Exhibit 1.1
FORM OF
MANAGING DEALER AGREEMENT
THIS AGREEMENT, dated as of ___________, 2002, is made by and between
Sandalwood Lodging Investment Corporation, a Maryland corporation (the
"Company"); and Emerald Bay Capital Management, LLC, a Delaware limited
liability company (the "Managing Dealer").
WHEREAS, the Company proposes to offer and sell up to an aggregate of
11,752,688 shares of common stock in the Company (the "Shares") to the public
pursuant to a public offering (the "Offering");
WHEREAS, the Managing Dealer has made application to and, prior to any
offers or sales of Shares, will be registered with, the National Association of
Securities Dealers, Inc. ("NASD") as a broker-dealer, and is presently or, prior
to any offers or sales of Shares, will be licensed in all fifty states and the
District of Columbia, as a broker-dealer qualified to offer and sell to the
public securities of the type represented by the Shares; and
WHEREAS, the Company desires to retain the Managing Dealer to use its best
efforts to sell the Shares, and the Managing Dealer is willing and desires to
serve as the managing dealer for the Company for the sale of the Shares upon the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Company and the Managing
Dealer agree as follows:
SECTION 1.
DEFINITIONS
Whenever used in this Agreement, the following terms shall have the
following specified meanings.
1.1 "Company" means Sandalwood Lodging Investment Corporation, a Maryland
corporation.
1.2 "Managing Dealer" means Emerald Bay Capital Management, LLC, a
Delaware limited liability company.
1.3 "NASD" means the National Association of Securities Dealers, Inc.
1.4 "Offering" means the offering of up to 11,752,688 Shares of the
Company to the public pursuant to the terms and conditions of the Registration
Statement.
1.5 "Offering Period" means the period commencing on the effective date of
the Registration Statement (the "Effective Date") and ending on the earliest of
the following: (i) the later of June 30, 2003 or, at the Company's election, two
years after the initial date of the Prospectus; (ii) the acceptance by the
Company of subscriptions for 11,752,688 Shares, with up to 1,000,000 of such
Shares available to investors who participate in the Company's dividend
reinvestment plan; (iii) the termination of the Offering by the Company; (iv)
the termination of the effectiveness of the Registration Statement; or (v) the
termination of the Company's existence (each, a "Termination Date").
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1.6 "Prospectus" means the final prospectus included in the Registration
Statement, pursuant to which the Company will offer Shares to the public, as the
same may be amended or supplemented from time to time after the effective date
of the Registration Statement.
1.7 "Registration Statement" means the registration statement filed with
the SEC on May 24, 2002 (SEC File No. 333-89094) pursuant to which the Company
has registered the Shares with the SEC as provided in the Securities Act of
1933, as amended (the "Securities Act"), as such registration statement may be
amended or supplemented from time to time.
1.8 "SEC" means the U.S. Securities and Exchange Commission.
1.9 "Shares" mean the shares of common stock of the Company, par value
$0.10 per share, with a purchase price of $20.00 per share. An aggregate of up
to 11,752,688 Shares will be offered pursuant to the Registration Statement.
1.10 "State Regulatory Authorities" mean the commissions, departments,
agencies or other authorities in the fifty states and the District of Columbia
which regulate the offer and sale of securities.
Terms not otherwise defined herein shall have the meaning ascribed to them
in the Prospectus.
SECTION 2.
APPOINTMENT
Subject to the terms and conditions set forth in this Agreement, the
Company hereby appoints the Managing Dealer as the managing dealer of the
Offering to use its best efforts to sell up to 11,752,688 Shares of the Company.
The Managing Dealer hereby accepts such appointment.
SECTION 3.
SALE OF SHARES
3.1 Best Efforts. The Managing Dealer shall use its best efforts during
the Offering Period to sell or cause to be sold the Shares in such quantities
and to such persons and in accordance with such terms as are set forth in this
Agreement, the Prospectus and the Registration Statement. Notwithstanding
anything herein to the contrary, the Managing Dealer shall have no obligation
under this Agreement to purchase any of the Shares for its own account.
3.2 Telephonic Subscriptions.
(a) The Managing Dealer may accept telephonic or other oral
subscriptions for Shares; provided:
(i) the registered representative and branch manager of the
Managing Dealer shall execute the subscription agreement on
behalf of any investor who telephonically or orally subscribes
for Shares; (ii) the Managing Dealer shall not charge
investors who telephonically or orally subscribe for Shares
any additional fees, including but not limited to fees
relating to opening an account; and (iii) the Managing Dealer
shall not accept telephonic or oral subscriptions for Shares
from any investor unless such investor has received a copy of
the Company's Prospectus prior to making a decision to invest.
The Managing Dealer shall explain to investors in certain
states more particularly identified in the Prospectus that:
(i) the investor shall have the right to rescind such
subscription for a period
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of ten (10) days following the receipt of the Confirmation (as
hereinafter defined); and (ii) unless the investor rescinds
such subscription within the applicable period of time, the
investor shall be bound by the subscription agreement. The
Managing Dealer shall confirm the receipt of subscriptions for
Shares which have been subscribed for by telephone or other
oral instructions by written notice to the investor (the
"Confirmation"). Such Confirmation shall be mailed to the
investor not later than seven (7) days after the date on which
the investor's funds are deposited, shall contain a statement
that the investor has a right to rescind his subscription, and
shall be accompanied by a Prospectus and a Subscriber's
Signature Page.
(b) Notwithstanding anything to the contrary contained in Paragraph
4.3(a) of this Agreement, in the event that the Company pays any
commission to the Managing Dealer for sale of one or more Shares
pursuant to a telephonic or other oral subscription where
representatives of the Managing Dealer execute the subscription
agreement relating to such Shares, and the subscription is rescinded
as to one or more of the Shares covered by such subscription, the
Company shall decrease the next payment of commissions or other
compensation otherwise payable to the Managing Dealer by the Company
under this Agreement by an amount equal to the commission rate
established in Paragraph 4.1 of this Agreement, multiplied by the
number of Shares as to which the subscription is rescinded.
3.3 Suitability and Minimum Purchase Requirements.
The Managing Dealer shall comply fully with all the applicable provisions
of the NASD's Conduct Rules and the following provisions:
(i) the Managing Dealer shall have reasonable grounds to believe,
based upon information provided by the investor concerning his
investment objectives, other investments, financial situation
and needs, and upon any other information known by the
Managing Dealer, that (A) each investor to whom the Managing
Dealer sells Shares is or will be in a financial position
appropriate to enable him or her to realize to a significant
extent the benefits (including tax benefits) of an investment
in the Shares, (B) each investor to whom the Managing Dealer
sells Shares has a fair market net worth sufficient to sustain
the risks inherent in an investment in the Shares (including
potential loss and lack of liquidity), and (C) the Shares
otherwise are or will be a suitable investment for each
investor to whom the Managing Dealer sells Shares, and the
Managing Dealer shall maintain files disclosing the basis upon
which the determination of suitability was made;
(ii) the Managing Dealer shall not execute any transaction
involving the purchase of Shares in a discretionary account
without prior written approval of the transaction by the
investor;
(iii) the Managing Dealer shall have reasonable grounds to believe,
based upon the information made available to it, that all
material facts are adequately and accurately disclosed in the
Registration Statement and provide a basis for evaluating the
Shares;
(iv) in making the determination set forth in item (iii) above, the
Managing Dealer shall evaluate items of compensation,
properties, tax aspects, financial stability
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and experience of the Advisor, conflicts of interest and risk
factors, and any other information deemed pertinent by it; and
(v) prior to executing a purchase transaction in the Shares, the
Managing Dealer shall have informed the prospective investor
of all pertinent facts relating to the liquidity and
marketability of the Shares.
3.4 Sales Literature. The Managing Dealer shall use and distribute in
conjunction with the offer and sale of any Shares only the Prospectus and such
sales literature and advertising as shall have been previously approved in
writing by the Company.
3.5 Jurisdictions. The Managing Dealer shall cause Shares to be offered
and sold for the account of the Company only in those jurisdictions specified in
writing by the Company for whose account Shares are then offered for sale, and
such list of jurisdictions shall be updated by the Company as additional states
are added. No Shares shall be offered or sold for the account of the Company in
any other states.
3.6 Escrow. All funds received by the Managing Dealer for the sale of
Shares shall be deposited in an interest-bearing escrow account established by
the Company at U.S. Bank National Association (the "Escrow Agent"), by the close
of the first business day following receipt of such funds by the Managing
Dealer. Such escrow account shall be denominated "ESCROW ACCOUNT FOR THE BENEFIT
OF SUBSCRIBERS FOR COMMON STOCK OF SANDALWOOD LODGING INVESTMENT CORPORATION"
Checks may be made payable to either the Escrow Agent or the Company.
SECTION 4.
COMPENSATION
4.1 Commissions. The Company shall pay to the Managing Dealer, as
compensation for all services to be rendered by the Managing Dealer pursuant to
this Agreement, a commission equal to seven percent (7.0%) of the selling price
of each Share for which a sale is completed (the "Selling Commissions"),
provided, however, that:
(a) the Managing Dealer shall waive its Selling Commissions, for which
additional shares will be issued at no additional cost, to investors
who subscribe on or before June 30, 2003;
(b) therefore, in connection with the purchase of certain minimum
numbers of Shares and minimum investment levels, the amount of
Selling Commissions otherwise refundable to the investors pursuant
to subsection (a) shall be reflected as follows:
If an individual investor makes an initial minimum investment of $10,000,
the Managing Dealer will waive the Selling Commissions, and credit the
investor with 537.6344 shares of common stock of the Company ($10,000 /
18.60 per Share = 537.6344);
(c) the Managing Dealer shall not be entitled to Selling Commissions
upon the sale of Shares to strategic partners of the Company.
Stockholders who elect to participate in the Reinvestment Plan will
not be charged Selling Commissions on Shares purchased for their
accounts.
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4.2 Marketing Expense Reimbursement. The Company shall reimburse the
Managing Dealer for expenses incurred in selling and marketing the Shares and
for bona fide expenses actually incurred in connection with due diligence
activities. This marketing expense reimbursement shall not exceed the greater of
$1,000,000 or one and a quarter percent (1.25%) of gross proceeds.
4.3 Completed Sale.
(a) A sale of a Share shall be deemed to be completed under Paragraph
4.1 if and only if (i) the Company has received a properly completed
and executed subscription agreement, together with payment of the
full purchase price of each purchased Share, from or, in accordance
with Paragraph 3.2, on behalf of an investor; (ii) the Company has
accepted such subscription; and (iii) such investor has been
admitted as a stockholder of the Company.
(b) The Managing Dealer hereby acknowledges and agrees that (i) the
Company, in its sole and absolute discretion, may accept or reject
any subscription, in whole or in part, for any reason whatsoever,
and no Selling Commissions will be paid to the Managing Dealer with
respect to that portion of any subscription which is rejected and
(ii) unless subscriptions for an aggregate of at least $50 million
have been received and accepted, no subscriber will be admitted to
the Company, and no Selling Commissions will be paid to the Managing
Dealer pursuant to Paragraph 4.1 for sales of Shares, even upon
subscriptions that initially were accepted.
4.4 Payment. The Selling Commissions specified in Paragraph 4.1 for the
sale of any Share shall be payable in cash by the Company, as specified in
Paragraph 4.1, no later than the end of the calendar month in which the investor
subscribing for the Share is admitted as a stockholder of the Company. Investors
shall first be admitted as shareholders of the Company within thirty (30) days
after acceptance by the Company of subscriptions for at least $50 million.
Thereafter, investors whose subscriptions for Shares are accepted shall be
admitted no later than the end of the calendar month in which such subscriptions
are accepted. The Company will accept or reject all subscriptions within thirty
(30) days after receipt. Notwithstanding anything to the contrary contained
herein, in the event that the Company pays any Selling Commissions to the
Managing Dealer for sale of one or more Shares and the subscription is rescinded
as to one or more of the Shares covered by such subscription, the Company shall
decrease the next payment of commissions or other compensation otherwise payable
to the Managing Dealer by the Company under this Agreement by an amount equal to
the commission rate established in Paragraph 4.1 of this Agreement, multiplied
by the number of Shares as to which the subscription is rescinded. In the event
that no payment of Selling Commissions or other compensation is due to the
Managing Dealer after such withdrawal occurs, the Managing Dealer shall pay the
amount specified in the preceding sentence to the Company within ten (10) days
following receipt of notice by the Managing Dealer from the Company stating the
amount owed as a result of rescinded subscriptions.
4.5 Sales Incentives. The Company or its affiliates, including the
Advisor, also may provide incentive items for registered representatives of the
Managing Dealer, which in no event shall exceed an aggregate of $100 per annum
per registered representative. In the event other incentives are provided to
registered representatives of the Managing Dealer, they will only be paid in
cash and such payments will only be made to the Managing Dealer rather than its
registered representatives. Before any such sales incentive program is offered,
the Company agrees to obtain prior approval of the terms of such program from
the NASD.
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SECTION 5.
TERMS OF AGREEMENT
5.1 Commencement and Expiration. This Agreement shall commence as of the
date first above written and, unless sooner terminated pursuant to Paragraph 5.2
or by operation of law or otherwise, shall expire at the end of the Offering
Period.
5.2 Termination. Any party may terminate this agreement at any time and
for any reason by giving thirty (30) days prior written notice of intention to
terminate to each other party hereto.
5.3 Obligations Surviving Expiration or Termination.
(a) In addition to any other obligations of the Managing Dealer that
survive the expiration or termination of this Agreement, the
Managing Dealer, upon the expiration or termination of this
Agreement, shall (i) promptly deposit any and all funds in its
possession that were received from investors for the sale of Shares
into the appropriate escrow account specified in Paragraph 3.6 or,
if the minimum number of Shares have been sold and accepted by the
Company, into such other account as the Company may designate; and
(ii) promptly deliver to the Company all records and documents in
its possession which relate to the Offering and are not designated
as dealer copies. The Managing Dealer, at its sole expense, may make
and retain copies of all such records and documents, but shall keep
all such information confidential. The Managing Dealer shall use its
reasonable efforts to cooperate with the Company to accomplish an
orderly transfer of management of the Offering to a party designated
by the Company.
(b) In addition to any other obligations of the Company that survive the
expiration or termination of this Agreement, the Company, upon
expiration or termination of this Agreement, shall pay to the
Managing Dealer all Selling Commissions to which the Managing Dealer
is or becomes entitled under Section 4 at such time or times as such
Selling Commissions become payable pursuant to Paragraph 4.3.
SECTION 6.
COVENANTS, WARRANTIES AND REPRESENTATIONS OF THE MANAGING DEALER
The Managing Dealer covenants, warrants and represents, during the full
term of this Agreement, that:
(a) it is (i) a limited liability company duly organized and validly
existing under the laws of the State of Delaware, (ii) a member of
the NASD, and (iii) a broker-dealer registered under the securities
laws of all fifty states and the District of Columbia.
(b) it will use its best efforts to assure that all Shares are offered
and sold in accordance with (i) the terms of the Registration
Statement, the Prospectus and this Agreement, (ii) the requirements
of applicable federal and state securities laws and regulations, and
(iii) the applicable rules of the NASD, including, without
limitation, the NASD's Conduct Rules;
(c) it will cause the Shares to be offered or sold only in those
jurisdictions specified in writing by the Company;
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(d) it will not use any offering or selling materials other than
materials furnished or previously approved in writing by the
Company; and
(e) it either (i) will not purchase Shares for its own account or (ii)
will hold all such Shares for investment.
SECTION 7.
COVENANTS, WARRANTIES AND REPRESENTATIONS OF THE COMPANY
The Company covenants, warrants and represents, during the full term of
this Agreement, that:
(a) The Registration Statement and the Prospectus comply in all material
respects with the Securities Act and the applicable rules and
regulations of the SEC thereunder;
(b) it will use its best efforts to maintain the effectiveness of the
Registration Statement, and will file, or cause to be filed, such
amendments to the Registration Statement as may be reasonably
necessary for that purpose;
(c) it will use its best efforts to (i) prevent the issuance of any
order by the SEC, any State Regulatory Authority or any other
regulatory authority which suspends the effectiveness of the
Registration Statement, prevents the use of the Prospectus, or
otherwise prevents or suspends the Offering, and (ii) obtain the
lifting of any such order if issued;
(d) it will give the Managing Dealer written notice when the
Registration Statement becomes effective and shall deliver to the
Managing Dealer a signed copy of the Registration Statement,
including its exhibits, and such number of copies of the
Registration Statement, without exhibits, and the Prospectus, and
any supplements and amendments thereto which are finally approved by
the SEC, as the Managing Dealer may reasonably request for sale of
the Shares, which Prospectus shall not contain any untrue statement
of a material fact required to be stated therein or omit any
material statement necessary to make the statements therein, in
light of the circumstances under which they are made, not
misleading;
(e) if at any time any event occurs and becomes known to the Company
prior to the end of the Offering Period, as a result of which the
Registration Statement or Prospectus would include an untrue
statement of a material fact or, in view of the circumstances under
which they were made, omit to state any material fact necessary to
make the statements therein not misleading, the Company will effect
the preparation of an amended or supplemented Registration Statement
or Prospectus which will correct such statement or omission;
(f) it will promptly notify the Managing Dealer of any post-effective
amendments or supplements to the Registration Statement or
Prospectus;
(g) it will, during the full term of this Agreement, abide by all
applicable provisions of its governing instruments, as the same may
be amended;
(h) it will use its best efforts to cause, at or prior to the time the
Registration Statement becomes effective, the qualification or
registration of the Shares for offering and sale under the
securities laws of such jurisdictions as shall be determined by the
Company;
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(i) 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;
(j) The Shares, when issued, will be duly authorized, 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;
(k) 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;
(l) 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;
(m) 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;
(n) 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;
(o) 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 (the "Investment Company Act") 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;
(p) This Agreement has been duly and validly authorized, executed and
delivered by the Company and constitutes the valid agreement of the
Company enforceable in accordance with its terms. The execution and
delivery of this Agreement, the consummation of the transactions
herein contemplated and the compliance with the terms of this
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
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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 provisions contained in Section 9 of this 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
Agreement by the Company, or for the consummation of the
transactions contemplated hereby (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);
(q) 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;
(r) 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; and
(s) On the Effective Date and at all times subsequent thereto up to the
Termination Date, the Prospectus will include disclosure regarding
all materially important real properties held or intended to be
acquired by the Company required to be disclosed under the
Securities Act.
SECTION 8.
PAYMENT OF COSTS AND EXPENSES
8.1 Managing Dealer. The Managing Dealer shall pay all costs and expenses
incident to the performance of its obligations under this Agreement which are
not expressly assumed by the Company under Paragraph 8.2 below.
8.2 Company. The Company shall pay all costs and expenses related to:
(a) the registration of the offer and sale of the Shares with the SEC,
including the cost of preparation, printing, filing and delivery of
the Registration Statement and all copies of the Prospectus used in
the Offering, and any amendments or supplements to such documents;
(b) the preparation and printing of the form of subscription agreement
to be used in the sale of the Shares;
(c) the qualification or registration of the Shares under state
securities or "blue sky" laws of states where the Shares are to be
offered or sold;
(d) the filing of the Registration Statement and any related documents,
including any amendments or supplements to such documents, with the
NASD;
(e) any filing fees, and fees and disbursements to counsel, accountants
and escrow agents which are in any way related to any of the above
items; and
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(f) the preparation, printing and filing of all advertising originated
by it relating to the sale of Shares.
SECTION 9.
INDEMNIFICATION
9.1 The Managing Dealer agrees to indemnify, defend and hold harmless the
Company from all losses, claims, demands, liabilities and expenses, including
reasonable legal and other expenses incurred in defending such claims or
liabilities, whether or not resulting in any liability to the Company, (except
as specified in Section 9.2), that the Company may incur in connection with the
offer or sale of any Shares, by the Managing Dealer pursuant to this Agreement
that arise out of or are based upon (i) an untrue statement or alleged untrue
statement of a material fact, or any omission or alleged omission of a material
fact, other than (a) a statement or omission contained in the Prospectus, the
Registration Statement, or any state securities filing which was not based on
information supplied to the Company by the Managing Dealer; or (b) any such
statements or omissions or alleged statements or omissions resulting, directly
or indirectly, from the Company's bad faith, gross negligence or willful
misconduct; or (ii) the material breach by the Managing Dealer of any of the
terms and conditions of this Agreement, including, but not limited to, alleged
violations of the Securities Act of 1933, as amended.
9.2 The Company agrees to indemnify the Managing Dealer from all expenses,
including reasonable legal and other expenses, incurred in successfully
defending against such claims or liabilities that it may incur in connection
with the offer or sale of any Shares by the Managing Dealer pursuant to this
Agreement that arise out of or are based upon (i) an untrue statement or alleged
untrue statement of a material fact, or any omission or alleged omission of a
material fact, other than (a) a statement or omission contained in the
Prospectus, the Registration Statement, or any state securities filing that was
based on information supplied to the Company by the Managing Dealer, or (b) any
such statements or omissions or alleged statements or omissions resulting,
directly or indirectly, from the Managing Dealer's bad faith, gross negligence
or willful misconduct; or (ii) the material breach by the Company of any of the
terms and conditions of this Agreement, including, but not limited to, alleged
violations of the Securities Act.
SECTION 10.
MISCELLANEOUS
10.1 Notices. Any notice, approval, request, authorization, direction or
other communication under this Agreement shall be given in writing and shall be
deemed to be delivered when delivered in person or deposited in the United
States mail, properly addressed and stamped with the required postage,
registered or certified mail, return receipt requested, to the intended
recipient as set forth below.
If to the Company:
Sandalwood Lodging Investment Corporation
00000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X.X. Xxxxxx
If to the Managing Dealer:
Emerald Bay Capital Management, LLC
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000 Xxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Copy to:
Xxxxxxxx Xxxx
000 Xxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Any party may change its address specified above by giving each other
party notice of such change in accordance with this Paragraph 10.1.
10.2 Invalid Provision. The invalidity or unenforceability of any
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
10.3 No Partnership. Nothing in this Agreement shall be construed or
interpreted to constitute the Managing Dealer as in association with or in
partnership with the Company, and instead, this Agreement only shall constitute
the Managing Dealer as a dealer authorized by the Company to sell the Shares
according to the terms set forth in the Registration Statement, the Prospectus
or this Agreement.
10.4 No Third Party Beneficiaries. No provision of this Agreement is
intended to be for the benefit of any person or entity not a party to this
Agreement, and no third party shall be deemed to be a beneficiary of any
provision of this Agreement. Further, no third party shall by virtue of any
provision of this Agreement have a right of action or an enforceable remedy
against either party to this Agreement.
10.5 Survival. Paragraph 5.3 and Section 9 and all provisions of this
Agreement which may reasonably be interpreted or construed as surviving the
expiration or termination of this Agreement shall survive the expiration or
termination of this Agreement.
10.6 Entire Agreement. This Agreement constitutes the complete
understanding among the parties hereto, and no variation, modification or
amendment to this Agreement shall be deemed valid or effective unless and until
it is signed by all parties hereto.
10.7 Successors and Assigns. No party shall assign (voluntarily, by
operation of law or otherwise) this Agreement or any right, interest or benefit
under this Agreement without the prior written consent of each other party.
Subject to the foregoing, this Agreement shall be fully binding upon, inure to
the benefit of, and be enforceable by, the parties hereto and their respective
successors and assigns.
10.8 Nonwaiver. The failure of any party to insist upon or enforce strict
performance by any other party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such party's right to assert or rely upon any
such provision or right in that or any other instance; rather, such provision or
right shall be and remain in full force and effect.
10.9 Applicable Law. This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Company:
SANDALWOOD LODGING INVESTMENT
CORPORATION
By: __________________________________
__________________, Managing Director
Managing Dealer:
EMERALD BAY CAPITAL MANAGEMENT,
LLC
By: __________________________________
____________________, President
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