among CORPORATE PROPERTY ASSOCIATES 17 — GLOBAL INCORPORATED, a Maryland corporation (the
“Company”), XXXXX FINANCIAL, LLC, a Delaware limited liability company (the “Dealer Manager”), and
the selected investment advisor (the “SIA”) identified in Exhibit A hereto.
WHEREAS, the Company is offering shares of the Company (the “Shares”) to the general public,
pursuant to a public offering (the “Offering”) of the Shares pursuant to a Prospectus (as defined
below) filed with the Securities and Exchange Commission (the “SEC”); and
WHEREAS, the Dealer Manager has agreed to use its best efforts to sell the Shares; and
WHEREAS, the SIA is an entity, as designated in Exhibit A hereto, organized and presently in
good standing in the state or states designated in Exhibit A hereto, and presently registered as an
investment advisor under the Investment Advisers Act of 1940, as amended (the “Act”); and
WHEREAS, the Company has a currently effective registration statement on Form S-11 (File No.
333-170225), including a final prospectus, for the registration of the Shares under the Securities
Act of 1933, as amended (such registration statement, as it may be amended, and the prospectus and
exhibits on file with the SEC, as well as any post-effective amendments or supplements to such
registration statement and any related registration statement filed under Rule 462(b) of the
Securities Act of 1933, as amended, and any prospectus relating to such registration statements,
being herein respectively referred to as the “Registration Statement” and the “Prospectus”); and
WHEREAS, the offer and sale of the Shares shall be made pursuant to the terms and conditions
of the Registration Statement and the Prospectus and, further, pursuant to the terms and conditions
of all applicable federal securities laws and the applicable securities laws of all states in which
the Shares are offered and sold; and
WHEREAS, the SIA is willing and desires to provide its clients with information concerning the
Shares and the procedures for subscribing for the Shares upon the terms and conditions herein set
forth;
NOW, THEREFORE, in consideration of the premises and terms and conditions herein contained, it
is agreed between the Company, the Dealer Manager and the SIA as follows.
1. Purchase of Shares.
(a) The SIA hereby covenants, warrants and agrees that, in regard to any purchase of the
Shares by its clients, it will comply with all of the terms and conditions of the Registration
Statement and the Prospectus, all applicable state and federal laws, including Securities Act of
1933, as amended, the Act, and any and all regulations and rules pertaining thereto, heretofore or
hereafter issued by the SEC. Neither the SIA nor any other person shall have any authority to give
any information or make any representations in connection with the Shares other than as contained
in the Registration Statement and Prospectus, as amended and supplemented, and as is otherwise
expressly authorized in writing by the Dealer Manager.
(b) Clients of the SIA, or the SIA on behalf of its clients, may, following receipt of written
notice by the SIA from the Dealer Manager of the effective date of the Registration Statement,
purchase the Shares according to all such terms as are contained in the Registration Statement and
the Prospectus. The SIA shall comply with all requirements set forth in the Registration Statement
and the Prospectus. The SIA shall use and distribute, in connection with the Shares, only the
Prospectus and, if necessary, any separate prospectus relating solely to the Company’s Distribution
Reinvestment and Stock Purchase Plan (“DRIP”), and such sales literature and advertising materials
which shall conform in all respects to any restrictions of local law and the applicable
requirements of the Securities Act of 1933, as amended, and which has been approved in writing by
the Dealer Manager. The Dealer Manager reserves the right to establish such additional procedures
as it may deem necessary to ensure compliance with the requirements of the Registration Statement
and the Prospectus, and the SIA shall comply with all such additional procedures to the extent that
it has received written notice thereof.
(c) All monies received for purchase of any of the Shares shall be forwarded by the SIA to the
Company for delivery to Phoenix American Financial Services Inc. (“Phoenix”). Subscriptions will
be executed as described in the Registration Statement or as directed by the Company. Each SIA
receiving a subscriber’s check will deliver such check to Phoenix no later than the close of
business of the first business day after receipt of the subscription documents by the SIA.
(d) During the full term of this Agreement the Dealer Manager shall have full authority to
take such action as it may deem advisable in respect to all matters pertaining to the performance
of the SIA under this Agreement.
(e) The Shares may be purchased by clients of the SIA only where the Shares may be legally
offered and sold, only by such persons in such states who shall be legally qualified to purchase
the Shares, and only by such persons in such states in which the SIA is registered as an investment
advisor or exempt from any applicable registration requirements.
(f) The SIA shall have no obligation under this Agreement to purchase on its clients’ behalf,
or advise its clients to purchase, any of the Shares.
(g) The SIA will use every reasonable effort to assure that Shares are purchased only by
clients who:
(i) meet the investor suitability standards, including the minimum income and net worth
standards established by the Company and set forth in the Prospectus, and minimum purchase
requirements set forth in the Registration Statement;
(ii) can reasonably benefit from an investment in the Company based on each prospective
client’s overall investment objectives and portfolio structure;
(iii) are able to bear the economic risk of the investment based on each prospective client’s
overall financial situation; and
(iv) have an apparent understanding of: (a) the fundamental risks of the investment; (b) the
risk that the prospective client may lose the entire investment; (c) the lack of liquidity of the
Shares; (d) the restrictions on transferability of the Shares; (e) the background and
qualifications of the employees and agents of Xxxxx Asset Management Corp., the advisor to the
Company; and (f) the tax consequences of an investment in the Shares.
(h) The SIA will make the determinations required to be made by it pursuant to subparagraph
(g) above based on information it has obtained from each prospective client, including, at a
minimum, but not limited to, the prospective client’s age, investment objectives, investment
experience, income, net worth, financial situation, other investments of the prospective client, as
well as any other pertinent factors deemed by the SIA to be relevant.
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(i) In addition to complying with the provisions of subparagraph (g) above, and not in
limitation of any other obligations of the SIA to determine suitability imposed by state or federal
law, the SIA agrees that it will comply fully with the following provisions:
(i) The SIA shall have reasonable grounds to believe, based upon information provided by the
client concerning such client’s investment objectives, other investments, financial situation and
needs, and upon any other information known by the SIA, that (A) each client of the SIA that
purchases Shares is or will be in a financial position appropriate to enable such client to realize
to a significant extent the benefits (including tax benefits) of an investment in the Shares, (B)
each client of the SIA that purchases Shares has a fair market net worth sufficient to sustain the
risks inherent in an investment in the Shares (including potential loss of investment and lack of
liquidity), and (C) the Shares otherwise are or will be a suitable investment for each client of
the SIA that purchases Shares, and the SIA shall maintain files disclosing the basis upon which the
determination of suitability was made;
(ii) The SIA shall not execute any transaction involving the purchase of Shares in a
discretionary account without prior written approval of the transaction by the client;
(iii) The SIA shall have reasonable grounds to believe, based upon the information made
available to it, that all material facts are adequately and accurately disclosed in the
Registration Statement and provide a basis for evaluating the Shares;
(iv) In making the determination set forth in subparagraph (iii) above, the SIA shall evaluate
items of compensation, physical properties, tax aspects, financial stability and experience of the
sponsor, conflicts of interest and risk factors, appraisals, as well as any other information
deemed pertinent by it;
(v) The SIA shall inform each prospective nondiscretionary client of all pertinent facts
relating to the liquidity and marketability of the Shares.
(j) The SIA agrees to retain in its files, for a period of at least six years, information
which will establish that each purchaser of Shares falls within the permitted class of investors.
(k) The SIA either (i) shall not purchase shares for its own account or (ii) shall hold for
investment any Shares purchased for its own account.
(l) The SIA hereby confirms that it is familiar with Securities Act Release No. 4968 and Rule
15c2-8 under the Securities Exchange Act of 1934, as amended, relating to the distribution of
preliminary and final prospectuses, and confirms that it has complied and will comply therewith.
(m) A sale of Shares shall be deemed to be completed only after the Company receives a
properly completed subscription agreement for Shares from the SIA evidencing the fact that the
client had received a final Prospectus for a period of not less than five full business days,
together with payment of the full purchase price of each purchased Share from a buyer who satisfies
each of the terms and conditions of the Registration Statement and Prospectus, and only after such
subscription agreement has been accepted in writing by the Company. The Company and the Dealer
Manager reserve the right to reject any transaction with a buyer, or freeze, reject or block the
assets of a buyer, that violates applicable anti-money laundering, economic sanctions, or other
laws and regulations.
(n) Clients of a SIA who are not being charged direct transaction based fees in connection
with the purchase of the Shares by such SIA, shall purchase the Shares net of 6.5% selling
commissions, at a per Share purchase price of $9.35.
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2. Compensation to SIA. The Company and the Dealer Manager shall pay no fees,
commissions, or other compensation to the SIA.
3. Association of the Dealer Manager with Other Advisors and Dealers. It is expressly
understood between the Dealer Manager and the SIA that the Dealer Manager may cooperate with
broker-dealers who are registered as broker-dealers with the Financial Industry Regulatory
Authority, Inc. (the “FINRA”) or with other investment advisors registered under the Act. Such
broker-dealers and investment advisors may enter into agreements with the Dealer Manager on terms
and conditions identical or similar to this Agreement and shall receive such rates of commission or
other fees as are agreed to between the Dealer Manager and the respective broker-dealers and
investment advisors and as are in accordance with the terms of the Registration Statement.
4. Conditions of the SIA’s Obligations. The SIA’s obligations hereunder are subject,
during the full term of this Agreement and the Offering, to (a) the performance by the Dealer
Manager of its obligations hereunder and compliance by the Dealer Manager with the covenants set
forth in Section 7 hereof; and (b) the conditions that: (i) the Registration Statement shall become
and remain effective; and (ii) no stop order shall have been issued suspending the effectiveness of
the Offering.
5. Conditions to the Dealer Manager’s Obligations. The obligations of the Dealer
Manager hereunder are subject, during the full term of this Agreement and the Offering, to the
conditions that: (a) at the effective date of the Registration Statement and thereafter during the
term of this Agreement while any Shares remain unsold, the Registration Statement shall remain in
full force and effect authorizing the offer and sale of the Shares; (b) no stop order suspending
the effectiveness of the Offering or other order restraining the offer or sale of the Shares shall
have been issued nor proceedings therefor initiated or threatened by any state regulatory agency or
the SEC; and (c) the SIA shall have satisfactorily performed all of its obligations hereunder and
complied with the covenants set forth in Section 6 hereof.
6. Covenants of the SIA. The SIA covenants, warrants and represents, during the full
term of this Agreement, that:
(a) The SIA is registered as an investment advisor under the Act.
(b) Neither the SIA nor any person associated with the SIA is registered as a broker-dealer or
registered representative with the FINRA.
(c) The SIA shall comply with all applicable federal and state securities laws, including,
without limitation, the disclosure requirements of the Act, and the provisions thereof requiring
disclosure of the existence of this Agreement and the compensation to be paid to the SIA hereunder.
(d) The SIA shall maintain the records required by Section 204 of the Act, and Rule 204-2
thereunder in the form and for the periods required thereby.
(e) The SIA has adopted and implemented an anti-money laundering program pursuant to Section
352 of the USA PATRIOT Act of 2001; the SIA has adopted and implemented a customer identification
program (“CIP”), in compliance with 31 C.F.R. §103.122 (the “CIP Rule”); the SIA (or its agent)
will perform the identification, verification, notice and documentation requirements with respect
to each investor, as required by the CIP Rule; further, the SIA will comply with applicable
economic sanctions regimes, including the laws, regulations and Executive Orders administered by
the U.S. Department of Treasury’s Office of Foreign Assets Control, including the list of Specially
Designated Nationals and Blocked Persons.
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7. Covenants of the Dealer Manager. The Dealer Manager covenants, warrants and
represents, during the full term of this Agreement, that:
(a) The Dealer Manager shall inform the SIA whenever and as soon as it receives or learns of
any order issued by the SEC, any state regulatory agency or any other regulatory agency which
suspends the effectiveness of the Registration Statement or prevents the use of the Prospectus or
which otherwise prevents or suspends the offering or sale of the Shares, or receives notice of any
proceedings regarding any such order.
(b) The Dealer Manager shall give the SIA written notice when the Registration Statement
becomes effective and shall deliver to the SIA such number of copies of the Prospectus, and any
supplements and amendments thereto, which are finally approved by the SEC, as the SIA may
reasonably request for sale of the Shares.
(c) The Dealer Manager shall promptly notify the SIA of any post-effective amendments or
supplements to the Registration Statement or Prospectus, and shall furnish the SIA with copies of
any revised Prospectus and/or supplements and amendments to the Prospectus and/or any prospectus
relating solely to the DRIP.
8. Payment of Costs and Expenses. The SIA shall pay all costs and expenses incident to
the performance of its obligations under this Agreement.
9. Indemnification.
(a) The SIA agrees to indemnify, defend and hold harmless the Company, the Dealer Manager,
their affiliates and their or its officers, directors, trustees, employees and agents, against all
losses, claims, demands, liabilities and expenses, joint or several, including reasonable legal and
other expenses incurred in defending such claims or liabilities, whether or not resulting in any
liability to the Company, the Dealer Manager, their affiliates and their or its officers,
directors, trustees, employees or agents, which they or any of them may incur arising out of (i)
the offer or sale (as such term is defined in the Securities Act of 1933, as amended) by the SIA,
or any person acting on its behalf, of any Shares pursuant to this Agreement, if such loss, claim,
demand, liability, or expense arises out of or is based upon an untrue statement or alleged untrue
statement of a material fact, or any omission or alleged omission of a material fact, other than a
statement, omission, or alleged omission by the SIA which is also, as the case may be, contained in
or omitted from the Prospectus or the Registration Statement and which statement or omission was
not based on information supplied to the Company or the Dealer Manager by such SIA; (ii) the breach
by the SIA, or any person acting on its behalf, of any of the terms and conditions of this
Agreement; or (iii) the negligence, malpractice or malfeasance of the SIA. This indemnity provision
shall survive the termination of this Agreement.
(b) The Company and the Dealer Manager agree to indemnify, defend and hold harmless the SIA,
its officers, directors, employees and agents, against all losses, claims, demands, liabilities and
expenses, including reasonable legal and other expenses incurred in defending such claims or
liabilities, which they or any of them may incur, including, but not limited to, alleged violations
of the Securities Act of 1933, as amended, but only to the extent that such losses, claims,
demands, liabilities and expenses shall arise out of or be based upon (i) any untrue statement of a
material fact contained in the Registration Statement, at the time it became effective with the SEC
or in the Prospectus (as from time to time amended or supplemented), or (ii) any omission or
alleged omission to state therein a material fact required to be stated in the Prospectus or the
Registration Statement at the time it became effective or necessary to make such statements, and
any part thereof, not misleading; provided, further, that any such untrue statement, omission or
alleged omission is not based on information included in any such document which was supplied to
the Company or the Dealer
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Manager, or any officer of the Company or the Dealer Manager by such SIA; provided that in
each case that such claims or liabilities did not arise from SIA’s own negligence, malpractice or
malfeasance. This indemnity provision shall survive the termination of this Agreement.
(c) No indemnifying party shall be liable under the indemnity provisions contained in
subparagraphs (a) and (b) above unless the party to be indemnified shall have notified such
indemnifying party in writing promptly after the summons or other first legal process giving
information of the nature of the claim served upon the party to be indemnified, but failure to
notify an indemnifying party of any such claim shall not relieve it from any liabilities which it
may have to the indemnified party against whom action is brought other than on account of its
indemnity provision contained in subparagraphs (a) and (b) above. In the case of any such claim, if
the party to be indemnified notified the indemnifying party of the commencement thereof as
aforesaid, the indemnifying party shall be entitled to participate at its own expense in the
defense of such claim. If it so elects, in accordance with arrangements satisfactory to any other
indemnifying party or parties similarly notified, the indemnifying party has the option to assume
the entire defense of the claim, with counsel who shall be reasonably satisfactory to such
indemnified party and all other indemnified parties who are defendants in such action, unless such
indemnified parties reasonably objects to such assumption on the ground that there may be legal
defenses available to it 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.
10. Term of Agreement. This Agreement shall become effective on the date on which this
Agreement is executed by the Company, the Dealer Manager and the SIA. The SIA, the Company and the
Dealer Manager may prevent this Agreement from becoming effective, without liability to any other
party to this Agreement, by written notice before the time this Agreement otherwise would become
effective. After this Agreement becomes effective, any party may terminate it at any time for any
reason by giving thirty (30) days’ written notice to the other party; provided, however, that this
Agreement shall in any event automatically terminate at the first occurrence of any of the
following events: (a) the Registration Statement for the offer and sale of the Shares shall cease
to be effective; (b) the Offering shall be terminated; or (c) the SIA’s license or registration to
act as an investment advisor shall be revoked or suspended by any federal, self-regulatory or state
agency and such revocation or suspension is not cured within ten (10) days from the date of such
occurrence. In any event, this Agreement shall be deemed suspended during any period for which such
license or registration is revoked or suspended.
11. Notices. All notices and communications hereunder shall be in writing and shall be
deemed to have been given and delivered when deposited in the United States mail, postage prepaid,
registered or certified mail, to the applicable address set forth below.
If sent to the Company:
CORPORATE
PROPERTY ASSOCIATES 17 — GLOBAL INCORPORATED
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
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Attention: Office of the General Counsel-Xxxx Xxxxx, Esq.
XXXXX FINANCIAL, LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Office of the General Counsel-Xxxxxxx X. Xxxxx, Esq.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Office of the General Counsel-Xxxxxxx X. Xxxxx, Esq.
If sent to the SIA: to the person whose name and address are identified in Exhibit A hereto.
12. Successors. This Agreement shall be binding upon and inure to the benefit of the
parties hereto, and shall not be assigned or transferred by the SIA by operation of law or
otherwise.
13. Miscellaneous.
(a) In order to meet its obligations under Federal law, the Dealer Manager or its designee may
obtain, verify, and record information that identifies the SIA and any person acting on the SIA’s
behalf, including the information provided in Exhibit A of this Agreement, and may ask to see
identifying documents or utilize various databases for this purpose.
(b) This Agreement shall be construed in accordance with the applicable laws of the State of
New York.
(c) Nothing in this Agreement shall constitute the SIA as in association with or in
partnership with the Company or the Dealer Manager.
(d) 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.
(e) This Agreement, including Exhibit A hereto, embodies the entire understanding, between the
parties to the Agreement, and no variation, modification or amendment to this Agreement shall be
deemed valid or effective unless it is in writing and signed by all the parties hereto.
(f) If any provision of this Agreement shall be deemed void, invalid or ineffective for any
reason, the remainder of the Agreement shall remain in full force and effect.
(g) This Agreement may be executed in counterpart copies, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument comprising this
Agreement.
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Exhibit 10.6
IN WITNESS WHEREOF, the parties have executed this Agreement on the date and year indicated on
Exhibit A hereto.
COMPANY
CORPORATE PROPERTY ASSOCIATES 17 — GLOBAL
INCORPORATED
| By: | |
| Print Name: | |
| Title: | |
| Witness: | |
DEALER MANAGER
XXXXX FINANCIAL, LLC
| By: | |
| Print Name: | |
| Title: | |
| Witness: | |
SELECTED INVESTMENT ADVISOR
| Name of SIA: | |
| By: | |
| Print Name: | |
| Title: | |
| Witness: | |
EXHIBIT A TO SELECTED INVESTMENT ADVISOR AGREEMENT
This Exhibit A is attached to and made a part of that certain Selected Investment Advisor
Agreement (the “Agreement”), dated as of the ________day of __________by and among Corporate
Property Associates 17 — Global Incorporated, as Company, Xxxxx Financial, LLC, as Dealer Manager
and_______________, as Selected Investment Advisor.
1.
|
Date of Agreement: | |||
2.
|
Identity of Selected Investment Advisor: | |||
| Name: | ||||
| Address (i.e., principal place of business, local office or other physical location): | ||||
| Taxpayer Identification Number: | ||||
| Type of Entity: | ||||
| (To be completed by the Selected Investment Advisor, e.g., corporation, partnership or sole proprietorship.) | ||||
| State Organized in: | ||||
| (To be completed by Selected Investment Advisor) | ||||
Qualified To Do Business and in Good Standing in the Following Jurisdictions (including your state
of organization). (Note: Qualification to do business in any jurisdiction is generally a
requirement imposed by the secretary of state or other authority of jurisdictions in which you do
business, and is not related to your holding a license as an investment advisor in such
jurisdictions. Questions concerning this matter should be directed to you or your legal counsel.)
(To be completed by the Selected Investment Advisor)
Registered as an Investment Advisor in The Following States:
(To be completed by the Selected Investment Advisor)
| 3. | Name and Address for Notice Purposes (see Section 11 of Agreement): | |||
| Name: | ||||
| Title: | ||||
| Company: | ||||
| Address: | ||||
| City, State and Zip: Telephone Number (including area code): | ||||
| 4. | Please complete the following for our records: | |||
| (a) | How many registered investment advisors are with your firm? | |||
| PLEASE ENCLOSE A CURRENT LIST. ALL INFORMATION WILL BE HELD IN CONFIDENCE. | ||||
Exhibit A to
Selected Investment Advisor Agreement
Selected Investment Advisor Agreement
| (b) | Does your firm publish a newsletter? Yes No | ||
| What is/are the frequency of the publication(s)? |
| Weekly Monthly Quarterly | |||
| Bi-weekly Bi-monthly Other (please specify) |
| PLEASE PLACE CORPORATE PROPERTY ASSOCIATES 17 — GLOBAL INCORPORATED AND XXXXX FINANCIAL, LLC ON YOUR MAILING LIST AND PROVIDE A SAMPLE OF THE PUBLICATION IF AVAILABLE. | |||
| (c) | Does your firm have regular internal mailings, or bulk package mailings to its registered investment advisors? |
| Yes No |
| PLEASE PLACE CORPORATE PROPERTY ASSOCIATES 17 — GLOBAL INCORPORATED AND XXXXX FINANCIAL, LLC ON YOUR MAILING LIST AND PROVIDE A SAMPLE OF THE PUBLICATION IF AVAILABLE. | |||
| (d) | Does your firm have a computerized electronic mail (E-Mail) system for your registered investment advisors? |
Yes _____No _____
| If so, please provide e-mail address: |
| (e) Website address: |
| Person responsible: |
Exhibit A to
Selected Investment Advisor Agreement
Selected Investment Advisor Agreement
