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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 ▇▇▇▇▇ FINANCIAL CORPORATION, a Delaware
corporation ("▇▇▇▇▇").
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 ▇▇▇▇▇ and ▇▇▇▇▇ 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 ▇▇▇▇▇ to provide the following
services for the Company:
(a) ▇▇▇▇▇ 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) ▇▇▇▇▇ 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
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information and answering any questions with regard to the Offering.
(c) ▇▇▇▇▇ 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, ▇▇▇▇▇
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 ▇▇▇▇▇ 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 ▇▇▇▇▇, 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 ▇▇▇▇▇.
4. ▇▇▇▇▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇, 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 ▇▇▇▇▇ 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.
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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 ▇▇▇▇▇ of unreimbursed
expenses incurred by it prior to the date of termination.
8. ▇▇▇▇▇ 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 ▇▇▇▇▇ of its
obligations hereunder.
9. The parties hereto agree that they have not created a
joint venture or partnership relationship between them, that ▇▇▇▇▇ 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
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By:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Executive Vice President
▇▇▇▇▇ FINANCIAL CORPORATION
By:
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H. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
President
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