Exhibit 10.1
Xxxxx Financial, LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
CORPORATE PROPERTY ASSOCIATES 17 - GLOBAL INCORPORATED
FORM OF AMENDED SELECTED DEALER AGREEMENT
Ladies/Gentlemen:
We have agreed to use our best efforts to sell, along with a group of
selected dealers (collectively, the "Selected Dealers") to be formed with our
assistance, up to 250,000,000 shares of common stock, par value $0.001 per share
(each a "Share," and collectively, the "Shares") of Corporate Property
Associates 17 - Global Incorporated (the "Company"), of which 50,000,000 Shares
are being offered pursuant to the Company's Distribution Reinvestment and Stock
Purchase Plan (the "DRIP"). The Shares are being offered by us, as Sales Agent
for the Company, and by the Selected Dealers. The terms of the offering of the
Shares (the "Offering") are more fully described in the enclosed prospectus (the
"Prospectus"), receipt of which you hereby acknowledge.
We are hereby inviting you to act as a Selected Dealer for the Offering,
subject to the other terms and conditions set forth below. You hereby confirm
that you are a member in good standing of Financial Industry Regulatory
Authority "FINRA"), that you have complied with all applicable federal and state
broker-dealer registration requirements and that you are not a "discount broker"
as that term is commonly understood in the brokerage industry. Upon execution of
this Amended Selected Dealer Agreement (the "Selected Dealer Agreement"), you
agree to be bound by the terms and conditions of the Sales Agency Agreement
between us, as Sales Agent and the Company (the "Sales Agency Agreement") (to
the extent such terms apply to the Selected Dealers), a copy of which is
attached hereto as Exhibit A and of which this Selected Dealer Agreement is a
part.
Capitalized terms used herein and not otherwise defined herein shall have
the same meaning as in the Sales Agency Agreement.
Upon notification by us, you may offer the Shares at the public offering
price stated in the Prospectus, subject to the terms and conditions hereof. The
public offering price of the Shares and the amount of your Selling Commission
that is re-allowed by us to you with respect to volume sales of Shares to single
purchasers (as defined in the Prospectus) on Orders (as defined below) of
$250,000 or more shall be reduced by the amount of the Share purchase price
discount. In the case of such volume sales to single purchasers, your Selling
Commission will be reduced for each incremental Share purchase in the total
volume ranges set forth in the table below. Such reduced Share price purchase
price will not affect the amount received by the Company for investment. The
following table sets forth the reduced Share purchase price and Selling
Commission payable to you:
Volume Discount Range for Purchase Price Per Share Selling Commission Per
a "Single Purchaser" for Incremental Share in Share on Total Sale for
Volume Discount Range Incremental Share in
Volume Discount Range
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$2,000 - $250,000 $10.00 $0.65
$250,001 - $500,000 $ 9.85 $0.50
$500,001 - $750,000 $ 9.70 $0.35
$750,001 - $1,000,000 $ 9.60 $0.25
$1,000,001 - $5,000,000 $ 9.50 $0.15
As an example, a single purchaser would receive 50,380.7107 Shares (rather
than 50,000 Shares) for his investment of $500,000 and the Selling Commission
would be $28,940. On the first $250,000 of the investment there would be no
discount and the purchaser would receive 25,000 Shares at $10 per share. On the
remaining $250,000, the per share price would be $9.85 and the purchaser would
receive 25,380.7107 Shares
Selling Commissions for purchases of more than $5,000,000 are negotiable
but in no event will the net purchase price be less than $9.35 per Share. We may
also re-allow to you a selected dealer fee of up to $.20 per Share for each
Share sold by you (the "Selected Dealer Fee"), if you have executed an Addendum
to this
Selected Dealer Agreement related to the Selected Dealer Fee; provided
however, we will not pay you a Selected Dealer Fee if the aggregate compensation
to be paid to us, you and the other Selected Dealers exceeds the limitations
prescribed by FINRA.
We will not pay Selling Commissions related to Shares purchased under the
DRIP. During the Offering and until the first annual valuation of the Company's
assets, Shares sold under the DRIP shall be sold at $9.50 per Share. Subsequent
to the first annual valuation of the Company's assets, Shares sold under the
DRIP will be sold at 95% of the then-current net asset value per Share, as
estimated by the Company's Advisor or another firm chosen for that purpose. All
shares sold under the DRIP shall be sold at the same price.
To the extent a Selected Dealer is entitled to all or a portion of the $.20
per Share Selected Dealer Fee, the Selected Dealer may elect to defer over time
its receipt of the Selected Dealer Fee to which it is entitled. In such event,
the Selected Dealer Fee to be reallowed will be paid to the Selected Dealer over
a period of up to ten years (which period will be agreed upon by Xxxxx
Financial, LLC ("Sales Agent") and the Selected Dealer) until the Selected
Dealer Fee payable to the Selected Dealer has been paid in full. Further, if
listing of the Company's shares occurs on a national exchange or the Company's
shares are included for quotation on Nasdaq, any remaining deferred portion of
the Selected Dealer Fee payable to the Selected Dealer will become immediately
due and payable.
No payment of Selling Commissions or the Selected Dealer Fee will be made
in respect of Orders (or portions thereof) which are rejected by the Company.
Selling Commissions and the Selected Dealer Fee will be paid within five
business days following any Closing Date with respect to Shares sold to
purchasers whose Shares are issued on such Closing Date. Selling Commissions and
the Selected Dealer Fee will be payable only with respect to transactions lawful
in the jurisdictions where they occur.
For purposes of determining investors eligible for volume discounts,
investments made by accounts with the same primary account holder, as determined
by tax identification number, may be combined. This includes individual accounts
and joint accounts that have the same primary holder as an individual account.
Investments made through individual retirement accounts may also be
combined with accounts that have the same tax identification number as
beneficiary of the individual retirement account. In the event Orders are
combined, the Selling Commission payable with respect to the subsequent purchase
of Shares will equal the commission per share which would have been payable in
accordance with the table set forth above if all purchases had been made
simultaneously. Any reduction of the $0.65 per share Selling Commission
otherwise payable to the Sales Agent or a Selected Dealer will be credited to
the purchaser as additional Shares. Unless purchasers indicate that Orders are
to be combined and provide all other requested information, the Company will not
be held responsible for failing to combine Orders properly.
In no event shall the aggregate underwriting compensation to be paid to us,
you and the other Selected Dealers in connection with the Offering and sale of
the Shares exceed the limitations prescribed by the FINRA.
Orders for Shares (each an "Order") must be made during the offering period
described in the Prospectus (except for Orders made pursuant to the DRIP, which
may be made on an ongoing basis, pursuant to the terms of the DRIP). An order
form, in the form attached to the Prospectus, (each an "Order Form") must be
used in placing an Order for investors residing in certain states and, for all
other investors, Orders may be placed through such procedures as are normally
used by you for the sale of REIT shares and agreed to by the Company. Persons
desiring to purchase Shares are required to comply with such procedures and, in
certain states, to execute or have executed on their behalf one copy of the
Order Form. Subscribers purchasing shares by check must make such checks payable
to Xxxxx Fargo Bank, National Association, or Xxxxx Fargo (the Escrow Agent")
until subscription proceeds reach $10 million and thereafter to the Bank of West
(each of such Bank of the West and Xxxxx Fargo being an "Agent Bank"). By noon
of the business day following receipt of funds by you, either by check or by a
sweep of customer accounts, you will deliver via overnight delivery service a
check payable to Agent Bank, or other acceptable form of payment, for the full
amount of each Order along with an Order Form for each such Order and a list
showing the name, address and telephone number of, the social security number or
taxpayer identification number of, the brokerage account number of (if
applicable), the number of Shares purchased by, any election to participate in
the DRIP by, and the total dollar amount of the investment by, each investor on
whose behalf a check or other payment is delivered. You will advise the Agent
Bank whether the funds you are submitting are attributable to individual
retirement accounts, Xxxxx plans, or any other employee benefit plan subject to
Title I of the Employee Retirement Income Security Act of 1974 or from some
other type of investor.
All Orders solicited by you will be strictly subject to review and
acceptance by the Company, and the Company reserves the right in its absolute
discretion to reject any such Order or to accept or reject Orders in the order
of their receipt by the Company or otherwise. You agree to maintain, for at
least six years, records of the information used by you to determine whether an
investment in Shares is suitable and appropriate for a potential investor in
Shares.
If the Company elects to reject an Order (such rejection to occur within 30
days after receipt by the Company of such Order), the Company shall, within 10
business days after such rejection, inform you of such rejection and return the
funds (and any interest earned thereon) and other documents submitted by the
rejected purchaser to you for transmission to such purchaser. If no notice of
rejection is received by you with the foregoing time limits or if funds
submitted by the purchaser are released from escrow to the Company within the
foregoing time limits, the Order shall be deemed accepted.
You agree that you will use your best efforts in offering the Shares and
will offer the Shares only in jurisdictions in which you are currently
registered as a securities dealer and only in accordance with the securities
laws of such jurisdictions.
You covenant and agree with respect to your participation in the Offering
to comply with any applicable requirements of the Securities Act of 1933 (the
"33 Act") and of the Securities Exchange Act of 1934 (the "34 Act"), and the
published rules and regulations of the Securities and Exchange Commission
thereunder, and the Conduct Rules of FINRA including but not limited to Rule
2730, Rule 2740 and IM 2740, Rule 2420 and IM 2420 and Rule 2750 and IM 2750.
We shall have full authority to take such action as we may deem advisable
in respect of all matters pertaining to the Offering. Neither you nor any other
person is authorized to give any information or make any representations other
than those contained in the Prospectus and sales literature furnished by the
Company in connection with the Offering, and you agree not to give any such
information or make any such representations. You acknowledge that we will rely
upon your agreements in this paragraph and in the preceding paragraph in
connection with the Sales Agency Agreement. No Selected Dealer is authorized to
act as agent for us when offering any of the Shares to the public or otherwise,
it being understood that you and each other Selected Dealer are independent
contractors with us. Nothing herein contained shall constitute you or the
Selected Dealers an association, unincorporated business, partnership or
separate entity with each other or an association or partner with us. Nothing
contained in this paragraph is intended to operate as, and the provisions of
this paragraph shall not constitute, a waiver by you of compliance with any
provision of the '33 Act or of the rules and regulations thereunder.
The Company will provide you with such number of copies of the enclosed
Prospectus and such number of copies of amendments and supplements thereto, and
certain supplemental sales material prepared by the Company, as you may
reasonably request for use by you in connection with the offer and sales of the
Shares. In the event you elect to use any such supplemental sales material, you
agree that such material shall not be used in connection with the offer and sale
of the Shares unless accompanied or preceded by the Prospectus as then currently
in effect and as it may be amended or supplemented in the future, and you
expressly agree not to prepare or use any sales material other than the approved
sales material. To the extent that information is provided to you marked "For
Broker/Dealer Use Only," "Internal Use Only" or with other similar language, you
covenant and agree not to provide such information to existing or prospective
investors. You agree that you will not use any other offering materials without
the prior written consent of the Company and us.
This
Selected Dealer Agreement shall terminate at the close of business on
the 45th day after the completion of the sale of all of the Shares by the
Company, unless earlier terminated or unless the Sales Agency Agreement is
terminated, in which event this
Selected Dealer Agreement will automatically
terminate. Either party may terminate this
Selected Dealer Agreement at any time
by written notice, and we shall notify you promptly in the event of any early
termination of this
Selected Dealer Agreement.
We will furnish to you a Blue Sky Memorandum naming the jurisdictions in
which we believe the Shares have been qualified for sale under, or are exempt
from the requirements of, the respective securities laws of such jurisdictions,
but we assume no responsibility or obligation as to your right to sell Shares in
any jurisdiction.
Your obligations under this
Selected Dealer Agreement shall be subject to
the continued accuracy throughout the Effective Term of the representations,
warranties and agreements of the Company under the Sales Agency Agreement and
the Selected Dealer Agreement and to the performance by the Company of its
obligations under such agreements and to the terms and conditions set forth in
Section 7 of the Sales Agency Agreement.
You confirm that you are familiar with '33 Act Release No. 4968 and Rule
15c2-8 under the '34 Act, relating to the distribution of preliminary and final
prospectuses, and confirm that you have complied, and will comply, therewith.
You shall not directly or indirectly pay or award any finder's fees, commissions
or other compensation to any persons engaged by an investor for investment
advice as an inducement to such adviser to advise a potential investor to
purchase Shares. In addition, you agree not to receive any rebates or give-ups
or to participate in any reciprocal business arrangements (other than for the
underwriting arrangements described herein) which would violate any restrictions
on the Company contained in the Prospectus.
All representations, warranties and agreements contained in this Selected
Dealer Agreement (including any Addendum), the Sales Agency Agreement or in
certificates submitted to you pursuant to this Selected Dealer Agreement or
Sales Agency Agreement shall remain operative and in full force and effect,
regardless of any investigation made by, or on behalf of, you or any person who
controls you, and shall survive the closing and termination of the Offering.
You shall indemnify, defend and hold harmless the Company, Xxxxx Financial,
LLC, its 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, its affiliates and their or its officers, directors, trustees,
employees or agent, which they or any of them may incur arising out of (i) the
offer or sale (as such term is defined in the '33' Act) by you, or any person
acting on your behalf, of any Shares pursuant to this Selected Dealer 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 you 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 Xxxxx Financial, LLC by you; or (ii) the breach by you, or any person acting
on your behalf, of any of the terms and conditions of this Selected Dealer
Agreement. This indemnity provision shall survive the termination of this
Selected Dealer Agreement.
Any communication from you should be in writing addressed to Xxxxx
Financial, LLC, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000. Any notice from us to
you shall be deemed to have been duly given if mailed or telegraphed to you at
the address to which this Selected Dealer Agreement is mailed.
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 (and in any Addendum
hereto) shall be deemed to be amended as set forth in such addendum.
Please confirm your agreement hereto by signing and returning at once to us
both of the enclosed duplicate of this Selected Dealer Agreement, including the
information requested in Schedule A attached thereto. This Selected Dealer
Agreement shall be governed by and construed in accordance with the laws of the
State of
New York applicable to agreements made and to be performed entirely
within such state.
Very truly yours,
XXXXX FINANCIAL, LLC
Sales Agent
By:
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Its:
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CORPORATE PROPERTY ASSOCIATES 17 -
GLOBAL INCORPORATED, the Company
By:
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Its:
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ACCEPTED, as of
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SELECTED DEALER:
By:
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Its:
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SCHEDULE A TO SELECTED DEALER AGREEMENT
SELECTED DEALER INFORMATION
[PLEASE PRINT OR TYPE ALL REQUESTED INFORMATION]
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SELECTED/DEALER NAME:
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FIRM CRD NUMBER:
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SELECTED/DEALER ADDRESS:
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PHONE NUMBER:
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NAME OF PERSON SIGNING SELECTED DEALER AGREEMENT:
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TITLE OF PERSON SIGNING SELECTED DEALER AGREEMENT:
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CORPORATE PROPERTY ASSOCIATES 17 - GLOBAL INCORPORATED
ADDENDUM TO SELECTED DEALER AGREEMENT
The following reflects the Selected Dealer fee as agreed upon between Xxxxx
Financial, LLC (the "Sales Agent") and the Selected Dealer, effective [_______],
200__.
Each calendar year, the Selected Dealer may qualify to receive a fee (the
"Selected Dealer Fee"), of up to [$____] per share in connection with sales of
Corporate Property Associates 17 - Global Incorporated's (the Company) common
stock by the Selected Dealer in such calendar year.
Eligibility to receive the Selected Dealer Fee is conditioned upon the
Selected Dealer reaching a prescribed minimum annual sales volume of shares of
the Company's common stock and the Selected Dealer's compliance with one or more
of the following conditions. Any determination regarding the Selected Dealer's
compliance with the listed conditions will be made by the Sales Agent, in its
sole discretion.
1. The Selected Dealer has internal marketing and support personnel
(telemarketers, marketing director, etc.) who assist the Managing
Dealer's marketing team;
2. The Selected Dealer has and uses internal marketing communications
vehicle(s) to promote the Company. Vehicles may include, but are not
restricted to, newsletters, conference calls, internal mail, etc.;
3. The Selected Dealer will respond to investors' inquiries concerning
monthly statements, valuations, distribution rates, tax information,
annual reports, reinvestment and redemption rights and procedures, the
financial status of the Company and the real estate markets in which
the Company has invested;
4. The Selected Dealer will assist investors with reinvestments and
redemptions; and/or
5. The Selected Dealer will provide other services requested by investors
from time to time and will maintain the technology necessary to
adequately service investors.
IN WITNESS WHEREOF, the parties have executed this Addendum on the date and
year shown above.
SELECTED DEALER: SALES AGENT:
XXXXX FINANCIAL, LLC
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(Name of Selected Dealer)
By: By:
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Name: Name:
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Title: Title:
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