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Exhibit 10.31
WHOLESALING AGREEMENT
THIS WHOLESALING AGREEMENT (this "Agreement") dated as of April --,
1999, by and between CORPORATE PROPERTY ASSOCIATES 14 INCORPORATED, a Maryland
corporation (the "Company"), and XXXXX FINANCIAL CORPORATION, a Delaware
corporation ("Xxxxx").
WHEREAS, the Company proposes to raise up to $400,000,000 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.
333-31437) filed with the Securities and Exchange Commission (the "Registration
Statement"); and
WHEREAS, the Company desires to retain Xxxxx and Xxxxx 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 Xxxxx to provide the following services
for the Company:
(a) Xxxxx 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) Xxxxx 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
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brochures and other sales literature designed for broker-dealers and
registered investment advisors and providing information and answering
any questions with regard to the Offering.
(c) Xxxxx 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, Xxxxx 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 Xxxxx 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 Xxxxx, 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 Xxxxx.
4. Xxxxx 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 Xxxxx 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 Xxxxx, 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 Xxxxx that it will honor and perform
each of the covenants made by it in Section 4
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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.
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 Xxxxx of unreimbursed expenses incurred by it
prior to the date of termination.
8. Xxxxx 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 Xxxxx of its
obligations hereunder.
9. The parties hereto agree that they have not created a joint venture
or partnership relationship between them, that Xxxxx 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
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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
By:
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Xxxxxx Xxxxxxxxx,
Executive Vice President
XXXXX FINANCIAL CORPORATION
By:
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H. Xxxxxxxx Xxxxx,
President
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