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Exhibit 10.29
Xxxxx Financial Corporation
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED
SELECTED DEALER AGREEMENT
April ___, 1999
Ladies and Gentlemen:
We have agreed to use our best efforts to sell, along with a group of
selected dealers (collectively, the "Selected Dealers") to be formed with our
assistance, up to 40,000,000 shares (the "Shares") of Corporate Property
Associates 14 Incorporated (the "Company"). The Shares are being offered by us,
as Sales Agent for the Company, and by the Selected Dealers. The terms of the
offering of the Shares (the "Offering") are more fully described in the enclosed
prospectus (the "Prospectus"), receipt of which you hereby acknowledge.
We are hereby inviting you to act as a Selected Dealer for the
Offering, subject to the other terms and conditions set forth below. You hereby
confirm that you are a member in good standing of the National Association of
Securities Dealers, Inc. (the "NASD"), that you have complied with all
applicable federal and state broker-dealer registration requirements and that
you are not a "discount broker" as that term is commonly understood in the
brokerage industry. Upon execution of this Selected Dealer Agreement, you agree
to be bound by the terms and conditions of the Sales Agency Agreement between
us, as Sales Agent and the Company (the "Sales Agency Agreement") (to the extent
such terms apply to the Selected Dealers), a copy of which is attached hereto as
Exhibit A and of which this Selected Dealer Agreement is a part.
Capitalized terms used herein and not otherwise defined herein shall
have the same meaning as in the Sales Agency Agreement.
Upon notification by us, you may offer the Shares at the public
offering price stated in the Prospectus, subject to
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the terms and conditions hereof. The public offering price of the Shares and the
amount of your Selling Commission that is re-allowed by us to you with respect
to volume sales of Shares to "single purchasers" on orders of $250,000 or
more(as defined in the Prospectus) shall be reduced by the amount of the Share
purchase price discount. In the case of such volume sales to single purchasers,
your Selling Commission will be reduced for each incremental Share purchase in
the total volume ranges set forth in the table below. Such reduced Share price
purchase price will not affect the amount received by the company for
investment. The following table sets forth the reduced Share purchase price and
Selling Commission payable to you:
Volume Discount Purchase Price Selling
Range for a Per Share For Commission Per
"Single Purchaser" Incremental Share Share on Total
In Volume Sale for
Discount Range Incremental Share
in Volume
Discount Range
$ 2,000 - $ 250,000 $10.00 $0.60
$ 250,001 - $ 500,000 $ 9.85 $0.45
$ 500,001 - $ 750,000 $ 9.70 $0.30
$ 750,001 - $ 1,000,000 $ 9.60 $0.20
$ 1,000,001 - $ 5,000,000 $ 9.50 $0.10
As an example, a single purchaser would receive 50,761 Shares (rather
than 50,000 Shares) for his investment of $500,000 and the Selling Commission
would be $22,842. A refund will be made to the purchaser for any fractional
Shares based on the public offering price if such refunds in excess of $1.00. In
the example, $4.15 would be refunded for the fractional Share.
Selling Commissions for purchases of $5,000,000 or more are negotiable
but in no event will the proceeds to the Company be less than $9.35 per Share.
We agree to re-allow to you a Selected Dealer Fee of 1% of the full price of
each Share sold by you.
No payment of commissions or the Selected Dealer Fee will be made in
respect of Orders (or portions thereof) which are rejected by the Company,
Selling Commissions and the Selected Dealer Fee will be paid on each Closing
Date with respect to Shares sold to purchasers whose Shares are issued on such
Closing Date. Selling Commissions and the Selected Dealer Fee will be payable
only with respect to transactions lawful in the
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jurisdictions where they occur. In the event Minimum Sales are not made, and, as
a result, the Sales Agency Agreement is terminated, you shall not received any
Selling Commissions or a Selected Dealer Fee. Purchases of Shares by Xxxxx
Property Advisors, its Affiliates or any Selected Dealer or any of their
employees shall be net of commissions.
In no event shall the aggregate underwriting compensation to be paid to
us, you and the other Selected Dealers in connection with the Offering and sale
of the Shares exceed 10% of the gross proceeds of the Offering (not including
due diligence expenses of up to 0.5% of the gross proceeds of the Offering).
Orders for Shares (each an "Order") must be made during the offering
period described in the Prospectus. An order form, in the form attached to the
Prospectus, (each an "Order Form") must be used in placing an Order for
investors residing in certain states and, for all other investors, Orders may be
placed through such procedures as are normally used by you for the sale of REIT
shares and agreed to by the Company. Persons desiring to purchase Shares are
required to comply with such procedures and, in certain states, to execute or
have executed on their behalf one xxx of the Order Form. On a daily basis, you
will deliver via overnight delivery service a check payable to The United States
Trust Company of New York, Escrow Agent, or other acceptable form of payment,
for the full amount of each Order along with an Order Form for each such Order
and a list showing the name, address and telephone number of, the social
security number or taxpayer identification number of, the number of Shares
purchased and the total dollar amount of the investment by, each investor on
whose behalf a check or other payment is delivered. You will advise The United
States Trust Company of New York whether the funds you are submitting are
attributable to individual retirement accounts, Xxxxx plans, or any other
employee benefit plan subject to Title I of the Employee Retirement Income
Security Act of 1974 or from some other type of investor.
All Orders solicited by you will be strictly subject to review and
acceptance by the Company, and the Company reserves the right in its absolute
discretion to reject any such Order or to accept or reject Orders in the order
of their receipt by the Company or otherwise. You agree to maintain, for at
least six years, records of the information used by you to determine whether an
investment in Shares is suitable and appropriate for a potential investor in
Shares.
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If the Company elects to reject an Order (such rejection to occur
within 30 days after receipt by the Company of such Order), the Company shall,
within 10 business days after such rejection, inform you of such rejection and
return the funds (and any interest earned thereon) and other documents submitted
by the rejected purchaser to you for transmission to such purchaser. If no
notice of rejection is received by you with the foregoing time limits or if
funds submitted by the purchaser are released from escrow to the Company within
the foregoing time limits, the Order shall be deemed accepted.
You agree that you will use your best efforts in offering the Shares
and will offer the Shares only in jurisdictions in which you are currently
registered as a securities dealer and only in accordance with the securities
laws of such jurisdictions.
You covenant and agree with respect to your participation in the
Offering to comply with any applicable requirements of the Securities Act of
1933 (the "'33 Act") and of the Securities Exchange Act of 1934 (the "'34 Act"),
and the published rules and regulations of the Securities and Exchange
Commission thereunder, and the Rules of Fair Practice of the NASD.
We shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to the Offering. Neither you nor
any other person is authorized to give any information or make any
representations other than those contained in the Prospectus and sales
literature furnished by the Company in connection with the Offering, and you
agree not to give any such information or make any such representations. You
acknowledge that we will rely upon your agreements in this paragraph and in the
preceding paragraph in connection with the Sales Agency Agreement. No Selected
Dealer is authorized to act as agent for us when offering any of the Shares to
the public or otherwise, it being understood that you and each other Selected
Dealer are independent contractors with us. Nothing herein contained shall
constitute you or the Selected Dealers an association, unincorporated business,
partnership or separate entity with each other or an association or partner with
us. Nothing contained in this paragraph is intended to operate as, and the
provisions of this paragraph shall not constitute, a waiver by you of compliance
with any provision of the '33 Act or of the rules and regulations thereunder.
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The Company will provide you with such number of copies of the enclosed
Prospectus and such number of copies of amendments and supplements thereto, and
certain supplemental sales material prepared by the Company, as you may
reasonably request for use by you in connection with the offer and sales of the
Shares. In the event you elect to use any such supplemental sales material, you
agree that such material shall not be used in connection with the offer and sale
of the Shares unless accompanied or preceded by the Prospectus as then currently
in effect and as it may be amended or supplemented in the future, and you
expressly agree not to prepare or use any sales material other than the approved
sales material. To the extent that information is provided to you marked "For
Broker/Dealer Use Only," "Internal Use Only" or with other similar language, you
covenant and agree not to provide such information to prospective investors. You
agree that you will not use any other offering materials without the prior
written consent of the Company and us.
This Agreement shall terminate at the close of business on the 45th day
after the completion of the sale of all of the Shares by the Company, unless
earlier terminated or unless the Sales Agency Agreement is terminated, in which
event this Agreement will automatically terminate. Either party may terminate
this Agreement at any time by written notice, and we shall notify you promptly
in the event of any early termination of this Agreement.
We will furnish to you a Blue Sky Memorandum naming the jurisdictions
in which we believe the Shares have been qualified for sale under, or are exempt
from the requirements of, the respective securities laws of such jurisdictions,
but we assume no responsibility or obligation as to your right to sell Shares in
any jurisdiction.
Under Sections 2, 4, 7,8, 9, 10 and 11 of the Sales Agency Agreement,
the Company is making certain representations, warranties, covenants and
agreements to or with us for your benefit and ours. Under Section 8 of the Sales
Agency Agreement, the Company is providing to us and to Selected Dealers who are
not affiliates of the Company (as the term "Affiliate" is defined in the '33
Act), and to persons controlling us and such Selected Dealers, certain rights of
indemnity and contribution against liabilities insofar as such liabilities arise
out of or are based upon untrue statements or omissions or alleged untrue
statements or omissions of material fact in the Prospectus. Subject to the terms
and conditions stated in the aforesaid Sections, the
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Company confirms to you for your benefit by execution of a copy of this letter
the rights, representations, warranties, covenants, agreements and rights of
indemnity and contribution contain in such Sections shall continue to apply. By
executing this Agreement, you agree to accept such indemnification on the terms
provided in the Sales Agency Agreement.
The liabilities assumed by us in the preceding paragraph shall be in
addition to any liabilities we may otherwise have to each other.
Your obligations under this Selected Dealer Agreement shall be subject
to the continued accuracy throughout the Effective Term of the representations,
warranties and agreements of the Company under the Sales Agency Agreement and
such Selected Dealer Agreement to the performance by the Company of its
obligations under such agreements and to the terms and conditions set forth in
Section 7 of the Sales Agency Agreement.
You confirm that you are familiar with '33 Act Release No. 4968 and
Rule 15c2-8 under the '34 Act, relating to the distribution of preliminary and
final prospectuses, and confirm that you have complied, and will comply,
therewith. You shall not directly or indirectly pay or award any finder's fees,
commissions or other compensation to any persons engaged by an investor for
investment advice as an inducement to such adviser to advise a potential
investor to purchase Shares. In addition, you agree not to receive any rebates
or give-ups or to participate in any reciprocal business arrangements (other
than for the underwriting arrangements described herein) which would violate any
restrictions on the Company contained in the Prospectus.
All representations, warranties and agreements contained in this
Selected Dealer Agreement, the Sales Agency Agreement or in certificates
submitted to you pursuant to this Agreement or the Sales Agency Agreement shall
remain operative and in full force and effect, regardless of any investigation
made by, or on behalf of, you or any person who controls you, and shall survive
the initial closing and termination of the Offering.
Any communication from you should be in writing addressed to Xxxxx
Financial Corporation, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000. Any notice from
us to you shall be deemed to have been duly given if mailed or telegraphed to
you at the address to which this Agreement is mailed.
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Please confirm your agreement hereto by signing and returning at once
to us the enclosed duplicate of this Agreement, including the information
requested in Schedule A attached thereto. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such state.
Very truly yours,
XXXXX FINANCIAL CORPORATION
Sales Agency
By:__________________________
Its:_________________________
CORPORATE PROPERTY ASSOCIATES
14 INCORPORATED, the Company
By:__________________________
Its:_________________________
XXXXX PROPERTY ADVISORS,
a Pennsylvania limited partnership
By: XXXXX FIDUCIARY ADVISORS,
INC., general partner
By:__________________________
Its:_________________________
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ACCEPTED, as of _______________
[NAME OF SELECTED DEALER]
By:__________________________
Its:_________________________
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SCHEDULE A TO SELECTED DEALER AGREEMENT
SELECTED DEALER INFORMATION
[PLEASE PRINT OR TYPE ALL REQUESTED INFORMATION]
SELECTED/DEALER NAME:
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SELECTED/DEALER ADDRESS:
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PHONE NUMBER:
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NAME OF PERSON SIGNING SELECTED DEALER AGREEMENT:
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TITLE OF PERSON SIGNING SELECTED DEALER AGREEMENT:
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