EXHIBIT 10.1
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT, dated as of
November 12, 2007, is among CORPORATE PROPERTY ASSOCIATES 17
– GLOBAL INCORPORATED, a Maryland corporation (“
CPA: 17 ”), CPA: 17 LIMITED PARTNERSHIP, a Delaware
limited partnership of which CPA: 17 is a general partner (the
“ Operating Partnership ”), and CAREY ASSET
MANAGEMENT CORP., a Delaware corporation and wholly-owned
subsidiary of W. P. Carey & Co. LLC (the “ Advisor
”).
WITNESSETH :
WHEREAS, CPA: 17 intends to qualify
as a REIT (as defined below), and the Operating Partnership intends
to qualify as a partnership, in each case for U.S. federal income
tax purposes
WHEREAS, CPA: 17 and its
subsidiaries, including the Operating Partnership, desire to avail
themselves of the experience, sources of information, advice and
assistance of, and certain facilities available to, the Advisor and
to have the Advisor undertake the duties and responsibilities
hereinafter set forth, on behalf of, and subject to the supervision
of the Board of Directors of CPA: 17, all as provided herein;
and
WHEREAS, the Advisor is willing to
render such services, subject to the supervision of the Board of
Directors, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of
the foregoing and of the mutual covenants and agreements contained
herein, the parties hereto agree as follows:
1. Definitions . As used
in this Agreement, the following terms have the definitions
hereinafter indicated:
“ 2%/25% Guidelines
.” The requirement, as provided for in Section 13
hereof, that, in the 12-month period ending on the last day of any
fiscal quarter, Operating Expenses not exceed the greater of two
percent of Average Invested Assets during such 12-month period or
25% of CPA: 17’s Adjusted Net Income over the same 12-month
period.
“ Acquisition Expenses
.” To the extent not paid or to be paid by the seller,
lessee, borrower or any other party involved in the transaction,
those expenses, including but not limited to travel and
communications expenses, the cost of appraisals, title insurance,
nonrefundable option payments on Investments not acquired, legal
fees and expenses, accounting fees and expenses and miscellaneous
expenses, related to selection, acquisition and origination of
Investments, whether or not a particular Investment ultimately is
made. Acquisition Expenses shall not include Acquisition
Fees.
“ Acquisition Fees
.” The Initial Acquisition Fee and the Subordinated
Acquisition Fee.
“ Adjusted Investor
Capital .” As of any date, the Initial Investor Capital
reduced by any Redemptions, other than Redemptions intended to
qualify as a liquidity event for purposes of this Agreement, and by
any other Distributions on or prior to such date determined by the
Board to be from Cash from Sales and Financings.
“ Adjusted Net Income
.” For any period, the total consolidated revenues recognized
in such period by CPA: 17, less the total consolidated expenses of
CPA: 17 recognized in such period, excluding additions to reserves
for depreciation and amortization, bad debts or other similar
non-cash reserves;
provided, however, that Adjusted Net Income for purposes of
calculating total allowable Operating Expenses shall exclude any
gain, losses or writedowns from the sale of CPA: 17’s
assets.
“ Advisor .” Carey
Asset Management Corp, a corporation organized under the laws of
the State of Delaware and wholly-owned by W. P. Carey & Co.
LLC.
“ Affiliate .” An
Affiliate of another Person shall include any of the following: (i)
any Person directly or indirectly owning, controlling, or holding,
with power to vote ten percent or more of the outstanding voting
securities of such other Person; (ii) any Person ten percent
or more of whose outstanding voting securities are directly or
indirectly owned, controlled, or held, with power to vote, by such
other Person; (iii) any Person directly or indirectly
controlling, controlled by, or under common control with such other
Person; (iv) any executive officer, director, trustee or
general partner of such other Person; or (v) any legal entity
for which such Person acts as an executive officer, director,
trustee or general partner.
“ Agreement .”
This Advisory Agreement.
“ Appraised Value
.” Value according to an appraisal made by an Independent
Appraiser, which may take into consideration any factor deemed
appropriate by such Independent Appraiser, including, but not
limited to, the terms and conditions of any lease of a relevant
property, the quality of any lessee’s, borrower’s or
other counter-party’s credit and the conditions of the credit
markets. The Appraised Value of a Property may be greater than the
construction cost or the replacement cost of the Property.
“ Articles of
Incorporation .” Articles of Incorporation of CPA: 17
under the General Corporation Law of Maryland, as amended from time
to time, pursuant to which CPA: 17 is organized.
“ Asset Management Fee
.” The Asset Management Fee as defined in Section 9(a)
hereof.
“ Average Equity Value
.” The equity portion of the aggregate purchase price paid by
CPA: 17 for an Investment, provided that, if (1) a
later Appraised Value is obtained for the Investment, that later
Appraised Value, adjusted for other net assets and liabilities that
have economic value and are associated with that Investment, shall
become the basis for calculating the Average Equity Market Value of
the Investment, and (2) for Investments in securities that
CPA: 17 treats as available for sale under GAAP, the fair value of
such securities as determined on a monthly basis as of the last day
of each month or, if applicable, on the date the securities are
disposed of, shall be the basis for calculating the Average Equity
Market Value of such securities.
“ Average Invested
Assets .” The average during any period of the aggregate
book value of CPA: 17’s Investments, before deducting
reserves for depreciation, bad debts, impairments, amortization and
all other non-cash reserves, computed by taking the average of such
values at the end of each month during such period.
“ Average Market Value
.” The aggregate purchase price paid by CPA: 17 for an
Investment, provided that, if a later Appraised Value is
obtained for the Investment, that later Appraised Value, adjusted
for other net assets and liabilities that have economic value and
are associated with that Investment, shall become the Average
Market Value for the Investment .
“ B Note .” A note
representing a subordinated interest in a Loan secured by a first
mortgage on a Property.
“ Board or Board of
Directors .” The Board of Directors of CPA: 17.
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“ Bylaws .” The
bylaws of CPA: 17.
“ Cash from Financings
.” Net cash proceeds realized by CPA: 17 from the financing
of Investments or the refinancing of any indebtedness of CPA:
17.
“ Cash from Sales
.” Net cash proceeds realized by CPA: 17 from the sale,
exchange or other disposition of any of its Investments after
deduction of all expenses incurred in connection therewith. Cash
from Sales shall not include Cash from Financings.
“ Cash from Sales and
Financings .” The total sum of Cash from Sales and Cash
from Financings.
“ Cause .” With
respect to the termination of this Agreement, fraud, criminal
conduct, willful misconduct or willful or negligent breach of
fiduciary duty by the Advisor that, in each case, is determined by
a majority of the Independent Directors to be materially adverse to
CPA: 17, or a breach of a material term or condition of this
Agreement by the Advisor and the Advisor has not cured such breach
within 30 days of written notice thereof or, in the case of
any breach that cannot be cured within 30 days by reasonable
effort, has not taken all necessary action within a reasonable time
period to cure such breach.
“ Change of Control
.” A change of control of CPA: 17 of a nature that would be
required to be reported in response to the disclosure requirements
of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), as enacted and in force on the date
hereof, whether or not CPA: 17 is then subject to such reporting
requirements; provided , however , that, without
limitation, a Change of Control shall be deemed to have occurred
if: (i) any “person” (within the meaning of
Section 13(d) of the Exchange Act, as enacted and in force on the
date hereof) is or becomes the “beneficial owner” (as
that term is defined in Rule 13d-3, as enacted and in force on
the date hereof, under the Exchange Act) of securities of CPA: 17
representing 8.5% or more of the combined voting power of CPA:
17’s securities then outstanding; (ii) there occurs a
merger, consolidation or other reorganization of CPA: 17 which is
not approved by the Board; (iii) there occurs a sale,
exchange, transfer or other disposition of substantially all of the
assets of CPA: 17 to another entity, which disposition is not
approved by the Board; or (iv) there occurs a contested proxy
solicitation of the Shareholders of CPA: 17 that results in the
contesting party electing candidates to a majority of the
Board’s positions next up for election.
“ Closing Date .”
The first date on which Shares were issued pursuant to an
Offering.
“ Code .” Internal
Revenue Code of 1986, as amended.
“ Competitive Real Estate
Commission .” The real estate or brokerage commission
paid for the purchase or sale of a Property that is reasonable,
customary and competitive in light of the size, type and location
of the Property.
“ Construction Fee
.” A fee or other remuneration for acting as general
contractor and/or construction manager to construct improvements,
supervise and coordinate projects or to provide major repairs or
rehabilitation on a Property.
“ Contract Purchase
Price .” The amount actually paid for, or allocated to,
the purchase, development, construction or improvement of an
Investment or, in the case of an originated Loan, the principal
amount of such Loan, exclusive, in each case, of Acquisition Fees
and Acquisition Expenses.
“ Contract Sales Price
.” The total consideration received by CPA: 17 for the sale
of a Property.
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“ CPA: 17 .”
Corporate Property Associates 17 – Global Incorporated
together with its consolidated subsidiaries, including the
Operating Partnership, unless in the context of a particular
reference, it is clear that such reference refers to Corporate
Property Associates 17 – Global Incorporated excluding its
consolidated subsidiaries. Unless the context otherwise requires,
any reference to financial measures of CPA: 17 shall be calculated
by reference to the consolidated financial statements of CPA: 17
and its subsidiaries, including, without limitation, the Operating
Partnership, prepared in accordance with GAAP.
“ Cumulative Return
.” For the period for which the calculation is being made,
the percentage resulting from dividing (A) the total
Distributions for such period (not including Distributions out of
Cash from Sales and Financings), by (B) the product of
(i) either (x) until such time as CPA: 17 has invested
90% of the net proceeds of CPA: 17’s initial Offering
(excluding net proceeds from the sale of Shares pursuant to CPA:
17’s distribution reinvestment program), the average Adjusted
Investor Capital for such period (calculated on a daily basis) or
(y) from and after such time as CPA: 17 has invested 90% of
the net proceeds of CPA: 17’s initial Offering (excluding net
proceeds from the sale of Shares pursuant to CPA: 17’s
distribution reinvestment program), the net proceeds from the sale
of Shares (excluding net proceeds from the sale of Shares pursuant
to CPA: 17’s distribution reinvestment program), as adjusted
for Redemptions other than Redemptions intended to qualify as a
liquidity event for purposes of this Agreement, and by any other
Distributions on or prior to such date determined by the Board to
be from Cash from Sales and Financings, and (ii) the number of
years (including fractions thereof) elapsed during such period.
Notwithstanding the foregoing, neither the Shares received by the
Advisor or its Affiliates for any consideration other than cash,
nor the Distributions in respect of such Shares, shall be included
in the foregoing calculation.
“ Development Fee
.” A fee for the packaging of a Property including
negotiating and approving plans, and undertaking to assist in
obtaining zoning and necessary variances and necessary financing
for the specific Property, either initially or at a later
date.
“ Directors .” The
persons holding such office, as of any particular time, under the
Articles of Incorporation, whether they be the directors named
therein or additional or successor directors.
“ Distributions .”
Distributions declared by the Board.
“ GAAP .”
Generally accepted accounting principles in the United
States.
“ Good Reason .”
With respect to the termination of this Agreement, (i) any
failure to obtain a satisfactory agreement from any successor to
CPA: 17 or the Operating Partnership to assume and agree to perform
CPA: 17’s or the Operating Partnership’s, as
applicable, obligations under this Agreement; or (ii) any
material breach of this Agreement of any nature whatsoever by CPA:
17 or the Operating Partnership; provided that (a) such
breach is of a material term or condition of this Agreement and
(b) CPA: 17 or the Operating Partnership, as applicable, has
not cured such breach within 30 days of written notice thereof
or, in the case of any breach that cannot be cured within
30 days by reasonable effort, has not taken all necessary
action within a reasonable time period to cure such breach.
“ Gross Offering
Proceeds .” The aggregate purchase price of Shares sold
in any Offering.
“ Independent Appraiser
.” A qualified appraiser of real estate as determined by the
Board, who is not affiliated, directly or indirectly, with CPA: 17,
the Advisor or their respective Affiliates. Membership in a
nationally recognized appraisal society such as the American
Institute of Real Estate Appraisers or the Society of Real Estate
Appraisers shall be conclusive evidence of such
qualification.
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“ Independent Director
.” A Director of CPA: 17 who meets the criteria for an
Independent Director specified in the Bylaws.
“ Individual .”
Any natural person and those organizations treated as natural
persons in Section 542(a) of the Code.
“ Initial Acquisition
Fee .” Any fee or commission (including any interest
thereon) paid by the Operating Partnership to the Advisor or, with
respect to Section 9(d) or 9(f), by the Operating Partnership to
any party, in connection with the making of an Investment or the
development or construction of Properties by CPA: 17. A Development
Fee or a Construction Fee paid to a Person not affiliated with the
Sponsor in connection with the actual development or construction
of a project after acquisition of the Property by CPA: 17 shall not
be deemed an Initial Acquisition Fee. Initial Acquisition Fees
include, but are not limited to, any real estate commission,
selection fee, development fee or construction fee (other than as
described above), non-recurring management fees, loan fees, points
or any fee of a similar nature, however designated. Initial
Acquisition Fees include Subordinated Acquisition Fees unless the
context otherwise requires. Initial Acquisition Fees shall not
include Acquisition Expenses.
“ Initial Investor
Capital .” The total amount of capital invested from time
to time by Shareholders (computed at the Original Issue Price per
Share), excluding any Shares received by the Advisor or its
Affiliates for any consideration other than cash.
“ Investment .”
means an investment made by CPA: 17, directly or indirectly, in a
Property, Loan or Other Permitted Investment Asset.
“ Loans .” The
notes and other evidences of indebtedness or obligations acquired,
originated or entered into, directly or indirectly, by CPA: 17 as
lender, noteholder, participant, note purchaser or other capacity,
including but not limited to first or subordinate mortgage loans,
construction loans, development loans, loan participations, B
notes, loans secured by capital stock or any other assets or form
of equity interest and any other type of loan or financial
arrangement, such as providing or arranging for letters of credit,
providing guarantees of obligations to third parties, or providing
commitments for loans. The term “Loans” shall not
include leases which are not recognized as leases for Federal
income tax reporting purposes.
“ Loan Refinancing Fee
.” A fee payable to the Advisor in respect of the refinancing
of a loan secured by an Investment.
“ Long-Term Net Leased
Property .” A Property subject to a Net Lease which has a
remaining lease term of at least seven years (or is otherwise
subject to terms the effect of which is that there is a reasonable
likelihood that the lease will have a remaining term of at least
seven years as a result of the exercise of options or otherwise) at
the date such Property is acquired or developed by CPA: 17,
including Net Leased Properties accounted for under the equity
method of accounting.
“ Market Value .”
The value calculated by multiplying the total number of outstanding
Shares by the average closing price of the Shares over the 30
trading days beginning 180 calendar days after the Shares are first
listed on a national security exchange or included for quotation on
Nasdaq, as the case may be.
“ Nasdaq .” The
national automated quotation system operated by the National
Association of Securities Dealers, Inc.
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“ Net Lease .” A
lease pursuant to which the tenant is required to pay substantially
all of the costs associated with operating and maintaining the
Property.
“ Offering .” The
offering of Shares pursuant to a Prospectus.
“ Operating Expenses
.” All consolidated operating, general and administrative
expenses paid or incurred by CPA: 17, as determined under GAAP,
except the following (insofar as they would otherwise be considered
operating, general and administrative expenses under GAAP):
(i) interest and discounts and other cost of borrowed money;
(ii) taxes (including state, Federal and foreign income tax,
property taxes and assessments, franchise taxes and taxes of any
other nature); (iii) expenses of raising capital, including
Organization and Offering Expenses, printing, engraving, and other
expenses, and taxes incurred in connection with the issuance and
distribution of CPA: 17’s Shares and Securities;
(iv) Acquisition Expenses, real estate commissions on resale
of property and other expenses connected with the acquisition,
disposition, origination, ownership and operation of Investments,
including the costs of foreclosure, insurance premiums, legal
services, brokerage and sales commissions, and the maintenance,
repair and improvement of property; (v) Acquisition Fees or
Subordinated Disposition Fees payable to the Advisor or any other
party; (vi) distributions paid by the Operating Partnership to
the Special General Partner under the agreement of limited
partnership of the Operating Partnership in respect of gains
realized on dispositions of Investments; (vii) amounts paid to
effect a redemption or repurchase of the special general partner
interest held by the Special General Partner pursuant to the
agreement of limited partnership of the Operating Partnership; and
(viii) non-cash items, such as depreciation, amortization,
depletion, and additions to reserves for depreciation,
amortization, depletion, losses and bad debts. Notwithstanding
anything herein to the contrary, Operating Expenses shall include
the Asset Management Fee and any Loan Refinancing Fee and, solely
for the purposes of determining compliance with the 2%/25%
Guidelines, distributions of profits and cash flow made by the
Operating Partnership to the Special General Partner pursuant to
the agreement of limited partnership of the Operating Partnership,
other than distributions described in clauses (vi) and
(vii) of this definition.
“ Operating Partnership
.” CPA: 17 Limited Partnership, a Delaware limited
partnership.
“ Organization and Offering
Expenses .” Those expenses payable by CPA: 17 and the
Operating Partnership in connection with the formation,
qualification and registration of CPA: 17 and in marketing and
distributing Shares, including, but not limited to: (i) the
preparation, printing, filing and delivery of any registration
statement or Prospectus and the preparing and printing of
contractual agreements among CPA: 17, the Operating Partnership and
the Sales Agent and the Selected Dealers (including copies
thereof); (ii) the preparing and printing of the Articles of
Incorporation and Bylaws, solicitation material and related
documents and the filing and/or recording of such 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 corporation; (iii) the qualification or registration
of the Shares under state securities or “Blue Sky”
laws; (iv) any escrow arrangements, including any compensation
to an escrow agent; (v) the filing fees payable to the SEC and
to the National Association of Securities Dealers, Inc.;
(vi) reimbursement for the reasonable and identifiable
out-of-pocket expenses of the Sales Agent and the Selected Dealers,
including the cost of their counsel; (vii) the fees of CPA:
17’s counsel; (viii) all advertising expenses incurred
in connection with an Offering, including the cost of all sales
literature and the costs related to investor and broker-dealer
sales and information meetings and marketing incentive programs;
and (ix) selling commissions, selected dealer fees, marketing
fees, incentive fees, due diligence fees and wholesaling fees
incurred in connection with the sale of the Shares.
“ Original Issue Price
.” For any Share issued in an Offering, the price at which
such Share was initially offered to the public by CPA: 17,
regardless of whether selling commissions were paid in connection
with the purchase of such Share from CPA: 17.
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“ Other Permitted Investment
Asset .” An asset, other than cash, cash equivalents,
short term bonds, auction rate securities and similar short term
investments, acquired by CPA: 17 for investment purposes that is
not a Loan or a Property and is consistent with the investment
objectives and policies of CPA: 17.
“ Person .” An
Individual, corporation, partnership, joint venture, association,
company, trust, bank, or other entity, or government or any agency
or political subdivision of a government.
“ Preferred Return
.” A Cumulative Return of five percent computed from the
Closing Date through the date as of which such amount is being
calculated.
“ Property or Properties
.” CPA: 17’s partial or entire interest in real
property (including leasehold interests) and personal or mixed
property connected therewith. An Investment which obligates CPA: 17
to acquire a Property will be treated as a Property for purposes of
this Agreement.
“ Property Management
Fee .” A fee for property management services rendered by
the Advisor or its Affiliates in connection with Properties
acquired directly or through foreclosure.
“ Prospectus .”
Any prospectus pursuant to which CPA: 17 offers Shares in a public
offering, as the same may at any time and from time to time be
amended or supplemented after the effective date of the
registration statement in which it is included.
“ Redemptions .”
An amount determined by multiplying the number of Shares redeemed
by the Original Issue Price.
“ REIT .” A real
estate investment trust, as defined in Sections 856-860 of the
Code.
“ Sales Agent .”
Carey Financial Corporation.
“ Securities .”
Any stock, shares (other than currently outstanding Shares and
subsequently issued Shares), voting trust certificates, bonds,
debentures, notes or other evidences of indebtedness, secured or
unsecured, convertible, subordinated or otherwise or in general any
instruments commonly known as “securities” or any
certificate of interest, shares or participation in temporary or
interim certificates for receipts (or, guarantees of, or warrants,
options or rights to subscribe to, purchase or acquire any of the
foregoing), which subsequently may be issued by CPA: 17.
“ Selected Dealers
.” Broker-dealers who are members of the National Association
of Securities Dealers, Inc. and who have executed an agreement with
the Sales Agent in which the Selected Dealers agree to participate
with the Sales Agent in the Offering.
“ Shareholders .”
Those Persons who, at the time any calculation hereunder is to be
made, are shown as holders of record of Shares on the books and
records of CPA: 17.
“ Share Market Value
.” The value calculated by multiplying the total number of
outstanding Shares by the average closing price of the Shares over
the 30 trading days beginning 180 calendar days after the Shares
are first listed on a national security exchange or included for
quotation on Nasdaq, as the case may be.
“ Shares .” All of
the shares of common stock of CPA: 17, $.001 par value, and any
other shares of common stock of CPA: 17.
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“ Special General
Partner .” W. P. Carey Holdings, LLC and any permitted
transferee of the special general partnership interest under the
agreement of limited partnership of the Operating
Partnership.
“ Sponsor .”
W. P. Carey & Co. LLC and any other
Person directly or indirectly instrumental in organizing, wholly or
in part, CPA: 17 or any person who will control, manage or
participate in the management of CPA: 17, and any Affiliate of any
such person. Sponsor does not include a person whose only
relationship to CPA: 17 is that of an independent property manager
and whose only compensation is as such. Sponsor also does not
include wholly independent third parties such as attorneys,
accountants and underwriters whose only compensation is for
professional services.
“ Subordinated Acquisition
Fee .” The Subordinated Acquisition Fee as defined in
Section 9(c) hereof.
“ Subordinated Disposition
Fee .” The Subordinated Disposition Fee as defined in
Section 9(f) hereof.
“ Termination Date
.” The effective date of any termination of this
Agreement.
“ Total Investment Cost
.” With regard to any Investment, an amount equal to the sum
of the Contract Purchase Price of such Investment plus the
Acquisition Fees and Acquisition Expenses paid in connection with
such Investment.
2. Appointment . CPA: 17
hereby appoints the Advisor to serve as its advisor on the terms
and conditions set forth in this Agreement, and the Advisor hereby
accepts such appointment.
3. Duties of the Advisor
. The Advisor undertakes to use its best efforts to present to CPA:
17 potential investment opportunities and to provide a continuing
and suitable investment program consistent with the investment
objectives and policies of CPA: 17 as determined and adopted from
time to time by the Board. In performance of this undertaking,
subject to the supervision of the Board and consistent with the
provisions of the Articles of Incorporation and Bylaws of CPA: 17
and any Prospectus pursuant to which Shares are offered, the
Advisor shall, either directly or by engaging an Affiliate:
(a) serve as CPA: 17’s
investment and financial advisor and provide research and economic
and statistical data in connection with CPA: 17’s assets and
investment policies;
(b) provide the daily management of
CPA: 17 and perform and supervise the various administrative
functions reasonably necessary for the management of CPA: 17;
(c) investigate, select, and, on
behalf of CPA: 17, engage and conduct business with such Persons as
the Advisor deems necessary to the proper performance of its
obligations hereunder, including but not limited to consultants,
accountants, correspondents, lenders, technical advisors,
attorneys, brokers, underwriters, corporate fiduciaries, escrow
agents, depositaries, custodians, agents for collection, insurers,
insurance agents, banks, builders, developers, property owners,
mortgagors, and any and all agents for any of the foregoing,
including Affiliates of the Advisor, and Persons acting in any
other capacity deemed by the Advisor necessary or desirable for the
performance of any of the foregoing services, including but not
limited to entering into contracts in the name of CPA: 17 with any
of the foregoing;
(d) consult with Directors of CPA: 17
and assist the Board in the formulation and implementation of CPA:
17’s policies, and furnish the Board with such information,
advice and
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recommendations
as they may request or as otherwise may be necessary to enable them
to discharge their fiduciary duties with respect to matters coming
before the Board;
(e) subject to the provisions of
Sections 3(g) and 4 hereof: (i) locate, analyze and select
potential Investments; (ii) structure and negotiate the terms
and conditions of transactions pursuant to which Investments will
be made, purchased or acquired by CPA: 17; (iii) make
Investments on behalf of CPA: 17; (iv) arrange for financing
and refinancing of, make other changes in the asset or capital
structure of, dispose of, reinvest the proceeds from the sale of,
or otherwise deal with the Investments; and (v) enter into
leases and service contracts for Properties and, to the extent
necessary, perform all other operational functions for the
maintenance and administration of such Properties;
(f) provide the Board with periodic
reports regarding prospective Investments and with periodic
reports, no less than quarterly, of new Investments made during the
prior fiscal quarter, which reports shall include information
regarding the type of each Investment made (in the categories
provided in Section 9);
(g) obtain the prior approval of the
Board (including a majority of the Independent Directors) for any
and all investments in Property which do not meet all of the
requirements set forth in Section 4(b) hereof;
(h) negotiate on behalf of CPA: 17
with banks or lenders for loans to be made to CPA: 17, and
negotiate on behalf of CPA: 17 with investment banking firms and
broker-dealers or negotiate private sales of Shares and Securities
or obtain loans for CPA: 17, but in no event in such a way so that
the Advisor shall be acting as broker-dealer or underwriter; and
provided , further , that any fees and costs payable
to third parties incurred by the Advisor in connection with the
foregoing shall be the responsibility of CPA: 17;
(i) obtain reports (which may be
prepared by the Advisor or its Affiliates), where appropriate,
concerning the value of Investments or contemplated
Investments;
(j) obtain for, or provide to, CPA:
17 such services as may be required in acquiring, managing and
disposing of Investments, including, but not limited to:
(i) the negotiation, making and servicing of Investments;
(ii) the disbursement and collection of Company monies;
(iii) the payment of debts of and fulfillment of the
obligations of CPA: 17; and (iv) the handling, prosecuting and
settling of any claims of or against CPA: 17, including, but not
limited to, foreclosing and otherwise enforcing mortgages and other
liens securing Loans;
(k) from time to time, or at any time
reasonably requested by the Board, make reports to the Board of its
performance of services to CPA: 17 under this Agreement;
(l) communicate on behalf of CPA: 17
with Shareholders as required to satisfy the reporting and other
requirements of any governmental bodies or agencies to Shareholders
and third parties and otherwise as requested by CPA: 17;
(m) provide or arrange for
administrative services and items, legal and other services, office
space, office furnishings, personnel and other overhead items
necessary and incidental to CPA: 17’s business and
operations;
(n) provide CPA: 17 with such
accounting data and any other information requested by CPA: 17
concerning the investment activities of CPA: 17 as shall be
required to prepare and to
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file all
periodic financial reports and returns required to be filed with
the Securities and Exchange Commission and any other regulatory
agency, including annual financial statements;
(o) maintain the books and records of
CPA: 17;
(p) supervise the performance of such
ministerial and administrative functions as may be necessary in
connection with the daily operations of the Investments;
(q) provide CPA: 17 with all
necessary cash management services;
(r) do all things necessary to assure
its ability to render the services described in this
Agreement;
(s) perform such other services as
may be required from time to time for management and other
activities relating to the assets of CPA: 17 as the Advisor shall
deem advisable under the particular circumstances;
(t) arrange to obtain on behalf of
CPA: 17 as requested by the Board, and deliver to or maintain on
behalf of CPA: 17 copies of, all appraisals obtained in connection
with investments in Properties and Loans; and
(u) if a transaction, proposed
transaction or other matter requires approval by the Board or by
the Independent Directors, deliver to the Board or the Independent
Directors, as the case may be, all documentation reasonably
requested by them to properly evaluate such transaction, proposed
transaction or other matter.
4. Authority of Advisor
.
(a) Pursuant to the terms of this
Agreement (and subject to the restrictions included in Paragraphs
(b), (c) and (d) of this Section 4 and in
Section 7 hereof), and subject to the continuing and exclusive
authority of the Board over the management of CPA: 17, the Board
hereby delegates to the Advisor the authority to: (1) locate,
analyze and select Investment opportunities; (2) structure the
terms and conditions of transactions pursuant to which Investments
will be made or acquired for CPA: 17; (3) make or acquire
Investments in compliance with the investment objectives and
policies of CPA: 17; (4) arrange for financing or refinancing,
or make changes in the asset or capital structure of, and dispose
of or otherwise deal with, Investments; (5) enter into leases
and service contracts for Properties, and perform other property
level operations; (6) oversee non-affiliated property managers
and other non-affiliated Persons who perform services for CPA: 17;
and (7) undertake accounting and other record-keeping functions at
the Investment level.
(b) The consideration paid for an
Investment acquired by CPA: 17 shall ordinarily be based on the
fair market value thereof. Consistent with the foregoing provision,
the Advisor may, without further approval by the Board (except with
respect to transactions subject to paragraphs (c) and (d))
invest on behalf of CPA: 17 in an Investment so long as, in the
Advisor’s good faith judgment, (i) the Total Investment
Cost of such Investment does not exceed the fair market value
thereof,
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