<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 16, 1997
Registration No. 333-_______
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-11
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED
(Exact name of registrant as specified in governing instrument)
50 Rockefeller Plaza
New York, New York 10020
(Address of principal executive offices)
------------------------
William Polk Carey
Corporate Property Associates 14 Incorporated
50 Rockefeller Plaza
New York, New York 10020
(Name and address of agent for service)
---------------------------
Copy to:
Michael B. Pollack, Esquire
Reed Smith Shaw & McClay
2500 One Liberty Place
Philadelphia, Pennsylvania 19103
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to rule 415 under the
Securities Act of 1933 check the following box: /X/
<PAGE> 2
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed
Proposed Maximum
Title of Securities Amount Being Maximum Opening Aggregate Amount of
Being Registered Registered Price Per Share Offering Price Registration Fee
---------------- ---------- --------------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock 30,000,000 $10.00 $300,000,000 $103,448
</TABLE>
The Registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE> 3
CORPORATE PROPERTY ASSOCIATES 14
Incorporated
A Real Estate Investment Trust Offering a
Maximum of $300,000,000 in Shares
and a Minimum OF $15,000,000 IN SHARES
$10.00 per Share
Minimum Investment:
250 Shares
200 shares for IRAs and Keogh Plans
(Minimum investment may be higher in certain states)
Corporate Property Associates 14 Incorporated (the "Company") intends to
qualify as a real estate investment trust ("REIT") under Federal tax laws. This
Prospectus describes an investment in the Shares of the Company. The Company may
sell as much as $300,000,000 in Shares.
The Company intends to use investors' money together with borrowed money
to purchase industrial and commercial real estate properties ("Properties").
Generally, Properties will be leased to one tenant deemed to be creditworthy by
the Company's advisor under a lease that will in most cases require the tenant
to pay all of the costs of maintenance, insurance and real estate taxes. Between
approximately 86% and 87% of the total amount of the money raised in the
Offering is expected to be used to purchase this type of real estate, and the
balance is expected to be used for working capital, fees and expenses.
Purchasing the Company's Shares involves certain risks. Investors should be
aware that:
- There are market risks associated with investments in real estate,
including the potential for a decrease in the value of the
Properties.
- If the Company raises only $15,000,000, the Company will have only a
few investments and will not be diversified.
- The Company could lose its investment in a Property if it does not
repay the money it borrows to purchase that Property.
- If a Shareholder must sell his or her Shares in the near future, it
is likely that a Shareholder will have to sell them for less than
$10 per Share.
- There is a potential for a reduction in the Company's cash flow and
its rate of distributions to Shareholders in the event that a tenant
becomes subject to bankruptcy proceedings or otherwise fails to
fulfill its monetary obligations to the Company. Certain tenants of
prior Corporate Property Associates programs have become subject to
bankruptcy proceedings or have failed to fulfill their monetary
obligations to these prior programs.
SEE THE "RISK FACTORS" SECTION BEGINNING ON PAGE 11 OF THIS PROSPECTUS FOR
A COMPLETE DISCUSSION OF THE RISKS ASSOCIATED WITH AN INVESTMENT IN THE COMPANY.
AN INVESTMENT IN THE SHARES INVOLVES A HIGH DEGREE OF RISK.
THE USE OF FORECASTS IN THIS OFFERING IS PROHIBITED. ANY REPRESENTATIONS
TO THE CONTRARY AND ANY PREDICTIONS, WRITTEN OR ORAL, AS TO THE AMOUNT OR
CERTAINTY OF ANY PRESENT OR FUTURE CASH BENEFIT OR TAX CONSEQUENCE WHICH MAY
FLOW FROM AN INVESTMENT IN THE COMPANY IS NOT PERMITTED.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR
ENDORSED THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
<TABLE>
<CAPTION>
PRICE SELLING PROCEEDS TO
TO PUBLIC COMMISSION(1) COMPANY(2)
--------- ------------- ----------
<S> <C> <C> <C>
Per Share $ 10 $0.65 $ 9.35
Total Minimum 15,000,000 975,000 14,025,000
Total Maximum $300,000,000 $19,500,000 $280,500,000
</TABLE>
CAREY FINANCIAL CORPORATION
The date of this Prospectus is _________, 1997.
<PAGE> 4
(1) If the Minimum Offering is successfully completed, the Company will pay
certain fees and expense reimbursements to the Sales Agent and Selected
Dealers in addition to the Selling Commission. See "The Offering" section
of this Prospectus for a complete description of the amount and terms of
such fees and expense reimbursements.
(2) Proceeds calculated before deducting certain Organization and Offering
Expenses (excluding selling commissions) payable by the Company, which
expenses are estimated to be approximately [$12,000,000] if 30,000,000
Shares are sold. To the extent all Organization and Offering Expenses
(excluding selling commissions and fees paid or expenses reimbursed to
the Selected Dealers) exceed 3.5% of the Gross Offering Proceeds, the
excess expenses will be paid by Carey Property Advisors (the "Advisor").
See "The Offering".
The money accepted by the Sales Agent and Selected Dealers from the sale
of Shares will be promptly deposited into an interest bearing escrow account at
The United States Trust Company of New York. The interest earned in this account
will be paid to investors. Within 90 days after $15,000,000 has been raised and
certain other requirements have been met, the money will be transferred to the
Company. Money will be transferred from the escrow account to the Company from
time to time. [IF THE COMPANY DOES NOT SELL $15,000,000 IN SHARES AND MEET THE
OTHER REQUIREMENTS BEFORE __________, 1998 [ONE YEAR AFTER THE DATE OF THE
PROSPECTUS], INVESTORS FUNDS IN THE ESCROW ACCOUNT WILL BE RETURNED PROMPTLY AND
THE COMPANY WILL STOP SELLING SHARES.] Otherwise, Investors who have purchased
Shares will become Shareholders when their funds are transferred from the escrow
account to the Company's account. The Company may sell its Shares until they
have all been sold, unless it decides to stop selling them sooner. See "Terms of
the Offering" and "The Offering -- Escrow Arrangements."
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Summary
Risk Factors
Real Estate Investment Risks
Corporate Investment Risks
Tax Risks
Other Investment Risks
Terms of the Offering
Estimated Use of Proceeds
Dividends
Management Compensation
Conflicts of Interest
Prior Offerings by Affiliates
Management
Directors and Executive Officers of the Company
The Advisor
Directors and Principal Officers of Carey Fiduciary Advisors, Inc.
Shareholdings
Management Decisions
Limited Liability and Indemnification of Directors, Officers,
Employees And Other Agents
The Advisory Agreement
Investment Procedures, Objectives and Policies
Investment Procedures
Investment Objectives
Types of Investments
Use of Borrowing
Other Investment Policies
General
Holding Period for Investments and Application of Proceeds
of Sales or Refinancings
Investment Limitations
Change in Investment Objectives and Limitations
Holders of Shares of the Company
Management Discussion and Analysis of Financial Condition
Description of Properties
Income Tax Aspects
ERISA Considerations
Description of Shares
General Description of Shares
Meetings and Special Voting Requirements
Restriction on Ownership of Shares
Dividends
Repurchase of Shares
Redemption of Shares
Restrictions on Roll-up Transactions
Transfer Agent
The Offering
Escrow Arrangements
Reports to Shareholders
Legal Opinions
Experts
Sales Literature
Further Information
Glossary
Financial Statements F-1
Prior Performance Tables--Exhibit A A-1
Specimen CPA(R):14 Order Form--Exhibit B B-1
</TABLE>
<PAGE> 6
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information included elsewhere in this Prospectus. The more detailed information
following this summary is set forth in the same order as the topics appearing in
this summary. Investors are encouraged to read this Prospectus for a complete
explanation of an investment in the Company.
RISK FACTORS
An investment in the Company has many risks. The "Risk Factors" section of
this Prospectus contains a detailed discussion of the most important risks. The
risk factors are organized into Real Estate Investment Risks (the risks
associated with types of investments in real estate that the Company will make),
Corporate Investment Risks (the risks associated with an investment in a
corporation), Tax Risks (the risks arising from compliance with the real estate
investment trust tax laws as they apply to the Company) and Other Investment
Risks. Please refer to the "Risk Factors" section for a more detailed discussion
of the risks summarized below:
Real Estate Investment Risks
- Risks of investing in real estate occupied by a single tenant, the
credit of which is subject to change. Certain tenants of prior
CPA(R) Programs have become subject to bankruptcy proceedings or
have failed to fulfill their monetary obligations to the affected
programs. Four of the twelve prior CPA(R) Programs have had to
reduce the rate of distributions to their partners as a result of
bankruptcy filings by tenants. The distribution rate of CPA(R):7 now
exceeds the rate in effect before the reductions while the
distribution rate of CPA(R):1, CPA(R):5 and CPA(R):10 have not
reached the rate in effect before the reduction.
- The risk of the Company having only a few investments and therefore
not being diversified, and the risk of not finding suitable
investments for the Company.
- The risk that the future value of real estate cannot be predicted
and that investors cannot be sure that they will get their capital
back.
- Risks of investing in real estate that is subject to mortgage debt,
including the risk that a lender can foreclose on Properties on
which it holds a mortgage if the Company does not repay the mortgage
loan or comply with other requirements of the mortgage.
- The risk of not being able to find suitable investments for the
Company.
Corporate Investment Risks
- The risk that an investor will not be able to sell his or her
investment because there will be no organized market for the Shares
and the risk that if a Shareholder does sell his or her Shares in
the near future, it is likely that he or she will have to sell them
for less than $10 per Share.
- Reliance on the Advisor and the Board, which together will exercise
all management rights subject only to the ability of the
Shareholders to elect the Board.
- Management and their affiliates will receive significant amounts of
compensation for services rendered to the Company.
- Risk of exercise by Shareholders of certain voting rights, including
the right to elect the Board and the right to amend the Company's
governing documents, which may be exercised by Shareholders holding
a majority of the Shares even if holders of 49% of the Shares
object. The Company's investment objectives cannot be changed
without the approval of the
<PAGE> 7
Shareholders holding a majority of the Shares but the Board may
change the techniques used by the Company to achieve the objectives
without Shareholder approval.
Tax Risks
- Risks of the Company not qualifying as a real estate investment
trust.
TERMS OF THE OFFERING
The Company is offering its shares on a "best efforts" basis, which means
that no one is guaranteeing how much capital will be raised. No Shares will be
issued unless at least $15,000,000 is invested in the Company. The Company may
sell as much as $300,000,000 in Shares in this Offering.
Investors must satisfy certain financial requirements in order to purchase
Shares. Please refer to the section of this Prospectus entitled "Terms of the
Offering" for a detailed explanation of these requirements.
ESTIMATED USE OF PROCEEDS
The money raised in this Offering will be combined with borrowed money to
purchase real estate and to pay all of the Company's expenses. Approximately 86%
of the money raised in the Offering is expected to be invested in real estate
and the rest will be used for working capital and to pay expenses and fees to
the sponsor of the Offering and other entities. A detailed breakdown of the
Company's estimates of the use of the capital raised in the Offering is provided
in the "Estimated Use of Proceeds" section of this Prospectus.
MANAGEMENT COMPENSATION
Carey Property Advisors is the Company's Advisor. The Advisor will manage
the business of the Company under the direction of the board of directors of the
Company (the "Board"). The Company will pay the Advisor and certain affiliated
companies certain fees for these services and will reimburse the Advisor for
certain expenses. Outlined below are the most significant items of compensation.
- For identifying, structuring and arranging the financing for real
estate acquisitions, the Advisor or its affiliates will be paid
acquisition fees not to exceed in the aggregate 2.5% of the total
purchase price of all Properties purchased by the Company. With
respect to each such Property, the Advisor or its affiliates will
also be paid a fee (the "Subordinated Acquisition Fee") which, when
aggregated with all other Subordinated Acquisition Fees, shall not
exceed 2.0% of the total purchase price of all Properties purchased
by the Company, together with interest on the unpaid portion of such
Acquisition Fee at the rate of [6%] per annum from the date of
acquisition of such Property until such portion is paid. Such
Acquisition Fee and accrued interest is payable in equal annual
installments on January 1 of each of the eight calendar years
following the first anniversary of the date such Property was
purchased. The portion of any Subordinated Acquisition Fee payable
in any year, and interest thereon, shall accrue but will be withheld
by the Company for such year unless Shareholders are paid dividends
("Dividends") at a cumulative non-compounded return of at least [6%]
per year. Any such withheld portion of such Acquisition Fee and
interest shall be payable in the year following the year for which
Shareholders are paid Dividends at a cumulative non-compounded
return of at least [6%] per year.
- The Advisor will be paid an annual fee, payable on a monthly basis,
for services rendered under the advisory agreement for asset
management services (the "Asset Management Fee") of .5% of the
Company's Average Invested Assets (generally, the total amount
invested in real estate). The Advisor will also be paid a
subordinated fee (the "Performance Fee") at the annual rate of .5%
of the Company's Average Invested Assets, which fee will accrue but
will be withheld by the Company for any quarter through which the
Company has not achieved a Cumulative Rate of Cash Flow from
Operations of at least 7% per year through such quarter. Payable on
a quarterly basis, either in cash or in restricted stock of the
Company at the option of the Advisor (the "Option Decision"), such
initial Option Decision must be made prior to satisfaction of the
Subordination condition and, thereafter, the Option Decision must be
made by the Advisor prior to receipt of the Performance Fee. Any
such withheld Performance Fee shall be payable at the end of the
quarter through which the Company achieves the Cumulative Rate of
Cash Flow from Operations. Performance Fees will start to accrue at
the earlier of
<PAGE> 8
(1) the first full fiscal quarter during which the Cumulative Rate
of Cash Flow from Operations of 7% is first achieved, or (2) the
first full fiscal quarter after the end of the Selling Period.
- The Advisor will be paid 15% of any appreciation in the value of the
real estate when the Company sells a Property. This fee will be paid
only after the Company has returned all of the money invested by
Shareholders plus a cumulative non-compounded return of [6%] per
year.
There are many additional conditions and restrictions on the payment of
fees to the Advisor. There are also a number of other, smaller items of
compensation and expense reimbursement that the Advisor and its affiliates may
receive during the life of the Company. For a more complete explanation of the
fees and expenses and an estimate of the dollar amount of these payments, please
see the "Management Compensation" section of this Prospectus.
CONFLICTS OF INTEREST
The Advisor will have certain conflicts of interest in its management of
the Company. These conflicts will arise primarily from the involvement of the
Advisor and its affiliates in other activities that may conflict with those of
the Company. The directors of the Company that are independent of the Advisor
are responsible for monitoring the Advisor's activities and must approve all of
the Advisor's actions that involve a potential conflict. The "Conflicts of
Interests" section of this Prospectus more fully explains the significant
conflicts of interests.
PRIOR OFFERINGS BY AFFILIATES
The Advisor and its Affiliates manage the Company and manage 12 existing
real estate investment programs, each using (or at one time using) a derivative
of the name "Corporate Property Associates" ("CPA(R)") (collectively, the
"CPA(R) Programs"), that together have purchased properties over the past 18
years costing in excess of $1.4 Billion. The CPA(R) Programs own real estate
that is similar to the real estate that the Company intends to purchase. A
narrative discussion of the performance of the CPA(R) Programs can be found in
the section of this Prospectus entitled "Prior Offerings by Affiliates." Exhibit
A of this Prospectus includes tables that provide certain statistical
information as well as information on the performance of the CPA(R) Programs.
MANAGEMENT
The Board will oversee the management of the Company. The Board will
consist of a minimum of three directors. A majority of the directors will be
independent of the Advisor and will have responsibility for reviewing the
performance of the Advisor. The directors will be elected to the Board annually
by the Shareholders.
The Company has retained the Advisor to manage the Company and to select
the Company's real estate investments. All investment decisions made by the
Advisor must be approved unanimously by the Advisor's investment committee (the
"Investment Committee"). The following people serve on the Investment Committee:
- George E. Stoddard, Chairman, was formerly responsible for the
direct corporate investments of The Equitable Life Assurance Society
of the United States and has been involved with the CPA(R) Programs
for over 12 years.
- Frank J. Hoenemeyer, Vice Chairman, was formerly Vice Chairman,
Director and Chief Investment Officer of the Prudential Insurance
Company of America and had responsibility for Prudential's
investment portfolio.
- Madelon DeVoe Talley is a former Governor of the National
Association of Securities Dealers, Inc. ("NASD") and is a former
chief investment officer of the New York State Common Retirement
Fund.
<PAGE> 9
- Dr. Lawrence R. Klein, an alternate member of the Investment
Committee, won the Nobel Prize in economics in 1980 and is Benjamin
Franklin Professor Emeritus at the University of Pennsylvania.
For the background of the individuals responsible for the management of
the Company and a more detailed description of the responsibilities of the
Advisor, please see the "Management" section of this Prospectus. For more
information on fees payable to the Advisor or its affiliates, please see the
"Management Compensation" section of this Prospectus.
Both the Company and the Advisor have offices at 50 Rockefeller Plaza, New
York, New York 10020, (212) 492-1100.
INVESTMENT PROCEDURES, OBJECTIVES AND POLICIES
The Company's investment objectives are:
- TO PAY QUARTERLY DIVIDENDS AT AN INCREASING RATE THAT FOR TAXABLE
SHAREHOLDERS MAY BE PARTIALLY FREE FROM CURRENT TAXATION. The
Company's dividend rate is calculated by dividing the Company's
quarterly cash dividend from operations by the amount raised in the
Offering less amounts returned to investors from the sale of
Properties and Cash from Financings. Although the cash amount of a
dividend may go down during the life of the Company, the dividend
rate may continue to increase. If the total amount received by the
Company from the sale of Properties is less than the total amount
invested in the Company, a portion of the Dividends paid by the
Company will represent a return of the money originally invested in
the Company and not a return on the investment. There can be no
assurance that the Company will pay regular dividends or that the
dividend rate will increase. The quarterly rate of increases of
prior CPA(R) Programs has generally ranged from [.01% TO .25%] with
an average quarterly increase of [.02%]. While prior CPA(R) Programs
have occasionally used working capital to pay a portion of certain
dividends, cash flows from operating activities have generally
exceeded dividends paid.
- TO INVEST IN A PORTFOLIO OF REAL ESTATE THAT WILL INCREASE IN VALUE.
An individual investing directly in real estate would not have to
pay the organization and offering expenses expected to be paid by
the Company (approximately 10% to 10.50% of the Gross Offering
Proceeds). Therefore, the Company must realize a greater level of
operating income from, and/or appreciation in the value of, its real
estate in order for an investor to realize the same return he would
realize if he invested directly in, and operated, the real estate
purchased by the Company. [OF THE 70 PROPERTIES SOLD AS OF DECEMBER
31, 1996 BY THE CPA(R) PROGRAMS, ALL BUT 23 OF SUCH PROPERTIES WERE
SOLD FOR CONSIDERATION EQUAL TO OR IN EXCESS OF THE APPLICABLE
CPA(R) PROGRAM'S TOTAL INVESTMENT IN SUCH PROPERTIES, INCLUDING
ACQUISITION COSTS. THE NET GAIN REALIZED FROM THE SALE OF THESE 70
PROPERTIES BY THE CPA(R) PROGRAMS HAS BEEN IN EXCESS OF $9,677,000
ON TOTAL EQUITY INVESTED OF APPROXIMATELY $85,370,000.] This net
gain figure does not take into account organization and offering
expenses which averaged [12%] of the Gross Offering Proceeds for
prior CPA(R) Programs. Please see the "Prior Performance by
Affiliates" and the Appendix A for a complete discussion of the
prior performance of the CPA(R) Programs.
- TO INCREASE THE COMPANY'S EQUITY IN ITS REAL ESTATE BY MAKING
REGULAR MORTGAGE PRINCIPAL PAYMENTS. The Company will realize its
objective of increasing its equity in its Properties by making
regular mortgage principal payments from income generated from the
Properties only if Properties are sold by the Company for an amount
equal to or greater than the original equity investment plus the
remaining mortgage balance. The average annual mortgage amortization
for the CPA(R) Programs has been $16,547,000.
<PAGE> 10
The Company will seek to achieve these objectives by investing in
industrial and commercial properties. The amount of money raised by the Company
in the Offering and borrowed from lenders will affect the number of Properties
the Company will be able to purchase. The more Properties the Company purchases,
the more diversified it will be and the less it will be affected by any single
Property that does not perform as expected.
In most cases, at the time a Property is purchased by the Company, it will
be leased to a single corporate tenant. Sometimes, the tenant will also be the
seller of the Property and will have occupied the Property before it is
purchased by the Company. The Investment Committee will evaluate the financial
strength or creditworthiness of each of the Company's tenants. The Company's
leases will in most cases require the tenants to pay all of the Property's
maintenance, insurance and real estate tax costs.
Generally, the Company will borrow a portion of the purchase price of a
Property. The Company will seek to borrow about 60% but not more than 75% of the
total appraised value of all Properties it purchases. The percentage borrowed by
the Company for any particular Property purchased may be more or less than 75%.
Higher amounts of borrowing will require higher payments and may have an adverse
effect on the Company's ability to profit from its investment in the Property.
The Company generally will borrow money on a non-recourse basis which means that
if the Company is unwilling or unable to repay such borrowed money, the lender
will be permitted to foreclose only on the Property or Properties purchased with
the borrowed money. This protects the remainder of the Properties should one
Property not perform as expected.
The Company may also lend money or design a transaction in a manner that
will be treated legally as a loan by the Company. If an entity that borrows from
the Company is unable to repay the money it has borrowed, the Company will be
able to foreclose on real estate owned by the borrower. While the Company does
not expect loans to make up a significant portion of its investment portfolio,
no limit has been placed on the amount of the Company's funds which may be
invested in loans. The Company expects that all loans made will be secured by
real property.
While the Company intends to hold each Property it acquires for an
extended period of time, circumstances may require the early sale of certain
Property. In such an event, the Company may reinvest proceeds from the sales of
Properties. The Company may also reinvest proceeds of the sales of Properties in
the event the shares are listed on a National Securities Exchange or are
included for quotation on Nasdaq. If the shares are not listed, the Properties
are expected to be liquidated beginning five to ten years after the net proceeds
of the Offering are substantially invested.
The Company's investment objectives cannot be changed without the approval
of the Shareholders holding a majority of the Shares. While the Company intends
to achieve its objectives primarily by purchasing single-tenant, net leased
property, the Company's investment policies may vary as new techniques develop.
The techniques used by the Company to achieve its objectives may, with some
limitations, be changed by the Board (including a majority of the Independent
Directors) without the approval of the Shareholders. Any such change may affect
the types of non-real estate short term investments in which the Company invests
during the interim periods in which capital is not fully invested in Properties.
DESCRIPTION OF PROPERTIES
The Advisor is currently evaluating potential Property acquisitions.
When it appears likely that the Company will purchase one or more additional
Properties, a description of such Properties will be made available to all
potential investors in a document called a supplement. Investors should not
assume that transactions described in a supplement will necessarily be
completed. It is possible that after the supplement is distributed, the Company
or seller will decide not to complete the sale.
INCOME TAX ASPECTS
<PAGE> 11
The section of this Prospectus entitled "Income Tax Aspects" includes a
discussion of the tax issues which may be important to investors. The section
also includes a discussion of the many rules the Company will have to follow in
order to be treated as a REIT. The Company must be treated as a REIT in order to
avoid paying federal income taxes on dividends paid to Shareholders.
ERISA CONSIDERATIONS
The section of this Prospectus entitled "ERISA Considerations" describes
the effect the purchase of Shares will have on retirement plans subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"). ERISA is
a federal law that regulates the operation of certain tax-advantaged retirement
plans. Any retirement plan trustee or individual considering purchasing Shares
for a retirement plan should read this section very carefully.
DESCRIPTION OF SHARES
General
The Company will not issue stock certificates. A Shareholder's investment
will be recorded on the books of the Company. A Shareholder wishing to transfer
his or her Shares will be required to send only an executed form to the Company.
The Company will provide the required form upon request. The Company expects to
pay dividends quarterly beginning after the first full quarter of the Company's
operations. The Board will determine the amount of any dividends to be paid by
the Company.
Shareholder Voting Rights and Limitations
A meeting of Shareholders will be held each year for the election of
directors. Other business matters may be presented at the annual meeting or at
special Shareholder meetings. Shareholders are entitled to one vote for each
Share owned on all matters that must be voted on by Shareholders, including the
election of directors. Shareholders who are in the minority on questions
presented for Shareholder vote at a duly held meeting at which a quorum is
present will be bound by the decision of the majority on the question voted
upon.
Shareholder approval is required under Maryland law and the Company's
articles of incorporation and bylaws (the "Organizational Documents") for
certain types of transactions and corporate action. Generally, the
Organizational Documents may be amended upon a vote of Shareholders holding a
majority of the Shares, although the amendment of certain provisions requires
higher than a majority vote. Shareholders holding a majority of the Shares must
approve a merger or a sale or other disposition of substantially all of the
Company's assets other than in the ordinary course of business. Shareholders
objecting to the terms of a merger, sale or other disposition of substantially
all of Company's assets have the right to petition a court for the appraisal and
payment of the fair value of their Shares in certain instances. Shareholders
holding a majority of the Shares are required to approve the voluntary
dissolution of the Company.
Limitation on Share Ownership
The articles of incorporation of the Company (the "Articles of
Incorporation") restrict ownership by one Person of more than 9.8% of the
outstanding Shares. See "Description of Shares--Restriction on Ownership of
Shares." These restrictions are designed to facilitate compliance with certain
Share accumulation restrictions imposed on REITs by the Internal Revenue Code of
1986, as amended (the "Code").
For a more complete description of the Shares, including certain
limitations on the ownership of Shares, please refer to the "Description of
Shares" section of this Prospectus.
THE OFFERING
<PAGE> 12
The section of this Prospectus called "The Offering" describes the manner
in which the Company will sell its Shares and the fees and expenses the Company
will pay in connection with the Offering. This section also describes discounts
available to investors who are interested in investing more than $250,000 in the
Company and to investors of certain CPA(R) Programs upon the occurrence of
certain events.
GLOSSARY
Words in this Prospectus that are capitalized are defined in the
"Glossary" section. In order to make this Prospectus easier to read, a
simplified definition of certain capitalized words has been provided. These
simplified definitions do not convey all of the intricacies of the defined word
and investors are encouraged to refer to the "Glossary" section for the complete
definition.
<PAGE> 13
RISK FACTORS
An investment in the Company involves various risk factors including risk
factors related to investing in real estate, risk factors related to investing
in a corporation, tax risks and other general investment risks. In addition to
the factors set forth elsewhere herein, prospective investors should consider
the following:
REAL ESTATE INVESTMENT RISKS
Risks of Real Property Investments. Real property investments are subject
to varying degrees of risk. Real estate values are affected by changes in the
general economic climate, local conditions such as an oversupply of space or
reduction in demand for real estate in the area and competition from other
available space. Real estate values are also affected by such factors as
government regulations and changes in zoning or tax laws, interest rate levels,
the availability of financing and potential liability under environmental and
other laws. These factors may cause the Properties to decrease in value and may
make it difficult for the Company to sell Properties. See "Investment
Procedures, Objectives and Policies."
Dependence on Tenants. In leases with single tenants, the financial
failure of a tenant could result in the termination of its lease with the
Company which, in turn, might cause a reduction of the cash flow of the Company
and/or decrease the value of the Property leased to such tenant. If a tenant
defaults on its lease payments to the Company, the Company would lose the net
cash flow from such tenant, but might be able to use cash generated from other
Properties to meet the mortgage payments, if any, on such Property in order to
prevent a foreclosure. If a lease is terminated, there can be no assurance that
the Company will be able to lease the Property for the rent previously received
or sell the Property without incurring a loss. The Company could also experience
delays in enforcing its rights against tenants. Certain CPA(R) Programs have
experienced adverse developments including the filing by tenants for protection
from creditors under Chapter 11 of Title 11 of the United States Code, as
amended (the "Bankruptcy Code") and involvement in litigation. Four CPA(R)
Programs have had to reduce the rate of distributions to their partners as a
result of adverse developments involving tenants. See "Prior Offerings by
Affiliates."
In addition, the Company may enter into or acquire net leases with tenants
for Properties that are specially suited to the particular needs of a tenant.
Any such Property may require renovations or lease payment concessions in order
to lease it to another tenant if the current lease is terminated or not renewed.
The Company may also have difficulty selling a special purpose Property to a
party other than the tenant for which the Property was designed.
Bankruptcy of Tenants. The financial failure of a tenant could cause the
tenant to become the subject of bankruptcy proceedings. Under bankruptcy law, a
tenant has the option of continuing or terminating any unexpired lease. If the
tenant continues its lease with the Company, the tenant must cure all defaults
under the lease and provide the Company with adequate assurance of its future
performance under the lease. If the tenant terminates the lease, the Company's
claim for breach of the lease (absent collateral securing the claim) would be
treated as a general unsecured claim. The amount of the claim would be capped at
the amount owed for unpaid pre-petition lease payments unrelated to the
termination, plus the greater of one year's lease payments or 15% of the
remaining lease payments payable under the lease (but not to exceed the amount
of three years' lease payments).
Although the Company believes that each of its net lease transactions will
be a "true lease" for purposes of bankruptcy law, depending on the terms of the
lease transaction, including the length of the lease and terms providing for the
repurchase of a Property by the tenant, it is possible that a bankruptcy court
could recharacterize a net lease transaction as a secured lending transaction.
If a transaction were recharacterized as a secured lending transaction, the
Company would not be treated as the owner of the Property, but might have
certain additional rights as a secured creditor.
<PAGE> 14
Risks Associated with Borrowing. Most of the Company's acquisitions of
Properties will be made by borrowing a portion of the purchase price thereof and
securing the loan with a mortgage on such Property. Although the use of leverage
may increase the Company's rate of return on its investments and allow the
Company to make more investments than it otherwise could, it presents an element
of risk in the event that the cash flow from lease payments on its Properties
are insufficient to meet its debt payment obligations. Certain loans may not be
fully paid by the time the net leases (not including renewal periods) on
applicable Properties expire. If a tenant does not renew its lease with respect
to any Property, the Company may not have sufficient cash flow to make the
required debt payments with respect to such Property unless it is able to
re-lease such Property. If the Company does not make its debt payments as
required, a lender could foreclose on the Property or Properties securing such
debt, and the Company could lose part or all of its investment in such
Properties.
Lenders to the Company may seek to impose restrictions on future
borrowings, distributions and operating policies of the Company. It is not
possible to ascertain in advance what restrictions may be imposed. As of the
date of this Prospectus, the Company had not created or assumed any indebtedness
for borrowed money. In connection with a mortgage loan with respect to any
Property, the lender may also seek to include as an event of default or an event
requiring the immediate prepayment of the loan the termination or replacement of
the Advisor. See "Investment Procedures, Objectives and Policies--Use of
Borrowing."
Risk of Balloon Payment Obligations. The Company intends to finance the
acquisition of some Properties in part with debt obligations that will provide
for the repayment of principal, in whole or in part, in a lump-sum or "balloon"
payment at maturity. The ability of the Company to make a balloon payment at
maturity may be dependent on the Company's ability to obtain adequate
refinancing of the balloon payment at such time or to sell the Property, both of
which are dependent on economic conditions in general and the value of the
Property in particular at such time. There is no assurance that the Company will
be able to refinance the balloon payment or that the terms of any new loan will
be as favorable as the prior loan. If the Company is unable to refinance the
balloon payment, the Company may be forced to sell the Property securing payment
thereof (or another Property). There is no assurance that the proceeds of any
such sale would be sufficient to make the balloon payment. Any such refinancing
or sale may affect the rate of return to Shareholders and such sale may affect
the projected time of disposition of the Company's assets. To the extent that
Properties are subject to balloon mortgages, the Company's objective of
increasing equity through the reduction of mortgage debt on such Properties may
be more difficult to achieve. See "Investment Procedures, Objectives and
Policies."
Delay in Investment in Real Estate. The return on an investment in the
Company will depend, in part, on how quickly the Company is able to locate and
acquire suitable Properties. The Company's acquisition of a proposed Property
could be delayed by an inability to obtain financing as a result of either the
unattractiveness of financial or other terms of such financing or the lack of
lenders providing financing on any terms. There can be no assurance that the
equity raised by the Company in this Offering will be fully committed to
Property investments in a timely manner. See "Income Tax Aspects--Requirements
for Qualification as a REIT." Prior to acquiring Properties, the Company's
capital will be invested generally in U.S. government securities, certificates
of deposit from financial institutions having a net worth of at least
$100,000,000 or other short-term investments that are easily convertible into
cash ("Permitted Temporary Investments"). See "Investment Procedures, Objectives
and Policies." The rate of return on Permitted Temporary Investments may be less
than the returns from investments in Properties. Furthermore, prior to the
acquisition of Properties, the Company may not be able to qualify as a REIT and
may not be entitled to depreciation and other deductions.
The Company's ability to invest the proceeds of the Offering promptly in
desirable income-producing investments may be adversely affected by a decline in
the interest rates on long-term corporate debt securities and by an increase in
corporate
<PAGE> 15
liquidity, as potential tenants may prefer to raise capital by issuing debt
securities or using cash rather than entering into net lease transactions.
Changes to tax laws and changes to laws affecting corporate acquisitions and
reorganizations may also reduce the number of Properties the Company can
purchase.
Competition for Investments. In connection with the making of investments,
the Company may experience significant competition from banks, insurance
companies, savings and loan associations, mortgage bankers, pension funds,
limited partnerships, other REITs and other entities with objectives similar to
those of the Company (including certain Affiliates of the Company) and which
have greater financial resources or experience. See "Conflicts of Interest." An
increase in the availability of funds for real estate investment may increase
competition in the making of investments and may reduce the yields available to
the Company. Competition for investments could reduce the return which the
Company might otherwise be able to obtain.
Risk of Purchasing Property in Connection With Acquisitions,
Recapitalizations and Other Financial Restructurings. A significant portion of
Property acquisitions are expected to be made in connection with acquisitions,
recapitalizations and other financial restructurings. In some of these
transactions, an acquiring entity may purchase all or substantially all of the
stock or assets of a company, and the acquired company or its successor may
become obligated on the substantial loans necessary to finance the acquisition.
The Company may act as one of several sources of financing by purchasing real
property from the seller or buyer of the subject company and net-leasing it to
such company or its successor in interest (the lessee) or by making Loans to
such entities secured by real estate. The lessee or borrower typically will have
substantially greater debt and a substantially lower net worth than the company
had prior to the transaction. Consequently, the lessee or borrower may be
particularly vulnerable to adverse conditions in its business or industry,
adverse economic conditions generally and increases in interest rates, which
increases may directly or indirectly result in higher payments under the debt
portion of the lessee's lease with the Company and higher debt service payments
under the lessee's loans. In addition, the lessee's payment of rent and debt
service may prevent the lessee from investing in new equipment and from devoting
resources to research and development or making other expenditures which are
necessary to keep the lessee competitive in its industry. Furthermore, if the
lessee or borrower has new management, it will be more difficult for the Advisor
to determine the likelihood of the lessee's or borrower's being successful in
its business and of being able to pay rents throughout the term of a lease with
the Company.
Risks Related to Making Loans. The Advisor may structure a Company
investment as a Loan. All Loans are subject to some degree of risk, including
the risk of a default by the borrower on the Loan which could require the
Company to foreclose on the Property in order to protect its investment. Under
certain circumstances, the Company may not be able to foreclose on a Property
subject to a Loan and therefore may be unable to acquire an equity interest in
the Property. The borrower's ability to make Loan payments and the amount the
Company may realize after a default will be dependent upon the risks generally
associated with mortgage lending including, without limitation, general or local
economic conditions, neighborhood property values, interest rates, real estate
tax rates, other operating expenses, the supply of and demand for properties of
the type involved, the inability of the borrower to obtain or maintain full
occupancy of the property, zoning laws, rent control laws, other governmental
rules and fiscal policies and acts of God. Additionally, the principal amount of
Loans made by the Company generally will be repaid, in whole or part, in
lump-sum "balloon" payments. Accordingly, the borrower's ability to make such
payment may be dependent upon its ability to obtain refinancing. See "Investment
Procedures, Objectives and Policies." In the case of a leasehold Loan, a default
under the lease could result in the loss of the Company's investment, unless the
Company has the right and ability to cure such default.
As described under "Investment Procedures, Objectives and Policies," the
Company may make some Loans which provide for, in addition to payments of base
interest, payment of a portion of the rental increases and/or the appreciation
of the Property securing repayment of the Loan (the "Underlying Real Property"),
or options
<PAGE> 16
to acquire an equity interest in the Underlying Real Property. See "Income Tax
Aspects--Requirements for Qualification as a REIT." Loans of this type are
called "participating loans" or "participations." In seeking such
participations, the Company may, in some cases, accept a lower base rent or
interest rate than that available in non-participating Loans or leases in order
to obtain such a participation and the potentially greater benefit that could
result from such portion of the increased value of the Underlying Real Property.
The value of any participation which the Company may be able to obtain will
depend upon future increases in either revenues or the value of the Underlying
Real Property and on the factors inherent in any real estate investment, as
described above. Accordingly, there can be no assurance that any amounts will be
realized from the Company's participations. (The Company does not anticipate
that the amounts it will receive from any participations will be significant in
the early years of any investment.)
The amount of interest which may be charged by the Company on its Loans
may be limited by state usury laws. Such laws impose penalties on the making of
loans with excessive interest rates, including making such debt unenforceable.
While the Company does not intend to make Loans at excessive interest rates,
there are uncertainties in determining the legality of interest rates, which may
be increased as a result of questions as to the treatment as interest of the
equity participations the Company may seek.
It is also possible that, as a result of the Company's interest in the
rents or proceeds from a sale, financing or refinancing, a court in a bankruptcy
or similar proceeding may treat the Company as a partner or joint venturer with
the borrower or lessee, and the Company, accordingly, would lose the priority
its security interest would otherwise have given it in such situation.
Risks of Joint Ventures. The Company may participate in joint ventures
with non-affiliated Persons. See "Investment Procedures, Objectives and
Policies." An investment by the Company in a joint venture which owns
properties, rather than the Company investing directly in such properties, may
involve certain risks, including the possibility that the Company's joint
venture partner may become bankrupt, may have economic or business interests or
goals which are inconsistent with the business interests or goals of the
Company, or may be in a position to take action contrary to the instructions or
the requests of the Company or contrary to the Company's policies or objectives.
Actions by the Company's joint venture partner might, among other things, result
in subjecting property owned by the joint venture to liabilities in excess of
those contemplated by the terms of the joint venture agreement, expose the
Company to liabilities of the joint venture in excess of its proportionate share
of such liabilities, or have other adverse consequences for the Company. In a
case where the joint venturers each own a 50% interest in a venture, they may
not be able to agree on matters relating to the properties owned by the venture.
Although each joint venturer will have a right of first refusal to purchase the
other venturer's interest in a property if a sale thereof is desired, the joint
venturer may not have sufficient resources to exercise its right of first
refusal.
The Company also may from time-to-time participate jointly with
publicly-registered investment programs or other entities sponsored by the
Advisor or one of its Affiliates in investments as tenants-in-common or in some
other joint venture arrangement. The risks of such joint ownership may be
similar to those mentioned above for joint ventures and, in the case of a
tenancy-in-common, each co-tenant normally has the right, if an unresolvable
dispute arises, to seek partition of the property, which partition might
decrease the value of each portion of the divided property. The Company or the
Advisor may also experience difficulty in enforcing the rights of the Company in
a joint venture with an Affiliate due to the fiduciary obligation the Advisor or
the Board may owe to the other partner in such joint venture.
Potential Environmental Liabilities. Under various Federal and state
environmental laws, current or former owners of real estate may be required to
investigate and clean up hazardous or toxic substances or petroleum product
releases at such property, or may be held liable to governmental entities or to
third parties for property damage and for investigation and clean up costs
incurred by such parties in connection with the contamination. Such laws
typically impose clean-up responsibility and liability without regard to whether
the owner knew of or caused
<PAGE> 17
the presence of the contamination, and the liability under such laws has been
interpreted to be joint and several unless the harm is divisible and there is a
reasonable basis for allocation of responsibility. The Company will generally
seek to include a provision in its leases providing that the tenant is
responsible for all environmental liabilities and for compliance with
environmental regulation. Such a provision, however, does not eliminate the
Company's statutory liability or preclude claims against the Company by
governmental authorities or persons who are not parties to the lease. The
Company's leases may also provide a basis for the Company to recover from the
tenant damages or costs for which the Company has been found liable. The cost of
an investigation and clean up of site contamination can be substantial, and the
fact that the property is or has been contaminated, even if remediated, may
adversely affect the value of the property and the owner's ability to sell or
lease the property or to borrow using the property as collateral. In addition,
some environmental laws create a lien on the contaminated site in favor of the
government for damages and cost that it incurs in connection with the
contamination, and certain state and environmental laws provide that such lien
has priority over all other encumbrances on the property or that a lien can be
imposed on any other property owned by the liable party. Finally, the owner of a
site may be subject to common law claims by third parties based on damages and
costs resulting from the environmental contamination emanating from the site.
Other Federal, state and local laws and regulations govern the removal or
encapsulation of asbestos-containing material when such material is in poor
condition in the event of building, remodeling, renovation or demolition. Still
other Federal, state and local statutes and regulations may require the removal
or upgrade of underground storage tanks that are out of service or are out of
compliance. In addition, Federal, state and local laws, regulations and
ordinances may impose prohibitions, limitations and operational standards on, or
require permits and approvals in connection with, the discharge of waste,
wastewater and other water pollutants, the emission of air pollutants, the
operation of air polluting equipment, the generation and management of materials
classified as hazardous waste and workplace health and safety. Non-compliance
with environmental or health and safety requirements may also result in the need
to cease or alter operations at a property, which could affect the financial
health of a tenant and its ability to make lease payments. Furthermore, if there
is a violation of such a requirement in connection with the tenant's operations,
it is possible that the Company, as the owner of the property, could be held
accountable by governmental authorities for such violation and could be required
to correct the violation.
Risk of Providing Financing to Purchasers of Company's Properties. The
Company may find it necessary or desirable to provide financing to purchasers of
Properties it wishes to sell. This financing may cause any intended liquidation
of the Company to be delayed beyond the time of the disposition of Properties
and until such time as any loans are repaid or sold. The Company may find it
necessary to provide financing in circumstances where lenders are not willing to
make loans secured by commercial real estate or may find it desirable where a
purchaser is willing to pay a higher price for the Property than it would
without the financing. See "Risks Related to Making Loans" above for a
discussion of the risks associated generally with making loans.
Risk of Incurring Uninsured Losses. The Company typically will require
tenants to maintain liability and casualty insurance of the kind that is
customarily obtained for similar properties. However, certain disaster-type
insurance (covering events of a catastrophic nature, such as earthquakes) may
not be available or may only be available at rates that, in the opinion of the
Advisor, are prohibitive. In the event that an uninsured disaster should occur,
or in the event a tenant does not maintain the required insurance and a loss
occurs, the Company could suffer a loss of the capital invested in, as well as
anticipated profits from, the damaged or destroyed Property. If the loss
involves a liability claim, the loss may extend to the other assets of the
Company or the subsidiary that owns the Property affected by the loss.
Casualty and Condemnation Related to Lease Terminations. The leases of
Properties may permit the tenant to terminate its lease in the event of a
substantial casualty or a taking by eminent domain of a substantial portion of a
Property. Should these events occur, the Company generally will be compensated
by insurance
<PAGE> 18
proceeds in the case of insured casualties or a condemnation award in the case
of a taking by eminent domain. There can be no assurance that any such insurance
proceeds or condemnation award will equal the value of the Property or the
Company's investment in the Property. Any such lease termination could adversely
affect the Company's cash flow and the diversification of its net lease
investments.
Risk of Investment in Real Property Located Outside the United States. The
Company has the authority to invest proceeds of the Offering in Property located
outside the United States. Such investments may be affected by factors peculiar
to the laws of the jurisdiction in which such Property is located, including but
not limited to, land use and zoning laws, environmental laws, laws relating to
the foreign ownership of property and laws relating to the ability of foreign
persons or corporations to remove profits earned from activities within such
country to the person's or corporation's country of origin. These laws may
expose the Company to risks that are different from and in addition to those
commonly found in the United States. In addition, such foreign investments could
be subject to the risks of adverse market conditions due to changes in national
or local economic conditions, changes in interest rates and in the availability,
cost and terms of mortgage funds resulting from varying national economic
policies, changes in real estate and other tax rates and other operating
expenses in particular countries and changing governmental rules and policies.
Accounting for Net Lease Transactions. Under certain accounting standards,
leases are classified for financial reporting purposes as either capital leases
or operating leases, with capital leases required to appear as assets and
liabilities on a lessee's balance sheet. Transactions in which the Company
acquires a deed to a Property may or may not be recognized as a sale for
financial reporting purposes due to the inclusion of certain provisions in the
lease of the Property. These accounting standards might make sale-leaseback
transactions less desirable for the seller-tenant that wants to treat a
sale-leaseback with the Company as an operating lease and, therefore, might
reduce the prospective number of Properties available for net lease investment.
Risk of Ground Leases. In certain transactions, the Company's interest in
the land constituting part of the Property may be acquired by means of a
long-term ground lease from the tenant or an unrelated third party. The
Company's continued quiet enjoyment and possession of the land as lessee could
be affected adversely by challenges resulting from the ground lessor's financial
failure. Furthermore, the Company's interest in a Property may be acquired by
acquiring the interest as a ground sublessee under a ground sublease. The
Company's continued quiet enjoyment and possession of the land could be
adversely affected in the event the original ground lessee, from whom the
Company's interest would arise, defaulted on its obligations under the original
ground lease.
CORPORATE INVESTMENT RISKS
Risk of Unspecified Investment of Proceeds of the Offering. The Company's
ability to achieve its stated investment objectives and to pay Dividends depends
upon the performance of the Advisor in the acquisition of investments for the
Company. In general, shareholders will have no opportunity to evaluate the
transaction terms and other relevant economic or financial data concerning
investments to be made by the Company other than those described herein. There
can be no assurance (i) that acquired Properties will be desirable
income-producing properties; or, (ii) that desirable income-producing properties
will be available on economically attractive terms. In addition, the
profitability of the Company could be affected by the amount of available funds.
A smaller amount of Gross Offering Proceeds may result in the acquisition of
fewer properties and less diversification of the Company's real estate
portfolio, thereby increasing the potential impact of any investment which
performs below expectations.
Risk of Lack of Diversification. The Offering will be closed with Gross
Offering Proceeds of not less than [$15,000,000] nor more than $300,000,000. The
potential profitability of the Company could be affected by the amount of funds
from the Offering at its disposal. Furthermore, there can be no assurance that
the Company will be able to achieve its leverage objective of borrowing
approximately 60% of the aggregate purchase price of all Properties purchased.
The Company may be
<PAGE> 19
unable to obtain mortgage financing on commercially attractive terms because of
the decreased number of commercial banks making mortgage loans secured by
commercial real property generally and, more specifically, loans secured by
single-tenant net-leased commercial real property of the type in which the
Company intends to invest. There can be no assurance that lending sources will
continue to make loans on commercially attractive terms. The CPA(R) Programs
have had leverage goals similar to the Company's (60%) but have achieved
leverage of approximately [55%]. If the Company is unable to attain its leverage
objective because financing is difficult or costly to obtain, the Company may be
limited to investing in fewer Properties.
The investment of a smaller sum of money may result in the acquisition of
fewer Properties and, accordingly, less diversification of the Company's real
estate portfolio than the investment of a larger sum in a greater number of
Properties. Lack of diversification will increase the potential adverse effect
on the Company of a single under-performing investment.
Lack of Liquidity of Shares. Shareholders may not be able to sell their
Shares promptly at a desired price; therefore, the Shares should be considered
as a long-term investment only. Currently there is no public market for the
Shares. The Company may apply to list the Shares for trading on a national
securities exchange or include them for quotation on Nasdaq if the Board
(including a majority of the Independent Directors) deems such listing or
quotation to be in the best interests of the Shareholders. However, there can be
no assurance that the Company will apply to have the Shares listed or included
for quotation, that any such application will be made before the passage of a
significant period of time, that any application will be accepted or, even if
accepted, that a public market will develop. In any event, it is unlikely that
the Company will apply to have the Shares listed or included for quotation
before the proceeds of the Offering are fully invested. In the event the Shares
are listed, Shareholders may be able to sell their Shares only through the
national securities exchange on which the Shares are listed or through Nasdaq.
There can be no assurance that the price a Shareholder would receive in a sale
on an exchange or on Nasdaq will be representative of the value of the
Properties owned by the Company or that it will equal or exceed the amount a
Shareholder paid for the Shares. Historically, shares of real estate companies
have traded at a discount to their proportionate interest in the appraised value
of the issuer's underlying assets.
If the Board decides to list the Shares, the business of the Company may
continue indefinitely and the Company may reinvest the proceeds of the sale of
Properties instead of distributing such proceeds to the Shareholders. In that
case, the Shareholders would be totally dependent upon the securities market for
the return of their initial investment in the Company.
Under certain circumstances, the Company may prevent the transfer and/or
accumulation of Shares in order to protect the status of the Company as a REIT
and as otherwise deemed by the Board to be in the best interests of the
Shareholders. See "Description of Shares--Restriction on Ownership of Shares."
Risk of Unspecified Investments. The Company was incorporated on June 4,
1997 and has no operating history. Except for the properties the Company
indicates it intends to acquire and describes in this Prospectus or in a
supplement to this Prospectus, purchasers of Shares will not have an opportunity
to evaluate the terms of the transaction or the relevant economic or financial
data affecting the investments to be acquired by the Company. Moreover, the
ability of the Company to accomplish its stated investment objectives and the
timing of the receipt by Shareholders of Dividends are dependent upon the
success and timing of the Advisor's acquisition of investments for the Company.
There can be no assurance that any Properties which may be acquired will be
desirable income-producing properties or will increase in value, or that
desirable income-producing properties will be available or can be acquired on
economically attractive terms.
Reliance on Management. Investors will be relying entirely on the
management ability of the Advisor and on the oversight of the Board.
Shareholders have no right or power to take part in the management of the
Company except through the exercise of their shareholder voting rights. Thus, no
prospective investor should purchase any of the Shares offered hereby unless the
prospective investor is willing to entrust
<PAGE> 20
all aspects of the management of the Company to the Advisor and the Board. See
"Management" for a discussion of the experience of the directors and officers in
real estate investments. Also see "Conflicts of Interests" for a discussion of
the possible realization by the Advisor and its Affiliates of substantial
commissions, fees, compensation and other income and for a discussion of various
other conflicts of interest.
The Articles of Incorporation restrict ownership of more than 9.8% of the
outstanding Shares by one Person. See "Description of Shares--Restriction on
Ownership of Shares." These restrictions may discourage a Change of Control of
the Company and may deter individuals or entities from making tender offers for
Shares, which offers might be financially attractive to Shareholders or which
may cause a change in the management of the Company.
Shareholders' Votes. Shareholders may take certain actions, including
approving most amendments to the Articles of Incorporation and Bylaws, by a vote
of a majority of the Shares voted. Certain provisions designed to preserve the
Company's status as a REIT cannot be amended without a "supermajority" vote of
66 2/3% of the Shares entitled to vote. All actions taken, if approved by the
holders of the requisite number of Shares at a duly held meeting at which a
quorum is present, would be binding on all Shareholders. Certain of these
provisions may discourage or make it more difficult for a Person to acquire
control of the Company or to effect a change in the operation of the Company.
The Board has the power to cause the issuance of additional Shares without
obtaining Shareholder approval.
Limited Liability of Officers and Directors. The Articles of Incorporation
provide that a director's liability to the Company for monetary damages will be
limited. In addition, the Company is obligated under the Articles of
Incorporation and Bylaws to indemnify its directors and officers and may
indemnify its employees and other agents against certain liabilities incurred in
connection with their service in such capacities. The Company will execute
indemnification agreements with each director which will indemnify the directors
against any such liabilities they incur. Each of these measures could reduce the
legal remedies available to the Company and the Shareholders against such
individuals. See "Management--Limited Liability and Indemnification of
Directors, Officers, Employees and Other Agents."
NECESSITY FOR UPDATING REGISTRATION STATEMENT. IN ORDER FOR THE COMPANY
TO PURCHASE SHARES PURSUANT TO THE REDEMPTION PROVISIONS DESCRIBED IN THIS
PROSPECTUS (SEE "DESCRIPTION OF SHARES--REDEMPTION OF SHARES"), THE COMPANY WILL
BE REQUIRED TO MAINTAIN AN EFFECTIVE REGISTRATION STATEMENT WITH THE SEC. AN
UPDATED REGISTRATION STATEMENT IS REQUIRED TO INCLUDE UPDATED GENERAL AND
FINANCIAL INFORMATION CONTAINED IN THIS PROSPECTUS. THIS OBLIGATION COULD RESULT
IN SUBSTANTIAL EXPENSE TO THE COMPANY. ALTHOUGH THE COMPANY INTENDS TO MAINTAIN
AN EFFECTIVE REGISTRATION STATEMENT, THERE CAN BE NO ASSURANCE THAT THE COMPANY
WILL MAINTAIN AN EFFECTIVE REGISTRATION STATEMENT. IF THE COMPANY DOES NOT
MAINTAIN A CURRENT REGISTRATION STATEMENT, THE COMPANY MAY NOT BE ABLE TO REDEEM
SHARES.
TAX RISKS
REIT Status for Tax Purposes. The Company intends to conduct its
operations to enable it to qualify as and be taxed as a REIT. If the Company
qualifies as a REIT, it will be entitled to a deduction for dividends paid to
Shareholders and, therefore, will not be required to pay Federal income tax on
any income it distributes to the Shareholders. The Company will be required to
pay Federal income tax on income it retains or reinvests, certain income or gain
with respect to Foreclosure Property (generally Property the Company acquires as
a result of a default by a borrower or tenant with respect to which it files an
election with the IRS), income from Prohibited Transactions (generally, sales of
certain property held primarily for sale to customers in the ordinary course of
business), and if the Company fails certain prescribed income tests, the amount
of income by which such tests were failed. Additionally, the Company may be
required to pay an alternative minimum tax and/or an excise tax. See "Income Tax
Aspects--Taxation of the Company."
In order to qualify as a REIT, the Company must satisfy certain highly
technical requirements. See "Income Tax Aspects--Requirements for Qualification
as a REIT" and "Income Tax Aspects--Statement of Stock Ownership." Failure to
satisfy
<PAGE> 21
these qualification requirements would prevent the Company's qualification as a
REIT, in which case the Company would be taxable as a corporation.
In addition, should the Company have difficulties locating suitable
Properties and investing the proceeds of the Offering within one year of
receipt, the Company could be disqualified as a REIT, could be subject to tax or
could be delayed in qualifying as a REIT. See "Income Tax Aspects--Requirements
for Qualification as a REIT." To avoid such disqualification or delay, the
Company may temporarily invest all or a portion of the proceeds in other types
of assets that generate qualifying REIT income. See "Investment Procedures,
Objectives and Policies."
To qualify as a REIT, the Company is required to distribute its
Distributable REIT Taxable Income (generally, 95% of its taxable income less its
net capital gains). See "Income Tax Aspects--Requirements for Qualification as a
REIT--Distribution Requirement." If in any year, the Company fails to distribute
its Distributable REIT Taxable Income, it would not qualify as a REIT and would
be taxed as a corporation unless the failure results from an adjustment by the
IRS to its REIT Taxable Income. In that event, the Company could satisfy the
distribution requirement by distributing the amount of the adjustment. It is
possible that the Company could be required to borrow funds or liquidate a
portion of its investments in order to pay its expenses, make the required
distributions to Shareholders, or satisfy its tax liabilities. There can be no
assurance that such funds will be available to the extent, and at the time,
required by the Company to maintain its REIT status. See "Income Tax
Aspects--Requirements for Qualification as a REIT."
If the Company were to be taxed as a corporation, the Company would not be
permitted to deduct an amount equal to the Dividends paid to Shareholders and
any payment of tax by the Company could substantially reduce the funds available
for distribution to Shareholders or for reinvestment. In that event, a portion
of Dividends may be a return of capital and Shareholders may be entitled to a
refund of taxes paid on Dividends. To the extent that Dividends had been made in
anticipation of the Company's qualification as a REIT, the Company might be
required to borrow additional funds or to liquidate certain of its investments
in order to pay the applicable tax. Moreover, should the Company's election to
be taxed as a REIT be terminated or voluntarily revoked, the Company may not be
able to elect to be treated as a REIT until the fifth taxable year following the
termination of its election unless it satisfies certain conditions. See "Income
Tax Aspects--Termination of REIT Status."
Changes in Tax Laws. The discussions of the Federal income tax aspects of
the Offering are based on current law, including the Code, the Regulations
issued thereunder, certain administrative interpretations thereof and court
decisions. Consequently, future events (including those arising from legislative
and administrative proposals that are or in the future may be under
consideration) that modify or otherwise affect those provisions may result in
treatment for Federal income tax purposes of the Company and the Shareholders
that is materially and adversely different from that described in this
Prospectus, both for taxable years arising before and after such events. There
is no assurance that future legislation and administrative interpretations will
not be retroactive in effect.
OTHER INVESTMENT RISKS
Risk of Insufficient Working Capital. There can be no assurance that the
Company will have sufficient working capital. A deficiency of working capital
might be caused by a decrease in gross revenues, by an increase in expenses, by
an uninsured casualty to a Property or by other unanticipated events. There is
no assurance that the Company will be able to borrow money for working capital
purposes. Loan covenants and other restrictions included in the Company's
financing agreements relating to the acquisition of Properties may restrict the
Company's ability to borrow for such purposes or its ability to draw funds from
working capital reserves.
Investments in Non-Real Estate Assets. The Company will invest Offering
proceeds in Permitted Temporary Investments for a period of up to one year
pending the investment of such proceeds in real estate and in assets other than
real estate which generate qualifying REIT income (which, it is anticipated,
will consist primarily of mortgage-backed securities guaranteed by GNMA, FNMA or
FHLMC and,
<PAGE> 22
subject to certain holding period restrictions, equity interests in other
REITs). On a permanent basis, the Company will be required to limit its
investment in qualifying "non-real estate" assets to 10% of the net proceeds of
the Offering.
Permitted Temporary Investments are generally interest rate sensitive
financial instruments and their value generally will decrease if market interest
rates increase. Thus, if the Company sells its interest in such securities when
interest rates are higher than at the time when the securities initially were
acquired, the Company would likely receive less in such a sale than the amount
it initially paid. Conversely, if market interest rates decline, the underlying
mortgages may be prepaid and the Company may not be able to reinvest the
proceeds at interest rates as favorable as previously obtained.
Investment by Pension or Profit-Sharing Trusts, Keoghs or IRAs. In
considering an investment in the Company of the assets of a pension, profit
sharing, 401(k), Keogh or other retirement plan or IRA ("Benefit Plans"), a
fiduciary with respect to such a Benefit Plan should consider, among other
things, (i) whether the investment is consistent with applicable provisions of
ERISA or the Code, (ii) whether the investment will produce unrelated business
taxable income, as defined in Section 512 of the Code ("UBTI"), to the Benefit
Plan, and (iii) the need to value the assets of the Benefit Plan annually.
In certain circumstances, the assets of the Company could be considered
assets of Benefit Plans subject to ERISA and Section 4975 of the Code. If that
were the case, certain contemplated transactions between the Company and the
Advisor and its Affiliates might be considered "prohibited transactions" under
the Code and ERISA. The parties engaging in such transactions could become
subject to penalties and excise taxes. Additionally, the Advisor could be
considered a fiduciary under ERISA, subject to the conditions, restrictions and
prohibitions of Part 4 of Title I of ERISA and the fiduciaries for each
investing Benefit Plan could be considered to have made an improper delegation
of fiduciary responsibilities to the Advisor. IRAs also could be said to have
permitted an improper commingling of IRA assets with other assets.
The Company has obtained an opinion of Reed Smith Shaw & McClay (which
opinion is based on the facts and assumptions described in this Prospectus, on
the Articles of Incorporation and on certain representations) that the assets of
the Company should not be treated under current ERISA law and regulations as
plan assets of a Benefit Plan which purchases Shares. The opinion is not binding
on the IRS or on the Department of Labor.
There can be no assurance that the objective of preventing the assets of
the Company from being deemed, for purposes of ERISA and the Code, plan assets
of those Benefit Plans which purchase Shares will be attained. Even if the
Company complies with such regulations and the assets of the Company are not
considered plan assets, a prohibited transaction could occur if the Company,
CFA, any Selected Dealer, the Escrow Agent or any of their Affiliates is a
fiduciary (within the meaning of ERISA) with respect to the purchase by a
Benefit Plan. Thus, unless an administrative or statutory exemption applies,
Shares should not be purchased if any of the above Persons referred to in the
immediately preceding sentence is a fiduciary (within the meaning of ERISA) with
respect to such purchase.
Plans subject to ERISA and the Code and other exempt organizations are
urged to pay particular attention to the sections of this Prospectus entitled
"Income Tax Aspects -- Taxation of Tax--Exempt Entities" and "ERISA
Considerations" before purchasing Shares.
Investment Company Act of 1940. The Board of Directors intends to conduct
the operation of the Company so that it will not be subject to regulation under
the Investment Company Act of 1940. As a result, the Company may have to forego
certain investments which could produce a more favorable return to the Company.
If the Company fails to qualify for an exemption from registration as an
investment company, it will be subject to numerous restrictions under the
Investment Company Act of 1940. A failure to qualify for an exemption under the
Investment Company Act of 1940 could have a material adverse effect on the
Shareholders.
<PAGE> 23
Dilution. Because investors will pay the same price per Share during the
Offering whether they acquire their shares before or after the Company has made
investments, the value of Shares acquired by Shareholders will be diluted upon
purchase of the Shares by Shareholders purchasing Shares subsequently if
investments previously acquired by the Company have appreciated in value.
Conversely, if investments previously acquired by the Company have depreciated
in value, the value of the Shares purchased by a Shareholder later in the
Offering will be diluted immediately upon the purchase of the Shares. The Board
may authorize the issuance of Shares in addition to Shares issued pursuant to
the Offering or may issue other types of securities, thereby resulting in
possible dilution of the equity of the Shareholders.
TERMS OF THE OFFERING
A minimum of 1,500,000 and a maximum of 30,000,000 Shares are being
offered to the public on a "best efforts" basis by the Sales Agent and Selected
Dealers (which means that no one is guaranteeing the amount of capital that will
be raised). The price of the Shares is $10 per Share (which price has been
determined arbitrarily), subject to certain discounts. See "The Offering." The
minimum subscription is 250 Shares (200 Shares for an Individual Retirement
Account ("IRA") or a Self-Employed Retirement Plan ("Keogh Plan") except for
Minnesota investors and Iowa tax-exempt investors who must make a minimum
investment of 250 Shares). Payment in full is due on transmittal of an order by
an investor or by such investor's authorized representative. Payments will be
deposited promptly in an interest-bearing escrow account maintained with the
United States Trust Company of New York (the "Escrow Agent") until such funds
are released as described below. Such funds will be held in trust for the
benefit of investors to be used for the purposes set forth in this Prospectus.
Orders must be accepted or rejected by the Company within 30 days of their
receipt. An investor whose order for Shares has been accepted by the Company has
no right to withdraw his investment. See "The Offering." The acceptance of
orders by the Company imposes no obligation on the Company to issue Shares. The
Sales Agent and the Selected Dealers may not complete a sale of Shares to an
investor until at least five business days after the date the investor receives
a copy of this Prospectus. Each investor will be sent a confirmation of his or
her purchase.
The Initial Closing Date will occur as soon as practicable after the
Minimum Offering is achieved, but in no event shall the Initial Closing Date
occur more than 90 days after the Minimum Offering is achieved. After the
Initial Closing Date, Shares will be issued periodically (but not less often
than quarterly), as agreed between the Company and the Sales Agent, until the
termination of the Offering. Investors will receive the proportionate share of
interest earned on their funds for the period such funds are held in escrow. All
such interest earned on the escrowed funds will be paid to Shareholders within
15 days of each issuance of Shares.
The Offering will terminate at the time all Shares being offered are
sold, unless sooner terminated by the Company. If, as of one year from the date
of this Prospectus or as of the termination of the Offering, whichever occurs
earlier, the Minimum Offering is not achieved, the Company will cancel all
existing orders and, promptly after such cancellation, all funds submitted on
account of such orders will be released from escrow and returned to each
investor together with all interest earned thereon. See "The Offering -- Escrow
Arrangements."
The Company has established suitability standards for initial Shareholders
and subsequent transferees. These suitability standards require that a
Shareholder have either (i) a net worth of at least $150,000 or (ii) a gross
annual income of at least $45,000 and a net worth of at least $45,000. Missouri
residents must have either (i) a net worth of at least $250,000 or (ii) a gross
annual income of $75,000 and a net worth of at least $75,000. North Carolina
residents must have either (i) a minimum net worth of at least $225,000 or (ii)
a taxable income of at least $60,000 and a net worth of at least $60,000. A
Michigan or Pennsylvania resident's investment in the Company may not exceed 10%
of such resident's net worth. Computations of net worth for purposes of each of
the above suitability standards
<PAGE> 24
exclude the value of a Shareholder's home, furnishings and automobiles. In the
case of sales to fiduciary accounts, the foregoing standards must be met by the
fiduciary account, by the Person who directly or indirectly supplied the funds
for the purchase of the Shares or by the beneficiary of the account. These
suitability standards are intended to ensure that, given the long-term nature of
an investment in the Company, the Company's investment objectives and the
relative illiquidity of the Shares, a purchase of Shares is an appropriate
investment for certain investors. Each Selected Dealer must make every
reasonable effort to determine that the purchase of Shares is a suitable and
appropriate investment for each Shareholder based on information provided by the
Shareholder regarding the Shareholder's financial situation and investment
objectives. Each Selected Dealer shall maintain records of the information used
to determine that an investment in the Shares is suitable and appropriate for a
shareholder. Each Selected Dealer will maintain these records for at least six
years.
<PAGE> 25
ESTIMATED USE OF PROCEEDS
The following table presents information about how the money raised in the
Offering will be used. Information is provided assuming the minimum and maximum
number of Shares are sold. Many of the numbers in the table are estimates
because all expenses cannot be determined precisely at this time. The actual use
of the capital raised by the Company is likely to be different than the figures
presented in the table. The Company expects that approximately 86% of the
money invested by Shareholders will be used to buy real estate, while the
remaining 14% will be used for working capital and to pay expenses and fees,
including the payment of fees to and expenses of certain Affiliates of the
Sponsor of the Company.
<TABLE>
<CAPTION>
MINIMUM
OFFERING SALE OF
[1,500,000] SHARES
PERCENT
OF
PUBLIC
OFFERING
AMOUNT PROCEEDS
------ --------
<S> <C> <C>
Public Offering Proceeds $15,000,000 100.00%
----------- ------
Less Offering Expenses:
Selling Commissions(1) 900,000 6.00%
Other Organization and Offering
Expenses(2) 675,000 4.50%
----------- ------
Total Offering Expenses 1,575,000 10.50%
=========== ======
Amount of Public Offering Proceeds
Available for Investment $13,425,000 89.50%
=========== ======
*Acquisition Fees(3) 330,000 2.20%
Acquisition Expenses(4) 75,000 0.50%
Working Capital Reserve 150,000 1.00%
----------- ------
Total Proceeds to be Invested in Real Estate $12,870,000 85.80%
=========== ======
</TABLE>
<TABLE>
<CAPTION>
MAXIMUM
OFFERING SALE OF
[30,000,000] SHARES
PERCENT
OF
PUBLIC
OFFERING
AMOUNT PROCEEDS
------ --------
<S> <C> <C>
Public Offering Proceeds $300,000,000 100.00%
------------ ------
Less Offering Expenses:
Selling Commissions(1) 18,000,000 6.00%
Other Organization and Offering
Expenses(2) 12,000,000 4.00%
------------ ------
Total Offering Expenses 30,000,000 10.00%
------------ ------
Amount of Public Offering Proceeds
Available for Investment $270,000,000 90.00%
============ ======
*Acquisition Fees(3) 6,637,500 2.21%
Acquisition Expenses(4) 1,500,000 0.50%
Working Capital Reserve 3,000,000 1.00%
------------ ------
Total Proceeds to be Invested in Real Estate $258,862,500 86.29%
============ ======
</TABLE>
* Subordinated Acquisition Fees, which are intended to be paid from the
Company's funds from operations and not from proceeds of the Offering,
have not been included in the table. Subordinated Acquisition Fees
(excluding interest thereon), will not exceed 2% of the aggregate purchase
price of the properties.
<PAGE> 26
Assuming the Company does not borrow money to purchase Properties, the
Subordinated Acquisition Fees will not exceed $264,000 (1.76% of the
Public Offering Proceeds), in the event the Minimum Offering is achieved,
or $5,310,000 (1.77% of the Public Offering Proceeds), in the event the
Maximum Offering is achieved, which fees, with respect to any Property,
are payable in equal amounts over an eight-year period following the
acquisition of a Property, assuming the Preferred Return has been paid.
Other terms of the Subordinated Acquisition Fees are described in the
"Management Compensation" section of this Prospectus.
(1) If the Minimum Offering is successfully completed, the Company will pay a
selling commission of $0.65 per Share sold (except that no commission will
be paid with respect to any Shares sold to the Advisor, its Affiliates,
the Selected Dealers or any of their employees for their own accounts).
Such selling commissions will be reduced in the event of volume discounts
and in the event of sales to investors of certain CPA(R) Programs under
certain circumstances, in each case as further described in "The
Offering."
(2) Other Organization and Offering Expenses represent all expenses incurred
in connection with the formation, qualification and registration of the
Company and in marketing and distributing the Shares under applicable
Federal and state law, and any other expenses actually incurred and
directly related to the offering and sale of the Shares, except selling
commissions. See "The Offering" for a complete description of the fees
and expense reimbursements payable to the Sales Agent and the Selected
Dealers. In no event shall the total underwriting compensation to be
paid to the Sales Agent and Selected Dealers in connection with the
Offering, including selling commissions, and expense reimbursements,
exceed 10% of the Gross Offering Proceeds, except that an additional
0.50% of gross proceeds from sales made by the Sales Agent and each
Selected Dealer may be paid for bona fide due diligence expenses. See
"The Offering." To the extent all Organization and Offering Expenses
(excluding selling commissions, and any fees paid and expenses
reimbursed to the Selected Dealers or paid on behalf of the Selected
Dealers) exceed 3.5% of the Gross Offering Proceeds, the excess will be
paid by the Advisor with no recourse by or reimbursement to the Advisor.
See "The Offering" and "Management Compensation."
(3) Acquisition Fees include all fees and commissions paid by any party to any
party in connection with the purchase, development or construction of
Properties and any related mortgage financing, except any Development Fee
or Construction Fee paid to a Person who is not an Affiliate of the
Company in connection with the actual development and construction of a
project after the Company's acquisition of the land. See "Glossary" for
complete definitions of "Acquisition Fees," "Development Fee" and
"Construction Fee." Acquisition Fees do not include Acquisition Expenses.
For purposes of the table only, Subordinated Acquisition Fees have not
been included as part of Acquisition Fees because such fees will be paid
from funds from operations of the Company. The presentation in the table
is based on the assumption that the Company will not borrow any money to
purchase Properties. Although it is assumed that all the foregoing fees
will be paid by the sellers of Property, sellers generally fix the selling
price at a level sufficient to cover the cost of any Acquisition Fee so
that, in effect, the Company, as purchaser, will bear such fee as part of
the purchase price. The Company will not purchase any Property that has a
Total Property Cost (generally, the sum of the costs of purchasing,
developing, constructing and improving the Property plus the Acquisition
Fees paid in connection with such Property) in excess of such Property's
appraised value. See "Management Compensation" for a complete description
of the terms, conditions and limitations of the payment of fees to the
Advisor and its Affiliates.
(4) Acquisition Expenses represent an estimate of all expenses related to the
selection and acquisition of Properties by the Company, whether or not
such Properties are acquired, including but not limited to legal fees and
expenses, travel and communications expenses, costs of appraisals,
non-refundable option payments on Property not acquired, accounting fees
and expenses, title
<PAGE> 27
insurance and miscellaneous expenses. Acquisition Expenses do not include
Acquisition Fees.
<PAGE> 28
MANAGEMENT COMPENSATION
The following table sets forth the type and, to the extent possible,
estimates of the amounts of all fees, compensation, income, distributions and
other payments that the Advisor and its Affiliates will or may receive in
connection with the Offering and the operation of the Company. Such payments
initially will result from non-arm's-length bargaining. See "Conflicts of
Interest."
ORGANIZATION AND OFFERING STAGE
<TABLE>
<S> <C>
Entity Receiving
Compensation Advisor and its Affiliates
Form and Method
of Compensation Reimbursement for Organization and Offering Expenses,
including identified wholesaling expenses incurred on
behalf of the Company; provided, however, that if the
aggregate of all Organization and Offering Expenses
(excluding selling commissions, and any fees paid or
expenses reimbursed to the Selected Dealers) or paid
on behalf of the Selected Dealers exceeds 3.5% of the
Gross Offering Proceeds, the Advisor will be responsible
for the excess.
Estimated Amount The actual amounts to be paid will depend upon the
actual amount of Organization and Offering
Expenses incurred by the Advisor and its
Affiliates in connection with this Offering which
is not determinable at this time. Such expenses
are estimated to be $675,000 if 1,500,000 Shares
are sold and are estimated to be $12,000,000 if
30,000,000 Shares are sold.
- ----------------------
Entity Receiving
Compensation Sales Agent
Form and Method
of Compensation Selling commissions equal to $0.65 per Share sold.
The Sales Agent may, in turn, reallow a selling
commission of up to $0.60 per share of such
commissions to Selected Dealers.
Estimated Amount The estimated amount payable to the Sales
Agent is $900,000 if 1,500,000 Shares are sold
and $18,000,000 if 30,000,000 Shares are sold in
this Offering, a portion of which will be
reallowed to the Selected Dealers.
- -----------------------
</TABLE>
<PAGE> 29
ACQUISITION STAGE
<TABLE>
<S> <C>
Entity Receiving
Compensation Advisor or its Affiliates
Form and Method
of Compensation Interest on loans made to the Company. On
short-term loans, the interest rate will be the
lesser of (i) 1% above the prime rate of interest
charged from time to time by The Bank of New York
and (ii) the rate that would be charged to the
Company by unrelated lending institutions on
comparable loans for the same purpose in the
locality of the Property. See "Conflicts of
Interest" and "Investment Objectives and
Policies."
Estimated Amount The actual amount of loans made to the Company by
the Advisor or its Affiliates is not determinable
at this time. Accordingly, the actual amount of
interest payable to the Advisor and its
Affiliates, if any, is not determinable at this
time.
- -------------------------
Entity Receiving
Compensation Advisor or its Affiliates
Form and Method
of Compensation Acquisition Fees (other than Subordinated
Acquisition Fees). Total Acquisition Fees (which
include real estate brokerage fees, mortgage
placement fees, lease-up fees and transaction
structuring fees), other than Subordinated
Acquisition Fees, payable by either sellers of
Property or the Company may not exceed 2.5% of the
aggregate purchase price of the Properties.(1)(2)
Estimated Amount The actual amount to be paid to the Advisor and
its Affiliates will depend upon the aggregate
Total Property Cost of the Properties, which in
turn is dependent upon the Gross Offering Proceeds
and the amount of mortgage financing used by the
Company in acquiring the Properties, and
accordingly is not determinable at this time. If
the Properties acquired from the proceeds of this
Offering are 60% leveraged, such Acquisition Fees
payable to the Advisor or its Affiliates are
estimated to be approximately $825,000 if
1,500,000 Shares are sold and approximately
$16,594,000 if 30,000,000 Shares are sold.
See "Conflicts of Interest."
- ------------------------
Entity Receiving
Compensation Advisor or its Affiliates
Form and Method
of Compensation Subordinated Acquisition Fees. Total Subordinated
Acquisition Fees payable by either the sellers of
Properties or the Company may not exceed 2.0% of
the aggregate purchase price of the Properties
and, with respect to each Property, are payable in
equal annual installments on January 1 of each of
the eight calendar years commencing with January 1
following the first anniversary of the date such
Property was purchased. The unpaid portion of the
Subordinated Acquisition Fee
</TABLE>
<PAGE> 30
<TABLE>
<S> <C>
with respect to any Property will bear interest at
the rate of 6% per annum from the date of
acquisition of such Property until such portion is
paid. Such accrued interest is payable on the date
of each annual installment of such Fees. The
Company's portion of the Subordinated Acquisition
Fee payable in any year, and accrued interest
thereon, will be subordinated to the Preferred
Return. All Subordinated Acquisition Fees, and
accrued interest thereon, shall become due and
payable at such time the Shares become listed for
trading on a national securities exchange or
included for quotation on Nasdaq.(1)(2)
Estimated Amount The actual amount to be paid to the Advisor and
its Affiliates will depend upon the aggregate
Total Property Cost of the Properties acquired
with the proceeds of this Offering, which in turn
is dependent upon the Gross Offering Proceeds of
this Offering and the amount of mortgage financing
used by the Company in acquiring the Properties,
and accordingly is not determinable at this time.
If the Properties acquired with the proceeds of
this Offering are 60% leveraged, Subordinated
Acquisition Fees payable to the Advisor or its
Affiliates by sellers of Properties are estimated
to be approximately $660,000 if 1,500,000 Shares
are sold and approximately $13,275,000 if
30,000,000 Shares are sold. See "Conflicts of
Interest."
</TABLE>
<PAGE> 31
OPERATIONAL STAGE
<TABLE>
<S> <C>
Entity Receiving
Compensation Advisor and its Affiliates
Form and Method
of Compensation Reimbursement for Company expenses incurred in
connection with the administration of the Company.
The amounts of any such reimbursement will not
exceed amounts which would be paid to
non-affiliated third parties in the same locality
for similar products. The Operating Expenses of
the Company may not exceed the 2%/25% Guidelines
in any 12-month period. To the extent that the
Company incurs Operating Expenses in excess of the
2%/25% Guidelines and the Independent Directors
find that such excess expenses were the result of
unusual and nonrecurring factors, the Advisor may
be reimbursed in future years for the full amount
of such excess expenses, or any portion thereof,
but only to the extent such reimbursement would
not cause the Company's Operating Expenses to
exceed the 2%/25% Guidelines in any such year.
Estimated Amount Not determinable at this time.
- -------------
Entity Receiving
Compensation Advisor
Form and Method
of Compensation Asset Management Fee, payable monthly in an amount
equal to one-twelfth of .5% of the Average
Invested Assets for the preceding month. The Asset
Management Fee must fall within the 2%/25%
Guidelines. Payment of the Asset Management Fee
will be deferred if the Operating Expenses of the
Company exceed the 2%/25% Guidelines.(2)(3)(4)(5)
Estimated Amount If the maximum number of Shares is sold and the
Company achieves its borrowing goal of 60%,
Average Invested Assets as a result of this
Offering would be approximately $663,750,000 and
the annual Asset Management Fee on such assets
would be approximately $3,319,000.
- -------------
Entity Receiving
Compensation Advisor
Form and Method
of Compensation Performance Fee, payable in cash or restricted
stock at the option of the Advisor, calculated
monthly on the basis of one-twelfth of .5% of the
Average Invested Assets for the preceding month,
payable quarterly. Payment of this Fee for any
quarter will be subordinated to the cummulative
rate of cash flow from operations. The Performance
Fee must fall within the 2%/25% Guidelines.
Payment of this Fee will also be deferred if the
Operating Expenses of the Company exceed the
2%/25% Guidelines.(2)(3)(4)(5)(7)
Estimated Amount If the maximum number of Shares is sold and the
Company achieves its borrowing goal of 60%,
Average Invested Assets as a result of this
Offering would be
</TABLE>
<PAGE> 32
<TABLE>
<S> <C>
approximately $663,750,000 and the annual
Performance Fee on such assets would be
approximately $3,319,000.
- -------------
Entity Receiving
Compensation Advisor
Form and Method
of Compensation Loan Refinancing Fee. Fees payable by either the
tenant of a Property or the Company may not exceed
1% of the principal amount of any refinancing
obtained by the Company for which the Advisor
renders substantial services and for which no fees
are paid to a third party. The Loan Refinancing
Fee will be payable only if (i) the new loan is
approved by the Independent Directors as being in
the best interests of the Company, (ii) payment of
the fee is approved by a majority of the
Independent Directors, and (iii) the terms of the
new loan represent an improvement over the terms
of the refinanced loan, the new loan materially
increases the total debt secured by a particular
Property, or the maturity date of the refinanced
loan (which must have had an initial term of five
years or more) is less than one year from the date
of the refinancing. See "Conflicts of Interest."
Estimated Amount The actual amount to be paid to the Advisor will
depend upon the aggregate amount of the
refinancing obtained by the Company.
- -------------
</TABLE>
<PAGE> 33
LIQUIDATION STAGE
<TABLE>
<S> <C>
Entity Receiving
Compensation Advisor or its Affiliates
Form and Method
of Compensation Subordinated Disposition Fee in an amount equal to
the lesser of (i) 50% of the Competitive Real
Estate Commission and (ii) 3% of the Contract
Sales Price of a Property (if the Advisor or an
Affiliate provides a substantial amount of
services in the sale of a Property). The
Subordinated Disposition Fee shall be deferred
until Shareholders have received total Dividends
equal to 100% of Initial Investor Capital plus a
6% Cumulative Return commencing with the Initial
Closing Date. To the extent that the Subordinated
Disposition Fee is not currently paid by the
Company because of the foregoing limitation, the
unpaid commissions will be accrued and paid at
such time as the limitation has been satisfied.
The total real estate commissions paid to all
Persons by the Company shall not exceed an amount
equal to the lesser of (i) 6% of the Contract
Sales Price of a Property or (ii) the Competitive
Real Estate Commission.
Estimated Amount Not determinable at this time.
- -------------
Entity Receiving
Compensation Advisor and its Affiliates
Form and Method
of Compensation Subordinated Incentive Fee shall be payable in an
amount equal to 15% of the balance from Cash from
Sales and Financings remaining after the
Shareholders have received Dividends totaling 100%
of Initial Investor Capital plus the Preferred
Return.(6)
Estimated Amount The actual amount to be received will depend upon
the results of the Company's operations and the
amounts received upon the sale or other
disposition of the Properties and are not
determinable at this time.
</TABLE>
(1) The total Acquisition Fees (not including Subordinated Acquisition Fees)
payable to the Advisor and its Affiliates or paid by the Company may not
exceed 2.5% of the aggregate Total Property Cost of all Properties
purchased by the Company with the proceeds of this Offering unless a
majority of the Board (including a majority of the Independent Directors)
not otherwise interested in any transaction approve such excess as being
commercially competitive, fair and reasonable to the Company. The total of
all Acquisition Fees (including Subordinated Acquisition Fees and interest
thereon) and Acquisition Expenses paid by the Company shall be reasonable
and shall not exceed an amount equal to 6% of the aggregate Contract
Purchase Price of all properties purchased by the Company with the
proceeds of this Offering, unless a majority of the directors (including a
majority of the Independent Directors) not otherwise interested in any
transaction approves fees in excess of this limit as being commercially
competitive, fair and reasonable to the Company.
(2) The Company's objective is to achieve total borrowings of approximately
60% of the purchase price of all Properties. The CPA(R) Programs have had
similar leverage goals but have achieved leverage of only approximately
55%. The actual leverage percentage achieved by the Company will impact
the amount of Acquisition Fees earned by the Advisor because such fees are
based primarily on
<PAGE> 34
the total dollars invested in Properties and the amount available for such
investment will be affected by the amount of the Company's total
borrowings (i.e., the higher the leverage percentage, the more funds
available for investment in Properties). If the maximum Offering of
30,000,000 Shares is sold and the Properties are 75% leveraged,
Acquisition Fees (not including Subordinated Acquisition Fees) payable to
the Advisor or its Affiliates as a result of this Offering (assuming an
aggregate Total Property Cost of all Properties of approximately
[$1,062,000]) are estimated to be approximately [$26,550,000] and
Subordinated Acquisition Fees are estimated to be approximately
[$21,240,000]. The Company does not expect its Properties to be 75%
leveraged. The advisory agreement between the Company and the Advisor (the
"Advisory Agreement") provides that the Advisor will not earn Acquisition
Fees or Subordinated Acquisition Fees on the reinvestment of proceeds from
the sale or refinancing of Properties, unless the Shares are
publicly-traded or are expected to be publicly-traded.
(3) There are currently no specific arrangements for the provision of Property
management services to the Company by the Advisor. Such services shall be
provided by the Advisor or an Affiliate only if a Property becomes vacant
or requires more active management than contemplated at the time such
Property is acquired. However, if the Advisor deems such services to be
necessary in order to preserve the value of the Property, the Advisor or
its Affiliates, with the approval of the Board (including a majority of
the Independent Directors), may provide such services. The maximum
Property management fee which may be paid to the Advisor or an Affiliate
will be 6% of gross revenues from commercial Properties and 5% of gross
revenues from residential Properties (plus reimbursed expenses), where
such entity performs property management and leasing, re-leasing and
leasing related services, or 3% of gross revenues, where such entity
provides only property management services. In the case of industrial and
commercial Properties which are leased for ten or more years on a triple
net lease basis, the maximum Property management fee from such leases
shall be 1% of the Company's gross revenues over the term of each lease
plus a one-time leasing fee of 3% of the total base rents payable for the
first five years of the lease term payable in five equal annual
installments. In no event may the Property management fees paid to the
Advisor or its Affiliates exceed the usual and customary amounts charged
for similar services in the same geographic region.
(4) If at any time the Shares become listed on a national securities exchange
or included for quotation on Nasdaq, the Company and the Advisor will
negotiate in good faith a fee structure appropriate for an entity with a
perpetual life. A majority of the Independent Directors must approve the
new fee structure negotiated with the Advisor. In negotiating a new fee
structure, the Independent Directors shall consider all of the factors
they deem relevant, including but not limited to: (a) the size of the
advisory fee in relation to the size, composition and profitability of the
Company's portfolio; (b) the success of the Advisor in generating
opportunities that meet the investment objectives of the Company; (c) the
rates charged to other REITs and to investors other than REITs by Advisors
performing similar services; (d) additional revenues realized by the
Advisor and its Affiliates through their relationship with the Company,
including loan administration, underwriting or broker commissions,
servicing, engineering, inspection and other fees, whether paid by the
Company or by others with whom the Company does business; (e) the quality
and extent of service and advice furnished by the Advisor; (f) the
performance of the investment portfolio of the Company, including income,
conservation or appreciation of capital, frequency of problem investments
and competence in dealing with distress situations; and (g) the quality of
the portfolio of the Company in relationship to the investments generated
by the Advisor for its own account. The Board, including a majority of the
Independent Directors, may not approve a new fee structure that is, in its
judgment, more favorable to the Advisor than the current fee structure.
(5) Following the termination of the Advisory Agreement by the Company, the
Advisor shall be entitled to receive payment of any earned but unpaid
compensation and expense reimbursements, including Organization and
Offering Expenses and Subordinated Acquisition Fees, Asset Management
Fees, Performance Fees, Loan
<PAGE> 35
Refinancing Fees and Subordinated Disposition Fees accrued as of such
date. If the Advisory Agreement is terminated (i) in connection with a
Change of Control of the Company, (ii) by the Company for any reason other
than Cause (as defined in "Management--The Advisory Agreement") or (iii)
by the Advisor for Good Reason (as defined in "Management--The Advisory
Agreement"), the Advisor also shall be entitled to the payment of the
Termination Fee and any Subordinated Acquisition Fees that have not
accrued. The Advisor shall be entitled to receive all accrued but unpaid
compensation and expense reimbursements in cash within 30 days of the
effective date of the termination. All other amounts payable to the
Advisor in the event of a termination shall be evidenced by a promissory
note and shall be payable from time to time. The Termination Fee shall be
paid in 12 equal quarterly installments with interest on the unpaid
balance. Notwithstanding the preceding sentence, any amounts which may be
deemed payable at the date the obligation to pay the Termination Fee is
incurred which relate to the appreciation of the Properties (a) shall be
an amount which provides compensation to the terminated Advisor only for
that portion of the holding period for the respective Properties during
which such terminated Advisor provided services to the Company, (b) shall
not be due and payable until the Property to which such fees relate is
sold or refinanced, and (c) shall not bear interest until the Property to
which such fees relate is sold or refinanced. The Advisor shall not be
entitled to payment of the Termination Fee in the event the Advisory
Agreement is terminated because of failure of the Company and the Advisor
to establish a fee structure appropriate for a perpetual-life entity in
the event the Shares are listed on a national securities exchange or are
included for quotation on Nasdaq.
(6) In the event the Shares are listed on a national securities exchange or
included for quotation on Nasdaq, the Advisor shall be paid the
Subordinated Incentive Fee in an amount equal to 12% of the excess (the
"Excess Return") of (A) the sum (the "Hypothetical Return") of (i) the
market value of the Company, measured by taking the average closing price
or bid and asked price, as the case may be, over a period, beginning 180
days after listing of the Shares, of 30 days during which the Shares are
traded (the "Market Value") plus (ii) the total of the Dividends paid to
Shareholders from the Initial Closing Date until the date the Shares are
listed or included for quotation over (B) the sum of (i) 100% of Initial
Investor Capital and (ii) the total amount of the Dividends required to be
paid to Shareholders in order to pay the Preferred Return through the date
the Market Value is determined. The Subordinated Incentive Fee shall be
increased to 13% if the Hypothetical Return is an amount sufficient to
return to investors 100% of Initial Investor Capital plus a Cumulative
Return of 7% or more but less than 8%; 14% if the Hypothetical Return is
an amount sufficient to return 100% of Initial Investor Capital plus a
Cumulative Return of 8% or more but less than 9%; and 15% if the
Hypothetical Return is an amount sufficient to return 100% of Initial
Investor Capital plus a Cumulative Return of 9% or more. The Cumulative
Return shall be measured from the Initial Closing Date through the last
day on which the Market Value is determined. The Subordinated Incentive
Fee may only be paid if the average closing price of the Shares over any
consecutive three-month period ending within 24 months of the date of
listing is sufficient, when added to Dividends previously paid from the
Initial Closing Date through the end of such three-month period, to return
100% of Initial Investor Capital plus a 6% Cumulative Return from the
Initial Closing Date through the last day of such three-month period. The
Company shall have the option to pay such fee in the form of cash, a
promissory note or any combination thereof. In the event the Subordinated
Incentive Fee is paid to the Advisor as a result of the listing of the
Shares, no Termination Fee will be paid to the Advisor if the Advisory
Agreement is terminated after such listing.
(7) For purposes of calculating the value per share of restricted stock given
in satisfaction of the Performance Fee, if such payment in stock is
elected by the Advisor, the price per share shall be (i) the Net Asset
Value per Share as determined by the most recent appraisal performed by an
independent third party or, if an appraisal has not yet been performed,
(ii) $10 per Share. Such restricted stock will not vest for a period of
five years and is non-transferable during this vesting period.
CONFLICTS OF INTEREST
Various conflicts of interest may arise in the operation of the Company's
business. The Independent Directors will determine the manner in which the
Company will participate in any transaction, will have an obligation to function
on behalf of the Company in all situations in which a conflict of interest may
arise and will have
<PAGE> 36
a fiduciary obligation to act on behalf of the Shareholders. Possible conflicts
of interest include the following:
Receipt of Commissions, Fees and Other Compensation by the Advisor and its
Affiliates. A transaction involving the purchase, financing, lease and sale of
any Property by the Company may result in the immediate realization by the
Advisor and its Affiliates of substantial commissions, fees, compensation and
other income. Subject to the Advisory Agreement, the Advisor has discretion with
respect to all decisions relating to any such transaction, except to the extent
such transaction involves Affiliates of the Advisor or relates to the making or
purchasing of any Loans on behalf of the Company, in which case such transaction
must be approved by a majority of the Independent Directors. Potential conflicts
may arise in connection with the determination by the Advisor (on behalf of the
Company) of whether to hold or sell a Property, as such determination could
impact the timing and amount of fees payable to the Advisor. The Company may
purchase, sell or finance Properties through certain Affiliates of the Advisor
engaged in the real estate brokerage business or through other Affiliates of the
Company.
Non-Arm's-Length Agreements. Except as otherwise provided below, all
agreements and arrangements, including those relating to compensation, between
the Company and the Advisor or any of its Affiliates will not be the result of
arm's-length negotiations. Certain provisions of the bylaws of the Company (the
"Bylaws"), however, target generally potential conflicts which might otherwise
result from such agreements and arrangements by, among other things, requiring
that compensation to the Advisor and its Affiliates be approved by a majority of
the Independent Directors and that terms of future transactions with Affiliates
be no less favorable to the Company than terms which could be obtained from
unaffiliated entities providing similar services as an ongoing activity in the
same geographical location. The initial Independent Directors were selected by
the Sponsor.
Purchases and Loans from Affiliates. The Company may purchase Properties
from Affiliates of the Advisor if such purchase is consistent with the
Investment Procedures, Objectives and Policies of the Company and if certain
other conditions are met. See "Investment Procedures, Objectives and Policies."
The Company also may borrow funds from the Advisor or its Affiliates (a) if, at
any time when proceeds of the Offering are being held by the Escrow Agent, the
Company does not have sufficient funds to provide the equity portion of a
particular investment and (b) to provide the debt portion of a particular
investment if (i) the Company is unable to obtain a permanent loan at such time
or, in the judgment of the Board, it is not in the best interest of the Company
to obtain a permanent loan at the interest rates then prevailing and (ii) the
Board has reason to believe that the Company will be able to obtain a permanent
loan on or prior to the end of the loan term provided by the Advisor or such
Affiliate. See "Investment Procedures, Objectives and Policies." The Company may
borrow funds on a short-term basis from the Advisor or its Affiliates.
The Company may not invest in other REITs advised or managed, directly or
through Affiliates, by the Sponsor, its subsidiaries or William P. Carey and
with respect to which the Sponsor, its subsidiaries or William P. Carey receive
separate fees, and will not sell Properties to the Sponsor, the Advisor or any
director or any of their respective Affiliates, except in the case of an
exercise of a right of first refusal by an affiliated joint venture partner.
Every transaction entered into between the Company and the Advisor or its
Affiliates is subject to an inherent conflict of interest. The Board may
encounter conflicts of interest in enforcing rights of the Company against any
Affiliate in the event of a default by or disagreement with such Affiliate or in
invoking powers, rights or options pursuant to any agreement between the Company
and such Affiliates. Each transaction between the Company and the Advisor or any
of its Affiliates must be approved by a majority of the Independent Directors
who are otherwise disinterested in the transaction as being fair and reasonable
to the Company and on terms and conditions no less favorable to the Company than
those available from unaffiliated third parties.
Competition with the Company from Affiliates of the Advisor in the
Purchase, Sale, Lease and Operation of Properties. W.P. Carey & Co., Inc. ("W.P.
Carey & Co.") specializes in providing lease financing services to major
corporations and,
<PAGE> 37
therefore, may be in competition with the Company with respect to Properties,
potential purchasers, sellers and lessees of Properties, and mortgage financing
for Properties. W.P. Carey & Co., its subsidiaries and William P. Carey
currently manage or advise public and private real estate investment
partnerships and REITs whose investment and rate of return objectives are
substantially similar to those of the Company. In addition, they expect to
manage or advise, directly or through Affiliates, additional REITs, public and
private investment partnerships and other investment entities.
The CPA(R) Programs have investment policies similar to those of the
Company and, therefore, may be in competition with the Company for Properties,
potential purchasers, sellers and lessees of Properties, and mortgage financing
for Properties. Affiliates of the Advisor intend to offer interests in other
REITs, partnerships or public or private investment entities, some of which may
have similar investment objectives as the Company and may be in a position to
acquire Properties at the same time as the Company. Affiliates of the Advisor
may have an ownership interest in such other REITS.
The Advisor will use best efforts to present suitable investments to the
Company consistent with the investment Procedures, Objectives and Policies of
the Company. However, the Advisor is not restricted from advising or managing
other entities, any of which may have investment objectives similar to those of
the Company. If the Advisor or any of its Affiliates is presented with a
potential investment in a Property which might be made by more than one
investment entity which it advises or manages, the decision as to the
suitability of such Property for investment by a particular entity will be based
upon a review of the investment portfolio of each such entity and upon factors
such as cash flow from the Property, the effect of the acquisition thereof on
the diversification of each entity's portfolio, rental payments during any
renewal period, the estimated income tax effects of the purchase on each entity,
the amount of equity required to make the investment, the policies of each
entity relating to leverage, the funds of each entity available for investment,
the length of time such funds have been available for investment and the manner
in which the potential investment can be structured by each entity.
Consideration will be given to joint ownership (e.g., tenancy-in-common or joint
venture arrangement) of a particular Property determined to be suitable for more
than one investment entity in order to achieve diversification of each entity's
portfolio and efficient completion of an entity's portfolio. In such joint
ownership, the investment of each entity will be on substantially similar terms
and conditions, compensation to the organizer of each investment entity will be
similar and each investment entity will have a right of first refusal to
purchase the interest of the other if a sale of that interest is contemplated.
See "Risk Factors--Real Estate Investment Risks--Risks of Joint Ventures." To
the extent that a particular Property might be determined to be suitable for
more than one investment entity, priority generally will be given to the
investment entity having uninvested funds for the longest period of time. It is
the responsibility of the directors (including the Independent Directors) to
insure that the method used to allocate transactions is applied fairly to the
Company.
Adjacent Properties. Although it is not expected to occur, if the Advisor
or any of its Affiliates acquires Properties that are adjacent to those of the
Company, the value of such Properties may be enhanced by the interests of the
Company. It also is possible that such Properties could be in competition with
those of the Company for prospective tenants.
Competition with the Company from Affiliates of the Advisor for the Time
and Services of Officers and Directors. The Company will depend on the Board and
the Advisor for the operation of the Company and for the acquisition, operation
and disposition of its investments. Most officers of Carey Fiduciary Advisors,
Inc. ("CFA"), the general partner of the Advisor, are also officers, directors
and/or employees of W.P. Carey & Co. The general partners of the CPA(R) Programs
are Affiliates of the Advisor, and CFA is the general partner of the Advisor to
CPA(R):10, CIP(TM) and CPA(R):12. The Advisor serves in the same advisory
capacity for CPA(R):10, CIP(TM) and CPA(R):12. The Advisor has entered into the
Advisory Agreement with the Company pursuant to which it will perform certain
functions relating to the investment of the Company's funds and the day-to-day
management of the Company. See "Management--The Advisory Agreement." Certain
officers of Affiliates of the Advisor will be performing
<PAGE> 38
similar services for the CPA(R) Programs and may perform such services for
REITs, partnerships or other investment entities offered in the future by
Affiliates of the Advisor. CFA, the Advisor and their Affiliates will devote
such time to the affairs of the Company as they, within their sole discretion,
exercised in good faith, determine to be necessary for the benefit of the
Company and the Shareholders. See "Management." Neither the Sales Agent, the
Advisor nor any of their Affiliates are restricted in any manner as a result of
their connection with the Company and the Offering from acting as general
partner, advisor, underwriter, selling agent or broker-dealer in public or
private offerings of securities in REITs, real estate partnerships or other
entities which may have objectives similar to those of the Company and which are
sponsored by Affiliated or non-Affiliated Persons.
Affiliated Sales Agent. The Sales Agent, a subsidiary of W.P. Carey & Co.
and an Affiliate of the Advisor, will receive a selling commission for each
Share sold by it (except for sales made to the Advisor, its employees or its
Affiliates) and Annual Servicing Fees with respect to Shares held by its
clients, and will receive reimbursement for certain expenses. See "The
Offering."
Common Counsel. Reed Smith Shaw & McClay, counsel for the Company in
connection with the Offering, is also counsel to the Advisor, the Sales Agent
and various Affiliates, including the CPA(R) Programs and W.P. Carey & Co. In
the event any legal controversy arises in which the interests of the Company
appear to be in conflict with those of the Advisor, the Sales Agent or their
Affiliates, other counsel will be retained for one or more parties. Michael B.
Pollack, Senior Vice President and Secretary of the Company, is a partner in
Reed Smith Shaw & McClay. See "Management" and "Legal Opinions."
Advisor's and Selected Dealers' Ownership Interest in the Company. For the
purpose of providing the initial capitalization of the Company, the Advisor has
acquired 20,000 Shares, constituting 100% of the Shares prior to the Offering.
If the Minimum Offering is achieved, the Advisor will own approximately [1.3%]
of the Shares, if the maximum number of Shares are sold in the Offering, the
Advisor will own approximately [0.07%] of the Shares. The Advisor and its
Affiliates and employees, and the Selected Dealers and their employees are not
restricted from acquiring Shares and may purchase an unlimited number of Shares
on the same terms and conditions as the Shareholders except that such purchases
shall be net of commissions. Any additional purchases (other than the 20,000
Shares currently owned by the Advisor) will be included for the purpose of
achieving the Minimum Offering, provided, however, that only 75,000 Shares
purchased by the Advisor will be included for such purpose. In addition, if the
Advisor purchases additional Shares for investment, the Advisor could own a
percentage of Shares greater than such amounts. Any Shares owned by the Advisor
or the Affiliates of the Advisor can be expected to be voted in the Advisor's
interest in matters requiring the approval of the holders of a majority of the
Shares and any other matter submitted to a vote of the Shareholders. There are
instances in which Shares held by the Advisor, the Company's directors or their
Affiliates will not be permitted to vote. See "Management" and "Shareholders"
sections of this Prospectus for further details.
<PAGE> 39
The following chart shows the relationship among the Advisor, its general
partner, its Affiliates and the Company. See "Management."
WILLIAM P. CAREY
---------------------------------
| | |
| | |
| | |
| 100% 100%
| | |
| | |
| W.P. CAREY CAREY FIDUCIARY
| & CO., INC. ADVISORS, INC.
| | |
| | |
| | |
20.1% 79.9% Sole
| | General
| | Partner
| | |
| | |
|______CAREY FINANCIAL CAREY PROPERTY
CORPORATION ADVISORS
|
|
|
100% (initially)
|
|
|
CORPORATE PROPERTY
ASSOCIATES 14 INCORPORATED
<PAGE> 40
PRIOR OFFERINGS BY AFFILIATES
THE INFORMATION IN THIS SECTION AND THE TABLES REFERENCED HEREIN SHOULD
NOT BE CONSIDERED AS INDICATIVE OF THE POSSIBLE OPERATIONS OF THE COMPANY. IN
ADDITION, THE INCLUSION OF THE TABLES REFERENCED HEREIN AS EXHIBITS TO THIS
PROSPECTUS DOES NOT IMPLY OR INDICATE IN ANY MANNER THAT THE COMPANY WILL MAKE
INVESTMENTS COMPARABLE TO THOSE REFLECTED IN SUCH TABLES WITH RESPECT TO CASH
FLOW, TAXABLE INCOME OR OTHER FACTORS, NOR DOES IT IMPLY OR INDICATE THAT
PURCHASERS OF SHARES WILL EXPERIENCE RETURNS COMPARABLE TO THOSE EXPERIENCED BY
INVESTORS IN THE REAL ESTATE PROGRAMS REFERRED TO IN SUCH TABLES. SHAREHOLDERS
WHO PURCHASE SHARES IN THE COMPANY WILL NOT HAVE ANY OWNERSHIP INTEREST IN ANY
OF SUCH REAL ESTATE PROGRAMS (UNLESS THEY ARE ALSO INVESTORS IN THOSE REAL
ESTATE PROGRAMS).
Affiliates of the Advisor have organized Corporate Property Associates, a
California limited partnership ("CPA(R):1"), Corporate Property Associates 2, a
California limited partnership ("CPA(R):2"), Corporate Property Associates 3, a
California limited partnership ("CPA(R):3"), Corporate Property Associates 4, a
California limited partnership ("CPA(R):4"), Corporate Property Associates 5, a
California limited partnership ("CPA(R):5"), Corporate Property Associates 6--a
California limited partnership ("CPA(R):6"), Corporate Property Associates 7,--a
California limited partnership ("CPA(R):7"), Corporate Property Associates 8,
L.P., a Delaware limited partnership ("CPA(R):8"), Corporate Property Associates
9, L.P., a Delaware limited partnership ("CPA(R):9"), Corporate Property
Associates 10 Incorporated, a Maryland corporation ("CPA(R):10"), Carey
Institutional Properties Incorporated; a Maryland corporation ("CIP(TM)"), and
Corporate Property Associates 12 Incorporated, a Maryland corporation
("CPA(R):12") (collectively, the "CPA(R) Programs") during the past 18 years and
continue to serve as their general partners or advisor. The primary investment
objectives of the CPA(R) Programs are similar to those of the Company.
AS OF DECEMBER 31, 1996, THE CPA(R) PROGRAMS HAD RAISED A TOTAL OF
APPROXIMATELY $771,040,873 FROM APPROXIMATELY 46,900 INVESTORS. THROUGH THAT
DATE, THE CPA(R) PROGRAMS ORIGINALLY HAD PURCHASED A TOTAL OF 386 PROPERTIES, AT
AN AGGREGATE PURCHASE PRICE OF APPROXIMATELY $1,408,898,000 (INCLUDING
CAPITALIZED COSTS OF APPROXIMATELY $30,741,000), WHICH CONSISTS OF EQUITY
INVESTMENTS OF APPROXIMATELY $639,549,000 AND MORTGAGE FINANCING OF
APPROXIMATELY $769,349,000. ALL OF THE PROPERTIES PURCHASED ARE INDUSTRIAL OR
COMMERCIAL PROPERTIES. OF THE PROPERTIES OWNED (ON THE BASIS OF PURCHASE PRICE,
INCLUDING ADDITIONAL CAPITALIZED COSTS) AS OF DECEMBER 31, 1996: 29.08% ARE
MANUFACTURING PLANTS; 25.37% ARE OFFICE BUILDINGS AND RESEARCH FACILITIES;
18.96% ARE RETAIL STORES; 17.00% ARE DISTRIBUTION CENTERS AND WAREHOUSES AND
9.60% ARE HOTELS AND RESTAURANTS. OF THE PROPERTIES CURRENTLY OWNED BY THE
CPA(R) PROGRAMS: 94 ARE LOCATED IN THE SOUTHWEST; 84 ARE LOCATED IN THE MIDWEST;
67 ARE LOCATED IN THE SOUTHEAST; 39 ARE LOCATED IN THE PACIFIC COAST STATES; 32
ARE LOCATED IN THE NORTHEAST; AND 6 ARE LOCATED IN THE MOUNTAIN STATES.
WHEN ACQUIRED BY THE CPA(R) PROGRAMS, APPROXIMATELY 21.62% OF THE
PROPERTIES HAD NEWLY CONSTRUCTED BUILDINGS AND APPROXIMATELY 78.38% HAD
PREVIOUSLY CONSTRUCTED BUILDINGS (PERCENTAGE DETERMINED ON THE BASIS OF PURCHASE
PRICE, INCLUDING ADDITIONAL CAPITALIZED COSTS). SUBSTANTIALLY ALL OF THE
PROPERTIES WERE FULLY CONSTRUCTED WHEN PURCHASED BY THE CPA(R) PROGRAMS. WHEN
PURCHASED BY THE CPA(R) PROGRAMS, ALL OF THE PROPERTIES WERE SINGLE-TENANT
COMMERCIAL, INDUSTRIAL AND GOVERNMENTAL REAL PROPERTY (OR INTERESTS THEREIN).
THE CPA(R) PROGRAMS HAVE MADE NO LOANS OR PARTICIPATING LOANS AND HAVE ENTERED
INTO 30 JOINT VENTURES WITH AFFILIATED PROGRAMS (23% OF ALL TRANSACTIONS ENTERED
INTO BY THE CPA(R) PROGRAMS). MORE DETAILED INFORMATION WITH RESPECT TO
INVESTMENTS BY THE CPA(R) PROGRAMS IS SEPARATELY PRESENTED IN TABULAR FORM FOR
THE CPA(R) PROGRAMS IN EXHIBIT 99 TO PART II OF THE REGISTRATION STATEMENT. UPON
REQUEST, THE COMPANY WILL PROVIDE, AT NO FEE, COPIES OF SUCH EXHIBIT.
THE CPA(R) PROGRAMS HAVE HAD SIMILAR LEVERAGE GOALS TO THAT OF THE COMPANY
(60% OF TOTAL PROPERTY COST OF ALL PROPERTIES PURCHASED) BUT ON AVERAGE HAVE
ACHIEVED LEVERAGE OF APPROXIMATELY 55%. FOR FULLY INVESTED CPA(R) PROGRAMS, THE
APPROXIMATE PERCENTAGE OF LEVERAGE ACHIEVED IS AS FOLLOWS: CPA(R):1--59%;
CPA(R):2--56%; CPA(R):3--53%; CPA(R):4--54%; CPA(R):5 -- 57%; CPA(R):6--58%;
CPA(R):7--54%; CPA(R):8--54%; CPA(R):9--60%; CPA(R):10--63%; AND CIP(TM)--56%;
CPA(R):12--40%.
<PAGE> 41
61 COMPLETE PROPERTIES AND UNIMPROVED PORTIONS OF NINE OTHER PROPERTIES
PURCHASED BY THE CPA(R) PROGRAMS HAD BEEN SOLD AS OF DECEMBER 31, 1996. ALL BUT
23 OF SUCH PROPERTIES WERE SOLD FOR CONSIDERATION EQUAL TO OR IN EXCESS OF THE
APPLICABLE CPA(R) PROGRAM'S TOTAL INVESTMENT IN SUCH PROPERTIES, INCLUDING
ACQUISITION COSTS. THE PROPERTIES SOLD WERE ORIGINALLY PURCHASED FOR A TOTAL
PURCHASE PRICE OF APPROXIMATELY $195,989,000 AND AN INITIAL EQUITY INVESTMENT OF
APPROXIMATELY $85,370,000. APPROXIMATELY $205,667,000 WAS RECEIVED FROM THE SALE
OF THESE PROPERTIES (PLUS APPROXIMATELY $1,906,000 IN ADDITIONAL CONSIDERATION
RECEIVED IN CONNECTION WITH SUCH SALES) WHILE NET PROCEEDS RECEIVED (AFTER
EXPENSES AND THE REPAYMENT OF MORTGAGES) WERE APPROXIMATELY $118,340,000. NO
PURCHASE MONEY OBLIGATIONS WERE RECEIVED BY THE COMPANY IN CONNECTION WITH THE
SALE OF SUCH PROPERTIES. MORE DETAILED INFORMATION WITH RESPECT TO THE
PROPERTIES SOLD BY THE CPA(R) PROGRAMS BETWEEN JANUARY 1, 1992 AND DECEMBER 31,
1996 IS PRESENTED IN TABULAR FORM IN TABLE V (SALES OR DISPOSITIONS OF
PROPERTIES) IN EXHIBIT A TO THIS PROSPECTUS.
THE CPA(R) PROGRAMS HAVE ADOPTED INVESTMENT POLICIES WHICH ARE DESIGNED TO
REDUCE THE RISK OF OCCURRENCE OF ADVERSE BUSINESS DEVELOPMENTS AS WELL AS TO
MITIGATE THE EFFECTS OF ANY ADVERSE BUSINESS DEVELOPMENT. IN SELECTING
INVESTMENTS, FACTORS SUCH AS THE CREDITWORTHINESS OF A TENANT, THE CONDITION AND
USE OF THE PROPERTY, AND GEOGRAPHIC AND INDUSTRY DIVERSIFICATION ARE CONSIDERED
IN ORDER TO REDUCE THE RISK OF ADVERSE BUSINESS DEVELOPMENTS TO THE CPA(R)
PROGRAMS. AS PART OF THE PROPERTY SELECTION PROCESS, THE CPA(R) PROGRAMS OFTEN
ATTEMPT TO SELECT PROPERTIES WHICH ARE NECESSARY TO THE OPERATIONS OF A TENANT
SO THAT, IN THE EVENT THAT SUCH TENANT UNDERGOES A REORGANIZATION DUE TO
BANKRUPTCY, THE LEASE PROVISIONS ARE LESS LIKELY TO BE MODIFIED. IN ADDITION, IN
ORDER TO MINIMIZE THEIR EXPOSURE, THE CPA(R) PROGRAMS ALSO ATTEMPT TO UTILIZE
NONRECOURSE MORTGAGE FINANCING.
CERTAIN CPA(R) PROGRAMS HAVE EXPERIENCED ADVERSE BUSINESS DEVELOPMENTS
WHICH HAVE INCLUDED THE FILING BY CERTAIN TENANTS FOR PROTECTION FROM CREDITORS
UNDER THE BANKRUPTCY CODE, THE VACATING OF FACILITIES BY A TENANT AT THE END OF
AN INITIAL LEASE TERM, AND LITIGATION WITH TENANTS INVOLVING LEASE DEFAULTS AND
SALES OF PROPERTIES. THESE DEVELOPMENTS HAVE CAUSED A REDUCTION IN CASH FLOW
AND/OR AN INCREASE IN ADMINISTRATIVE EXPENSES OF THE AFFECTED CPA(R) PROGRAMS
FOR CERTAIN PERIODS OF TIME, BUT, WITH THREE EXCEPTIONS DESCRIBED BELOW, HAVE
NOT CAUSED THE AFFECTED CPA(R) PROGRAMS TO REDUCE THEIR RATE OF DISTRIBUTIONS TO
PARTNERS. SEE TABLE III (OPERATING RESULTS OF PRIOR PROGRAMS) IN EXHIBIT A TO
THIS PROSPECTUS FOR OVERALL RESULTS OF OPERATIONS OF THE AFFECTED CPA(R)
PROGRAMS.
THE GENERAL PARTNERS OF THE AFFECTED CPA(R) PROGRAMS HAVE UNDERTAKEN A
NUMBER OF MEASURES TO MITIGATE THE ADVERSE EFFECTS OF CERTAIN ADVERSE BUSINESS
DEVELOPMENTS, SUCH AS RE-LEASING PROPERTIES VACATED BY INITIAL TENANTS;
REFINANCING MORTGAGE LOANS AND RESTRUCTURING TERMS OF EXISTING MORTGAGE LOANS;
RESTRUCTURING LEASE TERMS; SELLING PROPERTIES; AND, IN THE CASE OF LITIGATION,
VIGOROUSLY DEFENDING THE INTERESTS OF AFFECTED CPA(R) PROGRAMS AND, WHERE
APPROPRIATE, SETTLING LITIGATION. OF THE APPROXIMATELY 150 TENANTS WITH WHICH
THE CPA(R) PROGRAMS HAVE ENTERED INTO LEASES, 15 HAVE SUBSEQUENTLY SOUGHT
PROTECTION FROM CREDITORS IN BANKRUPTCY. PROPERTIES FORMERLY LEASED TO NINE OF
THESE TENANTS HAVE BEEN RE-LEASED OR SOLD. FOUR OTHER TENANTS HAVE AFFIRMED
THEIR LEASES AND THE LEASES OF THE REMAINING TWO TENANTS ARE CURRENTLY THE
SUBJECT OF NEGOTIATIONS DESCRIBED BELOW.
MOST CPA(R) PROGRAMS IN WHICH ADVERSE DEVELOPMENTS HAVE OCCURRED HAVE BEEN
ABLE TO MEET THEIR OBLIGATIONS AND MAINTAIN DISTRIBUTIONS TO THEIR PARTNERS,
PRIMARILY AS A RESULT OF THE EFFORTS OF THE GENERAL PARTNERS DESCRIBED ABOVE AND
BELOW AND THE EXISTENCE OF A WORKING CAPITAL RESERVE ESTABLISHED AT THE
INCEPTION OF EACH CPA(R) PROGRAM. ALTHOUGH SEVERAL CPA(R) PROGRAMS HAVE
EXPERIENCED THE TYPES OF ADVERSE BUSINESS DEVELOPMENTS DESCRIBED ABOVE, ONLY
FOUR CPA(R) PROGRAMS, CPA(R):1, CPA(R):5, CPA(R):7 AND CPA(R):10 HAVE HAD TO
REDUCE THE RATE OF DISTRIBUTIONS TO THEIR PARTNERS AS A RESULT OF ADVERSE
DEVELOPMENTS. THE ADVERSE DEVELOPMENTS WHICH WERE PRIMARILY RESPONSIBLE FOR
CAUSING THESE REDUCTIONS IN THE RATE OF DISTRIBUTIONS ARE, IN THE CASE OF
CPA(R):1, THE BANKRUPTCY FILING BY STORAGE TECHNOLOGY, IN THE CASE OF CPA(R):5
THE SALE OF TWO PROPERTIES AND IN THE CASE OF CPA(R):7, THE BANKRUPTCY FILINGS
OF YELLOW FRONT STORES, INC. AND NV RYAN L.P. THE REDUCTIONS IN DISTRIBUTION
RATES IN EACH OF CPA(R):1, CPA(R):5 AND CPA(R):7 WERE FOLLOWED BY INCREASES IN
THE DISTRIBUTION RATES. THE DISTRIBUTION RATE OF CPA(R):7 NOW EXCEEDS THE RATE
IN EFFECT BEFORE THE REDUCTIONS WHILE THE DISTRIBUTION RATE OF CPA(R):1 AND
CPA(R):5 HAVE NOT REACHED THE RATE IN EFFECT BEFORE THE REDUCTION.
<PAGE> 42
MOST OF THE ADVERSE DEVELOPMENTS WHICH HAVE OCCURRED HAVE BEEN RESOLVED.
THESE INCLUDE THE FILINGS FOR PROTECTION FROM CREDITORS UNDER THE BANKRUPTCY
CODE BY THE FOLLOWING TENANTS OF THE FOLLOWING CPA(R) PROGRAMS: SAXON
INDUSTRIES, INC. (CPA(R):1 AND CPA(R):2); STORAGE TECHNOLOGY CORPORATION
(CPA(R):1); THE LESLIE FAY COMPANY (CPA(R):3); KNUDSEN CORPORATION (CPA(R):3 AND
CPA(R):4); GULF CONSOLIDATED SERVICES, INC. (CPA(R):4); THREE GUYS INC. LTD.
(CPA(R):4); WILLIAMS HAND TOOL, INC. (CPA(R):5); AMERICAN TRIM PRODUCTS INC.
(CPA(R):5); YELLOW FRONT STORES, INC. (CPA(R):7); NVRYAN L.P. (CPA(R):7,
CPA(R):8 AND CPA(R):9); HARVEST FOOD, INC. (CPA(R):10 AND CIP(TM); AND
SPORTSTOWN, INC. (CIP(TM)). THE MANAGEMENT OF THESE PROGRAMS HAVE ADDRESSED
THESE BANKRUPTCIES PRIMARILY BY RE-LEASING THE PROPERTIES TO NEW TENANTS OR BY
RESTRUCTURING THE ORIGINAL LEASES AT A REDUCED RENTAL. CERTAIN OF THE PROPERTIES
HAVE BEEN SOLD AT A LOSS OR TRANSFERRED IN EXCHANGE FOR A RELEASE OF THE RELATED
MORTGAGE DEBT. IN THE CASE OF THE BANKRUPTCY FILING BY SAXON INDUSTRIES, INC.,
HOWEVER, ITS TWO LEASES WERE AFFIRMED IN BANKRUPTCY. IN THE CASE OF THE
BANKRUPTCY FILING BY KNUDSEN CORPORATION, SEVEN OF THE EIGHT PROPERTIES WHICH
HAD BEEN LEASED TO KNUDSEN CORPORATION WERE SOLD AT A GAIN, GENERATING MORE THAN
ENOUGH CASH TO RETIRE THE ENTIRE MORTGAGE DEBT ON ALL EIGHT PROPERTIES. THE
REMAINING PROPERTY WAS LEASED TO A NEW TENANT. IN ADDITION, AS A RESULT OF
VIGOROUS LITIGATION EFFORTS PURSUED BY THE GENERAL PARTNERS, CERTAIN PROGRAMS
HAVE BEEN AWARDED SUBSTANTIAL AWARDS FROM BANKRUPTCY SETTLEMENTS. CPA(R):1
RECEIVED A SETTLEMENT OF CASH AND SECURITIES WITH A MARKET VALUE OF
APPROXIMATELY $2.5 MILLION IN CONNECTION WITH THE STORAGE TECHNOLOGY CORPORATION
BANKRUPTCY. CPA(R):7 AND CPA(R):8 WERE PAID A RESTRUCTURING FEE OF $2.6 MILLION
IN EXCHANGE FOR AMENDING CERTAIN LEASES AND CPA(R):9 RECEIVED APPROXIMATELY
$456,000, IN EACH CASE IN CONNECTION WITH SETTLEMENT OF BANKRUPTCY CLAIMS
AGAINST NVRYAN L.P.
IN MAY 1995, CPA(R):3 REACHED A SETTLEMENT RESOLVING ALL OUTSTANDING
ISSUES IN ITS DISPUTE WITH LESLIE FAY AND NATIONAL UNION (THE "SETTLEMENT
AGREEMENT"). IN JUNE, 1995, THE SETTLEMENT AGREEMENT WAS APPROVED BY THE
BANKRUPTCY COURT. AS A RESULT OF THIS SETTLEMENT, THE PARTNERSHIP RECEIVED A
TOTAL OF $18,839,749 FOR THE TERMINATION OF LESLIE FAY'S INTEREST IN THE
PROPERTY AND $2,000,000 IN EXCHANGE FOR THE SALE OF THE PROPERTY. THE
PARTNERSHIP MADE A SPECIAL DISTRIBUTION OF $50.00 PER UNIT IN JULY, 1992 AND
$120 IN OCTOBER 1995 AND HAS NOT YET DETERMINED HOW IT WILL USE THE REMAINING
PROCEEDS OF THE SETTLEMENT WITH LESLIE FAY AND NATIONAL UNION AND THE SALE OF
THE PROPERTY.
<PAGE> 43
NEW VALLEY HAS AGREED TO AFFIRM TWO OF ITS THREE LEASES WITH CPA(R):2 AND
CPA(R):3. NEW VALLEY CEASED PAYING RENT ON THE DISAFFIRMED LEASE, FOR A PROPERTY
IN MOORESTOWN, N.J., IN AUGUST 1991. RENT INCOME ON THE DISAFFIRMED LEASE
REPRESENTED APPROXIMATELY 8.73% AND 9.06% OF THE LEASE REVENUES FOR CPA(R):2 AND
CPA(R):3, RESPECTIVELY IN 1994. A BANKRUPTCY SETTLEMENT PAYMENT IS EXPECTED FROM
NEW VALLEY IN CONNECTION WITH TERMINATION OF THE MOORESTOWN LEASE.]
[HARVEST BANKRUPTCY]
Additional information concerning the CPA(R) Programs is set forth in
tabular form in Exhibit A to this Prospectus. See "Experience in Raising and
Investing Funds" in Table I; "Compensation to Sponsor" in Table II; "Operating
Results of Prior Programs" in Table III; and "Sales or Dispositions of
Properties" in Table V. In addition, upon request, the Company will provide, at
no fee, the most recent annual report (on Form 10-K) filed by any of the CPA(R)
Programs and, at a reasonable fee, the exhibits to such annual report.
<PAGE> 44
MANAGEMENT
The Company will operate under the direction of the Board, the members of
which are accountable to the Company and its Shareholders as fiduciaries. A
majority of the Independent Directors and a majority of the directors have
reviewed and ratified the Articles of Incorporation and have adopted the Bylaws.
The Board will be responsible for the management and control of the affairs of
the Company; however, the Board will retain the Advisor to manage the Company's
day-to-day affairs and the acquisition and disposition of investments, subject
to the Board's supervision. The Company currently has [FIVE] directors; it must
have at least three and may have no more than nine directors.
A majority of the Board must be comprised of Independent Directors, except
for a period of 90 days after the death, removal or resignation of an
Independent Director. An Independent Director may not, directly or indirectly
(including through a member of his immediate family), own any interest in, be
employed by, have any material business or professional relationship with, or
serve as an officer or director of, the Sponsor, the Advisor or any of their
Affiliates, except that an Independent Director may serve as a director, officer
or trustee for not more than [two] other REITs organized by the Sponsor or
advised by the Advisor. Except to carry out the responsibilities of director, an
Independent Director may not perform material services for the Company. [TWO OF
THE DIRECTORS ARE AFFILIATES OF THE ADVISOR AND THREE ARE INDEPENDENT
DIRECTORS.] All of the initial directors were recommended by the Sponsor.
Proposed transactions are often discussed before being brought to a final Board
of Director's vote. During these discussions, Independent Directors often offer
ideas for ways in which deals can be changed to make them acceptable and these
suggestions are taken into consideration on structuring transactions. No
Independent Director of any prior CPA(R) program has ever voted against a
property acquisition recommendation on a final vote. Each director will hold
office until the next annual meeting of Shareholders or until his successor has
been duly elected and qualified. Although the number of directors may be
increased or decreased as discussed above, a decrease shall not have the effect
of shortening the term of any incumbent director.
Any director may resign at any time and may be removed with or without
cause by the Shareholders upon the affirmative vote of at least a majority of
all the votes entitled to be cast at a meeting called for the purpose of such
proposed removal. The notice of such meeting shall indicate that the purpose, or
one of the purposes, of such meeting is to determine if the director shall be
removed.
Unless filled by a vote of the stockholders as permitted by Maryland law,
a vacancy created by an increase in the number of directors or the death,
resignation, removal, adjudicated incompetence or other incapacity of a director
shall be filled by a vote of a majority of the remaining directors and, (a) in
the case of a director who is not an Independent Director (an "Affiliated
Director"), by a vote of a majority of the remaining Affiliated Directors, or
(b) in the case of an Independent Director, by a vote of a majority of the
remaining Independent Directors (unless, in the case of clause (a) or (b), there
are no remaining Affiliated Directors or Independent Directors, as the case may
be, to so fill a vacancy, in which case a majority vote of the remaining
directors shall be sufficient). If at any time there shall be no Independent or
Affiliated Directors in office, successor directors shall be elected by the
Shareholders. Each director will be bound by the Articles of Incorporation and
Bylaws.
The directors are not required to devote all of their time to the Company
and are only required to devote such of their time to the affairs of the Company
as their duties require. The directors will meet quarterly or more frequently if
necessary. It is not expected that the directors will be required to devote a
substantial portion of their time to discharge their duties as directors.
Consequently, in the exercise of their fiduciary responsibilities, the directors
will be relying heavily on the Advisor. The Board is empowered to fix the
compensation of all officers that it selects and may pay remuneration to
directors for services rendered to the Company in any other capacity. Initially,
the Company intends to pay to each Independent Director a quarterly fee of
$2,750 and a meeting fee of $1,000 per meeting. It is estimated that the
aggregate compensation payable to the Independent Directors as a
<PAGE> 45
group for the first full fiscal year of the Company will be approximately
[$45,000]. The Company will not pay any compensation to the officers or
directors of the Company who also serve as officers or directors of the Advisor.
The general investment and borrowing policies of the Company are set forth
in this Prospectus. The directors shall establish further written policies on
investments and borrowings and shall monitor the administrative procedures,
investment operations and performance of the Company and the Advisor to assure
that such policies are in the best interest of the Shareholders and are
fulfilled. Until modified by the directors, the Company shall follow the
policies on investments and borrowings set forth in this Prospectus.
The Board is also responsible for reviewing the fees and expenses of the
Company on at least an annual basis and with sufficient frequency to determine
that the expenses incurred are in the best interests of the Shareholders. In
addition, a majority of the Independent Directors and a majority of directors
not otherwise interested in the transaction must approve all transactions with
the Advisor or its Affiliates. The Independent Directors also will be
responsible for reviewing the performance of the Advisor and determining that
compensation to be paid to the Advisor is reasonable in relation to the nature
and quality of services to be performed and that the provisions of the Advisory
Agreement are being carried out. Specifically, the Independent Directors will
consider factors such as the amount of the fee paid to the Advisor in relation
to the size, composition and performance of the Company's investments, the
success of the Advisor in generating appropriate investment opportunities, rates
charged to other REITs and other investors by advisers performing similar
services, additional revenues realized by the Advisor and its Affiliates through
their relationship with the Company, whether paid by the Company or by others
with whom the Company does business, the quality and extent of service and
advice furnished by the Advisor, the performance of the investment portfolio of
the Company and the quality of the portfolio of the Company relative to the
investments generated by the Advisor for its own account.
Neither the directors nor their Affiliates will vote or consent to the
voting of Shares they now own or hereafter acquire on matters submitted to the
shareholders regarding either (i) the removal of the Advisor, any director or
any Affiliate; or (ii) any transaction between the Company and the Advisor, any
director or any Affiliate.
<PAGE> 46
DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY
The directors and executive officers of the Company are as follows:
<TABLE>
<CAPTION>
NAME OFFICE
---- ------
<S> <C>
William P. Carey Chairman of the Board and Director
George E. Stoddard Senior Executive Vice President and Director
Barclay G. Jones III Executive Vice President and Director
William Ruder Director*
Charles Townsend Director*
Warren Wintrub Director*
Thomas Zacharias Director*
Claude Fernandez Executive Vice President and Chief Administration Officer
Gordon F. Dugan Executive Vice President
H. Augustus Carey Senior Vice President--Marketing
Anthony S. Mohl Senior Vice President--Property Management
John J. Park Senior Vice President--Finance and Treasurer
Michael B. Pollack Senior Vice President--Secretary
Debra E. Bigler First Vice President and Regional Director
Ted G. Lagreid First Vice President and Regional Director
Michael D. Roberts First Vice President and Controller
</TABLE>
*Independent Director
The following is a biographical summary of the experience of the directors
and executive officers of the Company.
William P. Carey, age 66, Chairman, has been active in lease financing
since 1959 and a specialist in net leasing of corporate real estate property
since 1964. Before founding W.P. Carey & Co., Inc. ("W.P. Carey") in 1973, he
served as Chairman of the Executive Committee of Hubbard, Westervelt & Mottelay
(now Merrill Lynch Hubbard), head of Real Estate and Equipment Financing at Loeb
Rhoades & Co. (now Lehman Brothers), head of Real Estate and Private Placements,
Director of Corporate Finance and Vice Chairman of the Investment Banking Board
of duPont Glore Forgan Inc. A graduate of the University of Pennsylvania's
Wharton School of Finance, Mr. Carey is a Governor of the National Association
of Real Estate Investment Trusts (NAREIT). He also serves on the boards of The
Johns Hopkins University and its medical school, Templeton College of Oxford
University, The James A. Baker III Institute for Public Policy at Rice
University and other educational and philanthropic institutions. He founded the
Visiting Committee to the Economics Department of the University of Pennsylvania
and co-founded with Dr. Lawrence R. Klein the Economics Research Institute at
that university. Mr. Carey also serves as Chairman of the Board and Chief
Executive Officer of CPA(R):10, CIP(TM) and CPA(R):12. Mr. Carey is an uncle of
H. Augustus Carey.
George E. Stoddard, age 79, was until 1979 officer-in-charge of the Direct
Placement Department of The Equitable Life Assurance Society of the United
States ("Equitable"), with responsibility for all activities related to
Equitable's portfolio of corporate investments acquired through direct
negotiation. Mr. Stoddard was associated with Equitable for over 30 years. He
holds an A.B. degree from Brigham Young University, an M.B.A. from Harvard
Business School and an LL.B. from Fordham University Law School. Mr. Stoddard
also serves as a Managing Director of W.P. Carey & Co.
Barclay G. Jones III, age 36, is an Executive Vice President and Managing
Director of W.P. Carey & Co. Mr. Jones joined W.P. Carey & Co. as Assistant to
the President in July 1982 after his graduation from the Wharton School of the
University of Pennsylvania where he majored in Finance and Economics. Mr. Jones
has served as a director of W.P. Carey & Co. since April 1992 and is a director
of the Wharton School Club of New York.
William Ruder, age 74, is Chairman of the Board of William Ruder
Incorporated, a consulting firm founded in 1981. From 1948 to 1981, Mr. Ruder
was in partnership with David Finn at the firm of Ruder & Finn, an international
public relations company. He is a former Assistant Secretary of Commerce of the
United States and is on the board of directors of the United Nations Association
of the United States of America, Junior Achievement and the Council of Economic
Priorities. He is a member of the Board of Overseers of the Wharton School of
the University of Pennsylvania and has also served as a consultant to the
Communications Advisory Board to the White House Press Secretary, the Committee
for Economic Development and the Office of Overseas Schools for the U.S. State
Department. Mr. Ruder is a Tobe Lecturer at Harvard Graduate School of Business
and is associated with several other businesses, civic and cultural
organizations. He received a B.S.S. degree from the City College of New York.
Mr. Ruder served as a director of W.P. Carey & Co. from 1987 to 1990.
Charles C. Townsend, Jr., age 68, currently is an Advisory Director of
Morgan Stanley & Co., having held such position since 1979. Mr. Townsend was a
Partner and a Managing Director of Morgan Stanley & Co. from 1963 to 1978 and
served as Chairman of Morgan Stanley Realty Corporation from 1977 to 1982. Mr.
Townsend holds a B.S.E.E. from Princeton University and an M.B.A. from Harvard
University. Mr. Townsend is a director of CPA(R):10, CIP(R) and CPA(R):12.
Warren G. Wintrub, age 62, retired in 1992 from Coopers & Lybrand after 35
years. Mr. Wintrub was elected a partner in Coopers & Lybrand in 1963 and
specialized in tax matters and served on that firm's Executive Committee from
1976 to 1988 and as a Chairman of its Retirement Committee from 1979 to 1992.
Mr. Wintrub holds a B.S. degree from Ohio State University and an LL.B. from
Harvard Law School. He currently serves as a director of Chromcraft
Revington, Inc. and Getty Petroleum Co. Mr. Wintrub is also a Director of
CPA(R):10, CIP(TM) and CPA(R):12.
<PAGE> 47
Bar Association. Mr. Carey served as a member of the Board of Overseers of the
School of Arts and Sciences at the University of Pennsylvania from 1983 to 1990
and has served as a member of the Board of Trustees of the Investment Program
Association since 1990 and on the Business Advisory Council of the Business
Council for the United Nations since 1994. He holds A.B. and J.D. degrees from
the University of Pennsylvania. Mr. Carey also serves as a director and as
President of CPA(R):10, CIP(TM) and CPA(R):12 (the "Companies"). William P.
Carey, Chairman of the Companies is his brother. H. Augustus Carey, Senior Vice
President is his son.
Thomas E. Zacharias, age , is currently Vice President of Corporate
Property Investors, one of the largest equity-oriented REITS in the U.S. with
approximately $4.4 billion under management. Mr. Zacharias was Project Director
for the New York State Urban Development Corporation from 1980 - 1981, and
served as the Assistant to the Chief Operating Officer from 1979 - 1980. Mr.
Zacharias received his undergraduate degree, magna cum laude, from Princeton
University in 1976 and a Master of Public and Private Management from the Yale
School of Management in 1979. Mr. Zacharias presently serves as a Director of
W.P. Carey Advisers, Inc. and a Director of U.S. Prime Properties Inc.
Claude Fernandez, age 44, joined W.P. Carey & Co. as Assistant Controller
in March 1983, was elected Controller in July 1983, Vice President in April 1986
and is now a Managing Director, Senior Vice President and Chief Administrative
Officer. Prior to joining W.P. Carey & Co., Mr. Fernandez was associated with
Coldwell Banker, Inc. in New York for two years and with Arthur Andersen & Co.
in New York for over three years. Mr. Fernandez, a Certified Public Accountant,
received his B.S. degree in accounting from New York University in 1975 and his
M.B.A. in Finance from Columbia University Graduate School of Business in 1981.
Gordon F. DuGan, age 31, Executive Vice President, was elected Managing
Director of W.P. Carey & Co. in June 1997. Having originally joined W.P. Carey
& Co. in 1988, Mr. DuGan rejoined W.P. Carey as Deputy Head of Acquisitions in
February 1997. Prior to rejoining W.P. Carey & Co., he served as Chief
Financial Officer of Superconducting Core Technologies, a Colorado wireless
communications equipment manufacturer. Mr. DuGan received his degree in from
the University of Pennsylvania.
H. Augustus Carey, age 39, returned to W.P. Carey & Co. as a Vice
President in August 1988 and was elected First Vice President in April 1992 and
Senior Vice President in October 1995. Mr. Carey previously worked for W.P.
Carey & Co. from 1979 to 1981 as Assistant to the President. From 1984 to 1987,
Mr. Carey served as a loan officer in the North American Department of Kleinwort
Benson Limited in London, England. He received his A.B. in Asian Studies from
Amherst College in 1979 and a M.Phil. in Management Studies from Oxford
University in 1984. He is the son of Francis J. Carey and the nephew of William
P. Carey.
Anthony S. Mohl, age 34, became a Senior Vice President in April 1996. Mr.
Mohl joined W.P. Carey & Co. as Assistant to the President in September 1987
after receiving an M.B.A. from the Columbia University Graduate School of
Business and became a Second Vice President in January 1990. Mr. Mohl was
employed as an analyst in the strategic planning group of Kurt Salmon Associates
after receiving an undergraduate degree from Wesleyan University.
John J. Park, age 32, became a First Vice President of W.P. Carey & Co. in
April 1993 and Senior Vice President in October, 1995. Mr. Park joined W.P.
Carey & Co. as an Investment Analyst in December 1987 and became a Vice
President in July 1991. Mr. Park received his undergraduate degree from the
Massachusetts Institute of Technology in 1986 and an M.B.A. from New York
University in 1991.
Michael B. Pollack, age 39, is a partner in the law firm of Reed Smith
Shaw & McClay, counsel for the Company. Mr. Pollack joined Reed Smith Shaw &
McClay in September 1983. He graduated from the Wharton School of the University
of
<PAGE> 48
Pennsylvania and attended Boston University Law School and the University of
Pennsylvania Law School, graduating from the former in 1983. Mr. Pollack was
elected Vice President and Secretary of W.P. Carey & Co. in April 1987, First
Vice President in July 1990 and Senior Vice President in April 1996.
Debra E. Bigler, age 4_, became Vice President and Marketing Director of
W.P. Carey & Co. in July 1991 and a First Vice President in October, 1995. A
regional marketing director responsible for investor services in the south and
south central United States, Ms. Bigler joined W.P. Carey & Co. in March 1989 as
Assistant Marketing Director. Ms. Bigler was employed as a Marketing Associate
with E.F. Hutton & Company Inc. from July 1980 to January 1989.
Ted G. Lagreid, age 4_, joined W.P. Carey & Co. in 1994 and became a First
Vice President in October, 1995. Mr. Lagreid is a regional marketing director
responsible for investor services in the western United States. Prior to joining
the firm, he was employed by the Shurgard Capital Group, then for SunAmerica
where he was an executive in its mutual funds group. He earned an A.B. from the
University of Washington, received an M.P.A. from the University of Puget Sound
and then spent eight years in the city of Seattle's Department of Community
Development. Mr. Lagreid was a commissioner of the City of Oakland, California,
having served on its Community and Economic Development Advisory Commission.
Michael D. Roberts, age 45, joined W.P. Carey & Co. in April 1989 as a
Second Vice President and Assistant Controller and was named Vice President and
Controller in October 1989 and First Vice President in July 1990. From August
1980 to February 1983 and from September 1983 to April 1989, he was employed by
Coopers & Lybrand and held the position of Audit Manager at the time of his
departure. A Certified Public Accountant, Mr. Roberts received his undergraduate
degree from Brandeis University and his M.B.A. from Northeastern University.
Certain of the directors and officers of the Company act as directors or
officers of the general partners of other CPA(R) Programs and may own
partnership interests in such CPA(R) Programs.
THE ADVISOR
Carey Property Advisors (the "Advisor") will serve as the advisor to the
Company. The general partner of the Advisor is Carey Fiduciary Advisors, Inc.
("CFA"), a Pennsylvania corporation wholly-owned by William P. Carey. The
Company has entered into an advisory agreement with the Advisor (the "Advisory
Agreement") pursuant to which the Advisor will manage the Company's day-to-day
affairs and will monitor the Company's assets and income so that the Company
will comply with the REIT provisions of the Code. This may include the purchase
or disposition of investments of the Company as well as the structuring of the
receipt of income from these investments. The Advisor and its Affiliates will
receive certain fees and compensation from the Offering, the investment of the
proceeds therefrom and the management and disposition of the Company's assets.
See "Management Compensation."
CFA is authorized to issue 5,000 shares of common stock, $0.01 par value,
1,000 of which are outstanding. All of CFA's outstanding shares of stock are
owned by William P. Carey. As of December 31, 1996, CFA had total assets of
[$473,905] and shareholder's equity of [$432,143].
W.P. Carey & Co. is a private company that specializes in arranging
private financing for major corporations, principally net lease financings of
real property, and the officers of W.P. Carey & Co. have an extensive background
in this area. Properties financed with the assistance of W.P. Carey & Co. have
included office buildings, manufacturing plants, distribution and retail
facilities, warehouses, movie theaters and hotels.
<PAGE> 49
DIRECTORS AND PRINCIPAL OFFICERS OF CAREY FIDUCIARY ADVISORS, INC.
The directors and principal officers of CFA are as follows:
<TABLE>
<CAPTION>
NAME OFFICE
---- ------
<S> <C>
William P. Carey Chairman of the Board and Director
George E. Stoddard Chairman of the Investment Committee and
Director
Frank J. Hoenemeyer Vice Chairman of the Investment Committee
and Director
Lawrence R. Klein Chairman of the Economic Policy Committee
and Director
Madelon DeVoe Talley Vice Chairman and Director
Barclay G. Jones III Executive Vice President and Director
Claude Fernandez Executive Vice President and Chief
Administrative Officer
Gordon F. DuGan Executive Vice President
H. Augustus Carey Senior Vice President--Marketing
Anthony S. Mohl Senior Vice President--Property Management
Michael B. Pollack Senior Vice President and Secretary
John J. Park Senior Vice President--Acquisitions and
Treasurer
Debra E. Bigler First Vice President and Regional Director
Ted G. Lagreid First Vice President and Regional Director
Michael D. Roberts First Vice President and Controller
David S. Eberle Vice President and Regional Director
Mary Ann Kelly Vice President and Regional Director
David W. Marvin Vice President and Regional Director
Gordon J. Whiting Vice President--Acquisitions
</TABLE>
Information regarding Messrs. W. P. Carey, Stoddard, Jones, DuGan,
Fernandez, Roberts, H. A. Carey, Park, Lagreid, Pollack, Mohl and Roberts and
Ms. Bigler is set forth under "Management--Directors and Principal Officers of
the Company."
Frank J. Hoenemeyer, age 77, was Vice Chairman, Director and Chief
Investment Officer of The Prudential Insurance Company of America until his
retirement in November 1984. As Chief Investment Officer he was responsible for
all of Prudential's investments in stocks, bonds, private placements, leveraged
buyouts, venture capital, real estate ownership and mortgages. Mr. Hoenemeyer
was graduated with a B.S. in Economics from Xavier University, Cincinnati, Ohio
and an M.B.A. from the Wharton School of the University of Pennsylvania, and
joined Prudential in 1947. Under his direction as Chief Investment Officer,
Prudential built the world's largest real estate and securities investment
portfolio (valued at over $200 billion in 1989) and became a leader in
investments including the purchase and development of real estate, leveraged
buyouts and venture capital. Mr. Hoenemeyer serves on the Boards of American
International Group and Mitsui Trust Bank (U.S.A.) and is formerly a director of
Corporate Property Investors, a $3 billion private real estate investment trust.
He has also been active in community affairs and at present is Chairman of the
Turrell Fund and a Trustee and Chairman of the Finance Committee of the Robert
Wood Johnson Foundation.
Dr. Lawrence R. Klein, age 77, is the Benjamin Franklin Professor Emeritus
of Economics and Finance at the University of Pennsylvania and its Wharton
School, having joined the faculty of the University in 1958. He is a holder of
earned degrees from the University of California at Berkeley and the
Massachusetts Institute of Technology and has been awarded the Alfred Nobel
Memorial Prize in Economic Sciences as well as a number of honorary degrees.
Founder of Wharton Econometric Forecasting Associates, Inc., Dr. Klein has been
counselor to various corporations, governments and government agencies,
including the Federal Reserve Board and the President's Council of Economic
Advisers. Dr. Klein joined W.P. Carey & Co. in 1984 as Chairman of the Economic
Policy Committee and as a director.
<PAGE> 50
Madelon DeVoe Talley, age 65, served as a managing director of Rothschild,
Inc. and as the President of its asset management division from 1982 to 1984.
From 1978 to 1982, Mrs. Talley was the chief investment officer of the
multi-billion dollar New York State Common Retirement Fund. She was Director of
International Investments for the Dreyfus Corporation as well as Vice President
of its money management division from 1975 to 1977. She is formerly a member of
the Board of Governors of the NASD, and is formerly a member of Investment Board
of the New York State Employees Retirement Systems as well as a Trustee of The
New York State Teachers Retirement Systems. She also serves on the board of
directors of Biocraft Laboratories, a New York Stock Exchange company, and as a
director of W.P. Carey & Co.
David S. Eberle, age 30, joined W.P. Carey & Co., Inc. in 1995 as Vice
President and Regional Director for the Midwest region. Previous to joining W.P.
Carey he was Manager, Wholesale Sales for Bowen Real Estate Group located in
Portland, Oregon and was responsible for the entire United States. Mr. Eberle
received his B.S. in Management from St. John's University.
Mary Ann Kelly, age 36, joined W.P. Carey & Co. in 1995 as a regional
marketing director for the mountain states area. She was previously employed by
Related Capital Company as a regional director in the southeastern United
States. Ms. Kelly received her B.B.A. from Hofstra University where she
concentrated in International Business.
David W. Marvin, age 44, joined W.P. Carey & Co. in 1995 as a regional
marketing director for the northeastern United States. Previously he spent 15
years at Prudential-Bache and Kidder-Peabody, as well as was a national director
of sales with Cigna Corporation. Mr. Marvin received his B.A. from the
University of Massachusetts at Amherst.
Gordon J. Whiting, age 31, became a Vice President of W.P. Carey & Co. in
October 1995. Mr. Whiting joined W.P. Carey & Co. as a Second Vice President in
September 1994 after receiving his M.B.A. from the Columbia University Graduate
School of Business where he concentrated in finance. Mr. Whiting founded an
import/export company based in Hong Kong after receiving his B.S. from Cornell
University.
The principal officers of CFA and the offices to which they have been
elected substantially are the same as those for the Company. All of the officers
and directors of CFA have been elected to serve until the next annual meeting of
CFA to be held in 1999.
<PAGE> 51
SHAREHOLDINGS
The Advisor currently owns 20,000 Shares, which constituted 100% of the
outstanding Shares. The Advisor may not sell any of these Shares during the
period it serves as the advisor to the Company. Furthermore, any resale of the
20,000 Shares that the Advisor currently owns and the resale of any Shares which
may be acquired by Affiliates of the Company are subject to the provisions of
Rule 144 promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), which rule limits the number of shares that may be sold at
any one time and the manner of such resale. Although the Advisor is not
prohibited from acquiring additional Shares, the Advisor has no options or
warrants to acquire any additional Shares and has no current plans to acquire
additional Shares. There is no limitation on the ability of the Advisor or its
Affiliates to resell any Shares they may acquire in the future. If the minimum
number of Shares is sold the Advisor will own approximately 1.3% of the Shares
and if 30,000,000 Shares are sold, the Advisor will own less than 0.07% of the
Shares. The Advisor has agreed to abstain from voting any Shares it now owns or
hereafter acquires in any vote for the election of directors or any vote
regarding the approval or termination of any contract with the Advisor or any of
its Affiliates.
MANAGEMENT DECISIONS
All of the activities of the Advisor will be managed by CFA. The primary
responsibility for the selection of Company investments and the negotiation for
such investments will reside in William P. Carey, George E. Stoddard, Barclay
G. Jones III and Gordon F. DuGan, all of whom are officers or directors of CFA.
Each potential Company investment will be submitted for review to the Investment
Committee. George E. Stoddard, Chairman, Frank J. Hoenemeyer and Madelon DeVoe
Talley currently serve as members of the Investment Committee. Lawrence R. Klein
currently serves as an alternate member of the Investment Committee and may
replace another member in the event a member is absent or disqualified from any
meeting. The board of directors of CFA (the "CFA Board") has empowered the
Investment Committee to authorize and approve Company investments on behalf of
CFA between meetings of the CFA Board, provided that the members of the
committee agree unanimously on the action to be taken. However, the CFA Board
retains ultimate authority to authorize and approve Company investments on
behalf of the Advisor and may make such investments on behalf of the Company
without the approval of, and irrespective of any adverse recommendation by, the
Investment Committee or any other Person, except the Board of the Company.
LIMITED LIABILITY AND INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND
OTHER AGENTS
The Organizational Documents limit the personal liability of the Company's
directors and officers for monetary damages to the fullest extent permitted
under current Maryland law and provide that a director or officer may be
indemnified to the fullest extent required or permitted by Maryland law.
Maryland law allows directors and officers to be indemnified against judgments,
penalties, fines, settlements, and expenses actually incurred in a proceeding
unless the following can be established: (a) the act or omission of the director
or officer was material to the cause of action adjudicated in the proceeding,
and was committed in bad faith or was the result of active and deliberate
dishonesty; (b) the director or officer actually received an improper personal
benefit in money, property or services; or (c) with respect to any criminal
proceeding, the director or officer had reasonable cause to believe his act or
omission was unlawful. Such indemnification or any agreement to hold harmless is
recoverable only out of the assets of the Company and not from the Shareholders.
This provision does not reduce the exposure of directors and officers to
liability under Federal or state securities laws, nor does it limit the
Shareholder's ability to obtain injunctive relief or other equitable remedies
for a violation of a director's or an officer's duties to the Company or its
Shareholders, although such equitable remedies may not be an effective remedy in
certain circumstances.
Notwithstanding the foregoing, the directors, the Advisor and their
Affiliates will be indemnified by the Company for losses arising from the
operation of the
<PAGE> 52
Company only if all of the following conditions are met: (a) the directors, the
Advisor or their Affiliates have determined, in good faith, that the course of
conduct which caused the loss or liability was in the best interests of the
Company; (b) the directors, the Advisor or their Affiliates were acting on
behalf of or performing services for the Company; (c) such liability or loss was
not the result of negligence or misconduct by the directors, the Advisor or
their Affiliates; and (d) such indemnification or agreement to hold harmless is
recoverable only out of the Company's net assets and not from its stockholders.
The Sponsor has separately agreed to indemnify the Independent Directors against
all liabilities and expenses and to advance expenses arising out of each
Independent Director's activities on behalf of the Company to the extent such
activities satisfy the Maryland law standards for indemnification.
In addition to any indemnification to which directors and officers shall
be entitled pursuant to the General Corporation Law of Maryland, the
Organizational Documents provide that the Company shall indemnify other
employees and agents to such extent as shall be authorized by the Directors,
whether they are serving the Company or, at the Company's request, any other
entity. The Company has agreed to indemnify and hold harmless the Advisor and
its Affiliates performing services for the Company from certain claims and
liabilities arising out of the performance of its obligations under the Advisory
Agreement. As a result, the Company and its Shareholders may be entitled to a
more limited right of action than they would otherwise have if these
indemnification rights were not included in the Advisory Agreement.
The Commission takes the position that indemnification against liabilities
arising under the Securities Act is against public policy and unenforceable.
Indemnification of the directors, officers, the Advisor or their Affiliates will
not be allowed for certain liabilities arising from or out of a violation of
state or Federal securities laws. Indemnification will be allowed for
settlements and related expenses of lawsuits alleging securities laws
violations, and for expenses incurred in successfully defending such lawsuits,
provided that a court either (a) approves the settlement and finds that
indemnification of the settlement and related costs should be made, or (b) there
has been a dismissal with prejudice or a successful adjudication on the merits
of each count involving alleged securities law violations as to the particular
indemnitee and a court approves such indemnification.
THE ADVISORY AGREEMENT
Many of the services to be performed by the Advisor and its Affiliates in
managing the day-to-day activities of the Company are summarized below. This
summary is provided to illustrate the various functions which the Advisor and
its Affiliates will perform for the Company and it is not intended to include
all of the services which may be provided by third parties to the Company.
The term of the Advisory Agreement ends on [DECEMBER 31, 1999] and
thereafter will be automatically renewed for successive one-year periods unless
either party shall give the other party notice of non-renewal not less than 60
days before the end of any such period. Additionally, the Advisory Agreement may
be terminated (a) immediately by the Company for "Cause" or upon the bankruptcy
of the Advisor or a material breach of the Advisory Agreement by the Advisor,
(b) without Cause by a majority of the Independent Directors or Shareholders
upon 60 days' notice, or (c) immediately with Good Reason by the Advisor. "Good
Reason" is defined in the Advisory Agreement to mean either (i) any failure to
obtain a satisfactory agreement from any successor to the Company to assume and
agree to perform the Company's obligations under the Advisory Agreement, or (ii)
any material breach of the Advisory Agreement of any nature whatsoever by the
Company. "Cause" is defined in the Advisory Agreement to mean fraud, criminal
conduct, willful misconduct or willful or negligent breach of fiduciary duty by
the Advisor or a breach of the Advisory Agreement by the Advisor.
The Advisor and its Affiliates expect to engage in other business ventures
and, as such, their resources will not be dedicated exclusively to the business
of the Company. However, pursuant to the Advisory Agreement, the Advisor must
devote sufficient resources to the administration of the Company to discharge
its obligations. The Advisory Agreement is not assignable or transferable by
either party without the consent of the other party, except that the Advisor may
assign the
<PAGE> 53
Advisory Agreement to an Affiliate that has a net worth of $5,000,000 or more or
for whom the Sponsor agrees to guarantee its obligations to the Company and
either the Advisor or the Company may assign or transfer the Agreement to a
successor entity.
Under the terms of the Advisory Agreement, the Advisor undertakes to use
its best efforts to present to the Company investment opportunities consistent
with the investment policies and objectives of the Company as adopted by the
Board. In its performance of this undertaking, the Advisor, either directly or
indirectly by engaging an Affiliate, shall (at all times subject to the
continuing and exclusive authority of the Board over the management of the
Company and to compliance with the Organizational Documents):
(i) find, present and recommend to the Company a continuing series
of real estate investment opportunities consistent with the Company's
investment policies and objectives;
(ii) provide advice to, and act on behalf of, the Company with
respect to the acquisition, financing, refinancing, holding, leasing and
disposition of real estate investments;
(iii) make investments on behalf of the Company in compliance with
the investment Procedures, Objectives and Policies of the Company;
(iv) take such action and obtain such services as may be necessary
to effectuate the acquisition, financing, refinancing, holding, leasing
and disposition of real estate investments; and
(v) provide day-to-day management of business activities of the
Company and such other administrative services for the Company as may be
requested by the Board.
The Board has authorized the Advisor to make investments in any Property
on behalf of the Company without the approval of the Board if the following
conditions are satisfied:
(a) the Advisor must obtain an appraisal for the Property indicating
that the Total Property Cost of the Property does not exceed the appraised
value of the Property; and
(b) the Advisor must provide the Company with a representation that
the Property, in conjunction with the Company's other investments and
proposed investments, is reasonably expected to fulfill the Company's
investment Procedures, Objectives and Policies as established by the Board
and then in effect.
The Advisor may not make any Loans on behalf of the Company without the
prior approval of a majority of the Independent Directors. The actual terms and
conditions of transactions involving investments in Properties shall be
determined in the sole discretion of the Advisor, subject at all times to
compliance with the foregoing requirements. The Advisor shall notify the Board
of all proposed transactions before such transactions are completed.
Certain types of transactions require the prior approval of the Board,
including a majority of the Independent Directors, including the following: (i)
investments in Properties in respect of which the requirements specified above
have not been satisfied, (ii) investments made through joint venture
arrangements with Affiliates of the Advisor, (iii) investments which are not
contemplated by the terms of this Prospectus, (iv) transactions that present
issues which involve conflicts of interest for the Advisor (other than conflicts
involving the payment of fees or the reimbursement of expenses), (v) investments
in equity securities (other than warrants acquired in connection with net lease
transactions) and (vi) the lease of assets to the Sponsor, any director or the
Advisor.
The Company will reimburse the Advisor for all of the costs it incurs in
connection with the services it provides to the Company, including, but not
limited to: (i) Organization and Offering Expenses, which are defined to include
expenses
<PAGE> 54
attributable to preparing the Registration Statement, formation and organization
of the Company, qualification of the Shares for sale in the states, escrow
arrangements, Commission and NASD filing fees and expenses attributable to
selling the Shares (including but not limited to selling commissions,
advertising expenses, expense reimbursement, counsel and accounting fees), (ii)
the annual cost of goods and materials used by the Company and obtained from
entities not affiliated with the Sponsor, including brokerage fees paid in
connection with the purchase and sale of securities, (iii) administrative
services (including personnel costs, provided, however that no reimbursement
shall be made for costs of personnel to the extent that such personnel are used
in transactions for which the Advisor receives a separate fee), (iv) rent,
depreciation, leasehold improvement costs, utilities or other administrative
items generally constituting the Advisor's overhead, and (v) Acquisition
Expenses, which are defined to include expenses related to the selection and
acquisition of Properties.
The Advisor shall reimburse the Company at least annually for the amount
by which Operating Expenses of the Company exceed the 2%/25% Guidelines (2% of
Average Invested Assets or 25% of Net Income). To the extent that Operating
Expenses payable or reimbursable by the Company exceed the 2%/25% Guidelines and
the Independent Directors determine that such excess expenses were justified
based on unusual and nonrecurring factors which they deem sufficient, the
Advisor may be reimbursed in future years for the full amount of such excess
expenses, or any portion thereof, but only to the extent such reimbursement
would not cause the Company's Operating Expenses to exceed the 2%/25% Guidelines
in any such year. Within 60 days after the end of any fiscal quarter of the
Company for which total Operating Expenses (for the 12 months then ended) exceed
the 2%/25% Guidelines, there shall be sent to the Shareholders a written
disclosure of such fact, together with an explanation of the factors the
Independent Directors considered in arriving at the conclusion that such excess
expenses were justified.
The Advisor or its Affiliates will be paid certain fees in connection with
services provided to the Company. See "Management Compensation." In the event
the Advisory Agreement is not renewed by the Company or is terminated without
Cause by the Company or with Good Reason by the Advisor, the Advisor will be
paid all accrued and unpaid fees and expense reimbursements, any unaccrued
Subordinated Acquisition Fees and in certain circumstances will also be paid a
Termination Fee. See "Management Compensation." The Company will not reimburse
the Advisor or its Affiliates for services for which the Advisor or its
Affiliates are entitled to compensation in the form of a separate fee.
INVESTMENT PROCEDURES, OBJECTIVES AND POLICIES
INVESTMENT PROCEDURES
The business of the Company is to invest primarily in single-tenant
commercial, industrial and governmental real property (or interests therein),
either existing or under construction or development, and personal and mixed
property connected therewith. Generally, properties will be net leased to
entities deemed creditworthy by the Advisor, including governmental units, under
leases which will be full recourse obligations of such tenants or their
Affiliates.
TRANSACTION ORIGINATION
In analyzing potential acquisitions, the Advisor reviews and structures
many aspects of a transaction, including the tenant, the real estate and the
lease to determine whether a potential acquisition can be structured to satisfy
the Company's acquisition criteria. The aspects of a transaction which are
reviewed and structured by the Advisor include the following:
- Tenant Evaluation. The Advisor subjects each potential tenant to an
extensive evaluation of its credit, management, position within its
industry, operating history and profitability. The Advisor seeks
tenants it believes will have stable or improving credit. The
Advisor specializes in identifying companies whose credit will
improve over time. By leasing properties to such tenants, the
Company can generally charge
<PAGE> 55
rent that is higher than the rent charged to tenants with recognized
credit and thereby enhance its current return from such properties
as compared with properties leased to companies whose credit
potential has already been recognized by the market. Furthermore, if
a tenant's credit does improve, the value of the Company's
properties leased to such tenant will likely increase (if all other
factors affecting value remain unchanged). The Advisor may also seek
to enhance the likelihood of a tenant's lease obligations being
satisfied, such as through a letter of credit or a guaranty of lease
obligations from the tenant's corporate parent. Such credit
enhancement provides the Company with additional financial security.
- Leases with Increasing Rent. The Advisor seeks to include clauses in
its leases that provide for increases in rent over the term of the
leases. These increases are generally tied to increases in certain
indices such as the consumer price index; in the case of retail
stores, participation in gross sales above a stated level; mandated
rental increases on specific dates; and by other methods. The
Advisor seeks to avoid entering into leases that provide for
contractual reductions in rents during their primary term.
- Properties Important to Tenant Operations. The Advisor generally
seeks to acquire properties with operations that are essential or
important to the ongoing operations of the tenant. The Advisor
believes that such properties provide better protection in the event
a tenant files for bankruptcy, since leases on properties essential
or important to the operations of a bankrupt tenant are less likely
to be rejected, and thereby terminated, by a bankrupt tenant. The
Advisor also seeks to assess the income, cash flow and profitability
of the business conducted at the property so that, if the tenant is
unable to operate its business, the Company can either continue
operating the business conducted at the property or re-let the
property to another entity in the industry which can operate the
property profitably.
- Lease Provisions that Enhance and Protect Value. When appropriate,
the Advisor attempts to include provisions in its leases that
require its consent to certain tenant activity or require the tenant
to satisfy certain operating tests. These provisions include, for
example, operational and financial covenants of the tenant,
prohibitions on a change in control of the tenant and
indemnification from the tenant against environmental and other
contingent liabilities. Including these provisions in its leases
protects the Company's investment from changes in the operating and
financial characteristics of a tenant that may impact its ability to
satisfy its obligations to the Company or could reduce the value of
the Company's properties.
- Diversification. The Advisor attempts to diversify its portfolio of
properties to avoid dependence on any one particular tenant, type of
facility, geographic location and tenant industry. By diversifying
its portfolio, the Advisor reduces the adverse effect on the Company
of a single under-performing investment or a downturn in any
particular industry.
The Advisor employs a variety of other strategies in connection with its
acquisitions. These strategies include attempting to obtain equity enhancements
in connection with transactions. Typically such equity enhancements involve
warrants to purchase stock of the tenant to whom the property is leased.
Negotiating equity enhancements helps the Company to achieve its goal of
increasing funds available for the payment of Dividends. Other strategies
include performing evaluations of the physical condition of properties and
performing environmental surveys in an attempt to determine potential
environmental liabilities associated with a property prior to its acquisition.
Occasionally, the Company grants to the tenant a right to purchase the Property
leased by the tenant, in which cases, the option purchase price is generally the
greater of the Contract Purchase Price and the fair market value of the
Property.
<PAGE> 56
ACQUISITION AND UNDERWRITING PROCESS
The Advisor's Acquisition and Asset Management Department, headed by
Barclay G. Jones, has the primary responsibility for the origination and
negotiation of acquisitions of properties. Members of this Department will
identify potential acquisitions and conduct negotiations with sellers and
tenants. Members of the Acquisition and Asset Management Department generally
structure the terms of any financing that the Company may use to acquire a
property.
As a transaction is structured, it is evaluated by George E. Stoddard,
Chairman of the Advisor's Investment Committee, with respect to the potential
tenant's credit, business prospects, position within its industry and other
characteristics important to the long-term value of the property and the
capability of the tenant to meet its lease obligations. Before a property is
acquired, the transaction is reviewed by the Advisor's Investment Committee to
ensure that it satisfies the Company's investment criteria. Aspects of the
transaction that are typically reviewed by the Investment Committee include the
expected financial returns, the creditworthiness of the tenant, the real estate
characteristics and the lease terms.
An acquisition must be approved by the Investment Committee before it can
be completed by the Company. The Company believes that the Investment Committee
review process gives it a unique competitive advantage over other net lease
companies because of the substantial experience and perspective that the
Investment Committee has in evaluating the blend of corporate credit, real
estate and lease terms that combine to make an acceptable risk.
The Investment Committee is not directly involved in originating or
negotiating potential acquisitions, but instead functions as a separate and
final step in the acquisition process. The Advisor places special emphasis on
having experienced individuals serve on its Investment Committee and does not
invest in a transaction unless it is approved by the Investment Committee.
The following people serve on the Investment Committee:
- George E. Stoddard, Chairman, was formerly responsible for the
direct corporate investments of The Equitable Life Assurance Society
of the United States and has been involved with the CPA(R) Programs
for over 16 years.
- Frank J. Hoenemeyer, Vice Chairman, was formerly Vice Chairman,
Director and Chief Investment Officer of The Prudential Insurance
Company of America. As Chief Investment Officer, Mr. Hoenemeyer was
responsible for all of Prudential's investments, including stocks,
bonds, private placements, real estate and mortgages.
- Madelon DeVoe Talley, was formerly a member of the Board of
Governors of the NASD and was formerly Chief Investment Officer of
the New York State Employees Retirement System with responsibility
for all its investments, including stocks, bonds, real estate and
mortgages. Mrs. Talley has also served as a Trustee of the New York
State Employees Retirement System and as a member of its Investment
Board. Mrs. Talley has held a variety of senior positions in the
investment and asset management business.
- Lawrence R. Klein, alternate member, is Benjamin Franklin Professor
of Economics Emeritus at the University of Pennsylvania and its
Wharton School. Dr. Klein has been awarded the Alfred Nobel Memorial
Prize in Economic Sciences and currently advises various governments
and government agencies.
Each Property purchased by the Company will be appraised by an Independent
Appraiser and the Company will not purchase any Property that has a Total
Property Cost (the purchase price of the Property plus all Acquisition Fees)
which is in excess of its appraised value. Such appraisals may take into
consideration, among other things, the terms and conditions of the particular
lease transaction, the quality of the lessee's credit and the conditions of the
credit markets at the time
<PAGE> 57
the lease transaction is negotiated. The appraised value may be greater than the
construction cost or the replacement cost of a Property, and the actual sale
price of a Property if sold by the Company may be greater or less than the
appraised value.
INVESTMENT OBJECTIVES
The Company's objectives are:
- TO PAY QUARTERLY DIVIDENDS AT AN INCREASING RATE THAT FOR TAXABLE
SHAREHOLDERS MAY BE PARTIALLY FREE FROM CURRENT TAXATION. The
Company's dividend rate is calculated by dividing the Company's
quarterly cash dividend from operations by the amount raised in the
Offering less amounts returned to investors from the sale of
Properties and Cash from Financings. Although the cash amount of a
dividend may go down during the life of the Company, the dividend
rate may continue to increase. If the total amount received by the
Company from the sale of its Properties is less than the total
amount invested in the Company, a portion of the Dividends paid by
the Company will represent a return of the money originally invested
in the Company and not a return on the investment. There can be no
assurance that the Company will pay regular dividends or that the
dividend rate will increase. The quarterly rate of increases of
prior CPA(R) Programs has generally ranged from [.01% TO .25%] with
an average quarterly increase of [.02%]. While prior CPA(R) Programs
have occasionally used working capital to pay a portion of certain
dividends, cash flows from operating activities have generally
exceeded dividends paid. See "Dividends."
- TO PURCHASE A PORTFOLIO OF REAL ESTATE THAT WILL INCREASE IN VALUE.
An individual investing directly in real estate would not have to
pay the organization and offering expenses expected to be paid by
the Company (approximately [10% TO 10.50%] of the Gross Offering
Proceeds). Therefore, the Company must realize a greater level of
operating income from, and/or appreciation in the value of, its real
estate in order for an investor to realize the same return he would
realize if he invested directly in, and operated, the real estate
purchased by the Company. [OF THE 68 PROPERTIES SOLD BY THE CPA(R)
PROGRAMS, ALL BUT 22 OF SUCH PROPERTIES WERE SOLD FOR CONSIDERATION
EQUAL TO OR IN EXCESS OF THE APPLICABLE CPA(R) PROGRAM'S TOTAL
INVESTMENT IN SUCH PROPERTIES, INCLUDING ACQUISITION COSTS. THE NET
GAIN REALIZED FROM THE SALE OF THESE 68 PROPERTIES BY THE CPA(R)
PROGRAMS HAS BEEN IN EXCESS OF $7,318,000 ON TOTAL EQUITY INVESTED
OF APPROXIMATELY $80,267,000.] This net gain figure does not take
into account organization and offering expenses which averaged [12%]
of the Gross Offering Proceeds for prior CPA(R) Programs. Please see
the "Prior Performance by Affiliates" and the Appendix A for a
complete discussion of the prior performance of the CPA(R) Programs.
- TO INCREASE THE COMPANY'S EQUITY IN ITS REAL ESTATE BY MAKING
REGULAR MORTGAGE PRINCIPAL PAYMENTS. The Company will realize its
objective of increasing its equity in its Properties by making
regular mortgage principal payments from income generated from the
Properties only if Properties are sold by the Company for an amount
equal to or greater than the original equity investment plus the
remaining mortgage balance. The average annual mortgage amortization
for the CPA(R) Programs is [$16,547,000].
There can be no assurance that all or any of these objectives will be
achieved or that all of these objectives will be achieved with respect to each
Property. See "Prior Offerings by Affiliates" for a description of the CPA(R)
Programs' experience in making investments similar to the investment objectives
of the Company. See "Risk Factors" for a description of risks associated with
the Company's investments. The Company also may make Loans on income-producing
Properties, which Loans may have some form of equity participation.
The primary investment objectives of the CPA(R) Programs are similar to
those of the Company. The CPA(R) Programs have not been fully liquidated so it
is not possible
<PAGE> 58
to fully determine whether or not the CPA(R) Programs have satisfied the
objective of purchasing real estate that will increase in value.
All but four of the CPA(R) Programs have paid quarterly dividends at an
increasing rate since their inception. The increases have been between .01% and
4% on an annual basis in any quarter in which there has been an increase, with
the majority of increases ranging between .01% and .05%. Only CPA(R):1,
CPA(R):5, CPA(R):7 and CPA(R):10 have had to reduce their distribution rates as
a result of certain adverse developments described in "Prior Offerings by
Affiliates," and the resulting reduction of cash flow. The distribution rate of
CPA(R):7 now exceeds the rate in effect before the reduction.
Each of the CPA(R) Programs have been able to make regular
mortgage principal payments. The amount of debt repaid by the fully invested
CPA(R) Programs from funds generated by operations range from approximately
$365,000 to $4,360,000 per year. The CPA(R) Programs that have owned property
for a longer period have generally repaid a greater percentage of their debt.
More detailed information with respect to the performance of the CPA(R) Programs
is separately presented in tabular form in Exhibit A to this Prospectus.
In making Property investments, the Advisor will consider such relevant
real estate and financial factors as:
- creditworthiness of a tenant,
- safety of principal,
- income and cash flow expected to be generated by a particular
Property,
- terms of proposed leases, including any provision for periodic rent
increases,
- importance of the Property to a tenant,
- profitability of activities conducted at the Property,
- prospects for possible long-term appreciation,
- condition and use of the Property,
- location of the Property,
- current appraised value of the Property,
- prospects for long-range liquidity,
- geographic and industry diversification, and
- relation of the Property to the Company's portfolio.
In evaluating a possible investment by the Company, the creditworthiness of a
tenant generally will be a more significant factor than the value of the
Property absent the lease with such tenant. While the Advisor will select
tenants it believes are creditworthy, tenants will not be required to meet any
minimum rating established by an independent credit rating agency. The Advisor's
and the Investment Committee's standards for determining whether a particular
tenant is creditworthy vary in accordance with a variety of factors relating to
specific prospective tenants. Those standards cannot be adequately described in
this Prospectus.
TYPES OF INVESTMENTS
The Company may make investments in several types of properties or other
real estate related investments. The Advisor will be responsible for the
selection of Properties for the Company, subject in some cases to the approval
of the Board. See "Management." While investments may be made in various types
of Property, the Advisor intends to make substantially all the Company's
investments in income-producing
<PAGE> 59
Property which is, upon acquisition, improved or being developed or which is
being or will be developed within a reasonable period after its acquisition.
Investments will not be restricted as to geographical areas, but it is expected
that most of the investments will be made within the United States. See "Risk
Factors--Real Estate Investment Risks--Risks of Investment in Real Property
Located Outside the United States." With the exception of proposed investments
described in a supplement to this Prospectus, prospective investors will not be
able to evaluate the merits of the Company's investments or the terms of any
dispositions. See "Risk Factors--Corporate Investment Risks -- Reliance on
Management."
Investments in Properties
The Company will invest primarily in Properties that are leased to one
tenant deemed creditworthy by the Advisor. In most cases, each lease will
require the tenant to pay all of the costs of maintenance, insurance and real
estate taxes.
It is anticipated that many of the Properties purchased by the Company
will be acquired from entities that simultaneously will lease the Properties
from the Company. Such sale-leaseback transactions provide the lessee company
with a source of capital as an alternative to other financing sources such as
borrowing, mortgaging real property, issuing bonds or selling shares of common
stock. The prospects for the seller/lessee's enterprise and the financial
strength of the seller/lessee will be important aspects of the sale and
leaseback of a Property, particularly a Property specifically suited to the
needs of the lessee. The Advisor will examine the financial statements of the
lessee, if available, to evaluate the financial capability of the lessee and its
ability to perform the terms of the purchase and leaseback agreement and, where
appropriate, will examine the available operating results of Properties to
determine whether or not projected rental levels are likely to be met. Whether a
prospective tenant of the Company is creditworthy will be determined by the
Advisor or the Board. Creditworthy does not necessarily mean "investment grade."
It is also anticipated that some of the Company's sale-leasebacks will be
in conjunction with acquisitions, recapitalizations and other financial
restructurings. In some of these transactions, the acquiring entities typically
purchase all or substantially all of the stock or assets of a company, and the
acquired company or its successor in interest becomes obligated on the
substantial loans necessary to finance the acquisition. The Company may act as
one of several sources of financing for such transactions by purchasing real
property from the seller of the subject company and net leasing it to such
company or its successor in interest (the lessee). See "Risk Factors--Real
Estate Investment Risks--Risk of Purchasing Property in Connection with
Acquisitions, Recapitalizations and Other Financial Restructurings."
No more than 20% of the net proceeds derived from the Offering will be
applied to the purchase of land where the Company's purchase is exclusive of the
buildings and improvements thereon or to be constructed thereon. In the event
the Company purchases Property exclusive of the buildings and improvements
thereon (where such buildings and improvements are owned by unaffiliated
parties) and such land is securing a mortgage loan to the building owner, the
Company may have to make mortgage payments in order to prevent a default under
such mortgage and the foreclosure of the fee interest.
The Company intends to exercise due diligence to discover potential
environmental liabilities prior to the acquisition of any Property, although
there can be no assurance that hazardous substances or wastes (as defined by
present or future Federal or state laws or regulations) will not be discovered
on the Property. See "Risk Factors--Real Estate Investment Risks -- Potential
Environmental Liabilities." The Company will also consider factors peculiar to
the laws of foreign countries, in addition to the risk normally associated with
real property investments, when considering an investment located outside the
United States. See "Risk Factors--Real Estate Investment Risks -- Risk of
Investment in Real Property located Outside the United States."
In selecting Properties in which to make investments, the Advisor will
consider the extent to which a particular Property may generate depreciation.
Depreciation deductions may reduce income generated by the Company which may
enable the Company to
<PAGE> 60
pay Dividends which are partially free from current taxation. The Company will
depreciate its real properties for tax purposes on a straight line basis over a
40-year period, except where the Code requires a different depreciation period,
as it may with respect to Property leased to governments and to foreign lessees.
See "Income Tax Aspects."
The Advisor may structure certain lease transactions so that such leases
will not be recognized as leases for Federal income tax purposes. To the extent
a lease is not considered a lease for Federal income tax purposes, the Company
would not be able to depreciate the Property subject to such a lease and may
lose certain other tax benefits. See "Income Tax Aspects--Sale-Leaseback
Transactions." In structuring such lease transactions, the Advisor will attempt
to obtain additional consideration from the tenant to compensate the Company for
any lost tax benefits; however, there can be no assurance that any such
additional consideration will be received, or, if received, that it will be
sufficient to fully compensate the Company for lost tax benefits.
Investments in Loans
The Advisor may structure a Company investment as a Loan in situations in
which a standard net lease transaction would have an adverse impact on the
seller of a Property or otherwise would be inappropriate for the Company. The
Advisor would attempt to structure any such Loan in a manner that would provide
the Company with an economic return similar to that which the Company could
expect to receive had the investment been structured as a net lease transaction.
Any transaction structured as a Loan must otherwise meet the Company's
investment criteria. The directors (including a majority of the Independent
Directors) must approve any transaction structured as a Loan.
Some of the Loans made, purchased or otherwise acquired by the Company, in
addition to providing for base interest at a fixed or variable rate, may be
combined with provisions permitting the Company to participate in the economic
benefits of any increase in the gross revenues of the Underlying Real Property
(the property securing repayment of the Loan), usually above a base amount which
may be subject to adjustment upon an increase in real estate taxes or other
events and/or any increase in the value of the Underlying Real Property as
though the Company were an equity owner of a portion of the Property. In
addition, it is possible that the participations may take other forms where
available or deemed appropriate. See "Income Tax Aspects -- Requirements for
Qualification as a REIT." The forms and extent of the participations to be
received by the Company will vary with each transaction depending on such
factors as the equity investment, if any, of the borrower, credit support
provided by the borrower, the interest rate on the Company's Loans and the
anticipated and actual cash flow from the Underlying Real Property. The
Company's Loans may include first mortgage Loans, leasehold mortgage Loans and
conventional mortgage Loans without equity enhancements. Loans are not expected
to comprise a significant portion of the Company's portfolio. The amount of
interest which may be charged by the Company on its Loans may be limited by
state usury laws. The Company will, however, prior to investing in a Loan,
obtain an opinion of counsel that its participation in a Loan will not result in
such Loan's being made at a usurious interest rate.
The Loans will be secured by various types of real property as well as
personal or mixed property connected therewith. The Loans generally will be
secured by property with a demonstrable income-producing potential. In
determining whether to make Loans, the Advisor will analyze relevant property
and financial factors which in some cases may include such factors as the
condition and use of the subject property, its income-producing capacity and the
quality, experience and creditworthiness of the owner of the property.
The Company anticipates that its Loans will either (i) include provisions
permitting the Company to cause the entire unpaid principal amount to become due
within 15 years or (ii) be fully amortized within such period. The Company's
mortgage activity may consist of the origination of Loans or the purchase of
existing Loans. The Company may make both long-term and short-term Loans. The
Company will not make or invest in Loans that are subordinate to any mortgage
held by the Sponsor, the Advisor, the directors or their Affiliates.
<PAGE> 61
The Company will require that a mortgagee's title insurance policy or
commitment as to the lien priority of a mortgage or the condition of title be
obtained. The Company will receive independent appraisals for Underlying Real
Property, which shall be maintained in the Company's records for at least five
years and shall be available for inspection and duplication by any Shareholder.
However, the Advisor generally will rely on its own independent analysis and not
exclusively on such appraisals in determining whether to make a particular Loan.
It should be noted that appraisals are estimates of value and should not be
relied upon as measures of true worth or realizable value. The Company will not
make Loans where the amount advanced by the Company plus the amount of any
existing Loans that are equal or senior to the Company's Loan exceeds 100% of
the appraised value of the Underlying Real Property. See "Income Tax
Aspects--Sale-Leaseback Transactions." In making Loans that exceed 85% of the
appraised value of any Underlying Real Property, the Advisor will consider such
additional underwriting criteria as the net worth of the borrower, the
borrower's credit rating, if any, the anticipated cash flow of the borrower, any
additional collateral provided by the borrower and other factors the Advisor
deems appropriate. See "Risk Factors--Real Estate Investment Risks -- Risk
Related to Making Loans."
Joint Ventures and Wholly-Owned Subsidiaries
The Company may enter into joint ventures or general partnerships and
other participations with real estate developers, owners and others (but not
involving the Advisor or its Affiliates except as discussed below) for the
purpose of obtaining an equity interest in a particular Property or Properties
in accordance with the Company's investment policies. Such investments permit
the Company to own interests in large Properties without unduly restricting
diversification and, therefore, add flexibility in structuring the Company's
portfolio. The Company will not enter into a joint venture to make an investment
that it would not be permitted to make on its own. In making such equity
investments with third parties, the Company is prohibited from participating
with non-affiliates unless it acquires a controlling interest in such
investment. A "controlling interest" is defined in the Bylaws to mean an equity
interest possessing the power to direct or cause the direction of the management
and policies of the joint venture or general partnership. The Bylaws provide
that in transactions in which both non-affiliated entities and Affiliates of the
Company are participants, a controlling interest is determined by aggregating
the equity interests of the Company and any Affiliate participating in the
transaction, provided the Affiliate has investment objectives substantially
similar to those of the Company. See "Risk Factors--Real Estate Investment Risks
- -- Risks of Joint Ventures."
The Company may from time to time participate jointly with publicly
registered investment programs or other entities sponsored or managed by the
Advisor or one of its Affiliates in investments as tenants-in-common or in some
other joint venture arrangement. Joint ventures with such affiliated programs
will be permitted only if (i) a majority of the directors (including a majority
of the Independent Directors) not otherwise interested in such transaction
approve the transaction as being fair and reasonable to the Company, (ii) the
affiliated program or entity makes its investment on substantially the same
terms and conditions as the Company, and (iii) the Company and the affiliated
program or entity each have a right of first refusal to purchase the investment
if the other program wishes to sell the investment. It is not likely that the
Company will have money available to exercise this right of first refusal and
the Company has made no determination as to whether it would borrow funds or
liquidate assets in order to exercise any option. The Company will not otherwise
participate in joint investments with the Advisor or its Affiliates. The cost of
structuring joint investments will be shared ratably by the participating
investors and the Company.
The Company may form additional wholly-owned subsidiary corporations to
purchase Properties in some jurisdictions where the acquisition of Properties
through the use of such an entity would have a beneficial effect on the
Company's taxable income for state tax purposes or for other reasons deemed by
the Advisor to be beneficial to the Company. Such subsidiary corporations would
be formed for the sole purpose of acquiring a specific Property or Properties
located in one or more states and would have organizational documents (a) that
are substantially similar to the
<PAGE> 62
Organizational Documents of the Company, (b) that comply with all applicable
NASAA Guidelines, and (c) that comply with the applicable terms and conditions
set forth in this Prospectus. The Company may make loans to its wholly-owned
subsidiaries and guaranty the obligations of such subsidiaries.
Other Investments
The Company also may invest up to 10% of the net proceeds of the Offering
in unimproved or non-income-producing real property and in Equity Interests
(except that investment in Equity Interests in the aggregate shall not exceed 5%
of the net proceeds of the Offering). "Equity Interests" are defined generally
to mean stock, warrants or other rights to purchase the stock of, or other
interests in, a tenant of a Property, an entity to which the Company makes a
Loan, or a parent or controlling Person of a borrower or tenant. The Company
will invest in unimproved or non-income-producing Property which the Advisor
believes will appreciate in value or the acquisition of which will increase the
value of an adjoining or neighboring properties of the Company. There can be no
assurance, however, that such expectations will be realized. The Company
anticipates that most Equity Interests will be "restricted securities" as
defined in Rule 144 promulgated under the Securities Act. Under this rule, the
Company may be prohibited from reselling restricted securities without
limitation until it has fully paid for and held the securities for three years.
The issuer of Equity Interests in which the Company invests may never register
such interests under the Securities Act. Whether an issuer registers its
securities under such Act may depend on the success of its operations.
The Company will exercise warrants or other rights to purchase stock only
if the value of the stock at the time such rights are exercised exceeds the
exercise price. Payment of the exercise price shall not be deemed an investment
subject to the above described limitations. The Company may borrow funds to pay
the exercise price on warrants or other rights or may pay such exercise price
from funds held for working capital and then repay the loan or replenish the
working capital upon the sale of the securities or interests purchased. The
Company may not pay Dividends out of the proceeds of the sale of such interests
until any funds borrowed to purchase such interest have been fully repaid. The
Advisor will invest in Equity Interests which the Advisor believes will
appreciate in value. There can be no assurance, however, that such expectation
will be realized.
The Company will not invest in real estate contracts of sale unless such
contracts of sale are in recordable form and are appropriately recorded in the
applicable chain of title, provided, however, that in no event shall investments
in such contracts exceed 1% of total assets.
There can be no assurance as to when the Company's capital may be fully
invested in Properties. See "Income Tax Aspects -- Requirements for
Qualification as a REIT." Pending such investment, the balance of the proceeds
of the Offering will be invested in Permitted Temporary Investments, which are
defined to mean short-term U.S. Government securities, bank certificates of
deposit and other short-term liquid investments. To maintain its REIT status,
the Company also may invest in securities that qualify as "real estate assets"
and produce qualifying income under the REIT Provisions of the Code. The Company
expects that such securities will consist primarily of shares issued by other
REITs and mortgage-backed securities guaranteed by GNMA, FNMA or FHLMC. Any
investments in other REITs in which the Sponsor, Advisor or any director is an
Affiliate must be approved as being fair and reasonable by a majority of the
directors (including a majority of the Independent Directors) who are not
otherwise interested in the transaction. If all the proceeds derived from the
Offering are not invested or committed to be invested by the Company prior to
the expiration of the later of twenty-four months after the date of this
Prospectus or one year after the termination of the Offering, then the proceeds
not so invested or committed will, promptly after the expiration of such period,
be distributed pro rata to the Shareholders as a return of capital, without any
deductions for Organizational and Offering Expenses or Acquisition Expenses. For
the purpose of the foregoing provision, funds will be deemed to have been
committed to investment within such period and will not be returned to
Shareholders to the extent written agreements in principle have been executed at
any time prior to the expiration of such period, regardless of whether such
investments are consummated, and also to the extent any
<PAGE> 63
funds have been reserved to make contingent payments in connection with any
Property, regardless of whether any such payments are made.
If at any time the character of the Company's investments would cause the
Company to be deemed an "investment company" for purposes of the Investment
Company Act of 1940, the Company shall take such action as is necessary in order
to ensure that the Company is not deemed to be such an "investment company." The
Advisor will continually review the Company's investment activity to attempt to
ensure that the Company does not come within the application of the Investment
Company Act of 1940. Among other things, they will attempt to monitor the
proportion of the Company's portfolio which is placed in various investments so
that the Company does not come within the definition of an investment company
under such Act. The Company has been advised by counsel that if it is operated
in accordance with the description of its proposed business in this Prospectus,
it will not be deemed an "investment company" for purposes of the Investment
Company Act of 1940.
The Company's working capital and other reserves will be invested in
Permitted Temporary Investments. The Advisor will evaluate such factors as the
relative risks and rate of return, the Company's cash needs and other
appropriate considerations when making short-term investments on behalf of the
Company. The rate of return of Permitted Temporary Investments may be less than
or greater than would be obtainable from real estate investments.
The Company may purchase Property from the Sponsor, the Advisor, the
directors or their Affiliates only if (i) a majority of the Independent
Directors and a majority of the directors who otherwise are not interested in
the transaction approve such transaction as being fair and reasonable to the
Company, (ii) the Property was acquired by such Sponsor, Advisor, director or
Affiliate for the purpose of facilitating its purchase by the Company,
facilitating the borrowing of money or the obtaining of financing for the
Company or any other purpose related to the business of the Company, (iii) the
Property is purchased by the Company for a price no greater than the cost to
such Affiliate (provided, however, that such price may be greater than the cost
to such Affiliate, but in no event more than the appraised value, if such
Affiliate has taken significant action or has made an additional investment with
regard to the Property after its purchase which action or investment has
increased the value of the Property), and (iv) there is no adverse difference in
the interest rates of the loans secured by the Property at the time acquired by
such Sponsor, Advisor, director or Affiliate and at the time purchased by the
Company nor any other detriment arising out of such transaction to the Company.
The Company will receive all profits or losses from any Property held on an
interim basis by the Sponsor, Advisor, director or Affiliate thereof (other than
an Affiliate that is a public program or entity).
The Company will not sell Properties to the Sponsor, the Advisor, a
director or any Affiliate of any of the foregoing except pursuant to the
exercise of a right of first refusal by an affiliated joint venture partner.
USE OF BORROWING
While one of the Company's investment objectives will be diversification,
the number of different Properties the Company can acquire will be affected by
the amount of funds available to it. Since the Company may have A [minimum of
$15,000,000 and a maximum of $300,000,000 in Gross Offering Proceeds, the full
extent of the Company's actual operations cannot be determined at this time. The
Company's goal, subject to the availability of mortgage financing, is to borrow
approximately 60% of the purchase price of all Properties but there is no limit
on borrowings on individual Properties.
The ability of the Company to increase its diversification through
borrowing could be adversely impacted by the reduced availability of financing
secured by commercial real estate generally and specifically by single-tenant
net-leased real property, whether due to fewer financing sources, such as
commercial banks and insurance companies, or due to the reduced lending activity
by those sources continuing in that line of business. When interest rates on
mortgage loans are high or financing is otherwise unavailable on a timely basis,
the Company may purchase certain Properties for cash with the intention of
obtaining a mortgage loan for a
<PAGE> 64
portion of the purchase price at a later time if and when interest rates fall.
While the number of lenders making loans secured by commercial real estate has
decreased in recent years, the CPA(R) Programs have not encountered significant
difficulty in obtaining mortgage financing from institutional lenders such as
insurance companies to replace financing which previously might have been
obtained from commercial banks or savings and loans. However, there can be no
assurance that the Company will be able to achieve its borrowing objective.
There is no limitation on the amount the Company may invest in any single
improved Property or on the amount the Company can borrow for the purchase of
any Property. Aggregate borrowings as of the time that the net proceeds of the
Offering have been fully invested and at the time of each subsequent borrowing
may not exceed 75% of the value of all Properties unless such excess is approved
by a majority of the Independent Directors and disclosed to Shareholders in the
next quarterly report of the Company, along with the reason for such excess. For
purposes of determining the maximum allowable amounts of indebtedness, "value"
means the lesser of (i) the total appraised value of the Properties as reflected
in the most recently obtained appraisal for each Property and (ii) the total
value of the assets of the Company as reflected in the most recently completed
Valuation.
It is expected that, by operating on a leveraged basis, the Company will
have more funds available and, therefore, will make more investments than would
otherwise be possible, resulting in a more diversified portfolio. Although the
Company's liability for the repayment of indebtedness is expected to be limited
to the value of the Property securing such liability and the rents or profits
derived therefrom, leveraging increases risks to the Company because mortgage
principal and interest payments as well as other fixed charges must be paid in
order to prevent foreclosure on such Properties by mortgagees regardless of the
generation of income by Properties. See "Risk Factors--Real Estate Investment
Risks--Risks Associated with Borrowing." To the extent that the Company does not
obtain mortgage loans on its Properties, its ability to acquire additional
Properties will be restricted. The Advisor will use its best efforts to obtain
financing on the most favorable terms available to the Company. Lenders may have
recourse to other assets of the Company in certain limited circumstances not
related to the repayment of the indebtedness.
Lenders may also seek to include in the terms of mortgage loans provisions
making the termination or replacement of the Advisor an event of default or an
event requiring the immediate repayment of the full outstanding balance of the
loan. The Company will not agree to the inclusion of such provisions and will
attempt to negotiate loan terms allowing the Company to replace or terminate the
Advisor if such action is ordered by the Board. Such replacement or termination
may, however, require the prior consent of the mortgage lenders.
The Advisor will refinance Properties during the term of a loan only in
limited circumstances, such as when a decline in interest rates makes it
profitable to prepay an existing mortgage, when an existing mortgage matures or
if an attractive investment becomes available and the proceeds from the
refinancing can be used to purchase such investment. The benefits of such
refinancing may include an increased cash flow resulting from reduced debt
service requirements, an increase in distributions from proceeds of such
refinancing, if any, and/or an increase in property ownership if some
refinancing proceeds are reinvested in real estate.
OTHER INVESTMENT POLICIES
General
If at any time the Company does not have sufficient funds to provide that
portion of the Total Property Cost of any Property normally paid out of Offering
proceeds but would have sufficient funds if it could use the Offering proceeds
being held in escrow, funds may be borrowed from Affiliates of the Advisor or
from third parties on a short-term basis. Any such financing obtained from the
Advisor or its Affiliates may not have terms less advantageous to the Company
than those available from independent third parties and may not require a
prepayment charge or penalty. The interest rate charged on any such financing
obtained from the Advisor or its Affiliates will be equal to the lesser of 1%
above the prime rate of interest announced by The Bank of New York or the rate
that would be charged to the Company by
<PAGE> 65
unrelated lending institutions on comparable loans for the same purpose. See
"Conflicts of Interest--Purchases and Loans from Affiliates." The Company may
assign, as security for borrowings made from third parties, its right to receive
up to 85% of the Offering proceeds being held in escrow (excluding interest and
amounts held on behalf of qualified plans and IRAs). See "The Offering--Escrow
Arrangements."
At any time, subject to the approval of a majority of the Independent
Directors, the Company may borrow funds from Affiliates of either the Advisor or
third parties on a short-term basis sufficient to provide the portion of the
Total Property Cost of any Property not paid with net Offering proceeds (i.e.,
the debt portion) if (i) the Company is unable to obtain a permanent loan or, in
the judgment of the Company or the Advisor, it is not in the best interests of
the Company to obtain a permanent loan at the interest rates then prevailing and
(ii) the Advisor has reason to believe that the Company will be able to obtain a
permanent loan on or prior to the end of the loan term. Such short-term loans
may be fully or partially amortized, may provide for the payment of interest
only during the term of the loan or may provide for the payment of principal and
interest only upon maturity. In addition, such loans may be secured by a first
or junior mortgage on the Property to be acquired or by a pledge of or security
interest in the Offering proceeds that are being held in escrow which are to be
received from the sale of Shares by the Company. Any short-term loan from
Affiliates of the Advisor will bear interest at a rate equal to the lesser of 1%
above the prime rate of interest charged by The Bank of New York or the rate
that would be charged to the Company by unrelated lending institutions on
comparable loans for the same purpose in the locality of the Property. See
"Conflicts of Interest--Loans from Affiliates."
Holding Period for Investments and Application of Proceeds of Sales or
Refinancings
The Company intends to hold each Property it acquires (including
Properties and partnership interests held by wholly-owned subsidiaries and
Properties owned by joint ventures in which the Company has an interest) for an
extended period. However, certain circumstances might arise which could result
in the early sale of certain Properties. A Property may be sold before the end
of the expected holding period of such Property if (i) the lessee has
involuntarily liquidated, (ii) in the judgment of the Advisor, the value of a
Property might decline radically, (iii) an opportunity has arisen to improve
other Properties (e.g., to buy property adjacent to or abutting another Property
owned by the Company), (iv) the Company can increase cash flow through the
disposition of the Property, (v) the lessee is in default under the lease, or
(vi) in the judgment of the Company or the Advisor, the sale of the Property is
in the best interests of the Company. The Advisor may receive real estate
commissions on the sale of a Property.
The determination of whether a particular Property should be sold or
otherwise disposed of will be made after consideration of relevant factors,
including prevailing economic conditions, with a view to achieving maximum
capital appreciation for the Company. No assurance can be given that the
foregoing objective will be realized. Also, the sales price of a Property which
is net leased will be determined in large part by the amount of rent payable
under such lease. However, to the extent that the seller of a Property to the
Company has a repurchase option at a formula price, the Company may be limited
in its realization of any appreciation by the option price. In connection with
sales of Properties by the Company, purchase money obligations (i.e., the
Company would "lend" the purchaser a portion of the purchase price by allowing
the purchaser to pay less than the full purchase price in cash) may be taken by
the Company as partial or full payment. In such instances, the Company's taxable
income may exceed the cash received in such sale. See "Income Tax
Aspects--Taxation of the Company" and "Income Tax Aspects--Requirements for
Qualification as a REIT--Distribution Requirement." The terms of payment to be
accorded by the Company will be affected by custom in the area in which the
Property being sold is located and the then prevailing economic conditions. To
the extent that the Company receives purchase money mortgages rather than cash
in connection with sales of Properties, there may be a delay in making
distributions to Shareholders. A decision to provide financing to such
purchasers would be made after an investigation into and consideration of the
same factors regarding the purchaser, such as creditworthiness and likelihood of
future financial stability, as are undertaken when the Company considers a net
lease transaction. See "Income Tax Aspects--Taxation of the Company."
<PAGE> 66
If the Company's Shares are not listed for trading on a national
securities exchange or included for quotation on Nasdaq (which listing or
inclusion for quotation must be approved by the directors, a majority of the
Independent Directors and the CFA Board), the Properties generally will be
liquidated beginning five to ten years after the net proceeds of the Offering
are substantially invested. In making the decision to apply for listing of the
Shares, the Board will try to determine whether listing the Shares or
liquidating the Company will result in greater value for the Shareholders. It
cannot be determined at this time the circumstances, if any, under which the
Directors will agree to list the Shares. Such a listing is not likely to occur
during the first several years of the Company's existence. CPA(R):10, CIP(TM)
and CPA(R):12 have listing provisions similar to provisions for the listing of
the CPA(R):14 shares and as of the date of the Prospectus none of them have
listed their shares. Even if the Shares are not so listed or included for
quotation, the Company is under no obligation to liquidate its portfolio within
such period since the precise timing will depend on real estate and financial
markets, economic conditions of the areas in which the Properties are located
and Federal income tax effects on Shareholders which may prevail in the future.
Furthermore, there can be no assurance that the Company will be able to
liquidate its portfolio and it should be noted that the Company will continue in
existence until all Properties are sold and its other assets are liquidated.
The Company continually may reinvest the proceeds of Property sales in
investments that it or the Advisor believes will satisfy the Company's
investment policies; provided, however, that if the Shares are not listed for
trading on a national securities exchange or included for quotation on Nasdaq,
the Company will cease reinvesting its capital beginning five years after the
proceeds from the Offering are fully invested unless the directors (including a
majority of the Independent Directors) determine that, in light of the Company's
expected life at any given time, it is deemed to be in the best interest of the
Shareholders to reinvest Cash from Sales and Financings. See "Income Tax
Aspects--Taxation of the Company."
INVESTMENT LIMITATIONS
Numerous limitations are placed on the manner in which the Company may
invest its funds. These limitations cannot be changed unless the Bylaws are
amended, which requires the approval of the Shareholders. Unless the Bylaws are
amended, the Company will not:
- invest in commodities or commodity futures contracts, such
limitation not being applicable to futures contracts when used
solely for the purpose of hedging in connection with the Company's
ordinary business of investing in real estate assets and mortgages,
- invest in contracts for the sale of real estate unless such contract
is in recordable form and is appropriately recorded in the chain of
title (provided, however, that in no event shall investments in such
contracts exceed 1% of the total assets of the Company),
- engage in any short sale or borrow on an unsecured basis, if such
borrowing will result in asset coverage of less than 300%. "Asset
coverage," for the purpose of this clause means the ratio which the
value of the total assets of the Company, less all liabilities and
indebtedness for unsecured borrowings, bears to the aggregate amount
of all unsecured borrowings of the Company,
- make investments in Unimproved Real Property or indebtedness secured
by a deed of trust or mortgage loans on Unimproved Real Property in
excess of 10% of the total assets of the Company. "Unimproved Real
Property" means property which has the following three
characteristics: (i) an equity interest in property which was not
acquired for the purpose of producing rental or other operating
income, (ii) no development or construction is in process on such
property, and (iii) no development or construction on such property
is planned in good faith to commence on such property within one
year of acquisition,
<PAGE> 67
- issue equity securities on a deferred payment basis or other similar
arrangement,
- issue debt securities in the absence of adequate cash flow to cover
debt service,
- issue equity securities which are non-voting or assessable,
- issue "redeemable securities" as defined in Section 2(a)(32) of the
Investment Company Act of 1940,
- grant warrants and/or options to purchase Shares to the Advisor,
directors or Affiliates thereof except on the same terms as such
options or warrants are sold to the general public and the amount of
such options or warrants does not exceed an amount equal to 10% of
the outstanding Shares on the date of grant of such warrants and
options,
- engage in trading, as compared with investment activities, or engage
in the business of underwriting or the agency distribution of
securities issued by other Persons,
- invest more than 5% of the value of its assets in the securities of
any one issuer if such investment would cause the Company to fail to
qualify as a REIT,
- invest in securities representing more than 10% of the outstanding
voting securities of any one issuer if such investment would cause
the Company to fail to qualify as a REIT,
- acquire securities in any company holding investments or engaging in
activities prohibited in the foregoing clauses,
- lend money to or lease Property to or from the Advisor or its
Affiliates,
- sell Property to the Sponsor, the Advisor, a director or any
Affiliate of any of the foregoing,
- offer Shares in exchange for Property,
- make or invest in mortgage loans that are subordinate to any
mortgage or equity interest of the Advisor, directors, Sponsor or
Affiliates of the Company, or
- make loans where the amount advanced by the Company plus the amount
of any existing loans that are equal or senior to the Company's loan
exceeds 100% of the appraised vale of the property.
CHANGE IN INVESTMENT OBJECTIVES AND LIMITATIONS
The Bylaws require that the Independent Directors review the Company's
investment policies at least annually to determine that the policies being
followed by the Company are in the best interest of the Shareholders. Each such
determination and the basis therefor shall be set forth in the minutes of the
Company. The methods of implementing the Company's investment policies also may
vary as new investment techniques are developed. The methods of implementing the
investment Procedures, Objectives and Policies of the Company, except as
otherwise provided in the Organizational Documents, may be altered by a majority
of the directors (including a majority of the Independent Directors) without the
approval of the Shareholders.
<PAGE> 68
HOLDERS OF SHARES OF THE COMPANY
As of the date of this Prospectus, 20,000 Shares have been issued by the
Company and are held by the Advisor.
MANAGEMENT DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
The Company is newly formed and has no operating history. The Company is
dependent upon proceeds received from the Offering to conduct its proposed
activities. The capital required to purchase any Property will be obtained from
the Offering and from any mortgage indebtedness that the Company may incur in
connection with the acquisition of any Property or thereafter. The Company
initially has been capitalized with $200,000 from the sale of 20,000 Shares to
the Advisor. The Company has no commitments to acquire any Property or to make
any other material capital expenditures. For information concerning the
anticipated use of proceeds from the Offering, see "Estimated Use of Proceeds,"
"Investment Objectives and Policies" and "Description of Properties."
The Company intends to establish a working capital reserve in an amount
equal to 1.0% of the Gross Offering Proceeds, which reserve is anticipated to be
sufficient to satisfy liquidity requirements. Liquidity would be affected
adversely by unanticipated costs and greater-than-anticipated operating
expenses. To the extent that the working capital reserve is insufficient to
satisfy the cash requirements of the Company, additional funds may be provided
from cash generated from operations or through short-term borrowings. In
addition, subject to limitations described in this Prospectus, the Company may
incur indebtedness in connection with the acquisition of any Property, refinance
the debt thereon, arrange for the leveraging of any previously unfinanced
Property or reinvest the proceeds of financings or refinancings in additional
Properties. See "Investment Objectives and Policies."
<PAGE> 69
DESCRIPTION OF PROPERTIES
Although the Company has not yet purchased any properties, the Advisor is
evaluating various potential Property acquisitions and is engaging in
discussions with sellers regarding the purchase of Properties for the Company.
During the continuation of the Offering, and at such time during the
negotiations of a potential Property acquisition when the Advisor believes a
reasonable probability exists that such Property will be acquired by the
Company, this Prospectus will be supplemented to disclose such potential
Property acquisition. Based on the Advisor's experience and acquisition methods,
this generally will occur upon the signing of a legally binding purchase
agreement or after the execution of a letter of intent to purchase a Property
and the obtaining of a commitment for financing, but may occur before or after
such events depending on the particular circumstances surrounding each potential
acquisition. Any such supplement to this Prospectus will set forth available
data with respect to the acquisition including the proposed terms of the
purchase, a description of the Property to be acquired, and other information
considered appropriate for an understanding of the transaction. Further data
will be made available after any acquisition has been consummated during the
Offering also by means of a supplement to this Prospectus. See "Reports to
Shareholders" for a description of other reports to Shareholders which will
describe Property acquisitions.
IT SHOULD BE UNDERSTOOD THAT THE INITIAL DISCLOSURE IN THIS PROSPECTUS OR
A SUPPLEMENT OF ANY POTENTIAL ACQUISITION CANNOT BE RELIED UPON AS AN ASSURANCE
THAT THE COMPANY ULTIMATELY WILL CONSUMMATE SUCH POTENTIAL ACQUISITION OR THAT
THE INFORMATION PROVIDED CONCERNING THE POTENTIAL ACQUISITION WILL NOT CHANGE
BETWEEN THE DATE OF THIS PROSPECTUS OR SUCH SUPPLEMENT AND ACTUAL PURCHASE.
<PAGE> 70
INCOME TAX ASPECTS
The following discussion is a summary of the material Federal income tax
considerations that may be relevant to prospective Shareholders and does not
purport to be an analysis of all aspects of Federal, state, local and foreign
tax law that may affect a Shareholder's investment in the Company. The following
discussion is based on the Code, existing laws and administrative regulations
(the "Regulations"), judicial decisions, administrative rulings and practice,
all of which are subject to change retroactively or prospectively and to
possibly different interpretations. The Company also may be subject to state and
local taxes in jurisdictions in which the Company is deemed to be doing business
or in which it owns Property or other interests.
Shareholders could be subject to state and local taxes in their
jurisdiction of residence. See "Income Tax Aspects--State and Local Taxes." This
analysis is not intended as a comprehensive discussion of state or local tax
issues or as a substitute for careful tax planning, and prospective Shareholders
are urged to consult their own tax advisors, attorneys or accountants with
specific reference to their own tax situation and potential changes in the
applicable law. See "Risk Factors--Tax Risks--REIT Status for Tax Purposes."
The following discussion generally is directed to the Federal income tax
treatment of a United States resident individual. Separate sections herein
describe in summary form the Federal income tax treatment of certain other
classes of potential investors including IRAs, Keogh Plans, pension and profit
sharing trusts and other tax-exempt entities, and non-resident alien and foreign
Shareholders. A separate section also describes in summary form the state and
local tax consequences to the Company and its Shareholders. BECAUSE THE TAX
IMPLICATIONS OF AN INVESTMENT IN THE COMPANY MAY VARY DEPENDING ON THE
PARTICULAR FACTS AND CIRCUMSTANCES AFFECTING EACH PROSPECTIVE INVESTOR, EACH
PROSPECTIVE INVESTOR SHOULD SATISFY HIMSELF OR HERSELF AS TO THE INCOME AND
OTHER TAX CONSIDERATIONS AND CONSEQUENCES OF HIS OR HER INVESTING IN THE COMPANY
BY CONSULTING HIS OR HER OWN TAX ADVISOR BEFORE BECOMING A SHAREHOLDER.
OPINION OF COUNSEL
The Company intends to conduct its operations in a manner that will permit
it to qualify and elect to be treated as a REIT for Federal income tax purposes
for no later than its first taxable year in which the Initial Closing Date
occurs and for each taxable year thereafter. The Company has not requested a
ruling from the IRS as to the qualification of the Company as a REIT. The
Company, however, has obtained an opinion from Reed Smith Shaw & McClay that,
for Federal income tax purposes, based on current law or interpretations
thereof, (i) the Company will qualify as a REIT provided the Company is operated
in the manner described in this Prospectus and in accordance with the
representations set forth in this Prospectus and satisfies the Share ownership
tests described below, and (ii) based on Revenue Ruling 66-109, 1966-1 C.B. 151,
distributions will not constitute UBTI to a Shareholder that is a tax-exempt
entity (such as a pension plan, IRA or charitable remainder trust) that is
required to account for UBTI even if the Company owns debt financed property as
that term is defined in the Code, provided that (i) such Shareholder does not
incur any "acquisition indebtedness" with respect to its Shares and (ii) the
Company is not a pension-held REIT as defined by the Code. See "Income Tax
Aspects--Taxation of Tax-Exempt Entities." Each prospective investor should note
that the opinions described herein represent only Counsel's best legal judgment
as to the most likely outcome if relevant issues were litigated by the IRS and
have no binding effect or official status of any kind. Thus, in the absence of a
ruling from the IRS, there can be no assurance that the IRS will not challenge
any of Counsel's opinions. Reed Smith Shaw & McClay will not review the
Company's compliance with the requirements for qualification as a REIT on a
continuing basis and although the Board and the Advisor intend to cause the
Company to operate in a manner that will enable it to comply with the REIT
Provisions, there can be no certainty that such intention will be realized. If
the IRS successfully challenges the tax status of the Company as a REIT, many,
if not all, of the tax benefits discussed herein available to entities
qualifying as REITs would not be available to the Company or its Shareholders.
<PAGE> 71
TAXATION OF THE COMPANY
For any taxable year in which the Company qualifies as a REIT, it
generally will not be subject to Federal income tax on that portion of its
taxable income that is distributed to Shareholders except certain income or gain
with respect to Foreclosure Property (generally, property the Company acquires
or reenters as a result of a default by a borrower or tenant with respect to
which it files an election with the IRS), which will be taxed at the highest
corporate rate. See "Income Tax Aspects--Requirements for Qualification as a
REIT." If the Company were to fail to qualify as a REIT, it would be taxed at
rates applicable to corporations on all its income, whether or not distributed
to its Shareholders. Moreover, generally, the Code would not require the Company
to make any distributions. Even if it qualifies as a REIT, the Company will be
taxed at corporate rates on the portion of its taxable income that it does not
distribute to the Shareholders, such as taxable income retained as nondeductible
reserves. See "Income Tax Aspects--Requirements for Qualification as a
REIT--Income Tests" and "Income Tax Aspects--Disposition of Properties."
In addition, regardless of distributions to Shareholders, if the Company
fails certain tests for qualification as a REIT or engages in Prohibited
Transactions (generally, sales of certain property held by the Company for sale
to customers in the ordinary course of its trade or business), it may retain its
REIT status but be required to pay certain taxes. See "Income Tax
Aspects--Requirements for Qualification as a REIT--Income Tests" and "Income Tax
Aspects--Disposition of Properties."
The Company also will be subject to the alternative minimum tax. Since the
Company will elect to depreciate its Properties pursuant to the alternate
depreciation system, unless it recognizes gain using the installment method, it
should not realize tax preferences or adjustments subject to the alternative
minimum tax. Section 59(d) of the Code authorizes the Department of the Treasury
to issue Regulations allocating items of tax preference between a REIT and its
stockholders. Such Regulations have not yet been issued.
In addition to the tax on any undistributed income, the Company,
generally, also will be subject to a 4% excise tax on the amount, if any, by
which the sum of (i) 85% of its REIT ordinary income (as defined in Section 4981
of the Code), (ii) 95% of any net capital gain, and (iii) any undistributed
taxable income from prior years, exceeds the amount actually distributed by the
Company to its Shareholders during the calendar year or declared as a Dividend
during the calendar year (if distributed during the following January). In order
to satisfy this timing requirement, the Company intends to make its fourth
quarter distribution within 31, rather than 45, days after the close of the
fourth calendar quarter and will declare such Dividend before the end of the
quarter in order to avoid imposition of the excise tax. See "Income Tax
Aspects--Taxation of Taxable Domestic Shareholders." Imposition of any tax on
the Company (including excise taxes) would reduce the amount of cash available
for distribution to Shareholders.
REQUIREMENTS FOR QUALIFICATION AS A REIT
In order to qualify as a REIT, the Company must elect to be taxed as a
REIT and satisfy a variety of complex tests relating to its organization,
structure, Share ownership, assets, income and distributions, as well as record
keeping requirements. Those tests are summarized below. See also "Income Tax
Aspects--Statement of Stock Ownership."
Organizational and Structural Requirements and Share Ownership Tests. In
order to qualify for taxation as a REIT under the Code, the Company (i) must be
a domestic corporation (or certain other forms of organization); (ii) must be
managed by one or more trustees or directors; (iii) must have transferable
shares; (iv) cannot be a financial institution or an insurance company; (v) must
have at least 100 Shareholders for at least 335 days of each taxable year of 12
months (or proportionate part of any taxable year of less than 12 months) after
its first taxable year; and (vi) must not be closely held. The Company will be
closely held only if five or fewer individuals or certain tax-exempt entities
own, directly or indirectly, more than 50% (by value) of its Shares at any time
during the last half
<PAGE> 72
of the taxable year of the Company after its first taxable year. However, for
purposes of the closely-held test, the Code generally permits a look through for
tax-exempt entities subject to the five or fewer rule to the beneficiaries of
such entity to determine if the REIT is closely held if the REIT is a
pension-held REIT. However, if a tax-exempt Shareholder owns more than 25
percent of the Company or one or more such Shareholders, each of whom own at
least 10 percent of the Company, in the aggregate own more than 50 percent of
the Company, such Shareholder(s) may be required to treat all or a portion of
their dividends from the Company as UBTI. See "Taxation of Tax-Exempt Entities."
As a Maryland corporation, the Company satisfies the first requirement. In
addition, the Company will be managed by a board of directors, has transferable
Shares and does not intend to operate as a financial institution or insurance
company. Additionally, the Company intends to have more than 100 Shareholders.
Furthermore, the Company may refuse to sell or transfer Shares in the Company to
any Person if the sale or transfer would jeopardize the Company's ability to
satisfy the REIT ownership requirements; however, there can be no assurance that
such a refusal to transfer will be effective. Based on the foregoing, the
Company should satisfy the organizational and structural requirements as well as
the Share ownership tests.
Asset Tests. At the close of each calendar quarter of each taxable year,
the Company must satisfy asset tests set forth in the Code (the "Asset Tests").
At least 75% of the value of the Company's total assets must consist of: (i)
"real estate assets" including real property or interests in real property and
interests in mortgages on real property, shares in other qualifying REITs,
interests in REMICs, certain options and "new capital investments," (ii) cash
and cash items (including receivables arising in the ordinary course of the
Company's operations), and (iii) government securities. A "new capital
investment" is a debt instrument or stock but only for the one-year period
beginning on the date the Company receives such capital.
Additionally, at the end of each calendar quarter, not more than 25% of
the value of the Company's total assets may consist of securities (other than
those includible under the 75% test). Also, no more than 5% of the value of the
Company's assets may consist of the securities of any one issuer, and the
Company may not own more than 10% of the outstanding voting securities of any
one issuer. However, property owned through a "qualified REIT subsidiary," i.e.,
a corporation that is wholly owned by the REIT throughout the entire existence
of the corporation, is treated as property owned directly by the REIT for
Federal income tax purposes.
The Company must satisfy the Asset Tests at the end of each quarter.
However, a mere change in the market value of the Company's assets alone will
not affect the Company's status as a REIT. Additionally, if, as of the close of
a calendar quarter, the Company fails to satisfy the Asset Tests, it will be
treated as if it had satisfied the Asset Tests at the end of such quarter if it
satisfies the Asset Tests within 30 days after the close of such quarter.
Income Tests. To qualify and maintain its status as a REIT, the Company
must satisfy three distinct income-based tests with respect to the sources of
its income for each taxable year; the "75% Income Test," the "95% Income Test"
and the "30% Income Test."
75% Income Test and 95% Income Test. The 75% Income Test requires that at
least 75% of the Company's gross income (excluding gross income from Prohibited
Transactions, i.e. generally, sales of certain property held primarily for sale
to customers in the ordinary course of business) be derived from: (i) "rents
from real property;" (ii) interest on obligations secured by mortgages on real
property or on interests in real property (other than interest based in whole or
in part on the income or profits unless such interest is based on gross sales or
receipts) and income derived from the ownership of interests in a REMIC; (iii)
gain from the sale or other disposition (other than in a Prohibited Transaction)
of REIT shares or of a real estate asset; (iv) dividends or other distributions
on shares in other REITs; (v) abatements and refunds of taxes on real property;
(vi) income and gain from the sale or other disposition of Foreclosure Property;
(vii) amounts (other than amounts the determination of which depend, in whole or
in part, on the income or profits of any person or entity) received or accrued
as consideration for entering into
<PAGE> 73
agreements to make loans secured by mortgages on real property (e.g. commitment
fees) or to purchase or lease real property (including interests in mortgages on
real property); and (viii) qualified temporary investment income, for example,
income from "new capital investments" (as defined above).
Rents received by the Company for Properties will qualify as "rents from
real property" for purposes of the 75% Income Test if the following requirements
are satisfied:
(i) Generally, the amount of rent received must not be based on the
income or profits of a tenant but may be based on a fixed percentage of a
tenant's gross receipts or sales;
(ii) The Company may not own, actually or constructively, a 10% or
greater interest in a tenant;
(iii) The Company does not furnish or render certain services to the
tenants of such Property, other than through an independent contractor, as
defined by the Code, from whom it does not derive income. Because
Properties are expected to be leased under net leases, the Company is not
expected to furnish or render any services to tenants. The Company
currently intends to engage an Affiliate of the Advisor as an independent
contractor for any Property that is no longer operated by the tenant as a
consequence of a lease default or termination; and
(iv) Rent attributable to personal property leased in connection
with a lease of real property may not exceed 15% of the total rent
received under the lease. For this purpose, rent is attributable to real
and personal property in proportion to the relative adjusted tax bases of
such property.
If the Company acquires ownership of Property by reason of the default of
a borrower on a loan or possession of Property by reason of a tenant default, if
the Property qualifies and the Company elects to treat it as Foreclosure
Property, the income from the Property will qualify under the 75% Income Test
and the 95% Income Test notwithstanding its failure to satisfy the foregoing
requirements for two years, or if extended for good cause, up to a total of five
years. In that event, the Company must satisfy a number of complex rules, one of
which is a requirement that it operate the Property through an independent
contractor. The Company will be subject to tax on that portion of its net income
from Foreclosure Property that does not otherwise qualify under the 75% Income
Test.
In addition to deriving 75% of its gross income from the sources described
above, the 95% Income Test requires that at least an additional 20% of the
Company's gross income (excluding income from Prohibited Transactions) must be
derived from those items described in the 75% Income Test, as well as dividends
or interest from any source, and gains from the sale or other disposition of
stock and securities.
Prior to the making of any investments in Properties, the Company may
satisfy the 75% Asset Test and the 95% Income Test by investing in liquid assets
such as government securities or certificates of deposit, but earnings from
those types of assets are qualifying income under the 75% Income Test only for
one year from the receipt of proceeds from the Offering. Accordingly, to the
extent that Offering proceeds have not been invested in Properties prior to the
expiration of this one-year period, in order to satisfy the 75% Income Test, the
Company may invest such Offering proceeds in less liquid investments such as
mortgage-backed securities guaranteed by GNMA, FHMA, or FHLMC, maturing mortgage
loans purchased from mortgage lenders or shares in other REITs. The Company
expects to receive proceeds from the Offering in a series of closings and to
trace such proceeds for purposes of determining the one-year period for "new
capital investments." No rulings or Regulations have been issued under the
provisions of the Code governing "new capital investments," so that there can be
no assurance that the IRS will agree with this method of calculation. In the
unlikely event that the Company has difficulties in investing its Offering
proceeds in Properties or other assets generating income qualifying under the
75% Income Test within this one-year period, the time when the Company is able
to qualify as a REIT could be delayed, and the Company might not qualify as a
REIT during its first or second years of operation.
<PAGE> 74
If the Company fails to satisfy either the 75% Income Test or 95% Income
Test during a taxable year, it will be subject to a 100% tax on the greater of
the amount by which it fails either the 75% Income Test or the 95% Income Test.
However, it still may qualify as a REIT in such year if (i) it reports the
source and nature of each item of its gross income in its Federal income tax
return for such year; (ii) the inclusion of any incorrect information in its
return is not due to fraud with intent to evade tax; and (iii) the failure to
meet such tests is due to reasonable cause and not to willful neglect.
30% Income Test. Less than 30% of the Company's gross income may be
derived from the sale or other disposition of: (i) stock or securities held for
less than 12 months; (ii) property in a transaction that is a Prohibited
Transaction; and (iii) real property and mortgage loans secured by real property
held for less than four years other than (a) property compulsorily or
involuntarily converted and (b) Foreclosure Property. Thus, sales and other
dispositions of real property that has been held less than four years by the
Company, depending upon the amount of the Company's other income in the year of
sale, could cause the Company not to satisfy the requirements of the 30% Income
Test. See "Income Tax Aspects--Disposition of Properties." (For the taxable year
in which a REIT completely liquidates, gain from the disposition of property
after adoption of the plan of complete liquidations is not taken into account
for purposes of the 30% Income Test.)
No mitigation provisions apply to a failure of the 30% Income Test.
Therefore, if the Company fails to satisfy the 30% Income Test, regardless of
the reason for such failure, its status as a REIT automatically terminates. See
"Income Tax Aspects--Termination of REIT Status."
For purposes of the foregoing asset and income tests, if the Company
invests as a partner in a partnership or in a qualified REIT subsidiary, it will
be deemed to own its proportionate share of the partnership's or subsidiary's
assets and will take into account its proportionate share of the partnership's
or its subsidiary's income items and such income items will retain the same
character (e.g., rent, gain from "dealer property," (i.e., property held
primarily for sale to customers in the ordinary course of the holder's business,
etc.)) they had at the partnership or subsidiary level. Except for amounts
received with respect to certain investments in cash reserves, the Company
anticipates that substantially all of its gross income will be derived from (i)
rents from its Properties, (ii) income from mortgage-backed securities, (iii)
income from "new capital investments" (as defined above), (iv) gains from the
disposition of Properties held for four years or more, (v) gains from the
disposition of securities, and (vi) income from other qualified real estate
assets. Consequently, while the Company expects to satisfy the income tests, no
assurance can be given in this regard.
Distribution Requirement. In order to maintain its status as a REIT, the
Company must satisfy the "95% Distribution Test." The 95% Distribution Test
requires, generally, that the Company distribute to the Shareholders its
Distributable REIT Taxable Income (generally, 95% of its taxable income less its
net capital gains). The 95% Distribution Test is based on the Company's REIT
Taxable Income rather than its available cash. As a result, while the Company
expects to satisfy this requirement, its ability to make the required
distributions may be impaired if it has insufficient cash flow or otherwise has
excessive noncash income or nondeductible expenditures. Furthermore, if after
the close of a taxable year, the IRS successfully adjusts the income of the
Company (e.g., challenges a deduction taken by the Company), the 95%
Distribution Test may be determined not to have been satisfied in such a year.
In such a case, the Company may elect to make a deficiency dividend in order to
satisfy the 95% Distribution Test. See "Income Tax Aspects--Sale-Leaseback
Transactions."
In computing its REIT Taxable Income, the Company expects to use the
accrual method of accounting and depreciate depreciable Property under the
alternative depreciation system. The Company is required to file an annual
Federal income tax return, which, like other corporate returns, is subject to
IRS examination. Because the tax law requires the Company to make many judgments
regarding the proper treatment of a transaction or an item of income or
deduction, it is possible that the IRS will challenge positions taken by the
Company in computing its REIT Taxable
<PAGE> 75
Income and its distributions. Issues could arise, for example, with respect to
the allocation of the purchase price of Properties between depreciable or
amortizable assets and nondepreciable or non-amortizable assets such as land and
the current deductibility of fees paid to the Advisor or its Affiliates. Were
the IRS to challenge successfully the Company's characterization of a
transaction or determination of its REIT Taxable Income, the Company could be
found not to have satisfied a requirement for qualification as a REIT and
mitigation provisions might not apply. See "Income Tax Aspects--Sale-Leaseback
Transactions." If, as a result of a challenge, the Company is determined not to
have satisfied the 95% Distribution Test, it would be disqualified as a REIT
(unless it were to pay a deficiency dividend and pay interest and a penalty) as
provided by the Code. A deficiency dividend cannot be used to satisfy the 95%
Distribution Test if the failure to meet such test was not due to a later
adjustment to the Company's income by the IRS.
For purposes of the 95% Distribution Test, dividends include not only
dividends paid during the taxable year but also dividends that are declared
before the due date of the Company's tax return for the taxable year (including
extensions) and are paid within 12 months of the end of such taxable year and no
later than the Company's next regular distribution payment. However, see "Income
Tax Aspects--Taxation of the Company" for discussion of an excise tax provision
that could require the Company to distribute its fourth quarter dividend in each
year on or before January 31 of the following year and see "Income Tax
Aspects--Taxation of Taxable Domestic Shareholders" for a discussion of how
taxable Shareholders are taxed on distributions.
TERMINATION OF REIT STATUS
The Company intends to satisfy all of the qualification tests and
requirements for it to be treated as a REIT for Federal income tax purposes.
However, if it fails to meet one or more of them and such failure is not
mitigated, its election to be a REIT will terminate, effective for the year of
such failure and all succeeding years. However, if (i) the Company did not
willfully fail to file a timely return with respect to the termination taxable
year, (ii) inclusion of any incorrect information in such return was not due to
fraud with intent to evade tax, and (iii) the Company establishes that failure
to meet the requirements was due to reasonable cause and not to willful neglect,
the Company could elect again to be taxed as a REIT, if it so qualified, for the
first taxable year after its election terminated provided that it had no
undistributed earnings and profits. Furthermore, while the Company has no
intention of doing so, it may revoke its election voluntarily. Except as
discussed above, in the event of a termination of the Company's election to be
taxed as a REIT, a new election may not be made by the Company for any taxable
year prior to the fifth taxable year following the year of termination.
If the Company were to reelect to qualify as a REIT after its election
terminated for any reason, in the tax year immediately prior to its reelection,
it would be required to include in its income any "net built-in gain" and pay
corporate level income tax on such amount. Net built-in gain is the excess of
aggregate gains (including income items) over aggregate losses that would have
been realized had the Company sold all of its assets. Alternatively, the Company
could elect to treat its net built-in gains similarly to the way certain S
corporations treat net built-in gains, i.e., any net built-in gain recognized
over the ten-year period after the election would be subject to tax at the
corporate level. The President of the United States has submitted proposed
legislation to Congress that would eliminate the ability of S corporations and
REITS, the fair market value of which exceeds $5,000,000, from taking advantage
of the 10 year period.
SALE-LEASEBACK TRANSACTIONS
Many of the Company's investments are and will be in the form of
sale-leaseback transactions wherein the Company either will (i) purchase
Property free of encumbrances, net lease such Property back to the seller and
obtain separate mortgage financing or (ii) purchase Property subject to a
mortgage and an existing net lease. In most instances, depending on the economic
terms of the transaction, the Company will be treated for Federal income tax
purposes as either the owner of the Property or the holder of a debt secured by
the Property. The Company does not expect to
<PAGE> 76
request an opinion of counsel concerning the status of any leases of Properties
as true leases for Federal income tax purposes.
The IRS may take the position that certain sale-leaseback transactions the
Company will treat as true leases are not true leases for Federal income tax
purposes but are, instead, financing arrangements or loans or the Company may
structure certain sale-leaseback transactions as such. In such event, for
purposes of the Asset Test and the 75% Income Test, each such loan likely would
be viewed as secured by real property to the extent of the fair market value of
the Underlying Real Property. It is expected that, for this purpose, the fair
market value of the Underlying Real Property would be determined without taking
into account the Company's lease. If a sale-leaseback transaction were
successfully so recharacterized, the Company might fail to satisfy the Asset
Tests or the Income Tests and consequently lose its REIT status effective with
the year of recharacterization or the amount of the Company's REIT Taxable
Income could be affected. As a consequence, the Company's Distributable REIT
Taxable Income could be determined to be greater than the amount reported by the
Company, and, therefore, the Company potentially could have failed the 95%
Distribution Test. See "Income Tax Aspects--Requirements for Qualification as a
REIT -- Distribution Requirement."
DISPOSITION OF PROPERTIES
Gain or loss realized by the Company upon the disposition of any Property
acquired by the Company will be treated as capital gain or loss except to the
extent (i) of depreciation recapture, if any, with respect to any personal
Property sold, (ii) in the year of sale, the Company realized a net loss on the
sale of depreciable property which is real estate used in its trade or business,
(iii) the Company has net unrecaptured Code Section 1231 losses, or (iv) the
Property sold is dealer property (as defined above). If the Company disposes of
real property in a Prohibited Transaction: (a) any gains recognized by the
Company upon the disposition of the real property may be subject to a 100% tax
on resulting net income except insofar as the Company satisfies certain
statutory safe harbors. Moreover, depending on the composition of the Company's
total gross income, the Company could fail one or more of the income tests for
qualification as a REIT. Under existing law, whether a Property is held
primarily for sale to customers in the ordinary course of business must be
determined from all the facts and circumstances then surrounding the particular
Property and sale in question. The Company intends to hold all Property for
investment purposes and to make such occasional dispositions thereof as in the
opinion of the Board and the Advisor are consistent with the Company's
investment objectives and in compliance with all the rules discussed above
governing the qualification of the Company for REIT status. Accordingly, the
Company does not anticipate that it will be treated as a "dealer" with respect
to any of its assets. There can be no assurance, however, that the IRS will not
take a contrary position.
Additionally, the Code provides that sales that meet the following
requirements will not be Prohibited Transactions even if the Property sold was
held primarily for sale to customers in the ordinary course of the REIT's trade
or business: (i) the Company held the Property for four or more years, (ii)
expenditures made by the Company during the prior four-year period includible in
the basis for the Property do not exceed 30% of the net sales price of the
Property, (iii) either (a) during the Company's tax year, the Company does not
make more than seven sales of Properties (other than Foreclosure Property) or
(b) the aggregate adjusted tax basis of Properties (other than Foreclosure
Property) sold during the tax year does not exceed 10% of the aggregate basis of
all of the Company's assets as of the beginning of its tax year, (iv) if the
Property sold consists of land or improvements which is not Foreclosure
Property, the Company held the Property for four or more years for production of
rental income, and (v) if (iii)(a) is not satisfied, substantially all of the
marketing and development expenditures made with respect to the Property were
made through an independent contractor. See "Income Tax Aspects--Requirements
for Qualification as a REIT--Income Tests." For purposes of requirement
(iii)(a), a sale of more than one Property to one buyer as part of one
transaction is treated as one sale.
<PAGE> 77
TAXATION OF TAXABLE DOMESTIC SHAREHOLDERS
As long as the Company qualifies as a REIT, distributions from the Company
(other than distributions designated as capital gain dividends) will be taxable
to Shareholders who are not tax-exempt entities as ordinary income to the extent
of the earnings and profits of the Company. Any Dividend declared by the Company
in October, November or December of any year payable to Shareholders of record
on a date in such month will be treated as if it were received by the
Shareholders on December 31, provided such Dividend actually is paid by January
31, of the following year. Consequently, any such Dividend will be taxable to a
Shareholder in such Shareholder's taxable year including December 31. (It is
possible that any portion of a Dividend made to a Shareholder after December 31
not from current or accumulated earnings and profits would be treated as a
distribution by the Company in the year it is actually made. Accordingly, if the
Company has sufficient earnings and profits in the year in which such Dividend
actually is paid, no portion of such Dividend would be a return of capital
distribution.) Dividends paid to such Shareholders will not constitute passive
activity income (such income, therefore, will not be subject to reduction by
losses from passive activities of a Shareholder who is subject to the passive
activity loss rules). Such distributions, however, will be considered investment
income, which may be offset by investment expense deductions. Dividends from the
Company that are designated as capital gains dividends by the Company will be
taxed as long-term capital gain to taxable Shareholders to the extent that they
do not exceed the Company's actual net capital gain for the taxable year. A
Shareholder that is a corporation may be required to treat up to 20% of any such
capital gains dividend as ordinary income. Such distributions, whether
characterized as ordinary income or as capital gains, are not eligible for the
70% dividends received deduction for corporations. Shareholders are not
permitted to deduct any net losses of the Company.
A Dividend that is not designated as a capital gains dividend and that is
in excess of the Company's current or accumulated earnings and profits is
treated as a return of capital to a Shareholder and reduces the tax basis of the
Shareholder's Shares (but not below zero). Any such distribution in excess of
the tax basis of a Shareholder's Shares is taxable to any such Shareholder who
is not a tax-exempt entity as gain realized from the sale of the Shares.
TAXATION OF DISPOSITION OF SHARES OF THE COMPANY
In general, any gain or loss realized upon a taxable disposition of Shares
of the Company by a Shareholder who is not a dealer in securities will be
treated as long-term capital gain or loss if the Shares have been held for more
than 12 months and as short-term capital gain or loss if the Shares have been
held for 12 months or less. If, however, the Shareholders have received any
capital gains dividends with respect to such Shares, any loss realized upon a
taxable disposition of Shares held for six months or less, to the extent of such
capital gains dividends received with respect to such Shares, will be treated as
long-term capital loss.
TAXATION OF TAX-EXEMPT ENTITIES
In general, a Shareholder that is a tax-exempt entity not subject to tax
on its investment income will not be subject to tax on distributions from the
Company. In Revenue Ruling 66-106, 1966-1 C.B. 151, the IRS ruled that amounts
distributed as dividends by a REIT do not constitute UBTI when received by a
qualified plan. Based on that ruling, Counsel has opined that, regardless
whether the Company incurs indebtedness in connection with the acquisition of
Properties, distributions paid by the Company to a Shareholder that is a
tax-exempt entity will not be treated as UBTI, provided that (i) the tax-exempt
entity has not financed the acquisition of its Shares with "acquisition
indebtedness" within the meaning of the Code and the Shares otherwise are not
used in an unrelated trade or business of the tax-exempt entity and (ii) the
Company is not a pension-held REIT. This opinion applies to a Shareholder that
is an organization that qualifies under Code Section 401(a), an IRA or any other
tax-exempt organization that would compute UBTI, if any, in accordance with Code
Section 512(a)(1). However, if the Company is a pension-held REIT and a
tax-exempt Shareholder owns more than 10 percent of the Company, such
Shareholder will be required to recognize as UBTI that percentage of the
dividends that it receives from the Company as is equal to the percentage of the
Company's gross income that would be
<PAGE> 78
UBTI to the Company if the Company were a tax-exempt entity required to
recognize UBTI. A REIT is a pension-held REIT if at least one qualified trust
holds more than 25 percent of the value of the REIT's shares or one or more
qualified trusts, each of whom own more than 10 percent of the REIT's shares,
hold more than 50 percent of the value of the REIT's shares. A tax-exempt
Shareholder also should be aware that Congress currently is examining the
taxation of investment income received by tax-exempt entities including the
treatment of income received by such entities from REITs and other pass-through
entities and is considering whether to treat income derived from a REIT as UBTI
to the extent that the REIT has incurred debt to acquire its assets. The
Congressional committee conducting this examination has not yet concluded its
study.
For social clubs, voluntary employee benefit associations, supplemental
unemployment benefit trusts and qualified group legal services plans exempt from
Federal income taxation under Code Sections 501(c)(7), (c)(9), (c)(17) and
(c)(20), respectively, income from an investment in the Company will constitute
UBTI unless the organization is able to deduct amounts set aside or placed in
reserve for certain purposes so as to offset the UBTI generated by its
investment in the Company. Such prospective Shareholders should consult their
own tax advisors concerning these "set aside" and reserve requirements.
FOREIGN SHAREHOLDERS
The rules governing United States Federal income taxation of nonresident
alien individuals, foreign corporations, foreign partnerships and other foreign
Shareholders are complex and no attempt will be made herein to provide more than
a summary of such rules. Prospective foreign Shareholders should consult with
their own tax advisors to determine the impact of United States Federal, state
and local income tax laws with regard to an investment in Shares.
A nonresident shareholder of a REIT generally is not considered to be
engaged in a trade or business through a permanent establishment in the United
States by reason of their ownership of shares in the REIT. The taxation of
Dividends will depend generally upon whether the Dividends are attributable to
ordinary income or capital gain. To the extent the Dividends are attributable to
ordinary income, they will be treated as dividend income to the extent of the
earnings and profits of the Company and will be subject to a withholding tax
equal to 30% of the gross amount of the Dividends unless (i) an applicable tax
treaty between the United States and the country of residence for tax purposes
of the foreign Shareholder reduces or eliminates that tax, or (ii) the foreign
Shareholder is independently engaged in a United States trade or business and
the Dividends received from the Company are effectively connected with that
trade or business. The Company expects to withhold United States income tax at
the rate of 30% on the gross amount of any such distributions made to a foreign
Shareholder unless (i) a lower treaty rate applies and the Shareholder files IRS
Form 1001 or (ii) the Shareholder files an IRS Form 4224 with the Company
claiming that the distribution is effectively connected income. Ordinary income
Dividends in excess of the Company's earnings and profits will be treated as a
nontaxable return of capital to the extent of the foreign Shareholder's cost of
his Shares, with any additional amounts treated as amounts received in exchange
for his Shares.
Capital gains Dividends paid to a foreign Shareholder will be taxed to
such foreign Shareholder under the provisions of the Foreign Investment in Real
Property Tax Act of 1980 ("FIRPTA"). Under FIRPTA, these distributions, to the
extent attributable to U.S. real property interests, are taxed to foreign
Shareholders as effectively connected with a United States business, thereby
subjecting such gain to United States income tax (at a rate of not less than 21%
in the case of foreign individuals). The Company is required by applicable
Temporary Regulations, to withhold 34% of any distribution designated or that
could be designated by the Company as a capital gains dividend. Also, capital
gains dividends (net of the amount of regular income tax) may be subject to a
30% branch profits tax in the hands of a foreign corporate Shareholder not
entitled to treaty exemption from the branch profits tax.
Gain recognized by a foreign Shareholder upon a sale of Shares generally
will not be subject to FIRPTA taxation and withholding rules provided the
Company is a
<PAGE> 79
domestically controlled REIT (i.e., a REIT that is owned less than 50% by
foreign Persons during a specified testing period). Such gain, however, would be
taxable to a foreign Shareholder if (i) the gain is effectively connected with
the foreign Shareholder's United States trade or business or (ii) the foreign
Shareholder is an individual who is physically present in the United States for
183 days or more during the taxable year and has a tax home in the United
States.
Unless an applicable estate tax treaty provides otherwise, Shares owned by
a nonresident alien decedent will be included in his estate for purposes of the
United States Estate tax. Tax is imposed at progressive rates.
UNITED STATES REPORTING REQUIREMENTS
The Company is required to file an information return with the IRS setting
forth the name, address and taxpayer identification number of the payee of
dividends from the Company (whether the payee is a nominee or is the actual
beneficial owner).
BACKUP WITHHOLDING
The Company will report to its domestic Shareholders and to the IRS the
amount of dividends paid during each calendar year, and the amount of tax
withheld, if any, with respect thereto. Under the backup withholding rules, a
Shareholder may be subject to backup withholding at the rate of 31% with respect
to dividends paid unless such Shareholder (a) is a corporation or comes within
certain other exempt categories and, when required, demonstrates this fact, or
(b) provides a taxpayer identification number, certifies as to no loss of
exemption from backup withholding, and otherwise complies with applicable
requirements of the backup withholding rules. A Shareholder that does not
provide the Company with its correct taxpayer identification number may also be
subject to penalties imposed by the IRS. Any amount paid as backup withholding
will be creditable against the Shareholder's income tax liability. In addition,
the Company may be required to withhold a portion of capital gain distributions
made to any Shareholders who fail to certify their non-foreign status to the
Company. See "Taxation of Foreign Shareholders."
STATEMENT OF STOCK OWNERSHIP
The Company is required to demand annual written statements from the
record holders of designated percentages of its Shares disclosing the actual
owners of the Shares. Any record Shareholder who, upon request by the Company,
does not provide the Company with required information concerning actual
ownership of the Shares is required to include certain specified information
relating thereto in his Federal income tax return. The Company also must
maintain, within the Internal Revenue District in which it is required to file
its Federal income tax return, permanent records showing the information it has
received as to the actual ownership of such Shares and a list of those persons
failing or refusing to comply with such demand.
STATE AND LOCAL TAXES
The Company and its Shareholders may be subject to state and/or local
taxation in various jurisdictions, including those in which it or they transact
business or reside. The state and local tax treatment of the Company and its
Shareholders may differ substantially from the Federal income tax treatment
described in this summary. CONSEQUENTLY, EACH PROSPECTIVE INVESTOR SHOULD
CONSULT WITH HIS OWN TAX ADVISOR WITH REGARD TO THE STATE AND LOCAL TAX
CONSEQUENCES OF AN INVESTMENT IN THE COMPANY.
<PAGE> 80
ERISA CONSIDERATIONS
The following is a summary of certain non-tax considerations associated
with an investment in the Company by a qualified plan, Keogh Plan or an IRA.
This summary is based on provisions of ERISA and the Code, as amended through
the date of this Prospectus, and relevant regulations and opinions issued by the
Department of Labor. No assurance can be given that legislative or
administrative changes or court decisions may not be forthcoming which would
significantly modify the statements expressed herein. Any such changes may or
may not apply to transactions entered into prior to the date of their enactment.
In considering an investment in the Company of the assets of an employee
benefit plan subject to ERISA, such as a profit-sharing, 401(k), or a pension
plan, or of any other retirement plan or account subject to Section 4975 of the
Code such as an IRA or Keogh Plan (collectively, "Benefit Plans"), a fiduciary,
taking into account the facts and circumstances of such Benefit Plan, should
consider, among other matters, (i) whether the investment is consistent with the
applicable provisions of ERISA and the Code, (ii) whether the investment will
produce UBTI to the Benefit Plan (see "Income Tax Aspects--Taxation of
Tax-Exempt Entities") and (iii) the need to value the assets of the Benefit Plan
annually.
Under ERISA, a plan fiduciary's responsibilities include the duty (i) to
act solely in the interest of plan participants and beneficiaries and for the
exclusive purpose of providing benefits to them, as well as defraying reasonable
expenses of plan administration; (ii) to invest plan assets prudently; (iii) to
diversify the investments of the plan unless it is clearly prudent not to do so;
and (iv) to comply with plan documents insofar as they are consistent with
ERISA. ERISA also requires that the assets of an employee benefit plan be held
in trust and that the trustee (or a duly authorized investment manager) have
exclusive authority and discretion to manage and control the assets of the plan.
In addition, Section 406 of ERISA and Section 4975 of the Code prohibit
certain transactions involving assets of a Benefit Plan and any "party in
interest" or "disqualified person" with respect to that Benefit Plan. These
transactions are prohibited regardless of how beneficial they may be for the
Benefit Plan. The prohibited transactions include the sale, exchange or leasing
of property, the lending of money or the extension of credit between a Benefit
Plan and a party in interest or disqualified person, and the transfer to, or use
by, or for the benefit of, a party in interest, or disqualified person, of any
assets of a Benefit Plan. A fiduciary of a Benefit Plan also is prohibited from
engaging in self-dealing, acting for a person who has an interest adverse to the
plan (other than in the case of most IRAs and some Keogh Plans), or receiving
any consideration for its own account from a party dealing with the plan in a
transaction involving plan assets.
Furthermore, Section 408 of the Code states that assets of an IRA trust
may not be commingled with other property except in a common trust fund or
common investment fund.
PLAN ASSETS
Neither ERISA nor the Code define the term "plan assets." However, on
November 13, 1986, the Department of Labor published a final regulation
describing what constitutes the assets of a Benefit Plan when it invests in
certain kinds of entities (29 C.F.R. Section 2510.3-101, the "Regulation"). The
Regulation was generally effective as of March 13, 1987. As discussed below, the
Company has received an opinion of counsel that, under the final regulations
issued by the Department of Labor, the assets of the Company should not be
deemed to be "plan assets" if Benefit Plans invest in Shares, assuming certain
conditions set forth in the opinion are satisfied.
Under the Regulation, the assets of corporations, partnerships, or other
entities in which a Benefit Plan makes an equity investment will be deemed to be
assets of the Benefit Plan unless the entity satisfies at least one of the
exceptions to this general rule. The Regulation provides as one such exception
that the underlying assets of entities such as the Company will not be treated
as assets of a
<PAGE> 81
Benefit Plan if the interest the Benefit Plan acquires is a "publicly-offered
security." A publicly-offered security must be (i) "freely transferable," (ii)
part of a class of securities that is owned by 100 or more persons who are
independent of the issuer and one another, and (iii) sold as part of a public
offering registered under the Securities Act and be part of a class of
securities registered under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), within a specified time period.
The Shares are being sold as part of an offering of securities to the
public pursuant to an effective registration statement under the Securities Act
and the Company has represented that the Shares will be part of a class
registered under the Exchange Act within the specified time frames. Any Shares
purchased, therefore, should satisfy the third criterion of the publicly offered
exemption.
The Company has over 100 shareholders. Thus, the second criterion of the
publicly offered exception will be satisfied.
Whether a security is freely transferable depends upon the particular
facts and circumstances. The Shares will be subject to restrictions intended to
ensure that the Company continues to qualify for Federal income tax treatment as
a REIT. According to the Regulation, where the minimum investment in a public
offering of securities is $10,000 or less, the presence of a restriction on
transferability intended to prohibit transfers which would result in a
termination or reclassification of the entity for state or Federal tax purposes
will not ordinarily affect a determination that such securities are freely
transferable. The minimum investment in Shares is less than $10,000. Thus, the
restrictions imposed to maintain the Company's status as a REIT should not cause
the Shares to not be freely transferable.
The Company has obtained an opinion from counsel that the Shares should
constitute "publicly-offered securities" and that the underlying assets of the
Company should not be considered plan assets under the Regulation assuming the
Offering takes place as described in this Prospectus.
In the event that the underlying assets of the Company were treated by the
Department of Labor as assets of a Benefit Plan, the management of the Company
would be treated as fiduciaries with respect to Benefit Plan Shareholders and
the prohibited transaction restrictions of ERISA and the Code would apply to any
transaction involving management and assets of the Company, unless an
administrative or statutory exemption under ERISA applies. Such restrictions
could, for example, require that the Company avoid transactions with entities
that are affiliated with the Company or its Affiliates or restructure its
activities in order to obtain an exemption from the prohibited transaction
restrictions. Alternatively, the Company might provide Benefit Plan Shareholders
with the opportunity to sell their Shares to the Company or the Company might
dissolve or terminate.
If the underlying assets of the Company were treated as assets of a
Benefit Plan, the investment in the Company also might constitute an improper
delegation of fiduciary responsibility to the Advisor and expose the fiduciary
of the plan to co-fiduciary liability under ERISA for any breach by the Advisor
of its ERISA fiduciary duties. Finally, an investment by an IRA in the Company
might result in an impermissible commingling of plan assets with other property.
If a prohibited transaction were to occur, the Code imposes an excise tax
equal to five percent of the amount involved and authorizes the IRS to impose an
additional 100% excise tax if the prohibited transaction is not "corrected."
Such taxes would be imposed on any disqualified person who participates in the
prohibited transaction. In addition, the Advisor and possibly other fiduciaries
of Benefit Plan Shareholders subject to ERISA who permitted such prohibited
transaction to occur or who otherwise breached their fiduciary responsibilities
would be required to restore to the plan any profits realized by these
fiduciaries as a result of the transaction or breach, and make good to the plan
any losses incurred by the plan as a result of such transaction or breach. With
respect to an IRA that invests in the Company, the occurrence of a prohibited
transaction involving the individual who established the IRA, or his or her
beneficiary, would cause the IRA to lose its tax-exempt status under Section
408(e)(2) of the Code.
<PAGE> 82
In the opinion of counsel, as discussed above, the assets of the Company
should not constitute plan assets following an investment in Shares by Benefit
Plans. Accordingly, the problems discussed in the preceding three paragraphs are
not expected to arise.
OTHER PROHIBITED TRANSACTIONS
Regardless of whether the Shares qualify for the "publicly-offered
security" exception of the Regulation, a prohibited transaction could occur if
the Company, CFA, any Selected Dealer, the Escrow Agent or any of their
Affiliates is a fiduciary (within the meaning of Section 3(21)) of ERISA with
respect to the purchase of the Shares. Accordingly, unless an administrative or
statutory exemption applies, Shares should not be purchased by a Benefit Plan to
which any of the above Persons is a fiduciary with respect to the purchase. A
Person is a fiduciary to a plan under Section 3(21) of ERISA if, among other
things, the Person has discretionary authority or control with respect to plan
assets or provides investment advice for a fee with respect to such assets.
Under a regulation issued by the Department of Labor, a Person would be deemed
to be providing investment advice if such Person renders advice as to the
advisability of investing in Shares and that Person regularly provides
investment advice to the plan pursuant to a mutual agreement or understanding
(written or otherwise) that (i) such advice will serve as the primary basis for
investment decisions and (ii) such advice will be individualized for the plan
based on its particular needs.
INVESTMENT IN ESCROW ACCOUNT
The Escrow Agent will establish two separate escrow accounts. Benefit Plan
funds will be deposited in one account while funds from all other investors will
be deposited in another account. Pending issuance of the Shares to a Benefit
Plan, the Escrow Agent will invest Benefit Plan funds in a money market account
maintained by the Escrow Agent. On the Initial Closing Date and each closing
date thereafter, the funds paid by each Benefit Plan will be released from the
Benefit Plan escrow account and exchanged for the applicable number of Shares.
Any interest earned by that account prior to any such closing date will be paid
to the investing Benefit Plan.
In considering an investment in the Company, a plan fiduciary should
consider whether the escrow account arrangement as well as the ultimate
investment in the Company would be consistent with fiduciary standards
applicable to that Benefit Plan.
ANNUAL VALUATION
A fiduciary of an employee benefit plan subject to ERISA is required to
determine annually the fair market value of each asset of the plan as of the end
of the plan's fiscal year and to file an Annual Return/Report on Form 5500
reflecting that value. When no fair market value of a particular asset is
available, the fiduciary is to make a good faith determination of that asset's
"fair market value" assuming an orderly liquidation at the time the
determination is made. In addition, a trustee or custodian of an IRA must
provide an IRA participant with a statement of the value of the IRA each year.
In discharging its obligation to value assets of a plan, a fiduciary subject to
ERISA must act consistently with the relevant provisions of the plan and the
general fiduciary standards of ERISA.
Unless and until the Shares are listed on a national securities exchange
or are included for quotation on Nasdaq, it is not expected that a public market
for the Shares will develop. To date, neither the IRS nor the Department of
Labor has promulgated regulations specifying how a plan fiduciary should
determine the "fair market value" of the Shares under those circumstances,
namely when the fair market value of the Shares is not determined in the
marketplace. Therefore, to assist fiduciaries in fulfilling their valuation and
annual reporting responsibilities with respect to ownership of Shares, the
directors intend to provide reports of the directors' annual determinations of
the current value of the Company's net assets per outstanding Share to those
fiduciaries (including IRA trustees and custodians) who identify themselves to
the directors as such and request the reports. Prior to and for the year ending
December 31, 2002, the directors intend to use the offering price of Shares as
the per Share net asset value. Thereafter, beginning with the year
<PAGE> 83
2003, the value of the Properties and other assets of the Company will be based
on a Valuation. Such Valuation may be, but is not required to be, performed by
Independent Appraisers.
The directors anticipate that they will provide annual reports of such
determinations (i) to IRA trustees and custodians not later than January 15 of
each year, and (ii) to other qualified plan trustees and custodians within 75
days after the end of each calendar year. Each determination may be based upon
valuation information available as of October 31 of the preceding year, updated
for any material changes occurring between October 31 and December 31 of such
year.
The directors intend to revise these valuation procedures to conform with
any relevant guidelines that the IRS or the Department of Labor may hereafter
issue. Meanwhile, there can be no assurance (i) that such value could or will
actually be realized by the Company or by Shareholders upon liquidation (in part
because appraisal or estimated value do not necessarily indicate the price at
which assets could be sold and because no attempt will be made to estimate the
expenses of selling any assets of the Company), (ii) that Shareholders could
realize such value if they were to attempt to sell their Shares, or (iii) that
such value would comply with the ERISA or IRA requirements described above.
DESCRIPTION OF SHARES
The following description of the Shares does not purport to be complete
but contains a summary of portions of the Articles of Incorporation and is
qualified in its entirety by reference to the Articles of Incorporation.
GENERAL DESCRIPTION OF SHARES
The Company is authorized to issue 60,000,000 Shares, each Share having
a par value of $.001. Each Share is entitled to participate equally in Dividends
when and as declared by the directors and in the distribution of assets of the
Company upon liquidation. Each Share is entitled to one vote and will be fully
paid and non-assessable by the Company upon issuance and payment therefor.
Shares, other than Excess Shares, which are defined in the Organizational
Documents to mean Shares held by an investor in excess of 9.8% of the total
number of Shares issued and outstanding at the time such Shares are acquired,
are not subject to redemption by the Company. The Shares have no preemptive
rights which rights are intended to insure that a Shareholder maintains the same
ownership interest (on a percentage basis) before and after the issuance of
additional securities by the Company or cumulative voting rights (which are
intended to increase the ability of smaller groups of Shareholders to elect
directors). The Company currently does not intend to issue any securities other
than the Shares discussed in this Prospectus, although it may do so at any time.
The Company has the authority at the discretion of the directors (including a
majority of the Independent Directors) to authorize the listing, issuance and
sale of the Shares on a national securities exchange or on Nasdaq. In addition,
the Company has the authority to issue shares of any class or securities
convertible into shares of any class or classes, to classify or to reclassify
any unissued stock by setting or changing the preferences, conversion or other
rights, voting powers, restrictions, limitations as to dividends, qualifications
and terms and conditions of redemption of such stock, all as determined by the
directors.
The Company may apply to list the Shares for trading on a national
securities exchange or to include them for quotation on Nasdaq unless the Board
of Directors (including a majority of the Independent Directors) deems such
listing or quotation not to be in the best interest of the Shareholders. There
can be no assurance that any such application will be accepted. If the Shares
are not listed or included for quotation, the Properties generally will be
liquidated beginning five to ten years after the net proceeds of the Offering
are substantially invested. In making the decision to apply for listing of the
Shares, the Board will try to determine whether listing the Shares or
liquidating the Company will result in greater value for the Shareholders. Even
if the Shares are not so listed or included for quotation, the Company is under
no obligation to liquidate its portfolio within such period since the precise
timing will depend on real estate and financial markets, economic conditions of
the areas in which the Properties are located and
<PAGE> 84
Federal income tax effects on Shareholders which may prevail in the future.
Furthermore, there can be no assurance that the Company will be able to
liquidate its portfolio and it should be noted that the Company will continue
its existence until all of its Properties are sold and its other assets are
liquidated.
The Company will not issue certificates. Shares will be held in
"uncertificated" form which will (a) eliminate the physical handling and
safekeeping responsibilities inherent in owning transferable stock certificates,
and (b) eliminate the need to return a duly executed stock certificate to the
transfer agent to effect a transfer. Transfers can be effected simply by mailing
a duly executed stock power to the Company. Upon the issuance of its Shares, the
Company shall send to each Shareholder a written statement which will include
all information that is required to be written upon stock certificates under
Maryland law.
MEETINGS AND SPECIAL VOTING REQUIREMENTS
An annual meeting of the Shareholders will be held each year, not fewer
than 30 days after delivery of the Annual Report of the Company. Special
meetings of Shareholders may be called only upon the request of a majority of
the directors, a majority of the Independent Directors, the Chairman, the
President or upon the written request of Shareholders entitled to cast at least
10% of all the votes entitled to be cast at such meeting. In general, the
presence in person or by proxy of a majority of the outstanding Shares,
exclusive of Excess Shares, shall constitute a quorum. Generally, the
affirmative vote of a majority of the votes entitled to be voted at a meeting at
which a quorum is present is necessary to take Shareholder action, except that a
plurality of all votes cast at such a meeting is sufficient to elect a director.
The Company's Charter may be amended by a majority of the Board of
Directors (including a majority of the Independent Directors) and approval of a
majority of the Company's stockholders at a duly held meeting at which a quorum
is present. Charter amendments affecting the provisions on indemnification of
directors and officers, limitation of personal liability of directors and
officers, and limitation on ownership of shares of the Company, must be approved
by a vote of two-thirds of the Company's Stockholders. In general, the Company's
Bylaws may be amended by a majority vote of the Company's stockholders. The
Ownership Limit may only be amended by a two-thirds majority vote of all
outstanding Shares. Any amendment to the Bylaws that would reduce the priority
of payment or the amount payable to the Shareholders upon liquidation of the
Company or that would diminish or eliminate any voting rights require the
approval of a two-thirds majority of Shares entitled to vote. Shareholders may,
by the affirmative vote of a majority of the Shareholders entitled to vote on
such matter, elect to remove a director from the Board or dissolve the Company.
Shareholders do not have the ability to vote to replace the Advisor or to select
a new investment adviser.
The affirmative vote of a majority of all Shares entitled to be cast is
required to approve any merger or sale of substantially all of the assets of the
Company other than in the ordinary course of business. Shareholders objecting to
the approval of any merger or sale of assets are permitted under Maryland law to
petition a court for the appraisal and payment of the fair value of their
Shares. In such an appraisal proceeding, the court appoints appraisers who
attempt to determine the fair value of the stock as of the date of the
shareholder vote on the merger or sale of assets. The appraisers' report is
considered by the court which (i) makes the final determination of the fair
value to be paid to the Shareholder and (ii) decides whether the award of
interest from the date of the merger or sale of assets and costs of the
proceeding are to be awarded to the dissenting Shareholder.
Shareholders are entitled to receive a copy of the Company's Shareholder
list upon request provided that the requesting Shareholder represents to the
Company that the list will not be used to pursue commercial interests. The list
provided by the Company will include the name, address and telephone number (if
available) of, and number of Shares owned by, each Shareholder and will be in
alphabetical order, on white paper and in easily readable type size and will be
sent within ten days of the receipt by the Company of the request (or five days
if the Shareholder first requests a copy of the representation and returns it to
the Company within 30 days). A Shareholder requesting a list will be required to
pay the Company's reasonable cost
<PAGE> 85
of postage and duplication. The Company will pay the costs incurred and any
actual damages suffered by a Shareholder who must compel the production of a
list and is successful. Any Shareholder who breaches the terms of the
representation provided to the Company will be liable to the Company for any
costs or damages resulting from such breach. The list will be updated at least
quarterly to reflect changes in the information contained therein.
The rights of Shareholders described above are in addition to and do not
adversely affect rights provided to investors under Rule 14a-7 promulgated under
the Exchange Act, which provides that, upon request of investors and the payment
of the expenses of the distribution, the Company is required to distribute
certain materials to Shareholders in the context of the solicitation of proxies
for voting on matters presented to Shareholders, or, at the option of the
Company, provide requesting Shareholders with a copy of the list of Shareholders
so that the requesting Shareholders may make the distribution themselves.
RESTRICTION ON OWNERSHIP OF SHARES
In order for the Company to qualify as a REIT, not more than 50% of its
outstanding Shares may be owned by any five or fewer individuals (including
certain tax-exempt entities) during the last half of each taxable year of the
Company, and the outstanding Shares must be owned by 100 or more Persons
independent of the Company and each other during at least 335 days of a 12-month
taxable year or during a proportionate part of a shorter taxable year for which
an election to be treated as a REIT is made. The Company, therefore, may
prohibit certain acquisitions and transfers of Shares so as to facilitate the
Company's continued qualification as a REIT under the Code. However, there can
be no assurance that such prohibition will be effective.
The Articles of Incorporation, in order to assist the Board in preserving
the Company's status as a REIT, contain an Ownership Limit which prohibits any
Person or group of Persons from acquiring, directly or indirectly, Beneficial
Ownership of more than 9.8% of the outstanding Shares. Shares owned by a Person
or a group of Persons in excess of the Ownership Limit are deemed "Excess
Shares." Shares owned by a Person who individually owns of record less than 9.8%
of outstanding Shares may nevertheless be Excess Shares if such Person is deemed
part of a group for purposes of this restriction.
The Articles of Incorporation stipulate that any purported issuance or
transfer of Shares shall be valid only with respect to those Shares that do not
result in the transferee-Shareholder owning Shares in excess of the Ownership
Limit. If the transferee-Shareholder acquires Excess Shares, such Person is
considered to have acted as an agent for the Company and holds such Excess
Shares on behalf of the ultimate Shareholder.
The Ownership Limit does not apply to offerors which, in accordance with
applicable Federal and state securities laws, make a cash tender offer, where at
least 85% of the outstanding Shares (not including Shares or subsequently issued
securities convertible into common stock which are held by the tender offeror
and/or any "affiliates" or "associates" thereof within the meaning of the
Exchange Act) are duly tendered and accepted pursuant to the cash tender offer.
The Ownership Limit also does not apply to the underwriter in a public offering
of the Shares. The Ownership Limit does not apply to a Person or Persons which
the directors so exempt from the Ownership Limit upon appropriate assurances
that the Company's qualification as a REIT is not jeopardized.
If the Company has 2,000 or more stockholders, all Persons who own 5% or
more of the outstanding Shares (or 1% or more if the Company has more than 200
but fewer than 2,000 Shareholders) during any taxable year will be asked by the
Company to deliver a statement or affidavit setting forth the number of Shares
Beneficially Owned, directly or indirectly, by such Persons. See "Income Tax
Aspects--Statement of Stock Ownership."
<PAGE> 86
DIVIDENDS
The Company intends to declare Dividends before each issuance of Shares
during the Offering and on a quarterly basis. Dividends will be paid to
investors who are Shareholders as of the record date selected by the directors.
Dividends will be paid on a quarterly basis regardless of the frequency with
which such Dividends are declared. The Company is required to distribute
annually its Distributable REIT Taxable Income to comply with the REIT
Provisions. Generally, income distributed as Dividends will not be taxable to
the Company under Federal income tax laws unless the Company fails to comply
with the REIT Provisions.
Dividends will be paid at the discretion of the directors, in accordance
with the earnings, cash flow and general financial condition of the Company. The
directors' discretion will be directed, in substantial part, by their obligation
to cause the Company to comply with the REIT Provisions. Because the Company may
receive income from interest or rents at various times during its fiscal year,
Dividends may not reflect income earned by the Company in that particular
Dividend period but may be made in anticipation of cash flow which the Company
expects to receive during a later quarter and may be made in advance of actual
receipt in an attempt to make distributions relatively uniform. The Company can
borrow to make distributions if the borrowing is necessary to maintain the
Company's REIT status or if the borrowing is part of a liquidation strategy to
partially or completely liquidate investments in Properties by borrowing against
those Properties.
The Company is not prohibited from distributing its own securities in lieu
of making cash distributions to Shareholders, provided that such securities
distributed to Shareholders are readily marketable. Shareholders who receive
marketable securities in lieu of cash distributions may incur transaction
expenses in liquidating such securities.
REPURCHASE OF SHARES
The Company has the authority to redeem Excess Shares immediately upon
becoming aware of existence of such Excess Shares or after giving the Person in
whose hands such Shares are Excess Shares 30 days to transfer such Excess Shares
to a Person whose ownership of such Shares would not exceed the Ownership Limit
and, therefore, would no longer be considered Excess Shares. The price paid upon
redemption by the Company shall be the lesser of the price paid for such Excess
Shares by the Shareholder in whose possession the redeemed Shares were formerly
Excess Shares or the fair market value of the Excess Shares. The Company may
purchase Excess Shares or otherwise repurchase Shares if such repurchase does
not impair the capital or operations of the Company.
The Sponsor, Advisor and their Affiliates may not receive a fee on the
purchase of Shares by the Company.
<PAGE> 87
REDEMPTION OF SHARES
After the termination of the Offering and prior to such time, if any, as
the Shares are listed on a national securities market, any stockholder (other
than the Advisor) that has held his or her Shares for at least one year may
present all or any portion of such stockholder's Shares to the Company for
redemption at any time, in accordance with the procedures outlined herein. At
such time, the Company may, at its option, subject to the conditions described
below, redeem such Shares presented for redemption for cash to the extent it has
sufficient funds available, as determined by the Board of Directors in its sole
discretion. There is no assurance that there will be sufficient funds available
for redemption and, accordingly, a stockholder's Shares may not be redeemed.
The Board of Directors will determine on a quarterly basis whether the
Company has sufficient excess cash to repurchase Shares. Shareholders may offer
Shares to the Company for purchase and the Company will purchase the offered
Shares if it has sufficient cash. The Company will impose a surrender charge on
repurchased shares in accordance with the following schedule:
<TABLE>
<CAPTION>
HOLDING PERIOD
OF SHARES SURRENDER CHARGE
--------- ----------------
<S> <C>
1-2 years 12% of Redemption Price
2-3 years 10% of Redemption Price
3-4 years 8% of Redemption Price
4-5 years 6% of Redemption Price
5-6 years 5% of Redemption Price
6 years or more 4% of Redemption Price
</TABLE>
The Redemption Price, for purposes of calculating the purchase price,
shall be the lesser of (i) $10 per share and (ii) the Net Asset Value per Share
as determined by appraisals performed by an independent third party after
[DECEMBER 31, 2002]. The Board of Directors reserves the right to adjust the Net
Asset Value on a quarterly basis to account for significant capital
transactions.
If the Company has sufficient funds to purchase some but not all of the
shares offered, the Shareholders holding their Shares for the longest amount of
time will be given priority. The Company will only be able to repurchase shares
if it maintains a currently effective registration statement. While the Company
intends to maintain an effective registration statement, there can be no
assurance that it will be able to do so. Furthermore, there can be no assurance
that the Company will have sufficient funds to repurchase any Shares.
A stockholder who wishes to have his or her Shares redeemed must mail or
deliver a written request on a form provided by the Company and executed by the
stockholder, its trustee or authorized agent, to the Company. Within 30 days
following the Company's receipt of the stockholder's request, the Company will
forward to such stockholder the documents necessary to effect the redemption,
including any signature guarantee the Company may require. Any redemption to be
completed by the Company will be completed for a calendar quarter provided that
the Company receives the properly completed redemption documents relating to the
Shares to be redeemed from the stockholder at least one calendar month prior to
the last day of the current calendar quarter and has sufficient funds to redeem
such Shares. The effective date of any redemption will be the last date during a
quarter during which the Company receives the properly completed redemption
documents. As a result, the Company anticipates that, assuming sufficient funds,
the effective date of redemptions will be no later than thirty days after the
quarterly determination of the availability of funds.
A stockholder may present fewer than all his or her Shares to the Company
for redemption, provided, however, that if such stockholder retains any Shares,
he or she must retain at least 250 Shares (200 Shares for an IRA, Keogh Plan or
pension plan).
<PAGE> 88
Shares transferred by reason of death will be deemed to have been held from the
time the Shares were first acquired.
The Directors, in their sole discretion, may amend or suspend the
redemption plan at any time they determine that such amendment or suspension is
in the best interest of the Company. The Directors may suspend the redemption of
Shares if (i) they determine, in their sole discretion, that such redemption
impairs the capital or the operations of the Company; (ii) they determine, in
their sole discretion, that an emergency makes such redemption not reasonably
practical; (iii) any governmental or regulatory agency with jurisdiction over
the Company so demands for the protection of the stockholders; (iv) they
determine, in their sole discretion, that such redemption would be unlawful; or
(v) they determine, in their sole discretion, that such redemption, when
considered with all other redemptions, sales, assignments, transfers and
exchanges of Shares in the Company, could cause direct or indirect ownership of
Shares of the Company to become concentrated to an extent which would prevent
the Company from qualifying as a REIT under the Code. For a discussion of the
tax treatment of such redemptions, see "Federal Income Tax
Considerations--Taxation of Stockholders."
RESTRICTIONS ON ROLL-UP TRANSACTIONS
In connection with any proposed transaction (as further defined in "The
Glossary," a "Roll-up Transaction") involving the acquisition, merger,
conversion or consolidation, directly or indirectly, of the Company and the
issuance of securities of an entity (a "Roll-up Entity") that would be created
or would survive after the successful completion of the Roll-up Transaction, an
appraisal of all Properties shall be obtained from a competent Independent
Appraiser. The Properties shall be appraised on a consistent basis, and the
appraisal shall be based on the evaluation of all relevant information and shall
indicate the value of the Properties as of a date immediately prior to the
announcement of the proposed Roll-up Transaction. The appraisal shall assume an
orderly liquidation of Properties over a 12-month period. The terms of the
engagement of the Independent Appraiser shall clearly state that the engagement
is for the benefit of the Company and the Shareholders. A summary of the
appraisal, indicating all material assumptions underlying the appraisal, shall
be included in a report to Shareholders in connection with a proposed Roll-up
Transaction. In connection with a proposed Roll-up Transaction, the Person
sponsoring the Roll-up Transaction shall offer to Shareholders who vote "no" on
the proposal the choice of:
(i) accepting the securities of a Roll-up Entity offered in the
proposed Roll-up Transaction; or
(ii) one of the following:
(A) remaining as Shareholders of the Company and preserving
their interests therein on the same terms and conditions as existed
previously, or
(B) receiving cash in an amount equal to the Shareholder's pro
rata share of the appraised value of the net assets of the Company.
The Company is prohibited from participating in any proposed Roll-up
Transaction:
(a) which would result in the Shareholders having democracy rights
in a Roll-up Entity that are less than those provided in the Bylaws and
described elsewhere in this Prospectus, including rights with respect to
the election and removal of directors, annual reports, annual and special
meetings, amendment of the Articles of Incorporation, and dissolution of
the Company. See "Management," "Reports to Shareholders" and "Description
of Shares;"
(b) which includes provisions that would operate to materially
impede or frustrate the accumulation of shares by any purchaser of the
securities of the Roll-up Entity (except to the minimum extent necessary
to preserve the tax status of the Roll-up Entity), or which would limit
the ability of an investor
<PAGE> 89
to exercise the voting rights of its securities of the Roll-up Entity on
the basis of the number of Shares held by that investor;
(c) in which investor's rights to access of records of the Roll-up
Entity will be less than those provided in the section of this Prospectus
entitled "Description of Shares--Meetings and Special Voting
Requirements;" or
(d) in which any of the costs of the Roll-up Transaction would be
borne by the Company if the Roll-up Transaction is not approved by the
Shareholders.
TRANSFER AGENT
The transfer agent and registrar for the Shares will be Service Data
Corporation. The transfer agent's address is 2424 South 130th Circle, Omaha,
Nebraska 68144-2596, and its phone number is (800) 782-3436.
THE OFFERING
Subject to the conditions set forth in this Prospectus and in accordance
with the terms and conditions of the Sales Agency Agreement, the Company is
offering to the public through the Sales Agent and Selected Dealers, on a best
efforts basis, a maximum of $300,000,000 of Shares of common stock consisting of
30,000,000 Shares priced at $10 per Share. The minimum subscription is 250
Shares or $2,500 (200 Shares or $2,000 for an IRA or a Keogh Plan except for
Iowa and Minnesota tax exempt investors which must make a minimum investment of
250 Shares or $2,500). See "Terms of the Offering." The Sales Agent and American
Express Financial Services, Inc. are expected to sell a significant number of
Shares.
The Sales Agent will receive a selling commission in an amount equal to
$0.65 per Share, whether sold directly by it or by one of the Selected Dealers,
all of whom must be members in good standing of the NASD. The Sales Agent may,
in turn, reallow up to $0.60 per share of such selling commissions to Selected
Dealers for Shares they sell. The Company also will reimburse the Sales Agent
for the amount of any Selected Dealer Fee paid to Selected Dealers, which Fee
may not exceed 1% of the price of each Share sold by the Selected Dealer. The
Sales Agent has agreed to pay a Selected Dealer Fee of 1% to all Selected
Dealers and the Sales Agent will receive a Selected Dealer Fee of 1% for Shares
sold directly by the Sales Agent. In addition, the Sales Agents or Selected
Dealers, in their sole discretion, may elect not to accept any selling
commission offered by the Company for Shares that they sell. In that event, such
Shares shall be sold to the investor net of all selling commissions, at a price
per share of $9.35. The Company has agreed to indemnify the Sales Agent and
Selected Dealers against certain liabilities, including liabilities under the
Securities Act.
The Company will offer a reduced Share purchase price to "single
purchasers" on orders of more than $250,000 and selling commissions paid to the
Sales Agent and Selected Dealers will be reduced by the amount of the Share
purchase price discount.
<PAGE> 90
The Share purchase price will be reduced for each incremental Share purchased in
the total volume ranges set forth in the table below. Such reduced Share
purchase price will not affect the amount received by the Company for
investment. The following table sets forth the reduced Share purchase price and
selling commissions payable to the Sales Agent:
<TABLE>
<CAPTION>
PURCHASE PRICE
PER SHARE FOR SELLING COMMISSION
INCREMENTAL PER SHARE
SHARE IN ON TOTAL SALE FOR
VOLUME INCREMENTAL SHARE IN
FOR A "SINGLE PURCHASER" DISCOUNT RANGE VOLUME DISCOUNT RANGE
------------------------ -------------- ---------------------
<S> <C> <C>
$ 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
</TABLE>
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. In
the event of a sale of $5,000,000 or more, the Company will supplement this
Prospectus to include (i) the aggregate amount of the sale, (ii) the price per
Share paid by the purchaser and (iii) a statement that other investors wishing
to purchase at least the amount described in (i) will pay no more per Share than
the initial purchaser. The Initial Investor Capital will be calculated on the
basis of $10 per Share, regardless of the price actually paid pursuant to such
reduced Share purchase prices.
Orders may be combined for the purpose of determining the total
commissions payable with respect to applications made by a "single purchaser."
The amount of total commissions thus computed will be apportioned pro rata among
the individual orders on the basis of the respective amounts of the orders being
combined. As used herein, the term "single purchaser" will include (i) any
Person or entity, or Persons or entities, acquiring Shares as joint purchasers,
(ii) all profit-sharing, pension and other retirement trusts maintained by a
given corporation, partnership or other entity, (iii) all funds and foundations
maintained by a given corporation, partnership or other entity, (iv) all
profit-sharing, pension and other retirement trusts and all funds or foundations
over which a designated bank or other trustee, person or entity (except an
investment adviser registered under the Investment Advisers Act of 1940)
exercises discretionary authority with respect to an investment in the Company,
and (v) all clients of an investment adviser registered under the Investment
Advisers Act of 1940 who have been advised by such adviser on an ongoing basis
regarding investments other than in the Company, and who have been advised by
such adviser regarding an investment in the Company.
In the event a single purchaser described in categories (ii) through (v)
above wishes to have its orders so combined, such a purchaser will be required
to request such treatment in writing to the Company, which request must set
forth the basis for such discount and identify the orders to be combined. Any
such request will be subject to the verification by the Company that all of such
orders were made by a single purchaser.
Orders also may be combined for the purpose of determining the commissions
payable in the case of orders by any purchaser described in category (i) through
(v) above who, subsequent to its initial purchase of Shares, orders additional
Shares. In such event, the commission payable with respect to the subsequent
purchase of Shares will equal the commission per Share which would have been
payable in accordance with the commission schedule set forth above if all
purchases had been made simultaneously. Any reduction of the 6% selling
commission otherwise payable to the Sales Agent or a Selected Dealer will be
credited to the purchaser as additional whole Shares. Unless investors indicate
that orders are to be combined and provide all other requested information, the
Company cannot be held responsible for failing to combine orders properly.
<PAGE> 91
The Advisor, its Affiliates and their employees and the Selected Dealers
and their employees may purchase Shares net of selling commissions and the
Company will pay no selling commissions on such Shares. Any purchases by the
Advisor, its Affiliates and their employees and the Selected Dealers and their
employees will be for investment purposes only and not with the intent to resell
such Shares. There is no limit on the number of Shares such persons may
purchase. A maximum of 75,000 Shares purchased by the Advisor during the
Offering may be included in determining whether the Minimum Offering is
achieved. There is no limit on the number of Shares purchased by Affiliates of
the Advisor and their employees and the Selected Dealers and their employees
which may be included in determining whether the Minimum Offering is achieved.
Any resale of the 20,000 Shares currently owned by the Advisor or Shares it or
Affiliates of the Company may purchase are subject to Rule 144 promulgated under
the Securities Act, which limits the number of Shares which may be resold at any
one time and the manner of such resale.
The Sales Agent will receive reimbursement from the Company for its
identified expenses and for identified expenses of Selected Dealers reimbursed
by the Sales Agent, including the costs of any sales and information meetings of
the employees of the Sales Agent and the Selected Dealers (to the extent the
Sales Agent reimburses the Selected Dealers for such expenses) relating to the
Offering. Subject to the satisfactory completion of any regulatory reviews and
examinations which may be required, the rules of the NASD and the prior review
and approval by the NASD and the Sales Agent, the Selected Dealers (as
appropriate), the Company, the Advisor or any of their Affiliates may establish
sales incentive programs for associated Persons of the Sales Agent or Selected
Dealers or may reimburse the Sales Agent and Selected Dealers for sales
incentive programs established by them. Sales incentives will be deemed to be
additional underwriting compensation. The aggregate value of incentives paid by
the Company and the Advisor directly to associated Persons during the Offering
will not exceed $100 per year.
The Sales Agent or other entities will provide wholesaling services to the
Company. All entities performing wholesaling activities will be required to be
properly licensed to engage in the securities business. These services will
include developing and preparing sales material, conducting broker/dealer
seminars, holding informational meetings and providing information and answering
any questions concerning the Offering. The Company will reimburse the Sales
Agent for its identified expenses incurred in coordinating wholesaling
activities, including, but not limited to (i) travel and entertainment expenses,
(ii) compensation of employees of the Sales Agent in connection with wholesaling
activities, (iii) expenses incurred in coordinating broker-dealer seminars and
meetings, and (iv) wholesaling fees and wholesaling expense reimbursements paid
to the Sales Agent or other entities.
In no event shall the total underwriting compensation to be paid to the
Sales Agent and Selected Dealers from any source in connection with the
Offering, including selling commissions, certain expense reimbursements and
payments to the Sales Agent and Selected Dealers for the wholesaling services
referred to above, exceed 10% of the Gross Offering Proceeds of the Offering
(plus 0.5% for bona fide due diligence expenses). The total wholesaling expenses
will not exceed 3% of the Gross Offering Proceeds. The Company and the Sales
Agent will monitor the payment of all fees and expense reimbursements, including
the Servicing Fees, to assure that this limit is not exceeded.
In the event all Organization and Offering Expenses, other than selling
commissions, and fees paid and expenses reimbursed to or paid on behalf of the
Selected Dealers, exceed 3.5% of the Gross Offering Proceeds, the excess will be
paid by the Advisor with no recourse by or reimbursement to the Advisor. In
addition, in the event the Minimum Offering is not achieved, the Advisor will
bear the responsibility for all Organization and Offering Expenses.
Every prospective investor desiring to purchase Shares will be required to
comply with the procedures for ordering Shares imposed by the Company, the Sales
Agent and the Selected Dealer from whom such investor intends to purchase
Shares. The Sales Agent and certain Selected Dealers will require an Order Form,
a specimen
<PAGE> 92
of which is attached to this Prospectus, to be completed and delivered together
with a check payable to the Escrow Agent for the aggregate purchase price of the
Shares ordered. (Residents of Maine, Massachusetts, Minnesota, Michigan,
Missouri, Nebraska, and North Carolina must complete and execute an Order
Form.). Selected Dealers will submit such checks directly to the Escrow Agent by
noon of the business day following receipt. Certain Selected Dealers may offer
investors alternate procedures for purchasing Shares. Under the alternative
procedures, the investor must maintain an account with such Selected Dealers or
open such an account at no charge. An investor may then purchase Shares by
contacting his or her broker and indicating the amount of his or her desired
investment in Shares. If the investor has not already received a copy of this
Prospectus, the Sales Agent or Selected Dealer will forward a copy of this
Prospectus to the investor. The Sales Agent or Selected Dealer will notify the
investor that the full amount of the purchase price payment must be in the
investor's account by a specified settlement date, which shall occur within five
business days after such notice to the investor. An investor's account will be
debited by the amount of the investment on the settlement date. For investors in
all jurisdictions, by noon of the next business day following the date funds are
debited, the funds debited from the investor's account will be sent to the
Escrow Agent for deposit in the escrow account established by the Company for
the Offering. Prior to the settlement date, the investor may withdraw his order
by notifying his broker at the Sales Agent or such Selected Dealer.
On or after the settlement date, investors will have no right to withdraw
any funds submitted to the Escrow Agent during the Offering period. The Company
has the unconditional right in its sole discretion to accept or reject any order
or any part thereof within 30 days of receipt of such order. If the Company
rejects any order or any part thereof, it will notify the investor in writing
thereof and arrange for the Escrow Agent to promptly return to the investor the
entire purchase price or portion thereof which was rejected, along with any
interest earned thereon. The Offering will not be consummated unless the Minimum
Offering is achieved. Shares will be evidenced on the books and records of the
Company, which will include a list of Shareholders' names, addresses and number
of Shares owned. An investor will not receive a Share certificate or other
evidence of his interest in the Company unless the Shares are listed on a
national securities exchange or included for quotation on Nasdaq and then only
if requested by the Shareholder.
ESCROW ARRANGEMENTS
Commencing on the date of this Prospectus, all funds received by the Sales
Agent and Selected Dealers from orders for Shares will be placed promptly in an
interest-bearing escrow account with the Escrow Agent at the Company's expense
until such funds are released as described below. Separate escrow accounts will
be established for Benefit Plan funds and all other funds. Payment for Shares
are to be sent to the Escrow Agent at The United States Trust Company of New
York, 114 West 47th Street, New York, New York 10036-1532, Attention: Pat
Stermer. Such funds will be held in trust for the benefit of investors to be
used for the purposes set forth in this Prospectus. The Escrow Agent will be
given the right to invest non-Benefit Plan funds in United States government
securities, certificates of deposit or other time or demand deposits of
commercial banks which have a net worth of at least $100,000,000 or in which
such certificates or deposits are fully insured by any Federal or state
government agency. Benefit Plan funds will be invested in a money market account
maintained by the Escrow Agent. The interest, if any, earned on escrow funds
prior to the transmittal of such proceeds to the Company will not become part of
the Company's capital. Instead, within 15 days following each issuance of
Shares, the Company will cause the Escrow Agent to make distributions to
Shareholders of all interest earned on their escrowed funds used to purchase the
Shares. The Company may, as security for borrowings made from third parties,
assign its right to receive up to 85% of the funds then held in escrow (not
including funds held on behalf of Benefit Plans).
As soon as practicable after the Minimum Offering is achieved but in no
event more than 90 days after the Company's acceptance of orders for [1,500,000]
Shares, the Company will issue Shares to all investors whose orders have been
accepted. Following such first issuance of Shares, additional funds received by
the Company from prospective investors will continue to be placed in escrow
during the Offering and the Company will issue additional Shares periodically
(but not less often than
<PAGE> 93
quarterly) as agreed between the Company and the Sales Agent. The Offering will
terminate at the time all Shares being offered are sold or unsold shares are
withdrawn from registration by order of the Board, but in no case later than
[_______].
If the Minimum Offering is not achieved within one year after the date of
this Prospectus, then the Company will cancel all existing orders and all funds
submitted on account of such orders will be released from escrow and promptly
returned to each investor together with all interest earned thereon. In
addition, the Company will be dissolved and no further attempt will be made to
accept additional orders.
REPORTS TO SHAREHOLDERS
The Company intends to provide periodic reports to Shareholders regarding
the operations of the Company over the course of the year. Financial information
contained in all reports to Shareholders will be prepared on the accrual basis
of accounting in accordance with generally accepted accounting principles. Tax
information will be mailed to the Shareholders within 31 days following the
close of each fiscal year. The Company's annual report, which will include
financial statements audited and reported upon by independent public
accountants, will be furnished within 120 days following the close of each
fiscal year. The annual financial statements will contain or be accompanied by a
complete statement of any transactions with the Sponsor, Advisor or its
Affiliates and of compensation and fees paid or payable by the Company to the
Advisor and its Affiliates. The Annual Report will also contain a report from
the Independent Directors that the policies being followed by the Company are in
the best interests of the Shareholders and the basis therefor. Summary
information regarding the quarterly financial results of the Company will be
furnished to Shareholders on a quarterly basis.
Investors have the right under applicable Federal and Maryland laws to
obtain information about the Company and, at their expense, may obtain a list of
names and addresses of all of the Shareholders. See "Description of
Shares--Meetings and Special Voting Requirements." Shareholders also have the
right to inspect and duplicate the Company's appraisal records. In the event
that the Commission promulgates rules and/or in the event that the applicable
NASAA Guidelines are amended so that, taking such changes into account, the
Company's reporting requirements are reduced, the Company may cease preparing
and filing certain of the aforementioned reports if the directors determine such
action to be in the best interests of the Company and if such cessation is in
compliance with the rules and regulations of the Commission and the NASAA
Guidelines, both as then amended.
LEGAL OPINIONS
Certain legal matters, including the legality of the Shares, will be
passed upon for the Company by Reed Smith Shaw & McClay, 2500 One Liberty Place,
Philadelphia, Pennsylvania 19103. Michael B. Pollack, Senior Vice President and
Secretary of the Company, W.P. Carey & Co. and CFA, is a partner in Reed Smith
Shaw & McClay. Reed Smith Shaw & McClay will rely as to all matters of Maryland
law on an opinion of Piper & Marbury L.L.P., Baltimore, Maryland.
EXPERTS
The balance sheet of the Company as of June 30, 1997, included in this
Prospectus, has been included herein in reliance on the report of Coopers &
Lybrand L.L.P, independent accountants, given on the authority of that firm as
experts in accounting and auditing.
<PAGE> 94
SALES LITERATURE
In addition to and apart from this Prospectus, the Company will use
certain sales material in connection with the Offering. This material includes
an investor sales promotion brochure, prospecting letters or mailers and seminar
invitations, media advertising inviting seminar attendance, a brochure
describing the Investment Committee, a presentation using a computer, reprints
of articles about the Company or the net lease or sale-leaseback industry, fact
sheets describing Company acquisitions, a slide presentation and studies of the
prior performance of entities managed by the Advisor and its Affiliates as well
as other net lease investment programs. In some jurisdictions such sales
material will not be available. Other than as described herein, the Company has
not authorized the use of other sales material. The Offering is made only by
means of this Prospectus. Although the information contained in such material
does not conflict with any of the information contained in this Prospectus, such
material does not purport to be complete and should not be considered as a part
of this Prospectus or the Registration Statement of which this Prospectus is a
part, or as incorporated in this Prospectus or said Registration Statement by
reference, or as forming the basis of the Offering.
FURTHER INFORMATION
This Prospectus does not contain all the information set forth in the
Registration Statement and the Exhibits relating thereto which the Company has
filed with the Commission, Washington, D.C., under the Securities Act, and to
which reference is hereby made. Copies of the Exhibits are on file at the
offices of the Commission in Washington, D.C. and may be obtained, upon payment
of the fee prescribed by the Commission, or may be examined without charge at
the offices of the Commission.
All summaries contained herein of documents which are filed as Exhibits to
the Registration Statement are qualified in their entirety by this reference to
those Exhibits. The Company has not knowingly made any untrue statement of a
material fact or omitted to state any fact required to be stated in the
Registration Statement, including this Prospectus, or necessary to make the
statements therein not misleading.
GLOSSARY
As used in this Prospectus, the following terms have the definitions
hereinafter indicated:
Acquisition Expenses. Those expenses, including but not limited to legal
fees and expenses, travel and communications expenses, costs of appraisals,
non-refundable option payments on property not acquired, accounting fees and
expenses, title insurance, and miscellaneous expenses related to selection and
acquisition of properties, whether or not acquired. Acquisition Expenses shall
not include Acquisition Fees.
Acquisition Fees. The total of all fees and commissions (including any
interest thereon) paid by any party to any party in connection with the
purchase, development or construction of Properties or the making or investing
in mortgage loans by the Company. 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
the Company shall not be deemed an Acquisition Fee. Included in the computation
of such fees or commissions shall be any real estate commission, selection fee,
development fee or construction fee (other than as described above), or any fee
of a similar nature, however designated. Acquisition Fees include Subordinated
Acquisition Fees. Acquisition Fees shall not include Acquisition Expenses.
Adjusted Investor Capital. As of any date, the Initial Investor Capital
for such date reduced by any distributions on or prior to such date deemed by
the Board to be from Cash from Sales and Financings, but only to the extent such
distributions
<PAGE> 95
exceed the amount necessary to satisfy any accrued but unpaid portion of the
Preferred Return not satisfied by distributions of cash generated from
operations through the date Cash from Sales or Financings are distributed by the
Company.
Advisor. Carey Property Advisors or any Person appointed or employed by or
who contracts with the Company under the provisions of Article VII of the
Bylaws, and who is responsible for the day-to-day management of the Company,
including any Person to which the Advisor subcontracts substantially all such
functions.
Advisory Agreement. The Advisory Agreement between the Company and the
Advisor pursuant to which the Advisor will act as the advisor and administrator
of the Company.
Affiliated Director. A director who is not an Independent Director.
Affiliate. An Affiliate of another Person shall mean (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.
Articles of Incorporation. Articles of Incorporation of the Company under
the General Corporation Law of Maryland, as amended from time to time, pursuant
to which the Company is organized.
Asset Management Fee. Fee paid to the Advisor for asset management
services rendered under the Advisory Agreement.
Average Invested Assets. For a specified period, the average of the
aggregate book value of the assets of the Company invested, directly or
indirectly, in Properties and in loans secured by, real estate, before reserves
for depreciation or bad debts or other similar non-cash reserves computed by
taking the average of such values at the end of each month during such period.
Bankruptcy Code. Title 11 of the United States Code, as amended.
Beneficial Ownership, Beneficially Own or Beneficial Owner of Shares.
Ownership of such Shares for purposes of part II, subchapter M of the Code,
including the attribution of ownership provisions of Section 542 and 544 of the
Code, or if, under Rule 13d-3 of the Exchange Act, such Person would be deemed
to have beneficial ownership of such Shares.
Benefit Plan. An IRA, Keogh Plan or employee benefit plan subject to Title
I of ERISA or Section 4975 of the Code.
Board or Board of Directors. The Board of Directors of the Company.
Bylaws. The Bylaws of the Company.
Cash from Financings. Net cash proceeds realized by the Company from the
financing of the Company's properties or the refinancing of any Company
indebtedness.
Cash from Sales. Net cash proceeds realized by the Company from the sale,
exchange or other disposition of any of its assets after deduction of all
expenses incurred in connection therewith. Cash from Sales shall not include
Cash from Financings.
<PAGE> 96
Cash from Sales and Financings. The total sum of Cash from Sales and Cash
from Financings.
CFA. Carey Fiduciary Advisors, Inc., a Pennsylvania corporation, which is
the general partner of the Advisor.
Change of Control. A change of control of the Company of such a nature
that it would be required to be reported in response to the disclosure
requirements of Schedule 14A of Regulation 14A promulgated under the Exchange
Act, as enacted and in force on the date hereof, whether or not the Company 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" (as that term is defined in Section 13(d) of the Exchange Act, as
enacted and in force on the date hereof) is or becomes the Beneficial Owner of
securities of the Company representing 8.5% or more of the combined voting power
of the Company's securities then outstanding; (ii) there occurs a merger,
consolidation or other reorganization of the Company which is not approved by
the Board of Directors; (iii) there occurs a sale, exchange, transfer or other
disposition of substantially all of the assets of the Company to another entity,
which disposition is not approved by the Board of Directors; or (iv) there
occurs a contested proxy solicitation of the Shareholders of the Company that
results in the contesting party electing candidates to a majority of the Board
of Directors' positions next up for election.
CIP(TM). Carey Institutional Properties Incorporated, formerly Corporate
Property Associates 11 Incorporated, a corporation organized under the laws of
the State of Maryland.
Code. Internal Revenue Code of 1986, as amended.
Commission. The Securities and Exchange Commission.
Company. Corporate Property Associates 14 Incorporated, a corporation
organized under the laws of the State of Maryland.
Competitive Real Estate Commission. The real estate or brokerage
commission paid in a competitive market 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 (as of
the date of purchase) to the purchase, development, construction or improvement
of a Property, exclusive of Acquisition Fees and Acquisition Expenses.
Contract Sales Price. The total consideration received by the Company from
the sale of a Property of the Company.
Counsel. Reed Smith Shaw & McClay.
CPA(R):10. Corporate Property Associates 10 Incorporated, a corporation
organized under the laws of the State of Maryland.
CPA(R):12. Corporate Property Associates 12 Incorporated, a corporation
organized under the laws of the State of Maryland.
CPA(R):14. The Company.
CPA(R) Programs. Corporate Property Associates, a California limited
partnership, Corporate Property Associates 2, a California limited partnership,
Corporate Property Associates 3, a California limited partnership, Corporate
Property Associates 4, a California limited partnership, Corporate Property
Associates 5, a California limited partnership, Corporate Property Associates
6--a California limited
<PAGE> 97
partnership, Corporate Property Associates 7--a California limited partnership,
Corporate Property Associates 8, L.P., a Delaware limited partnership Corporate
Property Associates 9, L.P., a Delaware limited partnership, Corporate Property
Associates 10 Incorporated, a Maryland corporation, Carey Institutional
Properties Incorporated, a Maryland corporation, Corporate Property Associates
12 Incorporated, a Maryland corporation, and any other real estate limited
partnerships or REITs sponsored by W.P. Carey & Co. or Affiliates with
investment objectives substantially similar to the Company.
Cumulative Rate of Cash Flow from Operations. For the period for which the
calculation is being made, the percentage resulting from dividing (i) the total
cash flow from operations (as determined in accordance with GAAP and as
reflected on the Company's Statement of Cash Flow during such period, by (ii)
the product of (a) the average Adjusted Investor Capital for such period
(calculated on a daily basis), and (b) the number of years (including fractions
thereof) elapsed during such period.
Cumulative Return. For the period for which the calculation is being made,
the percentage resulting from dividing (i) the total Dividends paid on each
Dividend payment date during such period (not including Dividends paid out of
Cash from Sales and Financings), by (ii) the product of (a) the average Adjusted
Investor Capital for such period (calculated on a daily basis), and (b) the
number of years (including fractions thereof) elapsed during such period.
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.
Distributable REIT Taxable Income. An amount equal to or greater than (i)
the sum of 95% of: (a) the REIT Taxable Income for the taxable year (determined
without regard to the deduction for dividends paid and by excluding any net
capital gain), and (b) the excess of the net income from Foreclosure Property
over the tax imposed on such income less (ii) any Excess Noncash Income.
Dividends. Dividends declared by the Board.
Equity Interest. The stock of or other interests in, or warrants or other
rights to purchase the stock of or other interests in, any entity that has
borrowed money from the Company or that is a tenant of the Company or that is a
parent or controlling Person of any such borrower or tenant.
ERISA. Employee Retirement Income Security Act of 1974, as amended.
Escrow Agent. The United States Trust Company of New York, or any other
banking institution permitted to serve as escrow agent under Rule 15c2-4 of the
Exchange Act.
Excess Noncash Income. (i) Income includable under Section 467 of the Code
and (ii) gain from a purported like-kind exchange of property which is
determined to be taxable, but only to the extent that it exceeds 5% of REIT
Taxable Income.
Excess Shares. Any Shares in excess of the Ownership Limit.
Exchange Act. The Securities Exchange Act of 1934, as amended.
FHLMC. The Federal Home Loan Mortgage Corporation.
Final Closing Date. The last date on which purchasers of Shares offered
pursuant to this Prospectus are issued such Shares.
FNMA. The Federal National Mortgage Association.
Foreclosure Property. Real property (or any interest in real property) and
any personal property incident thereto, which is acquired or reduced to
possession by the Company as a result of a bid in foreclosure, or by agreement
or legal process, following a default (or where a default was imminent) on a
lease of the property or on an indebtedness secured by such property (other than
indebtedness arising upon the sale of dealer property which was not itself
Foreclosure Property) which the Company elects to treat as foreclosure property
under the Code for a period of two years, unless such period is extended with
the permission of the IRS.
GNMA. The Government National Mortgage Association.
<PAGE> 98
Gross Offering Proceeds. The aggregate purchase price of Shares sold in
the Offering.
Independent Appraiser. A qualified appraiser of real estate, as determined
by the Board, who is not affiliated, directly or indirectly with the Company,
the Advisor or affiliates of the Company or the Advisor. 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.
Independent Director. A director of the Company who is not associated and
has not been associated within the last two years, directly or indirectly, with
the Sponsor or the Advisor. A director shall be deemed to be associated with the
Sponsor or the Advisor if he or she (i) owns an interest in, is employed by, has
any material business or professional relationship with, or is an officer or
director of, the Sponsor, the Advisor, or any of their Affiliates, other than as
a director or trustee or officer of not more than two other REITs organized by
the Sponsor or advised by the Advisor, or (ii) performs services, other than as
a director, for the Company. An indirect relationship shall include
circumstances in which a director's spouse, parents, children, siblings,
mothers- or fathers-in-law, sons- or daughters-in-law, or brothers- or
sisters-in-law is or has been associated with the Sponsor, the Advisor, any of
their Affiliates or the Company.
Individual. Any natural person and those organizations treated as natural
persons in Section 542(a) of the Code.
Initial Closing Date. The first date on which purchasers of Shares offered
pursuant to this Prospectus are issued such Shares, which shall be no later than
12 months after the date of this Prospectus.
Initial Investor Capital. The total amount of capital invested from time
to time by Shareholders (computed at the rate of $10 per Share for every Share
including those Shares for which reduced selling commissions were paid in
connection with their purchase from the Company). Upon completion of the
Offering, the Initial Investor Capital shall be equal to the Gross Offering
Proceeds.
IRA. An individual retirement account described in Section 408(a) of the
Code or an individual retirement annuity described in Section 408(b) of the
Code.
IRS. The Internal Revenue Service.
Keogh Plan. A retirement benefit plan covering a person with net earnings
from self-employment, also known as an H.R.10 plan.
Leverage. The aggregate amount of indebtedness of the Company for money
borrowed (including purchase money mortgage loans) outstanding at any time, both
secured and unsecured.
Loan Refinancing Fee. Fee paid to the Advisor for substantial services
rendered in connection with certain qualifying refinancings of Property.
Loans. The notes and other evidences of indebtedness or obligations
acquired or entered into by the Company as lender which are secured or
collateralized by personal property, or fee or leasehold interests in real
estate or other assets, including but not limited to first or subordinate
mortgage loans, construction loans, development loans, 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.
Minimum Offering. The receipt by the Company of orders for 1,500,000
Shares by the Company in the Offering made by this Prospectus from at least 100
investors independent of the Company and each other and the receipt by the
Escrow Agent of full payment for such Shares with funds that have cleared the
banking system. Any
<PAGE> 99
Shares owned by the Advisor as of the date of this Prospectus will not be
included for purposes of determining whether the Minimum Offering has been
achieved.
NASAA Guidelines. The Real Estate Investment Trust Guidelines of the North
American Securities Administrators Association, Inc.
NASD. The National Association of Securities Dealers, Inc.
Nasdaq. The national automated quotation system operated by the NASD.
Net Assets. The total assets of the Company (other than intangibles) at
cost before deducting depreciation or other non-cash reserves less total
liabilities, calculated at least quarterly on a basis consistently applied.
Net Income. For any period, the total revenues applicable to such period,
less the total expenses applicable to such period excluding additions to
reserves for depreciation, bad debts or other similar non-cash reserves;
provided, however, Net Income for purposes of calculating total allowable
Operating Expenses shall exclude the gain from the sale of the Company's assets.
Offering. The offering of Shares pursuant to this Prospectus.
Operating Expenses. All operating, general and administrative expenses
paid or incurred by the Company, as determined under generally accepted
accounting principles, except the following: (i) interest and discounts and
other cost of borrowed money; (ii) taxes (including state and Federal income
tax, property taxes and assessments, franchise taxes and taxes of any other
nature); (iii) expenses of raising capital, including selling commissions
payable on the sale of Shares or other securities of the Company, Organization
and Offering Expenses, printing, engraving, and other expenses, and taxes
incurred in connection with the issuance, distribution, transfer, registration
and stock exchange listing of the Company's Shares and securities; (iv) expenses
connected with the acquisition, disposition, ownership and operation of real
estate interests, mortgage loans, or other property, including the costs of
foreclosure, insurance premiums, legal services, brokerage and sales
commissions, maintenance, repair and improvement of property; (v) the
Acquisition Fee or Subordinated Disposition Fee payable to the Advisor or any
other party; and (vi) 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, the Performance Fee and the
Loan Refinancing Fee.
Organization and Offering Expenses. Those expenses payable by the Company
in connection with the formation, qualification and registration of the Company
and in marketing and distributing Shares, including, but not limited to, (i) the
preparing, printing, filing and delivery of the Registration Statement and this
Prospectus (including any amendments thereof or supplements thereto) and the
preparing and printing of contractual agreements between the Company 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 Commission and to the NASD,
(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 the Company's counsel and independent public accountants,
(viii) all advertising expenses incurred in connection with the 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, marketing fees, incentive fees, wholesaling fees
and fees and expenses incurred in connection with the sale of the Shares.
Organizational Documents. The Articles of Incorporation and the Bylaws.
<PAGE> 100
Ownership Limit. With respect to Shares, the percent limitation placed on
the ownership of Shares by any one Person. At the date of this Prospectus, such
limit is 9.8% of the outstanding Shares.
Performance Fee. Fee paid to the Advisor for asset management services
rendered under the Advisory Agreement. Such fee is payable in cash or
restricted stock of the Company at the election of the Advisor on a subordinated
basis pursuant to the Advisory Agreement.
Permitted Temporary Investments. United States government securities,
certificates of deposit or other time or demand deposits of commercial banks,
savings banks, savings and loan associations or similar institutions which have
a net worth of at least $100,000,000 or in which such certificates or deposits
are fully insured by any Federal or state government agency, United States
dollar deposits in foreign branches of banks which have a net worth of at least
$100,000,000, bank repurchase agreements covering securities of the United
States government or governmental agencies, commercial paper, bankers
acceptances, public money market funds or other similar short-term highly liquid
investments.
Person. An Individual, corporation, partnership, joint venture,
association, company, trust, bank or other entity or any government or any
agency and political subdivision of a government.
Preferred Return. A Cumulative Return of 6% computed from the Initial
Closing Date through the date as of which such amount is being calculated.
Prohibited Transaction. A sale of assets held by the Company primarily for
sale to customers in the ordinary course of business other than (i) Foreclosure
Property and (ii) certain dispositions of real estate assets which satisfy
Section 857(b)(6)(C) of the Code.
Property or Properties. The Company's partial or entire interest in real
property (including leasehold interests) and personal or mixed property
connected therewith.
Prospectus. This prospectus pursuant to which the Company is offering up
to 30,000,000 Shares, as the same may at any time and from time to time be
amended or supplemented.
Registration Statement. The Registration Statement on Form S-11 of which
this Prospectus is a part.
REIT. A real estate investment trust, as defined in Sections 856-860 of
the Code.
REIT Provisions of the Code or REIT Provisions. Parts II and III of
Subchapter M of Chapter 1 of the Code or successor statutes, and regulations and
rulings promulgated thereunder.
REIT Taxable Income. The taxable income of a REIT, adjusted as follows:
(i) the deduction for dividends received allowable to corporations under
Sections 241 through 247, 249 and 250 of the Code is not allowed; (ii) the
deduction for dividends paid under Section 561 of the Code is allowed, but is
computed without regard to that portion of such deduction attributable to net
income from Foreclosure Property; (iii) taxable income is computed without
regard to Section 443(b) of the Code relating to the computation of tax upon the
change of an annual accounting period; (iv) net income from Foreclosure Property
that is not qualified REIT income without regard to the foreclosure property
provisions of the Code is excluded; (v) the tax imposed for failing the 75%
Income Test and/or the 95% Income Test is deducted; and (vi) income derived from
Prohibited Transactions is excluded.
REMIC. A Real Estate Mortgage Income Conduit, as defined in Section 860D
of the Code.
Roll-up Transaction. A transaction involving the acquisition, merger,
conversion or consolidation, directly or indirectly, of the Company and the
issuance
<PAGE> 101
of securities of a Roll-up Entity. Such term does not include: (i) a transaction
involving securities of the Company that have been for at least 12 months listed
on a national securities exchange or included for quotation on Nasdaq National
Market System (NMS); or (ii) a transaction involving the conversion to
corporate, trust, or association form of only the Company if, as a consequence
of the transaction there will be no significant adverse change in any of the
following: Shareholder voting rights; the term of existence of the Company;
compensation to the Sponsor or Advisor; or the investment objectives of the
Company.
Roll-up Entity. A partnership, real estate investment trust, corporation,
trust or similar entity that would be created or would survive after the
successful completion of the proposed Roll-up Transaction.
Sales Agent. Carey Financial Corporation.
Securities Act. The Securities Act of 1933, as amended.
Selected Dealer Fee. A due diligence and management fee payable to the
Sales Agent or Selected Dealers by the Company (through the Sales Agent) of up
to 1% of the price of each Share sold by those Selected Dealers to which the
Sales Agent agrees to pay such due diligence and management fee.
Selected Dealers. Broker-dealers who are members of the NASD and who have
executed a Selected Dealer Agreement with the Sales Agent in whom the Selected
Dealers agree to participate with the Sales Agent in the Offering.
Selling Period. Period in which the Company is engaged selling the
Company's 60,000,000 authorized shares.
Shareholders. Those Persons who at any particular time are shown as
holders of record of Shares on the books and records of the Company.
Shares. All of the shares of common stock of the Company, $.001 par value,
and all other shares of common stock of the Company issued in this or any
subsequent Offering.
Sponsor. W.P. Carey & Co., Inc. and any other person directly or
indirectly instrumental in organizing, wholly or in part, the Company or any
person who will manage or participate in the management of the Company, and any
Affiliate of any such person. Sponsor does not include a person whose only
relationship to the Company is as 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. An Acquisition Fee (including any interest
thereon) payable on a subordinated installment basis pursuant to the Advisory
Agreement.
Subordinated Disposition Fee. Fee paid to the Advisor or an Affiliate
under the Advisory Agreement for property disposition services.
Subordinated Incentive Fee. Fee paid to the Advisor pursuant to the
Advisory Agreement under the circumstances described therein upon the
disposition of Property.
Termination Fee. An amount equal to 15% of the amount, if any, by which
(i) the appraised value of the Properties on the date of termination of the
Advisory Agreement (the "Termination Date"), less the amount of all indebtedness
secured by such Properties, exceeds (ii) the total of the Initial Investor
Capital on the Final Closing Date plus an amount equal to the Preferred Return
through the Termination Date reduced by the total Dividends paid by the Company
from its inception through the Termination Date.
Total Property Cost. With regard to any Property, an amount equal to the
sum of the Contract Purchase Price of such Property plus the Acquisition Fees
paid in connection with such Property.
2%/25% Guidelines. The requirement that, in any 12-month period, the
Operating Expenses not exceed the greater of 2% of the Company's Average
Invested Assets during
<PAGE> 102
such 12-month period or 25% of the Company's Net Income over the same 12-month
period.
UBTI. Unrelated business taxable income as defined in Section 512 of the
Code.
Underlying Real Property. The property serving as collateral for any Loan.
Unimproved Real Property. Property which has the following three
characteristics: (i) an equity interest in property which was not acquired for
the purpose of producing rental or other operating income, (ii) no development
or construction is in process on such property, and (iii) no development or
construction on such property is planned in good faith to commence on such
property within one year.
Valuation. An estimate of value of the assets of the Company as determined
by a Person approved by the Independent Directors, which Person shall be
independent of the Company and the Advisor.
W.P. Carey & Co. W.P. Carey & Co., Inc.
<PAGE> 103
REPORT OF INDEPENDENT ACCOUNTANTS
To the Shareholder of
Corporate Property Associates 14 Incorporated:
We have audited the accompanying balance sheet of CORPORATE PROPERTY
ASSOCIATES 14 INCORPORATED as of June 30, 1997. This financial statement is the
responsibility of the Company's management. Our responsibility is to express an
opinion on this financial statement based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the balance sheet is free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the balance sheet. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall balance sheet presentation. We
believe that our audit of the balance sheet provides a reasonable basis for our
opinion.
In our opinion, the balance sheet referred to above presents fairly, in
all material respects, the financial position of CORPORATE PROPERTY ASSOCIATES
14 INCORPORATED, as of June 30, 1997, in conformity with generally accepted
accounting principles.
/s/ COOPERS & LYBRAND L.L.P.
New York, New York
July 10, 1997
<PAGE> 104
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED
BALANCE SHEET
June 30, 1997
<TABLE>
<S> <C>
A S S E T S:
------------
Cash ................................................................. $200,000
--------
Total assets ......................................................... $200,000
========
L I A B I L I T I E S:
----------------------
Commitments and contingencies (Note 4)
S H A R E H O L D E R ' S E Q U I T Y
----------------------------------------
Common stock, $.001 par value; authorized 60,000,000 shares; 20,000
issued and outstanding shares ...................................... 20
Additional paid-in capital ........................................... 199,980
--------
Total liabilities and shareholder's equity ........................... $200,000
========
</TABLE>
NOTES TO BALANCE SHEET
1. Organization and Offering:
Corporate Property Associates 14 Incorporated, a Maryland corporation
(the "Company"), was formed on June 4, 1997 under the General Corporation Law
of Maryland for the purpose of engaging in the business of investing in and
owning industrial, commercial and governmental real property and personal and
mixed property connected therewith net leased to creditworthy corporations and
other creditworthy entities. Subject to certain restrictions and limitations,
the business of the Company will be managed by Carey Property Advisors (the
"Advisor").
On June 30, 1997, the Advisor purchased 20,000 shares of common stock
("Shares") for $200,000 and was admitted as the initial shareholder of the
Company.
A minimum of 1,500,000 and a maximum of 30,000,000 Shares are being
offered to the public (the "Offering") on a "best efforts" basis by Carey
Financial Corporation, an affiliate of the Advisor ("Carey Financial"), and
selected other dealers at a price of $10 per Share.
The Company intends to invest the net proceeds of the Offering in
properties, as described in the prospectus of the Company (the "Prospectus").
If 1,500,000 or more Shares are sold, it is anticipated that the Company will
incur limited recourse indebtedness of approximately 60% of the purchase price
of all properties purchased, but there is no limit on borrowing on individual
properties. Subsequent to the full investment of net proceeds of the Offering,
the aggregate borrowings may not exceed the sum of 75% of the value of all
properties unless the excess is approved by a majority of the Independent
Directors (as defined in the Prospectus) and disclosed to shareholders of the
Company in the next quarterly report of the Company, along with the
justification for such excess.
After the termination of the Offering and prior to such time, if any, as
the Shares are listed on a national securities market, any stockholder (other
than the Advisor) that has held his or her Shares for at least one year may
present all or any portion of such stockholder's Shares to the Company for
redemption at any time, in accordance with the procedures set up by the Company.
At such time, the Company may, at its option, redeem such Shares presented for
redemption for cash to the extent it has sufficient funds available, as
determined by the Board of Directors in its sole discretion. There is no
assurance that there will be sufficient funds available for redemption and,
accordingly, a stockholder's Shares may not be redeemed.
The Board of Directors will determine on a quarterly basis whether the
Company has sufficient excess cash to repurchase Shares. Shareholders may offer
Shares to the Company for purchase and the Company will purchase the offered
Shares if it has sufficient cash. The Company will impose a surrender charge on
repurchased shares.
2. Federal Income Taxes:
At the earliest date possible, the Company intends to qualify as a real
estate investment trust under the Internal Revenue Code of 1986, and
accordingly will not be subject to Federal income taxes on amounts distributed
to shareholders (except income from foreclosure property), provided it
distributes at least 95% of its real estate investment trust taxable income to
its shareholders and meets certain other conditions.
3. Agreements and Transactions with Related Parties:
The Company has entered into an advisory agreement with Carey Property
Advisors, a Pennsylvania limited partnership, the sole general partner of which
is Carey Fiduciary Advisors, Inc., a corporation which is wholly-owned by
William P. Carey.
97
<PAGE> 105
Pursuant to the advisory agreement, the Advisor will perform certain
services for the Company including the identification, evaluation, negotiation,
purchase and disposition of property, the day-to-day management of the Company
and the performance of certain administrative services. The Advisor will
receive substantial fees and compensation in connection with the Offering and
the operation of the Company, including reimbursement for organization and
offering expenses, interest on loans made to the Company, acquisition fees
payable by sellers of property or the Company, reimbursement for Company
expenses incurred in connection with the administration of the Company, asset
management fees, loan refinancing fees, a subordinated disposition fee and a
subordinated incentive fee.
The Company has entered into a sales agency agreement with Carey
Financial, whereby Carey Financial will receive a selling commission of up to
$0.60 per Share sold and certain other payments.
4. COMMITMENTS AND CONTINGENCIES:
The preparation of a balance sheet in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the balance
sheet. Actual results can differ from those estimates.
a. The Company will be liable for certain expenses of the Offering
described in the Prospectus, which include filing, legal, accounting, printing
and escrow fees, which are to be deducted from the gross proceeds of the
Offering. The Company will reimburse Carey Financial for expenses (including
fees and expenses of its counsel) and for the costs of any sales and
information meetings of Carey Financial's employees relating to the Offering.
The Company, the Advisor or affiliates of the Advisor may provide sales
incentive programs directly to employees of Carey Financial and other dealers
in compliance with the requirements of the Rules of Fair Practice of the
National Association of Securities Dealers, Inc., which incentives, in no
event, shall exceed in any year an aggregate amount of $100 per participating
salesman. The total underwriting compensation to Carey Financial and other
dealers in connection with the Offering shall not exceed 10% of the gross
proceeds of the Offering plus an additional 0.5% of such gross proceeds for
bona fide due diligence expenses. The Advisor has agreed to be responsible for
the repayment of (i) organization and offering expenses (excluding selling
commissions to Carey Financial with respect to Shares held by clients of it
and selected dealers and fees paid and expenses reimbursed to selected dealers)
which exceed 3.5% of the gross proceeds of the Offering and (ii) organization
and offering expenses (including selling commissions, fees and fees paid and
expenses reimbursed to selected dealers) which exceed 15% of the gross proceeds
of the Offering.
b. If at any time the Company does not have sufficient funds to pay the
equity portion of the purchase price of any property normally paid with
Offering proceeds, but would have if it could use Offering proceeds being held
in escrow, funds may be borrowed from affiliates of the Advisor or from third
parties on a short-term basis which would be repaid by the Company at the time
of or subsequent to the release of funds from escrow. At any time, the Company
may borrow funds from affiliates of either the Advisor or third parties on a
short-term basis to provide the debt portion of the purchase price of any
property if (i) the Company is unable to obtain a permanent loan or, in the
judgment of the Company or the Advisor, it is not in the best interests of the
Company to obtain a permanent loan at the interest rates then prevailing and
(ii) the Advisor has reason to believe that the Company will be able to obtain
a permanent loan on or prior to the end of the loan term. Any such short-term
loans may be fully or partially amortized, may provide for the payment of
interest only during the term of the loan or may provide for the payment of
principal and interest only upon maturity. In addition, such loans may be
collateralized by a first or junior mortgage on the property to be acquired or
by a pledge of or security interest in the net proceeds to be received by the
Company from the sale of Shares. Interest on any of the above-described loans
will be paid at the rate of the lesser of: (a) 1% above the prime rate of
interest charged by The Bank of New York or (b) the rate that would be charged
to the Company by unrelated lending institutions on comparable loans for the
same purpose in the locality of the property.
c. The Advisor has informed the Company that in the event the minimum
Offering is not achieved, the Advisor will bear responsibility for all
organization and offering expenses of the Company (including underwriters'
expenses).
98
<PAGE> 106
EXHIBIT A
PRIOR PERFORMANCE TABLES
The information presented in the following tables represents the
historical experience of the CPA(R) Programs for which the Affiliates of the
Advisor of the Company serve as general partners and the record of CPA(R)
Programs in meeting their investment objectives. These tables should be
carefully reviewed by a potential investor in considering an investment in the
Company. These tables are as follows:
Table I--Experience in Raising and Investing Funds (on a percentage basis)
Table II--Compensation to Sponsor
Table III--Operating Results of Prior Programs
Table V--Sales or Dispositions of Properties
Persons who purchase Shares in the Company will not thereby acquire any
ownership interest in any of the CPA(R) Programs to which these tables relate.
It should not be assumed that investors in the Company will experience results
comparable to those experienced by investors in the CPA(R) Programs. See "Prior
Offerings by Affiliates" elsewhere in this Prospectus.
The investment objectives of the Company and CPA(R) Programs are similar.
Additional information regarding prior public CPA(R) Programs can be
obtained from the Advisor by written request for a copy of the most recent
Annual Report filed on Form 10-K with the SEC or a copy of Table VI--Acquisition
of Real Properties by Prior Public Programs included in Part II of the
Registration Statement to which this Prospectus relates, free of charge.
The following terms used throughout the Prior Performance Tables are
defined below:
"Total acquisition cost" means the original mortgage financing at
date of purpose, cash payments (equity), and prepaid items and fees
related to purchase of property.
"GAAP" means generally accepted accounting principles.
"Cash generated from operations" means the excess or deficiency of
partnership operating cash receipts including interest on short-term
investments over partnership operating case expenditures.
<PAGE> 107
TABLE I
EXPERIENCE IN RAISING AND INVESTING FUNDS AS OF DECEMBER 31, 1996
ON A PERCENTAGE BASIS
Table I includes information showing how investors' funds have been dealt
with in Prior Programs, the offerings of which have closed since January 1,
1993, particularly focusing on the percentage of the amount raised available for
investment (or total acquisition cost), the percentage of leverage used in
purchasing properties and the time frame for raising and investing funds. THE
INFORMATION IN THIS TABLE SHOULD NOT BE CONSIDERED AS INDICATIVE OF THE POSSIBLE
PERFORMANCE OF THE COMPANY. PURCHASERS OF THE SHARES OFFERED BY THIS PROSPECTUS
WILL NOT HAVE ANY OWNERSHIP IN THE CPA(R) PROGRAMS. MORTGAGE FINANCING FOR THE
CPA(R) PROGRAMS MAY HEREAFTER OCCUR WHICH WOULD MAKE AVAILABLE ADDITIONAL FUNDS
FOR INVESTMENT BY SUCH PROGRAMS. ANY ADDITIONAL INVESTMENTS COULD SIGNIFICANTLY
ALTER CERTAIN OF THE INFORMATION PRESENTED IN THIS TABLE.
<TABLE>
<CAPTION>
CPA(R):10 CIP(TM) CPA:12
----------- ------------ ------------
<S> <C> <C> <C>
Dollar amount offered (net of discounts and
individual general partner contributions)....... $72,049,908 $141,590,601 156,609,783
Dollar amount raised.............................. 100% 100% 100%
Less offering expenses:
Selling commissions............................. 6.82% 6.94% 5.93%
Organization expenses........................... 7.17% 5.31% 4.34%
Reserves (working capital)........................ 1.00% 1.00% 1.00%
Percent available for investment in real estate... 85.01% 86.75% 88.73%
Acquisition costs:
Cash down payments.............................. 71.12% 77.44% 59.43%
Other costs capitalized......................... 0.82% 0.24% (.23)%
Acquisition fees................................ 10.05% 9.03% 4.92%
Total acquisition costs (includes debt
financing)................................... 220.44% 195.99% 106.68%
Percent leverage (mortgage financing divided by
total acquisition costs)........................ 63% 56%(1) 40%
Date offering began............................... 6/20/90(2) 8/19/91(3) 2/18/94(4)
Length of offering (in months).................... 12 mos. 24 mos. 35 mos.
Months to invest 90% of amount available for
investment (from beginning of offering)......... 30 mos. 31 mos. N/A(5)
</TABLE>
FOOTNOTES
(1) Does not represent fully invested portfolio. Leverage percentage is
applicable only to initial property acquisitions.
(2) Remaining shares withdrawn 8/14/91.
(3) Remaining shares withdrawn 11/4/93.
(4) Remainings shares withdrawn 3/14/96, includes a second offering which
commenced 2/2/96.
(5) Program has not reached investment of 90% of amount available for
investment.
A-1
<PAGE> 108
TABLE II
COMPENSATION TO SPONSOR AS OF DECEMBER 31, 1996
Table II provides information as to Prior Programs that will enable an
investor to understand the significance of compensation paid to the sponsor and
its affiliates, as well as to understand how the compensation is spread over the
cycle of the programs. The information presented below is for compensation paid
since January 1, 1994. THE INFORMATION PRESENTED IN THIS TABLE SHOULD NOT BE
CONSIDERED AS INDICATIVE OF THE COMPENSATION WHICH WILL BE RECEIVED BY THE
ADVISOR AND AFFILIATES OF THE ADVISOR. THE COMPENSATION PAYABLE TO THE GENERAL
PARTNERS AND AFFILIATES OF THE CPA(R) PARTNERSHIPS DIFFERS FROM THE ENTITLEMENT
AND ALLOCATION OF COMPENSATION TO THE ADVISOR AND AFFILIATES OF THE ADVISOR. SEE
"MANAGEMENT COMPENSATION" AND "ESTIMATED USE OF PROCEEDS". PURCHASERS OF SHARES
OFFERED BY THIS PROSPECTUS WILL NOT HAVE ANY OWNERSHIP IN THE CPA(R) PROGRAMS.
<TABLE>
<CAPTION>
CPA(R):1-
CPA(R):10 CIP(TM) CPA(R):12
--------------- ------------ ------------
<S> <C> <C> <C>
Date offering(s) commenced......................... 1/16/79-6/20/90 8/19/91 2/18/94
2/2/96
Dollar amount raised (net of discounts and
individual general partner contributions)........ $ 472,763,521 $141,590,601 $156,609,783
Amount paid to sponsor from proceeds of offering:
Underwriting fees................................
Acquisition fees-real estate commissions and
mortgage placement fees(1).................... 930,000 3,221,556 7,770,745
Other Fees.........................................
Dollar amount of cash generated from operations
before deducting payments to sponsor............. 194,437,519 51,062,659 15,966,152
Amount paid to sponsor from operations:
Property management, leasing and asset management
fees(2)....................................... 7,295,917 8,805,504 2,010,898
Reimbursements(2)................................ 3,859,421 1,815,619 1,955,755
Other (cash distributions to General
Partners)(2)..................................... 7,367,216
Dollar amount of property sales and re-financing
before deducting payments to sponsor(2).......... 171,527,937 39,223,596 3,375,000
Amount paid to sponsor from property sales and
refinancing......................................
</TABLE>
FOOTNOTES
(1) Represents acquisition fees paid to sponsor and its affiliates from January
1, 1994 through December 31, 1996.
(2) Represents actual performance or payments for the period from January 1,
1994 through December 31, 1996.
A-2
<PAGE> 109
TABLE III (1 OF 11)
OPERATING RESULTS OF PRIOR PROGRAMS
Table III includes information showing the start-up and operational phase of
Prior Programs, the offerings of which have been closed since December 31, 1979.
This Table is designed to provide the investor with information on the financial
operations of such Prior Programs. The results shown in this Table are in all
cases for years ended December 31. THE INFORMATION PRESENTED IN THIS TABLE
SHOULD NOT BE CONSIDERED AS INDICATIVE OF THE POSSIBLE OPERATIONS OF THE
COMPANY. PURCHASERS OF THE SHARES OFFERED BY THIS PROSPECTUS WILL NOT HAVE ANY
OWNERSHIP IN THE CPA(R) PARTNERSHIPS. MORTGAGE FINANCING FOR THE CPA(R)
PARTNERSHIPS MAY HEREAFTER OCCUR WHICH WOULD MAKE AVAILABLE ADDITIONAL FUNDS FOR
INVESTMENT BY SUCH PARTNERSHIPS. ANY ADDITIONAL INVESTMENTS COULD SIGNIFICANTLY
ALTER CERTAIN OF THE INFORMATION PRESENTED IN THIS TABLE.
<TABLE>
<CAPTION>
CPA(R):1
---------------------------------------------------------------------------
1979 1980 1981 1982 1983 1984
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Gross Revenues.................................. $2,636,185 $3,843,588 $4,427,993 $4,376,655 $4,322,546 $4,331,105
Profit (loss) on sale of properties............. N/A N/A N/A N/A 22,180(1) N/A
Extraordinary charge on extinguishment of debt..
Write-down of property.......................... N/A N/A N/A N/A N/A N/A
Less:
Operating expenses............................. 160,387 252,758 238,058 181,922 169,613 145,516
Interest expense............................... 1,415,410 1,895,624 2,409.242 2,386,388 2,328,716 2,300,677
Depreciation................................... 821,484 1,275,778 1,275,792 1,275,792 1,275,792 1,272,999
Net income (Loss) GAAP Basis.................... 238,904 419,428 504,901 532,553 570,605 611,913
Taxable income (Loss):
-- from operations............................. 392,689 219,214 (108,663) (158,919) (173,788) (72,288)
-- from gain (loss) on sale.................... 0 0 0 0 22,180(1) 0
Cash generated from operations(6)............... 985,982 1,512,434 1,504,769 1,500,263 1,438,191 1,481,113
Cash proceeds from
sales.......................................... 0 0 0 0 60,335(1) 0
Cash generated from refinancing................. 0 0 0 0 0 0
Cash generated from operations, sales and
refinancing.................................... 985,982 1,512,434 1,504,769 1,500,263 1,498,526 1,481,113
Less Cash distribution to investors.............
-- from operating cash flow(7)................. 591,479 1,480,000 1,501,819 1,504,648 1,504,646 1,504,646
-- from sales and refinancing.................. 0 0 0 0 0 0
Cash generated (deficiency) after cash
distribution.................................. 394,503 32,434 2,950 (4,385) (6,120) (23,533)
Less special items.............................. 0 0 0 0 0 0
Cash generated (deficiency) after cash
distributions and special items............... 394,503 32,434 2,950 (4,385) (6,120) (23,533)
TAX AND DISTRIBUTION DATA PER $1000 INVESTED
Federal Income Tax Results:
Ordinary income
(loss)........................................ $23.65 $10.85 $(5.38) $(7.87) $(8.60) $(3.58)
Capital gain (loss)............................ 0 0 0 0 1.10 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income........................... 14.39 20.76 24.99 26.36 27,15 30.29
-- Return of capital........................... 21.23 52.50 49.35 48.12 47.33 44.19
Source (on cash basis):
-- Sales....................................... 0 0 0 0 0 0
-- Refinancing................................. 0 0 0 0 0 0
-- Operations.................................. 35.62 73.26 74.34 74.48 74.48 74.48
Amount (in percentage terms) remaining invested
in program properties at the end of the last
year reported in the Table (original total
acquisition cost of properties retained
divided by original total acquisition cost of
all properties in program)..................... N/A 100% 100% 100% 100% 100%
<CAPTION>
CPA(R):1
-------------------------------------------------------------------------------
1985 1986 1987 1988 1989 1990
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Gross Revenues.................................. $4,187,199 $3,513,411 $6,584,410 $4,487,838 $4,167,975 $4,162,465
Profit (loss) on sale of properties............. N/A (38,915)(2) N/A N/A (231,288)(3) N/A
Extraordinary charge on extinguishment of debt..
Write-down of property.......................... N/A N/A N/A N/A 300,000(4) N/A
Less:
Operating expenses............................. 276,287 630,225 766,707 811,685 418,278 411,712
Interest expense............................... 2,254,996 2,296,520 2,320,731 2,339,046 1,916,134 1,840,553
Depreciation................................... 1,266,962 1,507,133 1,520,842 1,318,492 1,159,216 1,044,720
Net income (Loss) GAAP Basis.................... 388,954 (959,382) 1,976,130 18,615 143,059 865,480
Taxable income (Loss):
-- from operations............................. (49,859) (1,135,524) (125,052) 482,093 1,175,040 1,199,289
-- from gain (loss) on sale.................... 0 (38,915)(2) 0 0 (538,771)(3) 0
Cash generated from operations(6)............... 1,221,045 736,214 1,078,838 1,908,203 1,964,408 1,901,459
Cash proceeds from
sales.......................................... 0 500,000(2) 0 0 0 0
Cash generated from refinancing................. 0 0 0 0 0 0
Cash generated from operations, sales and
refinancing.................................... 1,221,045 1,238,214 1,078,838 1,908,203 1,964,408 1,901,459
Less Cash distribution to investors.............
-- from operating cash flow(7)................. 1,504,646 1,055,354 1,063,838 1,074,748 1,092,527 1,162,424
-- from sales and refinancing.................. 0 0 0 0 0 0
Cash generated (deficiency) after cash
distribution................................... (283,601) 180,860 15,000 23,455 871,881 739,035
Less special items.............................. 0 0 0 0 0 0
Cash generated (deficiency) after cash
distributions and special items................ (283,601) 180,860 15,000 23,455 871,881 739,035
TAX AND DISTRIBUTION DATA PER $1000 INVESTED
Federal Income Tax Results:
Ordinary income
(loss)........................................ $(2.47) $(56.21) $(6.19) $23.86 $58.16 $59.36
Capital gain (loss)............................ 0 (1.92) 0 0 (26.67) 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income........................... 19.25 0 52.66 53.20 7.08 42.84
-- Return of capital........................... 55.23 52.24 0 0 47.00 14.70
Source (on cash basis):
-- Sales....................................... 0 0 0 0 0 0
-- Refinancing................................. 0 0 0 0 0 0
-- Operations.................................. 74.48 52.24 52.66 53.20 54.08 57.54
Amount (in percentage terms) remaining invested
in program properties at the end of the last
year reported in the Table (original total
acquisition cost of properties retained
divided by original total acquisition cost of
all properties in program)..................... 100% 98.75% 98.75% 98.75% 83.14% 83.14%
<CAPTION>
CPA(R):1
-------------------------------------------------------------------------------
1991 1992 1993 1994 1995 1996
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Gross Revenues.................................. $4,093,556 $4,102,112 $4,418,370 $4,480,460 $4,830,618 $4,589,145
Profit (loss) on sale of properties............. (13,296)(5) N/A N/A N/A N/A (22,871)(5)
Extraordinary charge on extinguishment of debt.. (255,438)(6)
Write-down of property.......................... N/A N/A N/A N/A N/A
Less:
Operating expenses............................. 298,435 302,200 465,548 666,955 374,238 388,484
Interest expense............................... 1,750,596 1,682,798 1,672,658 1,598,614 1,524,837 1,280,995
Depreciation................................... 1,041,634 1,059,255 1,120,162 1,106,712 1,089,758 969,570
Net income (Loss) GAAP Basis.................... 989,595 1,057,059 1,160,002 1,108,179 1,841,695 1,671,787
Taxable income (Loss):
-- from operations............................. 852,971 812,956 1,098,352 930,049 1,841,051 1,540,197
-- from gain (loss) on sale.................... 52,204(5) 0 0 0 0 153,615
Cash generated from operations(6)............... 2,062,138 2,046,299 2,291,177 2,216,472 2,666,179 2,826,531
Cash proceeds from
sales.......................................... 160,000(5) 0 0 0 0 355,958
Cash generated from refinancing................ 0 0 0 0 0 0
Cash generated from operations, sales and
refinancing.................................... 2,222,138 2,046,299 2,291,177 2,216,472 2,666,179 3,182,489
Less Cash distribution to investors.............
-- from operating cash flow(7)................. 1,226,667 1,242,828 1,258,990 1,269,699 1,313,535 1,417,554
-- from sales and refinancing.................. 0 0 0 0 0 0
Cash generated (deficiency) after cash
distribution................................... 995,471 803,471 1,032,187 946,773 1,352,644 1,764,935
Less special items.............................. 0 0 0 0 0 0
Cash generated (deficiency) after cash
distributions and special items................ 995,471 803,471 1,032,187 946,773 1,352,644 1,764,935
TAX AND DISTRIBUTION DATA PER $1000 INVESTED
Federal Income Tax Results:
Ordinary income
(loss)........................................ $42.22 $40.24 $54.37 $46.04 $91.13 $76.24
Capital gain (loss)............................ 0 0 0 0 0 7.60
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income........................... 48.98 52.36 57.42 54.85 65.02 70.17
-- Return of capital........................... 11.74 9.16 4.90 8.00 0 0
Source (on cash basis):
-- Sales....................................... 0 0 0 0 0 0
-- Refinancing................................. 0 0 0 0 0 0
-- Operations.................................. 60.72 61.52 62.32 62.85 65.02 70.17
Amount (in percentage terms) remaining invested
in program properties at the end of the last
year reported in the Table (original total
acquisition cost of properties retained
divided by original total acquisition cost of
all properties in program)..................... 82.74% 82.74% 82.74% 82.74% 82.74% 82.46%
</TABLE>
FOOTNOTES
(1) Results from the sale of a one acre portion of the land which was a part of
the property net leased to Varo, Inc. The net proceeds from the sale of this
land were applied to repay a portion of the outstanding principal balance of
the mortgage loan to CPA(R):1 used to finance the acquisition of the
Property.
(2) Results from the sale of 11.37 acres of land which was a part of the
property net leased to the Gap Stores, Inc.
(3) Represents loss on disposition of the 2400 Industrial Lane Property as a
result of the transfer of the Partnership's interest in the Property.
(4) Represents write-down of the 2400 Industrial Lane Property.
(5) Results from the sale of properties net leased to Kobacker Stores, Inc.
(6) Result of refinancing mortgage loan on property leased to the Gap Inc.
A-3
<PAGE> 110
(7) For the years up to and including 1985, the figures for cash generated from
operations were derived from the Statements of Changes in Financial
Position, whereas for the years after 1985, the figures were derived from
the Statements of Cash Flows in accordance with SFAS, No. 95. In determining
Cash from Operations pursuant to the Statement of Cash Flows, the effects of
changes primarily in accrued liabilities, receivables and other assets are
taken into account but other items such as principal amortization of loans
are not included. Cash from operations pursuant to the Statement of Changes
in Financial Position includes the effect of loan amortization, but excludes
the effects of changes in accrued liabilities, receivables and other assets.
(8) To the extent "cash distribution to investors from operating cash flow"
exceeds "cash generated from operations" in any given year, such excess
represents the distribution of cash generated from partnership operations in
prior years that has not previously been distributed.
NOTES
(1) CPA(R):1 made quarterly distributions in the following amounts per $1,000
invested on the dates specified: January, 1997 -- $17.60 and April,
1997 -- $17.62.
A-4
<PAGE> 111
TABLE III (2 OF 11)
OPERATING RESULTS OF PRIOR PROGRAMS
Table III includes information showing the start-up and operational phase of
Prior Programs, the offerings of which have been closed since December 31, 1979.
This Table is designed to provide the investor with information on the financial
operations of such Prior Programs. The results shown in this Table are in all
cases for years ended December 31. THE INFORMATION PRESENTED IN THIS TABLE
SHOULD NOT BE CONSIDERED AS INDICATIVE OF THE POSSIBLE OPERATIONS OF THE
COMPANY. PURCHASERS OF THE SHARES OFFERED BY THIS PROSPECTUS WILL NOT HAVE ANY
OWNERSHIP IN THE CPA(R) PARTNERSHIPS. MORTGAGE FINANCING FOR THE CPA(R)
PARTNERSHIPS MAY HEREAFTER OCCUR WHICH WOULD MAKE AVAILABLE ADDITIONAL FUNDS FOR
INVESTMENT BY SUCH PARTNERSHIPS. ANY ADDITIONAL INVESTMENTS COULD SIGNIFICANTLY
ALTER CERTAIN OF THE INFORMATION PRESENTED IN THIS TABLE.
<TABLE>
<CAPTION>
CPA(R):2
---------------------------------------------------------------------------
1980 1981 1982 1983 1984 1985
---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Gross Revenues..................................... $1,658,322 $4,092,794 $6,422,836 $9,793,731 $9,895,531 $9,960,370
Profit on sale of properties....................... N/A N/A N/A N/A N/A N/A
Extraordinary charge on extinguishment of debt..... N/A N/A N/A N/A N/A N/A
Write-down of property.............................
Less:
Operating expenses................................ 181,613 291,223 290,558 307,165 346,920 364,373
Interest expense.................................. 197,038 606,089 3,341,880 6,511,201 6,349,960 6,307,664
Depreciation...................................... 14,421 127,460 157,900 154,909 154,909 155,782
Net Income-GAAP Basis.............................. 1,265,250 3,068,022 2,632,498 2,820,456 3,043,742 3,132,551
Taxable Income (Loss):
-- from operations................................ 630,885 2,003,000 (9,093) (1,168,795) (885,102) (532,969)
-- from gain on sale.............................. 0 0 0 0 0 0
-- from extraordinary charge...................... 0 0 0 0 0 0
Cash generated from operations(3).................. 1,149,636 2,853,883 2,460,169 2,574,532 2,804,385 2,881,848
Cash generated from sales.......................... 0 0 0 0 0 0
Cash generated from refinancing.................... 0 0 0 0 0 0
Cash generated from operations, sales and
refinancing....................................... 1,149,636 2,853,883 2,460,169 2,574,532 2,804,385 2,881,848
Less: Cash distribution to investors:
-- from operating cash flow(4).................... 473,028 2,229,443 2,440,555 2,525,000 2,547,000 2,657,778
-- from sales and refinancing..................... 0 0 0 0 0 0
Cash generated after cash distributions and special
items............................................. 676,608 624,440 19,614 49,532 257,385 224,070
Less: Special items................................ 0 0 0 0 0 0
Cash generated after cash distributions and special
items............................................. 676,608 624,440 19,614 49,532 257,385 224,070
Tax and Distribution Data Per $1000 Invested
Federal Income Tax
Results:
Ordinary income (loss)........................... $ 48.95 $ 72.11 $ (.33) $ (42.08) $ (30.78) $ (19.19)
Capital gain (loss).............................. 0 0 0 0 0 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income............................. 36.70 80.25 87.86 90.90 91.70 95.68
-- Return of capital............................. 0 0 0 0 0 0
Source (on cash basis):
-- Sales......................................... 0 0 0 0 0 0
-- Refinancing................................... 0 0 0 0 0 0
-- Operations.................................... 36.70 80.25 87.86 90.90 91.70 95.68
Amount (in percentage terms) remaining invested in
program properties at the end of the last year
reported in the Table (original total acquisition
cost of properties retained divided by original
total acquisition cost of all properties in
program).......................................... N/A N/A 100% 100% 100% 100%
<CAPTION>
CPA (R):2
-----------------------------------------------------------------
1986 1987 1988 1989 1990
---------- ---------- ---------- ----------- ----------
<S> <C> <C> <C> <C> <C>
Gross Revenues.......................................... $9,954,236 $9,694,869 $9,754,664 $10,013,889 $9,732,269
Profit on sale of properties............................ 920,577(1) N/A N/A N/A N/A
Extraordinary charge on extinguishment of debt.......... (894,945)(2) N/A N/A N/A N/A
Write-down of property..................................
Less:
Operating expenses..................................... 393,350 480,635 489,806 540,777 685,927
Interest expense....................................... 4,916,744 4,204,623 4,074,729 3,856,045 3,771,706
Depreciation........................................... 314,560 475,162 475,162 479,598 480,393
Net Income-GAAP Basis................................... 4,355,214 4,534,449 4,714,967 5,137,469 4,794,243
Taxable Income (Loss):
-- from operations..................................... 260,572 1,604,613 1,997,924 2,600,538 2,461,101
-- from gain on sale................................... 2,035,116(1) 0 0 0 0
-- from extraordinary charge........................... (239,948)(2) 0 0 0 0
Cash generated from operations(3)....................... 4,325,850 5,084,085 5,096,066 5,502,770 5,298,252
Cash generated from sales............................... 5,441,434(1) 0 0 0 0
Cash generated from refinancing......................... 0 0 0 0 0
Cash generated from operations, sales and refinancing... 9,767,234 5,084,085 5,096,066 5,502,770 5,298,252
Less: Cash distribution to investors:
-- from operating cash flow(4)......................... 3,691,774 3,435,000 3,506,667 3,645,000 3,773,333
-- from sales and refinancing.......................... 4,950,000 0 0 0 0
Cash generated after cash distributions and special
items.................................................. 1,125,510 1,649,085 1,589,399 1,857,770 1,524,919
Less: Special items..................................... 0 0 0 0 0
Cash generated after cash distributions and special
items.................................................. 1,125,510 1,649,085 1,589,399 1,857,770 1,524,919
Tax and Distribution Data Per $1000 Invested
Federal Income Tax
Results:
Ordinary income (loss)................................ $ .73 $ 57.77 $ 71.93 $ 93.62 $ 88.60
Capital gain (loss)................................... 73.27 0 0 0 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income.................................. 156.79 123.66 126.24 131.22 135.84
-- Return of capital.................................. 156.11 0 0 0 0
Source (on cash basis):
-- Sales.............................................. 180.00 0 0 0 0
-- Refinancing........................................ 0 0 0 0 0
-- Operations......................................... 132.90 123.66 126.24 131.22 135.84
Amount (in percentage terms) remaining invested in
program properties at the end of the last year reported
in the Table (original total acquisition cost of
properties retained divided by original total
acquisition cost of all properties in program)......... 93.24% 93.24% 93.24% 93.24% 93.24%
<CAPTION>
CPA(R):2
-------------------------------------------------------------------
1991 1992 1993 1994 1995
---------- ---------- ----------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Gross Revenues.......................................... $9,756,071 $9,763,695 $ 6,665,727 $5,161,447 $5,185,804
Profit on sale of properties............................ N/A N/A 8,377,679(5) 23,451(7) N/A
Extraordinary charge on extinguishment of debt.......... N/A N/A (520,979)(6) N/A N/A
Write-down of property.................................. (841,889)(8) (445,551)(9)
Less:
Operating expenses..................................... 691,505 983,060 846,569 911,755 718,035
Interest expense....................................... 3,595,406 3,337,825 2,142,199 1,593,880 1,351,797
Depreciation........................................... 478,388 476,279 501,762 501,657 519,891
Net Income-GAAP Basis................................... 4,990,772 4,966,531 10,190,008 1,732,055 2,596,081
Taxable Income (Loss):
-- from operations..................................... 2,874,398 3,574,899 1,924,220 1,368,123 5,114,606
-- from gain on sale................................... 0 0 21,777,693 40,237 0
-- from extraordinary charge........................... 0 0 0 0 0
Cash generated from operations(3)....................... 5,389,873 5,513,940 3,977,769 2,770,535 6,164,009
Cash generated from sales............................... 0 0 15,972,862 124,615 0
Cash generated from refinancing......................... 0 0 0 0 0
Cash generated from operations, sales and refinancing... 5,389,873 5,513,940 19,950,631 2,895,150 6,164,009
Less: Cash distribution to investors:
-- from operating cash flow(4)......................... 3,832,222 3,898,333 2,691,111 1,458,890 1,491,667
-- from sales and refinancing.......................... 0 0 14,300,312 0 0
Cash generated after cash distributions and special
items.................................................. 1,557,651 1,615,607 2,959,208 1,436,260 4,672,342
Less: Special items..................................... 0 0 0 0 0
Cash generated after cash distributions and special
items.................................................. 1,557,651 1,615,607 2,959,208 1,436,260 4,672,342
Tax and Distribution Data Per $1000 Invested
Federal Income Tax
Results:
Ordinary income (loss)................................ $ 103.48 $ 128.70 $ 69.27 $ 49.25 $ 184.46
Capital gain (loss)................................... 0 0 784.00 1.45 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income.................................. 137.96 140.34 366.84 52.52 53.72
-- Return of capital.................................. 0 0 250.04 0.00 0
Source (on cash basis):
-- Sales.............................................. 0 0 520.00 0 0
-- Refinancing........................................ 0 0 0 0 0
-- Operations......................................... 137.96 140.34 96.88 52.52 53.72
Amount (in percentage terms) remaining invested in
program properties at the end of the last year reported
in the Table (original total acquisition cost of
properties retained divided by original total
acquisition cost of all properties in program)......... 93.24% 93.24% 61.97% 61.65% 61.65%
<CAPTION>
CPA(R):2
----------
1996
----------
<S> <C>
Gross Revenues.......................................... $4,590,963
Profit on sale of properties............................ N/A
Extraordinary charge on extinguishment of debt.......... N/A
Write-down of property..................................
Less:
Operating expenses..................................... 735,018
Interest expense....................................... 731,843
Depreciation........................................... 499,320
Net Income-GAAP Basis................................... 2,624,782
Taxable Income (Loss):
-- from operations..................................... 1,967,557
-- from gain on sale................................... 0
-- from extraordinary charge........................... 0
Cash generated from operations(3)....................... 2,791,872
Cash generated from sales............................... 0
Cash generated from refinancing......................... 0
Cash generated from operations, sales and refinancing... 2,791,872
Less: Cash distribution to investors:
-- from operating cash flow(4)......................... 2,303,728
-- from sales and refinancing.......................... 0
Cash generated after cash distributions and special
items.................................................. 488,144
Less: Special items..................................... 0
Cash generated after cash distributions and special
items.................................................. 488,144
Tax and Distribution Data Per $1000 Invested
Federal Income Tax
Results:
Ordinary income (loss)................................ $ 70.96
Capital gain (loss)................................... 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income.................................. 83.09
-- Return of capital.................................. 0
Source (on cash basis):
-- Sales.............................................. 0
-- Refinancing........................................ 0
-- Operations......................................... 83.09
Amount (in percentage terms) remaining invested in
program properties at the end of the last year reported
in the Table (original total acquisition cost of
properties retained divided by original total
acquisition cost of all properties in program)......... 61.65%
</TABLE>
A-5
<PAGE> 112
FOOTNOTES
(1) Results from the sale of 3,441 square feet of land net leased to G.D. Searle
& Co. and sale of the property net leased to General Refractories Company.
(2) Represents unamortized balance of deferred charges in connection with
refinancing of mortgage loans on properties leased to Heekin Can Inc., Paper
Corporation of America and Gibson Greeting Cards, Inc.
(3) For the years up to and including 1985, the figures for cash generated from
operations were derived from the Statements of Changes in Financial
Position, whereas for the years after 1985, the figures were derived from
the Statements of Cash Flows in accordance with SFAS No. 95. In determining
Cash from Operations pursuant to the Statement of Cash Flows, the effects of
changes primarily in accrued liabilities, receivables and other assets are
taken into account but other items such as principal amortization of loans
are not included. Cash from operations pursuant to the Statement of Changes
in Financial Position includes the effect of loan amortization, but excludes
the effects of changes in accrued liabilities, receivables and other assets.
(4) To the extent "cash distribution to investors from operating cash flow"
exceeds "cash generated from operations" in any given year, such excess
represents the distribution of cash generated from partnership operations in
prior years that has not previously been distributed.
(5) Results from the sale of properties leased to Heekin Can, Inc.
(6) In connection with the sale of the Heekin properties, CPA(R):2 incurred an
extraordinary charge upon paying off the related mortgage loan.
(7) Results from the sale of property in Hammond, Louisiana leased to G.D.
Searle and Company.
(8) Represents write-down of the Moorestown, N.J. property.
(9) Represents write-down of the Reno, Nevada property.
NOTES
(1) CPA(R):2 made quarterly distributions in the following amounts per $1,000
invested on the dates specified: January, 1997 -- $12.74 and April,
1997 -- $12.76.
A-6
<PAGE> 113
TABLE III (3 OF 11)
OPERATING RESULTS OF PRIOR PROGRAMS
Table III includes information showing the start-up and operational phase or
Prior Programs, the offerings of which have been closed since December 31, 1979.
This Table is designed to provide the investor with information on the financial
operations of such Prior Programs. The results shown in this Table are in all
cases for years ended December 31. THE INFORMATION PRESENTED IN THIS TABLE
SHOULD NOT BE CONSIDERED AS INDICATIVE OF THE POSSIBLE OPERATIONS OF THE
COMPANY. PURCHASERS OF THE SHARES OFFERED BY THIS PROSPECTUS WILL NOT HAVE ANY
OWNERSHIP IN THE CPA(R) PARTNERSHIPS. MORTGAGE FINANCING FOR THE CPA(R)
PARTNERSHIPS MAY HEREAFTER OCCUR WHICH WOULD MAKE AVAILABLE ADDITIONAL FUNDS FOR
INVESTMENT BY SUCH PARTNERSHIPS. ANY ADDITIONAL INVESTMENTS COULD SIGNIFICANTLY
ALTER CERTAIN OF THE INFORMATION PRESENTED IN THIS TABLE.
<TABLE>
<CAPTION>
CPA(R):3
----------------------------------------------------------------
1981 1982 1983 1984 1985
-------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Gross Revenues........................................... $173,916 $7,746,826 $8,618,753 $8,798,595 $8,792,622
Profit on sale of properties............................. N/A N/A N/A N/A N/A
Extraordinary charges on extinguishment of debt N/A N/A N/A N/A N/A
Write-down of property................................... N/A N/A N/A N/A N/A
Other income.............................................
Less:
Operating expenses...................................... 54,011 384,169 369,246 506,660 502,561
Interest expense........................................ 60,855 4,224,538 4,341,435 3,921,936 3,845,445
Depreciation............................................ 0 0 0 0 0
Net Income-GAAP Basis.................................... 59,050 3,138,119 3,908,072 4,369,999 4,444,615
Taxable Income (Loss):
-- from operations...................................... (190,312) (516,798) (194,879) 277,458 375,653
-- from gain on sale.................................... 0 0 0 0 0
-- from extraordinary charge............................ 0 0 0 0 0
Cash generated from operations(3)........................ 41,249 2,698,796 3,523,610 3,979,272 3,995,421
Cash generated from sales................................ 0 0 0 0 0
Cash generated from refinancing.......................... 0 0 0 0 0
Cash generated from other................................ 0 0 0 0 0
Cash generated from operations, sales, refinancing and
other................................................... 41,249 2,698,796 3,523,610 3,979,272 3,995,421
Less: Cash distribution to investors:
-- from operating cash flow(4).......................... 0 1,906,688 3,388,225 3,787,592 3,889,970
-- from sales and refinancing........................... 0 0 0 0 0
-- other................................................ 0 0 0 0 0
Cash generated (deficiency) after cash distributions..... 41,249 792,108 135,385 191,680 105,451
Less: Special items...................................... 0 0 0 0 0
Cash generated (deficiency) after cash distributions and
special items........................................... 41,249 792,108 135,385 191,680 105,451
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income......................................... $ (25.06) $ (19.36) $ (5.79) $ 8.24 $ 11.16
Capital gain............................................ 0 0 0 0 0
Cash Distributions to Investors:
Source (on GAAP basis)
-- Investment income................................... 0 71.42 100.62 112.48 116.52
-- Return of capital................................... 0 0 0 0 0
Source (on cash basis):
-- Sales................................................ 0 0 0 0 0
-- Refinancing.......................................... 0 0 0 0 0
-- Other................................................ 0 0 0 0 0
-- Operations........................................... 0 71.42 100.62 112.48 116.52
Amount (in percentage terms) remaining invested in
program properties at the end of the last year reported
in the Table (original total acquisition cost of
properties retained divided by original total
acquisition cost of all properties in program).......... N/A N/A 100% 100% 100%
<CAPTION>
CPA(R):3
---------------------------------------------------------------------
1986 1987 1988 1989 1990
----------- ----------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Gross Revenues........................................... $ 8,720,462 $ 8,394,566 $8,582,478 $8,774,232 $8,713,691
Profit on sale of properties............................. 540,765(1) N/A N/A N/A N/A
Extraordinary charges on extinguishment of debt (1,256,013)(2) N/A N/A N/A N/A
Write-down of property................................... N/A N/A N/A N/A N/A
Other income.............................................
Less:
Operating expenses...................................... 496,570 583,208 568,793 622,281 713,979
Interest expense........................................ 3,296,710 2,459,640 2,376,215 2,332,100 2,184,359
Depreciation............................................ 20,502 108,357 108,208 108,911 108,434
Net Income-GAAP Basis.................................... 4,191,432 5,243,361 5,529,262 5,710,940 5,706,919
Taxable Income (Loss):
-- from operations...................................... 708,829 2,492,141 2,938,913 3,240,014 3,295,198
-- from gain on sale.................................... 3,373,025(1) 0 0 0 0
-- from extraordinary charge............................ (852,511)(2) 0 0 0 0
Cash generated from operations(3)........................ 5,009,304 5,458,974 5,743,427 5,749,481 5,785,928
Cash generated from sales................................ 5,302,208(1) 0 0 0 0
Cash generated from refinancing.......................... 0 0 0 0 0
Cash generated from other................................ 0 0 0 0 0
Cash generated from operations, sales, refinancing and
other................................................... 10,311,512 5,458,974 5,743,427 5,749,481 5,785,928
Less: Cash distribution to investors:
-- from operating cash flow(4).......................... 4,125,001 4,073,945 3,830,020 4,131,061 4,469,143
-- from sales and refinancing........................... 0 5,280,000 0 0 0
-- other................................................ 0 0 0 0 0
Cash generated (deficiency) after cash distributions..... 6,186,511 (3,894,971) 1,913,407 1,618,420 1,316,785
Less: Special items...................................... 0 0 0 0 0
Cash generated (deficiency) after cash distributions and
special items........................................... 6,186,511 (3,894,971) 1,913,407 1,618,420 1,316,785
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income......................................... $ (3.21) $ 74.01 $ 87.28 $ 96.22 $ 97.86
Capital gain............................................ 101.19 0 0 0 0
Cash Distributions to Investors:
Source (on GAAP basis)
-- Investment income................................... 122.50 155.71 113.74 122.68 132.72
-- Return of capital................................... 0 123.68 0 0 0
Source (on cash basis):
-- Sales................................................ 0 160.0 0 0 0
-- Refinancing.......................................... 0 0 0 0 0
-- Other................................................ 0 0 0 0 0
-- Operations........................................... 122.50 119.40 113.74 122.68 132.72
Amount (in percentage terms) remaining invested in
program properties at the end of the last year reported
in the Table (original total acquisition cost of
properties retained divided by original total
acquisition cost of all properties in program).......... 84.41% 84.41% 84.41% 84.41% 84.41%
<CAPTION>
CPA(R):3
---------------------------------------------------------------------
1991 1992 1993 1994 1995
---------- ---------- ----------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Gross Revenues........................................... $8,699,175 $8,478,263 $ 7,554,227 $7,391,852 $7,249,265
Profit on sale of properties............................. N/A N/A N/A N/A N/A
Extraordinary charges on extinguishment of debt N/A N/A N/A N/A N/A
Write-down of property................................... N/A N/A (1,302,318)(6) (697,325)(7) (146,184)(8)
Other income............................................. 11,499,187(9)
Less:
Operating expenses...................................... 855,729 1,533,036 1,441,186 1,719,172 1,173,053
Interest expense........................................ 2,073,632 1,936,878 1,734,434 1,602,175 1,255,047
Depreciation............................................ 108,272 108,132 147,229 158,367 198,590
Net Income-GAAP Basis.................................... 5,631,542 4,900,217 2,929,060 3,214,813 15,975,567
Taxable Income (Loss):
-- from operations...................................... 3,439,197 5,452,217 5,504,655 4,461,854 23,951,874
-- from gain on sale.................................... 0 0 0 0
-- from extraordinary charge............................ 0 0 0 0 0
Cash generated from operations(3)........................ 5,712,639 5,252,425 4,387,721 4,647,375 12,917,577
Cash generated from sales................................ 0 0 0 0 5,435,869(9)
Cash generated from refinancing.......................... 0 0 0 0
Cash generated from other................................ 0 8,533,614(5) 2,260,792 2,286,195 0
Cash generated from operations, sales, refinancing and
other................................................... 5,712,639 13,786,039 6,648,513 6,933,570 18,353,446
Less: Cash distribution to investors:
-- from operating cash flow(4).......................... 4,649,632 4,925,081 4,606,531 4,656,367 4,722,367
-- from sales and refinancing........................... 0 0 0 0 0
-- other................................................ 0 3,333,333(5) 0 0 8,000,000
Cash generated (deficiency) after cash distributions..... 1,063,007 5,527,625 2,041,982 2,277,203 5,631,079
Less: Special items...................................... 0 0 0 0 0
Cash generated (deficiency) after cash distributions and
special items........................................... 1,063,007 5,527,625 2,041,982 2,277,203 5,361,079
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income......................................... $ 102.13 $ 161.91 $ 163.47 $ 132.50 $ 711.33
Capital gain............................................ 0 0 0 0 0
Cash Distributions to Investors:
Source (on GAAP basis)
-- Investment income................................... 138.08 145.52 86.98 95.47 376.83
-- Return of capital................................... 0 100.74 48.83 41.82 0
Source (on cash basis):
-- Sales................................................ 0 0 0 0 0
-- Refinancing.......................................... 0 0 0 0 0
-- Other................................................ 0 100.00(5) 0 0 0
-- Operations........................................... 138.08 146.26 136.80 138.28 140.24
Amount (in percentage terms) remaining invested in
program properties at the end of the last year reported
in the Table (original total acquisition cost of
properties retained divided by original total
acquisition cost of all properties in program).......... 84.41% 84.41% 84.41% 84.41% 84.41%
<CAPTION>
CPA(R):3
-----------
1996
-----------
<S> <C>
Gross Revenues........................................... 5,730,082
Profit on sale of properties............................. N/A
Extraordinary charges on extinguishment of debt N/A
Write-down of property................................... N/A
Other income............................................. N/A
Less:
Operating expenses...................................... 1,031,997
Interest expense........................................ 75,158
Depreciation............................................ 188,893
Net Income-GAAP Basis.................................... 4,434,034
Taxable Income (Loss):
-- from operations...................................... 2,988,189
-- from gain on sale.................................... 157,910
-- from extraordinary charge............................
Cash generated from operations(3)........................ 3,906,606
Cash generated from sales................................ 1,853,816(10)
Cash generated from refinancing..........................
Cash generated from other................................ 0
Cash generated from operations, sales, refinancing and
other................................................... 5,760,422
Less: Cash distribution to investors:
-- from operating cash flow(4).......................... 3,319,280
-- from sales and refinancing........................... 0
-- other................................................ 0
Cash generated (deficiency) after cash distributions..... 2,441,142
Less: Special items...................................... 0
Cash generated (deficiency) after cash distributions and
special items........................................... 2,441,142
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income......................................... $ 88.74
Capital gain............................................ 4.69
Cash Distributions to Investors:
Source (on GAAP basis)
-- Investment income................................... 98.57
-- Return of capital................................... 0
Source (on cash basis):
-- Sales................................................ 0
-- Refinancing.......................................... 0
-- Other................................................ 0
-- Operations........................................... 98.57
Amount (in percentage terms) remaining invested in
program properties at the end of the last year reported
in the Table (original total acquisition cost of
properties retained divided by original total
acquisition cost of all properties in program).......... 68.83%
</TABLE>
FOOTNOTES
(1) Results from the sale of properties net leased to Commodities Corporation
and Knudsen Corporation.
(2) Represents unamortized balance of deferred charges in connection with
refinancing of mortgage loan on property net leased to Gibson Greeting
Cards, Inc. and pay-off of mortgage loan on property net leased to The
Leslie Fay Company.
(3) For the years up to and including 1985, the figures for cash generated from
operations were derived from the Statements of Changes in Financial
Position, whereas for the years after 1985, the figures were derived from
the Statements of Cash Flows in accordance with SFAS. No. 95. In
determining Cash from Operations pursuant to the Statement of Cash Flows,
the effects of changes primarily in accrued liabilities, receivables and
other assets are taken into account but other items such as principal
amortization of loans are not included. Cash from operations pursuant to
the Statement of Changes in Financial Position includes the effect of loan
amortization, but excludes the effects of changes in accrued liabilities,
receivables and other assets.
A-7
<PAGE> 114
(4) To the extent "cash distribution to investors from operating cash flow"
exceeds "cash generated from operations" in any given year, such excess
represents the distribution of cash generated from partnership operations
in prior years that has not previously been distributed.
(5) Represents deposit received from Leslie Fay Co. in the amount of $8,533,614
for partial payment due under a purchase option for property it leases in
Wilkes Barre, Pennsylvania. $3,333,333 of this amount was distributed to
partners in July 1992.
(6) Represents write-down of the Moorestown, N.J. property.
(7) Represents write-down of the Reno, Nevada property.
(8) Represents write-down of the Leslie Fay property to net sales proceeds.
(9) Results of settlement with Leslie Fay.
(10) Represents sales proceeds of property in Wilkes Barre, Pennsylvania.
NOTES
(1) CPA(R):3 made quarterly distributions in the following amounts per $1,000
invested on the dates specified: January, 1997 -- $24.80 and April
1997 -- $24.82.
A-8
<PAGE> 115
TABLE III (4 OF 11)
OPERATING RESULTS OF PRIOR PROGRAMS
Table III includes information showing the start-up and operational phase of
Prior Programs, the offerings of which have been closed since December 31, 1979.
This Table is designed to provide the investor with information on the financial
operations of such Prior Programs. The results shown in this Table are in all
cases for years ended December 31. THE INFORMATION PRESENTED IN THIS TABLE
SHOULD NOT BE CONSIDERED AS INDICATIVE OF THE POSSIBLE OPERATIONS OF THE
COMPANY. PURCHASERS OF THE SHARES OFFERED BY THIS PROSPECTUS WILL NOT HAVE ANY
OWNERSHIP IN THE CPA(R) PARTNERSHIPS. MORTGAGE FINANCING FOR THE CPA(R)
PARTNERSHIPS MAY HEREAFTER OCCUR WHICH WOULD MAKE AVAILABLE ADDITIONAL FUNDS FOR
INVESTMENT BY SUCH PARTNERSHIPS. ANY ADDITIONAL INVESTMENTS COULD SIGNIFICANTLY
ALTER CERTAIN OF THE INFORMATION PRESENTED IN THIS TABLE.
<TABLE>
<CAPTION>
CPA(R):4
------------------------------------
1982 1983 1984
-------- ----------- -----------
<S> <C> <C> <C>
Gross Revenues....................................................................... $ 5,916 $ 7,136,840 $10,976,004
Profit on sale of properties......................................................... N/A N/A N/A
Extraordinary gain................................................................... N/A N/A N/A
Write-down of property............................................................... N/A N/A N/A
Extraordinary charge on extinguishment of debt....................................... N/A N/A N/A
Other................................................................................ N/A N/A N/A
Less:
Operating expenses.................................................................. 9,137 274,260 245,150
Interest expense.................................................................... 5,784 3,180,356 5,453,442
Depreciation........................................................................ 1,302 346,155 808,870
Net Income (Loss)-GAAP Basis......................................................... (10,307) 3,336,069 4,468,542
Taxable Income (Loss):
-- from operations.................................................................. (2,604) 781,413 (281,447)
-- from gain on sale................................................................ 0 0 0
-- from extraordinary charge........................................................ 0 0 0
-- other............................................................................ 0 0 0
Cash generated from operations(6).................................................... (3,135) 3,471,621 4,787,836
Cash generated from sales............................................................ 0 0 0
Cash generated from refinancing...................................................... 0 0 0
Cash generated from other............................................................ 0 0 0
Cash generated from operations, sales, refinancing and other......................... (3,135) 3,471,621 4,787,836
Less: Cash distribution to investors:
-- from operating cash flow(8)...................................................... 0 2,345,537 4,565,144
-- from sales and refinancing....................................................... 0 0 0
Cash generated (deficiency) after cash distributions................................. 0 1,126,084 222,692
Less: Special items.................................................................. 0 0 0
Cash generated (deficiency) after cash distributions and special items............... 0 1,126,084 222,692
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).............................................................. $ 0 $ 21.01 $ (6.18)
Other............................................................................... 0 0 0
Capital gain........................................................................ 0 0 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income................................................................ 0 63.06 98.18
-- Return of capital................................................................ 0 0 2.12
Source (on cash basis):
-- Sales............................................................................ 0 0 0
-- Refinancing...................................................................... 0 0 0
-- Operations....................................................................... 0 63.06 100.30
Amount (in percentage terms) remaining invested in program properties at the end of
the last year reported in the Table (original total acquisition cost of properties
retained divided by original total acquisition cost of all properties in program)... N/A N/A 100%
<CAPTION>
CPA(R):4
-----------------------------------------
1985 1986 1987
----------- ----------- -----------
<S> <C> <C> <C>
Gross Revenues....................................................................... $10,950,473 $10,021,241 $ 8,733,350
Profit on sale of properties......................................................... N/A 1,454,064(1) N/A
Extraordinary gain................................................................... N/A N/A N/A
Write-down of property............................................................... N/A (2,266,656)(2) N/A
Extraordinary charge on extinguishment of debt....................................... N/A N/A N/A
Other................................................................................ N/A N/A N/A
Less:
Operating expenses.................................................................. 278,838 529,941 566,780
Interest expense.................................................................... 5,395,023 5,149,287 4,101,592
Depreciation........................................................................ 828,303 1,059,071 1,628,118
Net Income (Loss)-GAAP Basis......................................................... 4,448,309 2,470,350 2,436,860
Taxable Income (Loss):
-- from operations.................................................................. (98,623) (402,328) (433,637)
-- from gain on sale................................................................ 0 4,047,994(1) 0
-- from extraordinary charge........................................................ 0 0 0
-- other............................................................................ 0 0 0
Cash generated from operations(6).................................................... 4,728,701 4,857,156 4,115,421
Cash generated from sales............................................................ 0 4,483,969(1) 0
Cash generated from refinancing...................................................... 0 0 0
Cash generated from other............................................................ 0 0 0
Cash generated from operations, sales, refinancing and other......................... 4,728,701 9,341,125 4,115,421
Less: Cash distribution to investors:
-- from operating cash flow(8)...................................................... 4,603,376 4,639,789 4,594,265
-- from sales and refinancing....................................................... 0 0 1,711,359
Cash generated (deficiency) after cash distributions................................. 125,325 4,701,336 (2,190,203)
Less: Special items.................................................................. 0 0 0
Cash generated (deficiency) after cash distributions and special items............... 125,325 4,701,336 (2,190,203)
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).............................................................. $ (2.17) $ (8.84) $ (9.52)
Other............................................................................... 0 0 0
Capital gain........................................................................ 0 88.94 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income................................................................ 97.73 54.28 53.53
-- Return of capital................................................................ 3.41 47.66 87.02
Source (on cash basis):
-- Sales............................................................................ 0 0 40.00
-- Refinancing...................................................................... 0 0 0
-- Operations....................................................................... 101.14 101.94 100.55
Amount (in percentage terms) remaining invested in program properties at the end of
the last year reported in the Table (original total acquisition cost of properties
retained divided by original total acquisition cost of all properties in program)... 100% 85.20% 85.20%
<CAPTION>
CPA(R):4
-----------------------------------------
1988 1989 1990
----------- ----------- -----------
<S> <C> <C> <C>
Gross Revenues....................................................................... $ 9,117,527 $ 9,393,587 $ 9,694,000
Profit on sale of properties......................................................... N/A N/A N/A
Extraordinary gain................................................................... N/A N/A 2,080,304(3)
Write-down of property............................................................... N/A N/A (2,080,304)(2)
Extraordinary charge on extinguishment of debt....................................... (160,000)(4) (70,266)(5) N/A
Other................................................................................ N/A N/A N/A
Less:
Operating expenses.................................................................. 538,523 614,235 752,499
Interest expense.................................................................... 3,805,805 3,552,960 3,504,016
Depreciation........................................................................ 1,468,317 1,243,008 1,207,776
Net Income (Loss)-GAAP Basis......................................................... 3,144,882 3,913,118 4,229,709
Taxable Income (Loss):
-- from operations.................................................................. 561,034 1,408,950 1,518,550
-- from gain on sale................................................................ 0 0 0
-- from extraordinary charge........................................................ (160,000)(4) (70,266)(5) 0
-- other............................................................................ 0 0 0
Cash generated from operations(6).................................................... 4,763,309 5,289,802 5,611,039
Cash generated from sales............................................................ 0 0 0
Cash generated from refinancing...................................................... 0 0 0
Cash generated from other............................................................ 0 0 0
Cash generated from operations, sales, refinancing and other......................... 4,763,309 5,289,802 5,611,039
Less: Cash distribution to investors:
-- from operating cash flow(8)...................................................... 4,522,360 4,564,233 4,627,954
-- from sales and refinancing....................................................... 0 0 0
Cash generated (deficiency) after cash distributions................................. 240,949 725,569 983,085
Less: Special items.................................................................. 0 0 0
Cash generated (deficiency) after cash distributions and special items............... 240,949 725,569 983,085
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).............................................................. $ 12.33 $ 29.41 $ 33.36
Other............................................................................... 0 0 0
Capital gain........................................................................ 0 0 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income................................................................ 69.10 85.97 92.93
-- Return of capital................................................................ 30.26 14.31 8.75
Source (on cash basis)
-- Sales............................................................................ 0 0 0
-- Refinancing...................................................................... 0 0 0
-- Operations....................................................................... 99.36 100.28 101.68
Amount (in percentage terms) remaining invested in program properties at the end of
the last year reported in the Table (original total acquisition cost of properties
retained divided by original total acquisition cost of all properties in program)... 85.20% 85.20% 85.20%
<CAPTION>
CPA(R):4
-----------------------------------------
1991 1992 1993
----------- ----------- -----------
<S> <C> <C> <C>
Gross Revenues....................................................................... $ 9,653,180 $ 9,959,144 $12,450,374
Profit on sale of properties......................................................... N/A N/A N/A
Extraordinary gain................................................................... N/A N/A 345,000(9)
Write-down of property............................................................... N/A N/A N/A
Extraordinary charge on extinguishment of debt....................................... N/A N/A N/A
Other................................................................................ N/A (44,308)(7) N/A
Less:
Operating expenses.................................................................. 790,950 1,647,627 3,375,359
Interest expense.................................................................... 3,441,293 3,309,359 2,987,868
Depreciation........................................................................ 1,184,801 1,259,693 1,346,641
Net Income (Loss)-GAAP Basis......................................................... 4,236,136 3,698,157 5,085,506
Taxable Income (Loss):
-- from operations.................................................................. 1,702,996 1,737,637 3,540,526
-- from gain on sale................................................................ 0 0 957,340
-- from extraordinary charge........................................................ 0 0 0
-- other............................................................................ 0 (14,801)(7) 0
Cash generated from operations(6).................................................... 5,479,320 5,071,063 6,231,586
Cash generated from sales............................................................ 0 0 0
Cash generated from refinancing...................................................... 0 0 0
Cash generated from other............................................................ 0 14,195(7) 0
Cash generated from operations, sales, refinancing and other......................... 5,479,320 5,085,258 6,231,586
Less: Cash distribution to investors:
-- from operating cash flow(8)...................................................... 4,729,905 4,819,116 4,854,619
-- from sales and refinancing....................................................... 0 0 0
Cash generated (deficiency) after cash distributions................................. 749,415 266,142 1,376,967
Less: Special items.................................................................. 0 0 0
Cash generated (deficiency) after cash distributions and special items............... 749,415 266,142 1,376,967
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).............................................................. $ 37.42 $ 38.18 $ 77.79
Other............................................................................... 0 (0.33) 0
Capital gain........................................................................ 0 0 21.03
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income................................................................ 93.07 81.25 106.66
-- Return of capital................................................................ 10.85 24.63 0
Source (on cash basis)
-- Sales............................................................................ 0 0 0
-- Refinancing...................................................................... 0 0 0
-- Operations....................................................................... 103.92 105.88 106.66
Amount (in percentage terms) remaining invested in program properties at the end of
the last year reported in the Table (original total acquisition cost of properties
retained divided by original total acquisition cost of all properties in program)... 85.20% 85.20% 85.20%
<CAPTION>
CAP(R):4
-----------------------------------------
1994 1995 1996
----------- ----------- -----------
<S> <C> <C> <C>
Gross Revenues....................................................................... $11,570,621 $11,896,324 9,322,373(12)
Profit on sale of properties......................................................... N/A 3,330,098(10) N/A
Extraordinary gain................................................................... N/A N/A N/A
Write-down of property............................................................... N/A N/A N/A
Extraordinary charge on extinguishment of debt....................................... N/A N/A N/A
Other................................................................................ N/A N/A 1,118,318(11)
Less:
Operating expenses.................................................................. 3,590,081 3,299,454 1,090,215
Interest expense.................................................................... 2,396,017 2,098,857 1,515,248
Depreciation........................................................................ 1,141,143 1,149,525 921,702
Net Income (Loss)-GAAP Basis......................................................... 4,443,380 8,678,586 6,913,526
Taxable Income (Loss):
-- from operations.................................................................. 2,462,537 7,224,511 5,049,765
-- from gain on sale................................................................ 0 9,318,375 0
-- from extraordinary charge........................................................ 0 0 0
-- other............................................................................ 0 0 0
Cash generated from operations(6).................................................... 5,772,103 6,099,480 7,167,641
Cash generated from sales............................................................ 0 9,477,492 0
Cash generated from refinancing...................................................... 0 0 0
Cash generated from other............................................................ 0 0 0
Cash generated from operations, sales, refinancing and other......................... 5,772,103 15,576,972 7,167,641
Less: Cash distribution to investors:
-- from operating cash flow(8)...................................................... 4,878,286 4,780,885 4,452,597
-- from sales and refinancing....................................................... 0 4,321,616 0
Cash generated (deficiency) after cash distributions................................. 893,817 6,474,471 2,715,044
Less: Special items.................................................................. 0 0 0
Cash generated (deficiency) after cash distributions and special items............... 893,817 6,474,471 2,715,044
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).............................................................. $ 54.10 $ 158.73 $ 110.95
Other............................................................................... 0 0 0
Capital gain........................................................................ 0 0 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income................................................................ 97.62 190.68 97.83
-- Return of capital................................................................ 9.56 9.31 0
Source (on cash basis):
-- Sales............................................................................ 0 0 0
-- Refinancing...................................................................... 0 0 0
-- Operations....................................................................... 107.18 105.04 97.83
Amount (in percentage terms) remaining invested in program properties at the end of
the last year reported in the Table (original total acquisition cost of properties
retained divided by original total acquisition cost of all properties in program)... 85.20% 70.68% 70.68%
</TABLE>
A-9
<PAGE> 116
FOOTNOTES
(1) Results from the sale of properties net leased to Knudsen Corporation.
(2) Represents writedown of Beaumont, Texas property, formerly net leased to
Gulf Consolidated Services, Inc.
(3) Represents gain on restructuring of debt on Beaumont, Texas property
formerly net leased to Gulf Consolidated Services, Inc.
(4) Represents prepayment charge resulting from refinancing of the original
loan for property net leased to Simplicity Manufacturing, Inc.
(5) Represents prepayment charge resulting from refinancing of the original
loan for property net leased to Brodart Co.
(6) For the years up to and including 1985, the figures for cash generated from
operations were derived from the Statements of Changes in Financial
Position, whereas for the years after 1985, the figures were derived from
the Statements of Cash Flows in accordance with SFAS No. 95. In determining
Cash from Operations pursuant to the Statement of Cash Flows, the effects
of changes primarily in accrued liabilities, receivables and other assets
are taken into account, but other items such as principal amortization of
loans are not included. Cash from operations pursuant to the Statement of
Changes in Financial Position includes the effect of loan amortization, but
excludes the effects of changes in accrued liabilities, receivables and
other assets.
(7) Represents acquisition of hotel operations for a property formerly leased
to Integra-A Hotel and Restaurant Company.
(8) To the extent "cash distribution to investors from operating cash flow"
exceeds "cash generated from operations" in any given year, such excess
represents the distribution of cash generated from partnership operations
in prior years that has not previously been distributed.
(9) Represents extinguishment of debt on the property located in Beaumont,
Texas.
(10) Results from sale of property net leased to Genesco, Inc.
(11) Includes equity income and net hotel operating results for 1996.
(12) Results from the exchange of a hotel property in Kenney, Louisiana for an
investment in American General Hospitality Operating Partnership L.D.
NOTES
(1) CPA(R):4 made quarterly distributions in the following amounts per $1,000
invested on the dates specified: January, 1997 -- $24.56; April,
1997 -- $24.58.
A-10
<PAGE> 117
TABLE III (5 OF 11)
OPERATING RESULTS OF PRIOR PROGRAMS
Table III includes information showing the start-up and operational phase
of Prior Programs, the offerings of which have been closed since December 31,
1979. This Table is designed to provide the investor with information on the
financial operations of such Prior Programs. The results shown in this Table are
in all cases for years ended December 31. THE INFORMATION PRESENTED IN THIS
TABLE SHOULD NOT BE CONSIDERED AS INDICATIVE OF THE POSSIBLE OPERATIONS OF THE
COMPANY. PURCHASERS OF THE SHARES OFFERED BY THIS PROSPECTUS WILL NOT HAVE ANY
OWNERSHIP IN THE CPA(R) PARTNERSHIPS. MORTGAGE FINANCING FOR THE CPA(R)
PARTNERSHIPS MAY HEREAFTER OCCUR WHICH WOULD MAKE AVAILABLE ADDITIONAL FUNDS FOR
INVESTMENT BY SUCH PARTNERSHIPS. ANY ADDITIONAL INVESTMENTS COULD SIGNIFICANTLY
ALTER CERTAIN OF THE INFORMATION PRESENTED IN THIS TABLE.
<TABLE>
<CAPTION>
CPA(R):5
------------------------------------------------------------
1983 1984 1985 1986 1987
-------- ---------- ---------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Gross Revenues................................................... $151,212 $7,692,603 $9,285,385 $12,857,025 $14,405,568
Other............................................................ N/A N/A N/A N/A N/A
Profit (loss) on sale or disposition of properties............... N/A N/A N/A N/A (457,484)(1)
Extraordinary charge on extinguishment of debt................... N/A N/A N/A N/A N/A
Write-down of property........................................... N/A N/A N/A (860,000)(4) N/A
Less:
Operating expenses.............................................. 81,016 195,585 363,490 493,702 1,327,685
Interest expenses............................................... 1,041 1,828,708 3,557,103 6,447,584 7,050,466
Depreciation.................................................... 0 90,662 890,342 2,300,987 2,506,914
Minority Interest............................................... N/A N/A N/A 80,834 165,810
Net Income-GAAP Basis............................................ 69,155 5,577,648 4,474,450 2,673,918 2,897,209
Taxable Income (Loss):
-- from operations.............................................. 83,341 4,180,317 2,173,368 277,783 (1,015,507)
-- from gain (loss) on sale or disposition...................... 0 0 0 0 (1,065,808)
-- from other................................................... 0 0 0 0 0
Cash generated from operations(10)............................... 77,254 5,612,247 5,157,259 6,550,334 5,622,209
Cash generated from sales........................................ 0 0 0 0 500,000(1)
Cash generated from refinancing.................................. 0 0 0 0 0
Cash generated from operations, sales and refinancing............ 77,254 5,612,247 5,157,259 6,550,334 6,122,209
Less: Cash distribution to investors:
-- from operating cash flow(11)................................. 0 5,150,600 5,324,013 5,481,771 5,535,961
-- from sales and refinancing................................... 0 0 0 0 0
Cash generated (deficiency) after cash distributions............. 77,254 461,647 (166,754) 1,068,563 586,248
Less: special items..............................................
Cash generated (deficiency) after cash distributions and special
items........................................................... 77,254 461,647 (166,754) 1,068,563 586,248
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).......................................... $ 1.38 $ 69.43 $ 36.09 $ 4.61 $ (16.87)
Capital gain (loss)............................................. 0 0 0 0 (17.69)
Other........................................................... 0 0 0 0 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income............................................ 0 85.54 74.31 44.41 48.12
-- Return of capital............................................ 0 0 14.11 46.63 43.82
Source (on cash basis):
-- Sales........................................................ 0 0 0 0 0
-- Refinancing.................................................. 0 0 0 0 0
-- Operations................................................... 0 85.54 88.42 91.04 91.94
Amount (in percentage terms) remaining invested in program
properties at the end of the last year reported in the Table
(original total acquisition cost of properties retained divided
by original total acquisition cost of all properties in
program......................................................... N/A N/A N/A N/A N/A
<CAPTION>
CPA(R):5
----------------------------------------------------------
1988 1989 1990 1991
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Gross Revenues................................................... $15,061,441 $15,324,326 $14,912,517 $15,167,339
Other............................................................ N/A N/A N/A (103,595)(5)
Profit (loss) on sale or disposition of properties............... N/A 47,319(2) N/A (35,987)(6)
Extraordinary charge on extinguishment of debt................... N/A N/A (32,714)(3) N/A
Write-down of property........................................... N/A N/A N/A (300,000)(7)
Less:
Operating expenses.............................................. 758,159 1,305,074 1,503,721 3,354,854
Interest expenses............................................... 6,926,712 7,052,901 6,512,534 6,042,335
Depreciation.................................................... 2,637,104 2,632,299 2,620,793 2,622,033
Minority Interest............................................... 197,354 17,714 114,721 (174,657)
Net Income-GAAP Basis............................................ 4,542,112 4,363,657 4,128,034 2,883,192
Taxable Income (Loss):
-- from operations.............................................. 406,029 799,445 857,331 1,077,650
-- from gain (loss) on sale or disposition...................... 0 87,421(2) 488,066 (2,674)(6)
-- from other................................................... 0 0 0 (154,918)(5)
Cash generated from operations(10)............................... 6,571,710 6,911,989 5,895,617 5,278,070
Cash generated from sales........................................ 0 239,362(2) 0 120,000 (6)
Cash generated from refinancing.................................. 0 0 0 0
Cash generated from operations, sales and refinancing............ 6,571,710 7,151,351 5,895,617 5,398,070
Less: Cash distribution to investors:
-- from operating cash flow(11)................................. 5,587,744 5,635,916 5,684,084 5,732,256
-- from sales and refinancing................................... 0 0 0 0
Cash generated (deficiency) after cash distributions............. 983,966 1,515,435 211,533 (334,186)
Less: special items..............................................
Cash generated (deficiency) after cash distributions and special
items........................................................... 983,966 1,515,435 211,533 (334,186)
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).......................................... $ 6.74 $ 13.28 $ 14.24 $ 17.90
Capital gain (loss)............................................. 0 1.45 0 (0.04)
Other........................................................... 0 0 0 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income............................................ 75.43 72.47 68.56 47.88
-- Return of capital............................................ 17.37 21.13 25.84 47.32
Source (on cash basis):
-- Sales........................................................ 0 0 0 0
-- Refinancing.................................................. 0 0 0 0
-- Operations................................................... 92.80 93.60 94.40 95.20
Amount (in percentage terms) remaining invested in program
properties at the end of the last year reported in the Table
(original total acquisition cost of properties retained divided
by original total acquisition cost of all properties in
program......................................................... 98.51% 98.51% 97.60% 97.45%
<CAPTION>
CPA(R):5
-----------------------------------------------------------
1992 1993 1994 1995
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Gross Revenues................................................... $18,195,423(8) $18,260,614 $18,125,156 $15,768,137
Other............................................................ 1,872,534 214,978(12) N/A N/A
Profit (loss) on sale or disposition of properties............... (488,795)(9) N/A 1,242,614(14) 614,234(16)
Extraordinary charge on extinguishment of debt................... N/A N/A (117,619)(15) N/A
Write-down of property........................................... N/A (323,611)(13) 0 (1,980,550)(17)
Less:
Operating expenses.............................................. 6,111,874 6,417,993 7,111,014 6,927,470
Interest expenses............................................... 5,293,044 4,941,889 4,518,529 3,495,872
Depreciation.................................................... 2,317,013 2,295,887 2,181,432 2,065,781
Minority Interest............................................... N/A N/A N/A N/A
Net Income-GAAP Basis............................................ 5,857,231 4,496,212 5,439,186 1,912,698
Taxable Income (Loss):
-- from operations.............................................. 1,530,150 2,039,288 866,115 1,621,566
-- from gain (loss) on sale or disposition...................... 871,676 0 10,019,470 0
-- from other................................................... 2,617,784(8) 0 0 0
Cash generated from operations(10)............................... 6,202,200 6,241,041 6,292,833 4,688,070
Cash generated from sales........................................ 0 0 0 1,187,362(16)
Cash generated from refinancing.................................. 0 0 0 0
Cash generated from operations, sales and refinancing............ 6,202,200 6,241,041 6,292,833 5,875,432
Less: Cash distribution to investors:
-- from operating cash flow(11)................................. 5,780,425 5,828,596 5,862,314 8,054,982
-- from sales and refinancing................................... 0 0 0 0
Cash generated (deficiency) after cash distributions............. 421,775 412,445 430,519 (2,179,550)
Less: special items.............................................. 0 0 0
Cash generated (deficiency) after cash distributions and special
items........................................................... 421,775 412,445 430,519 (2,179,550)
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).......................................... $ 25.41 $ 33.87 $ 14.87 $ 26.93
Capital gain (loss)............................................. 14.48 0 166.40 0
Other........................................................... 43.48 0 0 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income............................................ 96.00 74.67 90.33 31.77
-- Return of capital............................................ 0 22.13 7.03 102.01
Source (on cash basis):
-- Sales........................................................ 0 0 0 0
-- Refinancing.................................................. 0 0 0 0
-- Operations................................................... 96.00 96.80 97.36 133.78
Amount (in percentage terms) remaining invested in program
properties at the end of the last year reported in the Table
(original total acquisition cost of properties retained divided
by original total acquisition cost of all properties in
program......................................................... 94.12% 94.12% 92.97% 81.82%
<CAPTION>
1996
-----------
<S> <C>
Gross Revenues................................................... $13,204,966
Other............................................................ N/A
Profit (loss) on sale or disposition of properties............... 5,284,165(18)
Extraordinary charge on extinguishment of debt................... N/A
Write-down of property........................................... (1,300,000)(19)
Less:
Operating expenses.............................................. 6,006,397
Interest expenses............................................... 2,075,230
Depreciation.................................................... 1,331,028
Minority Interest............................................... N/A
Net Income-GAAP Basis............................................ 7,776,476
Taxable Income (Loss):
-- from operations.............................................. 1,690,288
-- from gain (loss) on sale or disposition...................... 8,338,765
-- from other................................................... 0
Cash generated from operations(10)............................... 7,901,310
Cash generated from sales........................................ 8,583,803
Cash generated from refinancing.................................. 0
Cash generated from operations, sales and refinancing............ 16,485,113
Less: Cash distribution to investors:
-- from operating cash flow(11)................................. 4,456,949
-- from sales and refinancing................................... 0
Cash generated (deficiency) after cash distributions............. 12,028,164
Less: special items.............................................. 0
Cash generated (deficiency) after cash distributions and special
items........................................................... 12,028,164
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).......................................... $ 28.07
Capital gain (loss)............................................. 141.45
Other........................................................... 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income............................................ 74.02
-- Return of capital............................................ 0
Source (on cash basis):
-- Sales........................................................ 0
-- Refinancing.................................................. 0
-- Operations................................................... 74.02
Amount (in percentage terms) remaining invested in program
properties at the end of the last year reported in the Table
(original total acquisition cost of properties retained divided
by original total acquisition cost of all properties in
program......................................................... 63.06%
</TABLE>
A-11
<PAGE> 118
FOOTNOTES
(1) Represents sale of Buffalo, New York property formerly net leased to
Williams Hand Tool, Inc.
(2) Represents exchange of property net leased to Industrial General
Corporation.
(3) Represents prepayment charge resulting from refinancing of the original
loan for property net leased to Pace Membership Warehouse, Inc.
(4) Represents write-down of Buffalo, New York property formerly net leased to
Williams Hand Tool, Inc.
(5) Represents acquisition of hotel operations for properties formerly leased
to subsidiaries of Landmark Hotel Corporation.
(6) Results from the sale of a 3.0815 acre parcel of land which was a portion
of the property net leased to Industrial General Corporation.
(7) Represents write-down of Columbus, Georgia property leased to Williams Hand
Tool, Inc.
(8) Represents a gain on release of mortgage escrow funds and related interest
income earned in the escrow reserve accounts for the hotel properties
located in Alpena and Petoskey, Michigan.
(9) Represents disposition of Columbus, Georgia property formerly leased to
Williams Hand Tool, Inc. and sale of a parcel of land in Elyria, Ohio
formerly leased to Industrial General Corporation.
(10) For the years up to and including 1985, the figures for cash generated from
operations were derived from the Statements of Changes in Financial
Position, whereas for the years after 1985, the figures were derived from
the Statements of Cash Flows in accordance with SFAS No. 95. In determining
Cash from Operations pursuant to the Statement of Cash Flows, the effects
of changes primarily in accrued liabilities, receivables and other assets
are taken into account but other items such as principal amortization of
loans are not included. Cash from operations pursuant to the Statement of
Changes in Financial Position includes the effect of loan amortization, but
excludes the effects of changes in accrued liabilities, receivables and
other assets.
(11) To the extent "cash distribution to investors from operating cash flow"
exceeds "cash generated from operations" in any given year, such excess
represents the distribution of cash generated from partnership operations
in prior years that has not previously been distributed.
(12) Results from the settlement and lease termination agreement for the hotel
properties in Michigan.
(13) Represents write-down of the preferred stock investment and the estimated
residual value of the South Boston and Kenbridge, Virginia properties.
(14) Results from sale of the Tampa, Florida and the Forrest City, Arkansas
properties.
(15) Represents the extinguishment of debt on the Tampa, Florida property and
properties located in Gordonsville, Virginia and North Bergen, NJ.
(16) Results from sale of properties in Bold Knob, Arkansas, Ballville, Ohio,
Newburyport, Massachusetts, Gardensville, Virginia and North Bergen, New
Jersey.
(17) Represents the writedown of hotel property in Rapid City, South Dakota and
the property on Elepia, Ohio; and writing off the note receivable and
preferred stock of Rochester Butten Company.
(18) Represents sale of property in Hodgkins, Illinois leased to GATX Logistics,
Inc., property in Helena, Montana and a hotel property in Rapid City, South
Dakota.
(19) Represents write-down of hotel property in Rapid City, South Dakota.
NOTES
(1) CPA(R):5 made quarterly distributions in the following amounts per $1,000
invested on the dates specified: January, 1997 -- $16.90 and
April -- $16.68.
A-12
<PAGE> 119
TABLE III (6 OF 11)
OPERATING RESULTS OF PRIOR PROGRAMS
Table III includes information showing the start-up and operational phase of
Prior Programs, the offerings of which have been closed since December 31, 1979.
This Table is designed to provide the investor with information on the financial
operations of such Prior Programs. The results shown in this Table are in all
cases for years ended December 31. THE INFORMATION PRESENTED IN THIS TABLE
SHOULD NOT BE CONSIDERED AS INDICATIVE OF THE POSSIBLE OPERATIONS OF THE
COMPANY. PURCHASERS OF THE SHARES OFFERED BY THIS PROSPECTUS WILL NOT HAVE ANY
OWNERSHIP IN THE CPA(R) PARTNERSHIPS. MORTGAGE FINANCING FOR THE CPA(R)
PARTNERSHIPS MAY HEREAFTER OCCUR WHICH WOULD MAKE AVAILABLE ADDITIONAL FUNDS FOR
INVESTMENT BY SUCH PARTNERSHIPS. ANY ADDITIONAL INVESTMENTS COULD SIGNIFICANTLY
ALTER CERTAIN OF THE INFORMATION PRESENTED IN THIS TABLE.
<TABLE>
<CAPTION>
CPA(R):6
-----------------------------------------------------
1985 1986 1987 1988
---------- ---------- ---------- -----------
<S> <C> <C> <C> <C>
Gross Revenues.............................................................. $4,200,601 $6,432,252 $9,898,043 $11,197,061
Gain on sale................................................................ 0 0 0 0
Other....................................................................... 0 0 0 0
Extraordinary (charge) gain................................................. 0 0 0 0
Less:
Operating expenses......................................................... 215,852 333,030 573,786 558,887
Interest expense........................................................... 792,434 2,111,626 4,736,879 5,416,130
Depreciation............................................................... 5,709 278,305 1,095,292 1,405,857
Net Income-GAAP Basis....................................................... 3,186,606 3,709,291 3,492,083 3,816,187
Taxable Income:
-- from operations......................................................... 2,650,283 2,577,849 982,403 1,219,990
-- from gain on sale....................................................... 0 0 0 0
-- from extraordinary charge............................................... 0 0 0 0
-- from other.............................................................. 0 0 0 0
Cash generated from operations(4)........................................... 3,194,889 4,509,489 5,239,285 4,983,579
Cash generated from sales................................................... 0 0 0 0
Cash generated from refinancing............................................. 0 0 0 0
Cash generated from other................................................... 0 0 0 0
Cash generated from operations, sales, refinancing and other................ 3,194,889 4,509,489 5,239,285 4,983,579
Less: Cash distribution to investors:
-- from operating cash flow(5)............................................. 2,422,433 4,274,550 4,154,307 4,198,176
-- from sales and refinancing.............................................. 0 0 0 0
Cash generated (deficiency) after cash distributions........................ 772,456 234,939 1,084,978 785,403
Less: Special items........................................................ 0 0 0 0
Cash generated (deficiency) after cash distributions and
special items.............................................................. 772,456 234,939 1,084,978 785,403
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss)..................................................... $ 51.96 $ 50.54 $ 19.26 $ 23.92
Other...................................................................... 0 0 0 0
Capital gain............................................................... 0 0 0 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income...................................................... 47.49 72.72 68.46 74.81
-- Return of capital...................................................... 0 7.85 12.98 7.49
Source (on cash basis):
-- Sales.................................................................. 0 0 0 0
-- Refinancing............................................................ 0 0 0 0
-- Operations............................................................. 47.49 80.57 81.44 82.30
Amount (in percentage terms) remaining invested in program properties at the
end of the last year reported in the Table (original total acquisition cost
of properties retained divided by original total acquisition cost of all
properties in program)..................................................... N/A N/A N/A 100%
<CAPTION>
CPA(R):6
------------------------------------------
1989 1990 1991
----------- ----------- ------------
<S> <C> <C> <C>
Gross Revenues.............................................................. $10,904,247 $11,092,133 $ 11,406,582
Gain on sale................................................................ 0 0 0
Other....................................................................... 0 0 (55,783)(1)
Extraordinary (charge) gain................................................. 0 0 (13,559)(2)
Less:
Operating expenses......................................................... 575,222 802,183 1,078,174
Interest expense........................................................... 5,388,140 5,269,354 5,222,844
Depreciation............................................................... 1,418,340 1,418,339 1,418,968
Net Income-GAAP Basis....................................................... 3,522,545 3,602,257 3,617,254
Taxable Income:
-- from operations......................................................... 1,218,257 1,338,235 1,831,848
-- from gain on sale....................................................... 0 0 0
-- from extraordinary charge............................................... 0 0 (13,559)(2)
-- from other.............................................................. 0 0 (250,032)(1)
Cash generated from operations(4)........................................... 5,032,548 5,201,952 5,719,005
Cash generated from sales................................................... 0 0 0
Cash generated from refinancing............................................. 0 0 870,913
Cash generated from other................................................... 0 0 0
Cash generated from operations, sales, refinancing and other................ 5,032,548 5,201,952 6,589,918
Less: Cash distribution to investors:
-- from operating cash flow(5)............................................. 4,247,146 4,316,026 4,421,586
-- from sales and refinancing.............................................. 0 0 0
Cash generated (deficiency) after cash distributions........................ 785,402 885,926 2,168,332
Less: Special items........................................................ 0 0 0
Cash generated (deficiency) after cash distributions and
special items.............................................................. 785,402 885,926 2,168,332
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss)..................................................... $ 23.88 $ 26.23 $ 35.65
Other...................................................................... 0 0 0
Capital gain............................................................... 0 0 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income...................................................... 69.06 70.62 70.91
-- Return of capital...................................................... 14.20 13.99 15.77
Source (on cash basis):
-- Sales.................................................................. 0 0 0
-- Refinancing............................................................ 0 0 0
-- Operations............................................................. 83.26 84.61 86.68
Amount (in percentage terms) remaining invested in program properties at the
end of the last year reported in the Table (original total acquisition cost
of properties retained divided by original total acquisition cost of all
properties in program)..................................................... 100% 100% 100%
<CAPTION>
CPA(R):6
--------------------------------------------
1992 1993 1994
------------ ----------- -----------
<S> <C> <C> <C>
Gross Revenues.............................................................. $ 14,177,113 $15,387,180 $15,693,853
Gain on sale................................................................ 0 0 0
Other....................................................................... (75,211)(3) N/A N/A
Extraordinary (charge) gain................................................. 0 N/A N/A
Less:
Operating expenses......................................................... 2,858,645 4,706,491 5,933,070
Interest expense........................................................... 5,319,971 5,122,703 5,040,589
Depreciation............................................................... 1,668,951 1,637,678 1,621,029
Net Income-GAAP Basis....................................................... 4,254,335 3,920,308 3,099,165
Taxable Income:
-- from operations......................................................... 2,227,427 2,091,787 1,156,303
-- from gain on sale....................................................... 0 0 0
-- from extraordinary charge............................................... 0 0 0
-- from other.............................................................. 27,303(3) 0 0
Cash generated from operations(4)........................................... 6,066,705 5,531,994 5,094,336
Cash generated from sales................................................... 0 0 0
Cash generated from refinancing............................................. 2,414,076 0 0
Cash generated from other................................................... 17,008(3) 0 0
Cash generated from operations, sales, refinancing and other................ 8,497,789 5,531,994 5,094,336
Less: Cash distribution to investors:
-- from operating cash flow(5)............................................. 4,633,297 4,676,223 4,704,691
-- from sales and refinancing.............................................. 0 0 0
Cash generated (deficiency) after cash distributions........................ 3,864,492 855,771 389,645
Less: Special items........................................................ 0 0 0
Cash generated (deficiency) after cash distributions and
special items.............................................................. 3,864,492 855,771 389,645
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss)..................................................... $ 43.67 $ 41.01 $ 22.67
Other...................................................................... 0.54 0 0
Capital gain............................................................... 0 0 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income...................................................... 83.40 76.85 60.76
-- Return of capital...................................................... 7.43 14.82 31.47
Source (on cash basis):
-- Sales.................................................................. 0 0 0
-- Refinancing............................................................ 0 0 0
-- Operations............................................................. 90.83 91.67 92.23
Amount (in percentage terms) remaining invested in program properties at the
end of the last year reported in the Table (original total acquisition cost
of properties retained divided by original total acquisition cost of all
properties in program)..................................................... 100% 100% 100%
<CAPTION>
CPA(R):6
--------------------------
1995 1996
----------- -----------
<S> <C> <C>
Gross Revenues.............................................................. $16,737,899 $16,537,296
Gain on sale................................................................ 0 70,878(7)
Other....................................................................... N/A N/A
Extraordinary (charge) gain................................................. 2,088,268(6) N/A
Less:
Operating expenses......................................................... 4,942,528 4,914,538
Interest expense........................................................... 4,499,692 4,003,726
Depreciation............................................................... 1,525,011 1,664,514
Net Income-GAAP Basis....................................................... 7,858,936 6,025,396
Taxable Income:
-- from operations......................................................... 7,871,636 3,450,345
-- from gain on sale....................................................... 0 242,713
-- from extraordinary charge............................................... 0 0
-- from other.............................................................. 0 0
Cash generated from operations(4)........................................... 11,133,036 7,615,526
Cash generated from sales................................................... 0 0
Cash generated from refinancing............................................. 0 0
Cash generated from other................................................... 0 0
Cash generated from operations, sales, refinancing and other................ 11,133,036 7,615,526
Less: Cash distribution to investors:
-- from operating cash flow(5)............................................. 4,736,359 4,880,911
-- from sales and refinancing.............................................. 0
Cash generated (deficiency) after cash distributions........................ 6,396,677 2,734,615
Less: Special items........................................................ 0 0
Cash generated (deficiency) after cash distributions and
special items.............................................................. 6,396,677 2,734,615
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss)..................................................... $ 154.38 $ 67.67
Other...................................................................... 0 0
Capital gain............................................................... 0 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income...................................................... 92.89 95.72
-- Return of capital...................................................... 0 0
Source (on cash basis):
-- Sales.................................................................. 0 0
-- Refinancing............................................................ 0 0
-- Operations............................................................. 92.89 95.72
Amount (in percentage terms) remaining invested in program properties at the
end of the last year reported in the Table (original total acquisition cost
of properties retained divided by original total acquisition cost of all
properties in program)..................................................... 100% 99.79%
</TABLE>
FOOTNOTES
(1) Represents acquisition of hotel operations for properties formerly leased to
subsidiaries of Landmark Hotel Corporation.
(2) Represents unamortized balance of deferred charges in connection with the
refinancing of the mortgage loan secured by a property leased to Martin
Marrietta Corporation.
(3) Represents acquisition of hotel operations for property formerly leased to
Integra-A Hotel and Restaurant Company.
(4) For the years up to and including 1985, the figures for cash generated from
operations were derived from the Statements of Changes in Financial
Position, whereas for the years after 1985, the figures were derived from
the Statements of Cash Flows in accordance with SFAS No. 95. In determining
Cash from Operations pursuant to the Statement of Cash Flows, the effects of
changes primarily in accrued liabilities, receivables and other assets are
taken into account, but other items such as principal amortization of loans
are not included. Cash from operations pursuant to the Statement of Changes
in Financial Position includes the effect of loan amortization, but excludes
the effects of changes in accrued liabilities, receivables and other assets.
A-13
<PAGE> 120
(5) To the extent "cash distribution to investors from operating cash flow"
exceeds "cash generated from operations" in any given year, such excess
represents the distribution of cash generated from partnership operations in
prior years that has not previously been distributed.
(6) Represents gain on restructuring of debt on the property leased to Anthony's
Manufacturing Company, Inc.
(7) Result from the sale of two properties leased to Autozone, Inc.
NOTES
(1) CPA(R):6 made quarterly distributions in the following amounts per $1,000
invested on the dates specified: January, 1997 -- $24.25 and April,
1997 -- $24.27.
A-14
<PAGE> 121
TABLE III (7 OF 11)
OPERATING RESULTS OF PRIOR PROGRAMS
Table III includes information showing the start-up and operational phase
of Prior Programs, the offerings of which have been closed since December 31,
1979. This Table is designed to provide the investor with information on the
financial operations of such Prior Programs. The results shown in this Table are
in all cases for years ended December 31. THE INFORMATION PRESENTED IN THIS
TABLE SHOULD NOT BE CONSIDERED AS INDICATIVE OF THE POSSIBLE OPERATIONS OF THE
COMPANY. PURCHASERS OF THE SHARES OFFERED BY THIS PROSPECTUS WILL NOT HAVE ANY
OWNERSHIP IN THE CPA(R) PARTNERSHIPS. MORTGAGE FINANCING FOR THE CPA(R)
PARTNERSHIPS MAY HEREAFTER OCCUR WHICH WOULD MAKE AVAILABLE ADDITIONAL FUNDS FOR
INVESTMENT BY SUCH PARTNERSHIPS. ANY ADDITIONAL INVESTMENTS COULD SIGNIFICANTLY
ALTER CERTAIN OF THE INFORMATION PRESENTED IN THIS TABLE.
<TABLE>
<CAPTION>
CPA(R):7
----------------------------------
1986 1987 1988
-------- ---------- ----------
<S> <C> <C> <C>
Gross Revenues........................................................................... $ 90,399 $4,119,934 $9,066,142
Profit (loss) on sale of properties...................................................... N/A N/A N/A
Gain on sale of securities............................................................... N/A N/A 1,766,185(3)
Extraordinary gain charge................................................................
Write-down of property................................................................... N/A N/A N/A
Other.................................................................................... N/A N/A N/A
Less:
Operating expenses...................................................................... 46,413 326,846 1,848,463
Interest expense........................................................................ 22,911 1,389,385 3,479,631
Depreciation............................................................................ 0 131,567 1,009,247
Net Income-GAAP Basis.................................................................... 21,075 2,272,136 4,494,986
Taxable Income (Loss):
-- from operations...................................................................... (51,877) 1,203,013 1,585,180
-- from gain (loss) on sales............................................................ 0 0 1,766,185(3)
-- other................................................................................ 0 0 0
Cash generated from operations........................................................... 1,550,648 1,115,274 4,136,538
Cash generated from sales................................................................ 0 0 1,766,185(3)
Cash generated from refinancing.......................................................... 0 0 0
Cash generated from other................................................................ 0 0 0
Cash generated from operations, sales, refinancing and other............................. 1,550,648 1,115,274 5,902,723
Less: Cash distribution to investors:
-- from operating cash flow(6).......................................................... 0 1,363,271 3,902,233
-- from sales and refinancing........................................................... 0 0 0
Cash generated (deficiency) after cash distributions..................................... 1,550,648 (247,997) 2,000,490
Less: Special items...................................................................... 0 0 0
Cash generated (deficiency) after cash distributions and special items................... 1,550,648 (247,997) 2,000,490
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).................................................................. $ (4.29) $ 24.98 $ 32.91
Other................................................................................... 0 0 0
Capital gain............................................................................ 0 0 36.67
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income.................................................................... 0 60.60 81.02
-- Return of capital.................................................................... 0 0 0
Source (on cash basis):
-- Sales................................................................................ 0 0 0
-- Refinancing.......................................................................... 0 0 0
-- Operations........................................................................... 0 60.60 81.02
Amount (in percentage terms) remaining invested in program properties at the end of the
last year reported in the Table (original total acquisition cost of properties
retained divided by original total acquisition cost of all properties in program)..... N/A N/A N/A
<CAPTION>
CPA(R):7
---------------------------
1989 1990
----------- -----------
<S> <C> <C>
Gross Revenues........................................................................... $14,071,843 $13,725,684
Profit (loss) on sale of properties...................................................... N/A 58,172(1)
Gain on sale of securities............................................................... 48,158(3) 69,544(3)
Extraordinary gain charge................................................................
Write-down of property................................................................... N/A (500,000)(2)
Other.................................................................................... N/A N/A
Less:
Operating expenses...................................................................... 5,576,552 6,194,008
Interest expense........................................................................ 4,657,478 4,718,573
Depreciation............................................................................ 1,422,116 1,567,896
Net Income-GAAP Basis.................................................................... 2,463,855 872,923
Taxable Income (Loss):
-- from operations...................................................................... 1,195,514 3,689
-- from gain (loss) on sales............................................................ 48,158(3) 127,716(1)(3)
-- other................................................................................ 0 0
Cash generated from operations........................................................... 3,745,289 3,153,131
Cash generated from sales................................................................ 48,158(3) 245,324
Cash generated from refinancing.......................................................... 0 0
Cash generated from other................................................................ 0 0
Cash generated from operations, sales, refinancing and other............................. 3,793,447 3,398,455
Less: Cash distribution to investors:
-- from operating cash flow(6).......................................................... 3,940,765 3,992,781
-- from sales and refinancing........................................................... 0 0
Cash generated (deficiency) after cash distributions..................................... (147,318) (594,326)
Less: Special items...................................................................... 0 0
Cash generated (deficiency) after cash distributions and special items................... (147,318) (594,326)
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).................................................................. $ 24.82 $ .08
Other................................................................................... 0 0
Capital gain............................................................................ 1.00 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income.................................................................... 51.16 18.12
-- Return of capital.................................................................... 30.66 64.78
Source (on cash basis):
-- Sales................................................................................ 0 0
-- Refinancing.......................................................................... 0 0
-- Operations........................................................................... 81.82 82.90
Amount (in percentage terms) remaining invested in program properties at the end of the
last year reported in the Table (original total acquisition cost of properties
retained divided by original total acquisition cost of all properties in program)..... 100% 99.86%
<CAPTION>
CPA(R):7
----------------------------
1991 1992
----------- -----------
<S> <C> <C>
Gross Revenues........................................................................... $13,648,275 $14,502,032
Profit (loss) on sale of properties...................................................... 54,197(4) N/A
Gain on sale of securities............................................................... N/A N/A
Extraordinary gain charge................................................................
Write-down of property................................................................... N/A N/A
Other.................................................................................... N/A (141,723)(5)
Less:
Operating expenses...................................................................... 6,170,575 6,404,695
Interest expense........................................................................ 4,471,097 4,155,956
Depreciation............................................................................ 1,607,889 1,616,335
Net Income-GAAP Basis.................................................................... 1,452,911 2,183,323
Taxable Income (Loss):
-- from operations...................................................................... 746,150 1,534,247
-- from gain (loss) on sales............................................................ 54,197(4) 0
-- other................................................................................ 0 51,875(5)
Cash generated from operations........................................................... 3,303,198 4,489,865
Cash generated from sales................................................................ 183,430(4) 0
Cash generated from refinancing.......................................................... 978,087 0
Cash generated from other................................................................ 0 32,313(5)
Cash generated from operations, sales, refinancing and other............................. 4,464,715 4,522,178
Less: Cash distribution to investors:
-- from operating cash flow(6).......................................................... 3,303,198 3,388,324(7)
-- from sales and refinancing........................................................... 503,673 0
Cash generated (deficiency) after cash distributions..................................... 657,844 1,133,854
Less: Special items...................................................................... 0 0
Cash generated (deficiency) after cash distributions and special items................... 657,844 1,133,854
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).................................................................. $ 15.49 $ 31.85
Other................................................................................... 0 1.08
Capital gain............................................................................ 0 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income.................................................................... 30.17 45.33
-- Return of capital.................................................................... 53.03 20.86
Source (on cash basis):
-- Sales................................................................................ 0 0
-- Refinancing.......................................................................... 10.46 0
-- Operations........................................................................... 72.74 66.19
Amount (in percentage terms) remaining invested in program properties at the end of the
last year reported in the Table (original total acquisition cost of properties
retained divided by original total acquisition cost of all properties in program)..... 99.70% 99.70%
<CAPTION>
CPA(R):7
----------------------------
1993 1994
----------- -----------
<S> <C> <C>
Gross Revenues........................................................................... $12,243,029 $13,840,052
Profit (loss) on sale of properties...................................................... (552,383)(8) 7,814,474(10)
Gain on sale of securities............................................................... N/A N/A
Extraordinary gain charge................................................................ 879,433(12) (511,503)
Write-down of property................................................................... (3,303,228)(9) (641,731)(11)
Other.................................................................................... 435,106(3) 986,155
Less:
Operating expenses...................................................................... 4,485,628 4,336,235
Interest expense........................................................................ 3,324,398 3,537,640
Depreciation............................................................................ 1,647,397 1,619,726
Net Income-GAAP Basis.................................................................... 244,534 11,993,846
Taxable Income (Loss):
-- from operations...................................................................... 11,218,042 2,452,425
-- from gain (loss) on sales............................................................ 2,093,467 10,460,324
-- other................................................................................ 283,740 682,500
Cash generated from operations........................................................... 4,135,048 5,347,231
Cash generated from sales................................................................ 283,740 14,662,004
Cash generated from refinancing.......................................................... 1,047,890 700,000
Cash generated from other................................................................ 3,578 38,281
Cash generated from operations, sales, refinancing and other............................. 5,470,256 20,747,516
Less: Cash distribution to investors:
-- from operating cash flow(6).......................................................... 2,948,590 3,246,729
-- from sales and refinancing........................................................... 0 0
Cash generated (deficiency) after cash distributions..................................... 2,521,666 17,500,787
Less: Special items...................................................................... 0 0
Cash generated (deficiency) after cash distributions and special items................... 2,521,666 17,500,787
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).................................................................. $ 232.91 $ 50.92
Other................................................................................... 5.89 14.17
Capital gain............................................................................ 43.47 217.18
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income.................................................................... 5.08 67.41
-- Return of capital.................................................................... 56.14 0
Source (on cash basis):
-- Sales................................................................................ 0 0
-- Refinancing.......................................................................... 0 0
-- Operations........................................................................... 61.22 67.41
Amount (in percentage terms) remaining invested in program properties at the end of the
last year reported in the Table (original total acquisition cost of properties
retained divided by original total acquisition cost of all properties in program)..... 97.86% 83.50%
<CAPTION>
CPA(R):7
----------------------------
1995 1996
----------- -----------
<S> <C> <C>
Gross Revenues........................................................................... $12,196,252 $12,731,328
Profit (loss) on sale of properties...................................................... 1,019,362(13) 74,729(17)
Gain on sale of securities............................................................... 1,323,858(13) N/A
Extraordinary gain charge................................................................ --
Write-down of property................................................................... (319,685)(14) --
Other.................................................................................... 111,226(15) (128,879)(15)
Less:
Operating expenses...................................................................... 4,986,585 5,181,249
Interest expense........................................................................ 2,456,129 1,942,737
Depreciation............................................................................ 1,361,952 1,154,088
Net Income-GAAP Basis.................................................................... 5,526,347 4,399,104
Taxable Income (Loss):
-- from operations...................................................................... 3,451,813 3,856,378
-- from gain (loss) on sales............................................................ 0 (188,980)
-- other................................................................................ 0 0
Cash generated from operations........................................................... 5,089,776 5,499,073
Cash generated from sales................................................................ 1,546,019(13) 617,867(17)
Cash generated from refinancing.......................................................... --
Cash generated from other................................................................ 31,457(16) 27,761(16)
Cash generated from operations, sales, refinancing and other............................. 6,667,252 6,144,701
Less: Cash distribution to investors:
-- from operating cash flow(6).......................................................... 10,434,626 3,483,017
-- from sales and refinancing........................................................... 0 0
Cash generated (deficiency) after cash distributions..................................... (3,767,490) 2,661,684
Less: Special items...................................................................... 0
Cash generated (deficiency) after cash distributions and special items................... (3,767,490) 2,661,684
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).................................................................. 71.77 $ 80.18
Other................................................................................... 0 0
Capital gain............................................................................ 0 (4.14)
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income.................................................................... 114.82 91.47
-- Return of capital.................................................................... 101.98 0
Source (on cash basis):
-- Sales................................................................................ 0
-- Refinancing.......................................................................... 0
-- Operations........................................................................... 216.80 72.42
Amount (in percentage terms) remaining invested in program properties at the end of the
last year reported in the Table (original total acquisition cost of properties
retained divided by original total acquisition cost of all properties in program)..... 73.82% 73.16%
</TABLE>
A-15
<PAGE> 122
FOOTNOTES
(1) Results from the sale of approximately 10 acres of land which was a portion
of the property net leased to Emb-Tex Corporation.
(2) Represents write-down of 10 properties formerly net leased to Yellow Front
Stores, Inc.
(3) Represents the gain on the sale of securities of Mid-Continent Bottlers,
Inc. and income from equity investments.
(4) Results of the sale of .22 acres of land formerly part of a property
located in Scottsdale, Arizona. See Table V.
(5) Represents acquisition of hotel operations for property formerly leased to
Integra-A Hotel and Restaurant Company.
(6) To the extent "cash distribution to investors from operating cash flow"
exceeds "cash generated from operations" in any given year, such excess
represents the distribution of cash generated from partnership operations
in prior years that has not previously been distributed.
(7) Includes $200,364 of distributions paid to the Corporate General Partner
attributable to 1991.
(8) Results from sale of properties located in Travelers Rest, South Carolina
and Phoenix, Arizona.
(9) Represents write-down of the Jupiter and Plant City, Florida properties.
(10) Results from sale of properties leased to Mid-Continent, Bottlers, Inc.
(11) Represents write-down of properties located in Fredricksburg, Virginia and
Jefferson, Georgia.
(12) Represents an extraordinary gain upon extinguishment of the Yellow Front
Stores, Inc. loan.
(13) Result of sale of the Jupiter, Florida Property.
(14) Represents writedown of Monte Vista, Colorado property.
(15) Represents earnings from discontinued operations and loss from equity
investments.
(16) Represents cash distributed from equity investments.
(17) Result of sale of property in Denham Springs, Louisiana leased to AutoZone,
Inc. and a property in Monte Vista, Colorado formerly leased to Yellow
Front Stores, Inc.
NOTES
(1) CPA(R):7 made quarterly distributions in the following amounts per $1,000
invested on the dates specified: January, 1997 -- $18.28 and April,
1997 -- $18.30.
A-16
<PAGE> 123
TABLE III (8 OF 11)
OPERATING RESULTS OF PRIOR PROGRAMS
Table III includes information showing the start-up and operational phase of
Prior Programs, the offerings of which have been closed since December 31, 1979.
This Table is designed to provide the investor with information on the financial
operations of such Prior Programs. The results shown in this Table are in all
cases for years ended December 31. THE INFORMATION PRESENTED IN THIS TABLE
SHOULD NOT BE CONSIDERED AS INDICATIVE OF THE POSSIBLE OPERATIONS OF THE
COMPANY. PURCHASERS OF THE SHARES OFFERED BY THIS PROSPECTUS WILL NOT HAVE ANY
OWNERSHIP IN THE CPA(R) PROGRAMS. MORTGAGE FINANCING FOR THE CPA(R) PROGRAMS MAY
HEREAFTER OCCUR WHICH WOULD MAKE AVAILABLE ADDITIONAL FUNDS FOR INVESTMENT BY
SUCH PROGRAMS. ANY ADDITIONAL INVESTMENTS COULD SIGNIFICANTLY ALTER CERTAIN OF
THE INFORMATION PRESENTED IN THIS TABLE.
<TABLE>
<CAPTION>
CPA(R):8
------------------------------------------
1988 1989 1990
---------- ----------- -----------
<S> <C> <C> <C>
Gross Revenues......................................................................... $2,877,969 $11,744,379 $14,120,755
Profit on sale of properties........................................................... N/A N/A N/A
Other.................................................................................. N/A N/A N/A
Extraordinary charge................................................................... N/A N/A N/A
Less:
Operating expenses.................................................................... 322,625 934,022 912,831
Interest expense...................................................................... 939,460 4,871,609 6,917,234
Depreciation.......................................................................... 214,618 877,918 1,204,389
Minority Interest..................................................................... N/A N/A N/A
Net Income-GAAP Basis.................................................................. 1,401,266 5,060,830 5,086,301
Taxable Income (Loss):
-- from operations.................................................................... 1,043,085 3,268,042 2,910,667
-- from gain on sale..................................................................
-- from other......................................................................... 0 0 0
-- from extraordinary charge.......................................................... 0 0 0
Cash generated from operations......................................................... 1,697,043 5,752,461 6,303,966
Cash generated from sales.............................................................. 0 0 0
Cash generated from refinancing........................................................ 0 0 0
Cash generated from other.............................................................. 0 0 0
Cash generated from operations, sales, refinancing and other........................... 1,697,043 5,752,461 6,303,966
Less: Cash distribution to investors:
-- from operating cash flow(4)........................................................ 728,786 5,575,793 6,165,188
-- from sales and refinancing......................................................... 0 0 0
Cash generated (deficiency) after cash distributions................................... 968,257 176,668 138,778
Less: Special items.................................................................... 0 0 0
Cash generated (deficiency) after cash distributions and special items................. 968,257 176,668 138,778
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).............................................................. $ 16.97 $ 43.41 $ 38.67
Other............................................................................... 0 0 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income................................................................ 20.91 67.23 67.57
-- Return of capital................................................................ 0 6.84 14.33
Source (on cash basis):
-- Sales............................................................................ 0 0 0
-- Refinancing...................................................................... 0 0 0
-- Operations....................................................................... 20.91 74.07 81.90
Amount (in percentage terms) remaining invested in program properties at the end of the
last year reported in the Table (original total acquisition cost of properties
retained divided by original total acquisition cost of all properties in program)..... N/A N/A 100%
<CAPTION>
CPA(R):8
-------------------------------------------
1991 1992 1993
----------- ----------- -----------
<S> <C> <C> <C>
Gross Revenues......................................................................... $14,396,115 $15,176,928 $18,060,581
Profit on sale of properties........................................................... 1,736(1) N/A N/A
Other.................................................................................. N/A (51,219)(2) 21,111
Extraordinary charge................................................................... N/A N/A N/A
Less:
Operating expenses.................................................................... 1,214,634 2,227,334 4,151,151
Interest expense...................................................................... 7,095,848 6,943,303 6,737,293
Depreciation.......................................................................... 1,490,532 1,642,518 1,935,624
Minority Interest..................................................................... N/A N/A N/A
Net Income-GAAP Basis.................................................................. 4,596,837 4,312,554 5,257,624
Taxable Income (Loss):
-- from operations.................................................................... 2,819,692 3,009,471 5,060,536
-- from gain on sale..................................................................
-- from other......................................................................... 1,736(1) (17,110)(2) 0
-- from extraordinary charge.......................................................... 0 0 0
Cash generated from operations......................................................... 6,285,116 6,321,159 8,376,844
Cash generated from sales.............................................................. 7,991(1) 0 0
Cash generated from refinancing........................................................ 0 0 0
Cash generated from other.............................................................. 0 16,408(2) 253,858
Cash generated from operations, sales, refinancing and other........................... 6,293,107 6,337,567 8,630,702
Less: Cash distribution to investors:
-- from operating cash flow(4)........................................................ 6,225,409 6,285,600 6,327,785
-- from sales and refinancing......................................................... 0 0 0
Cash generated (deficiency) after cash distributions................................... 67,698 51,697 2,302,917
Less: Special items.................................................................... 0 0 0
Cash generated (deficiency) after cash distributions and special items................. 67,698 51,697 2,302,917
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).............................................................. $ 37.46 $ 39.98 $ 67.23
Other............................................................................... 0.02(1) (0.23)(2) 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income................................................................ 61.07 57.29 69.84
-- Return of capital................................................................ 21.63 26.21 14.22
Source (on cash basis):
-- Sales............................................................................ 0 0 0
-- Refinancing...................................................................... 0 0 0
-- Operations....................................................................... 82.70 83.50 84.06
Amount (in percentage terms) remaining invested in program properties at the end of the
last year reported in the Table (original total acquisition cost of properties
retained divided by original total acquisition cost of all properties in program)..... 99.99% 99.99% 99.99%
<CAPTION>
CPA(R):8
----------------------------
1994 1995
----------- -----------
<S> <C> <C>
Gross Revenues......................................................................... $18,804,769 $19,886,284
Profit on sale of properties........................................................... N/A N/A
Other.................................................................................. 83,736 (62,359)(4)
Extraordinary charge................................................................... (120,000)(3) N/A
Less:
Operating expenses.................................................................... 4,445,083 3,774,470
Interest expense...................................................................... 6,266,275 5,799,127
Depreciation.......................................................................... 1,997,946 1,912,503
Minority Interest..................................................................... N/A N/A
Net Income-GAAP Basis.................................................................. 5,892,029 8,337,825
Taxable Income (Loss):
-- from operations.................................................................... 4,565,116 7,475,178
-- from gain on sale..................................................................
-- from other......................................................................... 0 0
-- from extraordinary charge.......................................................... 0 0
Cash generated from operations......................................................... 8,627,436 10,271,234
Cash generated from sales.............................................................. 0
Cash generated from refinancing........................................................ 0 0
Cash generated from other.............................................................. 289,805 282,992(4)
Cash generated from operations, sales, refinancing and other........................... 8,917,241 10,554,226
Less: Cash distribution to investors:
-- from operating cash flow(4)........................................................ 6,357,899 6,413,927
-- from sales and refinancing......................................................... 0 0
Cash generated (deficiency) after cash distributions................................... 2,559,342 4,140,299
Less: Special items.................................................................... 0 0
Cash generated (deficiency) after cash distributions and special items................. 2,559,342 4,140,299
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).............................................................. $ 60.64 $ 99.55
Other............................................................................... 0 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income................................................................ 78.27 85.34
-- Return of capital................................................................ 6.19 0
Source (on cash basis):
-- Sales............................................................................ 0 0
-- Refinancing...................................................................... 0 0
-- Operations....................................................................... 84.46 85.34
Amount (in percentage terms) remaining invested in program properties at the end of the
last year reported in the Table (original total acquisition cost of properties
retained divided by original total acquisition cost of all properties in program)..... 97.69% 97.69%
<CAPTION>
CPA(R):8
-----------
1996
-----------
<S> <C>
Gross Revenues......................................................................... $16,207,400(5)
Profit on sale of properties........................................................... 21,697(6)
Other.................................................................................. 1,239,400(4)
Extraordinary charge................................................................... N/A
Less:
Operating expenses.................................................................... 1,242,655
Interest expense...................................................................... 5,232,928
Depreciation.......................................................................... 1,539,737
Minority Interest..................................................................... N/A
Net Income-GAAP Basis.................................................................. 9,453,177
Taxable Income (Loss):
-- from operations.................................................................... 7,792,097
-- from gain on sale.................................................................. 50,641
-- from other......................................................................... 0
-- from extraordinary charge.......................................................... 0
Cash generated from operations......................................................... 10,947,671
Cash generated from sales.............................................................. 154,499
Cash generated from refinancing........................................................ 0
Cash generated from other.............................................................. 161,795(4)
Cash generated from operations, sales, refinancing and other........................... 11,263,965
Less: Cash distribution to investors:
-- from operating cash flow(4)........................................................ 6,549,558
-- from sales and refinancing......................................................... 0
Cash generated (deficiency) after cash distributions................................... 4,714,407
Less: Special items.................................................................... 0
Cash generated (deficiency) after cash distributions and special items................. 4,714,407
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income (loss).............................................................. $ 103.77
Other............................................................................... 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income................................................................ 87.22
-- Return of capital................................................................ 0
Source (on cash basis):
-- Sales............................................................................ 0
-- Refinancing...................................................................... 0
-- Operations....................................................................... 87.22
Amount (in percentage terms) remaining invested in program properties at the end of the
last year reported in the Table (original total acquisition cost of properties
retained divided by original total acquisition cost of all properties in program)..... 97.25%
</TABLE>
A-17
<PAGE> 124
FOOTNOTES
(1) Results from the sale of a parcel of land which was a portion of the
property net leased to Furon Company.
(2) Represents acquisition of hotel operations for property formerly leased to
Integra-A Hotel and Restaurant Company.
(3) Results from the refinancing of property leased to Detroit Diesel
Corporation.
(4) Includes of equity income for 1993, 1994, 1995 and 1996 income (loss) and
hotel operating results for 1996.
(5) Results from the exchange of a hotel property in Kennes, Louisiana for an
investment in American General Hospitality Operating Partnership L.P.
(6) Results from the sale of two properties leased to Furon Company.
NOTES
(1) CPA(R):8 made quarterly distributions in the following amounts per $1,000
invested on the dates specified: January, 1997 -- $22.00 and April,
1997 -- $22.02.
A-18
<PAGE> 125
TABLE III (9 OF 11)
OPERATING RESULTS OF PRIOR PROGRAMS
Table III includes information showing the start-up and operational phase of
Prior Programs, the offerings of which have been closed since December 31, 1979.
This Table is designed to provide the investor with information on the financial
operations of such Prior Programs. The results shown in this Table are in all
cases for years ended December 31. THE INFORMATION PRESENTED IN THIS TABLE
SHOULD NOT BE CONSIDERED AS INDICATIVE OF THE POSSIBLE OPERATIONS OF THE
COMPANY. PURCHASERS OF THE SHARES OFFERED BY THIS PROSPECTUS WILL NOT HAVE ANY
OWNERSHIP IN THE CPA(R) PROGRAMS. MORTGAGE FINANCING FOR THE CPA(R) PROGRAMS MAY
HEREAFTER OCCUR WHICH WOULD MAKE AVAILABLE ADDITIONAL FUNDS FOR INVESTMENT BY
SUCH PROGRAMS. ANY ADDITIONAL INVESTMENTS COULD SIGNIFICANTLY ALTER CERTAIN OF
THE INFORMATION PRESENTED IN THIS TABLE.
<TABLE>
<CAPTION>
CPA(R):9
------------------------------------------------------------------------------
1989 1990 1991 1992 1993 1994
----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Gross Revenues............ $2,543,943 $10,284,029 $12,514,907 $12,280,669 $12,216,612 $11,612,360
Profit on sale of
properties............... N/A N/A 1,731(1) N/A N/A N/A
Other..................... N/A N/A N/A N/A 658,052 669,020
Write-down of property....
Extraordinary charge...... N/A N/A N/A N/A N/A (480,000)(4)
Less:
Operating expenses....... 432,917 808,315 887,820 1,308,664 963,533 949,925
Interest expense......... 1,122,585 5,063,322 6,631,202 6,425,597 6,347,577 5,726,296
Depreciation............. 29,901 1,141,461 1,697,599 1,697,599 1,697,599 1,697,599
Minority Interest........ N/A N/A N/A N/A N/A N/A
Net Income-GAAP Basis..... 958,540 3,270,931 3,300,017 2,848,809 3,865,955 3,427,560
Taxable Income (Loss):
-- from operations....... 710,320 2,624,917 2,816,278 2,612,003 3,316,011 3,030,197
-- from gain on sale.....
-- from other............ 0 0 1,731(1) 0 0 0
-- from extraordinary
charge................ 0 0 0 0 0 0
Cash generated from
operations............... 1,784,343 3,895,420 5,662,385 5,211,896 5,906,190 5,807,477
Cash generated from
sales.................... 0 0 1,897 0 522,878 0
Cash generated from
refinancing.............. 0 0 0 0 0 0
Cash generated from
other.................... 0 0 0 0 0 484,044
Cash generated from
operations, sales,
refinancing and other.... 1,784,343 3,895,420 5,664,282 5,211,896 6,429,068 6,291,521
Less: Cash distribution to
investors:
-- from operating cash
flow(4)................ 551,330 4,802,863 5,476,956 5,526,795 5,562,850 5,589,709
-- from sales and
refinancing............ 0 0 0 0 0 0
Cash generated (deficiency)
after cash
distributions............ 1,233,013 (907,443) 187,326 (314,899) 866,218 701,812
Less: Special items....... 0 0 0 0 0 0
Cash generated (deficiency)
after cash distributions
and special items........ 1,233,013 (907,443) 187,326 (314,899) 866,218 701,812
Tax and Distribution Data
Per $1000 Invested
Federal Income Tax Results:
Ordinary income
(loss)................ $ 12.64 $ 39.38 $ 42.30 $ 39.24 $ 49.81 $ 45.51
Capital gain...........
Other.................. 0 0 0.03(1) 0 0 0
Cash Distributions to
Investors:
Source (on GAAP basis):
-- Investment income... 20.12 49.07 49.57 42.79 58.07 51.48
-- Return of capital... 0 22.98 32.65 40.23 25.49 32.48
Source (on cash basis):
-- Sales............... 0 0 0 0 0 0
-- Refinancing......... 0 0 0 0 0 0
-- Operations.......... 20.12 72.05 82.22 83.02 83.56 83.96
Amount (in percentage terms)
remaining invested in program
properties at the end of the
last year reported in the
Table (original total
acquisition cost of
properties retained divided
by original total acquisition
cost of all properties in
program)................. N/A N/A 99.99% 99.99% 99.99% 99.99%
<CAPTION>
CPA(R):10
----------------------------------------------------------------------------
1995 1996 1990 1991 1992
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Gross Revenues................ $11,946,610 $12,074,578 $ 1,783,676 $11,169,869 $15,889,968
Profit on sale of
properties................... N/A 45,066(11) N/A N/A N/A
Other......................... (535,337)(6) 658,416(9) N/A N/A N/A
Write-down of property........
Extraordinary charge.......... N/A N/A N/A (40,818)(2) N/A
Less:
Operating expenses........... 998,762 564,905 393,287 1,358,840 2,241,255
Interest expense............. 5,525,604 5,360,760 711,223 5,149,717 7,460,861
Depreciation................. 1,697,599 1,677,253 230,176 1,242,512 1,756,126
Minority Interest............ N/A N/A 72,594 492,191 570,880
Net Income-GAAP Basis......... 3,189,308 5,175,142 376,396 2,885,791 3,860,846
Taxable Income (Loss):
-- from operations........... 3,805,214 4,431,434 452,075 2,958,235 3,059,213
-- from gain on sale......... 106,024
-- from other................ 0 0 0 0 0
-- from extraordinary
charge..................... 0 0 0 (40,818)(2) 0
Cash generated from
operations................... 5,921,560 6,162,302 496,208 4,881,135 6,071,495
Cash generated from sales..... 0 0 0
Cash generated from 0 324,126(11)
refinancing.................. 0 0 0 0 0
Cash generated from other..... 463,274(7) 388,329(7) 0 0 0
Cash generated from
operations, sales,
refinancing and other........ 6,384,834 6,874,757 496,208 4,881,135 6,071,495
Less: Cash distribution to
investors:
-- from operating cash
flow(4).................... 5,616,322 5,643,736 0 4,266,821 5,860,479
-- from sales and
refinancing................ 0 0 0 0 0
Cash generated (deficiency)
after cash distributions..... 768,512 1,231,021 496,208 614,314 211,016
Less: Special items........... 0 0 0 0 0
Cash generated (deficiency)
after cash distributions and
special items................ 768,512 1,231,021 496,208 614,314 211,016
Tax and Distribution Data Per
$1000 Invested
Federal Income Tax Results:
Ordinary income (loss)..... $ 57.16 $ 66.56 $ 9.38 $ 40.42 $ 42.39
Capital gain............... 0
Other...................... 0 0 0 0.00 0
Cash Distributions to
Investors:
Source (on GAAP basis):
-- Investment income....... 47.90 77.73 0 45.13 53.49
-- Return of capital....... 36.45 7.04 0 21.60 27.71
Source (on cash basis):
-- Sales................... 0 0 0 0 0
-- Refinancing............. 0 0 0 0 0
-- Operations.............. 84.36 84.77 0 66.73 81.20
Amount (in percentage terms)
remaining invested in program
properties at the end of the
last year reported in the
Table (original total
acquisition cost of
properties retained divided
by original total acquisition
cost of all properties in
program)..................... 99.99% 92.90% N/A N/A N/A
<CAPTION>
CPA(R): 10
--------------------------------------------------------------------------
1993 1994 1995 1996
----------- ----------- ----------- ------------
<S> <C> <C> <C> <C>
Gross Revenues................ $16,128,694 $16,386,307 $16,131,750 $15,505,748
Profit on sale of
properties................... N/A 1,177,284(5) N/A 1,051,823(13)
Other......................... 1,478,086 1,529,736 1,595,406(9) 1,718,797(9)
Write-down of property........ (7,519,431)(8) (1,753,139)(12)
Extraordinary charge.......... N/A (253,902)
Less:
Operating expenses........... 2,511,268 2,894,710 2,887,021 3,030,780
Interest expense............. 8,082,223 8,151,222 8,310,440 7,911,209
Depreciation................. 1,944,589 1,945,769 1,967,631 2,007,557
Minority Interest............ 587,472 599,839 (1,881,218) 583,283
Net Income-GAAP Basis......... 4,481,228 5,247,885 (1,076,149) 2,990,400
Taxable Income (Loss):
-- from operations........... 2,697,330 2,618,952 3,778,032 3,529,835
-- from gain on sale......... 129,811
-- from other................ 0 823,905 0
-- from extraordinary
charge..................... 0 0 0 0
Cash generated from
operations................... 6,284,822 6,311,466 6,263,624 6,656,840
Cash generated from sales..... 0 0 5,122,501(10) 7,781,582(13)
Cash generated from
refinancing.................. 0 0 0 0
Cash generated from other..... 0 0 0 0
Cash generated from
operations, sales,
refinancing and other........ 6,284,822 6,311,466 11,386,125 14,438,422
Less: Cash distribution to
investors:
-- from operating cash
flow(4).................... 5,916,386 5,950,669 5,975,481 5,981,514
-- from sales and
refinancing................ 0 0 0 0
Cash generated (deficiency)
after cash distributions..... 368,436 360,797 5,410,644 8,456,908
Less: Special items........... 0 0 0 0
Cash generated (deficiency)
after cash distributions and
special items................ 368,436 360,797 5,410,644 8,456,908
Tax and Distribution Data Per
$1000 Invested
Federal Income Tax Results:
Ordinary income (loss)..... $ 37.37 $ 36.29 $ 52.35 $ 48.98
Capital gain............... 1.80
Other...................... 0 11.42 0 0
Cash Distributions to
Investors:
Source (on GAAP basis):
-- Investment income....... 62.09 72.71 (14.93) 41.50
-- Return of capital....... 19.88 9.74 97.81 41.50
Source (on cash basis):
-- Sales................... 0 0 0 0
-- Refinancing............. 0 0 0 0
-- Operations.............. 81.98 82.45 82.88 83.00
Amount (in percentage terms)
remaining invested in program
properties at the end of the
last year reported in the
Table (original total
acquisition cost of
properties retained divided
by original total acquisition
cost of all properties in
program)..................... 100% 93.93% 93.93% 82.27%
</TABLE>
A-19
<PAGE> 126
FOOTNOTES
(1) Results from the sale of a parcel of land which was a portion of the
property net leased to Furon Company.
(2) Represents loan prepayment charge resulting from refinancing of loan
secured by property located in Denton, Texas leased to K mart Corporation.
(3) To the extent "cash distribution to investors from operating cash flow"
exceeds "cash generated from operations" in any given year, such excess
represents the distribution of cash generated from partnership operations
in prior years that has not previously been distributed.
(4) Results from the refinancing of property leased to Detroit Diesel
Corporation.
(5) Results from sale of properties leased to Data Documents Inc. and the Pace
Membership Warehouse, Inc.
(6) Represents write-off of investment in Limited Partnership and income from
Equity investments.
(7) Represents cash distributions from Equity investments in excess of income.
(8) Represents write-down of the Stamford, Connecticut property.
(9) Results of Equity investments for 1993, 1994, 1995 and 1996.
(10) Results of sale of Data Documents property.
(11) Results from the sale of two properties leased to Furon Company.
(12) Represents write-down of the Harvest Foods, Inc. properties.
(13) Results from the sale of properties leased to Safeway Stores Incorporated,
Empire of America Realty Credit Corp. and Best Buy Co., Inc.
NOTES
(1) CPA(R):9 made quarterly distributions in the following amounts per $1,000
invested on the dates specified: January, 1997 -- $21.24 and April,
1997 -- $21.24.
(2) CPA(R):10 made quarterly distributions in the following amounts per $1,000
invested on the dates specified: January, 1997 -- $20.75 and April,
1997 -- $17.55.
A-20
<PAGE> 127
TABLE III (10 OF 11)
OPERATING RESULTS OF PRIOR PROGRAMS
Table III includes information showing the start-up and operational phase of
Prior Programs, the offerings of which have been closed since December 31, 1979.
This Table is designed to provide the investor with information on the financial
operations of such Prior Programs. The results shown in this Table are in all
cases for years ended December 31. THE INFORMATION PRESENTED IN THIS TABLE
SHOULD NOT BE CONSIDERED AS INDICATIVE OF THE POSSIBLE OPERATIONS OF THE
COMPANY. PURCHASERS OF THE SHARES OFFERED BY THIS PROSPECTUS WILL NOT HAVE ANY
OWNERSHIP IN THE CPA(R) PROGRAMS. MORTGAGE FINANCING FOR THE CPA(R) PROGRAMS MAY
HEREAFTER OCCUR WHICH WOULD MAKE AVAILABLE ADDITIONAL FUNDS FOR INVESTMENT BY
SUCH PROGRAMS. ANY ADDITIONAL INVESTMENTS COULD SIGNIFICANTLY ALTER CERTAIN OF
THE INFORMATION PRESENTED IN THIS TABLE.
<TABLE>
<CAPTION>
CIP(TM)
-----------------------------------------------------------------------------------
1991 1992 1993 1994 1995 1996
--------- ---------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Gross Revenues........................... $ 92,097 $5,306,275 $17,637,235 $25,958,329 $29,238,322 $32,546,638
Profit (loss) on sale of properties...... NA 1,535,763(2) 0 (7,630)(6)
Other.................................... 1,478,086 1,613,451 2,800,337(4) 3,633,869(4)(7)
Extraordinary charge..................... NA NA (401,269)(3) (275,000)(3)
Write-down of property................... (1,753,455)
Less:
Operating expenses..................... 207,640 1,638,870 3,456,274 4,490,683 5,654,751 6,022,323
Interest expense....................... 22,790 1,338,083 6,652,011 11,027,689 13,512,254 14,241,203
Depreciation........................... 9,799 312,609 1,018,886 1,514,114 2,493,366 2,968,173
Minority Interest...................... 0 459,583 748,841 766,582
Net Income (Loss)-GAAP Basis............. (148,132) 2,016,713 7,990,823 11,615,474 9,228,178 10,146,141
Taxable Income (Loss):
-- from operations..................... (148,132) 1,880,687 6,450,406 7,806,855 9,638,818 10,048,321
-- from other.......................... 0 0 0 656,796
-- from extraordinary charge........... 0 0 0 0
Cash generated from operations........... 73,399 2,913,159 0 12,086,809 13,008,549 15,346,178
Cash generated from sales................ 0 12,008,853 5,927,217(5) 2,044,260(6)
Cash generated from refinancing.......... 0 160,000 --
Cash generated from other................ 0 0 2,003,099(4) 835,243(7)
Cash generated from operations, sales,
refinancing and other.................. 73,399 0 10,717,806 24,255,662 20,938,865 18,225,681
Less: Cash distribution to investors:
-- from operating cash flow(1)......... 2,915,819 8,122,156 11,358,858 11,452,669 12,488,221
-- from sales and refinancing.......... 0 0 0 0
Cash generated (deficiency) after cash
distributions.......................... 73,399 (2,660) 2,595,650 12,896,804 9,486,196 5,737,460
Less: Special items...................... 0 0 0 0
Cash generated (deficiency) after cash
distributions and special items........ 73,399 (2,660) 2,595,650 12,896,804 9,486,196 5,737,460
Tax and Distribution Data Per $1000
Invested
Federal Income Tax Results:
Ordinary income (loss)................. $ (84.90) 29.24 $ 52.14 $ 55.10 $ 68.09 $ 63.43
Capital Gain........................... 4.15
Other.................................. 0 0 0 0
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income................... 31.35 64.59 80.17 65.19 64.05
-- Return of capital................... 13.98 1.06 0 15.71 14.79
Source (on cash basis):
-- Sales............................... 0 0 0 0
-- Refinancing......................... 0 0 0 0
-- Operations.......................... 45.33 65.65 80.17 80.90 78.84
Amount (in percentage terms) remaining
invested in program properties at the
end of the last year reported in the
Table (original total acquisition cost
of properties retained divided by
original total acquisition cost of all
properties in program)................. N/A N/A N/A N/A N/A N/A
</TABLE>
A-21
<PAGE> 128
FOOTNOTES
(1) To the extent "cash distribution to investors from operating cash flow"
exceeds "cash generated from operations" in any given year, such excess
represents the distribution of cash generated from partnership operations in
prior years that has not previously been distributed.
(2) Results from sale of property leased to Data Documents, Inc.
(3) Result of refinancing mortgage loans on property leased to TBWA Chait/Day.
(4) Results of Equity Investments for 1993, 1994, 1995 and 1996 income (loss)
and cash distributed.
(5) Results of Sale of Data Documents property.
(6) Loss on sale of properties based to Safeway Stores, Incorporated.
(7) Gain on sale of 22,500 Garden Ridge Corporation common stock warrants.
NOTES
(1) CIP(TM) made quarterly distributions in the following amounts per $1,000
invested on the dates specified: January, 1996 -- $20.52; and April, 1997 --
$20.54.
A-22
<PAGE> 129
TABLE III (11 OF 11)
OPERATING RESULTS OF PRIOR PROGRAMS
<TABLE>
<CAPTION>
CPA12
------------------------------------------------------------
1993 1994 1995 1996
--------- --------- ---------- -----------
<S> <C> <C> <C> <C>
Gross Revenues................................................... $ 2,558 $ 465,327 $3,993,647 $11,433,627
Profit on sale of properties..................................... --
Extraordinary charges on extinguishment of debt.................. --
Other............................................................ 554,571 1,322,990(1) 2,042,400(1)
Write-down of property........................................... --
Less:
Operating expenses............................................. 5,211 900,393 1,551,098 2,792,846
Interest expense............................................... 147,256 1,260,189 3,525,774
Depreciation................................................... 390,307 947,206
Net Income-GAAP Basis............................................ (2,653) (27,751) 2,115,043 6,210,201
Taxable Income (Loss):
-- from operations............................................. (2,653) 390,164 2,375,613 5,670,787
-- from gain on sale........................................... --
-- from extraordinary charge................................... --
Cash generated from operations(3)................................ 2,807 591,308 3,661,087 7,747,104
Cash generated from sales........................................ 1,375,000(1) --
Cash generated from refinancing..................................
Cash generated from other........................................
Cash generated from operations, sales, refinancing and other..... 2,807 591,308 5,036,087 7,747,104
Less: Cash distribution to investors:
-- from operating cash flow(4)................................. 2,350,687 6,779,669
-- from sales and refinancing.................................. --
-- other....................................................... --
Cash generated (deficiency) after cash distributions............. 2,807 591,308 2,685,400 967,435
Less: Special items.............................................. --
Cash generated (deficiency) after cash distributions and special
items.......................................................... 2,807 591,308 2,685,400 967,435
Tax and Distribution Data Per $1000 Invested
Federal Income Tax Results:
Ordinary income.............................................. (.13) 14.36 59.14 54.71
Capital gain.................................................
Cash Distributions to Investors:
Source (on GAAP basis):
-- Investment income......................................... $52.66 $59.91
-- Return of capital......................................... 5.87 5.49
Source (on cash basis):
-- Sales.....................................................
-- Refinancing...............................................
-- Other.....................................................
-- Operations................................................ 58.53 65.40
Amount (in percentage terms) remaining invested in program
properties at the end of the last year reported in the Table
(original total acquisition cost of properties retained divided
by original total acquisition cost of all properties in
program)....................................................... N/A N/A N/A N/A
</TABLE>
FOOTNOTE
(1) Results of Equity Investments income (loss) and cash distributed.
NOTE
(1) CPA(R) made quarterly distributions in the following amounts per $1,000
invested on the dates specified: January, 1997 -- $20.15 and April,
1997 -- $20.17.
A-23
<PAGE> 130
TABLE V
SALES OR DISPOSITIONS OF PROPERTIES AS OF DECEMBER 31, 1996
Table V provides information on the sales and dispositions of property held
by Prior Programs since January 1, 1993. THE INFORMATION IN THIS TABLE SHOULD
NOT BE CONSIDERED AS INDICATIVE OF THE POSSIBLE PERFORMANCE OF THE COMPANY.
PURCHASERS OF THE SHARES OFFERED BY THIS PROSPECTUS WILL NOT HAVE ANY OWNERSHIP
IN THE CPA(R). PARTNERSHIPS.
<TABLE>
<CAPTION>
SELLING PRICE NET OF CLOSING COSTS
AND GAAP ADJUSTMENTS
-------------------------------------
PURCHASE
CASH MONEY
RECEIVED MORTGAGE MORTGAGE
NET OF BALANCE TAKEN
DATE DATE OF CLOSING AT TIME BACK BY
PROPERTY ACQUIRED SALE COSTS OF SALE PROGRAM
- ----------------------------------------------------------------- -------- -------- ------------ ----------- --------
<S> <C> <C> <C> <C> <C>
Heekin Can Inc.(2)............................................... 11/30/82 4/27/93 $ 16,969,719 $11,927,709 0
Swiss M-Tex, L.P.(3)............................................. 8/26/87 8/13/93 166,600 0 0
Phoenix, Arizona(4).............................................. 1/29/88 12/2/93 881,290 0 0
G.D. Searle and Co.(5)........................................... 5/15/80 1/4/94 124,615 0 0
Plant City, Florida(6)........................................... 3/31/89 4/15/94 1,200,000 0 0
Jefferson, Georgia(7)............................................ 3/31/89 8/5/94 844,778 0 0
Mid Continental Bottlers, Inc.(8)................................ 12/31/86 10/14/94 13,904,680 3,895,320 0
Pace Membership Warehouse, Inc.(9)............................... 8/12/86 11/10/94 3,639,563 3,290,437 0
Pace Membership Warehouse, Inc.(10).............................. 12/23/92 11/10/94 3,466,100 3,500,000 0
Data Documents, Inc.(11)......................................... 3/18/93 11/28/94 7,710,740 7,721,000 0
Industrial General Corporation(12)............................... 8/30/85 12/30/94 4,062 645,938 0
Industrial General Corporation(16)............................... 8/30/85 9/14/95 466,961 2,920,401 0
Liberty Fabrics of New York(17).................................. 1/3/84 12/3/95 5,509,000 3,850,000 0
Genesco, Inc.(18)................................................ 6/2/83 6/30/95 9,477,492 5,722,508 0
Jupiter, Florida(19)............................................. 12/11/86 12/20/95 1,546,020 2,602,883 0
Leslie Fay Company(20)........................................... 4/30/82 1/10/96 14,053,816 0 0
Helena, Montana(21).............................................. 5/1/85 1/19/96 1,741,261 2,866,324 0
Autozone, Inc.(22)............................................... 5/2/86 1/26/96 0 627,106 0
Safeway Stores, Inc.(23)......................................... 12/19/91 1/26/96 4,649,270 0 0
& 2/15/96
Autozone, Inc.(24)............................................... 8/24/87 2/12/96 431,779 0 0
Monte Vista, Colorado(25)........................................ 1/29/88 2/14/96 186,090 0 0
Empire of America Credit Corp.(26)............................... 6/28/91 3/15/96 3,583,013 4,442,872 0
GATX Logistics, Inc.(27)......................................... 6/7/86 4/9/96 9,428,270 3,208,526 0
Best Buy Co. Inc.(28)............................................ 10/16/92 5/16/96 1,593,559 1,509,371 0
Furon Company(29)................................................ 1/29/90 9/9/96 478,626 892,180 0
Rapid City, South Dakota(30) 4/24/85 10/1/96 (290,728) 4,505,000 0
Kobacker Stores, Inc.(31)........................................ 1/17/79 10/17/96 216,451 139,507 0
------------ -----------
$101,983,027 $64,267,082 0
============ ===========
<CAPTION>
COST OF PROPERTIES
SELLING PRICE INCLUDING CLOSING
NET OF CLOSING COSTS AND SOFT COSTS(15)
AND GAAP ADJUSTMENTS -------------------------
-------------------------
ADJUSTMENTS
RESULTING TOTAL
FROM PROCEEDS ORIGINAL ORIGINAL
APPLICATION RECEIVED EQUITY MORTGAGE
PROPERTY OF GAAP FROM SALE INVESTMENT FINANCING
- ----------------------------------------------------------------- ----------- ------------ ----------- -----------
<S> <C> <C> <C> <C>
Heekin Can Inc.(2)............................................... None $ 28,897,428 $ 0 $21,000,000
Swiss M-Tex, L.P.(3)............................................. None 166,600 10,114 0
Phoenix, Arizona(4).............................................. None 881,290 768,377 960,826
G.D. Searle and Co.(5)........................................... None 124,615 218,038 0
Plant City, Florida(6)........................................... None 1,200,000 934,075 1,370,064
Jefferson, Georgia(7)............................................ None 844,778 893,466 1,310,496
Mid Continental Bottlers, Inc.(8)................................ None 17,800,000 4,945,126 5,040,000
Pace Membership Warehouse, Inc.(9)............................... None 6,930,000 2,433,500 3,400,000
Pace Membership Warehouse, Inc.(10).............................. None 6,966,100 3,149,314 3,500,000
Data Documents, Inc.(11)......................................... None 15,431,740 5,455,634 8,000,000
Industrial General Corporation(12)............................... None 650,000 759,902 777,352
Industrial General Corporation(16)............................... None 3,387,362 3,055,324 3,124,940
Liberty Fabrics of New York(17).................................. None 9,359,000 2,500,000 4,500,000
Genesco, Inc.(18)................................................ None 15,200,000 5,102,128 6,600,000
Jupiter, Florida(19)............................................. None 4,148,903 2,766,322 4,000,000
Leslie Fay Company(20)........................................... None 14,053,816 4,000,000 5,400,000
Helena, Montana(21).............................................. None 4,607,585 4,012,908 2,937,500
Autozone, Inc.(22)............................................... None 627,106 242,508 280,136
Safeway Stores, Inc.(23)......................................... None 4,649,270 5,541,790 0
Autozone, Inc.(24)............................................... None 431,779 357,050 0
Monte Vista, Colorado(25)........................................ None 186,090 259,422 358,869
Empire of America Credit Corp.(26)............................... None 8,025,885 2,830,000 4,500,000
GATX Logistics, Inc.(27)......................................... None 12,636,796 8,780,378 3,500,000
Best Buy Co. Inc.(28)............................................ None 3,102,930 835,000 1,600,000
Furon Company(29)................................................ None 1,370,806 618,777 932,240
Rapid City, South Dakota(30) None 4,214,272 3,100,000 6,800,000
Kobacker Stores, Inc.(31)........................................ None 355,958 166,882 211,949
------------ ----------- -----------
-- $166,250,109 $63,736,035 $90,104,372
============ =========== ===========
<CAPTION>
COST OF PROPERTIES
INCLUDING CLOSING AND
SOFT COSTS(15)
---------------------
TOTAL
ACQUISITION EXCESS
COST, (DEFICIENCY)
CAPITAL OF OPERATING
IMPROVEMENT, RECEIPTS OVER
CLOSING AND CASH
PROPERTY SOFT COSTS EXPENDITURES(13)
- ----------------------------------------------------------------- ------------ ----------------
<S> <C> <C>
Heekin Can Inc.(2)............................................... $21,000,000 $ 13,385,278
Swiss M-Tex, L.P.(3)............................................. 10,114 --(14)
Phoenix, Arizona(4).............................................. 1,729,203 59,750
G.D. Searle and Co.(5)........................................... 218,038 249,998
Plant City, Florida(6)........................................... 2,304,139 964,989
Jefferson, Georgia(7)............................................ 2,203,962 855,611
Mid Continental Bottlers, Inc.(8)................................ 9,985,126 10,004,008
Pace Membership Warehouse, Inc.(9)............................... 5,833,500 2,485,104
Pace Membership Warehouse, Inc.(10).............................. 6,649,314 439,632
Data Documents, Inc.(11)......................................... 13,455,634 941,446
Industrial General Corporation(12)............................... 1,537,254 1,143,549
Industrial General Corporation(16)............................... 6,180,264 4,596,363
Liberty Fabrics of New York(17).................................. 7,000,000 6,139,226
Genesco, Inc.(18)................................................ 11,702,128 12,865,450
Jupiter, Florida(19)............................................. 7,855,572 1,207,991
Leslie Fay Company(20)........................................... 9,400,000 17,810,804
Helena, Montana(21).............................................. 6,950,408 4,923,483
Autozone, Inc.(22)............................................... 522,644 254,234
Safeway Stores, Inc.(23)......................................... 5,541,790 1,852,277
Autozone, Inc.(24)............................................... 357,050 303,583
Monte Vista, Colorado(25)........................................ 618,291 96,429
Empire of America Credit Corp.(26)............................... 7,463,792 1,571,108
GATX Logistics, Inc.(27)......................................... 12,280,378 16,661,862
Best Buy Co. Inc.(28)............................................ 2,538,839 520,071
Furon Company(29)................................................ 1,551,017 416,119
Rapid City, South Dakota(30) 10,515,701 3,470,494
Kobacker Stores, Inc.(31)........................................ 378,831 209,139
------------ ------------
$155,782,989 $103,427,998
============ ============
</TABLE>
FOOTNOTES
(1) Not used.
(2) On November 30, 1982, CPA(R):2 purchased three improved properties and net
leased them to Heekin Can, Inc., ("Heekin"). On April 27, 1993, the
properties were sold back to Heekin pursuant to a purchase option granted
to Heekin at the time of purchase. The properties were sold for
$29,377,679, representing a gain of $8,377,679 over the $21,000,000 cost
basis.
(3) On August 26, 1987, CPA(R):7 purchased 40.2 acres and net leased the land
to Emb-Tex Corporation and subsequently leased the land to Swiss M-Tex,
L.P. On August 13, 1993, an approximately .86 acre parcel of land was sold
for $166,600 net of closing costs representing a gain of $156,486 over the
$10,114 cost basis.
(4) On January 29, 1988, CPA(R):7 purchased 10 improved properties and net
leased them to Yellow Front Stores, Inc. On December 23, 1993, the Phoenix,
Arizona property was sold for $881,290, net of closing costs representing a
loss of $847,913 over the $1,729,203 cost basis of the property.
(5) On May 15, 1980, CPA(R):2 purchased an improved property and net leased it
to G.D. Searle and Co. On January 4, 1994 the property was sold for
$124,615, net of closing costs representing a loss of $93,423 over the
$218,038 cost basis of the property.
(6) On March 31, 1989 CPA(R):7 and CPA(R):8 purchased six improved properties
and net leased them to NV Ryan L.P. with 37.037% and 62.963%, respectively.
On April 15, 1994 the Plant City, Florida property was sold for $1,200,000
representing a loss of $1,104,139 over the $2,304,139 cost basis of the
property.
(7) On August 5, 1994 the Jefferson, Georgia property which was formerly leased
to NV Ryan L.P. by CPA(R):7 and CPA(R):8 was sold for $844,778, net of
closing costs representing a loss of $1,359,184 over the $2,203,962 cost
basis of the property.
(8) On December 31, 1986, CPA(R):7 purchased eight improved properties and net
leased them to Mid-Continent Bottlers, Inc. and subsequently transferred
the interest in one property to another tenant. On October 14, 1994, the
remaining seven properties were sold for $17,800,000 representing a gain of
$7,814,874 over the $9,985,126 cost basis of the property.
(9) On August 12, 1986, CPA(R):5 purchased an improved property which was
subsequently leased to Pace Membership Warehouse, Inc. On November 10,
1994, the property was sold for $6,930,000 net of closing costs
representing a gain of $1,096,500 over the $5,833,500 cost basis of the
property.
(10) On December 23, 1992, CPA(R)10 purchased an improved property and net
leased it to Pace Membership Warehouse, Inc. On November 10, 1994, the
property was sold for $6,966,100 net of closing costs, representing a gain
of $316,786 over the $6,649,314 cost basis of the property.
(11) On March 18, 1993 CPA(R):10 and CIP(]) purchased five improved properties
and net leased them to Data Documents, Inc. with 22.22% and 77.78%
interests, respectively. On November 28, 1994, the properties were sold for
$15,431,740 net of closing costs representing a gain of $1,976,706 over the
$13,455,034 cost basis of the property.
(12) On August 30, 1985, CPA(R):5 purchased seven improved properties and net
leased them to Industrial General Corporation. On December 30, 1994, the
Forrest City, Arkansas property was sold for $650,000 net of closing costs,
representing a loss of $887,254 over the $1,537,254 cost basis of the
property.
(13) Operating receipts include rental income from the properties as well as
certain receipts from the settlement of bankruptcy claims, where
applicable. The net excess (deficiency) presented is for the entire period
the property was owned by the applicable Partnership. No amounts are
presented for partial land sales since such amounts are negligible.
(14) The property sold represented only a portion of the property owned by the
partnership and no receipts or expenses have been separately allocated.
(15) The term "soft costs" refers to miscellaneous closing costs such as
accounting fees, legal fees, title insurance costs and survey costs.
A-24
<PAGE> 131
(16) On August 30, 1985, CPA(R):5 purchased seven properties and net leased them
to Industrial General Corporation. On September 14, 1995, the Bald Knob,
Belville and Newbury port properties were sold for $3,387,362 net of
closing cost, representing a loss of $2,792,902 over the $6,180,264 cost
basis of the property.
(17) On January 3, 1984, CPA(R):5 purchased properties in Gardensville, Virginia
and in North Bergen, New Jersey and leased them to Liberty Fabrics. On
December 31, 1995, CPA recognized a gain on sale of $2,359,000 in
connection with the sale.
(18) On June 2, 1983 CPA(R):4 purchased a property in Allentown, Pennsylvania
and leased it to Genesco, Inc. On June 30, 1995 the property was sold for
$15,200,000 net of closing costs representing a gain of $3,497,872 over the
$11,702,128 costs basis of the property.
(19) On December 11, 1986 CPA(R):7 purchased a food service facility. On
December 20, 1995 the facility and operations were sold for $4,148,903
representing a loss of $3,706,669 over the $7,855,572 cost basis of the
property.
(20) On April 30, 1993, CPA(R):3 purchased a warehouse property in Wilkes-Barre,
Pennsylvania and leased it to the Leslie Fay Company. On January 10, 1996
CPA(R):3 sold the property recognizing a gain of $4,653,816 over the cost
basis of the property. Cash received net of closing cost of $14,303,816,
included two lump sum payments of $7,200,000 and $5,000,000 from Leslie Fay
in connection with settlement agreement regarding a purchase option which
did not ultimately result in the sale of the property to Leslie Fay. A
third purchased the property for $1,853,816, net of selling costs.
(21) On May 1, 1985, CPA(R):5 purchased an office building in Helena, Montana
and was assigned an existing net lease with IBM Corporation which
subsequently reduced its occupancy from 100% to 40% leasable space.
CPA(R):5 subsequently leased the remaining space to various other tenants.
On January 19, 1996 CPA(R):5 recognized a loss of $2,342,023 over cost
basis of the property.
(22) On May 2, 1986 CPA(R):6 purchased property in Dalton, Georgia and
Birmingham, Alabama and leased them to Autozone, Inc. On January 26, 1996
and April 26, 1996 the properties were sold for $627,106 net of selling
cost. CPA(R):6 recognized gains on sales over the cost basis of the
properties of $104,462 in connection with sales.
(23) On December 19, 1991, CPA(R):10 and CIP purchased three supermarkets
subject to existing net leases with Safeway Stores, Inc. as
tenants-in-common, each with 50% ownership interests. On January 26, 1996
and February 15, 1996 CPA(R):10 and CIP sold the Glendale, Arizona and
Escondido, California properties, respectively. CPA(R):10 and CIP
recognized a net loss on both sales of $892,250 over the cost basis of the
properties.
(24) On August 28, 1987, CPA(R):7 purchased seven improved properties and net
leased them to Autozone, Inc. On February 12, 1996 the Denham Spring,
Louisiana property and was sold for $431,779 representing a gain of $74,729
over the $357,050 cost basis of the property.
(25) On January 29, 1988 CPA(R):7 purchased 10 improved properties and net
leased them to Yellow Front Stores, Inc. The Yellow Front lease was
ultimately terminated and the property was released. On February 14, 1996
the Monte Vista, Colorado property was sold for $186,090, net of closings
costs representing a loss of $432,201 over the $618,291 cost basis of the
property.
(26) On June 28, 1991, CPA(R):10 purchased an office building occupied by Empire
of America Realty Credit Corp. ("Empire") for $7,330,000 of which
$4,500,000 was financed by a mortgage loan. On March 15, 1996, CPA(R):10
accepted Empire's purchase offer of $8,500,000 and recognized a net gain on
sale of $562,093 over the original cost of the property.
(27) On June 7, 1985, CPA(R):5 purchased a warehouse property in Hodgkins,
Illinois which was net leased to General Motors Corporation. In November
1993, the General Motors Corporation lease terminated and CPA(R):5 entered
into a new lease with GATX Logistics, Inc. On April 4, 1996, CPA(R):5
recognized a gain on sale of $356,418 over the cost basis of the property.
(28) On October 16, 1992, CPA(R):10 purchased land and a retail store for
$2,435,000 subject to an existing net lease with Sports Town, Inc. Best Buy
Co., Inc. subsequently assumed the lease. CPA(R):10 obtained a $1,600,000
mortgage loan for this property in September 1993. On May 16, 1996,
CPA(R):10 sold the retail store for $3,250,000 and recognized a gain of
$564,091 over the original cost basis of the property.
(29) On January 29, 1990 CPA(R):8 and CPA(R):9 purchased nine properties as
tenants-in-common and leased them to the Furon Company. On September 9,
1996, two properties were sold in Liverpool, Pennsylvania and the other in
Twinsburg, Ohio, CPA 8 and 9 recognized a loss of $189,211 over the cost
basis of the two properties.
(30) On April 24, 1985, CPA(R):5 purchased a hotel in Rapid City, South Dakota
which it operated as a Holiday Inn. On October 1, 1996, the hotel property
and its operations were sold for $4,105,000. CPA(R):5 recognized a loss of
$6,301,429 over the cost basis of the property. The mortgage balance at the
time of sale of $6,800,000 is presented net of sinking fund reserves of
$2,295,000 which were applied as principal payments at the time of sale.
The net cash received on sale was $290,728 less than the amount necessary
to pay the remaining mortgage principal balance.
(31) On January 17, 1979, CPA(R):1 purchased fifteen properties located in
California, Ohio and Indiana and net leased these properties to Kobacker
Stores, Inc. On October 17, 1996, Kobacker exercised options under the
terms of its leases for properties in Eastlake and Cleveland, Ohio to
purchase such properties for stated purchase prices of $165,000 and
$200,000, respectively, resulting in a loss of $22,873 over the cost basis
of the properties.
A-25
<PAGE> 132
EXHIBIT B
INSTRUCTIONS FOR COMPLETION
OF CPAR:14 ORDER FORM
INSTRUCTIONS TO INVESTORS
YOU MUST COMPLETE ITEMS 1-6 (AND, IF YOU ARE A RESIDENT OF MAINE,
MASSACHUSETTS, MICHIGAN, MINNESOTA, MISSOURI, NEBRASKA OR NORTH CAROLINA
OR IF REQUESTED BY YOUR BROKER, ITEM 7). INVESTORS ARE ENCOURAGED TO READ
THE PROSPECTUS IN ITS ENTIRETY FOR A COMPLETE EXPLANATION OF AN INVESTMENT
IN THE COMPANY.
Item 1 Check the appropriate box to indicate form of ownership. If the
investor is a Custodian, Corporation, Partnership or Trust, please provide the
additional requested information and/or documents.
Item 2 Indicate the number of Shares you are purchasing (250 Shares is the
minimum for investors other than IRAs and KEOGHS; 200 Shares is the minimum for
investors who are IRAs or KEOGHS (250 shares if you are resident of Iowa or
Minnesota)) and the dollar amount of your investment. Check the appropriate box
to indicate whether this is an initial or additional investment and whether the
order is to be combined with that of another investor for the purpose of
obtaining a volume discount available to "single purchasers."
Item 3 Please print name(s) in which Shares are to be registered and
provide address and telephone numbers. Check appropriate box if you are a
non-resident alien, a U.S. citizen residing outside U.S. or subject to back up
withholding (if the latter applies to you, cross out clause (ii) in the
paragraph appearing immediately above Item 1). IRAs and KEOGHs should provide
the taxpayer identification number of the account AND the social security number
of the accountholder. Trusts should provide their taxpayer identification
number. Custodians should provide the minor's social security number. All
individuals investors should provide their social security number. Other
entities should provide their taxpayer identification number. If you have an
account with the broker/dealer named on the reverse side of the form, provide
your account number.
Item 4 Provide alternate mailing address if so desired for dividend
checks.
Item 5 Provide mailing address of beneficiary of a Trust, IRA or KEOGH if
so desired so that duplicate copies of shareholder reports can be sent to such
beneficiary.
Item 6 Print the two-letter abbreviation of your state of residence (if an
IRA or KEOGH, state of residence of beneficiary).
Item 7 If you are a resident of Maine, Massachusetts, Michigan, Minnesota,
Missouri, Nebraska or North Carolina (or if required by broker) you MUST sign
the form in Item 7. Signature(s) must be witnessed and the date of signing must
be inserted on the line provided.
AFTER FOLLOWING THE ABOVE INSTRUCTIONS, DETACH THE ORDER FORM ALONG THE
PERFORATION AND RETURN THE ORDER FORM TO THE BROKER WHO SOLICITED YOUR ORDER
TOGETHER WITH A CHECK MADE PAYABLE TO "THE U.S. TRUST COMPANY OF NEW YORK AS
ESCROW AGENT" (OR, INSTEAD OF A CHECK, A REQUEST TO THE BROKER IN THE AMOUNT OF
YOUR ORDER). TRUSTS should furnish a copy of the trust instrument and all
amendments thereto. CORPORATIONS should furnish an appropriate corporation
resolution authorizing the purchase of the Shares. PARTNERSHIPS should furnish a
copy of the partnership agreement.
<PAGE> 133
INSTRUCTIONS TO BROKERS
Please be sure verify all investor information provided on the Order Form.
YOU MUST COMPLETE ITEM 8 AND SIGN THE ORDER FORM IN ORDER FOR THE ORDER TO BE
ACCEPTED. Please verify that investors who are residents of Maine,
Massachusetts, Michigan, Missouri, Nebraska or North Carolina have signed Item
7.
Please send check(s) payable to "The U.S. Trust Company of New York, as
Escrow Agent" and completed Order Form(s) to The U.S. Trust Company of New York,
114 West 47th Street, New York, New York 10036-1532, Attention: Pat Stermer. For
wiring instructions, contact The U.S. Trust Company of New York at 212-852-1665
prior to wiring funds.
<PAGE> 134
CORPORATE PROPERTY ASSOCIATES 14
INCORPORATED
ORDER FORM
The investor named below, under penalties of perjury, certifies that (i)
the number shown under Item 3 on this Order Form is his correct Taxpayer
Identification Number (or he is waiting for a number to be issued to him) and
(ii) he is not subject to backup withholding either because he has not been
notified by the Internal Revenue Service ("IRS") that he is subject to backup
withholding as a result of a failure to report all interest or dividends, or the
IRS has notified him that he is no longer subject to backup withholding [NOTE:
CLAUSE (ii) IN THIS CERTIFICATION SHOULD BE CROSSED OUT IF THE APPROPRIATE BOX
IN ITEM 3 BELOW HAS BEEN CHECKED].
1. FORM OF OWNERSHIP MARK ONLY ONE BOX.
SINGLE PERSON
HUSBAND AND WIFE AS COMMUNITY PROPERTY
(if signature is required in Item 7, both signatures must appear)
JOINT TENANTS WITH RIGHT OF SURVIVORSHIP
(if signature is required in Item 7, both signatures must appear)
TENANTS IN COMMON
A MARRIED PERSON SEPARATE PROPERTY (if signature is required in Item 7,
only one signature must appear)
CUSTODIAN
Custodian for
Under Uniform Gift to Minors Act of the State of
CORPORATION OR PARTNERSHIP
(Corporate Resolution or Partnership Agreement MUST be
enclosed)
IRA
KEOGH
PENSION OR PROFIT SHARING PLAN
TRUST (Trust Agreement MUST be enclosed)
ALL SECTIONS MUST BE FILLED IN
Trustee name(s)
Trust date
Month Day Year
For the benefit of
OTHER
ESTATE
CHARITABLE REMAINDER TRUST
NON-PROFIT ORGANIZATION
<PAGE> 135
2. PURCHASE INFORMATION
No. of Shares--Minimum 250 (or Dollar Amount
200 for an IRA or KEOGH) of $
Investment
($10 per Share)
This is an (check one): Initial Investment Additional Investment in this
offering
Check box if the Shares ordered are to be combined with an order of
another investor for the purpose of obtaining volume discounts to "single
purchasers." Name of other investor(s)
3. INVESTOR INFORMATION Name(s) and address will be recorded exactly as printed
below.
Name
Name
of Joint
Investor
Address
City State Zip Code
Investor Business Phone Number Check box if you are a non-resident alien
Check box if you are a U.S. citizen
residing outside the U.S.
Check box if you are subject to backup
withholding
Investor Home Phone Number
Investor's Social Security No. Joint Investor's
Social Security No. Taxpayer
ID. No.
Investor's Account Number with Broker Dealer
(if any)
(REVERSE SIDE MUST BE SIGNED BY
BROKER AND, IN SOME STATES, BY INVESTOR)
<PAGE> 136
4. CHECK ADDRESS If you would like your dividend check mailed to an address
other than the address shown in Item 3, please complete:
Company
Address
City State Zip Code
Account number (if any) Account name
5. INVESTOR MAILING ADDRESS If you are investing through a Trust, IRA or KEOGH
and want duplicate copies of shareholder reports sent to you, please complete:
Address
City State Zip Code
Account number (if any) Account name
6. STATE OF RESIDENCE (Residents of MAINE, MASSACHUSETTS, MICHIGAN, MINNESOTA,
MISSOURI, NEBRASKA OR NORTH CAROLINA MUST sign this Order Form in Item 7 below.)
7. SIGNATURE OF INVESTOR(S)
Signature of investor is required if investor is a resident of MAINE,
MASSACHUSETTS, MICHIGAN, MISSOURI, MINNESOTA, NEBRASKA OR NORTH CAROLINA or if
requested by Broker.
SIGNATURE OF WITNESS SIGNATURE OF INVESTOR DATE
SIGNATURE OF WITNESS SIGNATURE OF INVESTOR DATE
8. BROKER/DEALER INFORMATION THE BROKER MUST SIGN BELOW TO COMPLETE ORDER.
BROKER HEREBY WARRANTS THAT IT IS A DULY LICENSED
BROKER AND MAY LAWFULLY SELL SHARES IN THE STATE
DESIGNATED AS THE INVESTOR'S RESIDENCE.
Licensed Firm Name
Broker Name
Broker Mailing Address
City State Zip Code
Broker Number Telephone Number
<PAGE> 137
The undersigned confirms by his or her signature that he or she (i) has
reasonable grounds to believe that the information and representations
concerning the investor identified herein are true, correct and complete in all
respects; (ii) has discussed such investor's prospective purchase of Shares with
such investor; (iii) has advised such investor of all pertinent facts with
regard to the liquidity and marketability of the Shares; (iv) has delivered a
current Prospectus and related supplements, if any, to such investor; and (v)
has reasonable grounds to believe that the purchase of Shares is a suitable
investment for such investor, that such investor meets the suitability standards
applicable to such investor set forth in the Prospectus and related supplements,
if any, and that such investor is in a financial position to enable such
investor to realize the benefits of such an investment and to suffer any loss
that may occur with respect thereto.
Broker Signature Date
ALL INVESTOR AND BROKER/DEALER INFORMATION MUST BE COMPLETED OR
REGISTRATION CANNOT BE PROCESSED.
FOR COMPANY USE ONLY:
<PAGE> 138
INSTRUCTIONS FOR COMPLETION
OF CPA(R):14 ORDER FORM
FOR AMERICAN EXPRESS FINANCIAL ADVISORS, INC. SUBSCRIBERS ONLY
INSTRUCTIONS TO INVESTORS
AFTER CAREFULLY READING THE ENTIRE PROSPECTUS, YOU MUST COMPLETE ALL ITEMS
ON THE ORDER FORM
Item 1 Check the appropriate box to indicate form of ownership. If the
investor is a Custodian, Corporation, Partnership or Trust, please provide the
additional requested information and/or documents.
Item 2 Indicate the number of Shares you are purchasing (250 Shares is the
minimum for investors other than IRAs and KEOGHS (200 Shares is the minimum for
investors who are IRAs or KEOGHS (250 shares if you are a resident of Iowa or
Minnesota)) and the dollar amount of your investment. Check the appropriate box
to indicate whether this is an initial or additional investment and whether the
order is to be combined with that of another investor for the purpose of
obtaining a volume discount available to "single purchasers."
Item 3 Please print name(s) in which Shares are to be registered and
provide address and telephone numbers. Check appropriate box if you are a
non-resident alien, a U.S. citizen residing outside U.S. or subject to back up
withholding (if the latter applies to you, cross out clause (ii) in the
paragraph appearing immediately above Item 1). IRAs and KEOGHs should provide
the taxpayer identification number of the account AND the social security number
of the accountholder. Trusts should provide their taxpayer identification
number. Custodians should provide the minor's social security number. All
individual investors should provide their social security number. Other entities
should provide their taxpayer identification number. If you have an account with
the broker/dealer named on the reverse side of the form, provide your account
number.
Item 4 Provide alternate mailing address if so desired for dividend
checks.
Item 5 Provide mailing address of beneficiary of a Trust, IRA or KEOGH if
so desired so that duplicate copies of shareholder reports can be sent to such
beneficiary.
Item 6 Print the two-letter abbreviation of your state of residence (if an
IRA or KEOGH, state of residence of beneficiary).
AFTER FOLLOWING THE ABOVE INSTRUCTIONS, DETACH THE ORDER FORM ALONG THE
PERFORATION AND RETURN THE ORDER FORM TO THE PLANNER WHO SOLICITED YOUR ORDER
TOGETHER WITH A CHECK MADE PAYABLE TO IDS FINANCIAL SERVICES INC. (OR, INSTEAD
OF A CHECK, A REQUEST TO THE PLANNER TO DEBIT YOUR ACCOUNT WITH THE PLANNER IN
THE AMOUNT OF YOUR ORDER). TRUSTS should furnish a copy of the trust instrument
and all amendments thereto. CORPORATIONS should furnish an appropriate
corporation resolution authorizing the purchase of the Shares. PARTNERSHIPS
should furnish a copy of the partnership agreement.
<PAGE> 139
INSTRUCTIONS TO PLANNERS
Please be sure verify all investor information provided on the Order Form.
YOU MUST COMPLETE ITEM 8 AND SIGN THE ORDER FORM IN ORDER FOR THE ORDER TO BE
ACCEPTED.
Please send check(s) payable to American Express Financial Advisors Inc.,
completed Order Form(s) and American Express Investment Application to the
American Express home office, Geographic Service Team.
<TABLE>
<S> <C>
(Regular Mail) (Overnight Mail)
American Express Financial Advisors Inc. American Express Financial Advisors Inc.
Geographic Service Team Geographic Service Team
P.O. Box 534 733 Marquette Ave.
Minneapolis, MN 55440 Minneapolis, MN 55402
</TABLE>
<PAGE> 140
CORPORATE PROPERTY ASSOCIATES 14
INCORPORATED
ORDER FORM
FOR AMERICAN EXPRESS FINANCIAL ADVISORS, INC, SUBSCRIBERS ONLY
The investor named below, under penalties of perjury, certifies that (i)
the number shown under Item 3 on this Order Form is his correct Taxpayer
Identification Number (or he is waiting for a number to be issued to him) and
(ii) he is not subject to backup withholding either because he has not been
notified by the Internal Revenue Service ("IRS") that he is subject to backup
withholding as a result of a failure to report all interest or dividends, or the
IRS has notified him that he is no longer subject to backup withholding [NOTE:
CLAUSE (ii) IN THIS CERTIFICATION SHOULD BE CROSSED OUT IF THE APPROPRIATE BOX
IN ITEM 3 BELOW HAS BEEN CHECKED].
1. FORM OF OWNERSHIP MARK only one box.
SINGLE PERSON
HUSBAND AND WIFE AS COMMUNITY PROPERTY
(if signature is required in Item 7, both signatures must appear)
JOINT TENANTS WITH RIGHT OF SURVIVORSHIP
(if signature is required in Item 7, both signatures must appear)
TENANTS IN COMMON
A MARRIED PERSON SEPARATE PROPERTY (if signature is required in Item 7,
only one signature must appear)
CUSTODIAN
Custodian for
Under Uniform Gift to Minors Act of the State of
CORPORATION OR PARTNERSHIP
(Corporate Resolution or Partnership Agreement MUST be
enclosed)
IRA
KEOGH
PENSION OR PROFIT SHARING PLAN
TRUST (Trust Agreement MUST be enclosed)
ALL SECTIONS MUST BE FILLED IN
Trustee name(s)
Trust date
Month Day Year
For the benefit of
OTHER
ESTATE
CHARITABLE REMAINDER TRUST
NON-PROFIT ORGANIZATION
<PAGE> 141
2. PURCHASE INFORMATION
No. of Shares--Minimum 250 (or
200 for an IRA or KEOGH) Dollar Amount
of $
Investment
($10 per Share)
This is an (check one): Initial Investment Additional Investment in this
offering
Check box if the Shares ordered are to be combined with an order of
another investor for the purpose of obtaining volume discounts to "single
purchasers." Name of other investor(s)
3. INVESTOR INFORMATION Name(s) and address will be recorded exactly as printed
below.
Name
Name
of Joint
Investor
Address
City State Zip Code
AMERICAN EXPRESS TRUST COMPANY
FBO
P.O. BOX 74
MINNEAPOLIS, MN 55440
TAXPAYER ID NO.: 51-6041053
CPA Account Number with
American Express Financial Advisors, Inc.
(Home Office use only)
Investor Business Phone Number Check box if you are a non-resident alien
Check box if you are a U.S. citizen
residing outside the U.S.
Investor Home Phone Number: Check box if you are subject to backup
withholding
Investor's Social Security No. Joint Investor's
Social Security No. Taxpayer's ID. No.
(REVERSE SIDE MUST BE SIGNED BY
ADVISOR AND BY INVESTOR)
<PAGE> 142
4. CHECK ADDRESS (IF OTHER THAN THAT REPORTED IN NON-QUALIFIED
NON-QUALIFIED
Name
Name
of Joint
Investor
Address
City State Zip
QUALIFIED PLAN
AMERICAN EXPRESS TRUST COMPANY
FBO
P.O. BOX 74
MINNEAPOLIS, MN 55440
TAXPAYER ID NO.: 51-6041053
5. SHAREHOLDER REPORT ADDRESS If you are investing through a Trust, IRA or KEOGH
and want duplicate copies of shareholder reports sent to you, please
complete:
Name
Address
City State Zip Code
6. STATE OF RESIDENCE
7. SIGNATURE OF INVESTOR(S)
SIGNATURE OF WITNESS SIGNATURE OF INVESTOR DATE
SIGNATURE OF WITNESS SIGNATURE OF INVESTOR DATE
8. ADVISOR INFORMATION The Advisor must sign below to complete order. Advisor
hereby warrants that it is a duly licensed Advisor and
may lawfully sell shares in the state designated as the
investor's residence.
Licensed Firm Name AMERICAN EXPRESS FINANCIAL ADVISORS INC.
Advisor Name
Advisor Mailing Address
City State Zip Code
Broker Number Telephone Number
<PAGE> 143
The undersigned confirms by his or her signature that he or she (i) has
reasonable grounds to believe that the information and representations
concerning the investor identified herein are true, correct and complete in all
respects; (ii) has discussed such investor's prospective purchase of Shares with
such investor; (iii) has advised such investor of all pertinent facts with
regard to the liquidity and marketability of the Shares; (iv) has delivered a
current Prospectus and related supplements, if any, to such investor; and (v)
has reasonable grounds to believe that the purchase of Shares is a suitable
investment for such investor, that such investor meets the suitability standards
applicable to such investor set forth in the Prospectus and related supplements,
if any, and that such investor is in a financial position to enable such
investor to realize the benefits of such an investment and to suffer any loss
that may occur with respect thereto.
Advisor Signature Date
ALL INVESTOR AND BROKER/DEALER INFORMATION MUST BE COMPLETED OR
REGISTRATION CANNOT BE PROCESSED.
FOR COMPANY USE ONLY:
<PAGE> 144
(This page intentionally left blank)
<PAGE> 145
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS UNLESS
PRECEDED OR ACCOMPANIED BY THIS PROSPECTUS NOR HAS ANY PERSON BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION OTHER THAN THOSE CONTAINED IN
THIS PROSPECTUS IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS, AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR SOLICITATION IN ANY JURISDICTION
TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH
JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. HOWEVER, IF
ANY MATERIAL CHANGE OCCURS WHILE THIS PROSPECTUS IS REQUIRED BY LAW TO BE
DELIVERED, THIS PROSPECTUS WILL BE AMENDED OR SUPPLEMENTED ACCORDINGLY.
CORPORATE PROPERTY
ASSOCIATES 14
Incorporated
A Maximum of 30,000,000 Shares of Common Stock
PROSPECTUS
CAREY FINANCIAL CORPORATION
[_______]
<PAGE> 146
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 30. Other Expenses of Issuance and Distribution.
<TABLE>
<S> <C>
SEC registration fee ........................................... $ 103,448
NASD filing fee................................................. 30,500
Legal fees and expenses ........................................ 400,000
Printing and engraving ......................................... 250,000
Accounting fees and expenses ................................... 115,000
Blue sky expenses .............................................. 116,052
Escrow and transfer agents' fees and expenses .................. 85,000
Advertising and sales literature ............................... 425,000
Miscellaneous .................................................. 20,000
----------
TOTAL .......................................................... $1,525,000
==========
</TABLE>
Item 31. Sales to Special Parties
None.
Item 32. Recent Sales of Unregistered Securities
On June 30, 1997 Carey Property Advisors purchased 20,000
shares of common stock of the Registrant for $200,000 cash.
Since the transaction described above was not considered to
have involved a "public offer" within the meaning of Section 4(2) of the
Securities Act of 1933, as amended, the shares issued were deemed to be exempt
from registration under said Act. The recipient of shares in the Registrant in
the foregoing transaction represented that such interests were being acquired by
it for the purposes of investment and not with a view to the distribution
thereof.
Item 33. Indemnification of Officers and Directors.
Indemnification is provided for in Article VI of the Articles
of Incorporation of the Registrant and in Article X of the Bylaws of the
Registrant, and such provisions are incorporated herein by reference.
Item 34. Treatment of Proceeds from Stock Being Registered.
Not Applicable.
Item 35 Financial Statements and Exhibits
(a) 1. Consolidated Financial Statements
The following consolidated financial statements are filed as part
of this Report:
II-1
<PAGE> 147
Opening Consolidated Balance Sheet of the Company as of June 30, 1997.
Notes to Consolidated Financial Statements.
Report of Independent Accountants.
(b) Exhibits
Exhibit No. Exhibit
- ----------- -------
3.1 Articles of Incorporation of Registrant.
3.2 Form of Bylaws of Registrant.
5 Opinion of Piper & Marbury, L.L.P. as to legality of securities issued.
8.1 Opinion of Reed Smith Shaw & McClay as to certain tax matters.
8.2 Opinion of Reed Smith Shaw & McClay as to certain ERISA matters.
10.1 Form of Sales Agency Agreement.
10.2 Form of Selected Dealer Agreement.
10.3 Advisory Agreement.
10.4 Form of Wholesaling Agreement.
10.5 Form of Escrow Agreement.
24.1 Consent of Coopers & Lybrand.
99.1(1) Table VI: Acquisition of Properties by Prior Programs.
- ----------
(1) To be filed by pre-effective amendment.
Item 36. Undertakings.
(a) Registrant undertakes (1) to file, during any period in which offers
or sales are being made, a post-effective amendment to this Registration
Statement: (i) to include any prospectus required by Section (10)(a)(3) of the
Securities Act, (ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement and (iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the
<PAGE> 148
Registration Statement; (2) that, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new Registration Statement relating to the securities offered therein, and
the offering of such securities at this time shall be deemed to be the initial
bona fide offering thereof; (3) that all post-effective amendments will comply
with the applicable forms, rules and regulations of the Securities and Exchange
Commission in effect at the time such post-effective amendments are filed; and
(4) to remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of Registrant pursuant to foregoing provisions, or otherwise, Registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by Registrant of expenses incurred or
paid by a director, officer or controlling person of Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, Registrant unless in the opinion of its counsel the matter has been
settled by controlling precedent, will submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(c) Registrant undertakes to file a sticker supplement pursuant to rule
424(c) under the Securities Act during the distribution period describing each
Property not identified in the Prospectus at such time as there arises a
reasonable probability that such Property will be acquired and to consolidate
all such stickers into a post-effective amendment filed at least once every
three months, with the information contained in such amendment provided
simultaneously to the existing Shareholders if such information has not
previously been provided. Each sticker supplement should disclose all
compensation and fees received by the Advisor and its affiliates in connection
with any such acquisition. The post-effective amendment shall include audited
financial statements meeting the requirements of Rule 3-14 or Regulation S-X
only for properties acquired during the distribution period, if appropriate.
<PAGE> 149
SIGNATURES AND POWERS OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-11 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York on the 16th day of
July, 1997.
CORPORATE PROPERTY ASSOCIATES 14
INCORPORATED
By: /s/ WILLIAM P. CAREY
--------------------------
William P. Carey, Chairman
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints William P. Carey, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement, and to file the same, with
all exhibit thereto, and any other documents in connection therewith, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the date indicated:
<PAGE> 150
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
\s\William P. Carey Chairman of the Board and Director July 16, 1997
- ------------------------------ (Principal Executive Officer) of the
William Polk Carey Registrant
\s\Charles Townsend Senior Executive Vice President and
- ------------------------------ Director of the Registrant July 16, 1997
Charles Townsend
\s\ Ralph G. Coburn Independent Director of the Registrant July 16, 1997
- ------------------------------
Ralph G. Coburn
\s\William Ruder Independent Director of the Registrant July 16, 1997
- ------------------------------
William Ruder
\s\Warren Wintrub Independent Director of the Registrant July 16, 1997
- ------------------------------
Warren Wintrub
\s\Thomas Zacharias Independent Director of the Registrant July 16, 1997
- ------------------------------
Thomas Zacharias
\s\Barclay G. Jones,III Executive Vice President and Director of
- ------------------------------ the Registrant July 16, 1997
Barclay G. Jones, III
\s\Gordon F. Dugan Executive Vice President of the Registrant July 16, 1997
- ------------------------------
Gordon F. DuGan
\s\Claude Fernandez Executive Vice President and Chief July 16, 1997
- ------------------------------ Administrative Officer of the Registrant
Claude Fernandez
\s\Michael D. Roberts First Vice President and Controller of the July 16, 1997
- ------------------------------ Registrant
Michael D. Roberts
</TABLE>
-2-
<PAGE> 151
Pursuant to the requirements of the Securities Act of 1933, the Registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York on the 16th day of July, 1997.
CORPORATE PROPERTY ASSOCIATES 14
INCORPORATED
By: /s/ William P. Carey
---------------------------------
William P. Carey
Chairman
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated.
William Polk Carey Chairman of the Board and
Director
(Principal Executive Officer)
of the Registrant
Charles Townsend Senior Executive Vice
President and Director of the
Registrant
By: /s/ William P. Carey
Ralph Coburn Independent Director of the --------------------
Registrant William P. Carey
July 16, 1997
William Ruder Independent Director of Registrant
Warren Wintrub Independent Director of Registrant
Thomas Zacharias Independent Director of Registrant
Barclay G. Jones III Executive Vice President of
the Registrant
Gordon F. Dugan Executive Vice President of
Registrant
Claude Fernandez Executive Vice President and
Chief Administrative Officer of the
Registrant
Michael D. Roberts First Vice President and
Controller of the Registrant
<PAGE> 152
<PAGE> 1
EXHIBIT 3.1
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED
ARTICLES OF INCORPORATION
I. INCORPORATOR AND NAME
THE UNDERSIGNED, Todd D. Monckton, whose address is Reed Smith
Shaw & McClay, 2500 One Liberty Place, 1650 Market Street, Philadelphia,
Pennsylvania 19103, being at least eighteen years of age, acting as
incorporator, does hereby form a corporation under the General Laws of the State
of Maryland.
The name of the Corporation is Corporate Property Associates
14 Incorporated (the "Company").
II. PURPOSE
The purpose for which the Company is formed is to transact any
or all lawful business, not required to be specifically stated in these Articles
of Incorporation ("Articles"), for which corporations may be incorporated under
the General Corporation Law of Maryland as amended from time to time.
III. CAPITAL STOCK
(a) The total number of shares of stock of all classes which
the Company has authority to issue is 60,000,000 shares of capital stock (par
value $.001 per share), amounting in aggregate to $60,000.00 par value, all of
which shares are initially classified as "common stock" (the "Shares").
(b) Each Share shall be entitled to one vote and shall share
equally, on a per Share basis, in the dividends of the Company.
(c) The Shares shall, upon issuance and payment therefor, be
fully paid and non-assessable.
(d) The Shares will not be subject to redemption (except as
provided in Article VII) and will have no preemptive or cumulative voting
rights.
(e) The Directors are authorized to issue from time to time
shares of stock of any class, whether now or hereafter authorized, or securities
convertible into shares of stock of any class or classes, whether now or
hereafter authorized.
<PAGE> 2
(f) The Directors are authorized to classify or to reclassify
any unissued stock by setting or changing in any one or more respects, from time
to time before issuance of such stock, the preferences, conversion or other
rights, voting powers, restrictions, limitations as to dividends,
qualifications, and terms or conditions of redemption of such stock, provided,
however, that the voting rights per share of stock sold in a private offering
shall not exceed voting rights which bear the same relationship to the voting
rights of the Shares as the consideration paid to the Company for each privately
offered share of stock bears to the book value of each outstanding Share.
IV. PRINCIPAL OFFICE AND REGISTERED AGENT
The principal office of the Company is located at c/o CSC
Lawyers Incorporating Service Company, 11 East Chase Street, Baltimore, Maryland
21202. The registered agent of the Company is CSC Lawyers Incorporating Service
Company, which is a Maryland corporation whose post office address is 11 Chase
Street, Baltimore, Maryland 21202.
V. DIRECTORS
(a) The business and affairs of the Company shall be managed
by, or under the direction of, the Directors. Election of the Directors need not
be by written ballot unless provided by the bylaws of the Company ("Bylaws").
The Directors, as a group, shall consist of not fewer than three nor more than
nine Directors, at least a majority of whom shall be Independent Directors,
except for a period of 90 days after the death, removal or resignation of an
Independent Director during which period the Directors, no matter how
constituted, may continue to conduct business on behalf of the Company. If at
any time the Company has fewer than three owners or beneficial owners of Shares
("Shareholders"), the number of Directors may be fewer than three but not fewer
than the number of Shareholders. Newly elected Directors shall be elected for a
term of office to expire at the next succeeding annual meeting of Shareholders
after their election. The name of the director who shall serve as Director until
the first annual meeting of the Shareholders is as follows:
William P. Carey
(b) Directors may be removed with or without cause upon the
affirmative vote of at least a majority of all the votes
-2-
<PAGE> 3
entitled to be cast at a Shareholders' meeting called for the purpose of such
proposed removal.
(c) A vacancy or vacancies among the Directors shall
exist when any previously authorized position of Director is not then filled by
a duly elected or appointed Director whether caused by death, resignation or
removal, or due to an increase in the authorized number of Directors. Any such
vacancy or vacancies shall be filled as provided in the Bylaws.
(d) The Directors are expressly authorized to make,
alter, amend or repeal the Bylaws in the manner and for the purposes specified
therein.
VI. INDEMNIFICATION
(a) Subject to the provisions of the Bylaws, the Company
shall provide any indemnification permitted by the laws of the State of Maryland
and shall indemnify Directors, officers, agents and employees as follows:
(i) Except as may be qualified by the requirements
of subsection (ii) and (iii) below, with respect to
the indemnification of Directors, the Company shall
indemnify its Directors and officers to the full
extent required or permitted by the statutory and
common law of the State of Maryland now or hereafter
in force, whether they are serving the Company, or at
the Company's request, any other entity. The
indemnification shall include advances from the
Company for legal expenses and other reasonable costs
resulting from such legal action;
(ii) The Company may indemnify the Directors, the
Advisor or their Affiliates for any liability or loss
suffered by any of them, and may hold harmless the
Directors, the Advisor or their Affiliates for any
loss or liability suffered by the Company, only if
the following conditions are satisfied: (A) the
Directors, the Advisor or their Affiliates have
determined, in good faith, that the course of conduct
which caused the loss or liability was in the best
interests of the Company; (B) the Directors, the
Advisor or their Affiliates were acting on behalf of
or performing services for the Company; (C) such
liability or
-3-
<PAGE> 4
loss was not the result of negligence or misconduct
by the Directors, the Advisor or their Affiliates;
and (D) such indemnification or agreement to hold
harmless is recoverable only out of the Company's net
assets and not from the Shareholders. Notwithstanding
anything to the contrary in this subsection (ii),
indemnification of the directors, the Advisor or
their Affiliates, or any person acting as a
broker-dealer, will not be allowed for any losses,
liabilities or expenses arising from or out of an
alleged violation of federal or state securities laws
unless at least one of the following conditions is
met: (x) there has been a successful adjudication on
the merits of each count involving alleged securities
law violations as to the particular indemnitee; (y)
such claims have been dismissed with prejudice on the
merits by a court of competent jurisdiction as to the
particular indemnitee; or (z) 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 Securities and Exchange Commission
and of the published position of any state securities
regulatory authority in which securities of the
Company were offered or sold as to indemnification
for violations of securities laws;
(iii) The advancement of funds of the Company to the
Directors, the Advisor or their Affiliates for legal
expenses and other costs incurred as a result of any
legal action for which indemnification is being
sought is permissible only if all of the following
conditions are satisfied: (A) the legal action
relates to acts or omissions with respect to the
performance of duties or services on behalf of the
Company; (B) the legal action is initiated by a third
party who is not a Shareholder or the legal action is
initiated by a Shareholder acting in his or her
capacity as such and a court of competent
jurisdiction specifically approves such advancement;
and (C) the Directors, the Advisor or their
Affiliates undertake to repay the advanced funds to
the Company, together with the applicable
-4-
<PAGE> 5
legal rate of interest thereon, in cases in which
such Directors, the Advisor or their Affiliates are
found not to be entitled to indemnification;
(iv) The Company shall indemnify other employees and
agents to such extent as shall be authorized by the
Directors or prescribed by the Bylaws and as shall be
permitted by law, whether they are serving the
Company or, at the Company's request, any other
entity;
(v) The foregoing rights of indemnification shall
not be exclusive of any other rights to which those
seeking indemnification may be entitled;
(vi) The Directors may take such action as is
necessary to carry out these indemnification
provisions and are expressly empowered to adopt,
approve and amend from time to time the Bylaws,
resolutions or contracts implementing such provisions
or such further indemnification arrangements as may
be permitted by law;
(vii) No amendment or repeal of this Article VI or
any portion hereof shall apply to or have any effect
on any right to indemnification provided hereunder
with respect to acts or omissions occurring prior to
such amendment or repeal.
(b) To the fullest extent permitted by the statutory or
common law of Maryland, as amended or interpreted, no Director or officer of the
Company shall be personally liable to the Company or its Shareholders for
monetary damages. No amendment to these Articles or repeal of any of its
provisions shall limit or eliminate the benefits provided to the Directors and
officers under this Article VI with respect to any act or omission which
occurred prior to such amendment or repeal.
(c) Each provision of this Article VI shall be severable,
and an adverse determination as to any such provision shall in no way affect the
validity of any other provision.
VII. OWNERSHIP LIMIT
(a) No Person may own more than 9.8 percent of the outstanding
Shares or such other amount as determined by the
-5-
<PAGE> 6
Directors pursuant to the Bylaws ("Ownership Limit"), and no Shares or other
subsequently issued Securities of the Company (as prescribed by an appropriate
amendment to these Articles) shall be accepted, purchased, or in any manner
acquired by any Person if such issuance or transfer would result in that
Person's Ownership of Shares and/or such Securities, together, exceeding the
Ownership Limit.
(b) If any Shares are accepted, purchased, or in any manner
acquired by any Person resulting in a violation of Article VII(a) hereof, such
issuance or transfer shall be valid only with respect to such amount of Shares
so issued or transferred as does not result in a violation of Article VII(a)
hereof, and such acceptance, purchase or acquisition shall be null and void with
respect to the amount of Shares that results in a violation of Article VII(a)
hereof ("Excess Shares"). If the last clause of the foregoing sentence is
determined to be invalid by virtue of any legal decision, statute, rule or
regulation, such Person shall be conclusively deemed to have acted as an agent
on behalf of the Company in acquiring the Excess Shares and to hold such Excess
Shares on behalf of the ultimate owner of such Excess Shares. Any person who
receives dividends, interest or any other distribution paid on account of Excess
Shares shall hold and retain these dividends, interest or any other distribution
as an agent for the ultimate owner of such Excess Shares.
While the Excess Shares are so held on behalf of the ultimate
owner of such Excess Shares, such Excess Shares shall not have any voting rights
and shall not be considered for purposes of any Shareholder vote and/or for
determining a quorum for such a vote. The Excess Shares shall not be treasury
stock but shall continue as issued and outstanding Shares under the General
Corporation Law of Maryland.
In the event that a Shareholder knowingly holds Excess Shares
and the Company consequently loses its status as a REIT under the Code or
becomes a personal holding company, such Shareholder shall be required to
indemnify the Company for the full amount of any damages and expenses (including
increased corporate taxes, attorneys' fees and administrative costs) resulting
from the Company's loss of its REIT qualification under the Code.
Upon discovering the Ownership of any Excess Shares, the
Directors may (i) cause the Company to immediately redeem such Excess Shares at
the Redemption Price or (ii) grant the Shareholder 30 days to transfer such
Excess Shares to any Person whose Ownership of such Excess Shares would not
result in a
-6-
<PAGE> 7
violation of Article VII(a) hereof. Upon such permitted transfer, the Company
shall pay or distribute to the transferee any dividends on the Excess Shares not
previously paid or distributed. If such Excess Shares are not transferred within
such 30 day period, the Company will redeem such Shares at the Redemption Price.
For purposes of this provision, the "Redemption Price" shall mean the lesser of
the price paid for such Excess Shares by the Shareholder in whose possession the
redeemed Shares were Excess Shares or the fair market value of the Excess
Shares.
(c) For purposes of this Article VII:
(i) The term "Individual" shall mean any natural
person and those organizations treated as natural
persons in Section 542(a) of the Code.
(ii) The term "Ownership" (including "own" or
"owns") of Shares means beneficial ownership.
Beneficial ownership, for this purpose shall be
defined in accordance with or by reference to
Sections 856, 542 and 544 of the Code.
(iii) The term "Person" includes an Individual,
corporation, partnership, association, joint stock
company, trust, unincorporated association or other
entity and also includes a "group" within the meaning
of Section 13(d)(3) of the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(iv) The term "Securities" means all securities,
excluding currently outstanding Shares, which
subsequently may be issued by the Company.
(d) The Ownership Limit set forth in Article VII(a)
hereof shall not apply to acquisitions of Shares pursuant to a cash tender offer
made for all outstanding Shares (including Securities convertible into common
stock, which subsequently may be issued by the Company) in conformity with
applicable federal and state securities laws where at least 85 percent of the
outstanding Shares (not including Shares or subsequently issued Securities
convertible into common stock, which are held by the tender offeror and/or any
"affiliates" or "associates" thereof within the meaning of the Exchange Act) are
duly tendered and accepted pursuant to the cash tender offer; nor shall the
Ownership Limit apply to the acquisition of Shares by an underwriter in a public
offering of the Shares, or in any
-7-
<PAGE> 8
transaction involving the issuance of the Shares by the Company, in which a
majority of the Directors determines that the underwriter or other Person or
party initially acquiring such Shares will make a timely dividend of such Shares
to or among other Persons such that, following such dividend, none of such
Shares will be Excess Stock.
(e) The Directors may exempt from the Ownership Limit certain
designated Shares while owned by a Person who has provided the Directors with
evidence and assurances acceptable, in their sole discretion, to a majority of
the Directors and their counsel that the qualification of the Company as a REIT
would not be jeopardized.
(f) Nothing herein contained shall limit the ability of the
Company to impose or to seek judicial or other imposition of additional
restrictions if deemed necessary or advisable to protect the Company and the
interests of its Shareholders by preservation of the Company's status as a REIT.
(g) If the Company has 2,000 or more Shareholders, all Persons
who own five percent or more of the Company's outstanding Shares (or if the
Company has more than 200 and less than 2000 shareholders, all Persons who own
one percent or more of the Company's outstanding Shares) during any taxable year
of the Company shall file with the Company an affidavit setting forth the number
of Shares during such taxable year (i) owned directly (held of record by such
Person or by a nominee or nominees of such Person) and (ii) owned indirectly (by
reason of Sections 542, 544 and 856 of the Code or for purposes of Section 13(d)
of the Exchange Act) by the Person filing the affidavit. The affidavit to be
filed with the Company shall set forth all the information required to be
reported (A) in returns of Shareholders under income tax regulation 1.857-9 or
similar provisions of any successor regulation and (B) in reports to be filed
under Section 13(d) of the Exchange Act. The affidavit or an amendment to a
previously filed affidavit shall be filed with the Company annually within 60
days after the close of the Company's taxable year. A Person shall have
satisfied the requirements of this Article VII(g) if the Person furnishes to the
Company the information in such Person's possession after such Person has made a
good faith effort to determine the Shares it indirectly owns and to acquire the
information required by income tax regulation 1.857-9 or similar provisions of
any successor regulation.
(h) If any provision of this Article VII or any application of
any such provision is determined to be invalid by
-8-
<PAGE> 9
any federal or state court having jurisdiction over the issue, the validity of
the remaining provisions shall not be affected and other applications of such
provision shall be affected only to the extent necessary to comply with the
determination of such court.
(i) The affirmative vote of those Shareholders owning not less
than sixty-six and two-thirds percent of all outstanding Shares entitled to vote
in the election of Directors considered for purposes of this Article VII as one
class, shall be required to amend, alter, change, repeal or rescind any
provision of this Article VII or to adopt any provisions inconsistent with this
Article VII.
VIII. RIGHTS OF SHAREHOLDERS
(a) A majority of all Shares is considered a quorum necessary
for the transaction of all business. Unless otherwise provided in these Articles
or the Bylaws, a majority of all the votes cast at a Shareholder meeting at
which a quorum is present is sufficient to approve any matter which properly
comes before such meeting, except that a plurality of all votes cast at a
meeting at which a quorum is present is sufficient to elect a Director.
(b) Special meetings of Shareholders may only be called upon
the request of a majority of the Directors, a majority of the Independent
Directors, the Chairman of the Company or the President of the Company or upon
the written request of Shareholders entitled to cast at least 10 percent of all
the votes entitled to be cast at such meeting.
(c) Any Shareholder proposal to be presented in connection
with an annual meeting of Shareholders, including any proposal relating to the
nomination of a Director to be elected to the Board of Directors, must be
received by the secretary of the Company not fewer than 120 days prior to the
scheduled date of such meeting.
(d) Notwithstanding any provision of law requiring the
authorization of any action by a greater proportion than a majority of the total
number of shares of all classes of capital stock, such action shall be valid and
effective if authorized by the affirmative vote of the holders of a majority of
the total number of shares of all classes outstanding and entitled to vote
thereon, except as otherwise provided in these Articles.
-9-
<PAGE> 10
IX. AMENDMENT
The Company reserves the right to amend, alter, change or
repeal any provision contained in these Articles by a majority of the Directors
(including a majority of the Independent Directors) adopting a resolution
setting forth the proposed change, declaring its advisability, and either
calling a special meeting of the Shareholders certified to vote on the proposed
change, or directing the proposed change to be considered at the next annual
Shareholders' meeting. Except as otherwise provided herein, the proposed change
will be effective only if it is adopted upon the affirmative vote of the holders
of not less than a majority of the aggregate votes entitled to be cast thereon
or by unanimous written consent by the Shareholders; provided, however, that any
amendment to, repeal of or adoption of any provision inconsistent with Article
VI hereof or this Article IX will be effective only if it is adopted upon the
affirmative vote of not less than two-thirds of the aggregate votes entitled to
be cast thereon.
X. DEFINITIONS & MISCELLANEOUS
(a) As used herein, the following terms shall have the
respective meanings indicated:
"Advisor" shall mean any person or entity which
pursuant to an advisory agreement will serve as the investment
advisor to, and administrator of, the Company; it shall also
include any successor advisor selected by the Directors or any
person or entity to which the Advisor subcontracts
substantially all of its administrative functions.
"Affiliate" of another person shall mean (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 (iv) any
legal entity for which such person acts as an executive
officer, director, trustee or general partner.
-10-
<PAGE> 11
"Affiliated Directors" shall mean those Directors who
are not Independent Directors.
"Code" shall mean the Internal Revenue Code of 1986,
as amended.
"Independent Directors" shall mean the Directors who
are not associated and have not been associated within the
last two years, directly or indirectly, with the Sponsor or
the Advisor. A Director shall be deemed to be associated with
the Sponsor or the Advisor if he or she (i) owns an interest
in, is employed by, has any material business or professional
relationship with, or is an officer or director of, the
Sponsor, the Advisor, or any of their Affiliates, other than
as a director or trustee or officer of not more than two other
REITs organized by the Sponsor or advised by the Advisor, or
(ii) performs services, other than as a Director, for the
Company. An indirect relationship shall include circumstances
in which a Director's spouse, parents, children, siblings,
mothers- or fathers-in law, sons- or daughters-in law, or
brothers- or sisters-in law is or has been associated with the
Sponsor, the Advisor, any of their Affiliates, or the Company.
"REIT" shall mean real estate investment trust as
governed by Sections 856-860 of the Code.
"Sponsor" shall mean W. P. Carey & Co., Inc., a New
York corporation.
(b) In the event any sentence or paragraph of these Articles
is declared by a court of competent jurisdiction to be void, such sentence or
paragraph shall be deemed severed from the remainder of these Articles and the
balance of these Articles shall remain in effect.
IN WITNESS WHEREOF, I have signed these Articles of
Incorporation, acknowledging the same to be my act, on June 3, 1997.
___________________________________
Todd D. Monckton
-11-
<PAGE> 1
EXHIBIT 3.2
BYLAWS
OF
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED
-1-
<PAGE> 2
BYLAWS OF
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED
TABLE OF CONTENTS
ARTICLES PAGE
I The Company, Definitions..................... 1
1.1 Name................................... 1
1.2 Nature of Company...................... 1
1.3 Definitions............................ 1
II Offices...................................... 10
2.1 Principal Office....................... 10
2.2 Registered Office...................... 11
2.3 Other Offices.......................... 11
2.4 Fiscal Year............................ 11
III Meetings of Shareholders..................... 11
3.1 Place of Meetings...................... 11
3.2 Annual Meetings........................ 11
3.3 Special Meetings....................... 11
3.4 Notice: Affidavit of Notice............ 12
3.5 Record Date for Shareholder Notice
Voting and Giving Consents........... 12
3.6 Adjourned Meetings; Notice............. 13
3.7 Voting at Meetings of
Shareholders......................... 13
3.8 Quorum................................. 14
3.9 Waiver of Notice or Consent of
Absent Shareholders.................. 14
3.10 Action Without Meeting................. 14
3.11 Proxies................................ 15
3.12 Inspectors of Election................. 15
IV Directors.................................... 16
4.1 Powers................................. 16
4.2 Number, Tenure and
Qualifications....................... 16
4.3 Nomination of Directors................ 17
4.4 Place of Meeting....................... 18
4.5 Organization Meeting................... 18
4.6 Regular Meetings....................... 18
4.7 Special Meetings....................... 19
4.8 Entry of Notice........................ 19
<PAGE> 3
4.9 Waiver of Notice....................... 19
4.10 Adjournment............................ 19
4.11 Notice of Adjournment.................. 19
4.12 Quorum................................. 20
4.13 Fees and Compensation.................. 20
4.14 Action Without Meeting................. 20
4.15 Independent Directors.................. 20
4.16 [Reserved]............................. 22
4.17 Removal of Directors................... 22
4.18 Vacancies.............................. 23
4.19 Committees............................. 23
4.20 Fiduciary Relationship................. 23
4.21 Delegation of Authority................ 24
4.22 Listing of Shares...................... 25
4.23 Abstention from Voting................. 25
V Officers..................................... 25
5.1 Officers............................... 25
5.2 Election............................... 26
5.3 Subordinate Officers................... 26
5.4 Removal and Resignation................ 26
5.5 Vacancies.............................. 26
5.6 Chairman of the Board.................. 26
5.7 President.............................. 26
5.8 Vice Presidents........................ 27
5.9 Secretary.............................. 27
5.10 Assistant Secretaries.................. 27
5.11 Treasurer.............................. 27
5.12 Assistant Treasurers................... 28
VI Shares of Stock.............................. 28
6.1 Shareholder Suitability Standards...... 28
6.2 Registration of Ownership
of Shares............................ 28
6.3 Transfer of Shares..................... 29
6.4 Disclosures by Shareholders;
Redemption of Shares................. 30
6.5 Right to Refuse to Transfer
Shares............................... 31
6.6 Lost or Destroyed Certificates......... 31
6.7 Dividends to Shareholders.............. 31
6.8 ERISA Limitations...................... 32
6.9 Repurchase of Shares on Open Market.... 32
VII Employment of Advisor, Limitation on
Expenses and Leverage...................... 32
-ii-
<PAGE> 4
7.1 Employment of Advisor.................. 32
7.2 Term................................... 33
7.3 Other Activities of Advisor............ 34
7.3A Abstention from Voting................. 35
7.4 Limitation on Organization,
Offering and Acquisition Fees
and Expenses......................... 35
7.5 Limitation on Operating Expenses....... 35
7.6 Limitations on Real Estate
Brokerage Commissions on
Resale of Property................... 36
7.7 Limitation on Leverage................. 36
7.8 Limitation on Incentive Fee............ 36
VIII Restrictions on Investments and
Activities................................. 37
8.1 Restrictions........................... 37
8.2 Roll-Up Transaction.................... 41
IX Transactions With Affiliates; Certain
Duties and Liabilities of Directors,
Shareholders, Advisor and Affiliates....... 42
9.1 Transactions with Affiliates........... 42
9.2 Restriction of Duties and
Liabilities.......................... 44
9.3 Persons Dealing with Directors
or Officers.......................... 44
9.4 Reliance............................... 45
9.5 Income Tax Status...................... 45
X Indemnification.............................. 45
10.1 Restrictions on Indemnification........ 45
10.2 Effect of Securities Law on
Indemnification...................... 45
10.3 Insurance.............................. 46
XI Miscellaneous................................ 47
11.1 Competing Programs..................... 47
11.2 Corporate Seal......................... 47
11.3 Inspection of Bylaws................... 47
11.4 Inspection of Corporate Records........ 48
11.5 Checks, Drafts, Etc.................... 48
11.6 Contracts, Etc., How Executed.......... 48
11.7 Representation of Shares of
-iii-
<PAGE> 5
Other Corporations................... 48
11.8 Annual Report.......................... 49
11.9 Quarterly Reports...................... 49
11.10 Provisions of the Bylaws in
Conflict with Law or
Regulations.......................... 50
11.11 Voluntary Dissolution.................. 50
11.12 Reduction of Restricted Capital........ 50
11.13 Retained Earnings...................... 51
11.14 Source of Dividends.................... 51
11.15 Dividends.............................. 51
11.16 Shareholder Liability.................. 51
XII Amendments to Bylaws......................... 52
12.1 Amendments to the Bylaws............... 51
-iv-
<PAGE> 6
BYLAWS OF
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED
ARTICLE I
THE COMPANY, DEFINITIONS
1.1 Name. The name of the corporation is CORPORATE PROPERTY ASSOCIATES 14
INCORPORATED and is referred to in these Bylaws as the "Company." If the
Directors determine that the use of that name is not practicable, legal or
convenient, the Directors upon the appropriate amendment to the Articles may use
such other designation or may adopt another name under which the Company may
hold property or conduct all or part of its activities. The Directors without
approval of the Shareholders may amend the Articles (a) to delete from the
corporate name the word "the" or the name of a political subdivision or other
geographical location of the state; (b) to abbreviate the word "corporation",
"incorporated", "company" or "limited" in the corporate name; or (c) to
substitute in the corporate name for its respective abbreviation the word
"corporation", "incorporated", "company" or "limited."
1.2 Nature of Company. The Company is a corporation organized under the
laws of the State of Maryland. The Company initially has been capitalized with
$200,000 from the sale of 20,000 Shares to the Advisor. It is intended that the
Company shall carry on business as a real estate investment trust ("REIT") and
shall elect to be taxed as a REIT for Federal income tax purposes. These Bylaws
and all actions of the Directors hereunder shall be construed in accordance with
such intent.
1.3 Definitions. Whenever used in these Bylaws, the terms defined in this
Section 1.3 shall, unless the context otherwise requires, have their respective
meanings specified in this Section 1.3. In these Bylaws, words in the singular
number include the plural and in the plural number include the singular.
Acquisition Expenses. Those expenses, including but not limited to
legal fees and expenses, travel and communications expenses, costs of
appraisals, nonrefundable option payments on Property not acquired,
accounting fees and expenses, title insurance, and miscellaneous expenses
related to selection and acquisition of Properties, whether or not
acquired. Acquisition Expenses shall not include Acquisition Fees.
Acquisition Fees. The total of all fees and commissions (including any
interest thereon) paid by any party to any
<PAGE> 7
party in connection with the making or investing in mortgage loans or the
purchase, development or construction of Properties by the Company. A
Development Fee or 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 the Company shall not be
deemed an Acquisition Fee. Included in the computation of such fees or
commissions shall be any real estate commission, selection fee, development
fee (other than as described above) or any fee of a similar nature, however
designated. Acquisition Fees shall include Subordinated Acquisition Fees,
unless the context otherwise requires. Acquisition Fees shall not include
Acquisition Expenses.
Advisor. Any Person appointed or employed by or who contracts with the
Company under the provisions of Article VII of these Bylaws, and who is
responsible for the day-to-day management of the Company, including any
Person to which an Advisor subcontracts substantially all such functions.
Advisory Agreement. The Advisory Agreement between the Company and the
Advisor pursuant to which the Advisor will act as the advisor and
administrator of the Company.
Affiliated Director. A Director who is not an Independent Director.
Affiliate. An Affiliate of another Person shall mean (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 (c) any legal entity for which such Person
acts as an executive officer, director, trustee or general partner.
Annual Meeting of Shareholders. As set forth in Section 3.2 of these
Bylaws.
Annual Report. As set forth in Section 11.8 of these Bylaws.
Appraised Value. Value according to an appraisal made by an
Independent Appraiser.
-2-
<PAGE> 8
Articles or Articles of Incorporation. Articles of Incorporation of
the Company under the General Corporation Law of Maryland, as amended from
time to time, pursuant to which the Company is organized.
Asset Management Fee. Fee paid to the Advisor for asset management
services rendered pursuant to the Advisory Agreement.
Average Invested Assets. For a specified period, the average of the
aggregate book value of the assets of the Company invested, directly or
indirectly, in Properties and in loans secured by real estate, before
reserves for depreciation or bad debts or other similar non-cash reserves
computed by taking the average of such values at the end of each month
during such period.
Beneficial Ownership, Beneficially Own or Beneficial Owner of Shares.
Ownership of such Shares for purposes of part II, subchapter M of the Code,
including the attribution of ownership provisions of Section 542 and 544 of
the Code, or if, under Rule 13d-3 of the Exchange Act, such Person would be
deemed to have beneficial ownership of such Shares.
Board of Directors or Board. The Board of Directors of the Company.
Borrower. Any Person which obtains a Loan from the Company.
Bylaws. These Bylaws, including all amendments, restatements or
modifications.
Cash from Financings. Net cash proceeds realized by the Company from
the financing of Properties or the refinancing of any Company indebtedness.
Cash from Sales. Net cash proceeds realized by the Company from the
sale, exchange or other disposition of any of its assets 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.
-3-
<PAGE> 9
Cause. With respect to the termination of the Advisory Agreement,
fraud, criminal conduct, willful misconduct or willful or negligent breach
of fiduciary duty by the Advisor or a breach by the Advisor of the Advisory
Agreement.
Code. The Internal Revenue Code of 1986, as amended.
Company. Corporate Property Associates 14 Incorporated, a corporation
organized under the laws of the State of Maryland.
Competitive Real Estate Commission. The real estate or brokerage
commission paid in a competitive market for the purchase or sale of
property that is reasonable, customary and competitive in light of the
size, type and location of the property.
Conflicting Provisions. Any provisions of these Bylaws that, in the
opinion of the Directors (including a majority of the Independent
Directors) upon advice of counsel, are in conflict with the REIT Provisions
or with other applicable laws and regulations.
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 (as
of the date of purchase) to the purchase, development, construction or
improvement of a Property, exclusive of Acquisition Fees and Acquisition
Expenses.
Contract Sales Price. The total consideration received by the Company
for the sale of a Property.
CPA(R):1-6. CPA(R):1-6 means, collectively, Corporate Property
Associates, a California limited partnership, Corporate Property Associates
2, a California limited partnership, Corporate Property Associates 3, a
California limited partnership, Corporate Property Associates 4, a
California limited partnership, Corporate Property Associates 5, a
California limited partnership, and Corporate Property Associates 6 -- a
California limited partnership.
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
-4-
<PAGE> 10
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.
Dividends. Dividends declared by the Board.
Equity Interest. The stock of or other interests in, or warrants or
other rights to purchase the stock of or other interests in, any Borrower
or any entity that is a tenant of the Company or that is a parent or
controlling Person of any such Borrower or tenant.
ERISA. Employee Retirement Income Security Act of 1974, as amended.
Excess Return. In the event the Shares are listed on a national
securities exchange or included for quotation on NASDAQ, the excess of (A)
the sum of (i) the market value of the Company, measured by taking the
average closing price or bid and asked price, as the case may be, over a
period, beginning 180 days after listing of the Shares, of 30 days during
which the Shares are traded plus (ii) the total of the Dividends paid to
Shareholders from the Initial Closing Date until the date the Shares are
listed or included for quotation over (B) the sum of (i) 100% of Initial
Investor Capital and (ii) the total amount of the Dividends required to be
paid to Shareholders in order to pay the Preferred Return through the date
the Market Value is determined.
Excess Shares. Any Shares in excess of the Ownership Limit.
Exchange Act. The Securities and Exchange Act of 1934, as amended.
Good Reason. With respect to the termination of the Advisory
Agreement, (i) any failure to obtain a satisfactory agreement from any
successor to the Company to assume and agree to perform the Company's
obligations under the Advisory Agreement; or (ii) any material breach of
the Advisory Agreement of any nature whatsoever by the Company.
Gross Offering Proceeds. The aggregate purchase price of Shares sold
pursuant to the Offering.
-5-
<PAGE> 11
Independent Appraiser. A qualified appraiser of real estate as
determined by the Board, who is not affiliated, directly or indirectly,
with the Company, 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.
Independent Director. A director of the Company who is not associated
and has not been associated within the last two years, directly or
indirectly, with the Sponsor or the Advisor. A director shall be deemed to
be associated with the Sponsor or the Advisor if he or she (i) owns an
interest in, is employed by, has any material business or professional
relationship with, or is an officer or director of, the Sponsor, the
Advisor, or any of their Affiliates, other than as a director or trustee or
officer of not more than two other REITs organized by the Sponsor or
advised by the Advisor, or (ii) performs services, other than as a
director, for the Company. An indirect relationship shall include
circumstances in which a director's spouse, parents, children, siblings,
mothers- or fathers-in-law, sons- or daughters-in-law, or brothers- or
sisters-in-law is or has been associated with the Sponsor, the Advisor, any
of their Affiliates or the Company.
Individual. Any natural person and those organizations treated as
natural persons in Section 542(a) of the Code.
Initial Investor Capital. The total amount of capital invested from
time to time by the Shareholders (computed at the rate of $10 per Share for
every Share including those Shares for which reduced selling commissions
were paid in connection with their purchase from the Company). Upon
completion of the Offering, the Initial Investor Capital shall be equal to
the Gross Offering Proceeds.
Interest Reserve. The amount loaned to a Borrower to fund the
Borrower's projected future payments of interest to the Company and upon
which interest shall be charged once disbursed.
Leverage. The aggregate amount of indebtedness of the Company for
money borrowed (including purchase money mortgage loans) outstanding at any
time, both secured and unsecured.
-6-
<PAGE> 12
Loan Refinancing Fee. Fee paid to the Advisor for substantial services
rendered in connection with certain qualifying refinancings of Property.
Loans. The notes and other evidences of indebtedness or obligations
acquired or entered into by the Company as lender which are secured or
collateralized by personal property, or fee or leasehold interests in real
estate or other assets, including but not limited to first or subordinate
mortgage loans, construction loans, development loans, 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.
NASAA Guidelines. The Real Estate Investment Trust Guidelines of the
North American Securities Administrators Association, Inc., as revised and
adopted on September 29, 1993.
NASDAQ. The national automated quotation system operated by the
National Association of Securities Dealers, Inc.
Net Assets. The total assets of the Company (other than intangible
assets) at cost before deductions for depreciation or other non-cash
reserves less total liabilities, calculated at least quarterly on a basis
consistently applied.
Net Income. For any period, the total revenues applicable to such
period, less the total expenses applicable to such period excluding
additions to reserves for depreciation, bad debts or other similar non-cash
reserves; provided, however, Net Income for purposes of calculating total
allowable Operating Expenses shall exclude the gain from the sale of the
Company's assets.
Offering. The offering of Shares pursuant to the Prospectus.
Operating Expenses. All operating, general and administrative expenses
paid or incurred by the Company, as determined under generally accepted
accounting principles, except the following: (i) interest and discounts and
other cost of borrowed money; (ii) taxes (including state and Federal
income tax, property taxes and assessments, franchise
-7-
<PAGE> 13
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 the Company's Shares and Securities; (iv) expenses
connected with the acquisition, disposition, ownership and operation of
real estate interests, mortgage loans, or other property, including the
costs of foreclosure, insurance premiums, legal services, brokerage and
sales commissions, maintenance, repair and improvement of property; (v) the
Acquisition Fee or Subordinated Disposition Fee payable to the Advisor or
any other party; and (vi) 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, the Performance Fee and the Loan Refinancing Fee.
Organization and Offering Expenses. Those expenses payable by the
Company in connection with the formation, qualification and registration of
the Company and in marketing and distributing Shares including, but not
limited to such expenses as: (i) the preparation, printing, filing and
delivery of the Registration Statement and the Prospectus (including any
amendments thereof or supplements thereto) and the preparing and printing
of contractual agreements between the Company and its Sales Agent and the
Selected Dealers (including copies thereof); (ii) the preparing and
printing of the Articles of Incorporation and Bylaws of the Company, other
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 United States Securities and Exchange
Commission 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 the Company's counsel; (viii) all
advertising expenses incurred in connection with the 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, certain annual monitoring fees paid
to the Sales Agent with respect to Shares sold to clients of the Sales
Agent or Selected Dealers, marketing fees,
-8-
<PAGE> 14
incentive fees, due diligence fees and wholesaling fees and expenses
incurred in connection with the sale of the Shares.
Ownership Limit. With respect to Shares, the percent limitation placed
on the ownership of Shares by any one Person.
Performance Fee. Fee paid to the Advisor for asset management services
rendered under the Advisory Agreement. Such fee is payable on a
subordinated basis pursuant to the Advisory Agreement.
Person. An Individual, corporation, partnership, joint venture,
association, company, trust, bank or other entity or any government or any
agency and political subdivision of a government.
Property or Properties. The Company's partial or entire interest in
real property (including leasehold interests) and personal or mixed
property connected therewith.
Prospectus. The final prospectus of the Company pursuant to which the
Company will offer up to 20,000,000 Shares, as the same may at any time and
from time to time be amended or supplemented after the effective date of
the Registration Statement.
Registration Statement. The Registration Statement on Form S-11 of
which the Prospectus is a part.
REIT. A real estate investment trust, as defined in Sections 856-860
of the Code.
REIT Provisions of the Code or REIT Provisions. Parts II and III of
Subchapter M of Chapter 1 of the Code or successor statutes, and
regulations and rulings promulgated thereunder.
Roll-Up Transaction. A transaction involving the acquisition, merger,
conversion or consolidation, directly or indirectly, of the Company and the
issuance of securities of a Roll-Up Entity. Such term does not include: (i)
a transaction involving securities of the Company that have been for at
least 12 months listed on a national securities exchange or included for
quotation on NASDAQ National Market System (NMS); or (ii) a transaction
involving the conversion to corporate, trust, or association form of only
the Company if, as a consequence of the transaction there will be no
significant adverse change in any of the following:
-9-
<PAGE> 15
Shareholder voting rights; the term of existence of the Company;
compensation to the Sponsor or Advisor; or the investment objectives of the
Company.
Roll-Up Entity. A partnership, real estate investment trust,
corporation, trust or similar entity that would be created or would survive
after the successful completion of the proposed Roll-Up Transaction.
Sales Agent. Carey Financial Corporation.
Securities. Any stock, shares (other than currently outstanding Shares
and subsequently issued shares of common stock of the Company), voting
trust certificates, bonds, debentures, notes of the 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 the Company.
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 any particular time are shown as
holders of record of Shares on the books and records of the Company.
Shares. All of the shares of common stock of the Company, $.001 par
value, and all other shares of common stock of the Company issued in the
Offering or any subsequent offering.
Special Meetings of the Shareholders. As set forth in Section 3.3 of
these Bylaws.
Sponsor. W.P. Carey & Co., Inc. and any other person directly or
indirectly instrumental in organizing, wholly or in part, the Company or
any person who will manage or participate in the management of the Company,
and any Affiliate of such person. Sponsor does not include a person whose
only relationship to the Company is that of an independent property manager
and whose only compensation is as such. Sponsor also does not include
wholly independent
-10-
<PAGE> 16
third parties such as attorneys, accountants and underwriters whose only
compensation is for professional services.
Subordinated Acquisition Fee. An Acquisition Fee payable on a
subordinated installment basis, with interest, pursuant to and in
accordance with the Advisory Agreement.
Subordinated Disposition Fee. Fee paid to the Advisor or an Affiliate
under the Advisory Agreement for property disposition services.
Subordinated Incentive Fee. Fee paid to the Advisor pursuant to the
Advisory Agreement under the circumstances described therein upon the
disposition of Property.
Total Property Cost. With regard to any Company Property, an amount
equal to the sum of the Contract Purchase Price of such Property plus the
Acquisition Fees paid in connection with such Property.
2%/25% Guidelines. The requirement that, in any 12-month period, the
Operating Expenses not exceed the greater of 2% of the Company's Average
Invested Assets during such 12-month period or 25% of the Company's Net
Income over the same 12-month period.
Unimproved Real Property. Property which has the following three
characteristics: (1) an equity interest in property which was not acquired
for the purpose of producing rental or other operating income, (2) no
development or construction is in process on such property, and (3) no
development or construction on such property is planned in good faith to
commence on such property within one year.
Valuation. An estimate of value of the assets of the Company as
determined by a Person approved by the Independent Directors, which Person
shall be independent of the Company and the Advisor.
ARTICLE II
OFFICES
21 Principal Office. The initial principal office of the Company shall be
located at c/o The Prentice-Hall Corporation System, Maryland, 1123 North Eutaw
Street, Baltimore, Maryland 21202. The principal executive office of the Company
at which place the business affairs of the Company shall be conducted shall be
located at 620 Fifth Avenue, New York, NY 10020 or such other
-11-
<PAGE> 17
place as the Directors may from time to time determine or the business of the
Company may require.
22 Registered Office. The initial registered agent of the Company shall be
The Prentice-Hall Corporation, Maryland, which is a Maryland corporation whose
post office address is 1123 North Eutaw Street, Baltimore, Maryland 21201 or
such other place as the Directors shall from time to time determine.
23 Other Offices. Other offices may at any time be established by the
Directors at any place or places they deem appropriate.
24 Fiscal Year. The fiscal year of the Company shall end on the last day of
December in each year.
ARTICLE III
MEETINGS OF SHAREHOLDERS
31 Place of Meetings. All annual and all other meetings of Shareholders
shall be held at such place within the United States, either within or without
the State of Maryland, as from time to time may be fixed by the Chairman,
President or by the Directors.
32 Annual Meetings. The Annual Meeting of the Shareholders shall be held
either at 11:00 a.m. on the second Tuesday of June in each year if not a legal
holiday, or at such other day falling on or before the 30th day thereafter as
shall be set by the Board of Directors; provided, however, that such date shall
not be fewer than 30 days after the Directors shall have caused to be sent to
the Shareholders an Annual Report as provided in Section 11.8 of these Bylaws.
At Annual Meetings of the Shareholders, Directors shall be elected, reports of
the affairs of the Company shall be considered, and any other business may be
transacted which is within the powers of the Shareholders. Failure to hold an
annual meeting does not invalidate the Corporation's existence or affect any
otherwise valid corporate acts.
33 Special Meetings. Special Meetings of the Shareholders may be called at
any time for any purpose or purposes whatsoever but may only be called upon the
request of a majority of the Directors, a majority of the Independent Directors,
the Chairman or President of the Company or upon the written request of
Shareholders entitled to cast not less than 10 percent of all the votes entitled
to be cast at such meeting. If a Special Meeting of the Shareholders is called
by any Person or Persons other than the Directors, Independent Directors, the
Chairman or the President of the Company, a request shall be made in writing,
-12-
<PAGE> 18
specifying the time of such Special Meeting of the Shareholders and the general
nature of the business proposed to be transacted, and shall be delivered
personally or sent by registered mail or by telegraphic or other facsimile
transmission to the Chairman of the Company, the President, or the Secretary of
the Company. The officer receiving the request shall cause notice to be promptly
given to the Shareholders entitled to vote, in accordance with the provisions of
Section 3.4.
34 Notice; Affidavit of Notice. Notice of all meetings of the Shareholders
shall be given in writing to each Shareholder entitled to vote thereat, either
personally or by first class mail, or if the Company has 500 or more
Shareholders, by third-class mail, or other means of written communication,
charges prepaid, addressed to the Shareholder at his address appearing on the
books of the Company or given by the Shareholder to the Company for the purpose
of such notice. Notice of any such meeting of Shareholders shall be sent to each
Shareholder entitled thereto not fewer than 10 nor more than 90 days before the
meeting; provided, however, that within ten business days after receipt by the
Company, in person, or by registered mail, of a written request for a meeting by
the Shareholders holding not less than 10 percent of the outstanding Shares
entitled to vote at such meeting, the Company shall provide written notice of
such meeting to all Shareholders as provided above, and such meeting shall be
held not fewer than 20 nor more than 60 days after the Company's receipt of such
written request by the Shareholder; and, provided further, that if such notice
is not given within 10 business days after receipt of the request, the Person or
Persons requesting the meeting may give the notice. Nothing contained in this
Section 3.4 shall be construed as limiting, fixing or affecting the time when a
meeting of Shareholders called by action of the Directors may be held. All
notices given pursuant to this Section 3.4 shall state the place, date and hour
of the meeting and, (1) in the case of Special Meetings of the Shareholders, the
general nature of the business to be transacted, and no other business may be
transacted, or (2) in the case of Annual Meetings of the Shareholders, those
matters which the Directors, at the time of the mailing of the notice, intend to
present for action by the Shareholders, and (3) in the case of any meeting at
which Directors are to be elected, the names of the nominees intended at the
time of the mailing of the notice to be presented for election.
35 Record Date for Shareholder Notice, Voting and Giving Consents. For
purposes of determining the Shareholders entitled to notice of any meeting or to
vote or entitled to give consent to corporation action within a meeting, the
Directors may fix, in advance, a record date, which shall not be more than 60
days nor
-13-
<PAGE> 19
fewer than 10 days before the date of any meeting nor more than 60 days
before any action without a meeting, and in this event, only Shareholders of
record on the date so fixed are entitled to notice and to vote or to give
consents, as the case may be, notwithstanding any transfer of any Shares on the
books of the Company after the record date.
If the Directors do not so fix a record date:
(a) The record date for determining Shareholders entitled to notice of
or to vote at a meeting of the Shareholders shall be the later of the close
of business on the day on which notice is given or the 30th day before the
meeting.
(b) The record date for determining Shareholders entitled to give
consent to corporate action in writing without a meeting, (i) when no prior
action by the Directors has been taken, shall be at the close of business
on the day on which the first written consent is given, or (ii) when prior
action of the Directors has been taken, shall be at the close of business
on the day on which the Directors adopt the resolution relating to that
action, or the 60th day before the date of the other action, whichever is
later.
36 Adjourned Meetings; Notice. Any Annual Meeting or Special Meeting of the
Shareholders, whether or not a quorum, as prescribed by Section 3.8, is present,
may be adjourned from time to time by the vote of the majority of the Shares,
the holders of which are either present in person or represented by proxy. In
the absence of a quorum no other business may be transacted at the meeting.
When any Annual Meeting or Special Meeting of the Shareholders is adjourned
for more than 120 days after the original record date or if after the
adjournment a new record date is fixed for the adjourned meeting, notice of the
adjourned meeting shall be given as in the case of a Special Meeting of the
Shareholders as prescribed by Section 3.3. In all other cases, it shall not be
necessary to give any notice of an adjournment or of the business to be
transacted at any adjourned meeting other than by announcement that the meeting
at which the adjournment is taken.
37 Voting at Meetings of Shareholders. Subject to the provisions of the
General Corporation Law of Maryland, and subject to the right of the Directors
to provide otherwise, only a Person
-14-
<PAGE> 20
in whose name Shares entitled to vote standing on the stock records of the
Company on the record date shall be entitled to notice of and to vote at the
meeting, notwithstanding any transfer of any Shares on the books of the Company
after the record date.
The vote may be via voice or by ballot; provided, however, that all
elections for Directors must be by ballot upon demand made by any Shareholder at
any election and before the voting begins. Except as otherwise provided in
Article VII(b) of the Articles of Incorporation, each outstanding Share shall be
entitled to one vote on each matter submitted to a vote of Shareholders. No
Shareholder shall have the right to cumulative votes. The candidates receiving
the highest number of votes up to the number of Directors to be elected shall be
elected.
38 Quorum. The presence in person or by proxy of a majority of the Shares
entitled to vote at any meeting shall constitute a quorum for the transaction of
business. Except as provided in this Section 3.8, the affirmative vote of a
majority of the votes entitled to be cast at a duly held meeting at which a
quorum is present shall be an act of the Shareholders, unless a vote of a
greater or lesser number is required by the Articles of Incorporation, these
Bylaws or by the General Corporation Law of Maryland, except that a plurality of
all the votes cast at a meeting at which a quorum is present is sufficient to
elect a director. The Shareholders present at a duly called or held meeting at
which a quorum is present may continue to do business until adjournment,
notwithstanding the withdrawal of enough Shareholders to leave less than a
quorum, if any action taken (other than adjournment) is approved by at least a
majority of the Shares required to constitute a quorum.
Meetings of the Shareholders shall be presided over by the Chairman, or in
his absence, by the President, or in his absence, by a Vice President, or in the
absence of the foregoing persons by a chairman designated by the Directors, or
in the absence of such designation by a chairman chosen at the meeting. The
Secretary shall act as secretary of the meeting, but in his absence the chairman
of the meeting may appoint any person to act as secretary of the meeting. The
order of business at all meetings of the Shareholders shall be determined by the
chairman of the meeting. The order of business so determined, however, may be
changed by vote of the holders of a majority of Shares present in person or
represented by proxy.
39 Waiver of Notice or Consent of Absent Shareholders. The transactions of
any Annual Meeting or Special Meeting of the Shareholders, however called and
noticed, shall be as valid as though made at a meeting duly held after regular
call and notice,
-15-
<PAGE> 21
only if a quorum is present either in person or by proxy and if, either before
or after the meeting, each of the Shareholders entitled to vote, not present in
person or by proxy, signs a written waiver of notice or a consent to the holding
of the meeting or an approval of the minutes. All waivers, consents or approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting.
310 Action Without Meeting. Except as elsewhere provided in these Bylaws,
any action which may be taken at any Annual Meeting or Special Meeting of the
Shareholders may be taken without a meeting after the following are filed with
the records of Shareholders' meetings: (a) an unanimous written consent which
sets forth the action and is signed by each Shareholder entitled to vote and (b)
a written waiver of any right to dissent signed by each Shareholder entitled to
notice of the meeting but not entitled to vote at it.
Any Shareholder giving a written consent, or the Shareholder's proxyholder,
or a transferee of the Shares or personal representative of the Shareholder or
its respective proxyholder, may revoke the consent by a writing received by the
Company prior to the time that written consents of the number of Shares required
to authorize the proposed action have been filed with the Secretary, but may not
do so thereafter. The revocation is effective upon its receipt by the Secretary.
311 Proxies. Every Person entitled to vote or execute consents shall have
the right to do so either in person or by one or more agents authorized by a
written proxy executed by such Person or his duly authorized agent and filed
with the Secretary of the Company, provided that no such proxy shall be valid
after the expiration of 11 months from the date of its execution, unless the
Person executing it specifies in the proxy the length of time for which the
proxy is to continue in force.
A proxy shall be deemed signed if the Shareholder's name is placed on the
proxy whether by manual signature, typewriting, telegraphic transmission or
otherwise by the Shareholder or the Shareholder's attorney-in-fact. A validly
executed proxy which does not state that it is irrevocable shall continue in
full force and effect unless revoked by the Person executing it before the vote
pursuant to that proxy by (1) a writing delivered to the Company stating that
the proxy is revoked, (2) execution of a subsequent proxy, (3) attendance at the
meeting and voting in person (but only as to any items on which the Shareholder
chooses to vote in person), or (4) transfer of the Shares represented by the
proxy to a transferee who became a Shareholder of record prior to the record
date established for the vote. A validly executed
-16-
<PAGE> 22
proxy otherwise may be revoked by written notice of the death or incapacity of
the Person executing that proxy received by the Company before the vote pursuant
to that proxy is counted.
Any proxy distributed to 10 or more Shareholders must afford the Person
voting an opportunity to specify a choice among approval, disapproval or
abstention as to each matter or group of related matters, other than election of
Directors.
312 Inspectors of Election. Before any meeting of the Shareholders, the
Directors may appoint any persons other than nominees for office to act as
inspectors of election at the meeting or its adjournment. If no inspectors of
election are so appointed, the chairman of the meeting may, and on the request
of any Shareholder or a Shareholder's proxy shall, appoint inspectors of
election at the meeting. The number of inspectors shall be either one or three.
If inspectors are appointed at a Shareholders meeting on the request of one or
more Shareholders or Shareholders' proxies, the majority of Shareholders or
their proxies present at the meeting shall determine whether one or three
inspectors are to be appointed. If any person appointed as inspector fails to
appear or fails or refuses to act, the chairman of the meeting may, and upon the
request of any Shareholder or Shareholder's proxy shall, appoint a person to
fill that vacancy.
These inspectors shall:
(a) Determine the number of Shares outstanding, the Shares represented
at the meeting, the existence of a quorum, and the authenticity, validity
and effect of proxies;
(b) Receive votes, ballots or consents;
(c) Hear and determine all challenges and questions in any way arising
in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the election or
vote with fairness to all Shareholders.
-17-
<PAGE> 23
ARTICLE IV
DIRECTORS
41 Powers. Subject to limitations contained in the Articles of
Incorporation, the Bylaws and the General Corporation Law of Maryland relating
to action required to be authorized or approved by the Shareholders, or by a
majority of the outstanding Shares, and subject to the duties of Directors as
prescribed by the Bylaws, all corporate powers shall be exercised by or under
the authority of, and the business and affairs of the Company shall be
controlled by, the Directors. Each Director, including each Independent
Director, may engage in other business activities of the type conducted by the
Company and are not required to present to the Company any investment
opportunities presented to them even though the investment opportunities may be
within the Company's investment policies.
42 Number, Tenure and Qualifications. There shall initially be one
Director, which Director may be an Affiliated Director. The number of Directors
may from time to time be increased or decreased by a majority of the existing
Director(s), but may not exceed nine nor be fewer than three except that if
there shall be fewer than three Shareholders, the number of Directors may be
fewer than three but not fewer than the number of Shareholders. Once the
Securities and Exchange Commission declares the Registration Statement
effective, at least a majority of the Directors must be Independent Directors
except for a period of ninety days following the death, removal or resignation
of an Independent Director from the Company. Notwithstanding the foregoing, the
terms of office of Directors shall not be affected by any decrease or increase
in the number of Directors. At each Annual Meeting of the Shareholders,
Directors shall be elected for a term of office expiring at the next Annual
Meeting of the Shareholders after their election. Each Director may be
re-elected by the Shareholders. Directors need not be Shareholders. No bond is
required to secure the performance of a Director unless the Directors, as a
group, so require such bond. Each Director shall have at least three years of
relevant experience demonstrating the knowledge and experience required to
successfully acquire and manage the type of assets being acquired by the
Company, and at least one of the Independent Directors shall have three or more
years of experience in acquiring or managing the type of real estate to be
acquired by the Company for his or her own account or as an agent.
43 Nomination of Directors. (a) The Independent Directors shall nominate
persons to be elected as Independent Directors; provided however, that if there
are no Independent Directors, such Independent Directors shall be nominated by
the Directors. The
-18-
<PAGE> 24
Affiliated Directors shall nominate persons to be elected as Affiliated
Directors; provided however, that if there are no Affiliated Directors such
Affiliated Directors shall be nominated by the Directors.
(b) Subject to the provisions of this Section 4.3, only persons who
are nominated in accordance with the following procedures shall be eligible for
election as Directors. Nominations of persons for election as Directors may be
made at a meeting of Shareholders as set forth in Section 4.3(a), or by any
nominating committee or person appointed by the Directors, or by any Shareholder
entitled to vote for the election of Directors at the meeting who complies with
the notice procedures set forth in this Section 4.3(b). Such nominations, other
than those made by or at the direction of the Directors or by any nominating
committee or person appointed by the Directors shall be made pursuant to timely
notice in writing to the Secretary of the Company. To be timely, a Shareholder's
notice shall be delivered to or mailed and received at the principal office of
the Company not fewer than 30 days nor more than 60 days prior to the meeting;
provided, however, that in the event that fewer than 40 days' notice or prior
public disclosure of the date of the meeting is given or made to the
Shareholder, notice by the Shareholder to be timely must be so received not
later than the close of business on the 10th day following the day on which such
notice of the date of that meeting was mailed or such public disclosure was
made. Such Shareholder's notice shall set forth (i) as to each person whom the
Shareholder proposes to nominate for election or re-election as a Director, (A)
the name, age, business address and residence address of the person, (B) the
principal occupation or employment of the person, (C) the number of Shares which
are beneficially owned by the person and (D) any other information relating to
the person that is required to be disclosed in solicitations for proxies of
re-election of Directors pursuant to Rule 14(a) of the Exchange Act; and (ii) as
to the Shareholder giving notice (A) the name and record address of Shareholder
and (B) the number of Shares which are beneficially owned by the Shareholder.
The Company may require any proposed nominee to furnish such other information
as may reasonably be required by the Company to determine the eligibility of
such proposed nominee to serve as a Director.
(c) No person shall be eligible for election as a Director unless
nominated in accordance with the procedures set forth in this Section 4.3. The
chairman of the meeting shall, if the facts warrant, determine and declare to
the Shareholders at such meeting that a nomination was not made in accordance
with the foregoing procedure, that if he should so determine, he shall so
declare that the defective nomination shall be disregarded.
-19-
<PAGE> 25
(d) A person who has been declared of unsound mind by an order of the
appropriate court, or who has pled guilty or nolo contendere to or been
convicted of a felony involving moral turpitude shall not be qualified to serve
as a director.
44 Place of Meeting. Regular meetings of the Directors shall be held at any
place within or outside the State of Maryland which has been designated from
time to time by the Chairman or by a majority of the Directors or by written
consent of all Directors. In the absence of such designation, regular meetings
shall be held at the principal executive office of the Company. Special meetings
of the Directors may be held either at a place so designated by a majority of
the Directors or at the principal executive office of the Company. The Directors
may participate in a meeting through the use of conference telephones or similar
communication equipment, so long as all members participating in such meeting
can hear one another. Participation in a meeting by telephone or communication
equipment shall constitute presence in person at the meeting.
45 Organization Meeting. Immediately following each Annual Meeting of the
Shareholders, the Directors may hold a regular meeting for the purpose of
organization, election of officers and the transaction of other business. No
separate notice of such meeting is required.
46 Regular Meetings. Regular meetings of the Directors shall be held at
such time and on such dates as may be designated by the Directors at the
principal executive office of the Company or at any other place as may be
designated by the Directors.
47 Special Meetings. Special meetings of the Directors for any purpose or
purposes shall be called at any time by the Chairman of the Company or the
President or Vice President or the Secretary of the Company or any two
Directors.
Written notice of the time and place of such special meetings shall be
delivered personally to the Directors or sent to each Director by mail,
telecopier or by other form of written communication, with any charges prepaid,
addressed or telecopied to him at his address or telecopier number, as the case
may be, as the same appears upon the records of the Company, or if it is not so
shown or is not readily ascertained, at the place in which the meetings of
Directors are regularly held. In case the notice is mailed, it shall be
deposited in the United States mail in the place in which the principal
executive office of the Company is located at least four (4) days prior to the
time of the meeting. In case the notice is delivered personally, telecopied,
-20-
<PAGE> 26
telegraphed or by other electronic means, it shall be delivered, telecopied,
deposited with the telegraph company or communicated at least 48 hours prior to
the time of the meeting. Mailing, telecopying, telegraphing or delivery, as
provided in this Section 4.7, shall constitute due legal and personal notice to
the Director.
48 Entry of Notice. Whenever any Director has been absent from any special
meeting of the Directors, an entry in the minutes to the effect that notice has
been duly given shall be conclusive and incontrovertible evidence that due
notice of the special meeting was given to that Director as required by law and
these Bylaws.
49 Waiver of Notice. The holding of any meeting of the Directors, however
called and noticed, or wherever held, and the transaction of any business at
such meeting shall be as valid as though such meeting was held and business was
transacted at a meeting duly held after regular call and notice of a quorum
being present if, either before or after the meeting, each of the Directors not
present signs a written waiver of notice of or consent to holding the meeting
for an approval of the minutes. All waivers, consents or approvals shall be
filed with the corporate records or made a part of the minutes of the meeting.
410 Adjournment. A majority of the Directors present, whether or not a
quorum is present, may adjourn any Directors' meeting to another time and place.
411 Notice of Adjournment. If a meeting is adjourned for more than 24
hours, notice of any adjournment to another time or place shall be given prior
to the time of the adjourned meeting to the Directors who were not present at
the time of adjournment.
412 Quorum. A majority of the Directors shall be necessary to constitute a
quorum for the transaction of business, except to adjourn as provided in Section
4.10 or to fill a vacancy. Every act or decision done or made by a majority of
the Directors at a meeting duly held at which a quorum is present shall be
regarded as an act of the Directors unless a greater number is required by law
or by the Articles of Incorporation or these Bylaws. However, a meeting at which
a quorum is initially present may continue to transact business notwithstanding
the withdrawal of Directors, if any action taken is approved by at least a
majority of the required quorum for the meeting.
413 Fees and Compensation. The Directors shall be entitled to receive such
reasonable compensation for their services as Directors as may be calculated and
determined by the Chairman or
-21-
<PAGE> 27
by the Directors from time to time by resolution of the Directors; provided,
however, that Affiliated Directors shall not receive compensation from the
Company for their services as Directors or officers of the Company. The Company
may reimburse Directors for their reasonable expenses incurred in connection
with their services as Directors, including without limitation travel to and
attendance at each meeting of the Directors and any committee thereof, as well
as each Annual Meeting of the Shareholders. The Directors, either directly or
indirectly, shall also be entitled to receive remuneration for services rendered
to the Company in any other capacity. Those services may include, without
limitation, services as an officer of the Company, legal, accounting or other
professional services, or services as a broker, transfer agent or underwriter,
whether performed by a Director or any Affiliate of a Director.
414 Action Without Meeting. Any action required or permitted to be taken by
the Directors under the General Corporation Law of Maryland and these Bylaws may
be taken without a meeting if all Directors individually or collectively consent
in writing to such action. The consent or consents shall be filed with the
minutes of the meetings of the Directors.
Any certificate or other document filed under the provision of the General
Corporation Law of Maryland which relates to action so taken shall state that
the action was taken by unanimous written consent of the Directors without a
meeting.
415 Independent Directors. Notwithstanding any other provision of these
Bylaws, the Independent Directors, in addition to their other duties and to the
extent that they may legally do so, shall:
(a) Monitor the relationship of the Company with the Advisor. In this
regard, the Independent Directors as a group, in addition to all Directors
as a group, will monitor the Advisor's performance of its duties pursuant
to the Advisory Agreement, will approve any changes to the Advisory
Agreement and will determine at least annually that the Advisor's
compensation is reasonable in relation to the nature and quality of
services performed. This determination will be based on (i) the size of the
advisory fee in relationship to the size, composition and profitability of
the portfolio of the Company; (ii) the success of the Advisor in generating
opportunities that meet the investment objectives of the Company while the
Company has funds available for investments in Property and
-22-
<PAGE> 28
Loans; (iii) advisory fees paid to other advisors by other real estate
investment trusts and to advisors performing similar services by investors
other than real estate investment trusts; (iv) additional revenues realized
by the Advisor and its Affiliates through their relationship with the
Company, including loan administration, underwriting or broker commissions,
servicing, engineering, inspection and other fees, whether paid by the
Company or by others with whom the Company does business; (v) the quality
and extent of service and advice furnished by the Advisor; (vi) the
performance of the investment portfolio of the Company, including income,
conservation or appreciation of capital, frequency of problem investments
and competence in dealing with distress situations; (vii) quality of the
portfolio of the company in relationship to the investments generated by
the Advisor for its own account; and (viii) all other factors the
Independent Directors may deem relevant. The Independent Directors will
also determine that the Advisor's compensation is within the limits
prescribed by Section 7.6 hereof and Section 9 of the Advisory Agreement.
The findings of the Independent Directors shall be set forth in the minutes
of the meetings of the Directors.
(b) Approve all transactions between the Company and the Advisor or
any Affiliates of the Company or the Advisor. The material terms and
circumstance of all such approved transactions shall be fully disclosed in
the Annual Report of the Company as required by Section 11.8, and the
Independent Directors shall examine and comment in the Annual Report of the
Company on the fairness of such transactions.
(c) Review at least annually the Company's investment policies to
determine that the policies then being followed by the Company remain in
the best interests of the Shareholders. Each such determination of the
Independent Directors and the basis therefor shall be set forth in the
minutes of meetings of the Directors.
(d) Take reasonable steps to ensure that the Annual Report of the
Company is sent to Shareholders pursuant to Section 11.8 which shall
-23-
<PAGE> 29
include the report of the Independent Directors required by that Section,
and that the Annual Meeting of the Shareholders is conducted pursuant to
Article IV.
(e) Select Independent Appraisers for the following purposes: (i) to
determine the fair market value of assets in all cases in which assets are
acquired from the Sponsor, Advisor or any Affiliates, (ii) to determine the
Appraised Value of Properties or interests in Properties to be purchased by
the Company or its subsidiaries, and (iii) in all other cases so chosen by
a majority of the Independent Directors. All appraisals obtained hereunder
shall be maintained in the Company's records for at least five years and
shall be available for inspection and duplication by any Shareholder. The
Total Property Cost paid for such assets shall not exceed the Appraised
Value of such assets.
(f) Exercise the fiduciary responsibility of limiting Operating
Expenses to amounts that do not exceed the limitations set forth in Section
7.5.
(g) Shall review at least quarterly the aggregate borrowings, secured
and unsecured, of the Company to determine that the borrowings of the
Company in relation to Net Assets do not exceed the limitations set forth
in Section 7.7.
For all purposes, a transaction which is subject to approval by the
Independent Directors shall be approved if the Independent Directors voting to
approve the transactions in any vote of the Directors constitute a majority of
all Independent Directors serving at such time.
416 [RESERVED]
417 Removal of Director. A Director may be removed by the Shareholders only
upon the affirmative vote of at least a majority of all the votes entitled to be
cast at a meeting called for the purpose of removing the Director and the notice
of that meeting must state that the purpose, or one of the purposes of the
meeting, is the proposed removal of the Director. Any decrease in the number of
Directors shall not cause the removal of any
-24-
<PAGE> 30
Director prior to the expiration of such Director's term of office. Any Director
who fails to meet the qualification of a Director during his term shall be
deemed to have resigned as a Director and as a result of such deemed
resignation, a vacancy on the board shall have been created.
418 Vacancies. Any vacancy that shall occur in the Board of Directors by
reason of an increase in the authorized number of Directors or the death,
resignation, removal, adjudicated incompetence or any other incapacity
whatsoever of a Director shall be filled by a vote of a majority of the
remaining Directors and (a) in the case of an Affiliated Director, by a vote of
a majority of the remaining Affiliated Directors, or (b) in the case of an
Independent Director, by a vote of a majority of the remaining Independent
Directors (unless, in the case of clause (a) or (b), there are no remaining
Affiliated Directors or Independent Directors to so fill a vacancy, in which
case a majority vote of the remaining Directors shall be sufficient). If at any
time there shall be no Independent or Affiliated Directors in office, successor
Directors shall be elected by the Shareholders.
419 Committees. The Directors may, by resolution adopted by a majority of
the Directors, designate one or more committees, each consisting of two or more
Directors. The Directors may designate one or more Directors as alternate
members of any committee, who may replace any absent member at any meeting of
the committee. The appointment of members or alternate members of a Committee
requires the vote of a majority of the Directors. Any such committee, to the
extent provided in the resolution of the Directors, shall have all the authority
of the Directors in the management of the business and affairs of the Company;
provided, however, that no committee shall have authority to take any action
with respect to (a) the approval of any action requiring Shareholders' approval,
(b) the filling of vacancies among the Directors or any committee, (c) the
determination of compensation of Directors for serving as a Director or a member
of any committee, (d) the adoption, amendment or repeal of Bylaws, (e) the
amendment or repeal of any resolution of the Directors that by its express terms
is not so amendable or repealable, (f) any distribution to the Shareholders and
(g) the establishment of other committees or the members thereof. A majority of
the Directors on all committees must be Independent Directors and only
Independent Directors may serve as alternate members for Independent Directors
on committees.
420 Fiduciary Relationship. The Directors have a fiduciary relationship to
the Shareholders as provided by applicable law of the State of Maryland, which
includes a fiduciary duty to the Shareholders to supervise the relationship of
the Company with the
-25-
<PAGE> 31
Advisor. A majority of the Independent Directors must approve matters to which
Sections 4.15, 4.21(d), 4.22, 6.7, 6.8, 6.9, 7.1, 7.2, 7.4, 7.5, 7.6, 7.7,
8.1(i), 9.1, 11.1, 11.8, 11.10 and 12.1 of these Bylaws apply.
421 Delegation of Authority. (a) Subject to the responsibility of the
Directors to supervise the management of the Company, the Directors may assign
administrative power, and may delegate to the Advisor or its Affiliates certain
responsibilities with respect to the making of investments in Property and
Loans. Specifically, pursuant to such delegation as specifically set forth in
the Advisory Agreement, the Directors have delegated to the Advisor or its
Affiliates the authority to (1) locate and analyze opportunities for investments
in Property and Loans; (2) structure the terms and conditions of transaction
pursuant to which investments in Property and Loans will be made, acquired or
purchased for the Company, (3) make investments in Property and Loans in
compliance with the investment objectives and policies of the Company; (4)
finance, refinance, make changes in the asset or capital structure of, and
dispose of or otherwise deal with, the Company's investments in Property and
Loans, (5) enter into leases and service contracts for investments in Property,
and perform other property level operational functions, (6) oversee
non-Affiliated property managers and other non-Affiliated third parties that
perform services for the Company, and (7) undertake accounting and other
record-keeping functions at the property level.
(b) Notwithstanding the foregoing, the acquisition of Property by the
Company (as well as any financing acquired by the Company in connection with
such acquisition) will require the prior approval of the Directors unless the
Advisor satisfies all of the requirements set forth in this Section 4.21. Prior
to completion of any such transaction involving investments in Property, the
Advisor must provide the Company with:
(1) an appraisal for the Property indicating that the Total
Property Cost of the Property does not exceed the Appraised Value of
the Property; and
(2) a representation from the Advisor that the Property, in
conjunction with the Company's other investments and proposed
investments, at the time the Company is committed to purchase the
Property, is reasonably expected to fulfill the Company's investment
objectives and policies as
-26-
<PAGE> 32
established by the Directors and then in effect.
(c) If a transaction requires approval by the Independent Directors,
the Advisor will deliver to the Independent Directors all documents required by
them to properly evaluate the proposed investment in such Property or such Loan.
(d) Notwithstanding the foregoing, the prior approval of the
Directors, including a majority of the Independent Directors, will be required
for transactions involving (A) investments in Properties in respect of which all
of the requirements specified in Section (b) above have not been satisfied, (B)
investments in Properties made through joint venture arrangements with
Affiliates of the Advisors, (C) investments in Properties which are not
contemplated by the terms of the Prospectus, (D) transactions that present
issues which involve conflicts of interest for the Advisor (other than conflicts
involving the payment of fees or the reimbursement of expenses), (E) investments
in equity securities, and (f) the lease of assets to the Sponsor, any Director
or the Advisor.
(e) The Directors may, at any time upon the giving of notice to the
Advisor, modify or revoke the authority set forth in this Section 4.21. If and
to the extent the Directors so modify or revoke the authority contained herein,
the Advisor shall thereafter submit to the Directors for approval all such
proposed investments as thereafter require prior approval, provided however,
that such modification or revocation shall not be applicable to any investment
transactions to which the Advisor has committed the Company prior to the date of
receipt by the Advisor of such notification.
4.22 Listing of Shares. The Company upon the vote of a majority of the
Directors (including a majority of the Independent Directors) and without the
approval of Shareholders may list the Company's Shares or Securities on a
national securities exchange or include the Shares for quotation on NASDAQ.
4.23 Abstention from Voting. Neither the Directors nor their Affiliates
will consent or vote any of the shares they now own or hereafter acquire on any
matters submitted to the Shareholders regarding either (i) the removal of the
Advisor, Directors or any Affiliate; or, (ii) any transaction between the
Company and the Advisor, Director or any Affiliate.
ARTICLE V
-27-
<PAGE> 33
OFFICERS
5.1 Officers. The officers of the Company shall be determined by the
Directors and shall include a President, a Treasurer and a Secretary, and may
include a Chairman and such other officers with such titles and duties as may be
appointed in accordance with the provisions of Section 5.3. In the absence of
any designation, the Chairman of the Board, if there be one, shall serve as
chief executive officer and the President shall serve as chief operating
officer. In the absence of the Chairman of the Board or if there be none, the
President shall be the chief executive officer. The same person may hold both
offices. Any number of offices may be held by the same Person provided that no
person may serve concurrently as both president and vice president.
5.2 Election. The officers of the Company, except such officers as may be
appointed in accordance with the provisions of Section 5.3 or Section 5.5, shall
be chosen annually by the Directors to serve at the request of the Directors,
and each shall hold his office until he shall resign or shall be removed or
otherwise disqualified to serve or his successor shall be elected and qualified.
All officers serve at the will of the Directors and nothing in these Bylaws
shall give any officer any expectation or vesting of employment.
5.3 Subordinate Officers. The Directors may appoint other officers as the
business of the Company may require, each of whom shall hold office for the
period, have the authority and perform the duties as are provided in the Bylaws
or as the Directors may from time to time determine.
5.4 Removal and Resignation. Any officer may be removed, either with or
without cause, by a vote of a majority of the Directors, at any regular or
special meeting of the Directors.
Any officer may resign at any time by giving written notice to the
Directors or to the Chairman, the President or to the Secretary of the Company.
A resignation shall take effect at the date of the receipt of the notice or any
later time specified in the notices; and, unless otherwise specified, the
acceptance of the resignation shall not be necessary to make it effective.
5.5 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause shall be filled in the manner
described in Section 5.3 for regular appointments to such office.
-28-
<PAGE> 34
5.6 Chairman of the Board. The Chairman of the Board, if elected, shall be
the Chief Executive Officer of the Company, and, if present, preside at all
meetings of the Directors and Shareholders and exercise and perform all other
powers and duties as may from time to time be assigned to him by the Directors
or prescribed by the Bylaws.
5.7 President. The President of the Company shall, subject to the Directors
and the supervisory powers of the Chairman of the Company, have general
supervision and control of the business of the Company. He shall preside at
meetings of the Shareholders or at meetings of the Directors if the Chairman of
the Company is absent. He shall have general powers and duties of management,
together with any other powers and duties as may be prescribed by the Directors
or the Bylaws.
5.8 Vice Presidents. In the case of absence, disability or death of the
President, the Vice Presidents of the Company in order of their rank as fixed by
the Directors, or, if not ranked, the Vice President designated by the
Directors, shall exercise all the powers and perform all the duties of the
President. The Vice Presidents shall have any other powers and shall perform
other duties as from time to time may be prescribed for them respectively by the
Directors or the Bylaws.
5.9 Secretary. The Secretary of the Company shall keep, or cause to be
kept, a book of minutes at the principal executive office of the Company, or any
other place as the Directors may order, of all meetings of Directors and
Shareholders, with the time and place of holding, whether regular or special
and, if special, how authorized, the notice thereof given, the names of those
present at Directors' meetings, the number of Shares present or represented at
Shareholders' meetings and the proceedings of meetings.
The Secretary shall keep, or cause to be kept, at the principal office of
the Company or at the office of the transfer agent of the Company, a Share
register or duplicate Share register showing the names of the Shareholders and
their addresses and telephone numbers, the number and classes of Shares held by
each (whether in certificate or "unissued certificate" form), the number and the
date of certificates issued, if any, and the number and date of cancellation of
every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings of
the Shareholders and of the Directors required by the Bylaws or by law to be
given, shall keep the seal of the Company in safe custody and shall have such
other powers and shall perform
-29-
<PAGE> 35
such other duties as may be prescribed by the Directors or by the Bylaws.
5.10 Assistant Secretaries. In the absence or disability of the Secretary,
the Assistant Secretaries of the Company, in order of their rank as fixed by the
Directors or, if not ranked, the Assistant Secretary designated by the
Directors, shall perform all the duties of the Secretary and, when so acting,
shall have the powers of the Secretary. The Assistant Secretaries shall have any
other powers and shall perform other duties as from time to time may be
prescribed for them respectively by the Directors or the Bylaws.
5.11 Treasurer. The Treasurer of the Company shall have custody of all
moneys and securities of the Company and shall keep regular books of account.
Such officer shall disburse the funds of the Company in payment of the just
demands against the Company, or as may be ordered by the Directors, taking
proper vouchers for such disbursements, and shall render to the Directors from
time to time as may be required of such officer, an account of all transactions
as Treasurer and of the financial condition of the Company. Such officer shall
perform all duties incident to such office or which are properly required by the
President or by the Directors.
5.12 Assistant Treasurers. The Assistant Treasurer or Assistant Treasurers
of the Company shall assist the Treasurer in the performance of his duties and,
in the order of their seniority, shall, in the absence or disability of the
Treasurer, or in the event of such officer's refusal to act, perform the duties
and exercise the powers of the Treasurer, and shall have such powers and
discharge such duties as may be assigned from time to time by the President or
by the Directors.
ARTICLE VI
SHARES OF STOCK
6.1 Shareholder Suitability Standards. The Company has established
suitability standards for initial Shareholders and subsequent transferees. These
suitability standards require that a Shareholder have either (i) a net worth of
at least $150,000 or (ii) a gross annual income of at least $45,000 and a net
worth of at least $45,000. Missouri residents must have either (i) a net worth
of at least $250,000 or (ii) a gross annual income of $75,000 and a net worth of
at least $75,000. North Carolina residents must have either (i) a minimum net
worth of at least $225,000 or (ii) a taxable annual income of at least $60,000
and a net worth of at least $60,000. Computations of net worth for
-30-
<PAGE> 36
purposes of each of the above suitability standards exclude the value of a
Shareholder's home, furnishings and automobiles. In the case of sales to
fiduciary accounts, the foregoing standards must be met by the fiduciary
account, by the Person who directly or indirectly supplied the funds for the
purchase of the Shares or by the beneficiary of the account. These suitability
standards are intended to ensure that, given the long-term nature of an
investment in the Company, the Company's investment objectives and the relative
illiquidity of the Shares, a purchase of Shares is an appropriate investment for
certain investors.
The Sponsor and each Selected Dealer selling Shares will make every
reasonable effort to determine that the purchase of Shares is a suitable and
appropriate investment for each Shareholder. This determination will be made on
the basis of information obtained from a prospective Shareholder. Each Selected
Dealer will maintain records for at least 6 years of the information used to
make this determination.
6.2 Registration of Ownership of Shares. The Company shall not issue
certificates for its Shares, but if the Directors subsequently determine that
the Shares are to be traded on a national securities market, such as the New
York Stock Exchange, American Stock Exchange, or listed for quotation on NASDAQ,
or if the Directors determine that it is otherwise necessary to issue
certificates, certificates shall be issued and transferred in accordance with
these Bylaws, but need not be issued if the Shareholder elects to have his
Shares maintained in "unissued certificate" form. The Persons in whose names
certificates of Shares in "unissued certificate" form are registered on the
books and records of the Company shall be deemed the absolute owners of the
Shares represented thereby for all purposes; but nothing in these Bylaws shall
be deemed to preclude the Directors or officers, or their agents or
representatives, from inquiring as to the actual ownership of Shares. The Shares
are non-assessable. Until a transfer is duly effected on the books and records
of the Company, the Directors shall not be affected by any notice of transfer,
either actual or constructive. The receipt by the Person in whose name any
Shares are registered on the records of the Company of the duly authorized agent
of that Person, or if the Shares are so registered in the names of more than one
Person, the receipt of any one of those Persons, or of the duly authorized agent
of that Person, shall be a sufficient discharge for all dividends payable or
deliverable in respect of the Shares and from all liability to see the
application of those funds. The certificates of Shares, if any, shall be in a
form consistent with the Articles of Incorporation and the laws of the State of
Maryland and shall be approved by the Directors. All certificates shall be
signed by the Chairman of the Company or the President or
-31-
<PAGE> 37
a Vice President and by the Treasurer or the Secretary or any Assistant
Secretary, certifying the number of Shares owned by the Shareholder. Any or all
of the signatures on the certificate may be facsimile if the certificate is
countersigned by a Transfer Agent, or registered by a registrar, other than the
Company or an employee of the Company.
6.3 Transfer of Shares. Subject to the provisions of law and of Sections
6.4, 6.5 and 6.6, Shares shall be transferable on the records of the Company
only by the record holder or by his duly authorized agent in writing upon
delivery to the directors or a transfer agent of the certificate or certificates
(unless held in "unissued certificate" form, in which case an executed stock
power duly guaranteed must be delivered), properly endorsed or accompanied by
duly executed instruments of transfer and accompanied by all necessary
documentary stamps together with evidence of the genuineness of each
endorsement, execution or authorization and of other matters as may reasonably
be required by the Directors or a transfer agent. Upon delivery, the transfer
shall be recorded in the records of the Company and a new certificate, if
requested, for the Shares so transferred shall be issued to the transferee and
in case of a transfer of only a part of the Shares represented by any
certificate or account, a new certificate or statement of account for the
balance shall be issued to the transferror. Any Person becoming entitled to any
Shares as a consequence of the death of a Shareholder or otherwise by operation
of law shall be recorded as the holder of such Shares and shall receive a new
certificate, if requested, but only upon delivery to the Directors or a transfer
agent of instruments and other evidence required by the Directors or a transfer
agent to demonstrate that entitlement, the existing certificate (or appropriate
instrument of transfer if held in "unissued certificate" form) for the Shares
and any necessary releases from applicable governmental authorities. Nothing in
these Bylaws shall impose upon the Directors or a transfer agent any duty or
limit to their rights to inquire into adverse claims. Notwithstanding anything
herein to the contrary, unless the Shares are included for quotation on NASDAQ
or are traded on a national securities exchange, certificates evidencing the
Shares will not represent negotiable stock certificates. As prescribed by
Section 4.22, the Directors shall retain the authority to list the Shares for
quotation on NASDAQ or on a national or regional stock exchange, if the
Directors (including a majority of the Independent Directors) so choose and if
the Shares are so listed, the Shareholders shall receive the appropriate
certificates.
6.4 Disclosures by Shareholders; Redemption of Shares. The Shareholders
shall upon demand disclose to the Directors in writing such information with
respect to direct and indirect
-32-
<PAGE> 38
ownership of their Shares as the Directors deem necessary to comply with the
provisions of the Code and applicable regulations or to comply with the
requirements of any other taxing authority. If the Directors shall at any time
and in good faith be of the opinion that direct or indirect ownership of the
Shares has or may become concentrated to an extent which would prevent the
Company from qualifying as a REIT under the REIT Provisions, the Directors shall
have the power by lot or other means deemed equitable by them to prevent the
transfer of and/or call for redemption of the number of Shares sufficient in the
opinion of the Directors to maintain or bring the direct or indirect ownership
of the Shares into conformity with the requirements for a REIT. The redemption
price shall be the lesser of the price paid for such Excess Shares by the
Shareholder in whose possession the redeemed Shares were formerly Excess Shares
or the fair market value of such Excess Shares. The Shareholders of any Shares
so called for redemption shall be entitled to payment of such redemption price
within 21 days of the redemption date. Shareholders owning Excess Shares are not
entitled to Dividends, voting rights or other benefits with respect to their
Excess Shares, excepting only to the right to payment of the redemption price
fixed as described in this Section 6.4. The redemption date, with respect to any
Shareholder, shall be the date which is 30 days after the date postmarked on the
disclosure demand made by the Directors under this Section 6.4, or, if such date
is not a business day, on the next business day thereafter. For the purpose of
this Section 6.4, the term "individual" shall be construed as provided in
Section 542(a)(2) of the Code, or any successor provisions and "ownership" of
Shares shall be determined a provided in Section 544 of the Code, or any
successor provision.
6.5 Right to Refuse to Transfer the Shares. Whenever it is deemed by them
to be reasonably necessary to protect the tax status of the Company, the
Directors may require statements or affidavits from any Shareholders or proposed
transferees of the Shares or warrants to purchase such Shares, setting forth the
number of Shares (and warrants to purchase such shares) already owned by the
Person and any related Person specified in the form prescribed by the Directors
for that purpose. If, in the opinion of the Directors, which shall be conclusive
upon any proposed transferror or proposed transferee of Shares, or warrants to
purchase such shares, any proposed transfer or exercise would jeopardize the
status of the Company as a REIT under the Code, the Directors may refuse to
permit the transfer of Shares or exercise of warrants. Pursuant to Article VII
of the Articles of Incorporation, no Person (as that term is defined in Article
VII(c)(iii) of the Articles of Incorporation) may own more than 9.8 percent of
the outstanding Shares ("Ownership Limit"), and no Shares or other subsequently
issued Securities (as that term is
-33-
<PAGE> 39
defined by Article VII(c)(iv) of the Articles of Incorporation) shall be
accepted, purchased or in any manner acquired by any Person if such issuance or
transfer acquired by any Person if such issuance or transfer would result in
that Person's ownership of Shares and/or Securities, together, exceeding the
Ownership Limit. The Directors shall have the authority to lower the Ownership
Limit in order to preserve the Company's status as a REIT under the Code. All
contracts for the sale or other transfer or exercise of the Shares or warrant to
purchase such Shares shall be subject to this provision.
6.6 Lost or Destroyed Certificates. The holder of any certificate for
Shares shall immediately notify the Company of any loss or destruction of the
certificates for Shares, and the Company may issue a new certificate in the
place of any certificate alleged to have been lost or destroyed upon approval of
the Directors. The Directors may, in their discretion, as a condition to
authorizing the issue of such new certificate, require the owner of the lost or
destroyed certificate, or his legal representative, to make proof satisfactory
to the Directors of the loss or destruction and to give the Company a bond or
other security, in such amount and with such surety or sureties, as the
Directors may determine as indemnity against any claim that may be made against
the Company on account of the certificate alleged to have been lost or
destroyed.
6.7 Dividends to Shareholders. Subject to the conditions set forth in this
Article VI, the Directors shall declare Dividends from time to time to
Shareholders of record on the record dates, as determined by the Directors
regardless of whether such Shareholder was a Shareholder for all or only a
portion of the period covered by such record dates. Dividends declared for
Shareholders of record on one or more such record dates within a calendar
quarter shall be paid within a reasonable time after the end of such calendar
quarter. Dividends will be apportioned among Shareholders pro rata based upon
the number of outstanding Shares held by them on the record date(s). In the
event that the aggregate Dividend payable to any Shareholder on account of the
total number of Shares owned on any record date is an amount which includes a
fraction of a cent, the aggregate Dividend payable to the Shareholder shall be
increased to the next highest whole cent. The Directors may fix a date in the
future as a record date for the determination of the Shareholders entitled to
receive any Dividend, and such record date shall not be more than 60 nor fewer
than 10 days prior to the date of the event for the purposes of which it is
fixed. Such Dividends, if any, shall be in cash or readily marketable securities
and may be made from any source, provided that such Dividends comply with the
Code and the General Corporation Law of Maryland; provided however, that if such
-34-
<PAGE> 40
Dividends are made from borrowed funds, declaration thereof shall require
approval by a majority of the Independent Directors. In any event, the Directors
shall, from time to time, declare and pay to the Shareholders such Dividends as
may be necessary to continue to qualify the Company as a REIT, so long as such
qualification, in the opinion of the Directors, is in the best interest of the
Shareholders.
6.8 ERISA Limitations. In the event that either (i) the assets of the
Company would constitute plan assets for purposes of ERISA or (ii) the
transactions contemplated hereunder would constitute prohibited transactions
under ERISA or the Code and an exemption for such transactions could not be
obtained from the Department of Labor, the Directors shall have the right (upon
notice to all Shareholders but without the need to obtain the consent of any
Shareholder) (a) to restructure the Company's activities to the extent necessary
to obtain a prohibited transaction exemption from the Department of Labor or to
comply with any exemption in legislature or the applicable Department of Labor
Regulations, as may be amended from time to time, including by establishing a
fixed percentage of Shares permitted to be held by employee benefit plans or
other tax-exempt entities or by discontinuing sales to such plans or entities as
necessary or (b) to terminate the Offering or compel a dissolution and
termination of the Company.
6.9 Repurchase of Shares on Open Market. The Company may purchase its
Shares on the open market out of funds legally available therefor, provided
that, the consent of the Directors including a majority of the Independent
Directors, shall have been obtained.
ARTICLE VII
EMPLOYMENT OF ADVISOR, LIMITATION
ON EXPENSES AND LEVERAGE
7.1 Employment of Advisor. The Directors have absolute and exclusive
control of the management of the Company, its assets and the disposition
thereof. The Directors are responsible for the general policies of the Company
and for general supervision of the business of the Company conducted by all
officers, agents, employees, advisors, managers or independent contractors of
the Company as may be necessary to insure that the business conforms to the
provisions of these Bylaws. However, the Directors shall not be required
personally to conduct all the business of the Company, and shall have the power
to appoint, employ or contract with any Person (including one or more of
themselves or any corporation, partnership, or company in which one or more of
them
-35-
<PAGE> 41
may be directors, officers, stockholders, partners or directors) as the
Directors may deem necessary or proper in their sole discretion for the
transaction of the business of the Company. The Directors may employ or contract
the Advisor and subject to Section 4.21 the Directors may grant or delegate
authority to the Advisor or its Affiliates as the Directors may in their sole
discretion deem necessary or desirable without regard to whether that authority
is normally granted or delegated by Directors. The contract with the Advisor
must be approved by a majority of the Independent Directors.
The Directors, subject to the approval of a majority of the Independent
Directors and the provisions of this Article VII, shall have the power to
determine the terms and compensation of the Advisor or any Person whom they may
employ or with whom they may contract; provided, however, that any determination
to employ or contract with any Person shall be valid only if made, approved or
ratified by a majority of the Independent Directors. The Directors may exercise
broad discretion in allowing the Advisor to administer and regulate the
operations of the Company and any wholly-owned subsidiary corporations, to act
as agent for the Company and any wholly-owned subsidiary corporations, to
execute documents on behalf of the Company and any wholly-owned subsidiary
corporations, and to make executive decisions which conform to general policies
and general principles previously established by the Directors. The Directors
must evaluate the performance of the Advisor and the criteria used in such
evaluation shall be reflected in the minutes of the meeting at which such
evaluation was conducted.
Any commission or other remuneration received by an Affiliate, or an
Affiliate of an Affiliate, of the Company in connection with the acquisition or
disposal of Company assets shall be included in the total of the fees paid to
the Advisor and be subject to the limitations set forth in this Article VII.
7.2 Term. The Directors shall not enter into any Advisory Agreement with
the Advisor unless the agreement has a term of no more than one year (except for
the initial term of such agreement) and provides for annual renewal or extension
thereafter. The Advisory Agreement may be terminated without penalty by the
Advisor for Good Reason upon 60 days' written notice or by the Company without
cause or penalty by action of a majority of the Independent Directors or
Shareholders upon 60 days' written notice, in a manner to be set forth in the
Advisory Agreement. The Advisory Agreement shall so require the Advisor to
cooperate with the Company to provide an orderly management transition after any
termination. The Directors shall determine that any successor Advisor is
qualified to (a) perform advisory functions for the
-36-
<PAGE> 42
Company and (b) justify the compensation provided for in the Advisory Agreement.
7.3 Other Activities of Advisor. The Advisor shall not be restricted to
administering the investment activities of the Company as its sole and exclusive
function and may have other business interests and may engage in other
activities similar or in addition to those relating to the Company, including
the performance of services and advice to other Persons (including other REITs)
and the management of other investments (including investments of the Advisor
and its Affiliates). The Directors may request the Advisor to engage in other
activities which complement the Company's investments, and the Advisor may
receive compensation or commissions for those activities from the Company or
other Persons. Nothing herein shall limit or restrict the right of any director,
officer, employee or shareholder of the Advisor, whether or not also a Director,
officer or employee of the Company, to engage in any other business or to render
services of any kind to any other partnership, corporation, firm, individual,
trust or association. The Advisor with or without remuneration may render advice
and service to Persons involved with investments in Property and Loans.
The Advisor shall be required to use its best efforts to present a
continuing and suitable investment program to the Company which is consistent
with the investment policies and objectives of the Company, but neither the
Advisor nor any Affiliate of the Advisor shall be obligated generally to present
any particular investment opportunity to the Company even if the opportunity is
of character which, if presented to the Company, could be taken by the Company.
In the event that the Advisor or its Affiliates is presented with a
potential investment which might be made by the Company or any wholly-owned
subsidiary corporation and by another investment entity which the Advisor or its
Affiliates advises or manages, the Advisor shall consider the investment
portfolio of each entity, cash flow of each entity, the effect of the
acquisition on the diversification of each entity's portfolio, rental payments
during any renewal period, the estimated income tax effects of the purchase on
each entity, the policies of each entity relating to leverage, the funds of each
entity available for investment, the amount of equity required to make the
investment and the length of time such funds have been available for investment.
To the extent that a Property might be suitable for the Company or any
wholly-owned subsidiary corporation and for another investment entity which is
advised or managed by the Advisor, the Advisor shall give priority to the
investment entity, including the Company or any wholly-owned subsidiary
corporation, which has uninvested funds
-37-
<PAGE> 43
for the longest period of time. The Advisor may consider the Property for
private placement only if such Property is deemed inappropriate for any
investment entity, including the Company. It shall be the responsibility of the
Directors (including the Independent Directors) to insure that the method used
to allocate transactions is applied fairly to the Company.
7.3A Abstention from Voting. The Advisor will abstain from voting any
Shares it now owns or hereafter acquires in any vote for the election of
Directors or any vote regarding the approval or termination of any contract with
the Advisor or any of its Affiliates.
7.4 Limitation on Organization, Offering and Acquisition Fees and Expenses.
The Organization and Offering Expenses shall be reasonable. To the extent that
all Organizational and Offering Expenses (excluding selling commissions, certain
monitoring fees paid to the Sales Agent with respect to Shares sold to clients
of the Sales Agent or Selected Dealers, and fees paid and expenses reimbursed to
Selected Dealers) exceed 3.5% of the Gross Offering Proceeds, the excess will be
paid by the Advisor. To the extent that all Organizational and Offering Expenses
(including such commissions, aggregate monitoring fees and such fees and expense
reimbursements) exceed 15% of the Gross Offering Proceeds, the excess also will
be paid by the Advisor. The total of all Acquisition Fees (including
Subordinated Acquisition Fees and any interest thereon) and Acquisition Expenses
shall be reasonable and shall not exceed an amount equal to 6% of the aggregate
Contract Purchase Price of all Properties purchased by the Company, unless a
majority of the Directors (including a majority of the Independent Directors)
not otherwise interested in any transaction approves fees in excess of this
limit as being commercially competitive, fair and reasonable to the Company. In
the event that the Sponsor holds property on an interim basis on behalf of the
Company, all profits and losses generated from that Property during the interim
period will be paid to the Company.
7.5 Limitation on Operating Expenses. The total Operating Expenses of the
Company, calculated quarterly, shall not exceed the 2%/25% Guidelines and the
Advisor shall reimburse the Company at least annually for the amount by which
Operating Expenses exceed such limitation. In the event the Operating Expenses
payable or reimbursable by the Company exceed such limitation and the
Independent Directors determine that such excess expenses were justified based
on such unusual and non-recurring factors which they deem sufficient, the
Advisor may be reimbursed in future years for the full amount of such excess
expenses, or any portion thereof, but only to the extent such reimbursement
would not cause the Company's Operating Expenses to exceed the 2%/25% Guidelines
-38-
<PAGE> 44
in any such year. Within 60 days after the end of any fiscal quarter of the
Company for which Operating Expenses (for the 12 months then ended) do exceed
the 2%/25% Guidelines and the Independent Directors determine that such excess
Operating Expenses are justified, there shall be sent to the Shareholders a
written disclosure of such fact, together with an explanation of the factors the
Independent Directors considered in ascertaining that such excess Operating
Expenses were justified. In no event shall the Operating Expenses paid by the
Company in any 12-month period ending at the end of a fiscal quarter exceed the
2%/25% Guidelines. All figures used in the foregoing computation shall be
determined in accordance with generally accepted accounting principles applied
in a consistent basis. If the Advisor receives an incentive fee for the sale of
Property, Net Income, for purposes of calculating the Operating Expenses, shall
exclude the gain from the sale of such Property.
7.6 Limitations on Real Estate Brokerage Commissions on Resale of Property.
If the Advisor, any Director or any Affiliate thereof provides a substantial
amount of the services (as determined by a majority of the Independent
Directors) in the effort to sell a Property, then such Person may receive a fee
in the amount equal to the lesser of (i) 50% of the Competitive Real Estate
Commission and (ii) 3% of the Contract Sales Price for such Property. Total real
estate or brokerage commissions payable to all Persons shall not exceed the
lesser of (a) the Competitive Real Estate Commission or (b) an amount equal to
6% of the Contract Sales Price.
7.7 Limitation on Leverage. Although there is no limit on the amount which
may be borrowed to finance the acquisition of any specific Property, aggregate
borrowings as of the time that the net proceeds of the Offering have been fully
invested and at the time of each subsequent borrowing may not exceed 75% of the
value of all Properties unless such excess is approved by a majority of the
Independent Directors and disclosed to Shareholders in the next quarterly report
of the Company, along with the reason for such excess. For purposes of
determining the maximum allowable amounts of indebtedness, "value" means the
lesser of (i) the total Appraised Value of the Properties as reflected in the
most recently obtained appraisal for each Property and (ii) the total value of
the assets of the Company as reflected in the most recently completed Valuation.
7.8 Limitation on Incentive Fee. In the event of liquidation, the Advisor
will receive a 15% interest in the gain from the sale of the Company's assets
after the Shareholders receive 100% of their invested capital plus a 7%
cumulative return. In the event the shares are listed on a national
-39-
<PAGE> 45
securities exchange or included for quotation on NASDAQ, the Company will pay
the Advisor a graduated Subordinated Incentive Fee starting at 12% of the Excess
Return and increasing to 15% as the cumulative return to investors rises from
7.0% to 10.0%. The Subordinated Incentive Fee would not be paid until the
average of the closing prices of the Company's stock over any consecutive
three-month period completed within 24 months of the date the shares are listed
is sufficient, when combined with the dividends previously paid, to enable
investors to realize an annual cumulative return of 6% plus a return of 100% of
invested capital.
ARTICLE VIII
RESTRICTIONS ON INVESTMENTS AND ACTIVITIES
8.1 Restrictions. Notwithstanding any other provisions of these Bylaws, the
Company shall not:
(a) invest in commodities or commodity future contracts, such
limitation not being applicable to future contracts when used solely for
hedging purposes in connection with the Company's ordinary business of
investing in real estate assets and mortgages;
(b) invest in contracts for the sale of Property unless such contract
is in recordable form and is appropriately recorded in the chain of title,
provided, however, that in no event shall investments in such contracts
exceed 1% of the total assets of the Company;
(c) engage in any short sale, or borrow, on an unsecured basis, if
such borrowing will result in asset coverage of less than 300%. "Asset
coverage," for the purpose of this subsection, means the ratio which the
value of the total assets of the Company, less all liabilities and
indebtedness for unsecured borrowings, bears to the aggregate amount of all
unsecured borrowings of the Company;
(d) make investments in Unimproved Real Property or indebtedness
secured by a deed of trust or mortgage loans on Unimproved Real Property in
excess of 10% of the total assets of the Company;
(e) issue equity securities on a deferred payment basis or other
similar arrangement;
-40-
<PAGE> 46
(f) issue debt securities in the absence of adequate cash flow to
cover debt service;
(g) issue equity securities which are non-voting or assessable;
(h) issue "redeemable securities" as defined in Section 2(a)(32) of
the Investment Company Act of 1940;
(i) grant warrants or options to purchase Shares or other voting
Securities of the Company unless such warrants or options (i) are issued
ratably to the holders of all Shares and voting Securities or (ii) are
issued as part of a financing arrangement; provided that options will be
issued to Persons not connected with the Company if the issuance is part of
a financing arrangement and that any warrants or options issued are at an
exercise price greater than or equal to the fair market value of the Shares
or voting Securities on the date of the grant and for consideration
(including services) that in the judgment of a majority of the Independent
Directors has a market value at least equal to the value of the warrant or
option on the date of grant, and the warrants and options granted to the
Advisor, Sponsor, Directors or Affiliates thereof are granted on the same
terms as such warrants and options are sold to the general public and do
not exceed an amount equal to 10% of the outstanding Shares on the date of
grant of such warrants and options;
(j) engage in trading, as compared with investment activities, or
engage in the business of underwriting or the agency distribution of
securities issued by other Persons;
(k) invest more than 5% of the value of the Company's assets in the
securities of any one issuer if such investment would cause the Company to
fail to qualify as a REIT;
(l) invest in securities representing more than 10% of the outstanding
voting securities of any one issuer if such investment would cause the
Company to fail to qualify as a REIT;
-41-
<PAGE> 47
(m) enter into joint ventures or general partnerships and other
participations with nonaffiliates unless the Company acquires a controlling
interest in such investment for the purpose of obtaining an equity interest
in a particular Property or Properties in accordance with the Company's
investment policies but in no case shall duplicate fees be permitted. For
the purpose of this Section 8.1(n), "controlling interest" means an equity
interest possessing the power to direct or cause the direction of the
management and policies of the joint venture or general partnership. In the
event that the Company enters into a joint venture or general partnership
or other participation with an Affiliate and a nonaffiliated entity such
"controlling interest" shall be determined by aggregating the equity
interests of the Company and the Affiliate, provided such Affiliate has
investment objectives substantially similar to those of the Company and
that duplicate fees may not be paid to both the Company and the Affiliate.
A "controlling interest" for the purposes of Section 8.1(n) shall include
the authority to:
(1) review all contracts entered into by the joint venture or general
partnership that will have a material effect on its business or
property;
(2) cause a sale or refinancing of the Property or its interest
therein subject in certain cases where required by the joint venture
or partnership agreement, to limits as to time, minimum amounts and/or
a right of first refusal by the joint venture partner or consent of
the joint venture partner;
(3) approve budgets and major capital expenditures, subject to a
stated minimum amount;
(4) veto any sale or refinancing of the Property, or, alternatively,
to receive a specified preference on sale or refinancing proceeds; and
(5) exercise a right of first refusal on any desired sale or
refinancing by the joint
-42-
<PAGE> 48
venture partner of its interest in the Property except for transfer to
an Affiliate of the joint venture partner;
(n) acquire securities in any company holding investments or engaging
in activities prohibited in this Section 8.1; and
(o) make or invest in mortgage loans that are subordinate to any
mortgage or equity interest of the Advisor, Directors, Sponsor or Affiliates of
the Company.
(p) invest in an equity security of any non-governmental issuer,
including the shares of other REITs, limited partnerships or wholly-owned
subsidiaries for a period in excess of 18 months, provided that any such
investment in an entity affiliated with the Advisor, Directors or Affiliates
thereof shall comply with the requirements of Section 9.1(e) and further
provided that the restrictions in this subparagraph shall not apply to (1) the
securities of issuers formed to invest in Property and Loans in which the
Company could otherwise invest directly or (2) Equity Interests. Any
wholly-owned subsidiary in which the Company invests must have provisions in its
Bylaws that are identical in all material respects to the provisions concerning
matters of corporate governance and operation contained in the Bylaws of the
Company. The Company may invest in limited partnership interests of other
limited partnerships only if all of the following conditions are met:
(1) If the general partner of the partnership is the Sponsor, the
partnership agreement of the partnership must (A) contain provisions
complying with Section IX.F of the NASAA Real Estate Program
Guidelines and provisions acknowledging privity between the general
partner and the Shareholders; and (B) provide that compensation
payable in the aggregate from the Company and the limited partnership
shall not exceed the amounts permitted under the NASAA Real Estate
Investment Trust Guidelines;
(2) If the general partner of the partnership is not the Sponsor,
the partnership agreement of the partnership shall
-43-
<PAGE> 49
contain provisions complying with Sections II, E and F; VII.A.-D., H
and J.; and IX.C. of the NASAA Real Estate Program Guidelines and must
provide that compensation payable in the aggregate from the Company
and the limited partnership shall not exceed the amounts permitted
under the NASAA Real Estate Investment Trust Guidelines;
(3) The limited partnership shall have as its limited partners
only publicly registered investment programs provided, however, that
special limited partners not affiliated with the Sponsor shall be
permitted if the interests taken result in no diminution in the
control exercisable by the other limited partners;
(4) The limited partnerships in which the Company invests may not
invest in other limited partnerships;
(5) The Shareholders, upon the vote of a majority in interest and
without the concurrence of the Sponsor, may direct the board of
directors to take any action permitted to a limited partner in the
limited partnership.
(q) make Loans where the amount advanced by the Company plus the
amount of any existing Loans that are equal or senior to the Company's Loan
exceeds 100% of the Appraised Value of the Property. In making Loans that exceed
85% of the Appraised Value of any Property, the Advisor will consider such
additional underwriting criteria as the net worth of the borrower, the
borrower's credit rating, if any, the anticipated cash flow of the borrower, any
additional collateral provided by the borrower and other factors the Advisor
deems appropriate.
8.2 Roll-Up Transaction. In connection with a Roll-Up Transaction, an
appraisal of all Properties shall be obtained from a competent Independent
Appraiser. The Properties shall be appraised on a consistent basis, and the
appraisal shall be based on the evaluation of all relevant information and shall
indicate the value of the Properties as of a date immediately prior to the
announcement of the proposed Roll-Up Transaction. The appraisal shall assume an
orderly liquidation of Properties over a 12-month period. The terms of the
engagement of the Independent Appraiser shall clearly state that the engagement
is for the benefit of the
-44-
<PAGE> 50
Company and the Shareholders. A summary of the appraisal, indicating all
material assumptions underlying the appraisal, shall be included in a report to
Shareholders in connection with a proposed Roll-Up Transaction. In connection
with a proposed Roll-Up Transaction, the Person sponsoring the Roll-Up
Transaction shall offer to Shareholders who vote "no" on the proposal the choice
of:
(i) accepting the securities of a Roll-Up Entity offered in the
proposed Roll-Up Transaction; or
(ii) one of the following:
(A)remaining as Shareholders of the Company and
preserving their interests on the same terms and conditions as
existed previously, or
(B)receiving cash in an amount equal to the
Shareholders pro rata share of the appraised value of the net
assets of the Company.
The Company will not participate in any proposed Roll-Up Transaction:
(a) which would result in the Shareholders having democracy rights in a
Roll-Up Entity that are less than those provided in the Bylaws;
(b) which includes provisions that would operate to materially impede or
frustrate the accumulation of shares by any purchaser of the securities of the
Roll-Up Entity (except to the minimum extent necessary to preserve the tax
status of the Roll-Up Entity), or which would limit the ability of an investor
to exercise the voting rights of its securities of the Roll-Up Entity on the
basis of the number of Shares held by that investor;
(c) in which investor's rights to access of records of the Roll-Up Entity
will be less than those provided in Section 11.4.
(d) in which any of the costs of the Roll-Up Transaction would be borne by
the Company if the Roll-Up Transaction is not approved by the Shareholders.
ARTICLE IX
TRANSACTIONS WITH AFFILIATES; CERTAIN DUTIES
AND LIABILITIES OF DIRECTORS, SHAREHOLDERS,
ADVISORS AND AFFILIATES
-45-
<PAGE> 51
9.1 Transactions with Affiliates. Subject to the limitations set forth
herein and in the Articles of Incorporation:
(a) The Company shall not engage in transactions with the Sponsor, the
Advisor, or any Director, officer or Affiliated Person of the Sponsor, the
Advisor, or Director or officer, except to the extent that each such
transaction has, after disclosure of such affiliation, been approved or
ratified by a majority of the Independent Directors and a majority of the
Directors who are not interested in the transaction after a determination
by them that:
(1) the transaction is in all respects on such terms as at the
time of the transaction and under the circumstances then
prevailing, fair and reasonable to the Shareholders; and
(2) the terms of such transaction are at least as favorable as the
terms then prevailing for comparable transactions made on an
arm's-length basis.
In no event may the Company acquire any of the properties (or any interests
therein) owned as of December 31, 1993 by CPA(R):1-6 or any of their
successors, whether such properties or interests are owned by any such
partnership or by any entity that acquired any such property or interest
from CPA(R):1-6.
(b) Payments to the Advisor or an Affiliate, or to any Director or officer
for services rendered in a capacity other than that as Advisor, Director,
or officer, may only be made upon the approval of a majority of the
Independent Directors and a majority of the Directors who are not
interested in the transaction after a determination by them that:
(1) the compensation is not in excess of the compensation paid for
any comparable services; and
(2) the compensation is not greater than the charges for
comparable services available from other Persons who are
competent and not affiliated with any of the parties involved.
(c) The Company shall not purchase an investment in Property or a Loan from
the Sponsor, the Advisor, the Directors or their Affiliates, unless a
majority of the
-46-
<PAGE> 52
Independent Directors and a majority of the Directors who are not
interested in the transaction approve such transaction as being fair and
reasonable to the Company and (i) at a price to the Company no greater than
the cost of the asset to the Affiliate, or (ii) if the price to the Company
is in excess of such costs, that a substantial justification for such
excess exists and the Total Property Cost for the Property or the Loan does
not exceed the Appraised Value of such Property or Loan. In no event will
the price of the asset to be transferred from the Affiliate to the Company
exceed its current Appraised Value.
(d) The Company shall not borrow funds from the Sponsor, Advisor, the
Directors or their Affiliates unless the transaction is approved by a
majority of the Independent Directors and a majority of the Directors who
are not interested in the transaction as being fair, competitive and
commercially reasonable and the interest and other financing charges or
fees received by the Sponsor or its Affiliates do not exceed the amount
which would be charged by non-affiliated lending institutions, and the
terms are not less favorable than those prevailing for, comparable
arm's-length loans for the same purpose. The Company will not make loans to
the Sponsor or its Affiliates and will not borrow on a long-term basis from
the Sponsor, the Advisor or their Affiliates.
(e) The Company may enter into joint investments with Affiliates of the
Advisor if a majority of the Independent Directors and a majority of the
Directors not otherwise interested in the transaction approve the joint
investment as being fair and reasonable to the Company and on substantially
the same terms and conditions as those received by the other joint
venturers. In connection with such a joint investment, both the Company and
the Affiliate would be required to approve any material decisions
concerning the investment, including refinancing and capital improvements.
(f) The Company shall not (i) make, dispose of, renegotiate, or participate
in any other subsequent transactions involving investments in Property and
Loans with, or to, (ii) purchase Property and Loans from, or (iii) issue a
commitment to fund Loans, issue a guaranty or provide other forms of credit
enhancements on behalf of or in connection with real estate activities of,
the Sponsor, the Advisor, Directors or an Affiliate unless such transaction
is approved by a majority of the Independent Directors and by a majority of
the Directors not otherwise interested in such transactions thereby
indicating that such transaction is fair
-47-
<PAGE> 53
and at least as favorable to the Company as a transaction with a
non-Affiliated Person in similar circumstances.
(g) The Company (i) shall not invest in other REITs advised or managed,
directly or through Affiliates, by the Sponsor or its subsidiaries unless
such investment does not require or permit the payment of duplicate fees in
which event such investment shall be permitted under this Section 9.1(g)
provided it is not otherwise prohibited by Section 9.1(a) through (f) and
(ii) shall not sell Properties to the Sponsor, the Advisor, a Director or
any Affiliate of any of the foregoing, except pursuant to the exercise of a
right of first refusal by an affiliated joint venture partner.
9.2 Restriction of Duties and Liabilities. Subject to and except as
otherwise provided in Section 4.20 and in Article X of these Bylaws, the duties
and liabilities of Shareholders, Directors and officers shall in no event be
greater than that of the duties and liabilities of shareholders, directors and
officer of a Maryland corporation. The Shareholders, Directors and officers
shall in no event have any greater duties or liabilities than those imposed by
applicable law as shall be in effect from time to time.
9.3 Persons Dealing with Directors or Officers. Any act of the Directors or
officers purporting to be done in their capacity as such shall, as to any
Persons dealing in good faith with the Directors or officers, shall be
conclusively deemed to be within the purposes of this Company and within the
powers of the Directors and officers.
The Directors may authorize any officer or officers or agent or agents to
enter any contract or execute any instrument in the name and on behalf of the
Company and/or Directors.
No Person dealing in good faith with the Directors or with authorized
officers, employees, agents, or representatives of the Company, shall be bound
to see to the application of any funds or Property passing into their hands or
control. The receipt by the Directors or any authorized officer, employee,
agent, or representative of the Company for moneys or other consideration, shall
be binding upon the Company. In no event will this Section 9.3 be construed to
limit the liability of any Director or officer to the Company.
9.4 Reliance. Subject to and except as otherwise provided in Section 4.20
and in Article X of these Bylaws, the Directors and officers may consult with
counsel and the advice or opinion of that counsel shall be full and complete
personal protection to all
-48-
<PAGE> 54
of the Directors and officers in respect of any action taken or suffered by them
in good faith and in reliance on and in accordance with such advice or opinion.
In discharging their duties, Directors and officers, when acting in good faith,
may rely upon financial statements of the Company represented to them to be
correct by any officer of the Company having charge of its books of account, or
stated in a written report by a non-Affiliated certified public accountant which
fairly presents the financial position of the Company. The Directors may rely,
and shall be personally protected in acting upon, any instrument or other
document believed by them to be genuine.
9.5 Income Tax Status. Without limiting any rights of indemnification or
nonliability of the Directors, the Directors by these Bylaws make no commitment
or representation that the Company will qualify for the Dividends paid deduction
permitted by the Code and the rules and regulations pertaining to real estate
investment trusts under the Code, and such failure to qualify shall not render
the Directors liable to the Shareholders or to any other Person or in any manner
operate to annul the Company.
ARTICLE X
INDEMNIFICATION
10.1 Restrictions on Indemnification. Notwithstanding any other provision
of these Bylaws or of the Articles, the Directors, their Affiliates who are
performing services on behalf of the Company, and the Advisor may be exculpated
from liability to the Company and may be indemnified by the Company for losses
arising from the operation of the Company only if all of the following
conditions are met: (a) the Director, their Affiliates who are performing
services on behalf of the Company, or the Advisor had determined, in good faith,
that the course of conduct which caused the loss or liability was in the best
interests of the Company; (b) the Director, their Affiliates who are performing
services on behalf of the Company, the Advisor were acting on behalf of or
performing services for the Company; (c) such liability or loss was not the
result of negligence or misconduct by the Director, their Affiliates who are
performing services on behalf of the Company, or the Advisor as described in the
General Corporation law of Maryland; and (d) such indemnification or agreement
to exculpate is recoverable only out of the net assets of the Company and not
from the Shareholders.
10.2 Effect of Securities Law on Indemnification. Notwithstanding anything
to the contrary in Section 10.1, indemnification of the Directors, their
Affiliates who are performing service on behalf of the Company, or the Advisor
will
-49-
<PAGE> 55
not be allowed for liability imposed by judgment and any costs, including
attorney's fees, arising out of or from a violation of state or federal
securities laws, unless at least one of the following conditions is met: (x)
there has been a successful adjudication on the merits of each count involving
alleged securities law violations as to the particular indemnitee; (y) such
claims have been dismissed with prejudice on the merits by a court of competent
jurisdiction as to the particular indemnitee; or (z) 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 Securities and Exchange Commission and of any state
securities regulatory authority in which securities of the Company were offered
or sold as to indemnification for violations of securities laws. Furthermore,
the Company may make advances to a Director, their Affiliates who are performing
service on behalf of the Company, or the Advisor for legal expenses and other
costs incurred as a result of any legal action for which indemnification is
being sought only if all of the following conditions are satisfied: (A) the
legal action relates to acts or omissions with respect to the performance of
duties or services on behalf of the Company; (B) the legal action is initiated
by a third party who is not a Shareholder or the legal action is initiated by a
Shareholder acting in his or her capacity as such and a court of competent
jurisdiction specifically approves such advancement; and (C) the Director, their
Affiliates and the Advisor undertake to repay the advanced funds to the Company,
together with the applicable legal rate of interest thereon, in cases in which
such Director, their Affiliates or the Advisor is found not to be entitled to
indemnification pursuant to Section 10.1 herein.
10.3 Insurance. The Company shall not pay for any insurance covering
liability of the Directors and their Affiliates for actions or omissions for
which indemnification is not permitted by this Article X; provided however, that
nothing contained herein shall preclude the Company from purchasing and paying
for such types of insurance, including extended coverage liability and casualty
and workers' compensation, as would be customary for any person owning
comparable assets and engaged in a similar business, or from naming the
Directors and their Affiliates as additional insured parties thereunder,
provided that such addition does not add to the premiums payable by the Company.
Nothing contained herein shall constitute a waiver by any Shareholder of any
right which he may have against any party under federal or state securities
laws.
-50-
<PAGE> 56
ARTICLE XI
MISCELLANEOUS
11.1 Competing Programs. Except for the terms and the provisions stated in
Section 7.3 of these Bylaws and as otherwise provided in Section 4.20 and in
Article X of these Bylaws, nothing in these Bylaws shall be deemed to prohibit
any Affiliate of the Company from dealing with, or otherwise engaging in
business with, Persons transacting business with the Company or from providing
services relating to the purchase, sale, management, development or operation of
Property and receiving compensation therefor, not involving any rebate,
reciprocal arrangement or other transaction which would have the effect of
circumventing any restrictions set forth herein relating to the dealings between
the Company and its Affiliates. The Company shall not have any right, by virtue
of these Bylaws, in or to such other ventures or activities or to the income or
proceeds derived therefrom and the pursuit of such ventures, even if competitive
with the business of the Company. No Affiliate of the Company shall be obligated
to present any particular investment opportunity to the Company, even if such
opportunity is of a character which, if presented to the Company, could be taken
by the Company; provided, however, that until substantially all the net proceeds
of the Offering of the Shares have been invested or committed to investment, the
Sponsor shall be obligated to present to the Company any investment opportunity
which is of an amount in character which, if presented to the Company, would be
a suitable investment for the Company. If the Sponsor believes that a potential
investment may be available to one or more entities which its Affiliates manage
or advise, including the Company, then the Sponsor and its Affiliates will
determine the suitability of the investment for a specific entity by reviewing
the investment portfolios of the respective entities and considering policies
and funds available for investment in light of the geographic location, cash
flow, operating budget and debt service of the investment. If a specific
investment would be appropriate for more than one entity, priority will be given
to the entity which has had uninvested funds for the greater period of time. It
shall be the duty of the Directors (including the Independent Directors) to
insure that the allocation method described above is applied fairly to the
Company. It will be within the discretion of the Sponsor to allocate the
investment opportunities as they deem most advisable. The Sponsor shall resolve
any conflicts of interest between the Company and other Persons by exercising
the good faith required of fiduciaries.
11.2 Corporate Seal. The Company shall have a corporate seal in the form of
a circle containing the name of the
-51-
<PAGE> 57
corporation and such other details as may be required by the Directors.
11.3 Inspection of Bylaws. The Company shall keep at its principal
executive office a list of the names and addresses of the Shareholders and the
original or a copy of these Bylaws, as amended, certified by the Secretary,
which shall be open to inspection by Shareholders at any reasonable time during
office hours. The Company shall also keep at its initial principal office a copy
of these Bylaws.
11.4 Inspection of Corporate Records. Shareholders shall have the right to
inspect the accounting books and records (including Shareholder records) of the
Company, and the minutes of the proceedings of the Shareholders and the
Directors and committees of the Directors as provided by the laws of the State
of Maryland.
An alphabetical list of the names, addresses, and telephone numbers of the
Shareholders along with the shares held by each of them will be available to the
Shareholders upon request. Any Shareholder who desires a Shareholder list must
represent to the Company that the list will not be used to pursue commercial
interests. If the representation is not included with the request, the Company
will mail a copy of the representation within five days. The Company will mail a
list of the names and addresses of all Shareholders within 10 days (or five days
if the Shareholder first requests a copy of the representation and returns it
within 30 days) of the receipt of the request and the payment for cost of
postage and duplication. The list will be in alphabetical order, on white paper
and in easily readable type size. It will be updated at least quarterly to
reflect the changes therein.
The Company will be liable for the costs incurred and any actual damages
suffered by a Shareholder who must compel the production of a list and is
successful. A Shareholder will be liable to the Company for damages and costs
relating to a breach of the representation described above.
11.5 Checks, Drafts, Etc. All checks, drafts or other orders for payment of
money, notes or other evidences of indebtedness, issued in the name of or
payable to the Company, shall be signed or endorsed by the Person or Persons and
in the manner as from time to time shall be determined by resolution of the
Directors.
11.6 Contracts, Etc., How Executed. The Directors, except as provided
elsewhere in the Bylaws, may authorize any officer or
-52-
<PAGE> 58
officers or agent or agents to enter into any contract or execute any instrument
in the name of and on behalf of the Company. The authority may be general or
confined to specific instances. Unless so authorized by the Directors or by
these Bylaws, no officer, agent or employee shall have any power or authority to
bind the Company by any contract or engagement or to pledge its credit to render
it liable for any purpose or to any amount.
11.7 Representation of Shares of Other Corporations. The Chairman of the
Company or the President or, in the event of their absence or an inability to
serve, any Vice President and the Secretary or Assistant Secretary are
authorized to vote, represent and exercise, on behalf of the Company, all rights
incidental to any and all shares of any other company standing in the name of
the Company. The authority granted to the officers to vote or represent on
behalf of the Company any and all shares held by the Company in any other
company may be exercised by any authorized Person in person or by proxy or power
of attorney duly executed by the officers.
11.8 Annual Report. The Directors shall cause to be sent to the
Shareholders, not later than 120 days after the close of the fiscal year, and
not fewer than 30 days before the date of the Annual Meeting of Shareholders as
provided in Section 3.2, an Annual Report in the form deemed appropriate by the
Directors, including without limitation, any explanation of excess expenses set
forth in Section 7.5. The Annual Report shall also disclose the ratio of the
cost of raising capital to the capital raised during the year and the aggregate
amount of the fees paid during the year to the Advisor and its Affiliates,
including fees or charges paid to the Advisor and Affiliates by a non-Affiliated
Person in connection with services rendered on behalf of the Company, as well as
the total Operating Expenses for the year, stated as a percentage of both Net
Income and Average Invested Assets. The Annual Report shall also contain a
report from the Independent Directors that the policies being followed by the
Company are in the best interest of the Shareholders and the basis for such
determination. The Annual Report also shall include, as required by Section 9.1,
full disclosure of all material terms, factors and circumstances surrounding any
and all transactions involving the Company and the Directors, Advisor or
Affiliates thereof occurring during the year, and the Independent Directors
shall examine and comment in the Annual Report as to the fairness of any such
transactions. The Annual Report shall include a statement of assets and
liabilities and a statement of income and expenses of the Company prepared in
accordance with generally accepted accounting principles. The audited financial
statements shall be accompanied by the report of a non-Affiliated certified
-53-
<PAGE> 59
public accountant. A manually signed copy of the accountant's report shall be
filed with the Directors.
11.9 Quarterly Reports. At least quarterly, the Directors shall send
interim reports to the Shareholders having the form and content as the Directors
deem proper. The quarterly reports shall disclose (i) the ratio of the costs of
raising capital during the quarter to the capital raised, and (ii) the aggregate
amount of the fees paid during the quarter to the Advisor and its Affiliates,
including fees and charges paid to the Advisor and its Affiliates by a
non-Affiliated Person in connection with services rendered on behalf of the
Company.
11.10 Provisions of the Bylaws in Conflict with Law or Regulation.
(a) The provisions of these Bylaws are severable, and if the Directors
(including a majority of Independent Directors) shall determine, with the advice
of counsel, that any one or more of these provisions ("Conflicting Provisions")
are in conflict with the REIT Provisions, or with other applicable laws and
regulations, the Conflicting Provisions shall be deemed never to have
constituted a part of these Bylaws, and the Directors (including a majority of
Independent Directors) shall be able to amend or revise the Bylaws without the
vote or assent of the Shareholders to the extent necessary to bring the
Conflicting Provisions of these Bylaws into conformity with the REIT Provisions
or any other applicable law or regulation; provided, however, that this
determination shall not affect or impact any of the remaining provisions of
these Bylaws or render invalid or improper any action taken or omitted
(including but not limited to the election of Directors) prior to the
determination. A certification in recordable form signed by a majority of the
Directors setting forth any such determination and reciting that it was duly
adopted by the Directors (including a majority of Independent Directors), or a
copy of these Bylaws, with the Conflicting Provisions removed and any new
provisions added pursuant to the determination, in recordable form signed by a
majority of the Directors (including a majority of Independent Directors), shall
be conclusive evidence of such determination when lodged in the records of the
Company. The Directors shall not be liable for failure to make any determination
under this Section 11.10.
(b) If any provisions of these Bylaws shall be held invalid or
unenforceable, the invalidity or unenforceability shall attach only to that
provision and shall not in any manner affect or render invalid or unenforceable
any other provision, and these
-54-
<PAGE> 60
Bylaws shall be carried out as if the invalid or unenforceable provision were
not present.
11.11 Voluntary Dissolution. The Company may elect to wind up and dissolve
upon the affirmative vote of a majority of the Shareholders entitled to vote on
such matter.
11.12 Reduction of Restricted Capital. That portion of capital which is not
available for Dividends may be reduced (a) by an amendment to the Articles of
Incorporation reducing the par value of Shares, or (b) by the Directors without
the consent of the Shareholders, to the extent authorized elsewhere in the
Articles of Incorporation, by (i) purchasing or redeeming and canceling issued
and outstanding Shares, or (ii) canceling Shares held in the treasury. However,
no approval or consent of the Shareholders to any such amendment of the Articles
of Incorporation shall bind the Company, to declare or pay any Dividend.
11.13 Retained Earnings. The Directors, except as provided in Section 11.1,
may retain from the net profits such amount as they may deem necessary to pay
the debts or expenses of the Company or to meet obligations of the Company, or
as they may deem desirable to use in the conduct of its affairs or to retain for
future requirements or extensions of the business.
11.14 Source of Dividends. Any Dividends to the Shareholders shall be
accompanied by a statement in writing advising the Shareholders of the source of
the funds so distributed so that Dividends of ordinary income, return of
capital, and capital gains income will be clearly distinguished, or, if the
source of funds so distributed has not been determined, the communication shall
so state, in which event the statement of the source of funds shall be forwarded
to the Shareholders promptly after the close of the fiscal year in which the
dividend was made.
11.15 Dividends. The payment of Dividends on Shares shall be at the
discretion of the Directors, and shall depend upon the earnings, cash flow and
general financial condition of the Company, and such other factors as the
Directors deem appropriate.
11.16 Shareholder Liability. The Shareholders shall not be personally
liable on account of any obligation of the Company. All written contracts to
which the Company is a party shall include a provision that the Shareholders
shall not be personally liable on such obligations. The Directors are required
to maintain adequate insurance against possible liability on the part of the
Company.
-55-
<PAGE> 61
ARTICLE XII
AMENDMENTS TO BYLAWS
12.1 Amendments to the Bylaws. The Bylaws may be adopted, amended, or
repealed by the affirmative vote of Shareholders holding a majority of the
Shares voting on a particular matter; provided however, that no amendment shall
be adopted or become effective which would reduce the priority or amount payable
to the Shareholders upon liquidation of the Company or that would diminish or
eliminate any voting rights, (except as provided in Article VII(b) of the
Articles), unless such amendment is approved by the affirmative vote of
two-thirds of the Shareholders entitled to vote thereon; provided further,
however, that a majority of the Directors (including a majority of the
Independent Directors) without the vote or consent of the Shareholders may at
any time amend these Bylaws (a) to change the number of the Directors, subject
to the limitations set forth in Article V of the Articles; (b) to the extent
deemed by the Directors in good faith to be necessary to clarify any ambiguities
or correct any inconsistencies in these Bylaws; (c) to satisfy the requirements
for qualifications as a REIT under the Code, but the Directors shall not be
liable for failing to do so, or (d) to restructure the Company's activities to
the extent necessary to comply with any exemption in the final plan asset
regulations adopted by the Department of Labor.
-56-
<PAGE> 1
EXHIBIT 5
FORM OF PIPER & MARBURY OPINION
Reed Smith Shaw & McClay
2500 One Liberty Place
Philadelphia, Pennsylvania 19103
Corporate Property Associates 14 Incorporated
Dear Sirs:
We have acted as special Maryland counsel in connection with a public
offering by Corporate Property Associates 14 Incorporated, a Maryland
corporation (the "Company"), of up to 30,000,000 shares of its Common Stock, par
value $.001 per share (the "Shares"), pursuant to a Sales Agency Agreement to be
dated __________ (the "Sales Agency Agreement") between the Company and Carey
Financial Corporation, as Sales Agent. This opinion is being furnished to you at
the request of the Company to support your opinion under Section 7(b) of the
Sales Agency Agreement.
In our capacity as special Maryland counsel, we have reviewed the
following:
(a) The Charter and By-Laws of the Company.
(b) The Company's Registration Statement on Form S-11 relating
to the offering and sale of the Shares (Registration No. 333- ) and
any amendments thereto (The "Registration Statement").
(c) The final Prospectus dated _________, 1997 (the
"Prospectus").
(d) The Sales Agency Agreement and related Selected Dealer
Agreement to be dated _________, 1997 among the Company, Carey
Financial Corporation, and certain selected dealers (the "Selected
Dealer Agreement").
(e) The minutes of proceedings of the Company relating to its
organization, authorizing the issuance of the outstanding shares of
Common Stock, authorizing (including authorizing the execution and
delivery of) the Sales Agency Agreement and the Selected Dealer
Agreement, and authorizing the transactions contemplated thereby.
<PAGE> 2
Reed Smith Shaw & McClay
Page 2
(f) Good Standing Certificate for the Company, dated
____________, issued by the Maryland State Department of Assessments
and Taxation.
(g) A Certificate of the Secretary of the Company dated
_____________ as to certain factual matters.
(h) Such other documents as we have considered necessary to
the rendering of the opinion expressed below.
In such examination of the aforesaid documents, we have assumed,
without independent investigation, the genuineness of all signatures, the legal
capacity of all individuals who have executed any of the aforesaid documents,
the authenticity of all documents submitted to us as originals, the conformity
with originals of all documents submitted to us as copies (and the authenticity
of the originals of such copies), and that all public records reviewed are
accurate and complete. As to factual matters (including, without limitation, the
issuance of the outstanding capital stock, the receipt of consideration
therefor, and the execution and delivery of the Sales Agency Agreement and the
Selected Dealer Agreement) we have relied on the Certificate of the Secretary of
the Company referred to in paragraph (g) above, and have not independently
verified the matters stated therein. Nothing has come to our attention which
leads us to believe that any factual representation made in the Certificate of
the Secretary of the Company referred to in paragraph (g) above is not correct.
We have also assumed that each of the parties thereto (other than the Company)
has duly and validly authorized, executed and delivered the Sales Agency
Agreement and the Selected Dealer Agreement and each other instrument, document,
and agreement executed in connection therewith to which such party is a
signatory, and that such party's obligations set forth therein are its legal,
valid, and binding obligations, enforceable in accordance with their respective
terms. All capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Sales Agency Agreement.
Based upon the foregoing, having regard for such legal considerations
as we deem relevant, and limited in all respects to applicable Maryland law, we
are of the opinion and advise you as follows:
<PAGE> 3
Reed Smith Shaw & McClay
Page 3
(1) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland.
(2) The Shares have been duly authorized and, when issued and
delivered by the Company pursuant to the Sales Agency Agreement against
payment of the consideration set forth therein, will be validly issued,
fully paid, and non-assessable shares; 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 required to be taken for the authorization, issue, and sale of
such Shares has been validly and sufficiently taken.
(3) The Sales Agency Agreement has been duly and validly
authorized and, assuming it has been executed and delivered by an
officer authorized by appropriate resolutions of the Board of Directors
of the Company, executed and delivered by or on behalf of the Company
and constitutes the valid, binding, and enforceable agreement of the
Company except (i) as may be subject to bankruptcy, insolvency,
reorganization, moratorium, or other similar laws relating to
creditors' rights generally, (ii) 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 (iii) that rights to
indemnify may be limited by federal or state securities laws or the
public policy underlying such laws.
(4) Neither the execution and delivery of the Sales Agency
Agreement, nor compliance with the terms and provisions thereof, nor
consummation of the transactions contemplated therein and in the
Prospectus, will result in any violation of the Charter or By-Laws of
the Company or, to our knowledge, of any statute, order, judgment,
writ, injunction, decree, rule or regulation known to us to be
applicable to the Company, of any court, regulatory agency, or other
governmental body having jurisdiction over the Company.
<PAGE> 4
Reed Smith Shaw & McClay
Page 4
(5) The statements in the Current Prospectus under the caption
"Description of Shares," 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 in all material respects.
In addition to the qualifications set forth above, the foregoing
opinion is further qualified as follows:
(a) We express no opinion as to the laws of any jurisdiction
other than the laws of the State of Maryland, and we have made no
investigation as to, and express no opinion concerning, any law of any
other jurisdiction. References to "statute, order, judgment, writ,
injunction, decree, rule, or regulation" and "court, regulatory agency,
or other governmental body" shall refer to "Maryland statute, Maryland
order, Maryland judgment, Maryland writ, Maryland injunction, Maryland
decree, Maryland rule, or Maryland regulation" and to "Maryland court,
Maryland regulatory agency, or other Maryland governmental body." We
note that the Sales Agency Agreement will be construed in accordance
with the laws of the State of New York, and we have assumed for
purposes of this opinion that the applicable laws of the State of New
York are the same as those in effect in the State of Maryland.
(b) The opinion expressed herein concerns only the effect of
the laws (excluding the principles of conflict of laws) of the State of
Maryland as currently in effect. We assume no obligation to supplement
this opinion if any applicable laws change after the date hereof or if
we become aware of any facts after the date hereof that might change
the opinions expressed herein.
(c) The words "to our knowledge" and "known to us" used herein
are limited to the knowledge of the lawyers within our firm who have
represented the Company in connection with the Registration Statement,
and the Sales Agency Agreement and the Selected Dealer Agreement.
(d) The Sales Agency Agreement and the Selected Dealer
Agreement have been duly executed and delivered
<PAGE> 5
Reed Smith Shaw & McClay
Page 5
by the parties thereto (other than the Company), and such parties have
full legal capacity to do so.
The opinion expressed in this letter is solely for your use in
rendering your opinion pursuant to Section 7(b) of the Sales Agency Agreement.
This opinion may not be relied on by any other person or in any other connection
without our prior written approval. The opinion expressed in this letter is
limited to the matters set forth in this letter, and no other opinion should be
inferred beyond the matters expressly stated.
Very truly yours,
<PAGE> 1
EXHIBIT 8.1
REED SMITH SHAW & MCCLAY
2500 ONE LIBERTY PLACE
1650 MARKET STREET HARRISBURG, PA
McLEAN, VA
PHILADELPHIA, PENNSYLVANIA 19103-7301 NEW YORK, NY
NEWARK, NJ
215-851-8100 PITTSBURGH, PA
WRITER'S DIRECT NUMBERS: PRINCETON, NJ
(215) 851-8100 FAX 215-851-1420 WASHINGTON, DC
July __, 1997
Corporate Property Associates 14 Incorporated
50 Rockefeller Plaza
New York, New York 10020
Gentlemen:
You have requested our opinions with respect to certain Federal income
tax matters in connection with the proposed Offering of 30,000,000 shares of
common stock (the "Shares") of Corporate Property Associates 14 Incorporated, a
Maryland corporation (the "Company"), as a more fully described in the
Registration Statement on Form S-11, Registration 333-_____] ("Registration
Statement"), and the Prospectus included therein, filed by the Company with the
Securities and Exchange Commission. All terms used herein have the respective
meanings set forth in the Prospectus.
We have acted as counsel to the Company with respect to the Offering
of Shares. This letter is for delivery in connection with the proposed Offering
of Shares made by the Prospectus and is intended to confirm as of the date
hereof certain opinions described in the "Income Tax Aspects" section of the
Prospectus. This letter and the opinions expressed or confirmed herein are for
delivery to the Company and may be relied upon only by it and those Shareholders
who acquire their Shares on or before termination of the sale of Shares under
the Registration Statement.
In rendering our opinions, we have reviewed and relied upon the
Registration Statement and exhibits to the Registration Statement, including the
Articles of Incorporation and Bylaws, each as amended. In addition, we have
relieved upon the letter from the Advisor and the Company to this firm, dated
June __, 1997 representing the truth and accuracy of the representations
attributed to them in the Prospectus, we have had discussions with executive
personnel of the Advisor, and we have examined and relied upon such records,
documents, certificates, instructions, resolutions, and other matters which, in
our judgment, were necessary in order to enable us to render the opinions herein
set forth.
<PAGE> 2
REED SMITH SHAW & MCCLAY
Corporate Property Associates 14 Incorporated
July __, 1997
Page 2
Based on and subject to the foregoing, we are of the opinion that
under Federal income tax laws as of the date hereof:
(1) Assuming that the Company: (a) operates in the manner described in
the Registration Statement, (b) operates in accordance with the representations
therein, and (c) will have at least 100 Shareholders and will not be closely
held, its method of operation permits it to meet the requirements for
qualification and taxation as a REIT under the Code;
(2) Dividends paid by the Company should not constitute UBTI under
Section 512 of the Code to a tax-exempt Shareholder which is an organization
that satisfies the requirements of section 401(a) of the Code; an IRA; or any
other tax-exempt organization which is required to account for UBTI (if any) in
accordance with Section 512(a)(1) of the Code (which does not include an
organization described in paragraphs (7), (9), (17) or (20) of Section 501(c) of
the Code or a corporation described in Section 501(c)(2) of the Code benefiting
such organizations) even if the Company owns debt-financed property as that term
is defined in Section 514(b) of the Code provided that (a) such tax-exempt
Shareholder does not incur any acquisition indebtedness in connection with its
Shares and (b) the Company is not a pension-held REIT; and
(3) The section of the Registration Statement entitled "Income Tax
Aspects" accurately reflects, in the aggregate, the state of Federal income tax
law and addresses, in relation to the facts, the material Federal income tax
issues with respect to which there exists a reasonable likelihood of challenge
by the IRS.
With respect to our opinion contained in paragraph (1) above, you
should note that actual qualification of the Company as a REIT will depend upon
the Company's ability, through its actual operations, to meet the various
qualification tests imposed by the Code and that no prediction as to those
actual operating results is implied by our opinion. You should also be aware
that our opinion relates only to matters of Federal income tax law. While there
are a variety of state and local tax laws which could apply to the Company
and/or its Shareholders, our opinion does not purport to address the effect of
any such laws.
<PAGE> 3
REED SMITH SHAW & MCCLAY
Corporate Property Associates 14 Incorporated
July __, 1997
Page 3
Our opinions and the analysis set forth above are based upon the
existing provisions of the Code, regulations promulgated thereunder, existing
published revenue rulings, procedures and releases issued by the IRS and
relevant judicial decisions, any of which could be changed at any time. Any such
changes may be retroactive with respect to transactions entered into prior to
the date of such changes and, therefore, could require a modification of our
opinions. You should also note that Congress from time to time has directed its
attention toward reforming Subchapter C of the Code, which includes the
framework for all corporations. It is possible that any legislative proposals
will address the taxation of certain corporations, such as REITs and regulated
investment companies, which are treated differently under the Code from regular
corporations. Additionally, the Subcommittee on Oversight of the House Ways and
Means Committee has recently conducted hearings on various facets of the tax
imposed on the UBTI of otherwise tax-exempt entities. The IRS currently is
conducting a special study of compliance with the unrelated business income tax
which may or may not result in legislative or regulatory changes affecting
tax-exempt Shareholders of the Company.
We hereby consent to the filing of this opinion as Exhibit 8(A) to the
Registration Statement and to the references to Reed Smith Shaw & McClay in the
Registration Statement and in the Prospectus forming part of the Registration
Statement. In giving such consent, we do not thereby admit that we come within
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended.
Very truly yours,
REED SMITH SHAW & McCLAY
<PAGE> 1
EXHIBIT 8.2
REED SMITH SHAW & MCCLAY
2500 ONE LIBERTY PLACE PITTSBURGH, PA
WASHINGTON, DC
FAX 215-851-1420 PHILADELPHIA, PA 19103-7301 HARRISBURG, PA
McLEAN, VA
WRITER'S DIRECT DIAL NUMBER 215-851-8100 PRINCETON, NJ
NEW YORK, NY
(202) 457-6100
[__________ __, 1997]
Corporate Property Associates 14 Incorporated
50 Rockefeller Plaza
New York, New York 10020
Re: Corporate Property Associates 14 Incorporated
Gentlemen:
Corporate Property Associates 14 Incorporated (the "Company") is a
Maryland corporation which has qualified as a real estate investment trust
("REIT") for Federal income tax purposes. The Company intends to make a public
offering of 30,000,000 shares of its common stock, $.001 par value (the
"Shares"). The Company has requested our opinion as to whether pursuant to the
Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C.
Sections 1001-1461 ("ERISA"), the assets of the Company would be treated
as the assets of an employee benefit plan by virtue of that plan's purchase of
Shares.
In rendering our opinion, we have reviewed the Registration Statement
on Form S-11, Registration No. [333-____] (the "Registration Statement"), and
the Prospectus included therein, filed by the Company with the Securities and
Exchange Commission, the Company's Articles of Incorporation and Bylaws, each as
amended. We have assumed the authenticity of the documents provided and have not
attempted to verify independently any factual information.
Based on and subject to the foregoing, we are of the opinion that as
of the date hereof:
1) Assuming the offering takes place as described in the Registration
Statement, the Shares should constitute "publicly-offered securities," as that
term is used in regulations promulgated by the Department of Labor (the
"Department") and codified at 29 C.F.R. 2510.3-101, and the underlying assets of
the Company should not be considered to be plan assets by virtue of an employee
benefit plan's purchase of Shares; and
<PAGE> 2
REED SMITH SHAW & MCCLAY
Corporate Property Associates 14 Incorporated
[___________ __, 1997]
Page 2
2) The discussions contained in the portions of the Registration
Statement entitled "Risk Factors--Other Investment Risks--Investment by Pension
or Profit-Sharing Trusts, Keoghs or IRAs" and "ERISA Considerations" (all of
which are incorporated by reference into this opinion) accurately reflect the
relevant state of the law affecting employee benefit plans and their
fiduciaries.
This opinion is based on existing law which is to a large extent the
result of a regulation and administrative interpretations by the Department. No
assurance can be given that administrative opinions or judicial decisions may
not be forthcoming which would modify the conclusions expressed in this opinion.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the captions
"ERISA Considerations" and "Risk Factors" therein concerning this opinion.
Sincerely,
REED SMITH SHAW & McCLAY
DJM
<PAGE> 1
EXHIBIT 10.1
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED
50 ROCKEFELLER PLAZA
NEW YORK, NY 10020
SALES AGENCY AGREEMENT
June __, 1997
Carey Financial Corporation
50 Rockefeller
New York, NY 10020
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
<PAGE> 2
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.
-2-
<PAGE> 3
(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 & Lybrand,
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 Carey
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
-3-
<PAGE> 4
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
-4-
<PAGE> 5
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, Keogh
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
-5-
<PAGE> 6
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.
-6-
<PAGE> 7
(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:
-7-
<PAGE> 8
<TABLE>
<CAPTION>
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
---------------- --------------------- -----------------------
<S> <C> <C>
$ 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
</TABLE>
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.
-8-
<PAGE> 9
(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
-9-
<PAGE> 10
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
-10-
<PAGE> 11
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
-11-
<PAGE> 12
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
-12-
<PAGE> 13
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 Reed Smith Shaw & McClay, 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
-13-
<PAGE> 14
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
-14-
<PAGE> 15
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) Carey 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.
-15-
<PAGE> 16
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 & Lybrand 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
-16-
<PAGE> 17
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, Carey 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
-17-
<PAGE> 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
-18-
<PAGE> 19
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
-19-
<PAGE> 20
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
-20-
<PAGE> 21
(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.
-21-
<PAGE> 22
(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 50 Rockefeller Plaza, New York, NY 10020 and
if sent to the Company shall be mailed, or personally delivered, to the Company
at 50 Rockefeller Plaza, New York, New York 10020, Attention: Mr. William P.
Carey.
(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.
-22-
<PAGE> 23
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:
CAREY FINANCIAL CORPORATION
By:_______________________________
Exhibit Index
Exhibit A - Selected Dealer Agreement
-23-
<PAGE> 1
EXHIBIT 10.2
Carey Financial Corporation
50 Rockefeller Plaza
New York, NY 10020
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED
SELECTED DEALER AGREEMENT
[________ __ ], 1997
American Express Financial Advisors Inc.
IDS Tower 10
Minneapolis, MN 55440
Ladies/Gentlemen:
We have agreed to use our best efforts to sell, along with a
group of selected dealers (collectively, the "Selected Dealers") to be formed
with our assistance, up to 30,000,000 shares (the "Shares") of Corporate
Property Associates 14 Incorporated (the "Company"). The Shares are being
offered by us, as Sales Agent for the Company, and by the Selected Dealers. The
terms of the offering of the Shares (the "Offering") are more fully described in
the enclosed prospectus (the "Prospectus"), receipt of which you hereby
acknowledge.
We are hereby inviting you to act as a Selected Dealer for the
Offering, subject to the other terms and conditions set forth below. You hereby
confirm that you are a member in good standing of the National Association of
Securities Dealers, Inc. (the "NASD"), that you have complied with all
applicable federal and state broker-dealer registration requirements and that
you are not a "discount broker" as that term is commonly understood in the
brokerage industry. Upon execution of this Selected Dealer Agreement, you agree
to be bound by the terms and conditions of the Sales Agency Agreement between
us, as Sales Agent and the Company (the "Sales Agency Agreement") (to the extent
such terms apply to the Selected Dealers), a copy of which is attached hereto as
Exhibit A and of which this Selected Dealer Agreement is a part.
Capitalized terms used herein and not otherwise defined herein
shall have the same meaning as in the Sales Agency Agreement.
Upon notification by us, you may offer the Shares at the
public offering price stated in the Prospectus, subject to the terms and
conditions hereof. The public offering price of the Shares and the amount of
your Selling Commission that is re-allowed by us to you with respect to volume
sales of Shares to "single purchasers" on orders of $250,000 or more(as defined
in the Prospectus) shall be reduced by the amount of the Share
<PAGE> 2
purchase price discount. In the case of such volume sales to single purchasers,
your Selling Commission will be reduced for each incremental Share purchase in
the total volume ranges set forth in the table below. Such reduced Share price
purchase price will not 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:
<TABLE>
<CAPTION>
Volume Discount Purchase Price Selling
Range for a Per Share For Commission Per
"Single Purchaser" Incremental Share Share on Total
In Volume Sale for
Discount Range Incremental Share
in Volume
Discount Range
<S> <C> <C>
$ 2,000 - $ 250,000 $10.00 $0.60
$ 250,001 - $ 500,000 $ 9.85 $0.45
$ 500,001 - $ 750,000 $ 9.70 $0.30
$ 750,001 - $ 1,000,000 $ 9.60 $0.20
$ 1,000,001 - $ 5,000,000 $ 9.50 $0.10
</TABLE>
As an example, a single purchaser would receive 50,761 Shares
(rather than 50,000 Shares) for his investment of $500,000 and the Selling
Commission would be $22,842. A refund will be made to the purchaser for any
fractional Shares based on the public offering price if such refunds in excess
of $1.00. In the example, $4.15 would be refunded for the fractional Share.
Selling Commissions for purchases of $5,000,000 or more are
negotiable but in no event will the proceeds to the Company be less than $9.35
per Share. We agree to re-allow to you a Selected Dealer Fee of 1% of the full
price of each Share sold by you.
No payment of commissions or the Selected Dealer Fee will be
made in respect of Orders (or portions thereof) which are rejected by the
Company, Selling Commissions and the Selected Dealer Fee will be paid on each
Closing Date with respect to Shares sold to purchasers whose Shares are issued
on such Closing Date. Selling Commissions and the Selected Dealer Fee will be
payable only with respect to transactions lawful in the jurisdictions where they
occur. Purchases of Shares by Carey Property Advisors, its Affiliates or any
Selected Dealer or any of their employees shall be net of commissions.
In no event shall the aggregate underwriting compensation to
be paid to us, you and the other Selected Dealers in connection with the
Offering and sale of the Shares exceed 10% of the gross proceeds of the Offering
(not including due diligence expenses of up to 0.5% of the gross proceeds of the
Offering).
2
<PAGE> 3
Orders for Shares (each an "Order") must be made during the
offering period described in the Prospectus. An order form, in the form attached
to the Prospectus, (each an "Order Form") must be used in placing an Order for
investors residing in certain states and, for all other investors, Orders may be
placed through such procedures as are normally used by you for the sale of REIT
shares and agreed to by the Company. Persons desiring to purchase Shares are
required to comply with such procedures and, in certain states, to execute or
have executed on their behalf one copy of the Order Form. Subscribers purchasing
shares by check must make such checks payable to the Escrow Agent. By noon of
the business day following receipt of funds by you, either by check or by a
sweep of customer accounts, you will deliver via overnight delivery service a
check payable to The United States Trust Company of New York, Escrow Agent, or
other acceptable form of payment, for the full amount of each Order along with
an Order Form for each such Order and a list showing the name, address and
telephone number of, the social security number or taxpayer identification
number of, the number of Shares purchased and the total dollar amount of the
investment by, each investor on whose behalf a check or other payment is
delivered. You will advise The United States Trust Company of New York whether
the funds you are submitting are attributable to individual retirement accounts,
Keogh plans, or any other employee benefit plan subject to Title I of the
Employee Retirement Income Security Act of 1974 or from some other type of
investor.
All Orders solicited by you will be strictly subject to review
and acceptance by the Company, and the Company reserves the right in its
absolute discretion to reject any such Order or to accept or reject Orders in
the order of their receipt by the Company or otherwise. You agree to maintain,
for at least six years, records of the information used by you to determine
whether an investment in Shares is suitable and appropriate for a potential
investor in Shares.
If the Company elects to reject an Order (such rejection to
occur within 30 days after receipt by the Company of such Order), the Company
shall, within 10 business days after such rejection, inform you of such
rejection and return the funds (and any interest earned thereon) and other
documents submitted by the rejected purchaser to you for transmission to such
purchaser. If no notice of rejection is received by you with the foregoing time
limits or if funds submitted by the purchaser are released from escrow to the
Company within the foregoing time limits, the Order shall be deemed accepted.
You agree that you will use your best efforts in offering the
Shares and will offer the Shares only in jurisdictions in which you are
currently registered as a securities dealer and only in accordance with the
securities laws of such jurisdictions.
3
<PAGE> 4
You covenant and agree with respect to your participation in
the Offering to comply with any applicable requirements of the Securities Act of
1933 (the "`33 Act") and of the Securities Exchange Act of 1934 (the "`34 Act"),
and the published rules and regulations of the Securities and Exchange
Commission thereunder, and the Rules of Fair Practice of the NASD including but
not limited to Rule 2730, Rule 2740 and IM 2740, Rule 2420 and IM 2420 and Rule
2750 and IM 2750.
We shall have full authority to take such action as we may
deem advisable in respect of all matters pertaining to the Offering. Neither you
nor any other person is authorized to give any information or make any
representations other than those contained in the Prospectus and sales
literature furnished by the Company in connection with the Offering, and you
agree not to give any such information or make any such representations. You
acknowledge that we will rely upon your agreements in this paragraph and in the
preceding paragraph in connection with the Sales Agency Agreement. No Selected
Dealer is authorized to act as agent for us when offering any of the Shares to
the public or otherwise, it being understood that you and each other Selected
Dealer are independent contractors with us. Nothing herein contained shall
constitute you or the Selected Dealers an association, unincorporated business,
partnership or separate entity with each other or an association or partner with
us. Nothing contained in this paragraph is intended to operate as, and the
provisions of this paragraph shall not constitute, a waiver by you of compliance
with any provision of the '33 Act or of the rules and regulations thereunder.
The Company will provide you with such number of copies of the
enclosed Prospectus and such number of copies of amendments and supplements
thereto, and certain supplemental sales material prepared by the Company, as you
may reasonably request for use by you in connection with the offer and sales of
the Shares. In the event you elect to use any such supplemental sales material,
you agree that such material shall not be used in connection with the offer and
sale of the Shares unless accompanied or preceded by the Prospectus as then
currently in effect and as it may be amended or supplemented in the future, and
you expressly agree not to prepare or use any sales material other than the
approved sales material. To the extent that information is provided to you
marked "For Broker/Dealer Use Only," "Internal Use Only" or with other similar
language, you covenant and agree not to provide such information to prospective
investors. You agree that you will not use any other offering materials without
the prior written consent of the Company and us.
This Agreement shall terminate at the close of business on the
45th day after the completion of the sale of all of the Shares by the Company,
unless earlier terminated or unless the Sales Agency Agreement is terminated, in
which event this Agreement will automatically terminate. Either party may
4
<PAGE> 5
terminate this Agreement at any time by written notice, and we shall notify you
promptly in the event of any early termination of this Agreement.
We will furnish to you a Blue Sky Memorandum naming the
jurisdictions in which we believe the Shares have been qualified for sale under,
or are exempt from the requirements of, the respective securities laws of such
jurisdictions, but we assume no responsibility or obligation as to your right to
sell Shares in any jurisdiction.
Your obligations under this Selected Dealer Agreement shall be
subject to the continued accuracy throughout the Effective Term of the
representations, warranties and agreements of the Company under the Sales Agency
Agreement, the Selected Dealer Agreement and the attached Addendum A and to the
performance by the Company of its obligations under such agreements and to the
terms and conditions set forth in Section 7 of the Sales Agency Agreement.
You confirm that you are familiar with '33 Act Release No.
4968 and Rule 15c2-8 under the '34 Act, relating to the distribution of
preliminary and final prospectuses, and confirm that you have complied, and will
comply, therewith. You shall not directly or indirectly pay or award any
finder's fees, commissions or other compensation to any persons engaged by an
investor for investment advice as an inducement to such adviser to advise a
potential investor to purchase Shares. In addition, you agree not to receive any
rebates or give-ups or to participate in any reciprocal business arrangements
(other than for the underwriting arrangements described herein) which would
violate any restrictions on the Company contained in the Prospectus.
Addendum A attached hereto is hereby incorporated by
reference.
All representations, warranties and agreements contained in
this Selected Dealer Agreement (including Addendum A), the Sales Agency
Agreement or in certificates submitted to you pursuant to this Agreement or
Sales Agency Agreement shall remain operative and in full force and effect,
regardless of any investigation made by, or on behalf of, you or any person who
controls you, and shall survive the initial closing and termination of the
Offering.
Any communication from you should be in writing addressed to
Carey Financial Corporation, 50 Rockefeller Plaza, New York, NY 10020. Any
notice from us to you shall be deemed to have been duly given if mailed or
telegraphed to you at the address to which this Agreement is mailed.
5
<PAGE> 6
Please confirm your agreement hereto by signing and returning
at once to us the enclosed duplicate of this Agreement (including Addendum A),
including the information requested in Schedule A attached thereto. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed entirely
within such state.
Very truly yours,
CAREY FINANCIAL CORPORATION,
Sales Agent
By:__________________________
Its:_________________________
CORPORATE PROPERTY ASSOCIATES
14 INCORPORATED, the Company
By:__________________________
Its:_________________________
ACCEPTED, as of _______________
AMERICAN EXPRESS FINANCIAL ADVISORS INC.
By:__________________________
Its:_________________________
6
<PAGE> 7
SCHEDULE A TO SELECTED DEALER AGREEMENT
SELECTED DEALER INFORMATION
[PLEASE PRINT OR TYPE ALL REQUESTED INFORMATION]
---------------------------
SELECTED/DEALER NAME:_________________________________________
SELECTED/DEALER ADDRESS:______________________________________
______________________________________________________________
______________________________________________________________
PHONE NUMBER:_________________________________________________
NAME OF PERSON SIGNING SELECTED DEALER AGREEMENT:_____________
______________________________________________________________
TITLE OF PERSON SIGNING SELECTED DEALER AGREEMENT:____________
______________________________________________________________
7
<PAGE> 8
Addendum A
to
American Express Financial Advisors Inc.
Selected Dealer Agreement
1. Representations and Warranties of the Company, the Advisor,
and the Sales Agent.
The Company, the Advisor and the Sales Agent jointly and severally
represent, warrant and agree 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. 33-_________), 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 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 date on
-1-
<PAGE> 9
which the Offering is terminated, 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 a 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
proposes to engage 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 Advisor. The Advisor, a Pennsylvania limited
partnership, is duly organized, validly existing, and in good standing as a
limited partnership under the laws of the State of Pennsylvania 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.
(e) The Sales Agent. The Sales Agent has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware.
(f) 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.
(g) Violations. Neither the Company nor the Sales Agent are in
violation of their Articles of Incorporation
-2-
<PAGE> 10
("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 party or by which it or any of its properties is
bound.
(h) Taxes. The Company and the Advisor have 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 assessments
have become due.
(i) Pending Action. There is no action, suit or proceeding
pending or, to the best of the knowledge, information and belief of the Company,
the Sales Agent and the Advisor, threatened to which the Company, the Sales
Agent or the Advisor are a party, before or by any court or governmental agency
or body which might materially and adversely affect the business, properties,
condition (financial or otherwise) or earnings of the Company, the Sales Agent
or the Advisor.
(j) 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, if any, for the periods specified;
said financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis; and Coopers &
Lybrand, whose report is filed with the Commission is a part of the Registration
Statement, are independent accountants as required by the Act and the
Regulations.
(k) 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, the
Advisor or the Sales Agent or in the earnings, affairs or business prospects of
the Company, the Advisor or the Sales Agent, whether or not arising in the
ordinary course of business, and (b) there have not been any material
transactions entered into by the Company, the Advisor or the Sales Agent except
in the ordinary course of business.
(l) Investment Company Act. The Company, on the date hereof,
is not subject to, or is otherwise exempt from, regulation under the provisions
of an investment in the Investment Company Act of 1940, as amended.
-3-
<PAGE> 11
(m) Authorization of Agreement. This Agreement and the
Advisory Agreement between the Company and the Advisor (the "Advisory
Agreement") 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, the
Sales Agency Agreement and the Advisory Agreement, the consummation of the
transactions herein and therein contemplated and compliance with the terms of
this Agreement, the Sales Agency Agreement and the Advisory Agreement by the
Company will not conflict with or constitute a default under the Articles or
Bylaws or any indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company is a party, or any law, order, rule or
regulation, writ, injunction or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
Company, or any of its property, except to the extent that the enforceability of
the indemnity and/or contribution provisions contained in Section 4 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, the Sales
Agency Agreement or the Advisory Agreement by the Company, or for the
consummation of the transactions contemplated hereby and thereby (except such as
have been obtained under the Act or as may be required under state securities or
Blue Sky laws in connection with the distribution of the Shares).
(n) 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.
(o) Qualification as a Real Estate Investment Trust. At the
time this Agreement becomes effective and throughout the term of this Agreement,
the Company has satisfied and will continue 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.
(p) Description of Properties. On the Effective Date and at
all times subsequent thereto up to the date on which the Offering is terminated,
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
-4-
<PAGE> 12
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.
(q) Sales Materials. All advertising and supplemental sales
literature prepared or approved by the Company or the Advisor (whether
designated solely for broker-dealer use or otherwise) proposed to be used or
delivered by the Company or you in connection with the Offering of Shares will
not contain an untrue statement of material fact or omit to state a material
fact required to be stated therein, in the light of the circumstances under
which they were made and in conjunction with the Prospectus delivered therewith,
not misleading. In addition, all advertising and supplemental sales literature
prepared by the Company has been filed, as required, with the appropriate
regulatory agencies and is found to be generally consistent with applicable
standards.
(r) Trademarks. Proper consent and authorization has been
obtained for the use of any trademark or servicemark in any sales literature
delivered to you or approved by the Company and its use will not constitute the
unlicensed use of intellectual property.
2. Covenants.
The Company, the Advisor and the Sales Agent each covenant to you that
they 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
amendments 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.
-5-
<PAGE> 13
(b) Registration Statement. Deliver to you 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 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) 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 without expense, a reasonable number of copies of an amendment or amendments
of, or a supplement to 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.
(d) 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 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 to 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.
-6-
<PAGE> 14
(e) 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 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 10 days of delivery of such material to you or which shall be reasonably
disapproved by your counsel within such 10-day period. Furthermore, all such
advertising and supplemental sales material prepared by the Company will be
filed, where required, with the appropriate regulatory agencies and is found to
be generally consistent with applicable standards.
(f) 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 to operate the business of the Company in accordance with the
descriptions of its proposed business set forth in the Prospectus.
(g) Prospectus Delivery. In case you are 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 of the Registration Statement, upon your
request at your expense, the Company will prepare and deliver to you or such
Selected Dealer as many copies as you may request for an amended or supplemented
Prospectus complying with Section 10(a)(3) of the 1933 Act.
(h) 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 1933 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.
(i) Compliance with '34 Act. Complying with the requirements
of the '34 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.
(j) Compliance with Applicable Laws. With respect to their
participation in the Offering and to the management of the affairs of the
Company, will comply with any and all applicable laws, and the published rules
and regulations of the Commission thereunder, and the Rules of Fair Practice of
the NASD.
(k) Compliance with Rule 10b-10. Deliver confirmations to each
AMEX investor who invests in the Company and such confirmations will comply with
the requirements of Rule 10b-10 of the `34 Act.
-7-
<PAGE> 15
3. 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, the Advisor and the Sales Agent, to the performance by the
Company, the Advisor and the Sales Agent of their respective 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 therefore
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 and no stop order or similar order shall be in
effect in any jurisdiction in which the Company intends to offer Shares.
(b) Closings. The Advisor will, at the most frequent interval,
accept Orders for Shares and admit Purchasers to the Company on a monthly basis
("Monthly Closing"). None of the documents required of this Section 3 shall be
delivered to you at such monthly closings. [THE ADVISOR WILL DELIVER TO YOU, AS
A CONDITION OF YOUR OBLIGATIONS HEREUNDER, THOSE DOCUMENTS AS DESCRIBED IN THIS
SECTION 3 IN CONNECTION WITH EVERY THIRD MONTHLY CLOSING ("DOCUMENT CLOSING
DATE").]
(c) Opinion of Counsel. At the Effective Date and each
Documented Closing Date, you shall receive the favorable opinion of Reed Smith
Shaw & McClay, counsel for the Company, dated the Effective Date or Documented
Closing Date, as the case may be, 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 Advisor is a Pennsylvania limited partnership and is
duly organized, validly existing, and in good standing as a limited
partnership under the laws of the Commonwealth of Pennsylvania.
-8-
<PAGE> 16
(iii) the Sales Agent has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware.
(iv) 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
required to be taken for the authorization, issue and sale of such
Shares has been validly and sufficiently taken;
(v) the Sales Agency Agreement has been duly authorized,
executed and delivered by or on behalf of the Company and the Sales
Agent, and the [PRINCIPAL] Selected Dealer Agreement has been duly
authorized, executed and delivered by or on behalf of the Company, the
Sales Agent and the Advisor.
(vi) 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;
(vii) 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, and such Registration Statement complies as to form in all
material respects with the applicable requirements of the Act and the
applicable rules and regulations thereunder;
(viii) 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
-9-
<PAGE> 17
the discretion of the court before which any proceedings may be
brought;
(ix) to the best of such counsel's knowledge and information,
which may be based upon certificates provided by counsel 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;
(x) neither the execution and delivery of this Agreement or
the Advisory Agreement nor compliance with the terms and provisions
hereof will, and consummation of the transactions contemplated herein
and in the Prospectus do not and will not, result in any violation of
the Articles or Bylaws of the Company, 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, writ,
injunction, decree, agreement, 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, to any statute, decree, judgment, order, writ, injunction, rule
or regulation, known to such counsel to be applicable to the Company,
of any court or any governmental body or administrative agency having
jurisdiction over the Company;
(xi) 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;
(xii) Carey Fiduciary Advisors, Inc. has been duly
incorporated and is validly exiting 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 proposes to engage as
described in the Prospectus and is duly qualified to do business as a
foreign corporation
-10-
<PAGE> 18
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;
(xiii) the statements in the Prospectus under the captions
"Risk Factors -- Tax Risks -- REIT Status for Tax Purposes",
"Description of Shares", "Income Tax Aspects" and "Summary of
Organizational Documents" 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
(xiv) 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 or at the time any post-effective amendments
thereto became effective, contained at such times (unless the term
"Prospectus" refers to the Prospectus filed pursuant to Rule 424(b) or
424(c) of the Regulations in which case at the time such Prospectus was
mailed for filing) 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.
(xv) at the time the Registration Statement was filed and
the time it initially became effective and at any time any
amendment (pre-effective or post-effective) or supplements thereto
became effective, the section of the Prospectus entitled "Description
of Properties" includes a description of 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 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 them to
believe that the description, at the time the Registration Statement
initially became effective or at any time any post-effective amendment
thereto became effective, contained at such times (unless the term
"Prospectus" refers to the Prospectus filed pursuant to Rule 424(b) or
424(c) of the Regulations in which
-11-
<PAGE> 19
case at the time such Prospectus was mailed for filing) 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.
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) [DOCUMENTS. ON EACH DOCUMENTED CLOSING DATE], you shall
have been furnished such documents, certificates and opinions as you may
reasonably require for the purpose of enabling you and your counsel to review or
pass upon the matters referred to in subsection (b) of this Section 3, or in
order to evidence the accuracy, completeness or satisfaction, as of the
Documented Closing Date, of any of the representations, warranties or conditions
contained elsewhere herein.
(d) Accountant's Letter. On the Effective Date you shall have
received from Coopers & Lybrand a letter, in form and substance satisfactory to
you in all respects (including the non-material 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, if any, 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
-12-
<PAGE> 20
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", 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 Associates 6 - a California limited partnership, Corporate
Property 7 - a California limited partnership, Corporate Property
Associates 8, L.P., and Corporate Property Associates 9, L.P., a
Delaware limited partnership (collectively, the "CPA(R) Partnerships"),
and of Corporate Property Associates 10 Incorporated, Carey
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 and the Selected Dealers.
(e) Update of Accountant's Letter. On each Documented Closing
Date, you shall receive from Coopers & Lybrand a letter, dated as of such
Documented Closing Date to the effect that they reaffirmed as of such date and
as though made at such date, or affirm as such date, as the case may be, the
statements made by them pursuant to subsection (d) of this Section 3, except
that the specified date referred to in such subsection shall be a date not more
than five days prior to each such Documented Closing date.
(f) Stop Orders. On the Effective Date and during the
Effective Term no order suspending the sale of the Shares in any jurisdiction
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.
(g) Confirmation. On the Effective Date and each Documented
Closing Date, as the case may be:
(i) the representations and warranties of the Company, the
Advisor, and the Sales Agent in this Agreement shall be
-13-
<PAGE> 21
true and correct with the same effect as if made on the Effective Date
or the Documented Closing Date, as the case may be, and the Company,
the Advisor and the Sales Agent have performed all covenants or
conditions on their part to be performed or satisfied at or prior to
the Effective Date or respective Documented closing Date;
(ii) the Registration Statement and the Prospectus (and all
amendments and supplements thereto) contain all statements and
information required to be included therein, and neither the
Registration Statement nor the Prospectus (or any amendments or
supplements thereto) includes any untrue statement of material fact or
omits to state any 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;
(iii) there shall have been no material adverse change in the
business, properties, prospects or condition (financial or otherwise)
of the Company, the Advisor, or the Sales Agent subsequent to the date
of the balance sheets provided in the Registration Statement; and
(iv) Since the Effective Date, no event has occurred which
should have been set forth in an amendment or supplement to the
Prospectus but which has not been so set forth.
You shall receive a certificate dated the Effective Date and each
Documented Closing Date, as the case may be, confirming the above.
(h) Financial Information. In the event properties are
acquired after the Effective Date, you shall be provided such financial
information and, if any portion of such financial information has been audited,
accountant's letters relating to such properties, in each case to the extent
such information is available to the Company, in such form and content as you
may reasonably request.
If any of the conditions specified in this Section 3 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 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 4, 5 and 6 hereof.
All certificates, letters and other documents referred to in
this Section 3 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
-14-
<PAGE> 22
with conformed copies of such certificates, letters and other documents as you
shall reasonably request.
4. Indemnification.
(a) Indemnification by the Company, the Advisor and the Sales
Agent. Subject to the conditions set forth below, the Company, the Advisor and
the Sales Agent agree to jointly and severally indemnify and hold harmless you
and your representatives and employees, and each person, if any, who controls
you 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
misrepresentation or breach of the representations and warranties contained in
Paragraph 1 of this Addendum A of the Selected Dealer Agreement or (2) any
untrue or alleged untrue statement of a material fact contained (x) in the
Registration Statement, the Prospectus (as from time to time amended or
supplemented) or any related preliminary prospectus; or in any supplemental
sales material approved for use by you, the Advisor or the Company; or (y) in
any application or other document (in this Section 4 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 (3) 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 and against, the aggregate amount paid
in settlement of any litigation, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission of any such alleged
untrue statement or omission, if such settlement is effected with the written
consent of the Advisor. Notwithstanding the foregoing and to the extent
prohibited by law, the Company shall not indemnify you 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 indemnities, (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. In any claim by you for indemnification by the
Company for federal or state securities law violations, you shall place before
the court the position of
-15-
<PAGE> 23
the Commission and state securities commissioner with respect to the issue of
indemnification for securities law violations.
(b) Indemnification by You. Subject to the conditions set
forth below, you agree to indemnify and hold harmless the Company, the Advisor
and the Sales Agent, 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, the Advisor and the Sales Agent, 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 unless the failure to so notify has caused
injury to the party from whom indemnification is sought. 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. Except as set forth in the
second preceding, 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 4 and the warranties and
representations contained in this Agreement shall remain in full force and
effect regardless
-16-
<PAGE> 24
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
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
Paragraph 4(a) above and in order to provide for just and equitable contribution
where the indemnification provided for in this Section 4 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, the Advisor and the Sales Agent, jointly and severely, 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 each. The relative
benefits received by the Company, the Advisor and the Sales Agent 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, the Advisor and the Sales Agent
bear to the total underwriting commissions received by you. 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,
the Advisor and the Sales Agent 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 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, the Advisor or the Sales Agent
on the one hand or you on the other. 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) unless
you are held by a court of final jurisdiction to have been more negligent or to
have engaged in
-17-
<PAGE> 25
greater misconduct than the Company, the Advisor and the Sales Agent, combined,
the amount of your contribution to the liability shall not exceed the sales
commissions and other compensation from the proceeds of the offering received by
you. No person guilty of fraudulent misrepresentation (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.
5. 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.
6. Effective Date, Term and Termination of this Agreement.
(a) In the event this Agreement is terminated the Company
shall pay all expenses of the Offering as required by Section 6 of the Sales
Agency Agreement and in the event this Agreement is terminated after Minimum
Sales are made, you shall be entitled to receive all of the Selling Commissions
as provided in Section 3(e) of the Sales Agency Agreement; and provided further,
that if you terminate your participation in the Offering in other than good
faith, the Company shall not be responsible for reimbursing you for your out of
pocket expenses for your counsel. In no event will the Company be liable to
reimburse you for expenses other than your actual out-of-pocket expenses.
-18-
<PAGE> 26
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:________________________________________
Its:_______________________________________
CAREY FINANCIAL CORPORATION
The Sales Agent
By:________________________________________
Its:_______________________________________
CAREY PROPERTY ADVISORS, a
Pennsylvania Limited Partnership,
the Advisor
By: CAREY FIDUCIARY ADVISORS, INC.
General Partner
By:___________________________________
Its:__________________________________
Accepted as of the
date first above written:
AMERICAN EXPRESS FINANCIAL ADVISORS INC.
By:__________________________________
Title:_______________________________
-19-
<PAGE> 1
EXHIBIT 10.3
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT, dated as of , 1997 is between CORPORATE
PROPERTY ASSOCIATES 14 INCORPORATED, a Maryland corporation (the "Company"), and
CAREY PROPERTY ADVISORS, a Pennsylvania limited partnership (the "Advisor").
W I T N E S S E T H:
WHEREAS, the Company has filed with the Securities and Exchange
Commission a Registration Statement (No.333- ) on Form S-11 covering shares of
its common stock ("Shares"), par value $.001, to be offered to the public, and
the Company may subsequently issue securities other than such Shares
("Securities") or otherwise raise additional capital;
WHEREAS, the Company intends to qualify as a REIT (as defined below),
and to invest its funds in investments permitted by the terms of the
Registration Statement and Sections 856 through 860 of the Code (as defined
below);
WHEREAS, the Company desires to avail itself 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, the Company, 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:
Acquisition Expenses. Those expenses, including but not limited to
legal fees and expenses, travel and communications expenses, costs of
appraisals, nonrefundable option payments on Property not acquired,
accounting fees and expenses, title insurance and miscellaneous expenses,
related to selection and acquisition of Properties, whether or not
acquired. Acquisition Expenses shall not include Acquisition Fees.
Acquisition Fees. The total of all fees and commissions (including any
interest thereon) paid by any party to any party in connection with the
making or investing in mortgage
<PAGE> 2
loans or the purchase, development or construction of Properties by the
Company. 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 the Company
shall not be deemed an Acquisition Fee. Included in the computation of such
fees or commissions shall be any real estate commission, selection fee,
development fee (other than as described above), non-recurring management
fee, mortgage placement fee, lease-up fee, transaction structuring fee or
any fee of a similar nature, however designated. Acquisition Fees include
Subordinated Acquisition Fees. Acquisition Fees shall not include
Acquisition Expenses.
Adjusted Investor Capital. As of any date, the Initial Investor Capital
for such date reduced by any distributions on or prior to such date deemed
by the Board to be from Cash from Sales and Financings, but only to the
extent such distributions exceed the amount necessary to satisfy any
accrued but unpaid portion of the Preferred Return not satisfied by
distributions of cash generated through operations through the date Cash
from Sales or Financings are distributed by the Company.
Advisor. Carey Property Advisors, a limited partnership organized under
the laws of the Commonwealth of Pennsylvania.
Affiliate. An Affiliate of another Person shall mean (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 (iv) any legal entity for which such
Person acts as an executive officer, director, trustee or general partner.
Appraised Value. Value according to an appraisal made by an Independent
Appraiser.
Articles of Incorporation. Articles of Incorporation of the Company
under the General Corporation Law of Maryland, as amended from time to
time, pursuant to which the Company is organized.
-2-
<PAGE> 3
Asset Management Fee. The Asset Management Fee as defined in Section
9(a) hereof.
Average Invested Assets. Except as otherwise set forth in the
penultimate sentence in Section 9(a) and (b) hereof, for a specified
period, the average of the aggregate book value of the assets of the
Company invested, directly or indirectly, in Properties and in Loans
secured by real estate, before reserves for depreciation or bad debts or
other similar non-cash reserves, computed by taking the average of such
values at the end of each month during such period. For the purpose of
calculating the Asset Management Fee and the Performance Fee, Average
Invested Assets shall be calculated in accordance with Section 9(a) and
9(b) hereof, respectively.
Board or Board of Directors. The Board of Directors of the Company.
Bylaws. The Bylaws of the Company.
Cash from Financings. Net cash proceeds realized by the Company from
the financing of Properties or the refinancing of any Company indebtedness.
Cash from Sales. Net cash proceeds realized by the Company from the
sale, exchange or other disposition of any of its assets 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 or a breach of this Agreement by the Advisor.
Change of Control. A change of control of the Company 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 the Company 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
-3-
<PAGE> 4
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 the Company representing 8.5% or more of the combined
voting power of the Company's securities then outstanding; (ii) there
occurs a merger, consolidation or other reorganization of the Company which
is not approved by the Board of Directors; (iii) there occurs a sale,
exchange, transfer or other disposition of substantially all of the assets
of the Company to another entity, which disposition is not approved by the
Board of Directors; or (iv) there occurs a contested proxy solicitation of
the Shareholders of the Company that results in the contesting party
electing candidates to a majority of the Board of Directors' positions next
up for election.
Code. Internal Revenue Code of 1986, as amended.
Company. Corporate Property Associates 14 Incorporated, a corporation
organized under the laws of the State of Maryland.
Competitive Real Estate Commission. The real estate or brokerage
commission paid in a competitive market 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 (as
of the date of purchase) to the purchase, development, construction or
improvement of a Property, exclusive of Acquisition Fees and Acquisition
Expenses.
Contract Sales Price. The total consideration received by the Company
for the sale of a Property.
Cumulative Return. For the period for which the calculation is being
made, the percentage resulting from dividing (A) the total Dividends paid
on each Dividend payment date during such period (not including Dividends
paid out of Cash from Sales and Financings), by (B) the product of (i) the
average Adjusted Investor Capital for such period
-4-
<PAGE> 5
(calculated on a daily basis), and (ii) the number of years (including
fractions thereof) elapsed during such period.
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.
Dividends. Dividends declared by the Board.
Equity Interest. The stock of or other interests in, or warrants or
other rights to purchase the stock of or other interests in, any entity
that has borrowed money from the Company or that is a tenant of the Company
or that is a parent or controlling Person of any such borrower or tenant.
Final Closing Date. The last date on which purchasers of Shares offered
pursuant to the Prospectus are issued such Shares.
Good Reason. With respect to the termination of this Agreement, (i) any
failure to obtain a satisfactory agreement from any successor to the
Company to assume and agree to perform the Company's obligations under this
Agreement; or (ii) any material breach of this Agreement of any nature
whatsoever by the Company.
Gross Offering Proceeds. The aggregate purchase price of Shares sold
pursuant to the Offering.
Independent Appraiser. A qualified appraiser of real estate as
determined by the Board, who is not affiliated, directly or indirectly,
with the Company, 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.
Independent Director. A Director of the Company who is not associated
and has not been associated within the last two years, directly or
indirectly, with the Sponsor or the Advisor. A Director shall be deemed to
be associated with
-5-
<PAGE> 6
the Sponsor or the Advisor if he or she (i) owns an interest in, is
employed by, has any material business or professional relationship with,
or is an officer or director of, the Sponsor, the Advisor, or any of their
Affiliates, other than as a director or trustee or officer of not more than
two other REITs organized by the Sponsor or advised by the Advisor, or (ii)
performs services, other than as a Director, for the Company. An indirect
relationship shall include circumstances in which a Director's spouse,
parents, children, siblings, mothers- or fathers-in-law, sons- or
daughters-in-law, or brothers- or sisters-in-law is or has been associated
with the Sponsor, the Advisor, any of their Affiliates or the Company.
Individual. Any natural person and those organizations treated as
natural persons in Section 542(a) of the Code.
Initial Closing Date. The first date on which purchasers of Shares
offered pursuant to the Prospectus are issued such Shares.
Initial Investor Capital. The total amount of capital invested from
time to time by Shareholders (computed at a rate of $10 per Share for every
Share including those Shares for which reduced selling commissions were
paid in connection with their purchase from the Company). Upon completion
of the Offering, the Initial Investor Capital shall be equal to the Gross
Offering Proceeds.
Loan Refinancing Fee. The Loan Refinancing Fee as defined in Section
9(e) hereof.
Loans. The notes and other evidences of indebtedness or obligations
acquired or entered into by the Company as lender which are secured or
collateralized by personal property, or fee or leasehold interests in real
estate or other assets, including but not limited to first or subordinate
mortgage loans, construction loans, development loans, 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.
Nasdaq. The national automated quotation system operated by the
National Association of Securities Dealers, Inc.
-6-
<PAGE> 7
Net Income. For any period, the total revenues applicable to such
period, less the total expenses applicable to such period excluding
additions to reserves for depreciation, bad debts or other similar non-cash
reserves; provided, however, Net Income for purposes of calculating total
allowable Operating Expenses shall exclude the gain from the sale of the
Company's assets.
Offering. The offering of Shares pursuant to the Prospectus.
Operating Expenses. All operating, general and administrative expenses
paid or incurred by the Company, as determined under generally accepted
accounting principles, except the following: (i) interest and discounts and
other cost of borrowed money; (ii) taxes (including state and Federal
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, distribution,
transfer, registration and stock exchange listing of the Company's Shares
and Securities; (iv) expenses connected with the acquisition, disposition,
ownership and operation of real estate interests, mortgage loans, or other
property, including the costs of foreclosure, insurance premiums, legal
services, brokerage and sales commissions, maintenance, repair and
improvement of property; (v) the Acquisition Fee or Subordinated
Disposition Fee payable to the Advisor or any other party; and (vi)
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, the Performance Fee and
the Loan Refinancing Fee.
Organization and Offering Expenses. Those expenses payable by the
Company in connection with the formation, qualification and registration of
the Company and in marketing and distributing Shares, including, but not
limited to, (i) the preparing, printing, filing and delivery of the
Registration Statement and the Prospectus (including any amendments thereof
or supplements thereto) and the preparing and printing of contractual
agreements between the Company 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
-7-
<PAGE> 8
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 the Company's
counsel and independent public accountants, (viii) all advertising expenses
incurred in connection with the 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, marketing fees, incentive fees and wholesaling fees and
expenses incurred in connection with the sale of the Shares.
Performance Fee. The Performance Fee as defined in Section 9(d).
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 6% computed from the Initial
Closing Date through the date as of which such amount is being calculated.
Property or Properties. The Company's partial or entire interest in
real property (including leasehold interests) and personal or mixed
property connected therewith.
Property Management Fee. The Property Management Fee as defined in
Section 9(f) hereof.
Prospectus. The final prospectus of the Company pursuant to which the
Company will offer up to 30,000,000 Shares, as the same may at any time and
from time to time be amended or supplemented after the effective date of
the Registration Statement.
Registration Statement. The Registration Statement on Form S-11 of
which the Prospectus is a part.
REIT. A real estate investment trust, as defined in Sections 856-860 of
the Code.
-8-
<PAGE> 9
Sales Agent. Carey Financial Corporation.
Securities. Any stock, shares (other than currently outstanding Shares
and subsequently issued shares of common stock of the Company), 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 the Company.
Selected Dealer Fee. A due diligence and management fee payable to
Selected Dealers by the Company (through the Sales Agent) of up to 1% of
the price of each Share sold by those Selected Dealers to which the Sales
Agent agrees to pay such due diligence and management fee.
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 any particular time are shown as
holders of record of Shares on the books and records of the Company.
Shares. All of the shares of common stock of the Company, $.001 par
value, and all other shares of common stock of the Company issued in the
Offering or any subsequent offering.
Sponsor. W.P. Carey & Co., Inc. and any other person directly or
indirectly instrumental in organizing, wholly or in part, the Company or
any person who will manage or participate in the management of the Company,
and any Affiliate of any such person. Sponsor does not include a person
whose only relationship to the Company 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(d).
-9-
<PAGE> 10
Subordinated Disposition Fee. The Subordinated Disposition Fee as
defined in Section 9(g) hereof.
Subordinated Incentive Fee. The Subordinated Incentive Fee as defined
in Section 9(h) hereof.
Termination Date. The effective date of any termination of this
Agreement.
Termination Fee. An amount equal to 15% of the amount, if any, by which
(1) the Appraised Value of the Properties on the Termination Date, less the
amount of all indebtedness secured by such Properties, exceeds (2) the
total of the Initial Investor Capital on the Final Closing Date plus an
amount equal to the Preferred Return through the Termination Date reduced
by the total Dividends paid by the Company from its inception through the
Termination Date.
Total Property Cost. With regard to any Property, an amount equal to
the sum of the Contract Purchase Price of such Property plus the
Acquisition Fees paid in connection with such Property.
2%/25% Guidelines. The requirement that, in any 12-month period, the
Operating Expenses not exceed the greater of 2% of the Company's Average
Invested Assets during such 12-month period or 25% of the Company's Net
Income over the same 12-month period.
Underlying Real Property. Property serving as collateral for any Loan.
Valuation. An estimate of value of the assets of the Company as
determined by a Person approved by the Independent Directors, which Person
shall be independent of the Company and the Advisor.
2. APPOINTMENT. The Company 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 the Company potential investment opportunities and to
provide a continuing and suitable investment program consistent with the
investment objectives and policies of the Company as determined and adopted from
time to time by the Directors. In performance of this undertaking,
-10-
<PAGE> 11
subject to the supervision of the Directors and consistent with the provisions
of the Registration Statement, Articles of Incorporation and Bylaws of the
Company, the Advisor shall, either directly or by engaging an Affiliate:
(a) serve as the Company's investment and financial advisor
and provide research and economic and statistical data in connection
with the Company's assets and investment policies;
(b) provide the daily management of the Company and perform
and supervise the various administrative functions reasonably necessary
for the management of the Company;
(c) investigate, select, and, on behalf of the Company, 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 the Company with any of the
foregoing;
(d) consult with the officers and Directors of the Company and
assist the Directors in the formulation and implementation of the
Company's financial policies, and, as necessary, furnish the Directors
with advice and recommendations with respect to the making of
investments consistent with the investment objectives and policies of
the Company and in connection with any borrowings proposed to be
undertaken by the Company;
-11-
<PAGE> 12
(e) subject to the provisions of Sections 3(g) and 4 hereof,
(i) locate, analyze and select potential investments in Property and
Loans; (ii) structure and negotiate the terms and conditions of
transactions pursuant to which investments in Properties and Loans will
be made, purchased or acquired by the Company; (iii) make investments
in Property on behalf of the Company in compliance with the investment
objectives and policies of the Company; (iv) arrange for financing, and
refinancing and make other changes in the asset or capital structure
of, and dispose of, reinvest the proceeds from the sale of or otherwise
deal with the investments in Property and Loans; 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 Directors with periodic reports regarding
prospective investments in Properties and Loans;
(g) obtain the prior approval of the Directors (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 and obtain the prior approval of the Independent Directors
for all investments in Loans;
(h) negotiate on behalf of the Company with banks or lenders
for loans to be made to the Company, and negotiate on behalf of the
Company with investment banking firms and broker-dealers or negotiate
private sales of Shares and Securities or obtain loans for the Company,
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 the Company;
-12-
<PAGE> 13
(i) obtain reports (which may be prepared by the Advisor or
its Affiliates), where appropriate, concerning the value of investments
or contemplated investments of the Company in Property and/or Loans;
(j) obtain for, or provide to, the Company such services as
may be required in acquiring, managing and disposing of Company
Property and/or Loans, including, but not limited to; (i) the
negotiation, making and servicing of Loans; (ii) the disbursement and
collection of Company monies; (iii) the payment of debts of and
fulfillment of the obligations of the Company; and (iv) the handling,
prosecuting and settling of any claims of or against the Company,
including, but not limited to, foreclosing and otherwise enforcing
mortgages and other liens securing the Loans;
(k) from time to time, or at any time reasonably requested by
the Directors, make reports to the Directors of its performance of
services to the Company under this Agreement;
(l) communicate on behalf of the Company 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 the Company;
(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 the Company's
business and operations;
(n) provide the Company with such accounting data and any
other information so requested concerning the investment activities of
the Company as shall be required to prepare and to 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;
-13-
<PAGE> 14
(o) maintain the books and records of the Company;
(p) supervise the performance of such ministerial and
administrative functions as may be necessary in connection with the
daily operations of the Properties and Loans;
(q) provide the Company 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
the Company as the Advisor shall deem advisable under the particular
circumstances;
(t) deliver to or maintain on behalf of the Company copies of
all appraisals obtained in connection with investments in Properties
and Loans; and
(u) notify the Board of all proposed transactions before they
are completed.
4. AUTHORITY OF ADVISOR.
(a) Pursuant to the terms of this Agreement (including the
restrictions included in this Section 4 and in Section 7 hereof), and subject to
the continuing and exclusive authority of the Directors over the management of
the Company, the Directors hereby delegate 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 the Company, (3) acquire Property and make Loans in compliance with
the investment objectives and policies of the Company, (4) arrange for financing
or refinancing, or make changes in the asset or capital structure of, and
dispose of or otherwise deal with, Property and Loans, (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
-14-
<PAGE> 15
the Company, and (7) undertake accounting and other record-keeping functions at
the Property level.
(b) Notwithstanding the foregoing, any investment in Property,
including any acquisition of any Property by the Company (as well as any
financing acquired by the Company in connection with such acquisition), will
require the prior approval of the Directors unless, prior to completion of any
such transaction, the Advisor provides the Company with:
(i) an appraisal for the Property indicating that the
Total Property Cost of the Property does not exceed the
Appraised Value of the Property; and
(ii) a representation from the Advisor that the
Property, in conjunction with the Company's other investments
and proposed investments, at the time the Company is committed
to purchase the Property, is reasonably expected to fulfill
the Company's investment objectives and policies as
established by the Directors and then in effect.
(c) If a transaction requires approval by the Independent
Directors, the Advisor will deliver to the Independent Directors all documents
required by them to properly evaluate the proposed investment in such Property
or such Loan.
Notwithstanding the foregoing, the prior approval of the
Directors, including a majority of the Independent Directors, will be required
for transactions involving (a) investments in Properties in respect of which all
of the requirements specified in Section 4(b) hereof have not be satisfied, (b)
investments in Properties made through joint venture arrangements with
Affiliates of the Advisor, (c) investments in Properties which are not
contemplated by the terms of the Prospectus, (d) transactions that present
issues which involve conflicts of interest for the Advisor (other than conflicts
involving the payment of fees or the reimbursement of expenses), (e) investments
in equity securities, and (f) the lease of assets to the Sponsor, any Director
or the Advisor.
The Directors may, at any time upon the giving of notice to
the Advisor, modify or revoke the authority set forth in this Section 4. If and
to the extent the Directors so modify or revoke the authority contained herein,
the Advisor shall henceforth
-15-
<PAGE> 16
submit to the Directors for prior approval such proposed transactions involving
investments in Property as thereafter require prior approval, provided however,
that such modification or revocation shall be effective upon receipt by the
Advisor and shall not be applicable to investment transactions to which the
Advisor has committed the Company prior to the date of receipt by the Advisor of
such notification.
5. BANK ACCOUNTS. The Advisor may establish and maintain one
or more bank accounts in its own name for the account of the Company or in the
name of the Company and may collect and deposit into any such account or
accounts, and disburse from any such account or accounts, any money on behalf of
the Company, provided that no funds shall be commingled with the funds of the
Advisor; and the Advisor shall from time to time render appropriate accountings
of such collections and payments to the Directors and to the auditors of the
Company.
6. RECORDS; ACCESS. The Advisor shall maintain appropriate
records of all its activities hereunder and make such records available for
inspection by the Directors and by counsel, auditors and authorized agents of
the Company, at any time or from time to time during normal business hours. The
Advisor shall at all reasonable times have access to the books and records of
the Company.
7. LIMITATIONS ON ACTIVITIES. Anything else in this Agreement
to the contrary notwithstanding, the Advisor shall refrain from taking any
action which, in its sole judgment made in good faith, would adversely affect
the status of the Company as a REIT, subject the Company to regulation under the
Investment Company Act of 1940, would violate any law, rule, regulation or
statement of policy of any governmental body or agency having jurisdiction over
the Company, its Shares or its Securities, or otherwise not be permitted by the
Articles of Incorporation or Bylaws, except if such action shall be ordered by
the Directors, in which case the Advisor shall notify promptly the Directors of
the Advisor's judgment of the potential impact of such action and shall refrain
from taking such action until it receives further clarification or instructions
from the Directors. In such event the Advisor shall have no liability for acting
in accordance with the specific instructions of the Directors so given.
Notwithstanding the foregoing, the Advisor, its partners and employees, and
partners, stockholders, directors and officers of the Advisor's partners shall
not be liable to the Company, or to the Directors or Shareholders for any act or
omission by the Advisor, its partners or employees, or partners, stockholders,
directors or officers of the Advisor's partners except as provided in Sections
20 and 22 hereof.
-16-
<PAGE> 17
8. RELATIONSHIP WITH DIRECTORS. Partners and employees of the
Advisor or partners in the Advisor or any corporate parents of a partner, or
directors, officers or stockholders of any partner or corporate parent of a
partner may serve as a Director and as officers of the Company, except that no
partner in or employee of the Advisor or its Affiliates who also is a Director
or officer of the Company shall receive any compensation from the Company for
serving as a Director or officer other than for reasonable reimbursement for
travel and related expenses incurred in attending meetings of the Directors.
9. FEES.
(a) ASSET MANAGEMENT FEE. The Company shall pay to the Advisor
as compensation for the advisory services rendered to the Company hereunder an
amount equal to .5% per annum of the Average Invested Assets of the Company (the
"Asset Management Fee") calculated as set forth below. The Asset Management Fee
will be calculated monthly, beginning with the month in which the Company first
makes an investment in Properties or Loans, on the basis of one-twelfth of .5%
of the Average Invested Assets during the previous month, computed as a daily
average. The Asset Management Fee calculated with respect to each month shall be
payable monthly on the last day of such month, or the first business day
following the last day of such month. If at the end of any fiscal quarter, the
Company's Operating Expenses exceed the 2%/25% Guidelines over the immediately
preceding 12 months, payment of the Asset Management Fee will be withheld to the
extent necessary to cause the Company to satisfy the 2%/25% Guidelines. Any
portion of the Asset Management Fee not paid due to the Company's failure to
satisfy the 2%/25% Guidelines shall be paid at the end of the next fiscal
quarter to the extent such payment would not cause the Company to fail to
satisfy the 2%/25% Guidelines if such payment were to be included in the
Company's Operating Expenses for the 12 months preceding such payment. For
purposes of determining the amount of the Asset Management Fee, the Average
Invested Assets will be, in any particular month, (i) for all months during the
period from inception of the Company through December 31, 2002, the average of
the aggregate book value of the assets of the Company invested, directly or
indirectly, in equity interests, in Properties and in Loans secured by real
estate, before reserves for depreciation or bad debts or other similar non-cash
reserves, all as shown on the books of the Company on each day of such month and
(ii) for all months beginning after December 31, 2002, the estimated value of
all of the Properties determined in accordance with the most recently conducted
Valuation, plus the principal balance of all Loans. Any part of the Asset
Management Fee that
-17-
<PAGE> 18
has been subordinated pursuant to this subsection (a) shall not be deemed earned
until such time as payable hereunder.
(b) PERFORMANCE FEE. In addition to the Asset Management Fee
described in Section 9(a) above, the Company shall also pay to the Advisor as
compensation for the advisory services rendered to the Company hereunder an
amount equal to .5% per annum of the Average Invested Assets of the Company (the
"Performance Fee") calculated as set forth below. The Performance Fee will be
calculated monthly, beginning with the month in which the Company first makes an
investment in Properties or Loans, on the basis of one-twelfth of .5% of the
Average Invested Assets during the previous month, computed as a daily average.
The Performance Fee calculated with respect to each month shall be payable on a
quarterly basis on the last day of the first month of the immediately following
fiscal quarter, but only if the Company has paid Dividends to Shareholders in an
amount sufficient to pay the Preferred Return for the period beginning with the
Initial Closing Date and ending on the last day of the most recently completed
fiscal quarter. Any portion of the Performance Fee not paid due to the Company's
failure to pay the Preferred Return shall be paid by the Company, to the extent
it is not restricted by the 2%/25% Guidelines as described below, at the end of
the next fiscal quarter through which the Company has paid the Preferred Return.
If at the end of any fiscal quarter, the Company's Operating Expenses exceed the
2%/25% Guidelines over the immediately preceding 12 months, payment of the
Performance Fee will be withheld to the extent necessary to cause the Company to
satisfy the 2%/25% Guidelines. Any portion of the Performance Fee not paid due
to the Company's failure to satisfy the 2%/25% Guidelines shall be paid at the
end of the next fiscal quarter to the extent such payment would not cause the
Company to fail to satisfy the 2%/25% Guidelines if such payment were to be
included in the Company's Operating Expenses for the 12 months preceding such
payment. For purposes of determining the amount of the Performance Fee, the
Average Invested Assets will be, in any particular month, (i) for all months
during the period from inception of the Company through December 31, 2002, the
average of the aggregate book value of the assets of the Company invested,
directly or indirectly, in equity interests, in Properties and in Loans secured
by real estate, before reserves for depreciation or bad debts or other similar
non-cash reserves, all as shown on the books of the Company on each day of such
month and (ii) for all months beginning after December 31, 2002, the estimated
value of all of the Company's Properties determined in accordance with the most
recently conducted Valuation, plus the principal balance of all Loans. Any part
of the Performance Fee that has been subordinated pursuant to this subsection
(b) shall not be deemed earned until such time as payable hereunder.
-18-
<PAGE> 19
(c) ACQUISITION FEE. The Advisor may receive as compensation
for services rendered in connection with the investigation, selection and
acquisition (by purchase, investment or exchange) of Property an Acquisition Fee
payable by the seller of such Property or the Company. The total Acquisition
Fees (not including Subordinated Acquisition Fees) payable to the Advisor and
its Affiliates plus Acquisition Fees (not including Subordinated Acquisition
Fees) payable by the Company to any other party may not exceed 2.5% of the
aggregate Total Property Cost of all Properties purchased by the Company with
proceeds from the Offering (calculated after all such proceeds are invested)
unless a majority of the Directors (including a majority of the Independent
Directors) not otherwise interested in any transaction approve the excess as
being commercially competitive, fair and reasonable to the Company. The total
amount of Acquisition Fees (including Subordinated Acquisition Fees and any
interest thereon) and Acquisition Expenses paid by the Company may not exceed
six percent (6%) of the aggregate Contract Purchase Price of all Properties
purchased by the Company unless a majority of the Board (including a majority of
the Independent Directors) not otherwise interested in any transaction approves
fees in excess of this limit as being commercially competitive, fair and
reasonable to the Company. No Acquisition Fees will be payable on the
reinvestment of proceeds from the sale or refinancing of Properties.
(d) SUBORDINATED ACQUISITION FEE. In addition to the
Acquisition Fee described in Section 9(c) above, the Advisor may receive as
additional compensation for services rendered in connection with the
investigation, selection and acquisition (by purchase, investment or exchange)
of a Property a Subordinated Acquisition Fee payable by the seller of such
Property or the Company. The total Subordinated Acquisition Fees payable to the
Advisor and its Affiliates plus Subordinated Acquisition Fees payable by the
Company to any other party may not exceed 2.0% of the aggregate Total Property
Cost of all Properties purchased by the Company with proceeds from the Offering
(calculated after all such proceeds are invested) unless a majority of the
Directors (including a majority of the Independent Directors) not otherwise
interested in any transaction approve the excess as being commercially
competitive, fair and reasonable to the Company. The unpaid portion of the
Subordinated Acquisition Fee with respect to any Property shall bear interest at
the rate of [6%] per annum from the date of acquisition of such Property until
such portion is paid. Subject to the following sentence, the Subordinated
Acquisition Fee with respect to any Property shall be payable in equal annual
installments on January 1 of each of the eight calendar years following the
first anniversary of the date such
-19-
<PAGE> 20
Property was purchased. Accrued interest shall also be payable on such dates.
The portion of the Subordinated Acquisitions Fees, and accrued interest thereon,
otherwise payable for any year on January 1 of the following year shall be
payable only if the Company has paid Dividends to Shareholders in an amount
sufficient to pay the Preferred Return for the period beginning with the Initial
Closing Date and ending on the last day of such year. Any portion of the
Subordinated Acquisitions Fees, and accrued interest thereon, not paid due to
the Company's failure to pay the Preferred Return for the most recently
completed fiscal year shall be paid by the Company on January 1 following the
fiscal year through which the Company has paid the Preferred Return. In the
event that the Shares are listed for trading on a national securities exchange
or are included for quotation on Nasdaq, all Subordinated Acquisition Fees, and
accrued interest thereon, shall be due and payable on the date of such listing
or inclusion. No Subordinated Acquisition Fees will be payable on the
reinvestment of proceeds from the sale or refinancing of Properties.
(e) LOAN REFINANCING FEE. The Company shall pay to the Advisor
for all qualifying loan refinancings of Properties a Loan Refinancing Fee in the
amount of 1% of the principal amount of any loan secured by a Property. Any Loan
Refinancing Fee shall be due and payable upon the funding of the related
mortgage loan or as soon thereafter as is reasonably practicable. A refinancing
will qualify for a Loan Refinancing Fee only if (i) any new loan is approved by
the Independent Directors as being in the best interests of the Company, (ii)
payment of the fee is approved by a majority of the Independent Directors, and
(iii) the terms of the new loan represent an improvement over the terms of the
refinanced loan, the new loan materially increases the total debt secured by a
particular Property or the maturity date of the refinanced loan (which must have
a term of five years or more) is less than one year from the date of the
refinancing.
(f) PROPERTY MANAGEMENT FEE. The Advisor may cause the Company
to pay Property Management Fees for property management services rendered by the
Advisor or its Affiliates in connection with Properties acquired directly or
through foreclosure. The Advisor or an Affiliate will provide property
management services only if a Property becomes vacant or requires more active
management than contemplated at the time such Property is acquired. In either
event, the Company, by approval of the Directors (including a majority of the
Independent Directors), may engage the Advisor or an Affiliate, subject to such
Advisor's or such Affiliate's qualifying as an "independent contractor" pursuant
to Section 856(d)(3) of the Code, to provide property management services. If
such services are rendered by the Advisor or an Affiliate, the maximum Property
Management Fees which may be
-20-
<PAGE> 21
paid to the Advisor or an Affiliate will be 6% of gross revenues from commercial
Properties and 5% of gross revenues from residential Properties, plus reimbursed
expenses, paid monthly, where such entity performs property management and
leasing, re-leasing and leasing related services, or 3% of the gross revenues of
the Property if only property management services are performed by such entity.
Property Management Fees payable to the Advisor or an Affiliate for an
industrial or commercial Property leased on a long-term (defined as at least ten
years, excluding renewals) triple net basis, may not exceed 1% of the gross
revenues from such Property, except for a one-time initial leasing fee equal to
3% of total base rents payable for the first five years of the lease, payable in
five equal annual installments. Such fees to the Advisor or its Affiliate cannot
exceed the usual and customary amounts charged for similar services in the same
geographic area.
(g) SUBORDINATED DISPOSITION FEE. If the Advisor or an
Affiliate provides a substantial amount of the services (as determined by a
majority of the Independent Directors) in the sale of a Property, the Advisor or
an Affiliate shall receive a Subordinated Disposition Fee equal to the lesser of
(i) 50% of the Competitive Real Estate Commission and (ii) 3% of the Contract
Sales Price of such Property. The Subordinated Disposition Fee will be paid only
if Shareholders have received total Dividends in an amount equal to 100% of
Initial Investor Capital plus an amount sufficient to pay a Cumulative Return of
6% from the Initial Closing Date through the date payment is made. To the extent
that Subordinated Disposition Fees are not paid by the Company on a current
basis due to the foregoing limitation, the unpaid fees will be accrued and paid
at such time as the limitation has been satisfied. The Subordinated Disposition
Fee may be paid in addition to real estate commissions paid to non-Affiliates,
provided that the total real estate commissions paid to all Persons by the
Company shall not exceed an amount equal to the lesser of (i) 6% of the Contract
Sales Price of a Property or (ii) the Competitive Real Estate Commission. In the
event this Agreement is terminated prior to such time as the Shareholders have
received total Dividends in an amount equal to 100% of Initial Investor Capital
plus an amount sufficient to pay a Cumulative Return of 6% from the Initial
Closing Date through the date of termination of this Agreement, an appraisal of
the Properties then owned by the Company shall be made and the Subordinated
Disposition Fee on Properties previously sold will be deemed earned if the
Appraised Value of the Properties then owned by the Company plus total Dividends
received prior to the date of termination of this Agreement is equal to 100% of
Initial Investor Capital plus an amount sufficient to pay a Cumulative Return of
6% from the Initial Closing Date through the date of termination of this
Agreement. In the event the Company's Shares are listed on a
-21-
<PAGE> 22
national securities exchange or included for quotation on Nasdaq and, at the
time of such listing, the Advisor has accrued a Subordinated Disposition Fee
which has not been paid, for purposes of determining whether the subordination
conditions have been satisfied, Shareholders will be deemed to have received a
Dividend in an amount equal to the product of the total number of outstanding
Shares and the average of the closing prices (or average bid and asked quotes)
of the Shares over a period, beginning 180 days after listing of the Shares, of
30 days during which the Shares are traded.
(h) SUBORDINATED INCENTIVE FEE. The Subordinated Incentive Fee
shall be payable to the Advisor in an amount equal to 15% of Cash from Sales and
Financings distributed to the Shareholders after the Shareholders have received
total Dividends in an amount equal to 100% of Initial Investor Capital plus an
amount sufficient to pay the Preferred Return from the Initial Closing Date
through the date on which each distribution out of Cash From Sales and
Financings is made. In the event the Shares are listed on a national securities
exchange or included for quotation on Nasdaq, the Advisor shall be paid the
Subordinated Incentive Fee in an amount equal to 12% of the excess (the "Excess
Return") of (A) the sum (the "Hypothetical Return") of (i) the market value of
the Company, measured by taking the average closing price or bid and asked
price, as the case may be, over a period, beginning 180 days after listing of
the Shares, of 30 days during which the Shares are traded (the "Market Value")
plus (ii) the total of the Dividends paid to Shareholders from the Initial
Closing Date until the date the Shares are listed or included for quotation over
(B) the sum of (i) 100% of Initial Investor Capital and (ii) the total amount of
the Dividends required to be paid to Shareholders in order to pay the Preferred
Return through the date the Market Value is determined. The Subordinated
Incentive Fee shall be increased to 13% of the Excess Return if the Hypothetical
Return is an amount sufficient to return to investors 100% of Initial Investor
Capital plus a cumulative return of 8% or more but less than 9%; 14% if the
Hypothetical Return is an amount sufficient to return 100% of Initial Investor
Capital plus a cumulative return of 9% or more but less than 10%; and 15% if the
Hypothetical Return is an amount sufficient to return 100% of Initial Investor
Capital plus a cumulative return of 10% or more. The Cumulative return shall be
measured from the Initial Closing Date through the last day on which the Market
Value is determined. The fee may only be paid if the average closing price of
the Shares over any consecutive three-month period ending within 24 months of
the date of listing is sufficient, when added to Dividends previously paid from
the Initial Closing Date through the end of such three-month period, to return
100% of Initial Investor Capital plus a 6% cumulative return from the Initial
-22-
<PAGE> 23
Closing Date through the last day of such three-month period. The Company shall
have the option to pay such fee in the form of cash, a promissory note or any
combination thereof. The promissory note shall be fully amortizing over five
years, provide for quarterly payments and bear interest at the prime rate
announced from time to time by The Bank of New York.
(i) LOANS FROM AFFILIATES. If any loans are made to the
Company by the Advisor or an Affiliate of the Advisor, the maximum amount of
interest that may be charged by such Affiliate shall be the lesser of (i) 1%
above the prime rate of interest charged from time to time by The Bank of New
York and (ii) the rate that would be charged to the Company by unrelated lending
institutions on comparable loans for the same purpose in the locality of the
Property. The terms of any such loans shall be no less favorable than the terms
available between non-Affiliated Persons for similar commercial loans.
(j) CHANGES TO FEE STRUCTURE. In the event the Shares are
listed on a national securities exchange or are included for quotation on
Nasdaq, the Company and the Advisor shall negotiate in good faith to establish a
fee structure appropriate for a entity with a perpetual life. A majority of the
Independent Directors must approve the new fee structure negotiated with the
Advisor. In negotiating a new fee structure, the Independent Directors shall
consider all of the factors they deem relevant, including but not limited to:
(a) the size of the advisory fee in relation to the size, composition and
profitability of the Company's portfolio; (b) the success of the Advisor in
generating opportunities that meet the investment objectives of the Company; (c)
the rates charged to other REITs and to investors other than REITs by Advisors
performing similar services; (d) additional revenues realized by the Advisor and
its Affiliates through their relationship with the Company, including loan
administration, underwriting or broker commissions, servicing, engineering,
inspection and other fees, whether paid by the Company or by others with whom
the Company does business; (e) the quality and extent of service and advice
furnished by the Advisor; (f) the performance of the investment portfolio of the
Company, including income, conversion or appreciation of capital, frequency of
problem investments and competence in dealing with distress situations; and (g)
the quality of the portfolio of the Company in relationship to the investments
generated by the Advisor for its own account. The new fee structure can be no
more favorable to the Advisor than the current fee structure.
10. EXPENSES. In addition to the compensation paid to the
Advisor pursuant to Section 9 hereof, the Company shall pay directly or
reimburse the Advisor for the following expenses:
-23-
<PAGE> 24
(i) the Company's Organizational and Offering Expenses;
provided however, that within 60 days after the end of the
month in which the Offering terminates, the Advisor shall
reimburse the Company for any Organizational and Offering
Expense reimbursements received by the Advisor pursuant to
this Section 10 to the extent that such reimbursements, when
added to the balance of the Organizational and Offering
Expenses (excluding selling commissions, and fees paid and
expenses reimbursed to the Selected Dealers) paid directly by
the Company, exceed 3.5% of the Gross Offering Proceeds;
provided further, however, that the Advisor shall be
responsible for the payment of all Organizational and Offering
Expenses (excluding such commissions and such fees and expense
reimbursements) in excess of 3.5% of the Gross Offering
Proceeds;
(ii) Acquisition Expenses incurred in connection with
the initial investment of the funds of the Company;
(iii) expenses other than Acquisition Expenses incurred
in connection with the investment of the funds of the Company;
(iv) interest and other costs for borrowed money,
including discounts, points and other similar fees;
(v) taxes and assessments on income or Property and
taxes as an expense of doing business;
(vi) costs associated with insurance required in
connection with the business of the Company or by the
Directors;
(vii) expenses of managing and operating Properties
owned by the Company, whether payable to an Affiliate of the
Company or a non-affiliated Person;
(viii) fees and expenses of legal counsel for the
Company;
-24-
<PAGE> 25
(ix) fees and expense of non-affiliated auditors and
accountants for the Company;
(x) all expenses in connection with payments to the
Directors and meetings of the Directors and Shareholders;
(xi) expenses associated with listing the Shares and
Securities on a securities exchange or NASDAQ if requested by
the Directors or with the issuance and distribution of Shares
and Securities, such as selling commissions and fees, taxes,
legal and accounting fees, listing and registration fees, and
other Organization and Offering Expenses;
(xii) expenses connected with payments of Dividends in
cash or otherwise made or caused to be made by the Directors
to the Shareholders;
(xiii) expenses of organizing, revising, amending,
converting, modifying, or terminating the Company or the
Articles of Incorporation;
(xiv) expenses of maintaining communications with
Shareholders, including the cost of preparation, printing and
mailing annual reports and other Shareholder reports, proxy
statements and other reports required by governmental
entities;
(xv) expenses related to the Properties and Loans and
other fees relating to making investments including personnel
and other costs incurred in Property or Loan transactions
where a fee is not payable to the Advisor; and
(xvi) all other expenses the Advisor incurs in
connection with providing services to the Company including
reimbursement to the Advisor or its Affiliates for the cost of
rent, goods, materials and personnel incurred by them based
upon the compensation of the Persons involved and an
appropriate share of overhead allocable to those Persons.
-25-
<PAGE> 26
No reimbursement shall be made for the cost of personnel to
the extent that such personnel are used in transactions for which the Advisor
receives a separate fee.
Expenses incurred by the Advisor on behalf of the Company and
payable pursuant to this Section 10 shall be reimbursed quarterly to the Advisor
within 60 days after the end of each quarter. The Advisor shall prepare a
statement documenting the expenses of the Company during each quarter, and shall
deliver such statement to the Company within 45 days after the end of each
quarter.
11. OTHER SERVICES. Should the Directors request that the
Advisor or any partner or employee thereof render services for the Company other
than set forth in Section 3 hereof, such services shall be separately
compensated and shall not be deemed to be services pursuant to the terms of this
Agreement.
12. FIDELITY BOND. The Advisor shall maintain a fidelity bond
for the benefit of the Company which bond shall insure the Company from losses
of up to $5,000,000 and shall be of the type customarily purchased by entities
performing services similar to those provided to the Company by the Advisor.
13. REFUND BY ADVISOR. Within 60 days after the end of any
fiscal quarter of the Company which begins following the date the Company first
commences operations, if Operating Expenses of the Company during the fiscal
year, ending at the end of such quarter exceed the greater of (a) 2% of the
Average Invested Assets or (b) 25% of the Net Income of the Company during that
fiscal year and a majority of the Independent Directors find this excess amount
justified based on such unusual and non-recurring factors which they deem
sufficient, the Advisor may be reimbursed in future years for the full amount of
such excess expenses, or any portion thereof, but only to the extent such
reimbursement would not cause the Company's Operating Expenses to exceed the
2%/25% Guidelines in any such year. In no event shall the Operating Expenses
paid by the Company in any twelve month period ending at the end of a fiscal
quarter exceed the 2%/25% Guidelines. All figures used in the foregoing
computation shall be determined in accordance with generally accepted accounting
principles applied on a consistent basis. If the Advisor receives an incentive
fee for the sale of Property, Net Income, for purposes of calculating the
Operating Expenses, shall exclude the gain from the sale of such Property.
14. OTHER ACTIVITIES OF THE ADVISOR. Nothing herein contained
shall prevent the Advisor from engaging in other
-26-
<PAGE> 27
activities, including without limitation the rendering of advice to other
investors (including other REITs) and the management of other programs advised,
sponsored or organized by the Advisor or its Affiliates; nor shall this
Agreement limit or restrict the right of any director, officer, employee,
partner or shareholder of the Advisor or its Affiliates to engage in any other
business or to render services of any kind to any other partnership,
corporation, firm, individual, trust or association. The Advisor may, with
respect to any investment in which the Company is a participant, also render
advice and service to each and every other participant therein. The Advisor
shall report to the Directors the existence of any condition or circumstance,
existing or anticipated, of which it has knowledge, which creates or could
create a conflict of interest between the Advisor's obligations to the Company
and its obligations to or its interest in any other partnership, corporation,
firm, individual, trust or association. The Advisor or its Affiliates shall
promptly disclose to the Directors knowledge of such condition or circumstance.
If the Sponsor, Advisor, Director or Affiliates thereof have sponsored other
investment programs with similar investment objectives which have investment
funds available at the same time as the Company, it shall be the duty of the
Directors (including the Independent Directors) to adopt the method set forth in
the Registration Statement or another reasonable method by which properties are
to be allocated to the competing investment entities and to use their best
efforts to apply such method fairly to the Company.
The Advisor shall be required to use its best efforts to
present a continuing and suitable investment program to the Company which is
consistent with the investment policies and objectives of the Company, but
neither the Advisor nor any Affiliate of the Advisor shall be obligated
generally to present any particular investment opportunity to the Company even
if the opportunity is of character which, if presented to the Company, could be
taken by the Company.
In the event that the Advisor or its Affiliates is presented
with a potential investment which might be made by the Company and by another
investment entity which the Advisor or its Affiliates advises or manages, the
Advisor shall consider the investment portfolio of each entity, cash flow of
each entity, the effect of the acquisition on the diversification of each
entity's portfolio, rental payments during any renewal period, the estimated
income tax effects of the purchase on each entity, the policies of each entity
relating to leverage, the funds of each entity available for investment, the
amount of equity required to make the investment and the length of time such
funds have been available for investment. To the extent that a Property might be
suitable for the Company and for another investment entity which
-27-
<PAGE> 28
is advised or managed by the Advisor, the Advisor shall give priority to the
investment entity, including the Company, which has uninvested funds for the
longest period of time. The Advisor may consider the Property for private
placement only if such Property is deemed inappropriate for any investment
entity which is advised or managed by the Advisor, including the Company.
15. RELATIONSHIP OF ADVISOR AND COMPANY. The Company and the
Advisor agree that they have not created and do not intend to create by this
Agreement a joint venture or partnership relationship between them and nothing
in this Agreement shall be construed to make them partners or joint venturers or
impose any liability as partners or joint venturers on either of them.
16. TERM; TERMINATION OF AGREEMENT. This Agreement shall
continue in force until December 31, 1999, and thereafter shall be automatically
renewed from year to year, unless either party shall give notice in writing of
non-renewal to the other party not less than 60 days before the end of any such
year.
17. TERMINATION BY COMPANY. At the sole option of a majority
of the Independent Directors, this Agreement may be terminated immediately by
written notice of termination from the Company to the Advisor if, in addition to
the occurrence of events which would constitute Cause, any of the following
events occur:
(a) If the Advisor shall violate any material provision
of this Agreement, and after written notice of such violation,
shall not cure such default within 30 days or have begun
action within 30 days to cure the default which shall be
completed with reasonable diligence; or
(b) If the Advisor shall be adjudged bankrupt or
insolvent by a court of competent jurisdiction, or an order
shall be made by a court of competent jurisdiction for the
appointment of a receiver, liquidator, or trustee of the
Advisor, for all or substantially all of its property by
reason of the foregoing, or if a court of competent
jurisdiction approves any petition filed against the Advisor
for reorganization, and such adjudication or order shall
remain in force or unstayed for a period of 30 days; or
(c) If the Advisor shall institute proceedings for
voluntary bankruptcy or shall
-28-
<PAGE> 29
file a petition seeking reorganization under the federal
bankruptcy laws, or for relief under any law for relief of
debtors, or shall consent to the appointment of a receiver for
itself or for all or substantially all of its property, or
shall make a general assignment for the benefit of its
creditors, or shall admit in writing its inability to pay its
debts, generally, as they become due.
Any notice of termination under Section 16 or 17 shall be
effective on the date specified in such notice, which may be the day on which
such notice is given or any date thereafter. The Advisor agrees that if any of
the events specified in Section 17 (b) or (c) shall occur, it shall give written
notice thereof to the Directors within 15 days after the occurrence of such
event.
18. TERMINATION BY EITHER PARTY. This Agreement may be
terminated immediately without penalty by the Advisor by written notice of
termination to the Company upon the occurrence of events which would constitute
Good Reason or by the Company without cause or penalty by action of the
Directors, the Independent Directors or by action of a majority of the
Shareholders, in either case upon 60 days' written notice.
19. ASSIGNMENT PROHIBITION. This Agreement may not be assigned
by the Advisor without the approval of a majority of the Directors (including a
majority of the Independent Directors); provided, however, that such approval
shall not be required in the case of an assignment to a corporation,
partnership, association, trust or organization which may take over the assets
and carry on the affairs of the Advisor, provided (i) that at the time of such
assignment, such successor organization shall be owned substantially by the then
partners of the Advisor or their Affiliates and only if such entity has a net
worth of at least $5,000,000 and (ii) that a general partner of the Advisor
shall deliver to the Directors a statement in writing indicating the ownership
structure and net worth of the successor organization and a certification from
the new Advisor as to its net worth. Such an assignment shall bind the assignees
hereunder in the same manner as the Advisor is bound by this Agreement. The
Advisor may assign any rights to receive fees or other payments under this
Agreement without obtaining the approval of the Directors. This Agreement shall
not be assigned by the Company without the consent of the Advisor, except in the
case of an assignment by the Company to a corporation or other organization
which is a successor to the Company, in which case such successor organization
shall be bound
-29-
<PAGE> 30
hereunder and by the terms of said assignment in the same manner as the Company
is bound by this Agreement.
20. PAYMENTS TO AND DUTIES OF ADVISOR UPON TERMINATION.
(a) After the Termination Date, the Advisor shall not be
entitled to compensation for further services hereunder except it shall be
entitled to receive from the Company within 30 days after the effective date of
such termination the following:
(i) all unpaid reimbursements of Organization and
Offering Expenses and of Operating Expenses payable to the
Advisor;
(ii) all earned but unpaid Asset Management Fees and
Performance Fees payable to the Advisor prior to the
termination of this Agreement;
(iii) all earned but unpaid Subordinated Acquisition
Fees and all unaccrued Subordinated Acquisition Fees, in each
case payable to the Advisor relating to the acquisition of any
Property prior to the termination of this Agreement;
(iv) all earned but unpaid Subordinated Disposition
Fees payable to the Advisor relating to the sale of any
Property prior to the termination of this Agreement;
(v) all earned but unpaid Loan Refinancing Fees payable
to the Advisor relating to the financing or refinancing of any
Property prior to the termination of this Agreement; and
(vi) all earned but unpaid Property Management Fees
payable to the Advisor or its Affiliates relating to the
management of any property prior to the termination of this
Agreement.
Notwithstanding the foregoing, in the event this Agreement is
terminated by the Company for Cause or by the Advisor for other than Good
Reason, the Advisor will not be entitled to receive the sums in subparagraphs
20(a)(i)-(vi), above. All amounts payable to the Advisor in the event of a
termination shall be evidenced by a non-interest bearing promissory note (the
"Note") having a principal amount of the unpaid amount payable to the Advisor.
(b) If this Agreement is terminated by the Company for any
reason other than Cause, by either party in connection with a
-30-
<PAGE> 31
Change of Control, or by the Advisor for Good Reason, the Advisor shall be
entitled to payment of the Termination Fee.
(c) The Termination Fee shall be paid in a manner determined
by the Directors, but in no event shall any portion of the Termination Fee
remain unpaid three years after the termination, non-renewal or substantial
modification of this Agreement, nor shall the Termination Fee be paid in less
than 12 equal quarterly installments, with interest, on the unpaid balance at
the prime rate of interest then in effect as announced by The Bank of New York.
Notwithstanding the preceding sentence, any amounts which may be deemed payable
at the date the obligation to pay the Termination Fee is incurred (i) shall be
an amount which provides compensation to the Advisor only for that portion of
the holding period for the respective Properties during which the Advisor
provided services to the Company, (ii) shall not be due and payable until the
Property to which such fees relate is sold or refinanced, and (iii) shall not
bear interest until the Property to which such fees relate is sold or
refinanced. A portion of the Termination Fee shall be paid as each Property
owned by the Company on the Termination Date is sold. The portion of the
Termination Fee payable upon each such sale shall be equal to (y) the
Termination Fee multiplied by (z) the percentage calculated by dividing the
Appraised Value (at the Termination Date) of the Property sold by the Company
divided by the total Appraised Value (at the Termination Date) of all Properties
owned by the Company on the Termination Date.
The Note for amounts payable as described above shall mature
upon the liquidation of the Company (or ten years from date of issuance
whichever is earlier) and shall be payable at any time prior to maturity. The
compensation payable under this Subsection shall be paid or delivered to the
Advisor within 30 days after funds shall become available to the Company for the
making of such payments.
(d) Notwithstanding the foregoing, the Advisor shall not be
entitled to payment of the Termination Fee in the event this Agreement is
terminated because of failure of the Company and the Advisor to establish,
pursuant to Section 9(j) hereof, a fee structure appropriate for an entity with
a perpetual life in the event the Shares are listed on a national securities
exchange or are included for quotation on Nasdaq.
(e) The Advisor shall promptly upon termination:
(i) pay over to the Company all money collected and
held for the account of the Company pursuant to this
Agreement, after
-31-
<PAGE> 32
deducting any accrued compensation and reimbursement for its
expenses to which it is then entitled;
(ii) deliver to the Directors a full accounting,
including a statement showing all payments collected by it and
a statement of all money held by it, covering the period
following the date of the last accounting furnished to the
Directors;
(iii) deliver to the Directors all assets, including
Properties and Loans, and documents of the Company then in the
custody of the Advisor; and
(iv) cooperate with the Company to provide an orderly
management transition.
21. INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify and hold harmless the Advisor and its Affiliates, including their
respective officers, directors, partners and employees, from all liability,
claims, damages or losses arising in the performance of their duties hereunder,
and related expenses, including reasonable attorneys' fees, to the extent such
liability, claims, damages or losses and related expenses are not fully
reimbursed by insurance, subject to any limitations imposed by the laws of the
State of Maryland, the Articles of Incorporation or the Bylaws of the Company.
Notwithstanding the foregoing, the Advisor shall not be entitled to
indemnification or be held harmless pursuant to this Section 21 for any activity
which the Advisor shall be required to indemnify or hold harmless the Company
pursuant to Section 22.
22. INDEMNIFICATION BY ADVISOR. The Advisor shall indemnify
and hold harmless the Company from liability, claims, damages, taxes or losses
and related expenses including attorneys' fees, to the extent that such
liability, claims, damages, taxes or losses and related expenses are not fully
reimbursed by insurance and are incurred by reason of the Advisor's bad faith,
fraud, willful misfeasance, misconduct, negligence or reckless disregard of its
duties.
23. NOTICES. Any notice, report or other communication
required or permitted to be given hereunder shall be in writing unless some
other method of giving such notice, report or other communication is accepted by
the party to whom it is given, and shall be given by being delivered by hand or
by overnight mail or
-32-
<PAGE> 33
other overnight delivery service to the addresses set forth herein:
To the Directors Corporate Property Associates 14
and to the Company: Incorporated
50 Rockefeller Plaza
New York, NY 10020
To the Advisor: Carey Property Advisors
50 Rockefeller Plaza
New York, NY 10020
Either party may at any time give notice in writing to the
other party of a change in its address for the purposes of this Section 23.
24. MODIFICATION. This Agreement shall not be changed,
modified, terminated, or discharged, in whole or in part, except by an
instrument in writing signed by both parties hereto, or their respective
successors or assignees.
25. SEVERABILITY. The provisions of this Agreement are
independent of and severable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
26. CONSTRUCTION. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of New York.
27. ENTIRE AGREEMENT. This Agreement contains the entire
agreement and understanding among the parties hereto with respect to the subject
matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or written,
of any nature whatsoever with respect to the subject matter hereof. The express
terms hereof control and supersede any course of performance and/or usage of the
trade inconsistent with any of the terms hereof. This Agreement may not be
modified or amended other than by an agreement in writing.
28. INDULGENCES, NOT WAIVERS. Neither the failure nor any
delay on the part of a party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with
-33-
<PAGE> 34
respect to any occurrence be construed as a waiver of such right, remedy, power
or privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
29. GENDER. Words used herein regardless of the number and
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context requires.
30. TITLES NOT TO AFFECT INTERPRETATION. The titles of
Sections and subsections contained in this Agreement are for convenience only,
and they neither form a part of this Agreement nor are they to be used in the
construction or interpretation hereof.
31. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original
as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
32. NAME. W.P. Carey & Co., Inc. has a proprietary interest in
the name "Corporate Property Associates" and "CPA(R)." Accordingly, and in
recognition of this right, if at any time the Company ceases to retain Carey
Property Advisors or an Affiliate thereof to perform the services of Advisor,
the Directors of the Company will, promptly after receipt of written request
from Carey Property Advisors, cease to conduct business under or use the name
"Corporate Property Associates" or "CPA(R)" or any diminutive thereof and the
Company shall use its best efforts to change the name of the Company to a name
that does not contain the name "Corporate Property Associates" or "CPA(R)" or
any other word or words that might, in the sole discretion of the Advisor, be
susceptible of indication of some form of relationship between the Company and
the Advisor or any Affiliate thereof. Consistent with the foregoing, it is
specifically recognized that the Advisor or one or more of its Affiliates has in
the past and may in the future organize, sponsor or otherwise permit to exist
other investment vehicles (including vehicles for investment in real estate) and
financial and service organizations having "Corporate Property Associates" or
"CPA(R)" as a part of their name, all without the need for any consent (and
without the right to object thereto) by the Company or its Directors.
-34-
<PAGE> 35
33. INITIAL INVESTMENT. The Advisor has contributed to the
Company $200,000 in exchange for 20,000 Shares (the "Initial Investment"). The
Advisor or its Affiliates may not sell any of the Shares purchased with the
Initial Investment during the term of this Agreement. The restrictions included
above shall not continue to apply to any Shares other than the Share acquired
through the Initial Investment acquired by the Advisor or its Affiliates. The
Advisor shall not vote any Shares it now owns or hereafter acquires in any vote
for the election of Directors or any vote regarding the approval or termination
of any contract with the Advisor or any of its Affiliates.
IN WITNESS WHEREOF, the parties hereto have executed this
Advisory Agreement as of the day and year first above written.
CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED
By:__________________________________________
Name:
Title:
CAREY PROPERTY ADVISORS
By: CAREY FIDUCIARY ADVISORS, INC.
Its General Partner
By:_____________________________________
Name:
Title:
-35-
<PAGE> 1
EXHIBIT 10.4
WHOLESALING AGREEMENT
THIS WHOLESALING AGREEMENT (this "Agreement") dated as of ,
1997, by and between CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED, a Maryland
corporation (the "Company"), and CAREY FINANCIAL CORPORATION, a Delaware
corporation ("Carey").
WHEREAS, the Company proposes to raise up to $300,000,000
through the sale of shares of common stock of the Company (the "Shares") for
investment in real property as described in a Registration Statement on Form
S-11 (No. 333- ) filed with the Securities and Exchange Commission (the
"Registration Statement"); and
WHEREAS, the Company desires to retain Carey and Carey desires
to undertake to coordinate the performance of certain wholesaling services for
the Company pursuant to this Agreement on the terms and subject to the
conditions hereinafter set forth and subject to the limitations, if any, set
forth in the final Prospectus which will be included in the Registration
Statement.
NOW THEREFORE, in consideration of the mutual promises herein
made and for other good and valuable consideration, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. The Company hereby retains Carey to provide the following
services for the Company:
(a) Carey shall develop and prepare sales literature to be
used by the Company in the offer and sale of the Shares (the
"Offering"), which sales literature shall comply with the Securities
Act of 1933, as amended, and the regulations thereunder, the Rules of
Fair Practice of the National Association of Securities Dealers, Inc.
and the "blue sky" laws of any jurisdiction in which such material is
used. The sales literature may include, but not be limited to, a slide
presentation, a property acquisition report, a brochure and seminar
invitations for presentation and distribution to the public and an
audio program, a video program and a brochure for presentation and
distribution to broker-dealers.
(b) Carey shall assist broker-dealers and registered
investment advisors participating in the Offering by coordinating
broker-dealer and registered investment advisor seminars, informational
meetings, preparing and distributing brochures and other sales
literature designed for broker-dealers and registered investment
advisors and providing
<PAGE> 2
information and answering any questions with regard to the Offering.
(c) Carey shall assist the Company in enlisting broker-dealers
and registered investment advisors to participate in the Offering as
selected dealers.
2. In consideration for providing the above services, Carey
shall receive reimbursement for identified expenses incurred in connection with
its wholesaling activities described in Section 1 above, including but not
limited to (a) travel and entertainment expenses; (b) the cost of compensation
paid to employees of Carey in connection with wholesaling activities; (c)
expenses incurred in coordinating broker-dealer and registered investment
advisor seminars and meetings; and (d) wholesaling fees and wholesaling expense
reimbursements paid to it or its Affiliates or other entities.
3. The Company shall, at the direction of Carey, reimburse
directly all other entities for marketing and wholesaling expenses of the type
described in clauses (a), (b) and (c) of Section 2 hereof incurred directly by
those entities at the request of Carey.
4. Carey shall adopt procedures which it, in its sole
discretion, deems adequate to monitor compliance with the limitation in Rule
2740 of the NASD Rules of Fair practice and IM 2740 thereto on aggregate
compensation to it and all broker-dealers participating in the Offering. In no
event will the amounts paid hereunder, when combined with all other underwriting
compensation paid in connection with the offering, exceed 10% of Gross Offering
Proceeds plus 0.5% for bona fide due diligence expenses.
5. The Company hereby represents and warrants to Carey that
the representations and warranties of it set forth in Section 2 of the Sales
Agency Agreement, dated the date hereof, between the Company and Carey, as Sales
Agent (the "Sales Agency Agreement"), are true and correct in all respects, and
that such representations and warranties are hereby incorporated by reference
herein (together with all related definitions and cross-references) as if set
forth in full herein.
6. The Company hereby covenants to Carey that it will honor
and perform each of the covenants made by it in Section 4 of the Sales Agency
Agreement, and agrees that such covenants are incorporated by reference herein
(together with all related definitions and cross-references) as if set forth in
full herein.
-2-
<PAGE> 3
7. The term of this Agreement shall commence on the date
hereof and shall continue until such time as the Offering is completed.
Notwithstanding the foregoing, this Agreement may be terminated without the
payment of any penalty by either party upon not less than 60 days' notice in
writing to the other party, except for the payment to Carey of unreimbursed
expenses incurred by it prior to the date of termination.
8. Carey may assign any of its rights or delegate the
performance of any of its obligations hereunder to its Affiliates or any other
entity, provided, however, that no such delegation shall relieve Carey of its
obligations hereunder.
9. The parties hereto agree that they have not created a
joint venture or partnership relationship between them, that Carey shall be
deemed to be an independent contractor and not for any purpose to be an employee
of the Company.
10. This Agreement represents the entire agreement of the
parties hereto relating to the subject matter hereof and may not be amended,
modified or changed except in a writing signed by the parties hereto.
11. Subject to the limitations on assignment contained herein,
the provisions of this Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
12. This Agreement shall be governed by the laws of the State
of New York applicable to agreements made and to be performed entirely within
such state.
13. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, and all such
counterparts together shall constitute but one and the same instrument.
14. 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.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
CORPORATE PROPERTY ASSOCIATES 14
INCORPORATED
-3-
<PAGE> 4
By:
--------------------------
Claude Fernandez,
Executive Vice President
CAREY FINANCIAL CORPORATION
By:
--------------------------
H. Augustus Carey,
President
-4-
<PAGE> 1
EXHIBIT 10.5
ESCROW AGREEMENT
ESCROW AGREEMENT made as of July , 1997 by and among CORPORATE
PROPERTY ASSOCIATES 14 INCORPORATED, a Maryland corporation (the "Company"),
CAREY FINANCIAL CORPORATION, a Delaware corporation (the "Sales Agent"), and THE
UNITED STATES TRUST COMPANY OF NEW YORK, a New York corporation (the "Escrow
Agent").
WHEREAS, the Company has filed a Registration Statement on
Form S-11 and amendments thereto (as so amended, the "Registration Statement")
with the Securities and Exchange Commission (the "Commission"), bearing
registration number 33-___________.
WHEREAS, the Company and the Sales Agent will enter into a
Sales Agency Agreement (the "Sales Agency Agreement"), pursuant to which the
Sales Agent and a group of selected dealers (each a "Selected Dealer") will
offer and sell to the public on a best efforts basis a maximum of 30,000,000
shares of common stock of the Company (the "Shares") at $10 per Share.
WHEREAS, the Company has sole discretion in determining
whether to accept or reject any orders for the Shares;
WHEREAS, the Company, in compliance with the terms of the
proposed offering described in the Registration Statement and Rule 15c2-4 under
the Securities Exchange Act of 1934, as amended, proposes to establish an escrow
account with the Escrow Agent for the deposit of payments for the Shares; and
WHEREAS, the foregoing recitals are statements of the Company
and the Sales Agent and not of the Escrow Agent;
NOW, THEREFORE, in consideration of the mutual promises herein
made and for other good and valuable consideration, the parties hereby agree as
follows:
1. Subject to Section 6 hereof, for the period commencing on
the date of the Prospectus and terminating not later than 60 days following (a)
the date two years from the date of the Prospectus or (b) the date on which the
offering of the Shares otherwise terminates, whichever first occurs, but in no
case prior to 60 days after the final disposition of the money and property held
in escrow hereunder, the parties hereby appoint the Escrow Agent in accordance
with the terms and conditions set forth herein, and the Escrow Agent hereby
accepts such appointment and agrees to receive, hold and disburse the proceeds
from the sale of the Shares in accordance herewith. The Company and the Sales
Agent agree to promptly notify the Escrow Agent of the date of the Prospectus
(or if the offering of the Shares is extended, the date
<PAGE> 2
of termination of such extension) and the date, if any, referred to in clause
(b) above.
2. (a) The Sales Agent shall deliver, and shall cause each
Selected Dealer to directly or indirectly deliver, proceeds (the "Escrow Funds")
received from purchasers of the Shares (each an "Investor") to the Escrow Agent
at The United States Trust Company of New York, 114 W. 47 Street, New York, NY
10036-1532. The Escrow Agent shall have no obligation or responsibility to
determine whether the Sales Agent or any Selected Dealer has delivered to the
Escrow Agent all or any part of the proceeds received from an Investor. All
deliveries of proceeds shall be accompanied by (i) the name and address 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 the investment by, each Investor on whose behalf proceeds
are delivered to the Escrow Agent and (ii) a statement advising the Escrow Agent
of the aggregate amount of Escrow Funds delivered attributable to individual
retirement accounts, Keogh plans, or any other employee benefit plan subject to
Title I of the Employee Retirement Income Security Act of 1974 (collectively
referred to as "Plan Investors") or from some other type of investor ("Non-Plan
Investors"). Funds delivered to the Escrow Agent may be in the form of checks
payable to "The United States Trust Company of New York, as Escrow Agent" and
drawn on an account of an Investor or Selected Dealer or wire transfer from the
Sales Agent or certain Selected Dealers identified to the Escrow Agent by the
Company or the Sales Agent. The Company shall comply fully with the Interest and
Dividend Tax Compliance Act of 1983 and the Escrow Agent shall have no
responsibility thereunder.
(b) Prior to the delivery of any payments from Investors,
the Company shall deliver to the Escrow Agent a copy of the Prospectus,
certified by the Company to be a true copy, and a copy of the order of the
Commission declaring effective the Registration Statement as soon as practicable
after the Company's receipt thereof. It is understood that the copy of the
Prospectus is being delivered to the Escrow Agent solely for the purpose of
notifying the Escrow Agent of the effective date of the Registration Statement
and that the Escrow Agent is not charged with any duty to review the Prospectus
or to inquire into the effectiveness of the Registration Statement.
(c) All funds received from Plan Investors shall be
deposited and maintained in a separate account opened by the Escrow Agent ("Plan
Subaccount"). All funds received from Non-Plan Investors shall be deposited and
maintained in a separate account opened by the Escrow Agent ("Non-Plan
Subaccount").
(d) All Escrow Funds shall be invested in the U. S. Trust
Government Money Fund. All investments attributable to Escrow Funds shall be
made by the Escrow Agent in the name of "The United States Trust Company of New
York, as Escrow Agent." The income derived from such investments shall be
distributed to the
-2-
<PAGE> 3
Investors or, in the case of Investors ("AMEX Investors") solicited by American
Express Financial Advisors, Inc. ("AMEX"), to AMEX for the account of such AMEX
Investors, in either case as Escrow Interest in accordance with the provisions
of Section 3(a), (b) or (c) hereof, whichever shall be applicable. The Escrow
Agent shall issue to each Investor (including each AMEX Investor) a Form 1099
for each year in which such Investor had Escrow Funds on deposit with the Escrow
Agent.
3. (a) Upon receipt by the Escrow Agent of (i) an opinion from
counsel to the Company stating that all conditions necessary for the release of
Escrow Funds have been satisfied and that the offering of the Shares has not
been terminated by withdrawal of the Registration Statement and (ii)
instructions signed by the Sales Agent and the Company, the Escrow Agent will
from time to time pay to the Company and/or to any other person designated in
such instructions the Escrow Funds in accordance with such instructions. Such
instructions also shall include the times and places at which such Escrow Funds
are to be paid and the amount and method of payment. The Company shall give the
Escrow Agent three business days advance oral notification of the contents of
such instructions. Within 15 calendar days after the first date on which Escrow
Funds are paid to the Company or other designated person pursuant to the
instructions described above, the Escrow Agent shall remit interest earned on
such Escrow Funds ("Escrow Interest") to Investors on whose behalf such Escrow
Funds were deposited or, in the case of AMEX Investors, to AMEX for the account
of such AMEX Investors, as applicable, as follows:
(A) In the case of an Plan Investor, the interest earned on
all Escrow Funds maintained in the Plan Subaccount opened in
accordance with Section 2(c) hereof based on the length of
time its subscription payment has been held by the Escrow
Agent. Such remission shall be made either directly to, or
pursuant to instruction received from, the Plan Investor or an
investment Adviser acting on behalf of such Investor, or in
the case of AMEX Plan Investors, in a lump sum directly to
AMEX for the account of such AMEX Investors. The payment of
Escrow Interest to AMEX shall be accompanied by a listing, in
a form acceptable to AMEX, of the AMEX Plan Investors to whom
interest should be paid and their respective AMEX account
numbers.
(B) In the case of a Non-Plan Investor, its pro rata share of
interest earned on all Escrow Funds maintained in the Non-Plan
Subaccount opened in accordance with Section 2(c) hereof based
on the length of time its subscription payments have been held
by the Escrow Agent. Such remission shall be made either
directly to, or pursuant to instructions received from, the
Non-Plan Investor or an agent acting on behalf of such
Investor, or, in the case of AMEX Non-Plan Investors, in a
lump sum directly to AMEX for the account of such AMEX
-3-
<PAGE> 4
Investors. The payment of Escrow Interest to AMEX shall be
accompanied by a listing, in a form acceptable to AMEX, of the
AMEX Non-Plan Investors to whom interest should be paid and
their respective AMEX account number.
(b) If, during the period any Escrow Funds are held by
the Escrow Agent, the Company determines that (i) an Investor will not be issued
Shares because the Company determines that such Investor is not acceptable, or
(ii) a portion of an Investor's order is rejected, the Company shall (A) furnish
the Escrow Agent with the name of such Investor and the amount of such
Investor's order which must be returned, and (B) direct the Escrow Agent to, and
the Escrow Agent shall, return to such Investor or, in the case of an AMEX
Investor, to AMEX for the account of such Investor, within eight business days
of the Escrow Agent's receipt of such information, the amount of such Investor's
order (including any Escrow Interest attributable to such amount) which must be
returned.
(c) In the event that, prior to the date, one year from
the date of the Prospectus (the "Anniversary Date"), the Registration Statement
is withdrawn from registration with the Commission or, if not so withdrawn, the
Escrow Agent has not received the opinion of counsel and instructions described
in Section 3(a) hereof, the Escrow Agent shall, within 10 business days
following the Anniversary Date, or after receipt of written notice from the
Company and the Sales Agent that the Registration Statement has been withdrawn,
as the case may be, remit to or for the account of each Investor its respective
share of the Escrow Funds then held by the Escrow Agent on behalf of such
Investor, together with such Investor's respective share of Escrow Interest,
based on the length of time such Investor's payments have been held by the
Escrow Agent and determined in accordance with Section 3(a) hereof. Such
remission shall be made either directly to, or pursuant to instructions received
from, the Investor or an agent acting on behalf of such Investor or, in the case
of AMEX Investors, in a lump sum to AMEX for the account of such AMEX Investors.
Notwithstanding the foregoing, the Escrow Agent shall use its best efforts to
remit such Escrow Funds and Escrow Interest to or for the account of each
Investor within five business days following the earlier of the dates specified
above.
4. (a) The Escrow Agent shall perform the following
functions with respect to funds it receives from the Sales Agent or Selected
Dealers by check drawn on an Investor's account or wire transfers on behalf of
Investors:
(i) Collect the mail received at the address referred to Section
2(a) hereof prior to 12:00 noon on each business day;
(ii) Stamp each such check with a date and a sequential accession
number;
-4-
<PAGE> 5
(iii) Before the close of business on the business day on which
funds are received from Non-Plan Investors, deposit checks or
wire transfers attributable to such Non-Plan Investors into
the Non-Plan Subaccount established pursuant to Section 2(c)
hereof;
(iv) Before the close of business on the business day on which
funds are received from an Plan Investor, deposit such funds
into the Plan Subaccount established pursuant to Section 2(c)
hereof;
(v) Verify that, for each Investor whose name was submitted to the
Escrow Agent by the Sales Agent or any Selected Dealer in
connection with the delivery of funds to the Escrow Agent,
payment for the Shares subscribed for by such Investor has
been made either by check or by wire transfer as described in
Section 2(a) hereof and notify the Company in writing as soon
as practicable if any such payment is not received or if
payment on any check is refused by the bank or financial
institution on which such check is drawn.
(vi) Within 48 hours of the close of business on the business day
on which funds are received, send to the Company and to the
Company's transfer agent by Express Mail or other next day
delivery service, the aggregate face amount of all checks and
the amount of wire transfers received.
(b) On each business day during the period any Escrow Funds are
held by the Escrow Agent, the Escrow Agent shall notify the Company by telephone
of the then current per annum rate at which interest is accruing on the Escrow
Funds, both with respect to Plan Investors and Non-Plan Investors. Such
notification shall be confirmed in writing in the form of a weekly report which
shall be sent to the Company by hand delivery or by first class U.S. mail.
5. (a) Notwithstanding anything to the contrary contained in this
Escrow Agreement, the Escrow Agent shall in no case or event be liable for the
failure of any of the conditions of this Escrow Agreement or damage caused by
the exercise of its duties, if acting in good faith, in any particular manner,
or for any reason (including, without limitation, the liquidation of investments
of the Escrow Funds), for any mistake of fact or law, for any error of judgment,
or for any action taken or omitted by it, or any action suffered by it to be
taken or omitted, except gross negligence or willful misconduct with reference
to the Escrow Funds or Escrow Interest, and the Escrow Agent, if acting in good
faith, shall not be liable or responsible for its failure to ascertain the terms
or conditions, or to comply with any of the
-5-
<PAGE> 6
provisions, of any agreement, contract or other document delivered to it or
referred to herein, nor shall the Escrow Agent, if acting in good faith, be
liable or responsible for forgeries or false personation or for its good faith
determination of the authority of any person executing this Escrow Agreement or
for the value or validity or genuineness or collection of any check from an
Investor delivered to the Escrow Agent hereunder. The Escrow Agent shall have no
responsibility with respect to the use or application of any funds or other
property paid or delivered by the Escrow Agent to the Company pursuant to the
provisions hereof. The Escrow Agent shall not be liable to the other parties
hereto or to anyone else for any loss which may be incurred by reason of any
investment of any monies it holds hereunder in its capacity as Escrow Agent.
(b) In the absence of gross negligence or willful misconduct on
the part of the Escrow Agent, the Escrow Agent may rely conclusively upon and
shall not be liable for, and shall be indemnified and held harmless for, acting
upon any order, notice, demand, certificate, opinion or advice of counsel
(including counsel chosen by the Escrow Agent), statement, instrument, report or
other paper or document (not only as to its due execution and the validity and
effectiveness of its provisions, but also as to the truth, completeness and
acceptability of any information therein contained) which is believed by the
Escrow Agent to be genuine and to be signed or presented by the proper person or
persons. The Escrow Agent shall not be bound by any notice or demand, or any
waiver, modification, termination or rescission of this Escrow Agreement or any
of the terms hereof, unless evidenced by a writing delivered to the Escrow Agent
signed by the proper party or parties and, if the duties or rights of the Escrow
Agent are affected, unless it shall give its prior written consent thereto.
(c) The Escrow Agent shall have the right to assume, in the
absence of written notice to the contrary from the proper person or persons,
that a fact or an event by reason of which an action would or might be taken by
the Escrow Agent does not exist or has not occurred, without incurring liability
for any action taken or omitted, or any action taken or omitted by it or to be
taken or omitted, in good faith and in the exercise of its own best judgment, in
reliance upon such assumption.
(d) To the extent that the Escrow Agent becomes liable for the
payment of taxes, including withholding taxes, in respect of income derived from
the investment of funds held hereunder or any payment made hereunder, the Escrow
Agent may pay such taxes from the funds held. The Escrow Agent may withhold from
any payment of monies held by it hereunder such amount as the Escrow Agent
estimates to be sufficient to provide for the payment of such taxes not yet
paid, and may use the sum withheld for that purpose. The Escrow Agent shall be
indemnified and held harmless against any liability for taxes and for any
penalties or interest in respect of taxes on such investment income or payments
in the
-6-
<PAGE> 7
manner provided in Section 6(e) hereof. The Escrow Agent shall provide to each
Investor, or, in the case of AMEX Investors, to AMEX all information necessary
regarding on whose behalf such withholdings have been made so that the proper
adjustments may be made to the escrow interest payment received by the Investor
or to the Investor's AMEX account.
(e) The Escrow Agent shall be indemnified and held harmless by
the Company and the Sales Agent, jointly and severally, from and against any
costs, liabilities, claims, judgments and other expenses, including reasonable
counsel fees and disbursements, or loss suffered by the Escrow Agent in
connection with or directly or indirectly arising out of or relating to this
Escrow Agreement, the services of the Escrow Agent hereunder, the money or other
property held by it hereunder or any income earned from investment of such
money, provided, however, that such indemnification shall not apply to any such
expenses, losses, claims or demands caused by the gross negligence or willful
misconduct of the Escrow Agent or its officers, employees or agents. Promptly
after the receipt by the Escrow Agent of notice of any demand or claim or the
commencement of any action, suit or proceeding, the Escrow Agent shall, if a
claim in respect thereof is to be made against any of the other parties hereto,
notify such other parties thereof in writing; but the failure by the Escrow
Agent promptly to give such notice shall not relieve any party from any
liability which such party may have to the Escrow Agent hereunder. For the
purposes hereof, the term "expense or loss" shall include all amounts paid or
payable to satisfy any claim, demand or liability, or in settlement of any
claim, demand, action, suit or proceeding settled with the express written
consent of the Escrow Agent, all reasonable costs and expenses, including, but
not limited to, counsel fees and disbursements, paid or incurred in
investigating or defending against any claim, demand, action, suit or
proceeding. Anything in this subsection (e) to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any such claim,
demand, action, suit or proceeding effected without its written consent.
(f) Should any dispute or conflicting claims arise with respect
to the payment or ownership or right of possession of the Escrow Funds or Escrow
Interest, the Escrow Agent shall be entitled, in its sole discretion, to refuse
to comply with any and all claims, demands, or instructions with respect to, and
to retain possession of, such Escrow Funds or Escrow Interest so long as such
dispute or conflict shall continue and the Escrow Agent shall not be liable for
its failure or refusal to comply with such conflicting claims, demands or
instructions. The Escrow Agent shall be entitled to refuse to act until such
disputes or conflicting claims have been settled either by mutual agreement
among the parties concerned or by the final order, decree or judgment of a court
or other tribunal of competent jurisdiction in the United States of America and
the expiration of time for appeal without perfection of any appeal, but the
Escrow Agent shall be
-7-
<PAGE> 8
under no duty whatsoever to institute or defend any such proceeding.
(g) The Escrow Agent's duties are only such as are herein specifically
provided, being purely ministerial in nature, and that the Escrow Agent shall
use reasonable diligence in the performance of its obligations hereunder, but
shall incur no liability whatever, except for willful misconduct or gross
negligence, so long as the Escrow Agent has acted in good faith. The Escrow
Agent shall have no duty to enforce any obligation of any person to make any
payment or delivery, or to direct or cause any payment or delivery to be made,
or to enforce any obligation of any person to perform any other act. The Escrow
Agent shall be under no liability to the other parties hereto or to anyone else
by reason of any failure on the part of any party hereto or any maker,
guarantor, endorser or other signatory of any document or any other person to
perform such person's obligations under any such document. Except for amendments
to this agreement referred to below and except for joint instructions given to
the Escrow Agent by the other parties hereto relating to the escrow deposit
under this agreement, the Escrow Agent shall not be obligated to recognize any
agreement between any or all of the persons referred to herein, notwithstanding
that references thereto may be made herein and whether or not it has knowledge
thereof. The Escrow Agent is not a party to, and is not bound by, any agreement
or other document out of which this Escrow Agreement may arise or any other
agreement or other document in connection with the Company.
6. Notwithstanding anything to the contrary contained in this Escrow
Agreement, the Escrow Agent (a) may resign from its duties under this Escrow
Agreement by giving 30 calendar days' prior written notice of such resignation
to the other parties hereto and (b) may be discharged from its duties under this
Escrow Agreement upon the receipt from each of the other parties hereto of 30
calendar days' prior written notice of such discharge. Upon the resignation or
discharge of the Escrow Agent, the Company shall retain a substitute escrow
agent to perform the functions theretofore performed by the Escrow Agent under
this Escrow Agreement. As soon as practicable after its resignation, the Escrow
Agent shall turn over to a successor escrow agent appointed by the other parties
hereto all money and property held hereunder upon presentation of a document
appointing the new escrow agent and its acceptance thereof. If no new escrow
agent is so appointed prior to the effectiveness of such resignation or
discharge, the Escrow Agent may deposit the aforesaid money and property with
any court it deems appropriate.
7 (a) The Company shall compensate the Escrow Agent in accordance with
the fee schedule attached hereto as Exhibit A.
(b) It is understood that fees and usual charges agreed upon for the
Escrow Agent's services hereunder shall be considered compensation for its
ordinary services as contemplated by this Escrow Agreement and in the event the
conditions of this Escrow
-8-
<PAGE> 9
Agreement are not promptly fulfilled by parties other than the Escrow Agent or
that the Escrow Agent renders any service hereunder not provided for in, or
contemplated by, this Escrow Agreement, or that there is any modification
hereof, or that any controversy arises hereunder or that the Escrow Agent is
made a party to, or intervenes in, or that there is, any litigation pertaining
to this Escrow Agreement or the subject matter thereof, the Escrow Agent and its
legal counsel shall be reasonably compensated for services rendered in
connection with, and reimbursed for all reasonable costs and expenses occasioned
by, such events and the Escrow Agent shall have the right to retain all
documents and/or other things of value at any time held by it hereunder, except
Escrow Funds, Escrow Interest or subscription material, until such fees, costs
and expenses shall be paid. The Company hereby promises to pay the foregoing
sums upon demand.
(c) It is understood that from time to time on and after the date
hereof, the other parties hereto shall deliver or cause to be delivered to the
Escrow Agent such further documents and instruments and shall do and cause to be
done such further acts as the Escrow Agent reasonably shall request (it being
understood that the Escrow Agent shall have no obligation to make any such
request) to carry out more effectively the provisions and purposes of this
Escrow Agreement, to evidence compliance herewith or to assure itself that it is
protected in acting hereunder.
8. If, after the receipt by the Escrow Agent of any check or
instrument pursuant hereto, the Escrow Agent shall inform the Company and the
Sales Agent that such check or instrument has been entered for collection by it
hereunder and is uncollectable and payment of the funds represented by such
check or instrument has been made pursuant to the terms of this Escrow
Agreement, then the Company shall immediately reimburse the Escrow Agent for
such payment plus interest thereon, and the Escrow Agent shall deliver the
returned check or instrument to the Company provided, however, that nothing
contained herein shall require the Escrow Agent to invest or pay out funds which
it has reason to believe are uncollectable or prior to funds respecting such
check or instrument having been paid (it being understood that the Escrow Agent
shall be under no duty to investigate the collectability of any such funds). The
Escrow Agent shall have no duty or responsibility to enforce collection of any
check delivered to the Escrow Agent hereunder. Notwithstanding anything to the
contrary contained herein, the Escrow Agent shall not be required to advance its
own funds to the Company, the Sales Agent or any Selected Dealer or any Investor
for any purpose under this Agreement.
9. All distributions of payments for Shares by the Escrow Agent to
Investors or to any other person or entity pursuant to this Escrow Agreement
shall be made by check, payable in accordance with Section 3(a) hereof. All
payments by the Escrow Agent to the Company shall be made in immediately
available funds, if and to the extent that the funds on deposit with the
-9-
<PAGE> 10
Escrow Agent are immediately available at the time of such payment.
10. The Company may at any time assign its right to receive up
to 85% of the amount of the Escrow Funds attributable to Non-Plan Investors as
security for borrowings from third parties, provided that any such assignment
shall be subordinate to the rights of Investors to receive, and no such
assignment shall in any way prevent the return to Investors of, the Escrow Funds
and Escrow Interest in accordance with Sections 3(a) and (b) hereof. The Escrow
Agent shall accept and acknowledge instructions for the payment of the Escrow
Funds in accordance with the provisions of Section 3(a) hereof designating any
such third party for such payment. It is specifically understood that, in order
for the parties hereto to change such instructions pursuant to this Escrow
Agreement, any party that has been assigned the right to receive Escrow Funds
shall join in the execution of an agreement changing such instructions or shall
otherwise give its written consent to such agreement. The Escrow Agent may rely
on any instructions it receives pursuant to this Section 10 until it receives
properly executed instructions which specifically supersede such previously
received instructions. The Company hereby agrees not to submit instructions
altering previously submitted instructions concerning payment of Escrow Funds to
third parties unless such new instructions are signed or consented to in writing
by such third party. All reasonable expenses incurred by the Escrow Agent as a
result of any such assignment referred to above shall be paid by the Company.
11. All notices, requests, demands, communications and
instructions required or desired to be given under this Escrow Agreement shall
be in writing and shall be deemed to be duly given if delivered personally or
sent by registered or certified U.S. mail, postage prepaid, return receipt
requested, to the following addresses:
To the Escrow Agent:
The United States Trust Company of New York
114 West 47th Street
New York, New York 10036-1532
Attention: Pat Sterner
To the Company:
Corporate Property Associates 14 Incorporated
50 Rockefeller Plaza
New York, New York 10020
Attention: Susan Hyde, Vice President
-10-
<PAGE> 11
To the Sales Agent:
Carey Financial Corporation
50 Rockefeller Plaza
New York, NY 10020
Attention: H. Augustus Carey, President
or to such other address and to the attention of such other person as any of the
above may have furnished to the other parties by personal delivery or registered
or certified mail, return receipt requested.
12. The Company shall deliver to the Escrow Agent a certificate
of the secretary of the Company as to (a) the authority of certain officers
thereof to act on behalf of the Company both in connection with this Escrow
Agreement and (b) the incumbency and signatures of such officers, and the Escrow
Agent may act in reliance on such certificate and upon the instructions or
directions, or any other certificate, communication or other document, given to
it in accordance with the terms of this Escrow Agreement by the Company through
a person authorized so to act in such certificate.
13. The Sales Agent shall deliver to the Escrow Agent a
certificate of the secretary or any assistant secretary of the Sales Agent as to
(a) the authority of certain officers thereof to act on behalf of the Sales
Agent in connection with this Escrow Agreement and (b) the incumbency and
signatures of such officers, and the Escrow Agent may act in reliance on such
certificate and upon the instructions or directions, or any other certificate,
communication or other document, given to it in accordance with the terms of
this Escrow Agreement by the Sales Agent through a person authorized so to act
in such certificate.
14. Nothing in this Escrow Agreement is intended to or shall
confer upon anyone other than the parties hereto any legal or equitable right,
remedy or claim. This Escrow Agreement shall be deemed to be an agreement made
under the laws of the State of New York and for all purposes shall be construed
and enforced in accordance with and governed by the laws of New York applicable
to agreements made and to be wholly performed within such State. Notwithstanding
the foregoing, each party recognizes that each Investor is a third party
beneficiary of this Escrow Agreement. Each of the other parties hereto hereby
irrevocably consents to the jurisdiction of the courts of the State of New York
and of any Federal court located in such state in connection with any action,
suit or other proceeding arising out of or relating to this Escrow Agreement or
any action taken or omitted hereunder, and waives personal service of any
summons, complaint or other process and agrees that the service thereof may be
made by certified or registered mail directed to such person at such person's
address for purposes of notices
-11-
<PAGE> 12
hereunder. Should the person so served fail to appear or answer within the time
prescribed by law, that person shall be deemed in default and judgment may be
entered by the Escrow Agent against that person for the amount of other relief
as demanded in any summons, complaint or other process so served.
15. This Escrow Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute but one and the same instrument.
16. This agreement shall terminate on the final disposition of
the monies and property held in escrow hereunder, provided that the rights of
the Escrow Agent and the obligations of the other parties hereto under Sections
5, 7 and 14 hereof shall survive the termination hereof.
17. The Escrow Agent represents and warrants to the Company and
the Sales Agent that it satisfies the requirements of Section 3(a)(6) of the
Securities Exchange Act of 1934, as amended, and the requirements of NASD Notice
to Members 84-7 with respect to qualifications of escrow agents.
18. (a) All amounts referred to herein are expressed in United
States Dollars and all payments by the Escrow Agent shall be made in such
dollars.
(b) If, for any reasons, the escrow deposit is not received by
the Escrow Agent as contemplated herein, the other parties hereto shall
reimburse the Escrow Agent for all expenses, including counsel fees and
disbursements, paid or incurred by it, in making preparations for providing the
services contemplated hereby.
(c) This Escrow Agreement shall be construed without regard to
any presumption or other rule requiring construction against the party causing
such instrument to be drafted. The terms "hereby", "hereof", "hereto",
"hereunder" and any similar terms, as used in this agreement, refer to this
agreement in its entirety and not only to the particular portion of this
agreement where the term is used. The word "person" shall mean any natural
person, partnership, corporation, government and any other form of business or
legal entity. All words or terms used in this agreement, regardless of the
number or gender in which they are used, shall be deemed to include any other
number and any other gender as the context may require. This agreement shall not
be admissible in evidence to construe the provision of any prior agreement. The
rule of ejusdem generis shall not be applicable herein to limit a general
statement, which is followed by or referable to an enumeration of specific
matters, to matters similar to the matters specifically mentioned.
(d) This agreement and the rights and obligations hereunder of
any party hereto may be assigned by those parties
-12-
<PAGE> 13
only to a successor to the relevant party's entire business with the prior
written consent of all other parties. This agreement shall be binding upon and
inure to the benefit of each party's respective successors, heirs and permitted
assigns. No other person shall acquire or have any rights under or by virtue of
this agreement. This Escrow Agreement constitutes the entire agreement of the
parties and supersedes all other prior agreements or understandings, written or
oral, among the parties with respect to the subject matter hereof and may not be
waived or modified, in whole or in part, except by a writing signed by each of
the parties hereto. No waiver of any provision of this Escrow Agreement in any
instance shall be deemed to be a waiver of the same or any other provision in
any other instance. Failure of any party to enforce any provision of this Escrow
Agreement shall not be construed as a waiver of its rights under such provision.
(e) The representations and warranties contained in this
agreement shall survive the execution and delivery hereof.
-13-
<PAGE> 14
IN WITNESS WHEREOF, the parties hereto have executed this Escrow
Agreement as of the day and year first above written.
CORPORATE PROPERTY ASSOCIATES 14
INCORPORATED
By: _____________________________________
Name:
Title:
THE UNITED STATES TRUST COMPANY OF
NEW YORK
By: _____________________________________
Name:
Title:
CAREY FINANCIAL CORPORATION
By: _____________________________________
Name:
Title:
Exhibit Index
Exhibit A - Fee Schedule
-14-
<PAGE> 15
EXHIBIT A
Fee Schedule
<TABLE>
<S> <C>
Initial Fee $2,500.00
Covers acceptance of appointment as Escrow
Agent, including complete study of drafts of
Escrow Agreement and all supporting documents
in connection therewith, conferences until
final Agreement is agreed upon, execution of
final Agreement, deposit of funds into the
Plan Subaccount and the Non-Plan Subaccount
and maintenance and custody thereof.
Annual Administration Fee: $3,500.00
(Payable each year in advance)
Payment by check, per check $ 1.25
Wire transfer of funds, per wire $ 25.00
Preparation and filing appropriate
federal tax forms, per 1099 $ 1.00
</TABLE>
NOTE:
Charges for any services not specifically covered in this schedule will be
billed commensurate with the services rendered. This schedule reflects charges
which are now in effect for the normal and regular services of the Escrow Agent
and are minimal only, subject to modification where unusual conditions or
requirements prevail, and does not include counsel fees or expenses and
disbursements, which will be billed at cost. The Escrow Agent does not
anticipate incurring counsel expense unless an unusual problem or disagreement
needing legal interpretation should arise.
-15-
<PAGE> 1
EXHIBIT 24.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the inclusion in this registration statement on Form S-11 (File
No.333- ) of our report dated July 10, 1997 on our audit of the balance sheet
of Corporate Property Associates 14, Incorporated. We also consent to the
reference to our firm under the caption "Experts".
/s/ COOPERS & LYBRAND LLP.
New York, New York
July 16, 1997.
