Exhibit 10.8
FORM OF SELECTED INVESTMENT ADVISOR AGREEMENT
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 "Sales Agent") 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");
WHEREAS, the Sales Agent 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, presently registered as an investment advisor under the
Investment Advisers Act of 1940, as amended, and presently registered or
licensed as an investment advisor by the appropriate regulatory agency of each
state in which the SIA has clients, or exempt from such registration
requirements; and
WHEREAS, the Company has a currently effective registration statement on
Form S-11 (File No. 333-140842), 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, 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 following terms and conditions;
NOW, THEREFORE, in consideration of the premises and terms and conditions
thereof, it is agreed between the Company, Sales Agent 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
Investment Advisers Act of 1940, as amended, 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 Sales Agent.
(b) Clients of the SIA may, following receipt of written notice by the SIA
from the Sales Agent 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 Sales Agent.
The Sales Agent 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 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 Xxxxx Fargo Bank, National
Association (the "Escrow Agent") until subscription proceeds reach $10 million,
where such monies will be deposited in an escrow account established by the
Company solely for such subscriptions, except that, until such time (if any)
that such monies are deliverable to the Company pursuant to the Escrow Agreement
between the Company and the Escrow Agent, the SIA shall return any check not
made payable to "Xxxxx Fargo Bank, National Association, Escrow Agent" directly
to the subscriber who submitted the check. Subscription proceeds in excess of
$10 million will be delivered by the Company to the Bank of the West (each of
such Bank of the West and Xxxxx Fargo being an "Agent Bank"). 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 the
applicable Agent Bank 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 Sales Agent 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 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 investor's overall investment objectives and portfolio
structure;
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(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
employees and agents of Xxxxx Asset Management Corp., the advisor to the
Company; and (f) the tax consequences of an investment in the Shares.
(v) The SIA will make the determinations required to be made by it
pursuant to subparagraph (g) based on information it has obtained from each
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 SIA to be
relevant.
(h) 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 investor concerning his 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 him 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 transactions by the investor;
(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 (3)
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 investor of all pertinent
facts relating to the liquidity and marketability of the Shares.
(i) 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.
(j) 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.
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(k) 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.
(l) 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 investor 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.
(m) 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 and the 2.5% selected dealer fee, at
a per Share purchase price of $9.15 which includes a $0.15 per share wholesaling
fee payable to the Sales Agent for wholesaling expenses.
2. Compensation to SIA. The Company and the Sales Agent shall pay no fees,
commissions, or other compensation to the SIA.
3. Association of the Sales Agent with Other Advisors and Dealers. It is
expressly understood between the Sales Agent and the SIA that the Sales Agent
may cooperate with broker-dealers who are registered as broker-dealers with the
Financial Industry Regulatory Authority (the "FINRA") or with other investment
advisors registered under the Investment Advisers Act of 1940, as amended. Such
broker-dealers and investment advisors may enter into agreements with the Sales
Agent 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
Sales Agent 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 Sales Agent of its obligations hereunder and compliance by
the Sales Agent 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 Sales Agent's Obligations. The obligations of the
Sales Agent 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 Investment
Advisers Act of 1940, as amended, and registered or licensed as an investment
advisor by the appropriate regulatory agency of each state in which the advisor
has clients, or exempt from such registration requirements.
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(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
Investment Advisers Act of 1940, as amended, 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
Investment Advisers Act of 1940, as amended, and Rule 204-2 thereunder in the
form and for the periods required thereby.
(e) The SIA and any person associated with the SIA has complied, in all
material respects, with the identification, verification, and documentation
sections of the Patriot Act.
7. Covenants of the Sales Agent. The Sales Agent covenants, warrants and
represents, during the full term of this Agreement, that:
(a) It 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) It 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) It 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
Sales Agent, 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 Sales Agent, 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 Sales Agent 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
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negligence, malpractice or malfeasance of the SIA. This indemnity provision
shall survive the termination of this Agreement.
(b) The Company and the Sales Agent agrees 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 Sales Agent, or any officer of the Company or the Sales Agent
by such SIA; provided 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 agreements
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 agreement 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 Sales Agent and the SIA.
The SIA, the Company and the Sales Agent 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
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Statement for 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 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
Attention: Office of the General Counsel-Xxxx Xxxxx, Esq.
XXXXX FINANCIAL, LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 000000
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) This Agreement shall be construed in accordance with the applicable
laws of the State of New York.
(b) Nothing in this Agreement shall constitute the SIA as in association
with or in partnership with the Company or the Sales Agent.
(c) 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.
(d) 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.
(e) 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.
(f) 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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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:
---------------------------
SALES AGENT
XXXXX FINANCIAL, LLC
By:
--------------------------------
Print Name:
--------------------
Title:
-------------------------
Witness:
---------------------------
SELECTED INVESTMENT ADVISOR
------------------------------------
(Name of SIA)
By:
--------------------------------
Print Name:
--------------------
Title:
-------------------------
Witness:
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EXHIBIT A
TO
SELECTED INVESTMENT ADVISOR AGREEMENT
This Exhibit A is attached to and made a part of that certain Selected
Investment Advisor Agreement, dated as of the ______ day of _______,_____, by
and among Corporate Property Associates 17 - Global Incorporated, as Company,
Xxxxx Financial, LLC, as Sales Agent and ____________________________, as
Selected Investment Advisor.
1. Date of Agreement:________________________________________________________
2. Identity of Selected Investment Advisor:__________________________________
Name:_____________________________________________________________________
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 Paragraph 11 of Agreement):
Name:_____________________________________________________________________
Title:____________________________________________________________________
Company:__________________________________________________________________
Address:__________________________________________________________________
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City, State and Zip Code:_________________________________________________
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.
(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 CPA(R):17 - GLOBAL 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 CPA(R):17 - GLOBAL 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: ________________________________________________
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