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EXHIBIT 10.1
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED
00 XXXXXXXXXXX XXXXX
XXX XXXX, XX 00000
SALES AGENCY AGREEMENT
June __, 1997
Xxxxx Financial Corporation
00 Xxxxxxxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Corporate Property Associates 14 Incorporated, a Maryland
corporation (the "Company"), hereby confirms its agreement with you as follows:
1. Introduction. This Agreement sets forth the understandings
and agreements between the Company and you whereby you will offer and sell on a
best efforts basis for the account and risk of the Company, along with a group
of selected dealers (the "Selected Dealers") and registered investment advisers
(the "Selected Investment Advisers") to be formed with your assistance,
30,000,000 shares of common stock of the Company (the "Shares") at $10 per share
(subject to certain volume discounts).
2. Representations and Warranties of the Company
The Company represents, warrants and agrees that:
(a) Registration Statement and Prospectus. The Company has
filed with the Securities and Exchange Commission (the "Commission") a
registration statement and amendments on Form S-11 (NO. 333_ ), each containing
a related preliminary prospectus, for the registration of the Shares under the
Securities Act of 1933, as amended (the "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), are herein called the "Registration Statement" and the "Prospectus",
respectively, except that if the 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
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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.
(b) Compliance with the Act. 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 amendment thereto becomes 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. 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. 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 stockholder 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.
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(e) Violations. 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) Taxes. 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) Pending Action. 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) Financial Statements. 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 Coopers & Xxxxxxx,
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) No Subsequent Material Events. 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) Investment Company Act. 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) Authorization of Agreement. This Agreement and the
Advisory Agreement (the "Advisory Agreement") between the Company and Xxxxx
Property Advisors (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 Agreement and the Advisory
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Agreement, the consummation of the transactions herein and therein contemplated
and the compliance with the terms of this 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
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 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) Description of Agreements. 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) Qualification as a Real Estate Investment Trust. 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) Description of Properties. On the Effective Date and at
all times subsequent thereto up to the Termination Date, the section of the
Prospectus entitled "Description of Properties" will include, among other
things, the location and general character of all materially important real
properties held or intended to be acquired by the Company, the nature of the
Company's title to or other interest in such properties and the nature and
amount of all material mortgages or other liens or encumbrances against such
properties and the principal terms of any lease of any such properties and the
lessee thereof and such descriptions will be correct in all material respects.
3. Sales of Shares. On the basis of the representations,
warranties and covenants herein contained, but subject to the terms and
conditions herein set forth, the Company hereby appoints you as its sales agent
("Sales Agent") to solicit purchasers, along with the Selected Dealers and
Selected Investment Advisers (as defined in Section 3(c)), for up to 30,000,000
Shares during the period (the "Effective Term") from the Effective Date to the
Termination Date in
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the manner described in the Registration Statement. Subject to the performance
by the Company of all obligations to be performed by it hereunder and the
completeness and accuracy of all of its representations and warranties, you
agree to use your best efforts as Sales Agent, promptly following written or
telegraphic receipt of notice of the Effective Date from the Company, to offer
and sell such number of Shares as contemplated by this Agreement at the price
stated in the Prospectus.
(a) Purchase of Shares. The purchase of Shares must be made
during the offering period described in the Prospectus (each such purchase
hereinafter defined as an "Order"). Persons desiring to purchase Shares are
required to (i) deliver to you, the appropriate Selected Dealer or Selected
Investment Adviser a check in the amount of $10 per Share purchased payable to
The United States Trust Company of New York, as escrow agent (the "Escrow
Agent"), or (ii) authorize a debit of such amount to the account such purchaser
maintains with you, the appropriate Selected Dealer or Selected Investment
Adviser. For investors residing in certain states, an order form in the form
attached to the Prospectus (each an "Order Form") must be completed and
submitted to the Company. On a daily basis, you will submit all checks received
from investors and transfer, via Federal Reserve bank wire, the total amount
debited from investor accounts for the purchase of Shares along with a list
including the name, address and telephone number of, the social security number
or taxpayer identification number of, the brokerage account number of (if
applicable), the number of Shares purchased by and the total dollar amount of
investment by, each investor on whose behalf checks are submitted or the wire
transfer is made. You also will forward all Order Forms to the Company. You
shall use your best efforts to wire such funds or transmit checks to the Escrow
Agent not later than noon of the next business day after receipt by you from
your customer of each Order. You will advise the Escrow Agent 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 Order or to accept or reject Orders in the order of
their receipt by the Company or otherwise. Within 30 days of receipt of an
Order, the Company must accept or reject such Order. If the Company elects to
reject such Order, within 10 business days after such rejection, it will notify
the purchaser of such fact and cause the return of such purchaser's funds
submitted with such application and any interest earned thereon. If no notice of
rejection is received by you within 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 to make
every reasonable effort to determine that the purchase of Shares is a suitable
and appropriate investment for each potential purchaser of Shares based on
information
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provided by such purchaser regarding such purchaser's financial situation and
investment objectives. 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 purchaser of Shares.
(b) Closing Dates and Delivery of Shares. In no event shall a
sale of shares to an investor be completed until at least five business days
after the date the investor receives a copy of the Prospectus. On the date
Shares are first issued to Shareholders (such date being herein referred to as
the "Initial Closing Date"), the Escrow Agent will at such time and place as
instructed by you and the Company (which instruction shall be subject to the
satisfaction on such date of the conditions contained herein), deliver to the
Company or its designee immediately available funds in an amount equal to the
Escrow Funds on deposit in the Escrow Account prior to the date designated by
the Company. If, after the Initial Closing Date, additional sales of Shares are
made, on each such date (each such date being referred to as an "Additional
Closing Date") and at each such time and place as instructed by you and the
Company (which instruction shall be subject to the satisfaction on each such
date of the conditions contained herein), the Escrow Agent shall be required to
deliver to the Company or its designee immediately available funds in an amount
equal to the Escrow Funds on deposit in the Escrow Account prior to the date
specified by the Company. The Initial Closing Date and each Additional Closing
Date are each herein referred to as a "Closing Date".
(c) Selected Dealers. The Shares offered and sold under this
Agreement shall be offered and sold only by you as Sales Agent and by a selling
group of brokers or dealers (the "Selected Dealers"), all of whom must be
members in good standing of the National Association of Securities Dealers, Inc.
(the "NASD") who execute Selected Dealer Agreements with you substantially in
the form attached hereto as Exhibit A and Selected Investment Advisers, all of
whom are acceptable to the Company and you (which acceptance shall not be
unreasonably withheld by you). You will assist the Company in forming the
selling group of Selected Dealers and Selected Investment Advisers. No firm
shall be invited to join the selling group of Selected Dealers or Selected
Investment Advisers if it is (i) currently subject to any suspension or
expulsion pursuant to the rules and regulations of the Commission, the state
securities commissions of any of the fifty states, the New York Stock Exchange,
Inc. or the American Stock Exchange, Inc. as those rules and regulations relate
to broker-dealers and registered investment advisers, or the rules and
regulations of the NASD or (ii) a "discount broker" as that term is commonly
understood in the brokerage industry. The Company and the Advisor or an
affiliate thereof agree to participate in your marketing efforts to the extent
that you may reasonably request and, without limiting the generality of the
foregoing, agree to visit the offices of Selected Dealers and Selected
Investment Advisers as you may reasonably designate.
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(d) Compensation. (i) Selling Commission. In consideration for
your execution of this Agreement, and for the performance of your obligations
hereunder, the Company agrees to pay or cause to be paid to you a selling
commission (the "Selling Commission") of 6.5% ($0.65) of the price of each Share
sold by you or by a Selected Dealer only, no commissions shall be paid for
shares sold by Selected Investment Advisers; provided, however, that your
Selling Commission shall be reduced with respect to volume sales of Shares to
"Single Purchasers" (as defined in the Prospectus). In the case of such volume
sales to Single Purchasers, on orders of $250,000 or more your Selling
Commission 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 will not effect the
amount received by the Company for investment. The following table sets forth
the reduced Share purchase price and Selling Commission payable to you:
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Purchase Price Per Selling Commission Per
Volume Discount Share for Incremental Share on Total Sale For
Range for a Share In Volume Incremental Share 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 50,761 Shares
rather than 50,000 Shares for his investment of $500,000 and the Selling
Commission would be $25,380.50. 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 foregoing example, $4.21 would be refunded for the fractional
Share.
Selling Commissions for purchases of $5,000,000 or more will,
in the sole discretion of the Company, be reduced to $0.10 per Share or less but
in no event will the proceeds to the Company be less than $9.35 per Share.
Selling Commissions paid will in all cases be the same for the same level of
sales.
The Company will pay to you for reallowance to Selected
Dealers only, the amount of any due diligence fee to the Selected Dealers (the
"Selected Dealer Fee") which you have agreed to pay in amount of up to .5% of
the price of each Share sold by each Selected Dealer to which you have agreed to
pay such a fee.
From your total commissions, you agree to reallow to each
Selected Dealer with whom you have entered into a Selected Dealer Agreement (no
such reallowance will be made for Selected Investment Advisers) an amount of up
to $0.60 commission per Share sold by the Company pursuant to Orders solicited
by such Selected Dealer and the full amount of any Selected Dealer Fee paid to
you by the Company on behalf of any Selected Dealer. No payment of commissions
will be made by the Company with respect to Orders placed by the Selected
Investment Advisers and Orders (or portions thereof) which are rejected by the
Company. Purchases of Shares by the Advisor, its Affiliates (as defined in the
Prospectus), any Selected Dealer, any Selected Investment Adviser or any
employee of any Selected Dealer or Investment Adviser shall be net of Selling
Commissions and the Company will pay no Selling Commissions on such Orders.
Selling Commissions will be paid on any Closing Date with respect to the Shares
sold to purchasers whose Shares are issued on such Closing Date. The Company
represents that neither it nor any of its Affiliates have offered or sold any
Shares pursuant to this Offering and agrees that, through the date on which the
Offering is terminated (the "Termination Date"), the Company will not offer or
sell any Shares otherwise than through you as herein provided.
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(e) Finders Fee. Neither the Company, any Selected Dealer nor
any Selected Investment Adviser participating in the Offering shall, directly or
indirectly, pay or award any finder's fees, commissions or other compensation to
any person engaged by a potential investor for investment advice as an
inducement to such adviser to advise the purchase of Shares; provided, however,
that normal Selling Commissions payable to a registered broker-dealer or other
properly licensed person for selling Shares shall not be prohibited hereby.
4. Covenants. The Company covenants to you and each Selected
Dealer that it will:
(a) Commission Orders. Use its best efforts to cause the
Registration Statement and any subsequent amendments thereto to become effective
as promptly as possible, and will notify you immediately, and confirm the notice
in writing, (i) when the Registration Statement and any post-effective amendment
thereto becomes effective, (ii) of the issuance by the Commission of any stop
order or of the initiation, or the threatening, of any proceedings for that
purpose or of the suspension of the qualification of the Shares for offering or
sale in any jurisdiction or of the institution or threatening of any proceedings
for any of such purposes, (iii) of the receipt of any comments from the
Commission with respect to the Registration Statement, and (iv) of any request
by the Commission for any amendment to the Registration Statement as filed or
any amendment or supplement to the Prospectus or for additional information
relating thereto. The Company will make every reasonable effort to prevent the
issuance by the Commission of a stop order or a suspension order and if the
Commission shall enter a stop order or suspension order at any time, the Company
will make every reasonable effort to obtain the lifting of such order at the
earliest possible moment.
(b) Registration Statement. Deliver to you, Selected Dealers
and Selected Investment Advisers without charge such number of copies of each
preliminary prospectus filed with the Registration Statement and each amendment
thereto, and as soon as the Registration Statement or any amendment or
supplement thereto becomes effective, such number of copies of the Prospectus
(as amended or supplemented), the Registration Statement and supplements and
amendments thereto, if any (without exhibits), as you may reasonably request.
The Company hereby consents to the use of the Prospectus or any amendment or
supplement thereto by you, the Selected Dealers and Selected Investment Advisers
both in connection with the Offering and for such period of time thereafter as
the Prospectus is required to be delivered in connection therewith.
(c) "Blue Sky" Qualifications. Endeavor in good faith, in
cooperation with you, the Selected Dealers and counsel to the Selected Dealers,
at or prior to the time the Registration Statement becomes effective, to seek
the approval of the Offering by the NASD, and to qualify the Shares for offering
and sale under the securities laws of all 50 states and the District of
Columbia, except in those jurisdictions you may reasonably designate (the
"Designated
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Jurisdictions"), provided, however, the Company shall not be obligated to
subject itself to taxation as a party doing business in any such jurisdiction.
In each jurisdiction where such qualification shall be effected, the Company
will, unless you agree that such action is not at the time necessary or
advisable, file and make such statements or reports as are or may reasonably be
required by the laws of such jurisdiction.
(d) Amendments and Supplements. If during the time when a
Prospectus is required to be delivered under the Act, any event relating to the
Company shall occur as a result of which it is necessary, in the opinion of the
Company's counsel, to amend or supplement the Prospectus in order to make the
Prospectus not misleading in light of the circumstances existing at the time it
is delivered to an investor, the Company will forthwith prepare and furnish to
you, the Selected Dealers and Selected Investment Advisers, without expense to
you, the Selected Dealers or the Selected Investment Advisers, a reasonable
number of copies of an amendment or amendments of, or a supplement or
supplements to, the Prospectus which will amend or supplement the Prospectus so
that as amended or supplemented it will 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 the light of the
circumstances existing at the time the Prospectus is delivered to an investor,
not misleading. During the time when a Prospectus is required to be delivered
under the Act, the Company shall comply so far as it is able with all
requirements imposed upon it by the Act, as from time to time in force, so far
as necessary to permit the continuance of sales of the Shares in accordance with
the provisions hereof and the Prospectus.
(e) Copies of Reports. During the period the Shares remain
outstanding, furnish you the following:
(i) as soon as practicable after they have been
sent by the Company to the Shareholders or to any class of
security holders of the Company or filed with the Commission,
two copies of each annual and interim financial and each other
report, application or document;
(ii) as soon as practicable, two copies of every
press release issued by the Company and every material news
item and article in respect of the Company or its affairs
released by the Company; and
(iii) such additional documents and information with
respect to the Company and its affairs as you may from time to
time reasonably request.
(f) Sales Material. Will deliver to you from time to time, all
advertising and supplemental sales material (whether designated solely for
broker-dealer use or otherwise) proposed to be used or delivered in connection
with the Offering, prior to the use or
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delivery to third parties of such material, and will not so use or deliver, in
connection with the Offering, any such material to which you or your counsel
shall reasonably object or disapprove within seven days of delivery of such
material to you or which shall be reasonably disapproved by your counsel within
such seven-day period.
(g) Use of Proceeds. Apply the proceeds from the sale of
Shares as set forth in the section of the Prospectus entitled "Estimated Use of
Proceeds" and operate the business of the Company in accordance with the
descriptions of its business set forth in the Prospectus.
(h) Prospectus Delivery. In case you, any Selected Dealer or
Selected Investment Adviser is required to deliver a Prospectus in connection
with sales of any of the Shares at any time nine months or more after the
Effective Date, upon your or such Selected Dealer or Selected Investment
Adviser's request, the Company will, at its expense, prepare and deliver to you,
such Selected Dealer or Selected Investment Adviser as many copies as you may
request of an amended or supplemented Prospectus complying with Section 10(a)(3)
of the Act.
(i) Financial Statements. Make generally available to its
security holders as soon as practicable, but not later than 60 days after the
close of the period covered thereby, an earnings statement of the Company (in
form complying with the provisions of Rule 158 under the Act) covering a period
of 12 months beginning after the Effective Date but not later than the first day
of the Company's fiscal quarter next following the Effective Date.
(j) Compliance with Exchange Act. Comply with the requirements
of the Exchange Act relating to the Company's obligation to file periodic
reports including annual reports on Form 10-K, quarterly reports on Form 10-Q
and current reports on Form 8-K.
5. Covenants of the Sales Agent. You covenant and agree with
the Company as follows;
(a) Compliance with Laws. In connection with the offer and
sale of Shares, you shall comply with any applicable requirements of the Act,
the Exchange Act and the applicable state securities or "blue sky" laws, and the
rules and regulations thereunder.
(b) Accuracy of Information. No information supplied by you
for use in the Registration Statement will contain any untrue statements of a
material fact or omit to state any material fact necessary to make such
information not misleading.
(c) No Additional Information. You will not give any
information or make any representation in connection with the offering of the
Shares other than that contained in the Prospectus.
(d) Sale of Shares. You shall act as Sales Agent and solicit,
directly or through Selected Dealers and Selected Investment
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Advisers, purchasers of the Shares only in the jurisdictions in which you have
been advised by the Company that such solicitations can be made, and in which
you, the soliciting Selected Dealer or Selected Investment Adviser, as the case
may be, are qualified to so act.
6. Payment of Expenses.
(a) Expenses. Whether or not the transactions contemplated in
this Agreement are consummated or if this Agreement is terminated, the Company
will pay, in addition to the underwriting compensation described in Section 3(d)
(which you may retain up to the point of termination unless this agreement is
terminated without any shares being sold, in which case no such underwriting
compensation shall be paid), all fees and expenses incurred in connection with
the formation, qualification and registration of the Company and in marketing,
distributing and processing the Shares under applicable Federal and state law,
and any other fees and expenses actually incurred and directly related to the
offering and sale of the Shares, including such fees and expenses as (i) the
preparing, printing, filing and delivering of the Registration Statement (as
originally filed and all amendments thereto) and of any preliminary prospectus
and of the Prospectus and any amendments thereof or supplements thereto and the
preparing and printing of the Selected Dealer Agreements, this Agreement and
Order Forms, including the cost of all copies thereof and any financial
statements or exhibits relating to the foregoing supplied to you, Selected
Dealers and Selected Investment Advisers in quantities reasonably requested by
you, (ii) the preparing and printing of the solicitation material and related
documents and the filing and/or recording of such certified certificates or
other documents necessary to comply with the laws of the State of Maryland for
the formation of a corporation and thereafter for the continued good standing of
a Company, (iii) the issuance and delivery of the Shares, including any transfer
or other taxes payable thereon, (iv) any escrow arrangements in connection with
the transactions described herein, including any compensation or reimbursement
to an escrow agent for its services as such, (v) the qualification or
registration of the Shares under state securities or "blue sky" laws, (vi) the
filing fees payable to the Commission and to the NASD, (vii) the preparation and
printing of advertising material in connection with and relating to the
Offering, including the cost of all sales literature and investor and
broker-dealer sales and information meetings, (viii) the cost and expenses of
counsel and accountants of the Company and (ix) any other expenses of issuance
and distribution of the Shares.
(b) Sales Incentive Programs. Subject to the satisfactory
completion of any regulatory reviews and examinations which may be required, the
prior review and approval and the rules of the NASD and approval by the Company
or the Advisor, the Company, the Advisor and Affiliates of the Advisor may
establish sales incentive programs for your associated persons or the associated
persons of Selected Dealers only. Sales incentives will be deemed to be
additional underwriting compensation. The aggregate value of incentives paid
directly to an
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individual associated person during the Offering will not exceed $100 in any
given year.
(c) Limitation. Notwithstanding the foregoing, the total
underwriting compensation paid to the Sales Agent and Selected Dealers from any
source in connection with the Offering pursuant to Section 3(d) hereof and this
Section 6 shall not exceed 10% of the gross proceeds of the sale of the Shares,
plus 0.5% of such gross proceeds for bona fide due diligence expenses. The
Company and you agree to monitor the payment of all fees and expense
reimbursements to assure that this limit is not exceeded.
7. Conditions of Your Obligations. Your obligations hereunder
shall be subject to the continued accuracy throughout the Effective Term of the
representations, warranties and agreements of the Company, to the performance by
the Company of its obligations hereunder and to the following terms and
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement shall have initially become effective not later than 5:30 P.M.,
eastern time, on the date of this Agreement or such later date and time as shall
be consented to in writing by you and, at any time during the term of this
Agreement, no stop order shall have been issued or proceedings therefor
initiated or threatened by the Commission; and all requests for additional
information on the part of the Commission and state securities administrators
shall have been complied with to the reasonable satisfaction of your counsel and
no stop order or similar order shall be in effect in any jurisdiction in which
the Company intends to offer Shares (except in the Designated Jurisdictions).
(b) Opinion of Counsel. At the Effective Date, you shall
receive the favorable opinion of Xxxx Xxxxx Xxxx & XxXxxx, counsel for the
Company, dated the Effective Date, addressed to you substantially to the effect
that:
(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 and 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;
(ii) the Shares have been duly authorized and, after
being duly issued and sold in accordance with the terms set
forth in the Registration Statement, will be validly issued,
fully paid and non-assessable Shares; and no holder thereof is
or 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
stockholder of the Company, and all corporate action
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required to be taken for the authorization, issue and sale of
such Shares has been validly and sufficiently taken;
(iii) this Agreement has been duly and validly
authorized, executed and delivered by or on behalf of the
Company and constitutes the valid, binding and enforceable
agreement of the Company except (A) as may be subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to creditors' rights generally, (B) that
the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any
proceedings may be brought, and (C) that rights to indemnity
may be limited by federal or state securities laws or the
public policy underlying such laws;
(iv) the Registration Statement is effective under
the Act and, to the best of such counsel's knowledge, no stop
order has been issued nor are proceedings for a stop order
pending or threatened under the Act;
(v) the Advisory Agreement has been duly and
validly authorized, executed and delivered by or on behalf of
the Company and the Advisor and constitutes the valid, binding
and enforceable agreement of the Company and the Advisor
except (A) as may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
creditors' rights generally, and (B) that the remedy of
specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceedings may
be brought;
(vi) to the best of such counsel's knowledge and
information, there is no litigation or governmental proceeding
pending or threatened against the Company which might
materially and adversely affect the business, properties,
condition (financial or otherwise) or earnings of the Company,
except as referred to in the Prospectus, and no consent,
approval, authorization, registration, qualification, license
or order of any court, regulatory or other governmental agency
or body is required in connection with the consummation of the
transactions contemplated by this Agreement or the
Registration Statement and the Prospectus, except such as may
be necessary under the Act or state "blue sky" or securities
laws in connection with the Offering or such as may have been
previously obtained;
(vii) neither the execution and delivery of this
Agreement or the Advisory Agreement nor compliance with the
terms and provisions hereof or thereof will, and consummation
of the transactions contemplated herein and in the Prospectus
do not and will not, result in any violation
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of the Articles or Bylaws, conflict with or result in a breach
of or default (or an event which with the giving of notice or
lapse of time or both would constitute a default) under, any
of the terms, provisions or conditions of any statute, order,
judgment, writ, injunction, decree, agreement, rule,
regulation, instrument or organizational document known to
such counsel, to which the Company is a party or, to the best
of such counsel's knowledge and information, by which the
Company is bound;
(viii) the Advisor has been duly formed and is
validly existing as a limited partnership in good standing
under the laws of the Commonwealth of Pennsylvania as a
limited partnership with full power and authority to conduct
the business in which it proposes to engage as described in
the Prospectus and is duly qualified to do business and is in
good standing in each other jurisdiction in which it transacts
business of a type that would make such qualification
necessary;
(ix) Xxxxx Fiduciary Advisors, Inc. has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the Commonwealth of Pennsylvania
with full power and authority to conduct the business in which
it engages in as described in the Prospectus and 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 the nature or transacts business of a type,
that would make such qualification necessary;
(x) the statements in the Prospectus under the
captions "Risk Factors -- Tax Risks -- REIT Status for Tax
Purposes", "Description of Shares" and "Income Tax Aspects"
insofar as they are, or refer to, statements of law or legal
conclusions, are correct and fairly present the information
required to be shown therein; and
(xi) at the time the Registration Statement was
filed and at the time it initially became effective, such
Registration Statement and the Prospectus (other than the
financial statements and the prior performance tables included
therein, as to which no opinion is rendered) complied as to
form in all material respects with the requirements of the Act
and the Regulations and nothing came to such counsel's
attention which would lead such counsel to believe that either
the Registration Statement or the Prospectus, at the time they
initially became effective, contained any untrue statement of
a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
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In rendering the opinions set forth above, counsel may rely, as to matters of
law of states other than Pennsylvania, upon the opinions of other counsel, in
each case satisfactory in form and substance to you, and counsel shall state
such opinions are satisfactory in form and scope to them and that they believe
you may rely on them, and as to matters of fact, upon communications, statements
and certificates from public officials, and certifications and statements from
officers of the Company.
(c) Accountant's Letter. On the Effective Date you shall have
received from Coopers & Xxxxxxx a letter, in form and substance satisfactory to
you in all respects (including the nonmaterial nature of the changes and
decreases, if any, referred to in clause (iii) herein), advising that:
(i) they are independent certified public
accountants as required by the Act and the Regulations and the
answer to Item 27 of the Registration Statement does not
require any statement relating to them;
(ii) it is their opinion that the financial
statements and supporting schedules filed as part of the
Registration Statement and those included in the Prospectus,
and covered by their opinions therein, comply as to form in
all material respects with the applicable accounting
requirements of the Act and the Regulations relating to
financial statements in registration statements on Form S-11;
(iii) based on the limited review set forth in detail
in such letter, nothing came to their attention that caused
them to believe that during the period from the date of the
balance sheet of the Company contained in the Prospectus to a
specified date not more than five (5) days prior to the date
on which the Registration Statement initially becomes
effective, there was any change in the stockholder's equity,
liabilities or net assets of the Company as compared with the
amounts shown in such balance sheet other than as such change
may have been contemplated by or set forth in the Registration
Statement or Prospectus;
(iv) based on procedures consisting of a reading of
the percentages and dollar amounts and related text set forth
in the Prospectus and the Registration Statement under the
captions "Prior Offerings by Affiliates" and "Prior
Performance Tables" (including Table VI included as an exhibit
to the Registration Statement), and all dollar amounts in the
related notes referenced therein, inquiry of officers and
other employees of the corporate general partner of Corporate
Property Associates, Corporate Property Associates 2,
Corporate Property Associates 3, Corporate Property Associates
4, a California limited partnership, Corporate Property
Associates 5, Corporate Property
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Associates 6 - a California limited partnership, Corporate
Property Associates 7 - a California limited partnership,
Corporate Property Associates 8, L.P., and Corporate Property
Associates 9, L.P., (collectively the "CPA(R) Partnerships")
and the officers and other employees of Corporate Property
Associates 10 Incorporated, Xxxxx Institutional Properties
Incorporated and Corporate Property Associates 12 Incorporated
(collectively the "CPA(R) REITS"), and counsel for the CPA(R)
Partnerships and the CPA(R) REITS, they have found such
percentages and dollar amounts to be in agreement with the
respective relevant accounting and financial records of the
CPA(R) Partnerships and CPA(R) REITS; and
(v) they have conducted such other procedures as may
be mutually agreed by the Company, Selected Dealers and
Selected Investment Advisers.
(d) Stop Orders. On the Effective Date and during the
Effective Term no order suspending the sale of the Shares in any jurisdiction
(except the Designated Jurisdictions) nor any stop order issued by the
Commission shall have been issued, and on the Effective Date and during the
Effective Term no proceedings relating to any such suspension or stop orders
shall have been instituted, or to the knowledge of the Company, shall be
contemplated.
(e) Information Concerning the Advisor. On the Effective Date,
you shall receive a letter dated the Effective Date from the Advisor, confirming
that (1) the Advisory Agreement has been duly and validly authorized, executed
and delivered by the Advisor and constitutes a valid agreement of the Advisor
enforceable in accordance with its terms; (2) the execution and delivery of the
Advisory Agreement, the consummation of the transactions therein contemplated
and compliance with the terms of the Advisory Agreement by the Advisor will not
conflict with or constitute a default under its partnership agreement or any
indenture, mortgage, deed of trust, lease or other agreement or instrument to
which the Advisor 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 Advisor, or any of its
property; (3) no consent, approval, authorization or order of any court or other
governmental agency or body has been or is required for the performance of the
Advisory Agreement by the Advisor, or for the consummation of the transactions
contemplated thereby; and (4) the Advisor is a limited partnership duly formed,
validly existing and in good standing under the laws of the Commonwealth of
Pennsylvania and is duly qualified to do business as a foreign limited
partnership in each other jurisdiction in which the nature of its business would
make such qualification necessary.
If any of the conditions specified in this Section 7 shall not
have been fulfilled when and as required by this Agreement, this Agreement and
all your obligations hereunder may be canceled by you by
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18
notifying the Company of such cancellation in writing or by telecopy at any
time, and any such cancellation or termination shall be without liability of any
party to any other party except as otherwise provided in Sections 3(d), 6, 8, 9
and 10 hereof.
All certificates, letters and other documents referred to in
this Section 7 will be in compliance with the provisions hereof only if they are
reasonably satisfactory in form and substance to you and your counsel. The
Company will furnish you with conformed copies of such certificates, letters and
other documents as you shall reasonably request.
8. Indemnification.
(a) Indemnification by Company. Subject to the conditions set
forth below and those included in the Articles and Bylaws, the Company agrees to
indemnify and hold harmless you, each Selected Dealer, each Selected Investment
Adviser and each person, if any, who controls you, any such Selected Dealer or
Selected Investment Adviser within the meaning of Section 15 of the Act, from
and against any and all loss, liability, claim, damage and expense whatsoever
(including but not limited to any and all expenses whatsoever reasonably
incurred in investigating, preparing for, defending against or settling any
litigation, commenced or threatened, or any claim whatsoever) arising out of or
based upon (1) any untrue or alleged untrue statement of a material fact
contained (x) in the Registration Statement or the Prospectus (as from time to
time amended or supplemented) or any related preliminary prospectus; or (y) in
any application or other document (in this Section 8 collectively called
"application") executed by the Company or based upon information furnished by
the Company and filed in any jurisdiction in order to qualify the Shares under
the securities laws thereof or (2) the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, unless any such statement or omission was made in reliance upon and
in conformity with written information furnished to the Company by you expressly
for use in the Registration Statement or related preliminary prospectus or
Prospectus or any amendment or supplement thereof or in any of such applications
or in any such sales as the case may be. Notwithstanding the foregoing, the
Company shall not indemnify the Sales Agent for any losses, liabilities or
expenses arising from or out of an alleged violation of federal or state
securities laws unless (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 (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 Commission and of the
published position of any state securities regulatory authority in which
securities of the Company
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were offered or sold as to indemnification for violations of Securities laws.
(b) Indemnification by You. Subject to the conditions set
forth below, you agree to indemnify and hold harmless the Company, each of its
directors, those of its officers who have signed the Registration Statement and
each other person, if any, who controls the Company within the meaning of
Section 15 of the Act to the same extent as the foregoing indemnity from the
Company but only with respect to an untrue statement or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact in
the Registration Statement (as from time to time amended or supplemented) or
Prospectus, or any related preliminary prospectus, any application made in
reliance upon or, in conformity with, written information furnished by you
expressly for use in such Registration Statement or Prospectus or any amendment
or supplement thereto, in any related preliminary prospectus or in any of such
applications.
(c) Procedure for Making Claims. Each indemnified party shall
give prompt notice to each indemnifying party of any claim or action (including
any governmental investigation) commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify any indemnifying
party shall not relieve it from any liability that it may have otherwise than on
account of this indemnity agreement. The indemnifying party, jointly with any
other indemnifying parties receiving such notice, shall assume the defense of
such action with counsel chosen by it and approved by the indemnified parties
defendant in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to them
which are different from or in addition to those available to such indemnifying
party. Any indemnified party shall have the right to employ a separate counsel
in any such action and to participate in the defense thereof but the fees and
expenses of such counsel shall be borne by such party unless such party has
objected in accordance with the preceding sentence, in which event such fees and
expenses shall be borne by the indemnifying parties. Except as set forth in the
preceding sentence, if an indemnifying party assumes the defense of such action,
the indemnifying party shall not be liable for any fees and expenses of separate
counsel for the indemnified parties incurred thereafter in connection with such
action. In no event shall the indemnifying parties be liable for the fees and
expenses of more than one counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. The
indemnity agreements contained in this Section 8 and the warranties and
representations contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
party and shall survive any termination of this Agreement. An indemnifying party
shall not be liable to an indemnified party on account of any settlement of any
claim or action effected without the consent of such indemnifying party. The
Company agrees promptly to notify you of the commencement of any litigation or
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proceedings against the Company in connection with the issue and sale of the
Shares or in connection with the Registration Statement or Prospectus.
(d) Contribution. Subject to the limitations set forth in
Section 8(a) hereof and in order to provide for just and equitable contribution
where the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, liabilities, claims, damages or expenses (or
actions in respect thereof) referred to therein, except by reason of the terms
thereof, the Company on the one hand and you on the other shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and you on the other from the Offering based on the
public offering price of the Shares sold and the Selling Commissions received by
you with respect to such Shares sold. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits referred
to above but also the relative fault of the Company on the one hand and you on
the other in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and you on the other shall be
deemed to be in the same proportion as the total proceeds from the Offering (net
of underwriting commissions but before deducting expenses) received by the
Company bear to the total underwriting commissions received by you. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the Company on the one hand or
you on the other. The Company agrees with you that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by pro
rata allocation, or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result of the
losses, liabilities, claims, damages or expenses (or action in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), you shall not be required to contribute any
amount in excess of the amount by which the total price of the Shares sold by
you to the public exceeds the amount of any damages which you have otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
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(within the meaning of Section 11(f) of the Act or Section 10(b) of the '34 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, any person that
controls you within the meaning of Section 15 of the Act shall have the same
right to contribution as you, and each person who controls the Company within
the meaning of Section 15 of the Act shall have the same right to contribution
as the Company.
9. Representations and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in
certificates shall remain operative and in full force and effect regardless of
any investigation made by any party, and shall survive the Termination Date.
10. Effective Date, Term and Termination of this Agreement.
(a) This Agreement shall become effective as of the date it is
executed by all parties hereto. You or the Company may elect to terminate this
Agreement prior to the time the Registration Statement is declared effective by
the Commission without liability of any party to any other party, except as
provided in Section 10(e) hereof.
(b) You shall have the right to terminate this Agreement at
any time during the Effective Term without liability of any party to any other
party except as provided in Section 10(e) hereof if (i) any representations or
warranties hereunder shall be found to have been incorrect or misleading, or
(ii) the Company shall fail, refuse or be unable to perform any condition of its
obligations hereunder, or (iii) the Prospectus shall have been amended or
supplemented despite your objection to such amendment or supplement as provided
in subsection (a) of Section 2 hereof, or (iv) all trading on the New York Stock
Exchange or the American Stock Exchange shall have been suspended, or minimum or
maximum prices for trading generally shall have been fixed, or maximum ranges
for prices for all securities shall have been required, on the New York Stock
Exchange or the American Stock Exchange by such exchanges or by order of the
Commission or any other governmental authority having jurisdiction, or (v) the
United States shall have become involved in a war or major hostilities, or (vi)
a banking moratorium shall have been declared by a state or federal authority or
person, or (vii) the Company shall have sustained a material or substantial loss
by fire, flood, accident, hurricane, earthquake, theft, sabotage or other
calamity or malicious act which, whether or not said loss shall have been
insured, will in your opinion make it inadvisable to proceed with the offering
and sale of the Shares, or (viii) there shall have been, subsequent to the dates
information is given in the Registration Statement and the Prospectus, such
change in the business, properties, affairs, condition (financial or otherwise)
or prospects of the Company whether or not in the ordinary course of business or
in the condition of securities markets generally as in your sole judgment would
make it inadvisable to proceed with the offering and sale of the Shares, or
which would materially adversely affect the operations of the Company.
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(c) If this Agreement shall be terminated for reason of any
failure on the part of the Company to perform any undertaking or satisfy any
condition of this Agreement to be performed or satisfied by them pursuant to
Section 7 hereof, you may elect to terminate this Agreement without liability of
any party to any other party except as provided in Section 10(e) hereof.
(d) The Company shall have the right to terminate this
Agreement without cause on 60 days' notice in writing to you without penalty,
subject to liability as provided in Section 10(e) hereof.
(e) In the event this Agreement is terminated by any party
pursuant to Sections 10(a), 10(b), 10(c) or 10(d) hereof, the Company shall pay
all expenses of the Offering as required by Section 6 hereof and no party will
have any additional liability to any other party except for any liability which
may exist under Section 8 hereof; and provided further, that if you terminate
your participation in the Offering in other than good faith, the Company shall
not be responsible for the expenses described in clause (vii) of subsection (a)
of Section 6 hereof other than expenses of counsel to the Selected Dealers or
Selected Investment Advisers. In no event will the Company be liable to
reimburse you for expenses other than your actual out-of-pocket expenses.
(f) If you elect to terminate this Agreement as provided in
this Section 10, the Company shall be notified promptly by you by telephone or
telegram with confirmation by letter. If the Company elects to terminate this
Agreement as provided in this Section 10, you shall be notified promptly by the
Company by telephone or telegram with confirmation by letter.
11. Notices.
(a) All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and if sent to you shall be mailed,
or personally delivered, to you at 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000 and
if sent to the Company shall be mailed, or personally delivered, to the Company
at 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xx. Xxxxxxx X.
Xxxxx.
(b) Notice shall be deemed to be given by you to the Company
or by the Company to you when it is mailed or personally delivered as provided
in subsection (a) of this Section 11.
12. Parties. This Agreement shall inure solely to the benefit
of, and shall be binding upon you, the Company, and the controlling persons,
directors and officers referred to in Section 8 hereof, and their respective
successors, legal representatives and assigns, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained,
except that the Selected Dealers and Selected Investment Advisers shall have the
rights granted to them pursuant to Section 8 hereof.
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Notwithstanding the foregoing, this Agreement may not be assigned without the
consent of the parties hereto.
13. Construction. This Agreement shall be construed in
accordance with the laws of the State of New York applicable to agreements to be
made and performed entirely within such state.
14. Finders' Fees. You shall have no liability for any
finders' fees owed in connection with the transactions contemplated by this
Agreement.
15. Severability. Any provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall be ineffective to the extent
of such invalidity or unenforceability without invalidating or rendering
unenforceable the remaining provisions hereof, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provisions in any other jurisdiction.
If the foregoing correctly sets forth the understanding
between you and the Company, please so indicate in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement between
us.
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED
By:____________________________________________________
Accepted as of the
date first above
written:
XXXXX FINANCIAL CORPORATION
By:_______________________________
Exhibit Index
Exhibit A - Selected Dealer Agreement
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