EXHIBIT 1.1
Form of Managing Dealer Agreement
MANAGING DEALER AGREEMENT
THIS AGREEMENT, dated as of ___________, 2004, is made by and between CNL
HOSPITALITY PROPERTIES, INC., a Maryland corporation (the "Company"), and CNL
SECURITIES CORP., a Florida corporation (the "Managing Dealer").
WHEREAS, the Company proposes to offer and sell up to an aggregate of
400,000,000 shares of common stock in the Company (the "Shares") to the public
pursuant to a public offering;
WHEREAS, the Managing Dealer is registered with the National Association
of Securities Dealers, Inc. as a broker-dealer, and is presently or, prior to
any offers or sales of Shares, will be licensed in all fifty states, the
District of Columbia, and the Commonwealth of Puerto Rico as a broker-dealer
qualified to offer and sell to the public securities of the type represented by
the Shares; and
WHEREAS, the Company desires to retain the Managing Dealer to use its best
efforts to sell the Shares and to manage the sale by others of the Shares, and
the Managing Dealer is willing and desires to serve as the Managing Dealer for
the Company for the sale of the Shares upon the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Company and the Managing
Dealer agree as follows:
SECTION 1
Definitions
Whenever used in this Agreement, the following terms shall have the
following specified meanings.
1.1 "Company" means CNL Hospitality Properties, Inc., a Maryland
corporation.
1.2 "NASD" means the National Association of Securities Dealers, Inc.
1.3 "Offering" means the offering of up to 400,000,000 Shares of CNL
HOSPITALITY PROPERTIES, INC. to the public pursuant to the terms and conditions
of the Registration Statement.
1.4 "Offering Period" means the period commencing on the effective date
of the Registration Statement and ending on the earliest of the following: (i)
the later of one year after the initial date of the Prospectus or, at the
Company's election, two years after the initial date of the Prospectus; (ii) the
acceptance by the Company of subscriptions for 400,000,000 Shares, with up to
50,000,000 of such Shares available to investors who participate in the
Company's Reinvestment Plan (as defined below); (iii) the termination of the
Offering by the Company; (iv) the termination of the effectiveness of the
Registration Statement; or (v) the termination of the Company.
1.5 "Participating Brokers" mean those broker-dealers engaged by the
Managing Dealer to participate in the Offering pursuant to Paragraph 3.2.
1.6 "Prospectus" means the final prospectus included in the Registration
Statement, pursuant to which the Company will offer Shares to the public, as the
same may be amended or supplemented from time to time after the effective date
of the Registration Statement.
1.7 "Registration Statement" means the registration statement pursuant
to which the Company has registered the Shares with the SEC as provided in the
Securities Act of 1933, as amended, as such registration statement may be
amended or supplemented from time to time.
1.8 "SEC" means the Securities and Exchange Commission.
1.9 "Shares" mean the shares of Common Stock of the Company, par value
$0.01 per share, with a purchase price of $10.00 per share. An aggregate of up
to 400,000,000 Shares will be offered pursuant to the Registration Statement.
1.10 "State Regulatory Authorities" mean the commissions, departments,
agencies or other authorities in the fifty states, the District of Columbia, and
the Commonwealth of Puerto Rico which regulate the offer and sale of securities.
SECTION 2
Appointment
Subject to the terms and conditions set forth in this Agreement, the
Company hereby appoints the Managing Dealer as the managing dealer of the
Offering to use its best efforts to sell up to 400,000,000 Shares of the Company
and to manage the sale by others of such Shares for the Company's account. The
Managing Dealer hereby accepts such appointment.
SECTION 3
Sale of Shares
3.1 Best Efforts. The Managing Dealer shall use its best efforts during
the Offering Period to sell or cause to be sold the Shares in such quantities
and to such persons and in accordance with such terms as are set forth in this
Agreement, the Prospectus and the Registration Statement. Notwithstanding
anything herein to the contrary, the Managing Dealer shall have no obligation
under this Agreement to purchase any of the Shares for its own account.
3.2 Association of Other Broker-Dealers. The Company hereby acknowledges
and agrees that the Managing Dealer may engage Participating Brokers to
participate in the Offering, provided that (i) all Participating Brokers are
registered with the NASD and are duly licensed by the State Regulatory
Authorities in the jurisdictions in which they will offer and sell Shares or
exempt from broker-dealer registration with the NASD and the State Regulatory
Authorities, and (ii) all such engagements are evidenced by written agreements,
the terms and conditions of which substantially conform to the form of
Participating Broker Agreement approved by the Company and attached hereto as
Exhibit A (the "Participating Broker Agreement"). The Managing Dealer is
authorized to reallow up to 6.0% of the commissions which it receives under
Paragraph 4.1 to Participating Brokers with respect to Shares sold by them.
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3.3 Telephonic Subscriptions.
(a) The Managing Dealer may permit certain Participating Brokers to
accept telephonic or other oral subscriptions for Shares; provided,
however, that any such Participating Broker agrees that: (i) the
registered representative and branch manager of the Participating Broker
shall execute the subscription agreement on behalf of any investor who
telephonically or orally subscribes for Shares; (ii) the Participating
Broker shall not charge investors who telephonically or orally subscribe
for Shares any additional fees, including but not limited to fees relating
to opening an account with the Participating Broker; and (iii) the
Participating Broker shall not accept telephonic or oral subscriptions for
Shares from any investor unless such investor has received a copy of the
Company's Prospectus prior to making a decision to invest. The Managing
Dealer shall enter into a written agreement with each Participating Broker
who wishes to accept telephonic or other oral subscriptions for Shares
from investors in certain states more particularly identified in the
Prospectus, pursuant to which the Participating Broker shall agree to
explain to such investor that: (i) the investor shall have the right to
rescind such subscription for a period of ten (10) days following the
receipt of the Confirmation (as hereinafter defined); and (ii) unless the
investor rescinds such subscription within the applicable period of time,
the investor shall be bound by the subscription agreement. The Managing
Dealer shall confirm the receipt of subscriptions for Shares which have
been subscribed for by telephone or other oral instructions by written
notice to the investor (the "Confirmation"). Such Confirmation shall be
mailed to the investor not later than seven (7) days after the date on
which the investor's funds are deposited, shall contain a statement that
the investor has a right to rescind his subscription, and shall be
accompanied by a Prospectus and a Subscriber's Signature Page.
(b) Notwithstanding anything to the contrary contained in Paragraph
4.3(a) of this Agreement, in the event that the Company pays any
commissions and fees to the Managing Dealer for sale by a Participating
Broker of one or more Shares pursuant to a telephonic or other oral
subscription where representatives of such Participating Broker execute
the subscription agreement relating to such Shares, and the subscription
is rescinded as to one or more of the Shares covered by such subscription,
the Company shall decrease the next payment of commissions or other
compensation otherwise payable to the Managing Dealer by the Company under
this Agreement by an amount equal to the commission rate established in
Paragraph 4.1 of this Agreement, multiplied by the number of Shares as to
which the subscription is rescinded. In the event that no payment of
commissions or other compensation is due to the Managing Dealer after such
withdrawal occurs, the Managing Dealer shall pay the amount specified in
the preceding sentence to the Company within ten (10) days following
receipt of notice by the Managing Dealer from the Company stating the
amount owed as a result of rescinded subscriptions.
3.4 Suitability and Minimum Purchase Requirements.
(a) The Managing Dealer will use every reasonable effort, to the extent
it sells Shares to investors, to assure that any such Shares are sold only
to investors who:
(i) meet the investor suitability standards, including the minimum
income and net worth standard established by the Company, and
minimum purchase requirements set forth in the Registration
Statement;
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(ii) can reasonably benefit from the Company based on the
prospective investor's overall investment objectives and portfolio
structure;
(iii) are able to bear the economic risk of the investment based on
each prospective investor's overall financial situation; and
(iv) have apparent understanding of: (A) the fundamental risks of
the investment; (B) the risk that the prospective investor 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 officers and directors of CNL
Hospitality Corp., the advisor to the Company (the "Advisor"); and
(F) the tax consequences of an investment in the Shares.
(b) The Managing Dealer will make the determinations required to be made
by it pursuant to Paragraph 3.4(a) above based on information it has
obtained from a prospective investor, including, at a minimum, but not
limited to the prospective investor's age, investment objectives,
investment experience, income, net worth, financial situation, other
investments of the prospective investor, as well as any other pertinent
factors deemed by the Managing Dealer to be relevant.
(c) The Managing Dealer shall maintain such records evidencing
compliance with the determination of the investor suitability standards
and minimum purchase requirements set forth in the Registration Statement,
to the extent required by Paragraphs 3.4(a) and 3.4(b) above for a period
of not less than six (6) years, or for such greater time period as shall
comply with all applicable federal, state and other regulatory
requirements.
(d) In addition to the foregoing, to the extent required by Paragraphs
3.4(a) and 3.4(b), the Managing Dealer shall comply fully with all the
applicable provisions of the NASD's Conduct Rules and the following
provisions:
(i) the Managing Dealer shall have reasonable grounds to believe,
based upon information provided by the investor concerning his
investment objectives, other investments, financial situation and
needs, and upon any other information known by the Managing Dealer,
that (A) each investor to whom the Managing Dealer sells Shares is
or will be in a financial position appropriate to enable him to
realize to a significant extent the benefits (including tax
benefits) of an investment in the Shares, (B) each investor to whom
the Managing Dealer sells Shares has a fair market net worth
sufficient to sustain the risks inherent in an investment in the
Shares (including potential loss and lack of liquidity), and (C) the
Shares otherwise are or will be a suitable investment for each
investor to whom the Managing Dealer sells Shares, and the Managing
Dealer shall maintain files disclosing the basis upon which the
determination of suitability was made;
(ii) the Managing Dealer shall not execute any transaction
involving the purchase of Shares in a discretionary account without
prior written approval of the transaction by the investor;
(iii) the Managing Dealer shall have reasonable grounds to believe,
based upon the information made available to it, that all material
facts are adequate and accurately disclosed in the Registration
Statement and provide a basis for evaluating the Shares;
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(iv) in making the determination set forth in item (iii) above, the
Managing Dealer shall evaluate items of compensation, properties,
tax aspects, financial stability and experience of the sponsor,
conflicts of interest and risk factors, and any other information
deemed pertinent by it; and
(v) prior to executing a purchase transaction in the Shares, the
Managing Dealer shall have informed the prospective investor of all
pertinent facts relating to the liquidity and marketability of the
Shares.
(e) The Managing Dealer shall comply with the requirements for
determining the suitability of investors who elect to participate in the
Reinvestment Plan (the "Reinvestment Plan") in accordance with the
procedure set forth in Paragraph 6 of such Reinvestment Plan in the form
of Appendix A to the Prospectus.
3.5 Sales Literature. The Managing Dealer shall use and distribute in
conjunction with the offer and sale of any Shares only the Prospectus and such
sales literature and advertising as shall have been previously approved in
writing by the Company.
3.6 Jurisdictions. The Managing Dealer shall cause Shares to be offered
and sold only in those jurisdictions specified in writing by the Company for
whose account Shares are then offered for sale, and such list of jurisdictions
shall be updated by the Company as additional states are added. The Company
shall specify only such jurisdictions in which the offering and sale of its
Shares has been authorized by appropriate State Regulatory Authorities. No
Shares shall be offered or sold for the account of the Company in any other
states.
3.7 Escrow. All funds received by the Managing Dealer for the sale of
Shares shall be deposited in an escrow account established by the Company at
SouthTrust Bank (the "Escrow Agent"), by the close of the first business day
following receipt of such funds by the Managing Dealer. Such escrow account
shall be denominated "ESCROW ACCOUNT FOR THE BENEFIT OF SUBSCRIBERS FOR COMMON
STOCK OF CNL HOSPITALITY PROPERTIES, INC." Checks may be made payable to either
the Escrow Agent or the Company. The Managing Dealer may authorize certain
Participating Brokers which are "$250,000 broker-dealers" to instruct their
customers to make their checks for Shares subscribed for payable directly to the
Participating Broker. In such case, the Participating Broker will collect the
proceeds of the subscribers' checks and issue a check made payable to the order
of the Escrow Agent for the aggregate amount of the subscription proceeds or
wire such funds to the Escrow Agent.
SECTION 4
Compensation
4.1 Commissions.
(a) The Company shall pay to the Managing Dealer, as compensation for
all services to be rendered by the Managing Dealer pursuant to this
Agreement, commissions of up to 6.5% of the selling price of each Share
for which a sale is completed, regardless of whether such Share is sold by
the Managing Dealer or a Participating Broker; provided, however, that the
Company will pay reduced commissions and fees or may eliminate commissions
and fees on certain sales of Shares, including the reduction or
elimination of commissions and fees in accordance with, and on the terms
set forth in, the Prospectus and Paragraphs 4.1(b) and (c).
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(b) The following persons and entities may purchase Shares net of 6.5%
commissions and the 1.5% marketing support fee, at a per Share purchase
price of $9.20 (assuming no other discounts apply): (i) a registered
principal or representative of the Managing Dealer or a Participating
Broker; (ii) employees, officers and directors of the Company or the
Advisor, or of the Affiliates of either of the foregoing entities (and the
immediate family members of any of the foregoing persons, provided that
"immediate family members" means such person's spouse, parents, children,
grandparents, grandchildren and any such person who is so related by
marriage such that this includes "step-" and "-in law" relations as well
as such persons so related by adoption), and any Plan (as defined in the
Prospectus) established exclusively for the benefit of such persons or
entities; (iii) a client of an investment adviser registered under the
Investment Advisers Act of 1940, as amended, or under applicable state
securities laws; and (iv) a person investing in a bank trust account with
respect to which the decision-making authority for investments made has
been delegated to the bank trust department. As all sales must be made
through a registered broker-dealer, the investment adviser must arrange
the placement of the transaction through a broker-dealer that will waive
compensation or may contact the Managing Dealer for such assistance. The
amount of proceeds to the Company will not be affected by eliminating
commissions and marketing support fees payable in connection with sales to
investors purchasing through such registered investment advisers or bank
trust departments. In addition, Participating Brokers that have a
contractual arrangement with their clients for the payment of fees on
terms that are inconsistent with the acceptance of all or a portion of the
commissions and the marketing support fee may elect not to accept all or a
portion of their compensation in the form of commissions and the marketing
support fees offered by the Company for Shares that they sell. In that
event, such Shares shall be sold to the investor net of 6.5% commissions
and the marketing support fee, at a per share purchase price of $9.20.
(c) In connection with the purchases of certain minimum numbers of
Shares, the amount of commissions otherwise payable may be reduced in
accordance with the volume discounts schedule set forth in the Prospectus.
4.2 Due Diligence and Marketing Support Fee.
(a) Due Diligence. The Company shall pay the Managing Dealer for actual
expenses incurred in connection with the due diligence of our Company and
this Offering and such reimbursement will be paid following submission of
invoices supporting such expenses. All due diligence expense
reimbursements shall be paid by the Managing Dealer from this amount.
(b) Marketing Support Fee. The Company shall pay to the Managing Dealer
a nonaccountable fee for assistance in selling and marketing the Shares up
to one and one-half percent (1.5%) of the selling price of each Share
which is sold in the Offering. The Managing Dealer may reallow all or any
portion of this amount (1.5% of the selling price) for each share sold by
a Participating Broker with whom the Managing Dealer enters into a
separate agreement relating to the marketing support fee.
Stockholders who elect to participate in the Reinvestment Plan will be
charged 6.5% commissions, due diligence expense reimbursements of up to 0.05%,
and the 1.5% marketing support fee on Shares purchased for their accounts.
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4.3 Completed Sale.
(a) A sale of a Share shall be deemed to be completed under Paragraphs
4.1 and 4.2 if and only if (i) the Company has received a properly
completed and executed subscription agreement, together with payment of
the full purchase price of each purchased Share, from or, in accordance
with Paragraph 3.3(a), on behalf of an investor who satisfies the
applicable suitability standards and minimum purchase requirements set
forth in the Registration Statement as determined by the Managing Dealer
in accordance with the provisions of this Agreement, (ii) the Company has
accepted such subscription, and (iii) such investor has been admitted as a
stockholder of the Company.
(b) The Managing Dealer hereby acknowledges and agrees that the Company,
in its sole and absolute discretion, may accept or reject any
subscription, in whole or in part, for any reason whatsoever, and no
commission will be paid to the Managing Dealer with respect to that
portion of any subscription which is rejected.
4.4 Payment. Except as otherwise provided in the Prospectus, the
commissions and fees specified in Paragraphs 4.1 and 4.2 for the sale of any
Share shall be payable in cash by the Company, as specified in Paragraphs 4.1
and 4.2, no later than seven (7) days after the end of the calendar month in
which the investor subscribing for the Share is admitted as a stockholder of the
Company. Investors whose subscriptions for Shares are accepted shall be admitted
no later than the end of the calendar month in which such subscriptions are
accepted. The Company will accept or reject all subscriptions within 30 days
after receipt. Notwithstanding anything to the contrary contained herein, in the
event that the Company pays any commission to the Managing Dealer for sale by a
Participating Broker of one or more Shares and the subscription is rescinded as
to one or more of the Shares covered by such subscription, the Company shall
decrease the next payment of commissions or other compensation otherwise payable
to the Managing Dealer by the Company under this Agreement by an amount equal to
the commission rate established in Paragraph 4.1 of this Agreement, multiplied
by the number of Shares as to which the subscription is rescinded. In the event
that no payment of commissions or other compensation is due to the Managing
Dealer after such withdrawal occurs, the Managing Dealer shall pay the amount
specified in the preceding sentence to the Company within ten (10) days
following receipt of notice by the Managing Dealer from the Company stating the
amount owed as a result of rescinded subscriptions.
4.5 Sales Incentives. The Company or its Affiliates also may provide
incentive items for registered representatives of the Managing Dealer and the
Participating Brokers, but in no event shall such gifts exceed an aggregate of
$100 per annum per participating salesperson and will otherwise comply with the
NASD Conduct Rules. In the event other incentives are provided to registered
representatives of the Managing Dealer or the Participating Brokers, they will
only be paid in cash and such payments will only be made to the Managing Dealer
or the Participating Brokers rather than to their registered representatives.
Before any such sales incentive program is offered, the Company agrees to obtain
prior approval of the terms of such program from the NASD.
4.6 Wholesaling Compensation. The Company hereby agrees to reimburse
reasonable out-of-pocket expenses that wholesalers of the Managing Dealer incur
in connection with the distribution of its Shares.
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SECTION 5
Term of Agreement
5.1 Commencement and Expiration. This Agreement shall commence as of the
date first above written and, unless sooner terminated pursuant to Paragraph 5.2
or by operation of law or otherwise, shall expire at the end of the Offering
Period.
5.2 Termination. Any party may terminate this agreement at any time and
for any reason by giving 30 days prior written notice of intention to terminate
to each other party hereto.
5.3 Obligations Surviving Expiration or Termination.
(a) In addition to any other obligations of the Managing Dealer that
survive the expiration or termination of this Agreement, the Managing
Dealer, upon the expiration or termination of this Agreement, shall (i)
promptly deposit any and all funds in its possession which were received
from investors for the sale of Shares into the appropriate escrow account
specified in Paragraph 3.7, and (ii) promptly deliver to the Company all
records and documents in its possession which relate to the Offering and
are not designated as dealer copies. The Managing Dealer, at its sole
expense, may make and retain copies of all such records and documents, but
shall keep all such information confidential. The Managing Dealer shall
use its best efforts to cooperate with the Company to accomplish an
orderly transfer of management of the Offering to a party designated by
the Company.
(b) In addition to any other obligations of the Company that survive the
expiration or termination of this Agreement, the Company, upon expiration
or termination of this Agreement, shall pay to the Managing Dealer all
commissions and fees to which the Managing Dealer is or becomes entitled
under Section 4 at such time or times as such commissions and fees become
payable pursuant to Paragraph 4.3.
SECTION 6
Covenants of the Managing Dealer
The Managing Dealer covenants, warrants and represents, during the full
term of this Agreement, that:
(a) it is (i) a corporation duly organized and validly existing under
the laws of the State of Florida, (ii) a member of the NASD, and (iii) a
broker-dealer registered under the securities laws of all fifty states,
the District of Columbia, and the Commonwealth of Puerto Rico;
(b) it will use its best efforts to assure that all Shares are offered
and sold in accordance with (i) the terms of the Registration Statement,
the Prospectus and this Agreement, (ii) the requirements of applicable
federal and state securities laws and regulations, and (iii) the
applicable rules of the NASD, including, without limitation, the NASD's
Conduct Rules;
(c) it will cause the Shares to be offered or sold only in those
jurisdictions specified in writing by the Company;
(d) it will not use any offering or selling materials other than
materials furnished or previously approved in writing by the Company;
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(e) it either (i) will not purchase Shares for its own account or (ii)
will hold all such Shares for investment; and
(f) it agrees to (i) comply with U.S. Department of Treasury regulations
(outlined in the Patriot Act) that require reasonable efforts to verify
the identity of new customers, maintain customer records, and check the
names of new customers against a government terrorist list, (ii) provide
the Financial Crimes Enforcement Network with information regarding: 1)
the identity of a specified individual or organization, 2) account number,
3) all identifying information provided by the account holder, and 4) the
date and type of transaction, upon request, and (iii) manually monitor
account activity to identify patterns of unusual size or volume,
geographic factors, and any of the other "red flags" described in the
Patriot Act as potential signals of money laundering or terrorist
financing. The Company reserves the right to reject account applications
from new customers who fail to provide necessary account information or
who intentionally provide misleading information.
SECTION 7
Covenants of the Company
The Company covenants, warrants and represents, during the full term of
this Agreement, that:
(a) it will use its best efforts to maintain the effectiveness of the
Registration Statement, and will file, or cause to be filed, such
amendments to the Registration Statement as may be reasonably necessary
for that purpose;
(b) it will use its best efforts to (i) prevent the issuance of any
order by the SEC, any State Regulatory Authority or any other regulatory
authority which suspends the effectiveness of the Registration Statement,
prevents the use of the Prospectus, or otherwise prevents or suspends the
Offering, and (ii) obtain the lifting of any such order if issued;
(c) it will give the Managing Dealer written notice when the
Registration Statement becomes effective and shall deliver to the Managing
Dealer a signed copy of the Registration Statement, including its
exhibits, and such number of copies of the Registration Statement, without
exhibits, and the Prospectus, and any supplements and amendments thereto
which are finally approved by the SEC, as the Managing Dealer may
reasonably request for sale of the Shares, which Prospectus shall not
contain any untrue statement of a material fact required to be stated
therein or omit any material statement necessary to make the statements
therein, in light of the circumstances under which they are made, not
misleading;
(d) if at any time any event occurs and becomes known to the Company
prior to the end of the Offering Period, as a result of which the
Registration Statement or Prospectus would include an untrue statement of
a material fact or, in view of the circumstances under which they were
made, omit to state any material fact necessary to make the statements
therein not misleading, the Company will effect the preparation of an
amended or supplemented Registration Statement or Prospectus which will
correct such statement or omission;
(e) it will promptly notify the Managing Dealer of any post-effective
amendments or supplements to the Registration Statement or Prospectus;
(f) it will, during the full term of this Agreement, abide by all
applicable provisions of its governing instruments, as the same may be
amended; and
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(g) it will use its best efforts to cause, at or prior to the time the
Registration Statement becomes effective, the qualification or
registration of the Shares for offering and sale under the securities laws
of such jurisdictions as shall be determined by the Company.
SECTION 8
Payment of Costs and Expenses
8.1 Managing Dealer. The Managing Dealer shall pay all costs and
expenses incident to the performance of its obligations under this Agreement
which are not expressly assumed by the Company under Paragraph 8.2 below.
8.2 Company. The Company shall pay all costs and expenses related to:
(a) the registration of the offer and sale of the Shares with the SEC,
including the cost of preparation, printing, filing and delivery of the
Registration Statement and all copies of the Prospectus used in the
Offering, and any amendments or supplements to such documents;
(b) the preparation and printing of the form of subscription agreement
to be used in the sale of the Shares;
(c) the qualification or registration of the Shares under state
securities or "blue sky" laws of states where the Shares are to be offered
or sold;
(d) the filing of the Registration Statement and any related documents,
including any amendments or supplements to such documents, with the SEC,
NASD and State Regulatory Authorities;
(e) any filing fees, and fees and disbursements to counsel, accountants
and escrow agents which are in any way related to any of the above items;
and
(f) the preparation, printing and filing of all advertising and sales
materials originated by it relating to the sale of Shares.
SECTION 9
Indemnification
The Managing Dealer agrees to indemnify, defend and hold harmless the
Company from all losses, claims, demands, liabilities and expenses, including
reasonable legal and other expenses incurred in defending such claims or
liabilities, whether or not resulting in any liability to the Company, which the
Company may incur in connection with the offer or sale of any Shares, either by
the Managing Dealer pursuant to this Agreement or any Participating Broker
acting on the Managing Dealer's behalf pursuant to the Participating Broker
Agreement which arise out of or are based upon (i) 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 or omission contained in the
Prospectus, the Registration Statement, or any state securities filing which was
not based on information supplied to the Company by the Managing Dealer or a
Participating Broker; or (ii) the breach by the Managing Dealer or any
Participating Broker acting on its behalf of any of the terms and conditions of
this Agreement or any Participating Broker Agreement, including, but not limited
to, alleged violations of the Securities Act of 1933, as amended.
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The Company agrees to indemnify, defend and hold harmless the Managing
Dealer and its employees, officers, directors and Affiliates, from all losses,
claims, demands, liabilities and expenses, including reasonable legal and other
expenses incurred in defending such claims or liabilities, whether or not
resulting in any liability to the Managing Dealer, which the Managing Dealer may
incur in connection with the offer or sale of any Shares, which arise out of or
are based upon (i) an untrue statement or alleged untrue statement of a material
fact, or any omission or alleged omission of a material fact, contained in the
Prospectus, the Registration Statement, or any state securities filing, or (ii)
the breach by the Company of any of the terms and conditions of this Agreement,
including, but not limited to, alleged violations of the Securities Act of 1933,
as amended.
SECTION 10
Miscellaneous
10.1 Notices. Any notice, approval, request, authorization, direction or
other communication under this Agreement shall be given in writing and shall be
deemed to be delivered when delivered in person or deposited in the United
States mail, properly addressed and stamped with the required postage,
registered or certified mail, return receipt requested, to the intended
recipient as set forth below.
If to the Company: CNL Hospitality Properties, Inc.
CNL Center at City Commons
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Xx., Chairman of the Board
If to the Managing Dealer: CNL Securities Corp.
CNL Center at City Commons
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, President
Any party may change its address specified above by giving each other party
notice of such change in accordance with this Paragraph 10.1.
10.2 Invalid Provision. The invalidity or unenforceability of any
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
10.3 No Partnership. Nothing in this Agreement shall be construed or
interpreted to constitute the Managing Dealer as in association with or in
partnership with the Company, and instead, this Agreement only shall constitute
the Managing Dealer as a dealer authorized by the Company to sell and to manage
the sale by others of the Shares according to the terms set forth in the
Registration Statement, the Prospectus or this Agreement.
10.4 No Third Party Beneficiaries. No provision of this Agreement is
intended to be for the benefit of any person or entity not a party to this
Agreement, and no third party shall be deemed to be a beneficiary of any
provision of this Agreement. Further, no third party shall by virtue of any
provision of this Agreement have a right of action or an enforceable remedy
against either party to this Agreement.
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10.5 Survival. Paragraph 5.3 and Section 9 and all provisions of this
Agreement which may reasonably be interpreted or construed as surviving the
expiration or termination of this Agreement shall survive the expiration or
termination of this Agreement.
10.6 Entire Agreement. This Agreement constitutes the complete
understanding among the parties hereto, and no variation, modification or
amendment to this Agreement shall be deemed valid or effective unless and until
it is signed by all parties hereto.
10.7 Successors and Assigns. No party shall assign (voluntarily, by
operation of law or otherwise) this Agreement or any right, interest or benefit
under this Agreement without the prior written consent of the other party.
Subject to the foregoing, this Agreement shall be fully binding upon, inure to
the benefit of, and be enforceable by, the parties hereto and their respective
successors and assigns.
10.8 Nonwaiver. The failure of any party to insist upon or enforce strict
performance by any other party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such party's right to assert or rely upon any
such provision or right in that or any other instance; rather, such provision or
right shall be and remain in full force and effect.
10.9 Applicable Law. This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the State of Florida
applicable to contracts to be made and performed entirely in said state.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Company: CNL HOSPITALITY PROPERTIES, INC.
By: ___________________________________________
XXXXX X. XXXXXX, XX., Chairman of the Board
Managing Dealer: CNL SECURITIES CORP.
By: ___________________________________________
XXXXXX X. XXXXXX, President
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