Exhibit 10.1
Xxxxx Financial Corporation
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
CORPORATE PROPERTY ASSOCIATES 15 INCORPORATED
SELECTED DEALER AGREEMENT
October ____, 2002
Ladies/Gentlemen:
We have agreed to use our best efforts to sell, along with a group of
selected dealers (collectively, the "Selected Dealers") to be formed with our
assistance, shares of common stock (the "Shares") of Corporate Property
Associates 15 Incorporated (the "Company") including those which are being
offered pursuant to the Company's 2001 Dividend Reinvestment and Share Purchase
Plan, registered on Form S-11, Registration No. 333-55584 (the "DRIP"). The
Shares are being offered by us, as Sales Agent for the Company, and by the
Selected Dealers. The terms of the offering of the Shares (the "Offering") are
more fully described in one or more prospectuses (collectively 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 (the
"Selected Dealer Agreement"), you agree to be bound by the terms and conditions
of the Sales Agency Agreement between us, as Sales Agent and the Company (the
"Sales Agency Agreement") (to the extent such terms apply to the Selected
Dealers), a copy of which is attached hereto as Exhibit A and of which this
Selected Dealer Agreement is a part.
Capitalized terms used herein and not otherwise defined herein shall
have the same meaning as in the Sales Agency Agreement.
The Company represents, warrants and agrees that it
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") the Registration Statement and amendments thereto on Form
S-11 (File No. 333-xxxxx), containing a preliminary prospectus, for the
registration of the Shares under the Securities Act of 1933, as amended (the
"Securities Act") and the regulations thereunder (the "Regulations"), and will
prepare and file with the Commission any amendments to the registration
statement necessary for it to become effective, including an amended preliminary
prospectus. The registration statement, as amended, and the amended prospectus
on file with the Commission at the time the registration statement becomes
effective (including financial
statements, exhibits and all other documents filed as a part thereof or
incorporated therein), and any registration statement related thereto filed
under Rule 462(b) of the Securities Act, are herein called the "Registration
Statement" and the "Prospectus," respectively, except that if a Registration
Statement is amended by a post-effective amendment, the term "Registration
Statement" shall, from and after the declaration of effectiveness of such
post-effective amendment, refer to the Registration Statement as so amended and
the term "Prospectus" shall refer to the prospectus as so amended, and if the
Prospectus filed by the Company pursuant to Rule 424(b) or 424(c) of the
Regulations shall differ from the Prospectus on file at the time the
Registration Statement or any post-effective amendment shall become effective,
the term "Prospectus" shall refer to the Prospectus filed pursuant to either of
such Rules from and after the date on which it shall have been mailed for filing
with the Commission. Further, if a separate prospectus is filed and becomes
effective with respect solely to the DRIP (a "DRIP Prospectus"), the term
"Prospectus" shall refer to such DRIP Prospectus from and after the declaration
of effectiveness of such DRIP Prospectus.
(b) The Registration Statement has been prepared and filed by the
Company in conformity with the Act and the applicable instructions and
Regulations. The Commission has not issued any order preventing or suspending
the use of any prospectus or preliminary prospectus filed with the Registration
Statement or any amendments thereto. At the time the Registration Statement
becomes effective (the "Effective Date") and at the time that any post-effective
amendments thereto become effective and at all times subsequent thereto up to
the Termination Date (as defined in Section 3(d) hereof), the Registration
Statement and Prospectus (as amended or as supplemented) will contain all
statements which are required to be stated therein in accordance with the Act
and the Regulations and will in all respects conform to the requirements of the
Act and the Regulations, and will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and each preliminary prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the Act, complied
when so filed in all material respects with the Act and Regulations and did not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(c) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland with full
power and authority to conduct the business in which it is engaged in as
described in the Prospectus. The Company is duly qualified to do business as a
foreign corporation and is in good standing in each other jurisdiction in which
it owns or leases property of a nature, or transacts business of a type, that
would make such qualification necessary.
(d) The Shares, when issued, will be duly and validly issued, fully
paid and non-assessable and will conform to the description thereof contained in
the Prospectus; no holder thereof will be subject to personal liability for the
obligations of the Company solely by reason of being such a holder; such Shares
are not subject to the preemptive rights of any shareholder of
the Company; and all corporate action required to be taken for the
authorization, issue and sale of such Shares has been validly and sufficiently
taken.
(e) The Company is not in violation of its Articles of Incorporation
("Articles") or Bylaws or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which it is a party or by which it or any of its properties is
bound.
(f) The Company has filed all Federal, state and foreign income tax
returns which have been required to be filed on or before the due date (taking
into account all extensions of time to file) and has paid or provided for the
payment of all taxes indicated by said returns and all assessments received by
the Company to the extent that such taxes or assessment have become due.
(g) There is no action, suit or proceeding pending or, to the best of
the knowledge, information and belief of the Company, threatened to which the
Company is a party, before or by any court or governmental agency or body.
(h) The financial statements of the Company filed as part of the
Registration Statement and those included in the Prospectus present fairly the
financial position of the Company as of the date indicated and the results of
its operations for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis; and PricewaterhouseCoopers LLP, whose report is filed with
the Commission as a part of the Registration Statement, are independent
accountants as required by the Act and the Regulations.
(i) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be stated in
or contemplated by the Registration Statement and the Prospectus, (a) there has
not been any material adverse change in the condition (financial or otherwise)
of the Company or in the earnings, affairs or business prospects of the Company,
whether or not arising in the ordinary course of business, and (b) there have
not been any material transactions entered into by the Company except in the
ordinary course of business.
(j) The Company does not intend to conduct its business so as to be an
"investment company" as that term is defined in the Investment Company Act of
1940, as amended and the rules and regulations thereunder, and it will exercise
reasonable diligence to ensure that it does not become an "investment company"
within the meaning of the Investment Company Act of 1940.
(k) This Selected Dealer Agreement, the Sales Agency Agreement and
Advisory Agreement (the "Advisory Agreement") between the Company and Xxxxx
Asset Management Corp. (the "Advisor") have been duly and validly authorized,
executed and delivered by the Company and constitute the valid agreements of the
Company enforceable in accordance with their terms. The execution and delivery
of this Selected Dealer Agreement, the Sales Agency
Agreement and the Advisory Agreement, the consummation of the transactions
herein and therein contemplated and the compliance with the terms of this
Selected Dealer Agreement, the Sales Agency Agreement and the Advisory Agreement
by the Company will not conflict with or constitute a default under the Articles
or Bylaws or any indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company is a party, or any law, order, rule or
regulation, writ, injunction or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company, or any of its property, except to the extent that the enforceability of
the indemnity and/or contribution provisions contained in Section 8 of this
Selected Dealer Agreement may be limited under applicable securities law; and no
consent, approval, authorization or order of any court or other governmental
agency or body has been or is required for the performance of this Selected
Dealer Agreement, the Sales Agency Agreement or the Advisory Agreement by the
Company, or for the consummation of the transactions contemplated hereby and
thereby (except such as have been obtained under the Act or as may be required
under state securities or "blue sky" laws in connection with the distribution of
the Shares).
(l) The Company is not a party to or bound by any contract or other
instrument of a character required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration Statement
that is not described and filed as required.
(m) The Company intends to satisfy the requirements of the Internal
Revenue Code of 1986 as amended (the "Code") for qualification of the Company as
a real estate investment trust. The Company has elected to be treated as a real
estate investment trust under the Code and will direct the investment of the
proceeds of the offering of the Shares in such a manner, and will otherwise
operate the business of the Company, so as to comply with such requirements.
(n) The Company complies with the applicable privacy provision of the
Xxxxx-Xxxxx-Xxxxxx Act and the applicable provisions of the USA Patriot Act, in
all material respects.
Upon notification by us, you may offer the Shares at the public
offering price stated in the Prospectus, subject to the terms and conditions
hereof. The public offering price of the Shares and the amount of your Selling
Commission that is re-allowed by us to you with respect to volume sales of
Shares to "single purchasers" 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:
Selling Commission Per Share on
Volume Discount Purchase Price Per Share For Total Sale for Incremental Share
Range for a Incremental Share In Volume in
"Single Purchaser" Discount Range Volume Discount Range
------------------ -------------- ---------------------
$ 2,000 - $ 250,000 $10.00 $0.65
$ 250,001 - $ 500,000 $ 9.85 $0.50
$ 500,001 - $ 750,000 $ 9.70 $0.35
$ 750,001 - $1,000,000 $ 9.60 $0.25
$1,000,001 - $5,000,000 $ 9.50 $0.15
As an example, a single purchaser would receive 50,380 Shares (rather
than 50,000 Shares) for his investment of $500,000 and the Selling Commission
would be $28,940. The discount would be calculated as follows: On the first
$250,000 of the investment there would be no discount and the purchaser would
receive 25, 000 shares at $10 per share. On the remaining $250,000, the per
share price would be $9.85 and the purchaser would receive 25,380 shares.
A refund will be made to the purchaser for any fractional Shares based
on the public offering price if such refund is in excess of $1.00. In the
example, $7.00 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 one percent of the full
price of each Share sold by you.
Additionally, we may, in our sole discretion pay you a one-half percent
marketing fee, which will be based on such factors as volume of Shares sold by
you, marketing support and bona fide conference fees incurred. We may in our
sole discretion pay Selling Commissions of $0.50 per Share sold for Shares
purchased under the DRIP.
You may elect, in your sole discretion, to not accept any Selling
Commission for Shares that you sell. In that event, these Shares shall be sold
net of all Selling Commissions and the marketing fee, at a price per Share of
$9.35.
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 jurisdictions where they occur.
Purchases of Shares by W. P. Xxxxx & Co. LLC, 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 one-half percent of the gross proceeds of the
Offering).
Orders for Shares (each an "Order") must be made during the offering
period described in the Prospectus (except for Orders made pursuant to the DRIP,
which may be made on an ongoing basis, pursuant to the terms of the DRIP). An
order form, in the form attached to the Prospectus, (each an "Order Form") must
be used in placing an Order for investors residing in certain states and, for
all other investors, Orders may be placed through such procedures as are
normally used by you for the sale of REIT shares and agreed to by the Company.
Persons desiring to purchase Shares are required to comply with such procedures
and, in certain states, to execute or have executed on their behalf one copy of
the Order Form. Subscribers purchasing shares by check must make such checks
payable to the Escrow Agent. By noon of the business day following receipt of
funds by you, either by check or by a sweep of customer accounts, you will
deliver via overnight delivery service a check payable to The Bank 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, any election to
participate in the DRIP by, and the total dollar amount of the investment by,
each investor on whose behalf a check or other payment is delivered. You will
advise The Bank 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.
If the Company elects to reject an Order (such rejection to occur
within 30 days after receipt by the Company of such Order), the Company shall,
within 10 business days after such rejection, inform you of such rejection and
return the funds (and any interest earned thereon) and other documents submitted
by the rejected purchaser to you for transmission to such purchaser. If no
notice of rejection is received by you with the foregoing time limits or if
funds submitted by the purchaser are released from escrow to the Company within
the foregoing time limits, the Order shall be deemed accepted.
You agree that you will use your best efforts in offering the Shares
and will offer the Shares only in jurisdictions in which you are currently
registered as a securities dealer and only in accordance with the securities
laws of such jurisdictions.
You covenant and agree with respect to your participation in the
Offering to comply with any applicable requirements of the Securities Act of
1933 (the "`33 Act") and of the Securities Exchange Act of 1934 (the "`34 Act"),
and the published rules and regulations of the Securities and Exchange
Commission thereunder, and the Conduct Rules of the NASD including but not
limited to Rule 2730, Rule 2740 and IM 2740, Rule 2420 and IM 2420 and Rule 2750
and IM 2750.
We shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to the Offering. Neither you nor
any other person is authorized to give any information or make any
representations other than those contained in the Prospectus and sales
literature furnished by the Company in connection with the Offering, and you
agree not to give any such information or make any such representations. You
acknowledge that we will rely upon your agreements in this paragraph and in the
preceding paragraph in connection with the Sales Agency Agreement. No Selected
Dealer is authorized to act as agent for us when offering any of the Shares to
the public or otherwise, it being understood that you and each other Selected
Dealer are independent contractors with us. Nothing herein contained shall
constitute you or the Selected Dealers an association, unincorporated business,
partnership or separate entity with each other or an association or partner with
us. Nothing contained in this paragraph is intended to operate as, and the
provisions of this paragraph shall not constitute, a waiver by you of compliance
with any provision of the '33 Act or of the rules and regulations thereunder.
The Company will provide you with such number of copies of the enclosed
Prospectus and such number of copies of amendments and supplements thereto, and
certain supplemental sales material prepared by the Company, as you may
reasonably request for use by you in connection with the offer and sales of the
Shares. In the event you elect to use any such supplemental sales material, you
agree that such material shall not be used in connection with the offer and sale
of the Shares unless accompanied or preceded by the Prospectus as then currently
in effect and as it may be amended or supplemented in the future, and you
expressly agree not to prepare or use any sales material other than the approved
sales material. To the extent that information is provided to you marked "For
Broker/Dealer Use Only," "Internal Use Only" or with other similar language, you
covenant and agree not to provide such information to prospective investors. You
agree that you will not use any other offering materials without the prior
written consent of the Company and us.
This Selected Dealer Agreement shall terminate at the close of business
on the 45th day after the completion of the sale of all of the Shares by the
Company, unless earlier terminated or unless the Sales Agency Agreement is
terminated, in which event this Selected Dealer Agreement will automatically
terminate. Either party may terminate this Selected Dealer Agreement at any time
by written notice, and we shall notify you promptly in the event of any early
termination of this Selected Dealer Agreement.
We will furnish to you a Blue Sky Memorandum naming the jurisdictions
in which we believe the Shares have been qualified for sale under, or are exempt
from the requirements of, the respective securities laws of such jurisdictions,
but we assume no responsibility or obligation as to your right to sell Shares in
any jurisdiction.
Your obligations under this Selected Dealer Agreement shall be subject
to the continued accuracy throughout the Effective Term of the representations,
warranties and agreements of the Company under the Sales Agency Agreement, this
Selected Dealer Agreement and the attached Addendum A and to the performance by
the Company of its obligations under such agreements and to the terms and
conditions set forth in Section 7 of the Sales Agency Agreement.
You confirm that you are familiar with '33 Act Release No. 4968 and
Rule 15c2-8 under the '34 Act, relating to the distribution of preliminary and
final prospectuses, and confirm that you have complied, and will comply,
therewith. You shall not directly or indirectly pay or award any finder's fees,
commissions or other compensation to any persons engaged by an investor for
investment advice as an inducement to such adviser to advise a potential
investor to purchase Shares. In addition, you agree not to receive any rebates
or give-ups or to participate in any reciprocal business arrangements (other
than for the underwriting arrangements described herein) which would violate any
restrictions on the Company contained in the Prospectus.
Addendum A attached hereto is hereby incorporated by reference.
All representations, warranties and agreements contained in this
Selected Dealer Agreement (including Addendum A), the Sales Agency Agreement or
in certificates submitted to you pursuant to this Selected Dealer Agreement or
Sales Agency Agreement shall remain operative and in full force and effect,
regardless of any investigation made by, or on behalf of, you or any person who
controls you, and shall survive the 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 Selected Dealer Agreement is mailed.
Please confirm your agreement hereto by signing and returning at once
to us the enclosed duplicate of this Selected Dealer Agreement (including
Addendum A), including the information requested in Schedule A attached thereto.
This Selected Dealer Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to agreements made and to be
performed entirely within such state.
Very truly yours,
XXXXX FINANCIAL CORPORATION,
Sales Agent
By:_________________________________ ACCEPTED, as of _______________
Its:________________________________ [Selected Dealer]
CORPORATE PROPERTY ASSOCIATES 15 By:_________________________________
INCORPORATED, the Company
Its:________________________________
By:_________________________________
Its:________________________________
SCHEDULE A TO SELECTED DEALER AGREEMENT
SELECTED DEALER INFORMATION
[PLEASE PRINT OR TYPE ALL REQUESTED INFORMATION]
________________________
SELECTED/DEALER NAME:___________________________________________________________
SELECTED/DEALER ADDRESS:________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
PHONE NUMBER:___________________________________________________________________
NAME OF PERSON SIGNING SELECTED DEALER AGREEMENT:_______________________________
________________________________________________________________________________
TITLE OF PERSON SIGNING SELECTED DEALER AGREEMENT:______________________________
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