Exhibit 10.1
ASSET MANAGEMENT AGREEMENT
THIS ASSET MANAGEMENT AGREEMENT, dated as of July 1, 2008, is between
CORPORATE PROPERTY ASSOCIATES 15 INCORPORATED, a Maryland corporation (the
"Company"), and W.P. XXXXX & Co. B.V., a Netherlands company (the "Manager").
WITNESSETH:
WHEREAS, the Company intends to qualify as a REIT (as defined below), and
to invest its funds in investments permitted by the terms of any prospectus
pursuant to which it raised equity capital and Sections 856 through 860 of the
Code (as defined below);
WHEREAS, the Company desires to avail itself of the experience, sources of
information, and assistance of, and certain facilities available to, the Manager
with respect to disposition opportunities and asset management, for properties
located outside of the United States, and to have the Manager undertake the
duties and responsibilities hereinafter set forth, on behalf of, and subject to
the supervision of the Board of Directors of the Company, all as provided
herein; and
WHEREAS, the Manager is willing to render such services, subject to the
supervision of the Board of Directors, on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms have the
definitions hereinafter indicated:
Acquisition Expense. Acquisition Expense as defined under the Advisory
Agreement.
Acquisition Fee. The Acquisition Fee as defined under the Advisory
Agreement.
Adjusted Invested Assets. The average during any period of the
aggregate historical cost, or to the extent available for a particular
asset, the most recent Appraised Value, of the Investment Assets of the
Company, before accumulated reserves for depreciation or bad debt
allowances or other similar non-cash reserves, computed (unless otherwise
specified) by taking the average of such values at the end of each month
during such period.
Adjusted Investor Capital. As of any date, the Initial Investor
Capital reduced by any Redemptions, other than Redemptions intended to
qualify as a liquidity event for purposes of this Agreement, and by any
other Distributions on or prior to such date determined by the Board to be
from Cash from Sales and Financings.
Adjusted Net Income. For any period, the total revenues recognized in
such period, less the total expenses recognized in such period excluding
additions to reserves for depreciation and amortization, bad debts or other
similar non-cash reserves, provided, however, if the Advisor receives a
Subordinated Incentive Fee, Adjusted Net Income for
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purposes of calculating total allowable Operating Expenses shall exclude
any gain, losses or writedowns from the sale of the Company's assets that
gave rise to such Subordinated Incentive Fee.
Advisor. The Company's external advisor. As of the date of this
Agreement, the Advisor is Xxxxx Asset Management Corp.
Advisory Agreement. The Advisory Agreement, dated as of September 30,
2007, between the Company and the Advisor, as the same may be amended,
supplemented, extended and renewed, and any successor advisory agreement.
Affiliate. An Affiliate of another Person shall include any of the
following: (i) any Person directly or indirectly owning, controlling, or
holding, with power to vote ten percent or more of the outstanding voting
securities of such other Person; (ii) any Person ten percent or more of
whose outstanding voting securities are directly or indirectly owned,
controlled, or held, with power to vote, by such other Person; (iii) any
Person directly or indirectly controlling, controlled by, or under common
control with such other Person; (iv) any executive officer, director,
trustee or general partner of such other Person; or (v) any legal entity
for which such Person acts as an executive officer, director, trustee or
general partner.
Agreement. This Asset Management Agreement.
Appraised Value. Value according to an appraisal made by an
Independent Appraiser, which may take into consideration any factor deemed
appropriate by such Independent Appraiser, including, but not limited to,
the terms and conditions of any lease of the relevant property, the quality
of any lessee's credit and the conditions of the credit markets. The
Appraised Value may be greater than the construction cost or the
replacement cost of the property. For purposes of the definition of
Adjusted Invested Assets, Appraised Value shall not include the initial
appraisal of any property in connection with the acquisition of that
property.
Articles of Incorporation. Articles of Incorporation of the Company
under the General Corporation Law of Maryland, as amended from time to
time, pursuant to which the Company is organized.
Asset Management Fee. The Asset Management Fee as defined in Section
9(a) hereof.
Average Invested Assets. The average during any period of the
aggregate book value of the assets of the Company invested, directly or
indirectly, in Properties and in Loans, before deducting reserves for
depreciation, bad debts, impairments, amortization and all other similar
non-cash reserves, computed by taking the average of such values at the end
of each month during such period.
Board or Board of Directors. The Board of Directors of the Company.
Bylaws. The bylaws of the Company.
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Cash from Financings. Net cash proceeds realized by the Company from
the financing of Investment Assets or the refinancing of any Company
indebtedness secured by real estate located outside the United States.
Cash from Sales. Net cash proceeds realized by the Company from the
sale, exchange or other disposition of any of its assets located outside
the United States after deduction of all expenses incurred in connection
therewith. Cash from Sales shall not include Cash from Financings.
Cash from Sales and Financings. The total sum of Cash from Sales and
Cash from Financings.
Cause. With respect to the termination of this Agreement, fraud,
criminal conduct, willful misconduct or willful or negligent breach of
fiduciary duty by the Manager that, in each case, is determined by a
majority of the Independent Directors to be materially adverse to the
Company, or a breach of a material term or condition of this Agreement by
the Manager and the Manager has not cured such breach within 30 days of
written notice thereof or, in the case of any breach that cannot be cured
within 30 days by reasonable effort, has not taken all necessary action
within a reasonable time period to cure such breach.
Code. Internal Revenue Code of 1986, as amended.
Company. Corporate Property Associates 16 - Global Incorporated, a
corporation organized under the laws of the State of Maryland.
Competitive Real Estate Commission. The real estate or brokerage
commission paid for the purchase or sale of a property that is reasonable,
customary and competitive in light of the size, type and location of the
property.
Contract Sales Price. The total consideration received by the Company
for the sale of Properties and Loans.
Cumulative Return. For the period for which the calculation is being
made, the percentage resulting from dividing (A) the total Distributions
for such period (not including Distributions out of Cash from Sales and
Financings), by (B) the product of (i) the average Adjusted Investor
Capital for such period (calculated on a daily basis), and (ii) the number
of years (including fractions thereof) elapsed during such period.
Notwithstanding the foregoing, neither the Shares received by the Manager
or its Affiliates for any consideration other than cash, nor the
Distributions in respect of such Shares, shall be included in the foregoing
calculation.
Directors. The persons holding such office, as of any particular time,
under the Articles of Incorporation, whether they be the directors named
therein or additional or successor directors.
Distributions. Distributions declared by the Board.
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GAAP. Generally accepted accounting principles in the United States.
Good Reason. With respect to the termination of this Agreement, (i)
any failure to obtain a satisfactory agreement from any successor to the
Company to assume and agree to perform the Company's obligations under this
Agreement; or (ii) any material breach of this Agreement of any nature
whatsoever by the Company; provided that such breach (a) is of a material
term or condition of this Agreement and (b) the Company has not cured such
breach within 30 days of written notice thereof or, in the case of any
breach that cannot be cured within 30 days by reasonable effort, has not
taken all necessary action within a reasonable time period to cure such
breach.
Gross Offering Proceeds. The aggregate purchase price of Shares sold
in any Offering.
Independent Appraiser. A qualified appraiser of real estate as
determined by the Board, who is not affiliated, directly or indirectly,
with the Company, the Manager or their respective Affiliates. Membership in
a nationally recognized appraisal society such as the American Institute of
Real Estate Appraisers or the Society of Real Estate Appraisers shall be
conclusive evidence of such qualification.
Independent Director. A Director of the Company who meets the criteria
for an Independent Director specified in the Bylaws.
Individual. Any natural person and those organizations treated as
natural persons in Section 542(a) of the Code.
Initial Closing Date. The first date on which Shares were issued
pursuant to an Offering.
Initial Investor Capital. The total amount of capital invested from
time to time by Shareholders (computed at the Original Issue Price per
Share), excluding any Shares received by the Manager, the Advisor or their
respective Affiliates for any consideration other than cash.
Investment Asset. Any Property, Loan or, subject to Section 4(b) Other
Permitted Investment Asset.
Loan Refinancing Fee. The Loan Refinancing Fee as defined in Section
9(b) hereof.
Loans. The notes and other evidences of indebtedness or obligations
acquired or entered into by the Company as lender which are secured or
collateralized by personal property, or fee or leasehold interests in real
estate or other assets, in each case located outside the United States,
including but not limited to first or subordinate mortgage loans,
construction loans, development loans, loans secured by capital stock or
any other assets or form of equity interest and any other type of loan or
financial arrangement, such as providing or arranging for letters of
credit, providing guarantees of obligations to third
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parties, or providing commitments for loans. The term "Loans" shall not
include leases, which are not recognized as leases for Federal income tax
reporting purposes.
Manager. W.P. Xxxxx & Co. B.V., a company organized under the laws of
The Netherlands.
Market Value. The value calculated by multiplying the total number of
outstanding Shares by the average closing price of the Shares over the 30
trading days beginning 180 calendar days after the Shares are first listed
on a national security exchange or included for quotation on Nasdaq, as the
case may be.
Nasdaq. The national automated quotation system operated by the
National Association of Securities Dealers, Inc.
Offering. The offering of Shares pursuant to a Prospectus.
Operating Expenses. All operating, general and administrative expenses
paid or incurred by the Company, as determined under GAAP, except the
following (insofar as they would otherwise be considered operating, general
and administrative expenses under GAAP): (i) interest and discounts and
other cost of borrowed money; (ii) taxes (including state and Federal
income tax, property taxes and assessments, franchise taxes and taxes of
any other nature); (iii) expenses of raising capital, including
Organization and Offering Expenses, printing, engraving, and other
expenses, and taxes incurred in connection with the issuance and
distribution of the Company's Shares and Securities; (iv) Acquisition
Expenses, real estate commissions on resale of real estate interests and
other expenses connected with the acquisition, disposition, origination,
ownership and operation of real estate interests, mortgage loans, or other
property, including the costs of foreclosure, insurance premiums, legal
services, brokerage and sales commissions, maintenance, repair and
improvement of property; (v) Acquisition Fees; (vi) Subordinated
Disposition Fees payable under this Agreement and the corresponding fees
payable to the Advisor under the Advisory Agreement, or to any other party;
(vi) non-cash items, such as depreciation, amortization, depletion, and
additions to reserves for depreciation, amortization, depletion, losses and
bad debts; (vii) Termination Fees; (viii) Subordinated Incentive Fees; (ix)
Asset Management Fees payable under this Agreement and the corresponding
fees payable under the Advisory Agreement and (x) Loan Refinancing Fees
payable under this Agreement and the corresponding fees payable under the
Advisory Agreement.
Organization and Offering Expenses. Organization and Offering Expenses
as defined under the Advisory Agreement.
Original Issue Price. For any share issued in an Offering, the price
at which such Share was initially offered to the public by the Company,
regardless of whether selling commissions were paid in connection with the
purchase of such Shares from the Company.
Other Permitted Investment Asset. An asset, other than cash, cash
equivalents, short term bonds, auction rate securities and similar short
term investments, acquired by
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the Company for investment purposes that is not a Loan or a Property but
that is attributable to an investment or activities of the Company outside
the United States and is consistent with the investment objectives and
policies of the Company.
Person. An Individual, corporation, partnership, joint venture,
association, company, trust, bank, or other entity, or government or any
agency or political subdivision of a government.
Preferred Return. A Cumulative Return of six percent computed from the
Initial Closing Date through the date as of which such amount is being
calculated.
Property or Properties. The Company's partial or entire interest in
real property (including leasehold interests) located outside the United
States and personal or mixed property connected therewith. An investment
which obligates the Company to acquire a Property will be treated as a
Property for purposes of this Agreement.
Property Management Fee. A fee for property management services
rendered by the Advisor or its Affiliates in connection with assets of the
Company acquired directly or through foreclosure.
Prospectus. Any prospectus pursuant to which the Company offers Shares
in a public offering, as the same may at any time and from time to time be
amended or supplemented after the effective date of the registration
statement in which it is included.
Redemptions. An amount determined by multiplying the number of Shares
redeemed by the Original Issue Price.
REIT. A real estate investment trust, as defined in Sections 856-860
of the Code.
Securities. Any stock, shares (other than currently outstanding Shares
and subsequently issued Shares), voting trust certificates, bonds,
debentures, notes or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise or in general any instruments
commonly known as "securities" or any certificate of interest, shares or
participation in temporary or interim certificates for receipts (or,
guarantees of, or warrants, options or rights to subscribe to, purchase or
acquire any of the foregoing), which subsequently may be issued by the
Company.
Shareholders. Those Persons who at the time any calculation hereunder
is to be made are shown as holders of record of Shares on the books and
records of the Company.
Shares. All of the shares of common stock of the Company, $.001 par
value, and any other shares of common stock of the Company.
Sponsor. W.P. Xxxxx & Co. LLC and any other Person directly or
indirectly instrumental in organizing, wholly or in part, the Company or
any person who will control, manage or participate in the management of the
Company, and any Affiliate of any such person. Sponsor does not include a
person whose only relationship to the Company is that of an independent
property manager and whose only compensation is as
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such. Sponsor also does not include wholly independent third parties such
as attorneys, accountants and underwriters whose only compensation is for
professional services.
Subordinated Acquisition Fee. The Subordinated Acquisition Fee as
defined under the Advisory Agreement.
Subordinated Disposition Fee. The Subordinated Disposition Fee as
defined in Section 9(d) hereof.
Subordinated Incentive Fee. The Subordinated Incentive Fee as defined
under the Advisory Agreement.
Termination Date. The effective date of any termination of this
Agreement.
Termination Fee. The Termination Fee as defined under the Advisory
Agreement.
Two Percent/25% Guidelines. The requirement, as provided in Section 13
hereof, that, in any 12-month period ending on the last day of any fiscal
quarter, aggregate Operating Expenses under this Agreement and the Advisory
Agreement not exceed the greater of two percent of the Company's Average
Invested Assets during such 12-month period or 25% of the Company's
Adjusted Net Income over the same 12-month period.
2. APPOINTMENT. The Company hereby appoints the Manager to serve as its
manager on the terms and conditions set forth in this Agreement, and the Manager
hereby accepts such appointment.
3. DUTIES OF THE MANAGER. During the term of this Agreement, the Manager
agrees, for and in consideration of the compensation set forth below, to
supervise and direct the management and operation of the Properties on behalf of
the Company and for the account of the Company, in an efficient and satisfactory
manner consistent with like quality properties and at all times maintain or
contract for systems and personnel sufficient to enable it to carry out all of
its duties, obligations and functions under this Agreement. In performance of
this undertaking, subject to the supervision of the Board and consistent with
the provisions of the Articles of Incorporation and Bylaws of the Company and
any Prospectus pursuant to which Shares are offered, the Manager shall, with
respect to the Properties, either directly or by engaging an Affiliate:
(a) demand, collect and receive (i) all rents, utility charges, common
area charges, insurance charges, VAT payments and real estate and personal
property tax and assessment charges, (ii) all other pass-through or xxxx-back
charges, sums, costs or expenses of any nature whatsoever payable by tenants
under the terms of any or all of the leases and any other agreements relating to
all or any portion of the Properties, and (iii) all other revenues, issues and
profits accruing from the Properties and any covenant calculations and insurance
certificates;
(b) calculate and administer rent calculations; maintain and review
tenant covenant calculations; calculate and submit lender covenant calculations;
and maintain letters of credits and security deposit information;
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(c) serve as primary contact to all tenants, field inquiries and
requests; process easements and landlord lien waivers; manage third party asset
managers and coordinate loan closings with third party asset managers; inspect
at-risk properties, oversee inspections by lenders and third-party property
inspection firms, and coordinate site visits and reports; ascertain necessary
repair and monitor deferred maintenance, and ensure tenant compliance; schedule
and coordinate tenant improvement projects and leasing efforts; create expense
budgets for vacant properties as needed and pro forma expense budgets for
at-risk properties; assist in executing redevelopment strategies; provide or
source technical expertise when necessary relating to building issues;
formulate, structure and oversee redevelopment projects; and meet with tenants
to discuss potential needs;
(d) assess residual risk and long term viability on all Properties;
perform credit analysis of tenant businesses and economic analysis of holding
and selling Properties; maximize returns for the Company through early renewals
or sales of Properties; manage bankruptcy process and monitor credit quality of
portfolios; restructure leases as necessary; execute opportunistic mortgage
refinancing; coordinate with annual third party appraisers in valuation process;
and assess and manage market risks and risks associated with legal, tax, and
corporate structure;
(e) supervise the performance of such ministerial and administrative
functions as may be necessary in connection with the daily operations of the
Properties, including but not limited to, overseeing and training for
international compliance functions and staffing; overseeing and ensuring tax,
legal, and regulatory compliance; ensuring timely completion of all obligations
by tenants; and ensuring smooth integration of new investments into asset
management platform;
(f) from time to time, or at any time reasonably requested by the
Board or management of the Company, make reports of its performance of services
to the Company under this Agreement, including the State of the Assets and bi
weekly status reports to be provided to the Company's management;
(g) provide the Company with such accounting data and any other
information requested by the Company concerning the investment activities of the
Company as shall be required to prepare and to file all periodic financial
reports and returns required to be filed with the Securities and Exchange
Commission and any other regulatory agency, including annual financial
statements;
(h) perform corporate secretarial work including, but not limited to,
tracking of dates of required filings and annual general meetings for
subsidiaries of the Company; obtaining and coordinating all relevant materials
needed for audit and/or statutory filing, including approvals of financial
information, auditor's representation letters, and minutes and resolutions;
preparing financial analyses of recurring payments; maintaining information for
compliance reports; organizing, planning, and presenting International State of
the Assets meetings; and preparing International Asset Operating Committee
Memos;
(i) do all things necessary to assure its ability to render the
services described in this Agreement;
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(j) obtain for, or provide to, the Company such services as may be
required in disposing of Investment Assets;
Notwithstanding anything to the contrary in this Agreement, the
Company acknowledges that the Manager does not have an office in the United
States and intends to conduct its business in a manner that will not cause
Manager to be deemed to be engaged in a United States trade or business or have
a permanent establishment in the United States.
4. AUTHORITY OF MANAGER.
(a) Pursuant to the terms of this Agreement (and subject to the
restrictions included in Paragraphs (b) of this Section 4 and in Section 7
hereof), and subject to the continuing and exclusive authority of the Board over
the management of the Company, the Board hereby delegates to the Manager the
authority to: (1) arrange for refinancing, or assess changes in the asset or
capital structure of, and dispose of or otherwise deal with, Properties; (2)
enter into leases and service contracts for Properties, and perform other
property level operations; (3) oversee non-affiliated property managers and
other non-affiliated Persons who perform services for the Company; (4) undertake
accounting and other record-keeping functions at the Property level; and (5)
perform its duties set forth in Section 3.
(b) The Manager shall be authorized to perform the services
contemplated by this Agreement with respect to Investment Assets other than
Properties and Loans; provided, however, that if fees for such services will be
different from the fees contemplated by Section 9 of this Agreement, such fees
shall be approved in advance by a majority of the Independent Directors.
(c) The prior approval of the Board, including a majority of the
Independent Directors and a majority of the Directors not interested in the
transaction will be required for: (i) transactions that present issues which
involve conflicts of interest for the Manager or an Affiliate (other than
conflicts involving the payment of fees or the reimbursement of expenses); (ii)
the lease of assets to the Sponsor, any Director, the Manager or any Affiliate
of the Manager; (iii) any purchase or sale of an Investment Asset from or to the
Manager or an Affiliate; and (iv) the retention of any Affiliate of the Manager
to provide services to the Company not expressly contemplated by this Agreement
and the terms of such services by such Affiliate. In addition, the Manager shall
comply with any further approval requirements set forth in the Bylaws.
(d) The Board may, at any time upon the giving of notice to the
Manager, modify or revoke the authority set forth in this Section 4. If and to
the extent the Board so modifies or revokes the authority contained herein, the
Manager shall henceforth comply with such modification or revocation, provided
however, that such modification or revocation shall be effective upon receipt by
the Manager and shall not be applicable to transactions to which the Manager has
committed the Company prior to the date of receipt by the Manager of such
notification.
5. BANK ACCOUNTS. The Manager may establish and maintain one or more bank
accounts in its own name. The Manager may establish and maintain one or more
bank accounts for the account of the Company or in the name of the Company and
may collect and deposit into
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any such account or accounts, and disburse from any such account or accounts,
any money on behalf of the Company, provided that no funds shall be commingled
with the funds of the Manager; and the Manager shall from time to time render
appropriate accountings of such collections and payments to the Board and to the
auditors of the Company.
6. RECORDS; ACCESS. The Manager shall maintain appropriate records of all
its activities hereunder and make such records available for inspection by the
Board and by counsel, auditors and authorized agents of the Company, at any time
or from time to time during normal business hours. The Manager shall at all
reasonable times have access to the books and records of the Company.
7. LIMITATIONS ON ACTIVITIES. Anything else in this Agreement to the
contrary notwithstanding, the Manager shall refrain from taking any action
which, in its sole judgment made in good faith, would adversely affect the
status of the Company as a REIT, subject the Company to regulation under the
Investment Company Act of 1940, violate any law, rule, regulation or statement
of policy of any governmental body or agency having jurisdiction over the
Company, its Shares or its Securities, or otherwise not be permitted by the
Articles of Incorporation or Bylaws, except if such action shall be ordered by
the Board, in which case the Manager shall notify promptly the Board of the
Manager's judgment of the potential impact of such action and shall refrain from
taking such action until it receives further clarification or instructions from
the Board. In such event the Manager shall have no liability for acting in
accordance with the specific instructions of the Board so given. Notwithstanding
the foregoing, the Manager, its shareholders, directors, officers and employees,
and partners, shareholders, directors and officers of the Manager's partners and
Affiliates of any of them, shall not be liable to the Company, or to the
Directors or Shareholders for any act or omission by the Manager, its partners,
directors, officers and employees, or partners, shareholders, directors or
officers of the Manager's partners except as provided in Sections 18 and 20
hereof.
8. RELATIONSHIP WITH DIRECTORS. There shall be no limitation on any
shareholder, director, officer, employee or Affiliate of the Manager serving as
a Director or an officer of the Company, except that no employee of the Manager
or its Affiliates who also is a Director or officer of the Company shall receive
any compensation from the Company for serving as a Director or officer other
than for reasonable reimbursement for travel and related expenses incurred in
attending meetings of the Board; for the avoidance of doubt, the limitations of
this Section 8 shall not apply to any compensation paid by the Manager or any
Affiliate for which the Company reimbursed the Manager or Affiliate in
accordance with Section 10 hereof.
9. FEES.
(a) ASSET MANAGEMENT FEE. The Company shall pay to the Manager as
compensation for the services rendered to the Company hereunder an amount equal
to one percent per annum of the Adjusted Invested Assets of the Company (the
"Asset Management Fee") calculated as set forth below. The Asset Management Fee
will be calculated monthly, beginning with the month in which the Company and
the Manager execute this Agreement, on the basis of one-twelfth of one percent
of the Adjusted Invested Assets for that month, computed as a daily average. The
Asset Management Fee shall be prorated for the number of days during the month
that the Company owns an Investment Asset. One-half of the Asset Management Fee
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with respect to an Investment Asset will be paid on the first business day of
each month beginning on the first business day after the month in which the
Investment Asset was acquired or originated. The remaining one-half of the Asset
Management Fee shall be subordinated to the extent described below and shall be
payable quarterly. The subordinated Asset Management Fee for any quarter shall
be payable only if the Preferred Return has been met through the end of the
applicable quarter. Any portion of the subordinated Asset Management Fee not
paid due to the Company's failure to meet the Preferred Return shall be paid by
the Company, to the extent it is not restricted by the Two Percent/25%
Guidelines as described below, at the end of the next fiscal quarter through
which the Company has met the Preferred Return. If at the end of any fiscal
quarter, the Company's Operating Expenses exceed the Two Percent/25% Guidelines
over the immediately preceding 12 months, payment of the subordinated Asset
Management Fee will be withheld consistent with Section 13. Any part of the
Asset Management Fee that has been subordinated pursuant to this subsection (a)
shall not be deemed earned until such time as payable hereunder.
(b) Loan Refinancing Fee. The Company shall pay to the Manager for all
qualifying loan refinancings of Properties a Loan Refinancing Fee in the amount
up to one percent of the principal amount of the refinanced loan. Any Loan
Refinancing Fee shall be due and payable upon the funding of the related loan or
as soon thereafter as is reasonably practicable. A refinancing will qualify for
a Loan Refinancing Fee only if the refinanced loan is secured by Property and
(i) the maturity date of the refinanced loan (which must have a term of five
years or more) is less than one year from the date of the refinancing; or (ii)
the terms of the new loan represent, in the judgment of a majority of the
Independent Directors, an improvement over the terms of the refinanced loan; or
(iii) the new loan is approved by the Board, including a majority of the
Independent Directors and, in each case, the Loan Refinancing Fee is found, in
the judgment of a majority of the Independent Directors, to be in the best
interest of the Company.
(c) Property Management Fee. No Property Management Fee shall be paid
unless approved by a majority of the Independent Directors.
(d) Subordinated Disposition Fee. If the Manager provides a
substantial amount of services in the sale of a Property or Loan, the Manager
shall receive a fee equal to the lesser of: (i) 50% of the Competitive Real
Estate Commission and (ii) three percent of the Contract Sales Price of such
Property (the "Subordinated Disposition Fee"). The Subordinated Disposition Fee
will be paid only if Shareholders have received in the aggregate a return of
100% of Initial Investor Capital (through liquidity or Distributions) plus a
Preferred Return through the end of the fiscal quarter immediately preceding the
date the Subordination Disposition Fee is paid. The return requirement will be
deemed satisfied if the total Distributions paid by the Company have satisfied
the Preferred Return requirement and the Market Value of the Company equals or
exceeds Adjusted Investor Capital. To the extent that Subordinated Disposition
Fees are not paid by the Company on a current basis due to the foregoing
limitation, the unpaid fees will be due and paid at such time as the limitation
has been satisfied. The Subordinated Disposition Fee may be paid in addition to
real estate commissions paid to non-Affiliates, provided that the total of all
real estate commissions in respect of a Property paid to all Persons by the
Company and the Subordinated Disposition Fee shall not exceed an amount equal to
the lesser of: (i) six percent of the Contract Sales Price of such Property or
(ii) the
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Competitive Real Estate Commission. The Manager shall present to the Independent
Directors such information as they may reasonably request to review the level of
services provided by the Manager in connection with a disposition and the basis
for the calculation of the amount of the accrued Subordinated Disposition Fees
on an annual basis. The amount of any accrued Subordinated Disposition Fee shall
be deemed conclusively established once it has been approved by the Independent
Directors, absent a subsequent finding of error. No payment of Subordinated
Disposition Fees shall be made prior to review and approval of such information
by the Independent Directors. If this Agreement is terminated prior to such time
as the Shareholders have received (through liquidity or Distributions) a return
of 100% of Initial Investor Capital plus a Preferred Return through the date of
termination of this Agreement, an appraisal of the Properties then owned by the
Company shall be made and any unpaid Subordinated Disposition Fee on Properties
sold prior to the date of termination will be payable if the Appraised Value of
the Properties then owned by the Company plus Distributions to Shareholders
prior to the date of termination of this Agreement (through liquidity or
Distributions) is equal to or greater than 100% of Initial Investor Capital plus
an amount sufficient to pay a Preferred Return through the date of termination
of this Agreement. If the Company's Shares are listed on a national securities
exchange or included for quotation on Nasdaq and, at the time of such listing,
the Manager has provided a substantial amount of services in the sale of
Property, for purposes of determining whether the subordination conditions for
the payment of the Subordinated Disposition Fee have been satisfied,
Shareholders will be deemed to have received a Distribution in an amount equal
to the Market Value of the Company.
(e) LOANS FROM AFFILIATES. The Company shall not borrow funds from the
Manager or its Affiliates unless (A) the transaction is approved by a majority
of the Independent Directors and a majority of the Directors who are not
interested in the transaction as being fair, competitive and commercially
reasonable, (B) the interest and other financing charges or fees received by the
Manager or its Affiliates do not exceed the amount which would be charged by
non-affiliated lending institutions and (C) the terms are not less favorable
than those prevailing for comparable arm's-length loans for the same purpose.
The Company will not borrow on a long-term basis from the Manager or its
Affiliates unless it is to provide the debt portion of a particular investment
and the Company is unable to obtain a permanent loan at that time or in the
judgment of the Board, it is not in the Company's best interest to obtain a
permanent loan at the interest rates then prevailing and the Board has reason to
believe that the Company will be able to obtain a permanent loan on or prior to
the end of the loan term provided by the Manager or its Affiliates.
(f) CHANGES TO FEE STRUCTURE. In the event the Shares are listed on a
national securities exchange or are included for quotation on Nasdaq, the
Company and the Manager shall negotiate in good faith to establish a fee
structure appropriate for an entity with a perpetual life. A majority of the
Independent Directors must approve the new fee structure negotiated with the
Manager. In negotiating a new fee structure, the Independent Directors may
consider any of the factors they deem relevant, including but not limited to:
(a) the size of the Asset Management Fee in relation to the size, composition
and profitability of the Company's portfolio; (b) the rates charged to other
REITs and to investors other than REITs by Managers performing similar services;
(c) additional revenues realized by the Manager and its Affiliates through their
relationship with the Company, including loan administration, underwriting or
12
broker commissions, servicing, engineering, inspection and other fees, whether
paid by the Company or by others with whom the Company does business; (d) the
quality and extent of service furnished by the Manager; (e) the performance of
the investment portfolio of the Company, including income, conversion or
appreciation of capital, frequency of problem investments and competence in
dealing with distress situations and (f) the quality of the portfolio of the
Company in relationship to the portfolio of real properties owned and managed by
W.P. Xxxxx & Co. LLC for its own account. The new fee structure can be no more
favorable to the Manager than the current fee structure. The Independent
Directors shall not approve any new fee structure that is in their judgment more
favorable (taken as a whole) to the Manager than the current fee structure.
(g) PAYMENT. The Company shall pay the compensation payable pursuant
to this Section 9 directly to the Manager; provided, however, that any fee
payable pursuant to Section 9 may be paid, at the option of the Manager, in the
form of: (i) cash, (ii) common stock of the Company, or (iii) a combination of
cash and common stock. The Manager shall notify the Company in writing annually
of the form in which the fee shall be paid. Such notice shall be provided no
later than December 31 of the year prior to the year to which such election
applies. If no such notice is provided, the fee shall be paid in cash. For
purposes of the payment of compensation to the Manager in the form of stock, the
value of each share of common stock shall be: (i) the Net Asset Value per Share
as determined by the most recent appraisal of the Company's assets performed by
an Independent Appraiser, or (ii) if an appraisal has not yet been performed,
$10 per share. If shares are being offered to the public at the time a fee is
paid with stock, the value shall be the price of the stock without commissions.
The Net Asset Value determined on the basis of such appraisal may be adjusted on
a quarterly basis by the Board to account for significant capital transactions.
10. EXPENSES. To the extent applicable, in addition to the compensation
paid to the Manager pursuant to Section 9 hereof, the Company shall pay directly
or reimburse the Manager for the following expenses:
(i) interest and other costs for borrowed money, including
discounts, points and other similar fees;
(ii) taxes and assessments on income of the Company, to the
extent paid or advanced by the Manager, or on Property and taxes as an
expense of doing business, in each case attributable to Properties or
non-United States activities;
(iii) expenses of managing and operating Properties, whether
payable to an Affiliate of the Manager or a non-affiliated Person;
(iv) fees and expenses of legal counsel for the Company
attributable to Properties;
(v) fees and expense of auditors and accountants for the Company
attributable to Properties;
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(vi) expenses related to the Properties and other fees relating
to disposing of investments including personnel and other costs incurred in
transactions relating to Properties where a fee is not payable to the
Manager; and
(vii) all other expenses the Manager incurs in connection with
providing services to the Company hereunder including reimbursement to the
Manager or its Affiliates for the cost of rent, goods, materials and
personnel incurred by them based upon the compensation of the Persons
involved and an appropriate share of overhead allocable to those Persons as
reasonably determined by the Manager on a basis approved annually by the
Board (including a majority of the Independent Directors).
No reimbursement shall be made for the cost of personnel to the extent that such
personnel are used in transactions for which the Manager receives a separate
fee.
Expenses incurred by the Manager on behalf of the Company and payable pursuant
to this Section 10 shall be reimbursed quarterly to the Manager within 60 days
after the end of each quarter, subject to the provisions of Section 13 hereof.
The Manager shall prepare a statement documenting the Operating Expenses of the
Company within 45 days after the end of each quarter.
11. OTHER SERVICES. Should the Board request that the Manager or any
partner or employee thereof render services for the Company other than as set
forth in Section 3 hereof, such services shall be separately compensated and
shall not be deemed to be services pursuant to the terms of this Agreement.
12. FIDELITY BOND. The Manager shall maintain a fidelity bond for the
benefit of the Company which bond shall insure the Company from losses of up to
$5,000,000 and shall be of the type customarily purchased by entities performing
services similar to those provided to the Company by the Manager.
13. LIMITATION ON EXPENSES.
(a) If the aggregate Operating Expenses of the Company under this
Agreement and the Advisory Agreement during the 12-month period ending on the
last day of any fiscal quarter of the Company exceed the greater of (i) two
percent of the Average Invested Assets during the same 12-month period or (ii)
25% of the Adjusted Net Income of the Company during the same 12-month period,
then subject to paragraph (b) of this Section 13, such excess amount shall be
the sole responsibility of the Manager and the Company shall not be liable for
payment therefor.
(b) Notwithstanding the foregoing, to the extent that the Manager
becomes responsible for any such excess amount as provided in paragraph (a), if
a majority of the Independent Directors finds such excess amount or a portion
thereof justified based on such unusual and non-recurring factors as they deem
sufficient, the Company shall reimburse the Manager in future quarters for the
full amount of such excess, or any portion thereof, but only to the extent such
reimbursement would not cause the Company's Operating Expenses to exceed the Two
Percent/25% Guidelines in the 12-month period ending on any such quarter. In no
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event shall the Operating Expenses paid by the Company in any 12-month period
ending at the end of a fiscal quarter exceed the Two Percent/25% Guidelines.
(c) Within 60 days after the end of any twelve-month period referred
to in paragraph (a), the Manager shall reimburse the Company for any amounts
expended by the Company in such twelve-month period that exceeds the limitations
provided in paragraph (a) unless the Independent Directors determine that such
excess expenses are justified, as provided in paragraph (b), and provided the
aggregate Operating Expenses under this Agreement and the Advisory Agreement for
such later quarter would not thereby exceed the Two Percent/25% Guidelines. To
the extent the Company is reimbursed for such excess expenses by the Advisor,
the Company shall not also be entitled to reimbursement for such excess from the
Manager.
(d) All computations made under paragraphs (a) and (b) of this Section
13 shall be determined in accordance with GAAP applied on a consistent basis.
(e) If the Advisor receives a Subordinated Incentive Fee for the sale
of Property, Adjusted Net Income, for purposes of calculating Operating
Expenses, shall exclude the gain from the sale of such Property.
14. OTHER ACTIVITIES OF THE MANAGER. Nothing herein contained shall prevent
the Manager from engaging in other activities, including without limitation
direct investment by the Manager and its Affiliates in assets that would be
suitable for the Company, the rendering of services to other investors
(including other REITs) and the management of other programs advised, sponsored
or organized by the Manager or its Affiliates; nor shall this Agreement limit or
restrict the right of the Manager or any of its Affiliates or of any director,
officer, employee, partner or shareholder of the Manager or its Affiliates to
engage in any other business or to render services of any kind to any other
partnership, corporation, firm, individual, trust or association. The Manager
may, with respect to any investment in which the Company is a participant, also
render service to each other participant therein. Without limiting the
generality of the foregoing, the Company acknowledges that the Manager provides
or will provide services to other "Corporate Property Associates" or CPA(R) REIT
funds, whether now in existence or formed hereafter, and that the Manager and
its Affiliates may invest for their own account. The Manager shall be
responsible for promptly reporting to the Board the existence of any actual or
potential conflict of interest that arises that may affect its performance of
its duties under this Agreement.
Neither the Manager nor any Affiliate of the Manager shall be obligated
generally to present any particular investment opportunity to the Company even
if the opportunity is of a character which, if presented to the Company, could
be taken by the Company.
15. RELATIONSHIP OF MANAGER AND COMPANY. The Company and the Manager agree
that they have not created and do not intend to create by this Agreement a joint
venture or partnership relationship between them and nothing in this Agreement
shall be construed to make them partners or joint venturers or impose any
liability as partners or joint venturers on either of them.
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16. TERM; TERMINATION OF AGREEMENT. This Agreement shall continue in force
until September 30, 2008 and thereafter shall be automatically renewed for
successive one year periods unless either party shall give notice in writing of
non renewal to the other party not less than 60 days before the end of any such
year.
17. TERMINATION BY COMPANY. At the sole option the Board (including a
majority of the Independent Directors), this Agreement may be terminated
immediately by written notice of termination from the Company to the Manager
upon the occurrence of events which would constitute Cause or if any of the
following events occur:
(a) If the Manager shall be adjudged bankrupt or insolvent by a court
of competent jurisdiction, or an order shall be made by a court of
competent jurisdiction for the appointment of a receiver, liquidator, or
trustee of the Manager, for all or substantially all of its property by
reason of the foregoing, or if a court of competent jurisdiction approves
any petition filed against the Manager for reorganization, and such
adjudication or order shall remain in force or unstayed for a period of 30
days; or
(b) If the Manager shall institute proceedings for voluntary
bankruptcy or shall file a petition seeking reorganization under the
federal bankruptcy laws, or for relief under any law for relief of debtors,
or shall consent to the appointment of a receiver for itself or for all or
substantially all of its property, or shall make a general assignment for
the benefit of its creditors, or shall admit in writing its inability to
pay its debts, generally, as they become due.
Any notice of termination under Section 16 or 17 shall be effective on
the date specified in such notice, which may be the day on which such notice is
given or any date thereafter. The Manager agrees that if any of the events
specified in Section 17(a) or (b) shall occur, it shall give written notice
thereof to the Board within 15 days after the occurrence of such event.
18. TERMINATION BY EITHER PARTY. This Agreement may be terminated
immediately without penalty (but subject to the requirements of Section 20
hereof) by the Advisor by written notice of termination to the Company upon the
occurrence of events which would constitute Good Reason or by the Company
without cause or penalty (but subject to the requirements of Section 20 hereof)
by action of a majority of the Independent Directors or by action of a majority
of the Shareholders, in either case upon 60 days' written notice.
19. ASSIGNMENT PROHIBITION. This Agreement may not be assigned by the
Manager without the approval of the Board (including a majority of the
Independent Directors); provided, however, that such approval shall not be
required in the case of an assignment to a corporation, partnership,
association, trust or organization which may take over the assets and carry on
the affairs of the Manager, provided: (i) that at the time of such assignment,
such successor organization shall be owned substantially by an entity directly
or indirectly controlled by the Sponsor and only if such entity has a net worth
of at least $5,000,000, and (ii) that the board of directors of the Manager
shall deliver to the Board a statement in writing indicating the ownership
structure and net worth of the successor organization and a certification from
the new Manager as to its net worth. Such an assignment shall bind the assignees
hereunder in the same
16
manner as the Manager is bound by this Agreement. The Manager may assign any
rights to receive fees or other payments under this Agreement without obtaining
the approval of the Board. This Agreement shall not be assigned by the Company
without the consent of the Manager, except in the case of an assignment by the
Company to a corporation or other organization which is a successor to the
Company, in which case such successor organization shall be bound hereunder and
by the terms of said assignment in the same manner as the Company is bound by
this Agreement.
20. PAYMENTS TO AND DUTIES OF MANAGER UPON TERMINATION.
(a) After the Termination Date, the Manager shall not be entitled to
compensation for further services hereunder but shall be entitled to receive
from the Company the following:
(i) all unpaid reimbursements of Operating Expenses payable to
the Manager;
(ii) all earned but unpaid Asset Management Fees payable to the
Manager prior to the Termination Date;
(iii) all earned but unpaid Subordinated Disposition Fees payable
to the Advisor relating to the sale of any Property prior to the
Termination Date; and
(iv) all earned but unpaid Loan Refinancing Fees.
Notwithstanding the foregoing, if this Agreement is terminated by the Company
for Cause, or by the Manager for other than Good Reason, the Manager will not be
entitled to receive the sums in Section 18(a) above.
(b) Any and all amounts payable to the Advisor pursuant to Section
20(a) and Section 20(c) that, irrespective of the termination, were payable on a
current basis prior to the Termination Date either because they were not
subordinated or all conditions to their payment had been satisfied, shall be
paid within 90 days after the Termination Date. All other amounts payable to the
Advisor pursuant to Section 20(a) and Section 20(c) shall be paid in a manner
determined by the Board, but in no event on terms less favorable to the Advisor
than those represented by a note (i) maturing upon the liquidation of the
Company or three years from the Termination Date, whichever is earlier, (ii)
with no less than twelve equal quarterly installments and (iii) bearing a fair,
competitive and commercially reasonable interest rate (the "Note"). The Note, if
any, may be prepaid by the Company at any time prior to maturity with accrued
interest to the date of payment but without premium or penalty. Notwithstanding
the foregoing, any amounts that relate to Investment Assets (i) shall be an
amount which provides compensation to the Advisor only for that portion of the
holding period for the respective Investment Assets during which the Advisor
provided services to the Company, (ii) shall not be due and payable until the
Investment Asset to which such amount relates is sold or refinanced, and (iii)
shall not bear interest until the Investment Asset to which such amount relates
is sold or refinanced. A portion of the amount shall be paid as each Investment
Asset owned by the Company on the Termination Date is sold. The portion of such
amount payable upon each such sale shall be equal to (i) such amount multiplied
by (ii) the percentage calculated by dividing the fair value (at
17
the Termination Date) of the Investment Asset sold by the Company divided by the
total fair value (at the Termination Date) of all Investment Assets owned by the
Company on the Termination Date.
(c) The Manager shall promptly upon termination:
(i) pay over to the Company all money collected and held for the
account of the Company pursuant to this Agreement, after deducting any
accrued compensation and reimbursement for its expenses to which it is then
entitled;
(ii) deliver to the Board a full accounting, including a
statement showing all payments collected by it and a statement of all money
held by it, covering the period following the date of the last accounting
furnished to the Board;
(iii) deliver to the Board all assets, including Properties, and
documents of the Company then in the custody of the Manager; and
(iv) cooperate with the Company to provide an orderly management
transition.
21. INDEMNIFICATION BY THE COMPANY.
(a) The Company shall not indemnify the Manager or any of its
Affiliates for any loss or liability suffered by the Manager or the Affiliate,
or hold the Manager or the Affiliate harmless for any loss or liability suffered
by the Company, unless all of the following conditions are met:
(i) The Manager or Affiliate has determined, in good faith, that
the course of conduct which caused the loss or liability was in the best
interests of the Company;
(ii) The Manager or the Affiliate was acting on behalf of or
performing services for the Company; and
(iii) Such liability or loss was not the result of negligence or
misconduct by the Manager or the Affiliate.
(b) Notwithstanding the foregoing, the Manager and its Affiliates
shall not be indemnified by the Company for any losses, liabilities or expenses
arising from or out of the alleged violation of federal or state securities laws
unless one or more of the following conditions are met:
(i) There has been a successful adjudication on the merits of
each count involving alleged securities law violations as to the particular
indemnitee;
(ii) Such claims have been dismissed with prejudice on the merits
by a court of competent jurisdiction as to the particular indemnitee; or
18
(iii) A court of competent jurisdiction approves a settlement of
the claims against a particular indemnitee and finds that indemnification
of the settlement and the related costs should be made, and the court
considering the request for indemnification has been advised of the
position of the Securities and Exchange Commission and of the published
position of any state securities regulatory authority in which securities
of the Company were offered or sold as to indemnification for violation of
securities laws.
(c) The Company shall advance funds to the Manager or its Affiliates
for legal expenses and other costs incurred as a result of any legal action for
which indemnification is being sought only if all of the following conditions
are satisfied:
(i) The legal action relates to acts or omissions with respect to
the performance of duties or services on behalf of the Company;
(ii) The legal action is initiated by a third party who is not a
Shareholder or the legal action is initiated by a Shareholder acting in his
or her capacity as such and a court of competent jurisdiction specifically
approves such advancement; and
(iii) The Manager or the Affiliate undertakes to repay the
advanced funds to the Company, together with the applicable legal rate of
interest thereon, in cases in which such Manager or Affiliate is found not
to be entitled to indemnification.
(d) Notwithstanding the foregoing, the Manager shall not be entitled
to indemnification or be held harmless pursuant to this Section 19 for any
activity which the Manager shall be required to indemnify or hold harmless the
Company pursuant to Section 20.
(e) Any amounts paid pursuant to this Section 19 shall be recoverable
or paid only out the net assets of the Company and not from Shareholders.
22. INDEMNIFICATION BY MANAGER. The Manager shall indemnify and hold
harmless the Company from liability, claims, damages, taxes or losses and
related expenses including attorneys' fees, to the extent that such liability,
claims, damages, taxes or losses and related expenses are not fully reimbursed
by insurance and are incurred by reason of the Manager's bad faith, fraud,
willful misfeasance, misconduct, negligence or reckless disregard of its duties.
23. NOTICES. Any notice, report or other communication required or
permitted to be given hereunder shall be in writing unless some other method of
giving such notice, report or other communication is accepted by the party to
whom it is given, and shall be given by being delivered by hand or by overnight
mail or other overnight delivery service to the addresses set forth herein:
To the Board Corporate Property Associates 15 - Incorporated
and to the Company: Incorporated
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
19
To the Manager: W.P. Xxxxx & Co. B.V.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Either party may at any time give notice in writing to the other party of a
change in its address for the purposes of this Section 21.
24. MODIFICATION. This Agreement shall not be changed, modified,
terminated, or discharged, in whole or in part, except by an instrument in
writing signed by both parties hereto, or their respective successors or
assignees.
25. SEVERABILITY. The provisions of this Agreement are independent of and
severable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part.
26. CONSTRUCTION. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of New York.
27. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof. The express terms hereof
control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing.
28. INDULGENCES, NOT WAIVERS. Neither the failure nor any delay on the part
of a party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
29. GENDER. Words used herein regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires.
30. TITLES NOT TO AFFECT INTERPRETATION. The titles of Sections and
subsections contained in this Agreement are for convenience only, and they
neither form a part of this Agreement nor are they to be used in the
construction or interpretation hereof.
31. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument.
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This Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of the parties
reflected hereon as the signatories.
32. NAME. W.P. Xxxxx & Co. LLC has a proprietary interest in the name
"Corporate Property Associates" and "CPA(R)." Accordingly, and in recognition of
this right, if at any time the Company ceases to retain W.P. Xxxxx & Co. B.V.,
or an Affiliate thereof to perform the services of Manager, the Company will,
promptly after receipt of written request from W.P. Xxxxx & Co. B.V., cease to
conduct business under or use the name "Corporate Property Associates" or
"CPA(R)" or any diminutive thereof and the Company shall use its best efforts to
change the name of the Company to a name that does not contain the name
"Corporate Property Associates" or "CPA(R)" or any other word or words that
might, in the sole discretion of the Manager, be susceptible of indication of
some form of relationship between the Company and the Manager or any Affiliate
thereof. Consistent with the foregoing, it is specifically recognized that the
Manager or one or more of its Affiliates has in the past and may in the future
organize, sponsor or otherwise permit to exist other investment vehicles
(including vehicles for investment in real estate) and financial and service
organizations having "Corporate Property Associates" or "CPA(R)" as a part of
their name, all without the need for any consent (and without the right to
object thereto) by the Company or its Directors.
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IN WITNESS WHEREOF, the parties hereto have executed this Asset Management
Agreement as of the day and year first above written.
CORPORATE PROPERTY ASSOCIATES 15
INCORPORATED
By: /s/ Xxxxxx X. XxXxx
------------------------------------
Name: Xxxxxx X. XxXxx
Title: President and Chief Executive
Officer
W.P. XXXXX & CO. B.V.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Managing Director
By: /s/ Xxxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Managing Director
By: /s/ Xxxxxxx xxx Xxxxxx
------------------------------------
Name: Xxxxxxx xxx Xxxxxx
Title: Managing Director
22
