Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, Rule 2440 of the NASD Conduct Rules and FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. 4.7. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 4 contracts

Samples: Dealer Manager Agreement (KBS Legacy Partners Apartment REIT, Inc.), Dealer Manager Agreement (KBS Legacy Partners Apartment REIT, Inc.), Dealer Manager Agreement (KBS Real Estate Investment Trust III, Inc.)

Covenants of the Dealer Manager. ~~The Dealer Manager covenants and agrees with the Company that: 4.1.~~ 6.1 In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with ~~Dealers~~ Selling Group Members will require that the ~~Dealers~~ Selling Group Members comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, FINRA Rule ~~2440 of the NASD Conduct Rules and~~ 2121, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ 6.2 The Dealer Manager will not offer the Shares, and in its agreements with ~~Dealers~~ Selling Group Members will require that the ~~Dealers~~ Selling Group Members not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any ~~Dealer~~ Selling Group Member offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ 6.3 The Dealer Manager will make, and in its agreements with ~~Dealers~~ Selling Group Members will require that ~~Dealers~~ Selling Group Members make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ 6.4 The Dealer Manager will offer Shares, and in its agreements with ~~Dealers~~ Selling Group Members will require that the ~~Dealers~~ Selling Group Members offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with ~~Dealers~~ Selling Group Members shall require the ~~Dealers~~ Selling Group Members to maintain, for at least six ~~years~~years following the termination of the Offering, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ 6.5 Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ 6.6 The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ 6.7 The Dealer Manager shall file all Authorized Sales Materials with FINRA, and shall provide written notice of (i) any comments on such Authorized Sales Materials provided by FINRA, and (ii) confirmation that FINRA has no objection to such Authorized Sales Materials. 6.8 The Dealer Manager will permit a ~~Dealer~~ Selling Group Members to participate in the Offering only if such ~~Dealer~~ Selling Group Members is a member of FINRA.

Appears in 3 contracts

Samples: Dealer Manager Agreement (Cottonwood Communities, Inc.), Dealer Manager Agreement (Cottonwood Communities, Inc.), Dealer Manager Agreement (Cottonwood Communities, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, FINRA Rule ~~2440 of the NASD Conduct Rules and~~ 2121, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated January 22, 2016, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company (the “Escrow Agreement”), a copy of which is attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 2 contracts

Samples: Dealer Manager Agreement (KBS Strategic Opportunity REIT II, Inc.), Dealer Manager Agreement (KBS Strategic Opportunity REIT II, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, FINRA Rule ~~2440 of the NASD Conduct Rules and~~ 2121, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Amended and Restated Escrow Agreement dated March 18, 2016, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, a copy of which is attached hereto as Exhibit B, and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 2 contracts

Samples: Dealer Manager Agreement (KBS Growth & Income REIT, Inc.), Dealer Manager Agreement (KBS Growth & Income REIT, Inc.)

Covenants of the Dealer Manager. ~~The Dealer Manager covenants and agrees with the Company that: 4.1.~~ 6.1 In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with ~~Dealers~~ Selling Group Members will require that the ~~Dealers~~ Selling Group Members comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, FINRA Rule ~~2440 of the NASD Conduct Rules and~~ 2121, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ 6.2 The Dealer Manager will not offer the Shares, and in its agreements with ~~Dealers~~ Selling Group Members will require that the ~~Dealers~~ Selling Group Members not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any ~~Dealer~~ Selling Group Member offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ 6.3 The Dealer Manager will make, and in its agreements with ~~Dealers~~ Selling Group Members will require that ~~Dealers~~ Selling Group Members make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ 6.4 The Dealer Manager will offer Shares, and in its agreements with ~~Dealers~~ Selling Group Members will require that the ~~Dealers~~ Selling Group Members offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with ~~Dealers~~ Selling Group Members shall require the ~~Dealers~~ Selling Group Members to maintain, for at least six ~~years~~years following the termination of the Offering, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ 6.5 Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ 6.6 The Dealer Manager agrees to be bound by the terms of the Amended and Restated Escrow Agreement dated August 6, 2018 among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 6.7 The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ 6.8 The Dealer Manager shall file all Authorized Sales Materials with FINRA, and shall provide written notice of (i) any comments on such Authorized Sales Materials provided by FINRA, and (ii) confirmation that FINRA has no objection to such Authorized Sales Materials. 6.9 The Dealer Manager will permit a ~~Dealer~~ Selling Group Members to participate in the Offering only if such ~~Dealer~~ Selling Group Members is a member of FINRA.

Appears in 2 contracts

Samples: Dealer Manager Agreement (Cottonwood Communities, Inc.), Dealer Manager Agreement (Cottonwood Communities, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of ~~FINRA~~the NASD, including, but not in any way limited to, ~~Rule 2440 of the NASD Conduct~~ Rules 2440, 2730, 2740 and ~~FINRA Rule 2310 and FINRA Rule 5141~~2750; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other ~~state and~~ federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including ~~without limitation~~ the privacy standards and requirements of ~~state and federal laws, including~~ the Xxxxx-Xxxxx-Xxxxxx Act of ~~1999,~~ 1999 and the ~~laws governing money laundering abatement and anti-terrorist financing efforts, including the~~ applicable ~~rules~~ provisions of ~~the SEC and FINRA, the Bank Secrecy Act, as amended,~~ the USA Patriot Act of ~~2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury~~2001; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and ~~supplemented,~~ supplemented and (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “~~broker-~~dealer ~~use~~ only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the ~~public and (c) not~~ public. 4.6. The Dealer Manager agrees to ~~show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it~~ be bound by the ~~Company if such material bears a legend denoting~~ terms of the Escrow Agreement dated , 2005, among [to come], as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it is will not represent or imply that [to ~~be used~~ come], as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to ~~members of the public in such jurisdiction~~serve as escrow agent. ~~4.6~~4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of ~~FINRA~~the NASD.

Appears in 2 contracts

Samples: Dealer Manager Agreement, Dealer Manager Agreement (KBS Real Estate Investment Trust, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the ~~SEC~~ SEC, FINRA and ~~FINRA, the Bank Secrecy Act, as amended,~~ the USA Patriot Act of ~~2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury~~2001; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and ~~supplemented,~~ supplemented and (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdictionpublic. 4.6. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. 4.7. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 2 contracts

Samples: Dealer Manager Agreement (KBS Real Estate Investment Trust II, Inc.), Dealer Manager Agreement (KBS Real Estate Investment Trust II, Inc.)

Covenants of the Dealer Manager. ~~The Dealer Manager covenants and agrees with the Company that: 4.1.~~ 6.1 In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with ~~Dealers~~ Selling Group Members will require that the ~~Dealers~~ Selling Group Members comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented, and Regulation Best Interest; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, FINRA Rule ~~2440 of the NASD Conduct Rules and~~ 2121, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ 6.2 The Dealer Manager will not offer the Shares, and in its agreements with ~~Dealers~~ Selling Group Members will require that the ~~Dealers~~ Selling Group Members not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any ~~Dealer~~ Selling Group Member offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ 6.3 The Dealer Manager will make, and in its agreements with ~~Dealers~~ Selling Group Members will require that ~~Dealers~~ Selling Group Members make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ 6.4 The Dealer Manager will offer Shares, and in its agreements with ~~Dealers~~ Selling Group Members will require that the ~~Dealers~~ Selling Group Members offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with ~~Dealers~~ Selling Group Members shall require the ~~Dealers~~ Selling Group Members to maintain, for at least six ~~years~~years following the termination of the Offering, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ 6.5 Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ 6.6 The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ 6.7 The Dealer Manager shall file all Authorized Sales Materials with FINRA, and shall provide written notice of (i) any comments on such Authorized Sales Materials provided by FINRA, and (ii) confirmation that FINRA has no objection to such Authorized Sales Materials. 6.8 The Dealer Manager will permit a ~~Dealer~~ Selling Group Members to participate in the Offering only if such ~~Dealer~~ Selling Group Members is a member of FINRA.

Appears in 2 contracts

Samples: Dealer Manager Agreement (Cottonwood Communities, Inc.), Dealer Manager Agreement (Cottonwood Communities, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated , 2010, among , as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that , as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 2 contracts

Samples: Dealer Manager Agreement (KBS Real Estate Investment Trust III, Inc.), Dealer Manager Agreement (KBS Real Estate Investment Trust III, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated , 2009, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 2 contracts

Samples: Dealer Manager Agreement (KBS Legacy Apartment Community REIT, Inc.), Dealer Manager Agreement (KBS Legacy Apartment Community REIT, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with each of the Company ~~that~~and the Investment Adviser as follows, as of the date hereof and as of each date that Shares are sold hereunder: ~~4.1. In connection with~~ (a) With respect to its participation and the participation by each Participating Dealer ~~Manager’s participation~~ and Participating Adviser in the offer and sale of the Shares (including, without ~~limitation,~~ limitation any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Participating Dealers and Participating Advisers will require ~~that the Dealers~~ each Participating Dealer and Participating Adviser to comply, in all material respects with all applicable requirements ~~and obligations imposed upon any~~ of ~~them by~~ (ai) the Securities Act, the Exchange ~~Act and~~ Act, the rules and regulations of the SEC promulgated under ~~both such acts, including~~ the ~~obligation to deliver a copy of~~ Securities Act and the ~~Prospectus as amended or supplemented;~~ Exchange Act (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, Rule 2440 of the NASD Conduct Rules and FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, ~~the provisions of Articles III.C~~ Regulation D) and ~~III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any~~ all other ~~state and~~ federal ~~laws~~ rules and regulations applicable to the ~~Offering,~~ Offering and the sale of ~~Shares~~ the Shares, (ii) applicable state securities or “blue sky” laws, (iii) the ~~activities of~~ rules set forth in the FINRA rulebook applicable to the Offering, and (iv) the Participating Dealer ~~Manager pursuant to this~~ Agreement or Participating Adviser Agreement, ~~including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999~~as applicable, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplementedMemorandum. ~~4.2.~~ (b) The Dealer Manager ~~will not offer the Shares~~will, and in its agreements with Participating Dealers will require that each Participating Dealer (i) conduct all offering and solicitation efforts in a transaction or series of transactions intended to be exempt from the ~~Dealers~~ registration requirements under the Securities Act pursuant to Rule 506(b) of Regulation D and applicable state securities laws and regulations, (ii) not offer ~~Shares~~or sell Shares by any means otherwise inconsistent with this Agreement or the Memorandum, and (iii) not engage in any general advertising or general solicitation activities in any jurisdiction ~~unless and until~~ or in any manner in which it is unlawful for it to do so. (ac) The Dealer Manager shall obtain written consent from the Company (which consent shall not be unreasonably withheld) prior to (i) executing a Participating Dealer Agreement with a Participating Dealer that deviates in any material respect from the form of Participating Dealer Agreement approved by the Company provided to such Participating Dealer, or (ii) executing a Participating Adviser Agreement that deviates in any material respect from the form of Participating Adviser Agreement approved by the Company provided to such Participating Adviser. (d) In connection with its activities hereunder, the Dealer Manager ~~has been advised~~ shall (i) exclusively use the Offering Materials and shall not include or make use of any other document or material, or furnish to any potential investor any other information, written or oral, respecting the Company or the offering of Shares, without the prior written consent of the Company, and (ii) deliver or cause to be delivered to each purchaser of Shares, at or prior to the time of any purchase of, or commitment to purchase, the Shares, copies of the most recent versions of the Offering Documents as supplied to it by the Investment Adviser or the Company. (e) Without the prior written consent of the Company, the Dealer Manager will not solicit any offer to buy or offer to sell Shares to an investor that is a U.S. or non-U.S. state, locality or other governmental plan or political entity, agency, instrumentality (including any state-owned or controlled entity) or subdivision thereof (including a public pension plan). (f) The Dealer Manager will, and will require that each of the Participating Dealers and Participating Advisers, suspend or terminate the offer and sale of Shares in the Offering upon request of the Company at any time and to resume offering and sale of the Shares in the Offering upon subsequent request of the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdictionits sole discretion. ~~4.3.~~ (g) The Dealer Manager ~~will make~~will, and in its agreements with Participating Dealers will require each Participating Dealer to, maintain records related to each purchaser of Shares for so long as is required by applicable law or regulations and the Dealer Manager’s or such Participating Dealer’s internal policies and will maintain for a period of at least six years following the Offering Termination Date, information and documents disclosing the basis upon which the determination of suitability was reached as to each such investor. (h) The Dealer Manager will notify the Company in writing, prior to any offering of Shares of: (i) any Disqualifying Event relating to any Dealer Manager Covered Person not previously disclosed to the Company in accordance with Section 5(f) above and (ii) any event that ~~Dealers make~~would, ~~no representations~~ with the passage of time, become a Disqualifying Event relating to any Dealer Manager Covered Person. (i) The Dealer Manager will, and will require each Participating Dealer and Participating Adviser to, only offer Shares to persons it reasonably believes, on the basis of information obtained from the potential investor concerning the ~~Offering except~~ investor’s investment objectives, other investments, financial situation and needs, and any other information known by the Dealer Manager or an associated person: (i) is an “accredited investor” as that term is defined in Rule 501(a) under the Securities Act and meets the other investor suitability requirements as may be established by the Company and set forth in the ~~Prospectus as amended~~ Memorandum; (ii) has such knowledge and ~~supplemented~~ experience in financial and business matters that the offeree is capable of evaluating the merits and risks of an investment in the ~~Authorized Sales Materials. 4.4~~Shares and (iii) is a person for which an investment in the Shares is otherwise suitable. The Dealer Manager will ~~offer Shares, and in its agreements with Dealers will~~ require at the time of any sale of Shares that the ~~Dealers offer Shares, only to persons who meet~~ investor certify the ~~financial qualification and suitability standards set forth in~~ basis underlying the ~~Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company.~~ foregoing qualifications. (j) The Dealer Manager ~~further agrees that the Company, in its sole and absolute discretion, may accept~~ will furnish or ~~reject any subscription, in whole or in part, for any reason whatsoever and no commission will~~ cause to be ~~paid~~ furnished to the ~~Dealer Manager with respect to the portion~~ Company upon request a complete list of ~~any subscription that is rejected. The Dealer Manager shall maintain,~~ all persons who have been offered or ~~in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the~~ purchased Shares and such other information ~~obtained to determine that an investor meets the financial qualification and suitability standards imposed on~~ regarding the offer and sale of Shares in the ~~Shares~~ Offering as the Company may reasonably request. (~~both at the time~~ k) The Dealer Manager will not reallow or share any of the ~~initial subscription and at the time of~~ commissions that it receives pursuant to this Agreement with any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from person unless such person (i) ~~investment advisers who are not affiliated~~ is properly registered as a broker-dealer with ~~a Dealer or~~ the SEC and all applicable states and possesses all other licenses, registrations and approvals required to receive such commissions, and (ii) ~~banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records~~ is a member of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed FINRA in ~~the preceding sentence~~good standing. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. (l) The Dealer Manager ~~further agrees~~ has submitted (~~a) not to deliver any Authorized Sales Materials to any person unless it is accompanied~~ or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members will submit within 15 days of the ~~public and (c~~first sale in the Offering) ~~not~~ to ~~show or give to any investor or prospective investor in~~ FINRA a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members copy of the ~~public in such jurisdiction. 4.6~~Memorandum and any other related offering documents, including any materially amended versions thereof (the “FINRA Filing”). The Dealer Manager will ~~provide~~ update the ~~Company with such information relating to the offer and sale of the Shares by it as the Company may~~ FINRA Filing from time to time ~~reasonably request or~~ as ~~may be requested~~ necessary to ~~enable~~ comply with the ~~Company to prepare such reports~~ terms of ~~sale as may be required to be filed under applicable federal or state securities laws~~FINRA Rule 5123. ~~4.7. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.~~

Appears in 2 contracts

Samples: Dealer Manager Agreement (Steele Creek Capital Corp), Dealer Manager Agreement (Steele Creek Capital Corp)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Second Amended and Restated Escrow Agreement dated October 5, 2009, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 2 contracts

Samples: Dealer Manager Agreement (KBS Strategic Opportunity REIT, Inc.), Dealer Manager Agreement (KBS Strategic Opportunity REIT, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as are from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA ~~Patriot~~ PATRIOT Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six ~~years~~years from the date of an investor’s subscription, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated March 20, 2011, among People’s United Bank, as escrow agent, the Dealer Manager and the Company, and the Dealer Manager further agrees that it will ~~provide~~ not represent or imply that People’s United Bank, as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with ~~such information relating to~~ the offer ~~and~~ or sale of the Shares other than by acknowledgment that it has agreed to serve as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities lawsescrow agent. ~~4.7. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.~~

Appears in 2 contracts

Samples: Dealer Manager Agreement (Plymouth Opportunity REIT Inc.), Dealer Manager Agreement (Plymouth Opportunity REIT Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of ~~FINRA~~the NASD, including, but not in any way limited to, ~~Rule 2440 of the NASD Conduct~~ Rules 2440, 2730, 2740 and ~~FINRA Rule 2310 and FINRA Rule 5141~~2750; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of ~~state and federal laws, including~~ the Xxxxx-Xxxxx-Xxxxxx Act of 1999, the requirements of any applicable state privacy laws and the ~~laws governing money laundering abatement and anti-terrorist financing efforts, including the~~ applicable ~~rules~~ provisions of ~~the SEC and FINRA, the Bank Secrecy Act, as amended,~~ the USA Patriot Act of ~~2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury~~2001; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and ~~supplemented,~~ supplemented and (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “~~broker-~~dealer ~~use~~ only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the ~~public and (c) not~~ public. 4.6. The Dealer Manager agrees to ~~show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it~~ be bound by the ~~Company if such material bears a legend denoting~~ terms of the Escrow Agreement dated , 2005, among First Republic Trust Company, as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it is will not ~~to be used~~ represent or imply that First Republic Trust Company, as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to ~~members of the public in such jurisdiction~~serve as escrow agent. ~~4.6~~4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of ~~FINRA~~the NASD.

Appears in 2 contracts

Samples: Dealer Manager Agreement (KBS Real Estate Investment Trust, Inc.), Dealer Manager Agreement (KBS Real Estate Investment Trust, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees ~~with the Company that~~as follows: ~~4.1. In connection with~~ 6.1 With respect to the Dealer Manager’s participation in distributing and the participation of each Selected Dealer in the offer and sale of ~~Shares (including, without limitation, any resales and transfers of~~ the Offered Shares), the Dealer Manager ~~will comply~~agrees, and each Selected Dealer in its ~~agreements with Dealers~~ selected dealer agreement or registered investment adviser agreement, as applicable (collectively, the “Selected Dealer Agreement”) will ~~require that the Dealers comply~~agree, to comply in all material respects with all applicable requirements ~~and obligations imposed upon any~~ of ~~them by~~ (a) the Securities Act, the Securities Act Regulations, the Exchange Act and the rules and regulations promulgated thereunder and all other federal regulations applicable to the Offering and the roles of the ~~SEC promulgated under both such acts~~respective parties, ~~including the obligation to deliver a copy of the Prospectus as amended or supplemented;~~ (b) all applicable ~~state~~ State securities or blue sky laws and regulations as in effect from time to time, and (c) the rules of FINRA applicable to the Offering in effect from time to time ~~in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, Rule 2440 of the NASD Conduct Rules~~ and ~~FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors,~~ including, without limitation, ~~the provisions of Articles III.C~~ FINRA Rules 2010, 2090, 2111, 2310, 2340, 2420, 3310 and ~~III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e)~~ 5141 and with any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2pertinent FINRA and/or NASD Rules. The Dealer Manager will not ~~offer~~ distribute the ~~Shares, and in its agreements with~~ Offered Shares for sale by Selected Dealers ~~will require that the Dealers not offer Shares,~~ in any jurisdiction unless and until ~~(a) the Dealer Manager~~ it has been advised ~~by the Company in writing~~ that the Offered Shares are either registered in accordance with, or exempt from, the securities and other laws applicable thereto. The parties acknowledge that for the purposes of ~~such jurisdiction~~ FINRA Rules, the investors who purchase Offered Shares through Selected Dealer are “customers” of Selected Dealer and not of the Dealer Manager. 6.2 The Dealer Manager shall, in accordance with applicable law or as prescribed by any State securities administrator, provide, or require in the Selected Dealer Agreement that the Selected Dealer shall provide, to any prospective investor copies of the Prospectus and any supplements thereto during the course of the Offering and prior to sale of the Offered Shares. The Company may provide the Dealer Manager with certain Approved Sales Literature to be used by the Selected Dealers (a) for its own educational purposes, (b) in connection with the ~~Dealer Manager and any Dealer offering~~ solicitation of purchasers of the Offered Shares ~~in such jurisdiction have all required licenses and registrations~~ or (c) to ~~offer~~ make subscriptions to purchase the Offered Shares ~~in that jurisdiction. 4.3~~available. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers it shall require ~~the Dealers~~ each Selected Dealer to ~~maintain, for at least six years, a record of the information obtained to determine~~ agree that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the such Selected Dealer ~~Manager may rely on representations from~~ will (i) ~~investment advisers who are~~ not ~~affiliated~~ use any sales materials in connection with ~~a Dealer or~~ the solicitation of purchasers of the Offered Shares except Approved Sales Literature; (ii) ~~banks acting as trustees or fiduciaries. With respect~~ not use any B/D/RIA Use Only Approved Sales Literature with members of the general investing public; and (iii) to the ~~Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability,~~ extent the Company ~~agrees that the Dealer Manager can satisfy its obligations by contractually requiring~~ provides Investor Use Approved Sales Literature, not use such ~~information to be maintained~~ Investor Use Approved Sales Literature unless accompanied or preceded by the ~~investment advisers or banks discussed~~ Prospectus, as then currently in effect, and as may be supplemented in the ~~preceding sentence. 4.5~~future. ~~Except for Authorized Sales Materials~~The Selected Dealers will not publish, ~~the Company has not authorized the~~ circulate or otherwise use of any ~~supplemental literature~~ other advertisement or ~~sales~~ solicitation material in connection with the Offering ~~and~~ without the Dealer Manager’s express prior written approval. The use of any other sales material is expressly prohibited. 6.3 The Dealer Manager ~~agrees~~ shall not, and each Selected Dealer shall agree not ~~to use~~ to, give or provide any ~~such material that has not been authorized by~~ information or make any representation other than those contained in the ~~Company~~Prospectus. The Dealer Manager ~~further agrees~~ shall require each Selected Dealer to agree not to (a) ~~not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to~~ show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company ~~and marked “broker-dealer use only” or otherwise~~ bearing a legend denoting that it is not to be used in connection with the sale of the Offered Shares to members of the ~~public and~~ public, including any B/D/RIA Use Only Approved Sales Literature; or (cb) ~~not to~~ show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Offered Shares to members of the public in such jurisdiction. ~~4.6~~6.4 The Dealer Manager shall distribute and shall require each Selected Dealer to agree to solicit purchases of the Offered Shares or make subscriptions to purchase the Offered Shares available only in the jurisdictions in which the Dealer Manager and such Selected Dealer are legally qualified to so act and in which the Dealer Manager and each Selected Dealer have been advised by the Company in writing that such solicitations can be made or subscriptions be made available. 6.5 The Dealer Manager will require each Selected Dealer to agree to comply in all material respects with the subscription procedures and “Plan of Distribution” set forth in the Prospectus. Subscriptions will be submitted by each Selected Dealer only on the form which is included as Appendix A to the Prospectus (the “Subscription Agreement”). The Dealer Manager understands and acknowledges, and each Selected Dealer shall acknowledge, that the Subscription Agreement must be executed and initialed by the subscriber as provided for in the Subscription Agreement. 6.6 The Dealer Manager shall require each Selected Dealer to agree not to offer or sell the Offered Shares in any jurisdiction except to investors who satisfy the investor suitability and minimum investment requirements under the most restrictive of the following: (a) applicable provisions of the Prospectus, (b) the laws of the jurisdiction of which such investor is a resident, and (c) FINRA rules and regulations and FINRA Rules 2310 and 2111, in particular. Specifically, the Dealer Manager agrees to require each Selected Dealer to agree to ensure that, in recommending the purchase or sale of Offered Shares to an investor, each member of, or person associated with, the Selected Dealer, as applicable, shall have reasonable grounds (as required by FINRA Rules 2310(b)(2)(B)(i) and 2111) to believe, on the basis of information obtained from the investor (and thereafter maintained in the manner and for the period provided in this Agreement and such FINRA Rules) concerning his or her age, investment objectives, other investments, financial situation and needs, and any other information known to such member of, or person associated with, the Selected Dealer that (A) the investor is or will be in a financial position appropriate to enable him or her to realize to a significant extent the benefits described in the Prospectus, including tax benefits to the extent they are a significant aspect of the Company; (B) the investor has a fair market net worth sufficient to sustain the risks inherent in an investment in the Offered Shares in the amount proposed, including complete loss, and lack of liquidity, of such investment; and (C) an investment in the Offered Shares is suitable in type and amount for such investor. The Dealer Manager will ~~provide~~ require each Selected Dealer to agree to ensure that (x) each member of, or person associated with, the ~~Company with such information relating~~ Selected Dealer, will make diligent inquiry as to the ~~offer~~ suitability and appropriateness of an investment in Offered Shares from each proposed investor, (y) retain in its records for a period equal to the longer of (A) six years from the date of the applicable sale of Offered Shares or (B) five years from the end of the Offering Period, and (z) make available to the Company, upon request (and upon the Dealer Manager’s or Selected Dealer’s receipt of an appropriate document subpoena from one of the following, to representatives of the SEC, FINRA and applicable State securities administrators) documents disclosing the basis upon which the determination as to suitability was reached as to each purchaser of Offered Shares pursuant to a subscription solicited by it the applicable Selected Dealer, whether such records relate to accounts which have been closed, accounts which are currently maintained, or accounts hereafter established. The Selected Dealer shall not purchase any Offered Shares for a discretionary account without obtaining the customer’s prior written approval and/or his or her signature on a Subscription Agreement. 6.7 The Dealer Manager will comply and will require each Selected Dealer to agree to comply with relevant provisions applicable to securities broker-dealers of Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) (the “PATRIOT Act”), as well as FINRA Rule 3310 setting forth minimum standards for anti-money laundering (“AML”) programs of broker-dealers. These minimum standards require the Dealer Manager and the Selected Dealer to have implemented a written AML program reasonably designed to (a) detect traces of suspicious financial transactions, (b) achieve compliance with the Bank Secrecy Act regulations, (c) provide for independent testing, (d) designate an AML compliance officer, and (e) provide for ongoing training. Title III of the PATRIOT Act, 31 U.S.C. §§ 5311, et seq., is referred to as the ~~Company~~ International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (the “Money Laundering Abatement Act”). Among other applicable requirements under the Money Laundering Abatement Act, the Dealer Manager agrees to require the Selected Dealer to agree to comply with Section 312 regarding due diligence requirements, Section 313 regarding correspondent account prohibitions, Section 314 regarding financial institution cooperation, Section 319(b) regarding domestic and foreign bank records production, Section 326 regarding customer identification standards (as described in greater detail in Section 6.9 of this Agreement), Section 352 regarding AML compliance program components, and Section 356 regarding suspicious activity reporting requirements. 6.8 The Dealer Manager agrees to, and will require the Selected Dealer and any persons associated with the Selected Dealer to agree to (a) abide by and comply with (i) the privacy standards and requirements of the Gxxxx-Xxxxx-Xxxxxx Act of 1999 (the “GLB Act”), (ii) the privacy standards and requirements of any other applicable federal or State law, and (iii) the Dealer Manager’s internal privacy policies and procedures, each as may be amended from time to ~~time reasonably request~~ time; (b) refrain from the use or disclosure of nonpublic personal information (as defined under the GLB Act) of all customers who have opted out of such disclosures except as necessary to service the customers or as ~~may~~ otherwise necessary or required by applicable law; and (c) be ~~requested~~ responsible for determining which customers have opted out of the disclosure of nonpublic personal information by periodically reviewing and, if necessary, retrieving a list of such customers (the “List”) to ~~enable~~ identify customers that have exercised their opt-out rights. In the ~~Company~~ event the Selected Dealer uses or discloses nonpublic personal information of any customer for purposes other than servicing the customer, or as otherwise required by applicable law, the Selected Dealer will agree to ~~prepare such reports of sale as may be required~~ consult the List to ~~be filed under applicable federal~~ determine whether the affected customer has exercised his or ~~state securities laws. 4.7~~her opt-out rights. The Dealer Manager will ~~permit a~~ require the Selected Dealer to ~~participate in~~ agree that it understands it is prohibited from using or disclosing any nonpublic personal information of any customer that is identified on the ~~Offering only if~~ List as having opted out of such ~~Dealer is a member of FINRA~~disclosures.

Appears in 1 contract

Samples: Follow on Dealer Manager Agreement (CION Investment Corp)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: ~~4.1.~~ (a) In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, Rule 2440 of the NASD Conduct ~~Rules and~~ Rules, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ (d) The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six (6) years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). Resource Securities, Inc. 8 Dealer Manager Agreement In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ (e) Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ (f) The Dealer Manager agrees to be bound by the terms of the Amended and Restated Escrow Agreement dated January 14, 2014, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, a copy of which is attached hereto as Exhibit C and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. (g) The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (h) The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA. (i) The Dealer Manager will pay all expenses incident to the performance of your obligations under this Agreement, including the formation and management of the selling group and the fees and expenses of your own counsel and accountants, even if the Offering is not successfully completed.

Appears in 1 contract

Samples: Dealer Manager Agreement (Resource Real Estate Opportunity REIT II, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: ~~4.1.~~ (a) In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, FINRA Rule ~~2440 of the NASD Conduct Rules and~~ 2121, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ (d) The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no ~~commission~~ commission, dealer manager fee or distribution and shareholder servicing fee will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six (6) years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ (e) Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ (f) The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated [ ], 2016, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, a copy of which is attached hereto as Exhibit C and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. (g) The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (h) The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA. (i) The Dealer Manager will pay all expenses incident to the performance of your obligations under this Agreement, including the formation and management of the selling group and the fees and expenses of your own counsel and accountants, even if the Offering is not successfully completed.

Appears in 1 contract

Samples: Dealer Manager Agreement (Resource Apartment REIT III, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: ~~4.1.~~ (a) In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ (d) The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six (6) years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ (e) Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ (f) The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated , 2009, among TD Bank, N.A., as escrow agent, the Dealer Manager and the Company, a copy of which is attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that TD Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. (g) The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (h) The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA. (i) The Dealer Manager will pay all expenses incident to the performance of your obligations under this Agreement, including the formation and management of the selling group and the fees and expenses of your own counsel and accountants, even if the Offering is not successfully completed.

Appears in 1 contract

Samples: Dealer Manager Agreement (Resource Real Estate Opportunity REIT, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: ~~4.1.~~ (a) In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, FINRA Rule ~~2440 of the NASD Conduct Rules and~~ 2121, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction.. Resource Securities, Inc. 10 Amended and Restated Dealer Manager Agreement ~~4.3.~~ (c) The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ (d) The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no ~~commission~~ commission, dealer manager fee or distribution and shareholder servicing fee will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six (6) years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ (e) Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6~~(f) The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated April 28, 2016, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, a copy of which is attached hereto as Exhibit C and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. Resource Securities, Inc. 11 Amended and Restated Dealer Manager Agreement (g) The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (h) The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA. (i) The Dealer Manager will pay all expenses incident to the performance of your obligations under this Agreement, including the formation and management of the selling group and the fees and expenses of your own counsel and accountants, even if the Offering is not successfully completed.

Appears in 1 contract

Samples: Dealer Manager Agreement (Resource Apartment REIT III, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated , 2009, among , as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that , as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 1 contract

Samples: Dealer Manager Agreement (KBS Legacy Apartment Community REIT, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the ~~Company that~~Partnerships as follows: ~~4.1. In connection with~~ (a) With respect to the Dealer Manager’s participation and the participation by each Selling Dealer in the offer and sale of ~~Shares~~ the Units (including, without limitation, any resales and transfers of ~~Shares~~Units), the Dealer Manager ~~will comply~~agrees, and each Selling Dealer in its ~~agreements with Dealers~~ Selling Dealer Agreement will ~~require that the Dealers comply~~agree, to comply in all material respects with all applicable requirements ~~and obligations imposed upon any~~ of ~~them by (a)~~ the Securities Act, the Securities Act Rules and Regulations, the Exchange Act, the Exchange Act Rules and Regulations and all other federal regulations applicable to the ~~rules and regulations~~ offering, the sale of the ~~SEC promulgated under both such acts~~Units, ~~including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b)~~ all applicable state securities ~~laws~~ or Blue Sky laws, and ~~regulations as~~ the FINRA Rules applicable to the offering from time to time in effect~~; (c) the applicable rules of FINRA~~, specifically including, but not in any way limited to, ~~Rule 2440 of the~~ NASD Conduct Rules 2310 (Recommendations to Customers), 2340 (Customer Account Statements), and 2420 (Dealing with Non-Members), and FINRA ~~Rule~~ Rules 2310 (Direct Participation Programs), 5130 (Restrictions on the Purchase and ~~FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability~~ Sale of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”Initial Equity Public Offerings); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and ~~the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules~~ 5141 (Sale of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2Securities in a Fixed Price Offering). The Dealer Manager will not offer the ~~Shares, and in its agreements with Dealers will require that the Dealers not offer Shares,~~ Units for sale in any jurisdiction unless and until ~~(a) the Dealer Manager~~ it has been advised ~~by the Company in writing~~ that the ~~Shares~~ Units are either registered in accordance with, or exempt from, the securities and other laws applicable thereto. In addition, the Dealer Manager shall, in accordance with applicable law or as prescribed by any state securities administrator, provide, or require in the Selling Dealer Agreement that the Selling Dealer shall provide, to any prospective investor copies of ~~such jurisdiction~~ any required or prescribed document which is part of the Registration Statement and ~~(b)~~ any supplements thereto during the course of the offering and prior to the sale. The Partnerships may provide the Dealer Manager with certain Approved Sales Literature to be used by the Dealer Manager and ~~any Dealer offering Shares~~ the Selling Dealers in ~~such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3~~connection with the solicitation of purchasers of the Units. The Dealer Manager agrees not to deliver the Approved Sales Literature to any person prior to the initial Effective Date. If the Dealer Manager elects to use such Approved Sales Literature after the initial Effective Date, then the Dealer Manager agrees that such material shall not be used by it in connection with the solicitation of purchasers of the Units and that it will ~~make~~direct Selling Dealers not to make such use unless accompanied or preceded by the Prospectus, as then currently in effect, and as it may be amended or supplemented in the future. The Dealer Manager agrees that it will not use any Approved Sales Literature other than those provided to the Dealer Manager by the Partnerships for use in the offering. The use of any other sales material is expressly prohibited. (b) In offering the Units for sale, the Dealer Manager shall not, and each Selling Dealer shall agree not to, give or provide any information or make any representation other than those contained in the Prospectus or the Approved Sales Literature. (c) The Dealer Manager shall, and each Selling Dealer shall agree to, solicit purchases of the Units only in the jurisdictions in which the Dealer Manager and the Selling Dealers are legally qualified to so act and in which the Dealer Manager and each Selling Dealer have been advised by the Partnerships or counsel to the Partnerships that such solicitations can be made. (d) The Dealer Manager will comply in all material respects with the subscription procedures and the “Plan of Distribution” section set forth in the Prospectus. Subscriptions will be submitted by the Dealer Manager and each Selling Dealer to the Partnership in which Units are then being offered only on the order form which is included as Exhibit (C) to the Prospectus (the “Subscription Agreement”). The Dealer Manager understands and acknowledges, and each Selling Dealer shall acknowledge, that the Subscription Agreement must be executed and initialed by the subscriber as explained in the “Instructions” page in the Prospectus to the Subscription Agreement. (e) The Dealer Manager will offer Units, and in its ~~agreements~~ agreement with ~~Dealers~~ each Selling Dealer it will require that ~~Dealers make~~the Selling Dealer offer Units, ~~no representations concerning~~ only to persons that it has reasonable grounds to believe meet the ~~Offering except as~~ financial qualifications set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to it by the Partnership and will only make offers to persons in the states in which it is advised in writing by the Partnership that the Units are qualified for sale or that such qualification is not required. In offering Units, the Dealer Manager by will comply, and in its agreements with the ~~Company~~Selling Dealers, the Dealer Manager will require that the Selling Dealers comply, with the provisions of all applicable rules and regulations relating to suitability of investors, including without limitation the FINRA Rules and the provisions of Article IV.C. of the Statement of Policy Regarding Registration of Oil and Gas Programs of the North American Securities Administrators Association, Inc., as revised and amended on May 7, 2007 and as may be further revised and amended (the “NASAA Guidelines”) as well as the suitability requirements set forth in the “Suitability Standards” section of the Prospectus. The Dealer Manager ~~further~~ agrees that in recommending the ~~Company~~purchase of the Units in the offering to an investor, ~~in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to~~ the Dealer Manager and each person associated with the Dealer Manager who makes such recommendation shall have, and each Selling Dealer and each person associated with the Selling Dealer who makes a recommendation shall agree that it shall have, reasonable grounds to believe, on the basis of information obtained from the investor concerning the investor’s age, investment objectives, other investments, financial situation and needs, and any other information known by the Dealer Manager, the person associated with the Dealer Manager, the Selling Dealer or the person associated with the Selling Dealer, that: (i) the investor is or will be in a financial position appropriate to enable the investor to realize to a significant extent the benefits described in the Prospectus, including the tax benefits where they are a significant aspect of the Partnerships; (ii) the investor has a fair market net worth sufficient to sustain the risks inherent in the Partnership, including the possible loss of the investor’s entire investment and the lack of liquidity of the Units; and (iii) an investment in the Units offered in the offering is otherwise suitable for the investor. The Dealer Manager agrees as to investors to whom it makes a recommendation with respect to the ~~portion~~ purchase of the Units in the offering (and each Selling Dealer in its Selling Dealer Agreement shall agree, with respect to investors to whom it makes such recommendations) to maintain in the files of the Dealer Manager (or the Selling Dealer, as applicable) documents disclosing the basis on which the determination of suitability was reached as to each investor. In making the determination as to an investor’s financial qualifications and suitability required by the NASAA Guidelines and the Prospectus, the Dealer Manager and the Selling Dealers may rely on (A) representations from investment advisers who are not affiliated with a Selling Dealer, and banks acting as trustees or fiduciaries, and (B) information it has obtained from the prospective investor, including such information as the investment objectives, other investments, financial situation and needs of the person or any ~~subscription that is rejected~~other information known by the Dealer Manager (or Selling Dealer, as applicable), after due inquiry. Notwithstanding the foregoing, the Dealer Manager shall not, and each Selling Dealer shall agree not to, execute any transaction in the Units or any Partnership in a discretionary account without prior written approval of the transaction by the customer. (f) All engagements of the Selling Dealers will be evidenced by a Selling Dealer Agreement. (g) If the Dealer Manager or any Selling Dealer intends to use electronic delivery to distribute the Prospectus to any person with a Partnership’s prior written consent, it will comply with all applicable requirements of the Commission, the Blue Sky laws and/or FINRA rules and any other laws or regulations related to the electronic delivery of documents. (h) The Dealer Manager will use its best efforts to provide the Partnerships with any and all subscriber information that the Partnerships request in order for the Partnerships to satisfy their obligations under all applicable customer identification programs and anti-money laundering laws and regulations. (i) The Dealer Manager will comply, and will require each Selling Dealer to comply, with the record keeping requirements of the Exchange Act, including, but not limited to, Rules 17a-3 and 17a-4, and shall ~~maintain, or in its agreements with Dealers shall require the Dealers to~~ maintain, for at least six ~~years~~years or for a period of time not less than that required in order to comply with all applicable federal, ~~a record of~~ state and other regulatory requirements, whichever is later, information used by the ~~information obtained~~ Dealer Manager or the Selling Dealer to determine that an the investor ~~meets~~ met the ~~financial qualification and~~ suitability standards imposed on the offer and sale of the ~~Shares (both at~~ Units, the ~~time~~ amount of Units sold, and a representation of the ~~initial subscription and at~~ investor that the ~~time of any additional subscriptions, including initial enrollments and increased participations in~~ investor invested for the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentenceown account. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. (j) The Dealer Manager ~~further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended~~ agrees, and ~~supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing~~ will require that ~~is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members~~ each of the ~~public and (c) not~~ Selling Dealers agrees, to ~~show~~ suspend or ~~give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by~~ terminate the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager will provide the Company with such information relating to the offer offering and sale of the ~~Shares by it as~~ Units on request of the ~~Company may from~~ Partnership in which Units are then being offered at any time and to ~~time reasonably request or as may be requested to enable~~ resume the ~~Company to prepare such reports~~ offering and sale of ~~sale as may be required to be filed under applicable federal or state securities laws~~the Units on subsequent request, if any, of the Partnership. ~~4.7. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.~~

Appears in 1 contract

Samples: Dealer Manager Agreement (MDS Energy Public 2014-B Lp)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, FINRA Rule ~~2440 of the NASD Conduct Rules and~~ 2121, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated [ , 2015], among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, a copy of which is attached hereto as Exhibit B, and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 1 contract

Samples: Dealer Manager Agreement (KBS Growth & Income REIT, Inc.)

Covenants of the Dealer Manager. (a) The Dealer Manager ~~covenants and agrees~~ shall comply with the ~~Company that: 4.1. In connection with~~ record keeping requirements of the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Exchange Act, ~~the Exchange Act and the rules and regulations of the SEC promulgated under both such acts,~~ including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not ~~in any way~~ limited to, ~~Rule 2440 of~~ Rules 17a-3 and 17a-4 promulgated under the NASD Conduct Rules and FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Exchange Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will ~~not offer~~ make such documents and records available to (i) the ~~Shares~~Wholesaler, upon reasonable request, and ~~in its agreements with Dealers will require~~ (ii) representatives of the Securities and Exchange Commission (“SEC”), FINRA and applicable state securities administrators upon the receipt of an appropriate document subpoena or other appropriate request for documents from any such agency; provided, however, that ~~the Dealers not offer Shares, in any jurisdiction unless and until (a)~~ if the Dealer Manager ~~has been advised by the Company~~ determines, in ~~writing that the Shares are either registered~~ its sole discretion, not to provide documents in accordance ~~with~~with this section, it may oppose such document subpoena or ~~exempt from~~other request, ~~the securities laws of such jurisdiction and (b)~~ provided that the Dealer Manager ~~and any Dealer offering Shares in~~ shall be responsible for all reasonable direct costs of such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Companyopposition. The Dealer Manager further agrees ~~that~~ to keep such required records with respect to each customer who purchases Offered Shares, the customer’s suitability and the amount of Offered Shares sold, and to retain such records for six years or such period of time as may be required by the SEC, any state securities commission, FINRA or the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that whichever is ~~rejected~~later. The ~~Dealer Manager shall maintain~~Wholesaler, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees agree that the Dealer Manager can satisfy its recordkeeping obligations hereunder by contractually requiring such information to be maintained by the Participating Broker-Dealers, investment ~~advisers~~ advisors or banks ~~discussed in~~ offering the ~~preceding sentence~~Offered Shares. ~~4.5. Except for Authorized Sales Materials,~~ (b) The Dealer Manager shall abide by and comply with: (i) the ~~Company has not authorized~~ privacy standards and requirements of the ~~use~~ Gxxxx-Xxxxx Bxxxxx Act of 1999 (“GLB Act”); (ii) the privacy standards and requirements of any ~~supplemental literature~~ other applicable federal or ~~sales material in connection with the Offering~~ state law; (iii) any reasonable written privacy policies and standards provided to the Dealer Manager ~~agrees not to use any such material that has not been authorized~~ by the Wholesaler and the Company~~. The~~ ; and (d) the Dealer ~~Manager further agrees (a) not~~ Manager’s own internal privacy policies and procedures, each as may be amended from time to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and time. (c) ~~not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by~~ To the ~~Company if such material bears a legend denoting that it is not to be used in connection with~~ extent the ~~sale of Shares to members of~~ Dealer Manager directly sells Offered Shares, the ~~public in such jurisdiction. 4.6. The~~ Dealer Manager will ~~provide the Company with such information relating to~~ only offer and sell Offered Shares in jurisdictions in which qualifications or exemptions for the offer and sale of the Offered Shares ~~by it~~ are in effect as of the relevant date (“Qualified Jurisdictions”). No Offered Shares shall be offered or sold for the account of the Company ~~may~~ in any other states or foreign jurisdictions. (d) The Dealer Manager is familiar with Rule 15c2-8 under the Exchange Act, relating to the distribution of preliminary and final Prospectuses, and confirms that it has complied and will comply therewith. (e) The Dealer Manager will notify the Wholesaler immediately (i) when any amendment to the Registration Statement shall have become effective, (ii) of the issuance by the SEC or any other Federal or state regulatory body of any order suspending the effectiveness of the Registration Statement under the Securities Act or the registration of Offered Shares under the Blue Sky or securities laws of any state or other jurisdiction or any order or decree enjoining the offering or the use of the Prospectus or of the institution, or notice of the intended institution, of any action or proceeding for that purpose, and (iii) when any Prospectus shall have been filed under the Securities Act with the SEC. (f) The Dealer Manager will deliver to the Wholesaler as promptly as practicable from time to time ~~reasonably request or as may be requested to enable~~ during the ~~Company to prepare such reports of sale as may be~~ period when the Prospectus is required to be ~~filed~~ delivered under ~~applicable federal~~ the Securities Act, with reasonable quantities of copies of the Prospectus (as amended or ~~state securities laws~~supplemented), as provided by the Company, for delivery to investors and for the purposes contemplated by the Securities Act or any rules or regulations thereunder. ~~4.7.~~ (g) The Dealer Manager will ~~permit~~ provide a reasonable amount of Authorized Sales Material to the Wholesaler as and when requested by the Wholesaler, subject to receipt of such material by the Dealer ~~to participate in~~ Manager from the ~~Offering only if such Dealer is a member of FINRA~~Company.

Appears in 1 contract

Samples: Equity Purchase Agreement (RCS Capital Corp)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740, 2750 and 2810 of the NASD Conduct ~~Rules and FINRA Rule 2310 and FINRA Rule 5141~~Rules; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Second Amended and Restated Escrow Agreement dated October 5, 2009, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 1 contract

Samples: Dealer Manager Agreement (KBS Strategic Opportunity REIT, Inc.)

Covenants of the Dealer Manager. (a) The Dealer Manager ~~covenants and agrees~~ shall comply with the ~~Company that: 4.1. In connection with~~ record keeping requirements of the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Exchange Act, ~~the Exchange Act and the rules and regulations of the SEC promulgated under both such acts,~~ including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not ~~in any way~~ limited to, ~~Rule 2440 of~~ Rules 17a-3 and 17a-4 promulgated under the NASD Conduct Rules and FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Exchange Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will ~~not offer~~ make such documents and records available to (i) the ~~Shares~~Wholesaler, upon reasonable request, and ~~in its agreements with Dealers will require~~ (ii) representatives of the Securities and Exchange Commission (“SEC”), FINRA and applicable state securities administrators upon the receipt of an appropriate document subpoena or other appropriate request for documents from any such agency; provided, however, that ~~the Dealers not offer Shares, in any jurisdiction unless and until (a)~~ if the Dealer Manager ~~has been advised by the Company~~ determines, in ~~writing that the Shares are either registered~~ its sole discretion, not to provide documents in accordance ~~with~~with this section, it may oppose such document subpoena or ~~exempt from~~other request, ~~the securities laws of such jurisdiction and (b)~~ provided that the Dealer Manager ~~and any Dealer offering Shares in~~ shall be responsible for all reasonable direct costs of such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Companyopposition. The Dealer Manager further agrees ~~that~~ to keep such required records with respect to each customer who purchases Offered Shares, the customer’s suitability and the amount of Offered Shares sold, and to retain such records for six years or such period of time as may be required by the SEC, any state securities commission, FINRA or the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that whichever is ~~rejected~~later. The ~~Dealer Manager shall maintain~~Wholesaler, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees agree that the Dealer Manager can satisfy its recordkeeping obligations hereunder by contractually requiring such information to be maintained by the Participating Broker-Dealers, investment ~~advisers~~ advisors or banks ~~discussed in~~ offering the ~~preceding sentence~~Offered Shares. ~~4.5. Except for Authorized Sales Materials,~~ (b) The Dealer Manager shall abide by and comply with: (i) the ~~Company has not authorized~~ privacy standards and requirements of the ~~use~~ Gxxxx-Xxxxx Bliley Act of 1999 (“GLB Act”); (ii) the privacy standards and requirements of any ~~supplemental literature~~ other applicable federal or ~~sales material in connection with the Offering~~ state law; (iii) any reasonable written privacy policies and standards provided to the Dealer Manager ~~agrees not to use any such material that has not been authorized~~ by the Wholesaler and the Company~~. The~~ ; and (d) the Dealer ~~Manager further agrees (a) not~~ Manager’s own internal privacy policies and procedures, each as may be amended from time to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and time. (c) ~~not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by~~ To the ~~Company if such material bears a legend denoting that it is not to be used in connection with~~ extent the ~~sale of Shares to members of~~ Dealer Manager directly sells Offered Shares, the ~~public in such jurisdiction. 4.6. The~~ Dealer Manager will ~~provide the Company with such information relating to~~ only offer and sell Offered Shares in jurisdictions in which qualifications or exemptions for the offer and sale of the Offered Shares ~~by it~~ are in effect as of the relevant date (“Qualified Jurisdictions”). No Offered Shares shall be offered or sold for the account of the Company ~~may~~ in any other states or foreign jurisdictions. (d) The Dealer Manager is familiar with Rule 15c2-8 under the Exchange Act, relating to the distribution of preliminary and final Prospectuses, and confirms that it has complied and will comply therewith. (e) The Dealer Manager will notify the Wholesaler immediately (i) when any amendment to the Registration Statement shall have become effective, (ii) of the issuance by the SEC or any other Federal or state regulatory body of any order suspending the effectiveness of the Registration Statement under the Securities Act or the registration of Offered Shares under the Blue Sky or securities laws of any state or other jurisdiction or any order or decree enjoining the offering or the use of the Prospectus or of the institution, or notice of the intended institution, of any action or proceeding for that purpose, and (iii) when any Prospectus shall have been filed under the Securities Act with the SEC. (f) The Dealer Manager will deliver to the Wholesaler as promptly as practicable from time to time ~~reasonably request or as may be requested to enable~~ during the ~~Company to prepare such reports of sale as may be~~ period when the Prospectus is required to be ~~filed~~ delivered under ~~applicable federal~~ the Securities Act, with reasonable quantities of copies of the Prospectus (as amended or ~~state securities laws~~supplemented), as provided by the Company, for delivery to investors and for the purposes contemplated by the Securities Act or any rules or regulations thereunder. ~~4.7.~~ (g) The Dealer Manager will ~~permit~~ provide a reasonable amount of Authorized Sales Material to the Wholesaler as and when requested by the Wholesaler, subject to receipt of such material by the Dealer ~~to participate in~~ Manager from the ~~Offering only if such Dealer is a member of FINRA~~Company.

Appears in 1 contract

Samples: Equity Purchase Agreement (RCS Capital Corp)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees ~~with the Company that~~as follows: ~~4.1. In connection with~~ 6.1 With respect to the Dealer Manager’s participation and the participation by each Selected Dealer in the offer and sale of ~~Shares (including, without limitation, any resales and transfers of~~ the Offered Shares), the Dealer Manager ~~will comply~~agrees, and each Selected Dealer in its ~~agreements with Dealers~~ selected dealer agreement (the “Selected Dealer Agreement”) will ~~require that the Dealers comply~~agree, to comply in all material respects with all applicable requirements ~~and obligations imposed upon any~~ of ~~them by~~ (a) the Securities Act, the Securities Act Regulations, the Exchange Act and the rules and regulations of promulgated thereunder and all other federal regulations applicable to the ~~SEC promulgated under both such acts~~Offering, ~~including the obligation to deliver a copy of the Prospectus as amended or supplemented;~~ (b) all applicable ~~state~~ State securities or blue sky laws and regulations as in effect from time to time, and (c) the rules of FINRA applicable to the Offering in effect from time to time ~~in effect; (c) the applicable rules~~ and including, without limitation, FINRA Rules 2310, 2340, 2420, 2730, 2740 and 2750 and with all pertinent sections of Article III of FINRA~~, including, but not in any way limited to, Rule 2440~~ ’s Rules of ~~the NASD Conduct Rules and FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors~~Fair Practice, including, without limitation, ~~the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association~~Sections 8, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 199924, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.236 thereof. The Dealer Manager will not offer the ~~Shares, and in its agreements with Dealers will require that the Dealers not offer Shares,~~ Offered Shares for sale in any jurisdiction unless and until ~~(a) the Dealer Manager~~ it has been advised ~~by the Company in writing~~ that the Offered Shares are either registered in accordance with, or exempt from, the securities and other laws applicable thereto. 6.2 The Dealer Manager shall, in accordance with applicable law or as prescribed by any State securities administrator, provide, or require in the Selected Dealer Agreement that the Selected Dealer shall provide, to any prospective investor copies of ~~such jurisdiction~~ the Prospectus and any supplements thereto during the course of the Offering and prior to sale of the Offered Shares. The Company may provide the Dealer Manager with certain Approved Sales Literature to be used by the Selected Dealers (a) for its own educational purposes, (b) in connection with the ~~Dealer Manager and any Dealer offering~~ solicitation of purchasers of the Offered Shares ~~in such jurisdiction have all required licenses and registrations~~ or (c) to ~~offer~~ make subscriptions to purchase the Offered Shares ~~in that jurisdiction. 4.3~~available. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers it shall require ~~the Dealers~~ each Selected Dealer to ~~maintain, for at least six years, a record of the information obtained to determine~~ agree that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the such Selected Dealer ~~Manager may rely on representations from~~ will (i) ~~investment advisers who are~~ not ~~affiliated~~ use any sales materials in connection with ~~a Dealer or~~ the solicitation of purchasers of the Offered Shares except Approved Sales Literature; (ii) ~~banks acting as trustees or fiduciaries. With respect~~ not use any B/D Use Only Approved Sales Literature with members of the general investing public; and (iii) to the ~~Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability,~~ extent the Company ~~agrees that the Dealer Manager can satisfy its obligations by contractually requiring~~ provides Investor Use Approved Sales Literature, not use such ~~information to be maintained~~ Investor Use Approved Sales Literature unless accompanied or preceded by the ~~investment advisers or banks discussed~~ Prospectus, as then currently in effect, and as may be supplemented in the ~~preceding sentence. 4.5~~future. ~~Except for Authorized Sales Materials~~Selected Dealer will not publish, ~~the Company has not authorized the~~ circulate or otherwise use of any ~~supplemental literature~~ other advertisement or ~~sales~~ solicitation material in connection with the Offering ~~and~~ without the Dealer Manager’s express prior written approval. The use of any other sales material is expressly prohibited. 6.3 The Dealer Manager ~~agrees~~ shall not, and each Selected Dealer shall agree not ~~to use~~ to, give or provide any ~~such material that has not been authorized by~~ information or make any representation other than those contained in the ~~Company~~Prospectus. The Dealer Manager ~~further agrees~~ shall require each Selected Dealer not to (a) ~~not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to~~ show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company ~~and marked “broker-dealer use only” or otherwise~~ bearing a legend denoting that it is not to be used in connection with the sale of the Offered Shares to members of the ~~public and~~ public, including any B/D Use Only Approved Sales Literature; or (cb) ~~not to~~ show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Offered Shares to members of the public in such jurisdiction. ~~4.6~~6.4 The Dealer Manager shall, and shall require each Selected Dealer to, agree to solicit purchases of the Offered Shares only in the jurisdictions in which the Dealer Manager and such Selected Dealer are legally qualified to so act and in which the Dealer Manager and each Selected Dealer have been advised by the Company in writing that such solicitations can be made. 6.5 The Dealer Manager will require each Selected Dealer to comply in all material respects with the subscription procedures and “Plan of Distribution” set forth in the Prospectus. Subscriptions will be submitted by each Selected Dealer only on the form which is included as Appendix A to the Prospectus (the “Subscription Agreement”). The Dealer Manager understands and acknowledges, and each Selected Dealer shall acknowledge, that the Subscription Agreement must be executed and initialed by the subscriber as provided for in the Subscription Agreement. The Dealer Manager acknowledges and agrees that such potential subscriber’s Subscription Agreement shall not be accepted by the Company until at least five business days after the date such potential subscriber received a copy of the Prospectus (which shall be determined by the Company by the date on which such potential subscriber signed the Subscription Agreement). 6.6 The Dealer Manager shall not and shall require each Selected Dealer not to offer or sell the Offered Shares in any jurisdiction except to investors who satisfy the investor suitability and minimum investment requirements under the most restrictive of the following: (a) applicable provisions of the Prospectus, (b) the laws of the jurisdiction of which such investor is a resident, and (c) FINRA rules and regulations and FINRA Rule 2310, in particular. Specifically, the Dealer Manager agrees to ensure that, in recommending the purchase or sale of Offered Shares to an investor, each member of, or person associated with, the Dealer Manager or the Selected Dealer, as applicable, shall have reasonable grounds (as required by Rule 2310(b)(2)(B)(i) of the FINRA Rules) to believe, on the basis of information obtained from the investor (and thereafter maintained in the manner and for the period provided in this Agreement and such FINRA Rules) concerning his or her age, investment objectives, other investments, financial situation and needs, and any other information known to such member of, or person associated with, the Selected Dealer that (A) the investor is or will be in a financial position appropriate to enable him or her to realize to a significant extent the benefits described in the Prospectus, including the tax benefits to the extent they are a significant aspect of the Company; (B) the investor has a fair market net worth sufficient to sustain the risks inherent in an investment in the Offered Shares in the amount proposed, including complete loss, and lack of liquidity, of such investment; and (C) an investment in the Offered Shares is suitable in type and amount for such investor. The Dealer Manager or the Selected Dealer, in each case as applicable, will: (x) require each member of, or person associated with, the Dealer Manager or Selected Dealer, to make diligent inquiry as to the suitability and appropriateness of an investment in Offered Shares from each proposed investor, (y) retain in its records for a period equal to the longer of (A) six years from the date of the applicable sale of Offered Shares or (B) five years from the end of the Offering Period, and (z) make available to the Company, upon request (and upon the Dealer Manager’s or Selected Dealer’s receipt of an appropriate document subpoena from one of the following, to representatives of the SEC, FINRA and applicable State securities administrators) documents disclosing the basis upon which the determination as to suitability was reached as to each purchaser of Offered Shares pursuant to a subscription solicited by the Dealer Manager or applicable Selected Dealer, whether such records relate to accounts which have been closed, accounts which are currently maintained, or accounts hereafter established. Neither the Dealer Manager nor any Selected Dealer shall purchase any Offered Shares for a discretionary account without obtaining the customer’s prior written approval and his or her signature on a Subscription Agreement. 6.7 The Dealer Manager agrees to comply with relevant provisions applicable to securities broker-dealers of Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) (the “PATRIOT Act”), as well as FINRA Rule 3310 setting forth minimum standards for Anti-Money Laundering (“AML”) Programs of broker-dealers. These minimum standards require the Dealer Manager to have implemented a written AML Program reasonably designed to (a) detect traces of suspicious financial transactions, (b) achieve compliance with the Bank Secrecy Act regulations, (c) provide for independent testing, (d) designate an AML Compliance Officer, and (e) provide for ongoing training. Title III of the PATRIOT Act, 31 U.S.C. §§ 5311, et seq., is referred to as the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (the “Money Laundering Abatement Act”). Among other applicable requirements under the Money Laundering Abatement Act, the Dealer Manager agrees to comply with Section 312 regarding due diligence requirements, Section 313 regarding correspondent account prohibitions, Section 314 regarding financial institution cooperation, Section 319(b) regarding domestic and foreign bank records production, Section 326 regarding customer identification standards (as described in greater detail in Section 6.9 of this Agreement), Section 352 regarding anti-money laundering compliance program components, and Section 356 regarding suspicious activity reporting requirements. 6.8 The Dealer Manager and any person associated with the Dealer Manager (a) will abide by and comply with (i) the privacy standards and requirements of the Gxxxx-Xxxxx-Xxxxxx Act of 1999 (the “GLB Act”), (ii) the privacy standards and requirements of any other applicable federal or State law, and (iii) the Dealer Manager’s internal privacy policies and procedures, each as may be amended from time to time; (b) will refrain from the use or disclosure of nonpublic personal information (as defined under the GLB Act) of all customers who have opted out of such disclosures except as necessary to service the customers or as otherwise necessary or required by applicable law; and (c) will be responsible for determining which customers have opted out of the disclosure of nonpublic personal information by periodically reviewing and, if necessary, retrieving a list of such customers (the “List”) to identify customers that have exercised their opt-out rights. In the event the Dealer Manager uses or discloses nonpublic personal information of any customer for purposes other than servicing the customer, or as otherwise required by applicable law, the Dealer Manager will consult the List to determine whether the affected customer has exercised his or her opt-out rights. The Dealer Manager understands that it is prohibited from using or disclosing any nonpublic personal information of any customer that is identified on the List as having opted out of such disclosures. 6.9 Pursuant to Section 326 of the PATRIOT Act, the Dealer Manager has implemented reasonable Customer Identification Procedures (“CIP”) to (a) verify and identify customers who open new accounts, (b) maintain records of the information retrieved from the customer, including the name, address and other identifying information, and (c) consult lists of known or suspected terrorists or terrorist organizations to determine if the potential investor appears on any such list and will provide the Company with annual re-certification of such ~~information relating~~ implementation to the ~~offer and sale of~~ extent reasonably requested by the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities lawsCompany. ~~4.7~~6.10 Neither the Dealer Manager nor any person associated with the Dealer Manager solicited customers’ orders for the Offered Shares prior to the Effective Date. The Dealer Manager agrees to take all reasonable steps to make available a copy of the final Prospectus relating to the Offered Shares to each person associated with the Dealer Manager who is expected, after the Effective Date, to solicit customer orders for the Offered Shares prior to the making of any such solicitation by such associated persons. The Dealer Manager agrees to take reasonable steps to furnish each Selected Dealer with sufficient copies, as requested by them, of the final Prospectus to enable them to comply with paragraphs (b), (c), (d) and (e) of Rule 15c2-8 of the Exchange Act, and the prospectus delivery requirements of Section 5(b)(1) and (2) of the Securities Act. Neither the Dealer Manager nor the Selected Dealer nor any person associated with the Dealer Manager or the Selected Dealer will ~~permit a~~ furnish Prospectuses to any person in any State (e.g. in any State (a) listed as not cleared on the “Blue-Sky Survey” by counsel to the Company or the Dealer Manager or (b) in which the Dealer Manager or Selected Dealer or any person associated with the Dealer Manager or Selected Dealer who solicits offers to ~~participate in~~ buy or offers to sell the ~~Offering only if such~~ Offered Shares, or make subscriptions to purchase the Offered Shares available, is not currently registered); provided, however, that this provision is not to be construed to relieve the Dealer ~~is a member~~ Manager or each Selected Dealer from complying with the requirements of ~~FINRA.~~Section 5(b)(1) and (2)

Appears in 1 contract

Samples: Dealer Manager Agreement (CION Investment Corp)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as are from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“"NASAA Guidelines”"); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA ~~Patriot~~ PATRIOT Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six ~~years~~years from the date of an investor's subscription, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “"broker-dealer use only” " or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated _____________ ____, 2011, among People's United Bank, as escrow agent, the Dealer Manager and the Company, and the Dealer Manager further agrees that it will ~~provide~~ not represent or imply that People's United Bank, as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with ~~such information relating to~~ the offer ~~and~~ or sale of the Shares other than by acknowledgment that it has agreed to serve as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities lawsescrow agent. ~~4.7. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.~~

Appears in 1 contract

Samples: Dealer Manager Agreement (Plymouth Opportunity REIT Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of ~~FINRA~~the NASD, including, but not in any way limited to, ~~Rule 2440 of the NASD Conduct~~ Rules 2440, 2730, 2740 and ~~FINRA Rule 2310 and FINRA Rule 5141~~2750; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of ~~state and federal laws, including~~ the Xxxxx-Xxxxx-Xxxxxx Act of 1999, the requirements of any applicable state privacy laws and the ~~laws governing money laundering abatement and anti-terrorist financing efforts, including the~~ applicable ~~rules~~ provisions of ~~the SEC and FINRA, the Bank Secrecy Act, as amended,~~ the USA Patriot Act of ~~2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury~~2001; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and ~~supplemented,~~ supplemented and (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “~~broker-~~dealer ~~use~~ only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the ~~public and (c) not~~ public. 4.6. The Dealer Manager agrees to ~~show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it~~ be bound by the ~~Company if such material bears a legend denoting~~ terms of the Escrow Agreement dated November 15, 2005, among First Republic Trust Company, as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it is will not ~~to be used~~ represent or imply that First Republic Trust Company, as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to ~~members of the public in such jurisdiction~~serve as escrow agent. ~~4.6~~4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of ~~FINRA~~the NASD.

Appears in 1 contract

Samples: Dealer Manager Agreement (KBS Real Estate Investment Trust, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: ~~4.1.~~ 4.1 In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct ~~Rules and FINRA Rule 2310 and FINRA Rule 5141~~Rules; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the ~~SEC~~ SEC, FINRA and ~~FINRA, the Bank Secrecy Act, as amended,~~ the USA Patriot Act of ~~2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury~~2001; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ 4.2 The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ 4.3 The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ 4.4 The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ 4.5 Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and ~~supplemented,~~ supplemented and (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the ~~public and (c) not~~ public. 4.6 The Dealer Manager agrees to ~~show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it~~ be bound by the ~~Company if such material bears a legend denoting~~ terms of the Escrow Agreement dated [date], among Union Bank, N.A., as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it is will not ~~to be used~~ represent or imply that Union Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to ~~members of the public in such jurisdiction~~serve as escrow agent. ~~4.6.~~ 4.7 The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ 4.8 The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 1 contract

Samples: Dealer Manager Agreement (Passco Apartment REIT, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct ~~Rules and FINRA Rule 2310 and FINRA Rule 5141~~Rules; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the ~~SEC~~ SEC, FINRA and ~~FINRA, the Bank Secrecy Act, as amended,~~ the USA Patriot Act of ~~2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury~~2001; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and ~~supplemented,~~ supplemented and (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the ~~public and (c) not~~ public. 4.6. The Dealer Manager agrees to ~~show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it~~ be bound by the ~~Company if such material bears a legend denoting~~ terms of the Escrow Agreement dated February 22, 2008, among First Republic Trust Company, as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it is will not ~~to be used~~ represent or imply that First Republic Trust Company, as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to ~~members of the public in such jurisdiction~~serve as escrow agent. ~~4.6~~4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 1 contract

Samples: Dealer Manager Agreement (KBS Real Estate Investment Trust II, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the ~~Company~~ Fund that: ~~4.1.~~ (a) In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will ~~comply, and in its agreements with Dealers will require that the Dealers comply,~~ comply with all requirements and obligations imposed upon ~~any of them~~ it by (ai) the Securities Act, the Exchange Act, the 1940 Act and the rules and regulations of the SEC promulgated under ~~both~~ such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (bii) all applicable state securities laws and regulations as from time to time in effect; (ciii) the applicable rules of FINRA~~, including, but not in any way limited to, Rule 2440 of the NASD Conduct Rules and FINRA Rule 2310 and FINRA Rule 5141~~; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (eiv) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (fv) this Agreement and the ~~Prospectus~~ Prospectus, as either may be amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the ~~Shares, and in its agreements with Dealers will require that the Dealers not offer Shares,~~ Shares in any jurisdiction unless and until (a) the Dealer Manager has been advised by the ~~Company~~ Fund in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and ~~any Dealer offering Shares in such jurisdiction~~ its personnel have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will ~~make, and in its agreements with Dealers will require that Dealers make,~~ make no representations concerning the Offering except as set forth in the ~~Prospectus~~ Prospectus, as amended and ~~supplemented~~ supplemented, and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (id) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the ~~Company~~ Fund has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the ~~Company~~Fund. The Dealer Manager further agrees (ai) not to deliver any Authorized Sales Materials to any ~~person~~ Marketing Recipient unless it is accompanied or preceded by the Prospectus as amended and supplemented, (bii) not to show or give to any ~~investor or prospective investor~~ Marketing Recipient or reproduce any material or writing that is supplied to it by the ~~Company~~ Fund and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (ciii) not to show or give to any ~~investor or prospective investor~~ Marketing Recipient in a particular jurisdiction any material or writing that is supplied to it by the ~~Company~~ Fund if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ (e) The Dealer Manager will provide the ~~Company~~ Fund with such information relating to the offer and sale of the Shares by it as the ~~Company~~ Fund may from time to time reasonably request or as may be requested to enable the ~~Company~~ Fund to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (f) The Dealer Manager will ~~permit a Dealer~~ pay all expenses incident to ~~participate in~~ the performance of its obligations under this Agreement, including the fees and expenses of its own counsel and accountants, even if the Offering ~~only if such Dealer~~ is ~~a member of FINRA~~not successfully completed.

Appears in 1 contract

Samples: Dealer Manager Agreement (Resource Credit Income Fund)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees ~~with the Company that~~as follows: ~~4.1. In connection with~~ 4.1 With respect to the Dealer Manager’s participation and the participation by each Selected Dealer in the offer and sale of ~~Shares (including, without limitation, any resales and transfers of~~ the Offered Shares), the Dealer Manager ~~will comply~~agrees, and each Selected Dealer in its ~~agreements with Dealers~~ selected dealer agreement or registered investment adviser agreement, as applicable (the “Selected Dealer Agreement”), will ~~require that the Dealers comply~~agree, to comply in all material respects with all applicable requirements ~~and obligations imposed upon any~~ of ~~them by~~ (a) the Securities Act, the Securities Act Regulations, the Exchange Act and the rules and regulations of promulgated thereunder and all other federal regulations applicable to the ~~SEC promulgated under both such acts~~Offering, ~~including the obligation to deliver a copy of the Prospectus as amended or supplemented;~~ (b) all applicable ~~state~~ State securities or blue sky laws and regulations as in effect from time to time, and (c) the rules of FINRA applicable to the Offering in effect from time to time ~~in effect; (c) the applicable rules~~ and including, without limitation, FINRA Rules 2111, 2310, 2340, 2420, 2730, 2740 and 2750 and with all pertinent sections of Article III of FINRA~~, including, but not in any way limited to, Rule 2440~~ ’s Rules of ~~the NASD Conduct Rules and FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors~~Fair Practice, including, without limitation, ~~the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association~~Sections 8, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 199924, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.236 thereof. The Dealer Manager will not offer the ~~Shares, and in its agreements with Dealers will require that the Dealers not offer Shares,~~ Offered Shares for sale in any jurisdiction unless and until ~~(a) the Dealer Manager~~ it has been advised ~~by the Company in writing~~ that the Offered Shares are either registered in accordance with, or exempt from, the securities and other laws applicable thereto. 4.2 The Dealer Manager shall, in accordance with applicable law or as prescribed by any State securities administrator, provide, or require in the Selected Dealer Agreement that the Selected Dealer shall provide, to any prospective investor copies of ~~such jurisdiction~~ the Prospectus and any supplements thereto during the course of the Offering and prior to sale of the Offered Shares. The Company may provide the Dealer Manager with certain Approved Sales Literature to be used by the Selected Dealers (a) for its own educational purposes, (b) in connection with the ~~Dealer Manager and any Dealer offering~~ solicitation of purchasers of the Offered Shares ~~in such jurisdiction have all required licenses and registrations~~ or (c) to ~~offer~~ make subscriptions to purchase the Offered Shares ~~in that jurisdiction. 4.3~~available. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers it shall require ~~the Dealers~~ each Selected Dealer to ~~maintain, for at least six years, a record of the information obtained to determine~~ agree that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the such Selected Dealer ~~Manager may rely on representations from~~ will (i) ~~investment advisers who are~~ not ~~affiliated~~ use any sales materials in connection with ~~a Dealer or~~ the solicitation of purchasers of the Offered Shares except Approved Sales Literature; (ii) ~~banks acting as trustees or fiduciaries. With respect~~ not use any B/D Use Only Approved Sales Literature with members of the general investing public; (iii) to the ~~Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability,~~ extent the Company ~~agrees that the Dealer Manager can satisfy its obligations by contractually requiring~~ provides Investor Use Approved Sales Literature, not use such ~~information to be maintained~~ Investor Use Approved Sales Literature unless accompanied or preceded by the ~~investment advisers or banks discussed~~ Prospectus, as then currently in effect, and as may be supplemented in the ~~preceding sentence. 4.5. Except for Authorized Sales Materials~~future; and (iv) not publish, ~~the Company has not authorized the~~ circulate or otherwise use of any ~~supplemental literature~~ other advertisement or ~~sales~~ solicitation material in connection with the Offering ~~and~~ without the Dealer Manager’s express prior written approval. The use of any other sales material is expressly prohibited. 4.3 The Dealer Manager ~~agrees~~ shall not, and each Selected Dealer shall agree not ~~to use~~ to, give or provide any ~~such material that has not been authorized by~~ information or make any representation other than those contained in the ~~Company~~Prospectus. The Dealer Manager ~~further agrees~~ shall require each Selected Dealer not to (a) ~~not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to~~ show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company ~~and marked “broker-dealer use only” or otherwise~~ bearing a legend denoting that it is not to be used in connection with the sale of the Offered Shares to members of the ~~public and~~ public, including any B/D Use Only Approved Sales Literature; or (cb) ~~not to~~ show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Offered Shares to members of the public in such jurisdiction. ~~4.6~~4.4 The Dealer Manager shall, and shall require each Selected Dealer to, agree to solicit purchases of the Offered Shares or make subscriptions to purchase the Offered Shares available only in the jurisdictions in which the Dealer Manager and such Selected Dealer are legally qualified to so act and in which the Dealer Manager and each Selected Dealer have been advised by the Company in writing that such solicitations can be made or subscriptions be made available. 4.5 The Dealer Manager will require each Selected Dealer to comply in all material respects with the subscription procedures and “Plan of Distribution” set forth in the Prospectus. Subscriptions will be submitted by each Selected Dealer only on the form which is included as Exhibit C to the Prospectus (the “Subscription Agreement”). The Dealer Manager understands and acknowledges, and each Selected Dealer shall acknowledge, that the Subscription Agreement must be executed and initialed by the subscriber as provided for in the Subscription Agreement. The Dealer Manager acknowledges and agrees that such potential subscriber’s Subscription Agreement shall not be accepted by the Company until at least five business days after the date such potential subscriber received a copy of the Prospectus (which shall be determined by the Company by the date on which such potential subscriber signed the Subscription Agreement). 4.6 The Dealer Manager shall not and shall require each Selected Dealer not to offer or sell the Offered Shares in any jurisdiction except to investors who satisfy the investor suitability and minimum investment requirements under the most restrictive of the following: (a) applicable provisions of the Prospectus, (b) the laws of the jurisdiction of which such investor is a resident, and (c) FINRA rules and regulations and FINRA Rules 2111 and 2310, in particular. Specifically, the Dealer Manager agrees to ensure that, in recommending the purchase or sale of Offered Shares to an investor, each member of, or person associated with, the Dealer Manager or the Selected Dealer, as applicable, shall have reasonable grounds (as required by Rules 2310(b)(2)(B)(i) and 2111 of the FINRA Rules) to believe, on the basis of information obtained from the investor (and thereafter maintained in the manner and for the period provided in this Agreement and such FINRA Rules) concerning his or her age, investment objectives, investment experience, time horizon, liquidity needs, risk tolerance, other investments, financial situation and needs, and any other information known to such member of, or person associated with, the Selected Dealer, after due inquiry that (A) the investor is or will be in a financial position appropriate to enable him or her to realize to a significant extent the benefits described in the Prospectus, including the tax benefits to the extent they are a significant aspect of the Company; (B) the investor has a fair market net worth sufficient to sustain the risks inherent in an investment in the Offered Shares in the amount proposed, including complete loss, and lack of liquidity, of such investment; (C) an investment in the Offered Shares is suitable in type and amount for such investor; and (D) such person has either: (1) a minimum annual gross income of $70,000 and a minimum net worth (exclusive of home, home furnishings and automobiles) of $70,000; or (2) a minimum net worth (determined with the foregoing exclusions) of $250,000 and meets the higher suitability standards, if applicable, imposed by the State in which the investor resides. The Dealer Manager or the Selected Dealer, in each case as applicable, will: (w) require each member of, or person associated with, the Dealer Manager or Selected Dealer to make diligent inquiry as to the suitability and appropriateness of an investment in Offered Shares from each proposed investor, (x) require a representation of the investor that the investor is investing for the investor’s own account or, in lieu of such representation, information indicating that the investor for whose account the investment was made met the suitability standards, (y) retain in its records for a period equal to the longer of (A) six years from the date of the applicable sale of Offered Shares or (B) five years from the end of the Offering Period, and (z) make available to the Company, upon request (and upon the Dealer Manager’s or Selected Dealer’s receipt of an appropriate document subpoena from one of the following, to representatives of the SEC, FINRA and applicable State securities administrators) documents disclosing the basis upon which the determination as to suitability was reached as to each purchaser of Offered Shares pursuant to a subscription solicited by the Dealer Manager or applicable Selected Dealer, whether such records relate to accounts which have been closed, accounts which are currently maintained, or accounts hereafter established. Neither the Dealer Manager nor any Selected Dealer shall purchase any Offered Shares for a discretionary account without obtaining the customer’s prior written approval and his or her signature on a Subscription Agreement. 4.7 The Dealer Manager agrees to comply with relevant provisions applicable to securities broker-dealers of Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) (the “PATRIOT Act”), as well as FINRA Rule 3310 setting forth minimum standards for Anti-Money Laundering (“AML”) Programs of broker-dealers. These minimum standards require the Dealer Manager to have implemented a written AML Program reasonably designed to (a) detect traces of suspicious financial transactions, (b) achieve compliance with the Bank Secrecy Act regulations, (c) provide for independent testing, (d) designate an AML Compliance Officer, and (e) provide for ongoing training. Title III of the PATRIOT Act, 31 U.S.C. §§ 5311, et seq., is referred to as the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (the “Money Laundering Abatement Act”). Among other applicable requirements under the Money Laundering Abatement Act, the Dealer Manager agrees to comply with Section 312 regarding due diligence requirements, Section 313 regarding correspondent account prohibitions, Section 314 regarding financial institution cooperation, Section 319(b) regarding domestic and foreign bank records production, Section 326 regarding customer identification standards (as described in greater detail in Section 4.9 of this Agreement), Section 352 regarding anti-money laundering compliance program components, and Section 356 regarding suspicious activity reporting requirements. 4.8 The Dealer Manager and any person associated with the Dealer Manager (a) will abide by and comply with (i) the privacy standards and requirements of the Gxxxx-Xxxxx-Xxxxxx Act of 1999 (the “GLB Act”), (ii) the privacy standards and requirements of any other applicable federal or State law, and (iii) the Dealer Manager’s internal privacy policies and procedures, each as may be amended from time to time; (b) will refrain from the use or disclosure of nonpublic personal information (as defined under the GLB Act) of all customers who have opted out of such disclosures, except as necessary to service the customers or as otherwise necessary or required by applicable law; and (c) will be responsible for determining which customers have opted out of the disclosure of nonpublic personal information by periodically reviewing and, if necessary, retrieving a list of such customers (the “List”) to identify customers that have exercised their opt-out rights. In the event the Dealer Manager uses or discloses nonpublic personal information of any customer for purposes other than servicing the customer, or as otherwise required by applicable law, the Dealer Manager will consult the List to determine whether the affected customer has exercised his or her opt-out rights. The Dealer Manager understands that it is prohibited from using or disclosing any nonpublic personal information of any customer that is identified on the List as having opted out of such disclosures. 4.9 Pursuant to Section 326 of the PATRIOT Act, the Dealer Manager has implemented reasonable Customer Identification Procedures (“CIP”) to (a) verify and identify customers who open new accounts, (b) maintain records of the information retrieved from the customer, including the name, address and other identifying information, and (c) consult lists of known or suspected terrorists or terrorist organizations to determine if the potential investor appears on any such list and will provide the Company with annual re-certification of such ~~information relating~~ implementation to the ~~offer and sale of~~ extent reasonably requested by the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities lawsCompany. ~~4.7~~4.10 Neither the Dealer Manager nor any person associated with the Dealer Manager solicited customers’ orders for the Offered Shares prior to the Effective Date. The Dealer Manager agrees to take all reasonable steps to make available a copy of the final Prospectus relating to the Offered Shares to each person associated with the Dealer Manager who is expected, after the Effective Date, to solicit customer orders for the Offered Shares prior to the making of any such solicitation by such associated persons. The Dealer Manager agrees to take reasonable steps to furnish each Selected Dealer with sufficient copies, as requested by them, of the final Prospectus to enable them to comply with paragraphs (b), (c), (d) and (e) of Rule 15c2-8 of the Exchange Act, and the prospectus delivery requirements of Section 5(b)(1) and (2) of the Securities Act. Neither the Dealer Manager nor the Selected Dealer nor any person associated with the Dealer Manager or the Selected Dealer will ~~permit a~~ furnish Prospectuses to any person in any State (a) listed as not cleared on the “Blue-Sky Survey” by counsel to the Company or the Dealer Manager or (b) in which the Dealer Manager or Selected Dealer or any person associated with the Dealer Manager or Selected Dealer who solicits offers to ~~participate in~~ buy or offers to sell the ~~Offering only if such~~ Offered Shares, or make subscriptions to purchase the Offered Shares available, is not currently registered; provided, however, that this provision is not to be construed to relieve the Dealer ~~is a member~~ Manager or each Selected Dealer from complying with the requirements of ~~FINRA.~~Section 5(b)(1) and (2)

Appears in 1 contract

Samples: Dealer Manager Agreement (ICON ECI Fund Sixteen)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees ~~with the Company that~~as follows: ~~4.1. In connection with~~ 6.1 With respect to the Dealer Manager’s participation and the participation by each Selected Dealer in the offer and sale of ~~Shares (including, without limitation, any resales and transfers of~~ the Offered Shares), the Dealer Manager ~~will comply~~agrees, and each Selected Dealer in its ~~agreements with Dealers~~ selected dealer agreement (the “Selected Dealer Agreement”) will ~~require that the Dealers comply~~agree, to comply in all material respects with all applicable requirements ~~and obligations imposed upon any~~ of ~~them by~~ (a) the Securities Act, the Securities Act Regulations, the Exchange Act and the rules and regulations of promulgated thereunder and all other federal regulations applicable to the ~~SEC promulgated under both such acts~~Offering, ~~including the obligation to deliver a copy of the Prospectus as amended or supplemented;~~ (b) all applicable ~~state~~ State securities or blue sky laws and regulations as in effect from time to time, and (c) the rules of FINRA applicable to the Offering in effect from time to time ~~in effect; (c) the applicable rules~~ and including, without limitation, FINRA Rules 2310, 2340, 2420, 2730, 2740 and 2750 and with all pertinent sections of Article III of FINRA~~, including, but not in any way limited to, Rule 2440~~ ’s Rules of ~~the NASD Conduct Rules and FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors~~Fair Practice, including, without limitation, ~~the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association~~Sections 8, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 199924, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.236 thereof. The Dealer Manager will not offer the ~~Shares, and in its agreements with Dealers will require that the Dealers not offer Shares,~~ Offered Shares for sale in any jurisdiction unless and until ~~(a) the Dealer Manager~~ it has been advised ~~by the Company in writing~~ that the Offered Shares are either registered in accordance with, or exempt from, the securities and other laws applicable thereto. 6.2 The Dealer Manager shall, in accordance with applicable law or as prescribed by any State securities administrator, provide, or require in the Selected Dealer Agreement that the Selected Dealer shall provide, to any prospective investor copies of ~~such jurisdiction~~ the Prospectus and ~~(b)~~ any supplements thereto during the course of the Offering and prior to sale of the Offered Shares. The Company may provide the Dealer Manager ~~and any Dealer offering Shares~~ with certain Approved Sales Literature to be used by the Selected Dealers either for its own educational purposes or in ~~such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3~~connection with the solicitation of purchasers of the Offered Shares. The Dealer Manager agrees that it shall require each Selected Dealer to agree that such Selected Dealer will ~~make~~(a) not use any sales materials in connection with the solicitation of purchasers of the Offered Shares except Approved Sales Literature; (b) not use any B/D Use Only Approved Sales Literature with members of the general investing public; and (c) to the extent the Company provides Investor Use Approved Sales Literature, not use such Investor Use Approved Sales Literature unless accompanied or preceded by the Prospectus, as then currently in effect, and ~~in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except~~ as ~~set forth~~ may be supplemented in the ~~Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4~~future. ~~The~~ Selected Dealer ~~Manager~~ will ~~offer Shares~~not publish, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented circulate or in otherwise use any ~~suitability letter~~ other advertisement or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales solicitation material in connection with the Offering ~~and~~ without the Dealer Manager’s express prior written approval. The use of any other sales material is expressly prohibited. 6.3 The Dealer Manager ~~agrees~~ shall not, and each Selected Dealer shall agree not ~~to use~~ to, give or provide any ~~such material that has not been authorized by~~ information or make any representation other than those contained in the ~~Company~~Prospectus. The Dealer Manager ~~further agrees~~ shall require each Selected Dealer not to (a) ~~not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to~~ show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company ~~and marked “broker-dealer use only” or otherwise~~ bearing a legend denoting that it is not to be used in connection with the sale of the Offered Shares to members of the ~~public and~~ public, including any B/D Use Only Approved Sales Literature; or (cb) ~~not to~~ show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Offered Shares to members of the public in such jurisdiction. ~~4.6~~6.4 The Dealer Manager shall, and shall require each Selected Dealer to, agree to solicit purchases of the Offered Shares only in the jurisdictions in which the Dealer Manager and such Selected Dealer are legally qualified to so act and in which the Dealer Manager and each Selected Dealer have been advised by the Company in writing that such solicitations can be made. 6.5 The Dealer Manager will require each Selected Dealer to comply in all material respects with the subscription procedures and “Plan of Distribution” set forth in the Prospectus. Subscriptions will be submitted by each Selected Dealer only on the form which is included as Appendix A to the Prospectus (the “Subscription Agreement”). The Dealer Manager understands and acknowledges, and each Selected Dealer shall acknowledge, that the Subscription Agreement must be executed and initialed by the subscriber as provided for in the Subscription Agreement. The Dealer Manager acknowledges and agrees that such potential subscriber’s Subscription Agreement shall not be accepted by the Company until at least five business days after the date such potential subscriber received a copy of the Prospectus (which shall be determined by the Company by the date on which such potential subscriber signed the Subscription Agreement). 6.6 The Dealer Manager shall not and shall require each Selected Dealer not to offer or sell the Offered Shares in any jurisdiction except to investors who satisfy the investor suitability and minimum investment requirements under the most restrictive of the following: (a) applicable provisions of the Prospectus, (b) the laws of the jurisdiction of which such investor is a resident, and (c) FINRA rules and regulations and FINRA Rule 2310, in particular. Specifically, the Dealer Manager agrees to ensure that, in recommending the purchase or sale of Offered Shares to an investor, each member of, or person associated with, the Dealer Manager or the Selected Dealer, as applicable, shall have reasonable grounds (as required by Rule 2310(b)(2)(B)(i) of the FINRA Rules) to believe, on the basis of information obtained from the investor (and thereafter maintained in the manner and for the period provided in this Agreement and such FINRA Rules) concerning his or her age, investment objectives, other investments, financial situation and needs, and any other information known to such member of, or person associated with, the Selected Dealer, that (A) the investor is or will be in a financial position appropriate to enable him or her to realize to a significant extent the benefits described in the Prospectus, including the tax benefits to the extent they are a significant aspect of the Company; (B) the investor has a fair market net worth sufficient to sustain the risks inherent in an investment in the Offered Shares in the amount proposed, including complete loss, and lack of liquidity, of such investment; and (C) an investment in the Offered Shares is suitable in type and amount for such investor. The Dealer Manager or the Selected Dealer, in each case as applicable, will: (x) require each member of, or person associated with, the Dealer Manager or Selected Dealer, to make diligent inquiry as to the suitability and appropriateness of an investment in Offered Shares from each proposed investor, (y) retain in its records for a period equal to the longer of (A) six years from the date of the applicable sale of Offered Shares or (B) five years from the end of the Offering Period, and (z) make available to the Company, upon request (and upon the Dealer Manager’s or Selected Dealer’s receipt of an appropriate document subpoena from one of the following, to representatives of the SEC, FINRA and applicable State securities administrators) documents disclosing the basis upon which the determination as to suitability was reached as to each purchaser of Offered Shares pursuant to a subscription solicited by the Dealer Manager or applicable Selected Dealer, whether such records relate to accounts which have been closed, accounts which are currently maintained, or accounts hereafter established. Neither the Dealer Manager nor any Selected Dealer shall purchase any Offered Shares for a discretionary account without obtaining the customer’s prior written approval and his or her signature on a Subscription Agreement. 6.7 The Dealer Manager agrees to comply with relevant provisions applicable to securities broker-dealers of Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) (the “PATRIOT Act”), as well as FINRA Rule 3310 setting forth minimum standards for Anti-Money Laundering (“AML”) Programs of broker-dealers. These minimum standards require the Dealer Manager to have implemented a written AML Program reasonably designed to (a) detect traces of suspicious financial transactions, (b) achieve compliance with the Bank Secrecy Act regulations, (c) provide for independent testing, (d) designate an AML Compliance Officer, and (e) provide for ongoing training. Title III of the PATRIOT Act, 31 U.S.C. §§ 5311, et seq., is referred to as the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (the “Money Laundering Abatement Act”). Among other applicable requirements under the Money Laundering Abatement Act, the Dealer Manager agrees to comply with Section 312 regarding due diligence requirements, Section 313 regarding correspondent account prohibitions, Section 314 regarding financial institution cooperation, Section 319(b) regarding domestic and foreign bank records production, Section 326 regarding customer identification standards (as described in greater detail in Section 6.9 of this Agreement), Section 352 regarding anti-money laundering compliance program components, and Section 356 regarding suspicious activity reporting requirements. 6.8 The Dealer Manager and any person associated with the Dealer Manager (a) will abide by and comply with (i) the privacy standards and requirements of the Gxxxx-Xxxxx-Xxxxxx Act of 1999 (the “GLB Act”), (ii) the privacy standards and requirements of any other applicable federal or State law, and (iii) the Dealer Manager’s internal privacy policies and procedures, each as may be amended from time to time; (b) will refrain from the use or disclosure of nonpublic personal information (as defined under the GLB Act) of all customers who have opted out of such disclosures except as necessary to service the customers or as otherwise necessary or required by applicable law; and (c) will be responsible for determining which customers have opted out of the disclosure of nonpublic personal information by periodically reviewing and, if necessary, retrieving a list of such customers (the “List”) to identify customers that have exercised their opt-out rights. In the event the Dealer Manager uses or discloses nonpublic personal information of any customer for purposes other than servicing the customer, or as otherwise required by applicable law, the Dealer Manager will consult the List to determine whether the affected customer has exercised his or her opt-out rights. The Dealer Manager understands that it is prohibited from using or disclosing any nonpublic personal information of any customer that is identified on the List as having opted out of such disclosures. 6.9 Pursuant to Section 326 of the PATRIOT Act, the Dealer Manager has implemented reasonable Customer Identification Procedures (“CIP”) to (a) verify and identify customers who open new accounts, (b) maintain records of the information retrieved from the customer, including the name, address and other identifying information, and (c) consult lists of known or suspected terrorists or terrorist organizations to determine if the potential investor appears on any such list and will provide the Company with annual re-certification of such ~~information relating~~ implementation to the ~~offer and sale of~~ extent reasonably requested by the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities lawsCompany. ~~4.7~~6.10 Neither the Dealer Manager nor any person associated with the Dealer Manager solicited customers’ orders for the Offered Shares prior to the Effective Date. The Dealer Manager agrees to take all reasonable steps to make available a copy of the final Prospectus relating to the Offered Shares to each person associated with the Dealer Manager who is expected, after the Effective Date, to solicit customer orders for the Offered Shares prior to the making of any such solicitation by such associated persons. The Dealer Manager agrees to take reasonable steps to furnish each Selected Dealer with sufficient copies, as requested by them, of the final Prospectus to enable them to comply with paragraphs (b), (c), (d) and (e) of Rule 15c2-8 of the Exchange Act, and the prospectus delivery requirements of Section 5(b)(1) and (2) of the Securities Act. Neither the Dealer Manager nor the Selected Dealer nor any person associated with the Dealer Manager or the Selected Dealer will ~~permit a~~ furnish Prospectuses to any person in any State (e.g. in any State (a) listed as not cleared on the “Blue-Sky Survey” by counsel to the Company or the Dealer Manager or (b) in which the Dealer Manager or Selected Dealer or any person associated with the Dealer Manager or Selected Dealer who solicits offers to ~~participate in~~ buy or offers to sell the ~~Offering only if such~~ Offered Shares is not currently registered); provided, however, that this provision is not to be construed to relieve the Dealer ~~is a member~~ Manager or each Selected Dealer from complying with the requirements of ~~FINRA.~~Section 5(b)(1) and (2)

Appears in 1 contract

Samples: Dealer Manager Agreement (CION Investment Corp)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the ~~Company~~ Fund that: ~~4.1.~~ (a) In connection with the Dealer Manager’s 's participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will ~~comply, and in its agreements with Dealers will require that the Dealers comply,~~ comply with all requirements and obligations imposed upon ~~any of them~~ it by (ai) the Securities Act, the Exchange Act, the 1940 Act and the rules and regulations of the SEC promulgated under ~~both~~ such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (bii) all applicable state securities laws and regulations as from time to time in effect; (ciii) the applicable rules of FINRA~~, including, but not in any way limited to, Rule 2440 of the NASD Conduct Rules and FINRA Rule 2310 and FINRA Rule 5141~~; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (eiv) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (fv) this Agreement and the ~~Prospectus~~ Prospectus, as either may be amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the ~~Shares, and in its agreements with Dealers will require that the Dealers not offer Shares,~~ Shares in any jurisdiction unless and until (a) the Dealer Manager has been advised by the ~~Company~~ Fund in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and ~~any Dealer offering Shares in such jurisdiction~~ its personnel have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will ~~make, and in its agreements with Dealers will require that Dealers make,~~ make no representations concerning the Offering except as set forth in the ~~Prospectus~~ Prospectus, as amended and ~~supplemented~~ supplemented, and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (id) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the ~~Company~~ Fund has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the ~~Company~~Fund. The Dealer Manager further agrees (ai) not to deliver any Authorized Sales Materials to any ~~person~~ Marketing Recipient unless it is accompanied or preceded by the Prospectus as amended and supplemented, (bii) not to show or give to any ~~investor or prospective investor~~ Marketing Recipient or reproduce any material or writing that is supplied to it by the ~~Company~~ Fund and marked “"broker-dealer use only” " or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (ciii) not to show or give to any ~~investor or prospective investor~~ Marketing Recipient in a particular jurisdiction any material or writing that is supplied to it by the ~~Company~~ Fund if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ (e) The Dealer Manager will provide the ~~Company~~ Fund with such information relating to the offer and sale of the Shares by it as the ~~Company~~ Fund may from time to time reasonably request or as may be requested to enable the ~~Company~~ Fund to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (f) The Dealer Manager will ~~permit a Dealer~~ pay all expenses incident to ~~participate in~~ the performance of its obligations under this Agreement, including the fees and expenses of its own counsel and accountants, even if the Offering ~~only if such Dealer~~ is ~~a member of FINRA~~not successfully completed.

Appears in 1 contract

Samples: Dealer Manager Agreement (Resource Real Estate Diversified Income Fund)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: ~~4.1.~~ (a) In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, FINRA Rule ~~2440 of the NASD Conduct Rules and~~ 2121, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ (d) The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no ~~commission~~ commission, dealer manager fee or distribution and shareholder servicing fee will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six (6) years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ (e) Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ (f) The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated April 28, 2016, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, a copy of which is attached hereto as Exhibit C and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. (g) The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (h) The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA. (i) The Dealer Manager will pay all expenses incident to the performance of your obligations under this Agreement, including the formation and management of the selling group and the fees and expenses of your own counsel and accountants, even if the Offering is not successfully completed.

Appears in 1 contract

Samples: Dealer Manager Agreement (Resource Apartment REIT III, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees ~~with the Company that~~as follows: ~~4.1. In connection with~~ 6.1 With respect to the Dealer Manager’s participation in distributing and the participation of each Selected Dealer in the offer and sale of ~~Shares (including, without limitation, any resales and transfers of~~ the Offered Shares), the Dealer Manager ~~will comply~~agrees, and each Selected Dealer in its ~~agreements with Dealers~~ selected dealer agreement or registered investment adviser agreement, as applicable (collectively, the “Selected Dealer Agreement”) will ~~require that the Dealers comply~~agree, to comply in all material respects with all applicable requirements ~~and obligations imposed upon any~~ of ~~them by~~ (a) the Securities Act, the Securities Act Regulations, the Exchange Act and the rules and regulations promulgated thereunder and all other federal regulations applicable to the Offering and the roles of the ~~SEC promulgated under both such acts~~respective parties, ~~including the obligation to deliver a copy of the Prospectus as amended or supplemented;~~ (b) all applicable ~~state~~ State securities or blue sky laws and regulations as in effect from time to time, and (c) the rules of FINRA applicable to the Offering in effect from time to time ~~in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, Rule 2440 of the NASD Conduct Rules~~ and ~~FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors,~~ including, without limitation, ~~the provisions of Articles III.C~~ FINRA Rules 2010, 2090, 2111, 2310, 2340, 2420, 3310 and ~~III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state~~ 5141 and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2with all pertinent FINRA Conduct Rules. The Dealer Manager will not ~~offer~~ distribute the ~~Shares, and in its agreements with Dealers will require that the Dealers not offer Shares,~~ Offered Shares for sale by selected dealers in any jurisdiction unless and until ~~(a) the Dealer Manager~~ it has been advised ~~by the Company in writing~~ that the Offered Shares are either registered in accordance with, or exempt from, the securities and other laws applicable thereto. 6.2 The Dealer Manager shall, in accordance with applicable law or as prescribed by any State securities administrator, provide, or require in the Selected Dealer Agreement that the Selected Dealer shall provide, to any prospective investor copies of ~~such jurisdiction~~ the Prospectus and any supplements thereto during the course of the Offering and prior to sale of the Offered Shares. The Company may provide the Dealer Manager with certain Approved Sales Literature to be used by the Selected Dealers (a) for its own educational purposes, (b) in connection with the ~~Dealer Manager and any Dealer offering~~ solicitation of purchasers of the Offered Shares ~~in such jurisdiction have all required licenses and registrations~~ or (c) to ~~offer~~ make subscriptions to purchase the Offered Shares ~~in that jurisdiction. 4.3~~available. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers it shall require ~~the Dealers~~ each Selected Dealer to ~~maintain, for at least six years, a record of the information obtained to determine~~ agree that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the such Selected Dealer ~~Manager may rely on representations from~~ will (i) ~~investment advisers who are~~ not ~~affiliated~~ use any sales materials in connection with ~~a Dealer or~~ the solicitation of purchasers of the Offered Shares except Approved Sales Literature; (ii) ~~banks acting as trustees or fiduciaries. With respect~~ not use any B/D/RIA Use Only Approved Sales Literature with members of the general investing public; and (iii) to the ~~Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability,~~ extent the Company ~~agrees that the Dealer Manager can satisfy its obligations by contractually requiring~~ provides Investor Use Approved Sales Literature, not use such ~~information to be maintained~~ Investor Use Approved Sales Literature unless accompanied or preceded by the ~~investment advisers or banks discussed~~ Prospectus, as then currently in effect, and as may be supplemented in the ~~preceding sentence. 4.5~~future. ~~Except for Authorized Sales Materials~~Selected Dealer will not publish, ~~the Company has not authorized the~~ circulate or otherwise use of any ~~supplemental literature~~ other advertisement or ~~sales~~ solicitation material in connection with the Offering ~~and~~ without the Dealer Manager’s express prior written approval. The use of any other sales material is expressly prohibited. 6.3 The Dealer Manager ~~agrees~~ shall not, and each Selected Dealer shall agree not ~~to use~~ to, give or provide any ~~such material that has not been authorized by~~ information or make any representation other than those contained in the ~~Company~~Prospectus. The Dealer Manager ~~further agrees~~ shall require each Selected Dealer to agree not to (a) ~~not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to~~ show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company ~~and marked “broker-dealer use only” or otherwise~~ bearing a legend denoting that it is not to be used in connection with the sale of the Offered Shares to members of the ~~public and~~ public, including any B/D/RIA Use Only Approved Sales Literature; or (cb) ~~not to~~ show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Offered Shares to members of the public in such jurisdiction. ~~4.6~~6.4 The Dealer Manager shall distribute and shall require each Selected Dealer to agree to solicit purchases of the Offered Shares or make subscriptions to purchase the Offered Shares available only in the jurisdictions in which the Dealer Manager and such Selected Dealer are legally qualified to so act and in which the Dealer Manager and each Selected Dealer have been advised by the Company in writing that such solicitations can be made or subscriptions be made available. 6.5 The Dealer Manager will require each Selected Dealer to agree to comply in all material respects with the subscription procedures and “Plan of Distribution” set forth in the Prospectus. Subscriptions will be submitted by each Selected Dealer only on the form which is included as Appendix A to the Prospectus (the “Subscription Agreement”). The Dealer Manager understands and acknowledges, and each Selected Dealer shall acknowledge, that the Subscription Agreement must be executed and initialed by the subscriber as provided for in the Subscription Agreement. The Dealer Manager acknowledges and agrees that such potential subscriber’s Subscription Agreement shall not be accepted by the Company until at least five business days after the date such potential subscriber received a copy of the Prospectus (which shall be determined by the Company by the date on which such potential subscriber signed the Subscription Agreement). 6.6 The Dealer Manager shall require each Selected Dealer to agree not to offer or sell the Offered Shares in any jurisdiction except to investors who satisfy the investor suitability and minimum investment requirements under the most restrictive of the following: (a) applicable provisions of the Prospectus, (b) the laws of the jurisdiction of which such investor is a resident, and (c) FINRA rules and regulations and FINRA Rules 2310 and 2111, in particular. Specifically, the Dealer Manager agrees to require each Selected Dealer to agree to ensure that, in recommending the purchase or sale of Offered Shares to an investor, each member of, or person associated with, the Selected Dealer, as applicable, shall have reasonable grounds (as required by FINRA Rules 2310(b)(2)(B)(i) and 2111) to believe, on the basis of information obtained from the investor (and thereafter maintained in the manner and for the period provided in this Agreement and such FINRA Rules) concerning his or her age, investment objectives, other investments, financial situation and needs, and any other information known to such member of, or person associated with, the Selected Dealer that (A) the investor is or will be in a financial position appropriate to enable him or her to realize to a significant extent the benefits described in the Prospectus, including the tax benefits to the extent they are a significant aspect of the Company; (B) the investor has a fair market net worth sufficient to sustain the risks inherent in an investment in the Offered Shares in the amount proposed, including complete loss, and lack of liquidity, of such investment; and (C) an investment in the Offered Shares is suitable in type and amount for such investor. The Dealer Manager will ~~provide~~ require each Selected Dealer to agree to ensure that (x) each member of, or person associated with, the ~~Company with such information relating~~ Selected Dealer, will make diligent inquiry as to the ~~offer~~ suitability and appropriateness of an investment in Offered Shares from each proposed investor, (y) retain in its records for a period equal to the longer of (A) six years from the date of the applicable sale of Offered Shares or (B) five years from the end of the Offering Period, and (z) make available to the Company, upon request (and upon the Dealer Manager’s or Selected Dealer’s receipt of an appropriate document subpoena from one of the following, to representatives of the SEC, FINRA and applicable State securities administrators) documents disclosing the basis upon which the determination as to suitability was reached as to each purchaser of Offered Shares pursuant to a subscription solicited by it the applicable Selected Dealer, whether such records relate to accounts which have been closed, accounts which are currently maintained, or accounts hereafter established. The Selected Dealer shall not purchase any Offered Shares for a discretionary account without obtaining the customer’s prior written approval and/or his or her signature on a Subscription Agreement. 6.7 The Dealer Manager will comply and will require Selected Dealer to agree to comply with relevant provisions applicable to securities broker-dealers of Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) (the “PATRIOT Act”), as well as FINRA Rule 3310 setting forth minimum standards for Anti-Money Laundering (“AML”) Programs of broker-dealers. These minimum standards require the Dealer Manager and the Selected Dealer to have implemented a written AML Program reasonably designed to (a) detect traces of suspicious financial transactions, (b) achieve compliance with the Bank Secrecy Act regulations, (c) provide for independent testing, (d) designate an AML Compliance Officer, and (e) provide for ongoing training. Title III of the PATRIOT Act, 31 U.S.C. §§ 5311, et seq., is referred to as the ~~Company~~ International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (the “Money Laundering Abatement Act”). Among other applicable requirements under the Money Laundering Abatement Act, the Dealer Manager agrees to require the Selected Dealer to agree to comply with Section 312 regarding due diligence requirements, Section 313 regarding correspondent account prohibitions, Section 314 regarding financial institution cooperation, Section 319(b) regarding domestic and foreign bank records production, Section 326 regarding customer identification standards (as described in greater detail in Section 6.9 of this Agreement), Section 352 regarding anti-money laundering compliance program components, and Section 356 regarding suspicious activity reporting requirements. 6.8 The Dealer Manager agrees to, and will require the Selected Dealer and any persons associated with the Selected Dealer to agree to (a) abide by and comply with (i) the privacy standards and requirements of the Gxxxx-Xxxxx-Xxxxxx Act of 1999 (the “GLB Act”), (ii) the privacy standards and requirements of any other applicable federal or State law, and (iii) the Dealer Manager’s internal privacy policies and procedures, each as may be amended from time to ~~time reasonably request~~ time; (b) refrain from the use or disclosure of nonpublic personal information (as defined under the GLB Act) of all customers who have opted out of such disclosures except as necessary to service the customers or as ~~may~~ otherwise necessary or required by applicable law; and (c) be ~~requested~~ responsible for determining which customers have opted out of the disclosure of nonpublic personal information by periodically reviewing and, if necessary, retrieving a list of such customers (the “List”) to ~~enable~~ identify customers that have exercised their opt-out rights. In the ~~Company~~ event the Selected Dealer uses or discloses nonpublic personal information of any customer for purposes other than servicing the customer, or as otherwise required by applicable law, the Selected Dealer will agree to ~~prepare such reports of sale as may be required~~ consult the List to ~~be filed under applicable federal~~ determine whether the affected customer has exercised his or ~~state securities laws. 4.7~~her opt-out rights. The Dealer Manager will ~~permit a~~ require the Selected Dealer to ~~participate in~~ agree that it understands it is prohibited from using or disclosing any nonpublic personal information of any customer that is identified on the ~~Offering only if~~ List as having opted out of such ~~Dealer is a member of FINRA~~disclosures.

Appears in 1 contract

Samples: Follow on Dealer Manager Agreement (CION Investment Corp)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the ~~Company~~ Fund that: ~~4.1.~~ (a) In connection with the Dealer Manager’s 's participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will ~~comply, and in its agreements with Dealers will require that the Dealers comply,~~ comply with all requirements and obligations imposed upon ~~any of them~~ it by (ai) the Securities Act, the Exchange Act, the 1940 Act and the rules and regulations of the SEC promulgated under ~~both~~ such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (bii) all applicable state securities laws and regulations as from time to time in effect; (ciii) the applicable rules of FINRA~~, including, but not in any way limited to, Rule 2440 of the NASD Conduct Rules and FINRA Rule 2310 and FINRA Rule 5141~~; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (eiv) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (fv) this Agreement and the ~~Prospectus~~ Prospectus, as either may be amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the ~~Shares, and in its agreements with Dealers will require that the Dealers not offer Shares,~~ Shares in any jurisdiction unless and until (a) the Dealer Manager has been advised by the ~~Company~~ Fund in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and ~~any Dealer offering Shares in such jurisdiction~~ its personnel have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will ~~make, and in its agreements with Dealers will require that Dealers make,~~ make no representations concerning the Offering except as set forth in the ~~Prospectus~~ Prospectus, as amended and ~~supplemented~~ supplemented, and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (id) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the ~~Company~~ Fund has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the ~~Company~~Fund. The Dealer Manager further agrees (ai) except as otherwise permitted under applicable law, not to deliver any Authorized Sales Materials to any ~~person~~ Marketing Recipient unless it is accompanied or preceded by the Prospectus as amended and supplemented, (bii) not to show or give to any ~~investor or prospective investor~~ Marketing Recipient or reproduce any material or writing that is supplied to it by the ~~Company~~ Fund and marked “"broker-dealer use only” " or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (ciii) not to show or give to any ~~investor or prospective investor~~ Marketing Recipient in a particular jurisdiction any material or writing that is supplied to it by the ~~Company~~ Fund if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ (e) The Dealer Manager will provide the ~~Company~~ Fund with such information relating to the offer and sale of the Shares by it as the ~~Company~~ Fund may from time to time reasonably request or as may be requested to enable the ~~Company~~ Fund to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (f) The Dealer Manager will ~~permit a Dealer~~ pay all expenses incident to ~~participate in~~ the performance of its obligations under this Agreement, including the fees and expenses of its own counsel and accountants, even if the Offering ~~only if such Dealer~~ is ~~a member of FINRA~~not successfully completed.

Appears in 1 contract

Samples: Dealer Manager Agreement (Vertical Capital Income Fund)

Covenants of the Dealer Manager. ~~The Dealer Manager covenants and agrees with the Company that: 4.1.~~ 6.1 In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with ~~Dealers~~ Selling Group Members will require that the ~~Dealers~~ Selling Group Members comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, FINRA Rule ~~2440 of the NASD Conduct Rules and~~ 2121, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ 6.2 The Dealer Manager will not offer the Shares, and in its agreements with ~~Dealers~~ Selling Group Members will require that the ~~Dealers~~ Selling Group Members not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any ~~Dealer~~ Selling Group Member offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ 6.3 The Dealer Manager will make, and in its agreements with ~~Dealers~~ Selling Group Members will require that ~~Dealers~~ Selling Group Members make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ 6.4 The Dealer Manager will offer Shares, and in its agreements with ~~Dealers~~ Selling Group Members will require that the ~~Dealers~~ Selling Group Members offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with ~~Dealers~~ Selling Group Members shall require the ~~Dealers~~ Selling Group Members to maintain, for at least six ~~years~~years following the termination of the Offering, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ 6.5 Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ 6.6 The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated [ , 2018], among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 6.7 The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ 6.8 The Dealer Manager shall file all Authorized Sales Materials with FINRA, and shall provide written notice of (i) any comments on such Authorized Sales Materials provided by FINRA, and (ii) confirmation that FINRA has no objection to such Authorized Sales Materials. 6.9 The Dealer Manager will permit a ~~Dealer~~ Selling Group Members to participate in the Offering only if such ~~Dealer~~ Selling Group Members is a member of FINRA.

Appears in 1 contract

Samples: Dealer Manager Agreement (Cottonwood Communities, Inc.)

Covenants of the Dealer Manager. (a) The Dealer Manager ~~covenants and agrees~~ shall comply with the ~~Company that: 4.1. In connection with~~ record keeping requirements of the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Exchange Act, ~~the Exchange Act and the rules and regulations of the SEC promulgated under both such acts,~~ including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not ~~in any way~~ limited to, ~~Rule 2440 of~~ Rules 17a-3 and 17a-4 promulgated under the NASD Conduct Rules and FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Exchange Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will ~~not offer~~ make such documents and records available to (i) the ~~Shares~~Wholesaler, upon reasonable request, and ~~in its agreements with Dealers will require~~ (ii) representatives of the Securities and Exchange Commission (“SEC”), FINRA and applicable state securities administrators upon the receipt of an appropriate document subpoena or other appropriate request for documents from any such agency; provided, however, that ~~the Dealers not offer Shares, in any jurisdiction unless and until (a)~~ if the Dealer Manager ~~has been advised by the Company~~ determines, in ~~writing that the Shares are either registered~~ its sole discretion, not to provide documents in accordance ~~with~~with this section, it may oppose such document subpoena or ~~exempt from~~other request, ~~the securities laws of such jurisdiction and (b)~~ provided that the Dealer Manager ~~and any Dealer offering Shares in~~ shall be responsible for all reasonable direct costs of such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Companyopposition. The Dealer Manager further agrees ~~that~~ to keep such required records with respect to each customer who purchases Offered Shares, the customer’s suitability and the amount of Offered Shares sold, and to retain such records for six years or such period of time as may be required by the SEC, any state securities commission, FINRA or the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that whichever is ~~rejected~~later. The ~~Dealer Manager shall maintain~~Wholesaler, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees agree that the Dealer Manager can satisfy its recordkeeping obligations hereunder by contractually requiring such information to be maintained by the Participating Broker-Dealers, investment ~~advisers~~ advisors or banks ~~discussed in~~ offering the ~~preceding sentence~~Offered Shares. ~~4.5. Except for Authorized Sales Materials,~~ (b) The Dealer Manager shall abide by and comply with: (i) the ~~Company has not authorized~~ privacy standards and requirements of the ~~use~~ Xxxxx-Xxxxx Xxxxxx Act of 1999 (“GLB Act”); (ii) the privacy standards and requirements of any ~~supplemental literature~~ other applicable federal or ~~sales material in connection with the Offering~~ state law; (iii) any reasonable written privacy policies and standards provided to the Dealer Manager ~~agrees not to use any such material that has not been authorized~~ by the Wholesaler and the Company~~. The~~ ; and (d) the Dealer ~~Manager further agrees (a) not~~ Manager’s own internal privacy policies and procedures, each as may be amended from time to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and time. (c) ~~not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by~~ To the ~~Company if such material bears a legend denoting that it is not to be used in connection with~~ extent the ~~sale of Shares to members of~~ Dealer Manager directly sells Offered Shares, the ~~public in such jurisdiction. 4.6. The~~ Dealer Manager will ~~provide the Company with such information relating to~~ only offer and sell Offered Shares in jurisdictions in which qualifications or exemptions for the offer and sale of the Offered Shares ~~by it~~ are in effect as of the relevant date (“Qualified Jurisdictions”). No Offered Shares shall be offered or sold for the account of the Company ~~may~~ in any other states or foreign jurisdictions. (d) The Dealer Manager is familiar with Rule 15c2-8 under the Exchange Act, relating to the distribution of preliminary and final Prospectuses, and confirms that it has complied and will comply therewith. (e) The Dealer Manager will notify the Wholesaler immediately (i) when any amendment to the Registration Statement shall have become effective, (ii) of the issuance by the SEC or any other Federal or state regulatory body of any order suspending the effectiveness of the Registration Statement under the Securities Act or the registration of Offered Shares under the Blue Sky or securities laws of any state or other jurisdiction or any order or decree enjoining the offering or the use of the Prospectus or of the institution, or notice of the intended institution, of any action or proceeding for that purpose, and (iii) when any Prospectus shall have been filed under the Securities Act with the SEC. (f) The Dealer Manager will deliver to the Wholesaler as promptly as practicable from time to time ~~reasonably request or as may be requested to enable~~ during the ~~Company to prepare such reports of sale as may be~~ period when the Prospectus is required to be ~~filed~~ delivered under ~~applicable federal~~ the Securities Act, with reasonable quantities of copies of the Prospectus (as amended or ~~state securities laws~~supplemented), as provided by the Company, for delivery to investors and for the purposes contemplated by the Securities Act or any rules or regulations thereunder. ~~4.7.~~ (g) The Dealer Manager will ~~permit~~ provide a reasonable amount of Authorized Sales Material to the Wholesaler as and when requested by the Wholesaler, subject to receipt of such material by the Dealer ~~to participate in~~ Manager from the ~~Offering only if such Dealer is a member of FINRA~~Company.

Appears in 1 contract

Samples: Equity Purchase Agreement (ARC Properties Operating Partnership, L.P.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the ~~Xxxxx~~Gxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated , 2010, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 1 contract

Samples: Dealer Manager Agreement (KBS Real Estate Investment Trust III, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: ~~4.1.~~ (a) In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, Rule 2440 of the NASD Conduct ~~Rules and~~ Rules, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ (d) The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six (6) years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ (e) Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ (f) The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated December 19, 2013, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, a copy of which is attached hereto as Exhibit C and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. (g) The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (h) The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA. (i) The Dealer Manager will pay all expenses incident to the performance of your obligations under this Agreement, including the formation and management of the selling group and the fees and expenses of your own counsel and accountants, even if the Offering is not successfully completed.

Appears in 1 contract

Samples: Dealer Manager Agreement (Resource Real Estate Opportunity REIT II, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager ~~will provide~~ agrees to be bound by the ~~Company with such information relating to the offer and sale~~ terms of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. 4.7. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.Amended and Restated Escrow Agreement dated March 8, 2010, among UMB Bank,

Appears in 1 contract

Samples: Dealer Manager Agreement (KBS Legacy Partners Apartment REIT, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, Rule 2440 of the NASD Conduct Rules and FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated May 6, 2014, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 1 contract

Samples: Dealer Manager Agreement (KBS Strategic Opportunity REIT II, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as are from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“"NASAA Guidelines”"); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA ~~Patriot~~ PATRIOT Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six ~~years~~years from the date of an investor's subscription, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “"broker-dealer use only” " or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated March 20, 2011, among People's United Bank, as escrow agent, the Dealer Manager and the Company, and the Dealer Manager further agrees that it will not represent or imply that People's United Bank, as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 1 contract

Samples: Dealer Manager Agreement (Plymouth Opportunity REIT Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, Rule 2440 of the NASD Conduct Rules and FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated [ ], 2014, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 1 contract

Samples: Dealer Manager Agreement (KBS Strategic Opportunity REIT II, Inc.)

Covenants of the Dealer Manager. (a) The Dealer Manager ~~covenants and agrees~~ shall comply with the ~~Company that: 4.1. In connection with~~ record keeping requirements of the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Exchange Act, ~~the Exchange Act and the rules and regulations of the SEC promulgated under both such acts,~~ including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not ~~in any way~~ limited to, ~~Rule 2440 of~~ Rules 17a-3 and 17a-4 promulgated under the NASD Conduct Rules and FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Exchange Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will ~~not offer~~ make such documents and records available to (i) the ~~Shares~~Wholesaler, upon reasonable request, and ~~in its agreements with Dealers will require~~ (ii) representatives of the Securities and Exchange Commission (“SEC”), FINRA and applicable state securities administrators upon the receipt of an appropriate document subpoena or other appropriate request for documents from any such agency; provided, however, that ~~the Dealers not offer Shares, in any jurisdiction unless and until (a)~~ if the Dealer Manager ~~has been advised by the Company~~ determines, in ~~writing that the Shares are either registered~~ its sole discretion, not to provide documents in accordance ~~with~~with this section, it may oppose such document subpoena or ~~exempt from~~other request, ~~the securities laws of such jurisdiction and (b)~~ provided that the Dealer Manager ~~and any Dealer offering Shares in~~ shall be responsible for all reasonable direct costs of such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Companyopposition. The Dealer Manager further agrees ~~that~~ to keep such required records with respect to each customer who purchases Offered Shares, the customer’s suitability and the amount of Offered Shares sold, and to retain such records for six years or such period of time as may be required by the SEC, any state securities commission, FINRA or the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that whichever is ~~rejected~~later. The ~~Dealer Manager shall maintain~~Wholesaler, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees agree that the Dealer Manager can satisfy its recordkeeping obligations hereunder by contractually requiring such information to be maintained by the Participating Broker-Dealers, investment ~~advisers~~ advisors or banks ~~discussed in~~ offering the ~~preceding sentence~~Offered Shares. ~~4.5. Except for Authorized Sales Materials,~~ (b) The Dealer Manager shall abide by and comply with: (i) the ~~Company has not authorized~~ privacy standards and requirements of the ~~use~~ Xxxxx-Xxxxx Bliley Act of 1999 (“GLB Act”); (ii) the privacy standards and requirements of any ~~supplemental literature~~ other applicable federal or ~~sales material in connection with the Offering~~ state law; (iii) any reasonable written privacy policies and standards provided to the Dealer Manager ~~agrees not to use any such material that has not been authorized~~ by the Wholesaler and the Company~~. The~~ ; and (d) the Dealer ~~Manager further agrees (a) not~~ Manager’s own internal privacy policies and procedures, each as may be amended from time to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and time. (c) ~~not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by~~ To the ~~Company if such material bears a legend denoting that it is not to be used in connection with~~ extent the ~~sale of Shares to members of~~ Dealer Manager directly sells Offered Shares, the ~~public in such jurisdiction. 4.6. The~~ Dealer Manager will ~~provide the Company with such information relating to~~ only offer and sell Offered Shares in jurisdictions in which qualifications or exemptions for the offer and sale of the Offered Shares ~~by it~~ are in effect as of the relevant date (“Qualified Jurisdictions”). No Offered Shares shall be offered or sold for the account of the Company ~~may~~ in any other states or foreign jurisdictions. (d) The Dealer Manager is familiar with Rule 15c2-8 under the Exchange Act, relating to the distribution of preliminary and final Prospectuses, and confirms that it has complied and will comply therewith. (e) The Dealer Manager will notify the Wholesaler immediately (i) when any amendment to the Registration Statement shall have become effective, (ii) of the issuance by the SEC or any other Federal or state regulatory body of any order suspending the effectiveness of the Registration Statement under the Securities Act or the registration of Offered Shares under the Blue Sky or securities laws of any state or other jurisdiction or any order or decree enjoining the offering or the use of the Prospectus or of the institution, or notice of the intended institution, of any action or proceeding for that purpose, and (iii) when any Prospectus shall have been filed under the Securities Act with the SEC. (f) The Dealer Manager will deliver to the Wholesaler as promptly as practicable from time to time ~~reasonably request or as may be requested to enable~~ during the ~~Company to prepare such reports of sale as may be~~ period when the Prospectus is required to be ~~filed~~ delivered under ~~applicable federal~~ the Securities Act, with reasonable quantities of copies of the Prospectus (as amended or ~~state securities laws~~supplemented), as provided by the Company, for delivery to investors and for the purposes contemplated by the Securities Act or any rules or regulations thereunder. ~~4.7.~~ (g) The Dealer Manager will ~~permit~~ provide a reasonable amount of Authorized Sales Material to the Wholesaler as and when requested by the Wholesaler, subject to receipt of such material by the Dealer ~~to participate in~~ Manager from the ~~Offering only if such Dealer is a member of FINRA~~Company.

Appears in 1 contract

Samples: Equity Purchase Agreement (ARC Properties Operating Partnership, L.P.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated September 17, 2010, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 1 contract

Samples: Dealer Manager Agreement (KBS Real Estate Investment Trust III, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: ~~4.1.~~ (a) In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Xxxxxxxx Securities, Inc. 7 Dealer Manager Agreement Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ (d) The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six (6) years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ (e) Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor Xxxxxxxx Securities, Inc. 8 Dealer Manager Agreement or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ (f) The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated , 2010, among TD Bank, N.A., as escrow agent, the Dealer Manager and the Company, a copy of which is attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that TD Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. (g) The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (h) The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA. (i) The Dealer Manager will pay all expenses incident to the performance of your obligations under this Agreement, including the formation and management of the selling group and the fees and expenses of your own counsel and accountants, even if the Offering is not successfully completed.

Appears in 1 contract

Samples: Dealer Manager Agreement (Resource Real Estate Opportunity REIT, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees ~~with the Company that~~as follows: ~~4.1. In connection with~~ 4.1 With respect to the Dealer Manager’s participation and the participation by each Selected Dealer in the offer and sale of ~~Shares (including, without limitation, any resales and transfers of~~ the Offered Shares), the Dealer Manager ~~will comply~~agrees, and each Selected Dealer in its ~~agreements with Dealers~~ selected dealer agreement or registered investment adviser agreement, as applicable (the “Selected Dealer Agreement”), will ~~require that the Dealers comply~~agree, to comply in all material respects with all applicable requirements ~~and obligations imposed upon any~~ of ~~them by~~ (a) the Securities Act, the Securities Act Regulations, the Exchange Act and the rules and regulations ~~of the SEC~~ promulgated ~~under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b)~~ thereunder and all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, Rule 2440 of the NASD Conduct Rules and FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other ~~state and~~ federal ~~laws and~~ regulations applicable to the Offering, ~~the sale of Shares~~ (b) all applicable State securities or ~~the activities of the Dealer Manager pursuant~~ blue sky laws and regulations in effect from time to ~~this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999~~time, and (c) the ~~laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable~~ rules of FINRA applicable to the ~~SEC~~ Offering in effect from time to time and ~~FINRA~~including, ~~the Bank Secrecy Act~~without limitation, ~~as amended~~FINRA Rules 2010, ~~the USA Patriot Act of 2001~~ 2090, 2111, 2310, 2340, 2420, 3310 and ~~regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2~~5141. The Dealer Manager will not offer the ~~Shares, and in its agreements with Dealers will require that the Dealers not offer Shares,~~ Offered Shares for sale in any jurisdiction unless and until ~~(a) the Dealer Manager~~ it has been advised ~~by the Company in writing~~ that the Offered Shares are either registered in accordance with, or exempt from, the securities and other laws applicable thereto. 4.2 The Dealer Manager shall, in accordance with applicable law or as prescribed by any State securities administrator, provide, or require in the Selected Dealer Agreement that the Selected Dealer shall provide, to any prospective investor copies of ~~such jurisdiction~~ the Prospectus and any supplements thereto during the course of the Offering and prior to sale of the Offered Shares. The Company may provide the Dealer Manager with certain Approved Sales Literature to be used by the Selected Dealers (a) for its own educational purposes, (b) in connection with the ~~Dealer Manager and any Dealer offering~~ solicitation of purchasers of the Offered Shares ~~in such jurisdiction have all required licenses and registrations~~ or (c) to ~~offer~~ make subscriptions to purchase the Offered Shares ~~in that jurisdiction. 4.3~~available. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers it shall require ~~the Dealers~~ each Selected Dealer to ~~maintain, for at least six years, a record of the information obtained to determine~~ agree that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the such Selected Dealer ~~Manager may rely on representations from~~ will (i) ~~investment advisers who are~~ not ~~affiliated~~ use any sales materials in connection with ~~a Dealer or~~ the solicitation of purchasers of the Offered Shares except Approved Sales Literature; (ii) ~~banks acting as trustees or fiduciaries. With respect~~ not use any B/D Use Only Approved Sales Literature with members of the general investing public; (iii) to the ~~Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability,~~ extent the Company ~~agrees that the Dealer Manager can satisfy its obligations by contractually requiring~~ provides Investor Use Approved Sales Literature, not use such ~~information to be maintained~~ Investor Use Approved Sales Literature unless accompanied or preceded by the ~~investment advisers or banks discussed~~ Prospectus, as then currently in effect, and as may be supplemented in the ~~preceding sentence. 4.5. Except for Authorized Sales Materials~~future; and (iv) not publish, ~~the Company has not authorized the~~ circulate or otherwise use of any ~~supplemental literature~~ other advertisement or ~~sales~~ solicitation material in connection with the Offering ~~and~~ without the Dealer Manager’s express prior written approval. The use of any other sales material is expressly prohibited. 4.3 The Dealer Manager ~~agrees~~ shall not, and each Selected Dealer shall agree not ~~to use~~ to, give or provide any ~~such material that has not been authorized by~~ information or make any representation other than those contained in the ~~Company~~Prospectus. The Dealer Manager ~~further agrees~~ shall require each Selected Dealer not to (a) ~~not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to~~ show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company ~~and marked “broker-dealer use only” or otherwise~~ bearing a legend denoting that it is not to be used in connection with the sale of the Offered Shares to members of the ~~public and~~ public, including any B/D Use Only Approved Sales Literature; or (cb) ~~not to~~ show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Offered Shares to members of the public in such jurisdiction. ~~4.6~~4.4 The Dealer Manager shall, and shall require each Selected Dealer to, agree to solicit purchases of the Offered Shares or make subscriptions to purchase the Offered Shares available only in the jurisdictions in which the Dealer Manager and such Selected Dealer are legally qualified to so act and in which the Dealer Manager and each Selected Dealer have been advised by the Company in writing that such solicitations can be made or subscriptions be made available. 4.5 The Dealer Manager will require each Selected Dealer to comply in all material respects with the subscription procedures and “Plan of Distribution” set forth in the Prospectus. Subscriptions will be submitted by each Selected Dealer only on the form which is included as Exhibit C to the Prospectus (the “Subscription Agreement”). The Dealer Manager understands and acknowledges, and each Selected Dealer shall acknowledge, that the Subscription Agreement must be executed and initialed by the subscriber as provided for in the Subscription Agreement. The Dealer Manager acknowledges and agrees that such potential subscriber’s Subscription Agreement shall not be accepted by the Company until at least five business days after the date such potential subscriber received a copy of the Prospectus (which shall be determined by the Company by the date on which such potential subscriber signed the Subscription Agreement). 4.6 The Dealer Manager shall not and shall require each Selected Dealer not to offer or sell the Offered Shares in any jurisdiction except to investors who satisfy the investor suitability and minimum investment requirements under the most restrictive of the following: (a) applicable provisions of the Prospectus, (b) the laws of the jurisdiction of which such investor is a resident, and (c) FINRA rules and regulations and FINRA Rules 2111 and 2310, in particular. Specifically, the Dealer Manager agrees to ensure that, in recommending the purchase or sale of Offered Shares to an investor, each member of, or person associated with, the Dealer Manager or the Selected Dealer, as applicable, shall have reasonable grounds (as required by FINRA Rules 2310(b)(2)(B)(i) and 2111) to believe, on the basis of information obtained from the investor (and thereafter maintained in the manner and for the period provided in this Agreement and such FINRA Rules) concerning his or her age, investment objectives, investment experience, time horizon, liquidity needs, risk tolerance, other investments, financial situation and needs, and any other information known to such member of, or person associated with, the Selected Dealer, after due inquiry that (A) the investor is or will be in a financial position appropriate to enable him or her to realize to a significant extent the benefits described in the Prospectus, including the tax benefits to the extent they are a significant aspect of the Company; (B) the investor has a fair market net worth sufficient to sustain the risks inherent in an investment in the Offered Shares in the amount proposed, including complete loss, and lack of liquidity, of such investment; (C) an investment in the Offered Shares is suitable in type and amount for such investor; and (D) such person has either: (1) a minimum annual gross income of $70,000 and a minimum net worth (exclusive of home, home furnishings and automobiles) of $70,000; or (2) a minimum net worth (determined with the foregoing exclusions) of $250,000 and meets the higher suitability standards, if applicable, imposed by the State in which the investor resides. The Dealer Manager or the Selected Dealer, in each case as applicable, will: (w) require each member of, or person associated with, the Dealer Manager or Selected Dealer to make diligent inquiry as to the suitability and appropriateness of an investment in Offered Shares from each proposed investor, (x) require a representation of the investor that the investor is investing for the investor’s own account or, in lieu of such representation, information indicating that the investor for whose account the investment was made met the suitability standards, (y) retain in its records for a period equal to the longer of (A) six years from the date of the applicable sale of Offered Shares or (B) five years from the end of the Offering Period, and (z) make available to the Company, upon request (and upon the Dealer Manager’s or Selected Dealer’s receipt of an appropriate document subpoena from one of the following, to representatives of the SEC, FINRA and applicable State securities administrators) documents disclosing the basis upon which the determination as to suitability was reached as to each purchaser of Offered Shares pursuant to a subscription solicited by the Dealer Manager or applicable Selected Dealer, whether such records relate to accounts which have been closed, accounts which are currently maintained, or accounts hereafter established. Neither the Dealer Manager nor any Selected Dealer shall purchase any Offered Shares for a discretionary account without obtaining the customer’s prior written approval and his or her signature on a Subscription Agreement. 4.7 The Dealer Manager agrees to comply with relevant provisions applicable to securities broker-dealers of Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001) (the “PATRIOT Act”), as well as FINRA Rule 3310 setting forth minimum standards for Anti-Money Laundering (“AML”) Programs of broker-dealers. These minimum standards require the Dealer Manager to have implemented a written AML Program reasonably designed to (a) detect traces of suspicious financial transactions, (b) achieve compliance with the Bank Secrecy Act regulations, (c) provide for independent testing, (d) designate an AML Compliance Officer, and (e) provide for ongoing training. Title III of the PATRIOT Act, 31 U.S.C. §§ 5311, et seq., is referred to as the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (the “Money Laundering Abatement Act”). Among other applicable requirements under the Money Laundering Abatement Act, the Dealer Manager agrees to comply with Section 312 regarding due diligence requirements, Section 313 regarding correspondent account prohibitions, Section 314 regarding financial institution cooperation, Section 319(b) regarding domestic and foreign bank records production, Section 326 regarding customer identification standards (as described in greater detail in Section 4.9 of this Agreement), Section 352 regarding anti-money laundering compliance program components, and Section 356 regarding suspicious activity reporting requirements. 4.8 The Dealer Manager and any person associated with the Dealer Manager (a) will abide by and comply with (i) the privacy standards and requirements of the Gxxxx-Xxxxx-Xxxxxx Act of 1999 (the “GLB Act”), (ii) the privacy standards and requirements of any other applicable federal or State law, and (iii) the Dealer Manager’s internal privacy policies and procedures, each as may be amended from time to time; (b) will refrain from the use or disclosure of nonpublic personal information (as defined under the GLB Act) of all customers who have opted out of such disclosures, except as necessary to service the customers or as otherwise necessary or required by applicable law; and (c) will be responsible for determining which customers have opted out of the disclosure of nonpublic personal information by periodically reviewing and, if necessary, retrieving a list of such customers (the “List”) to identify customers that have exercised their opt-out rights. In the event the Dealer Manager uses or discloses nonpublic personal information of any customer for purposes other than servicing the customer, or as otherwise required by applicable law, the Dealer Manager will consult the List to determine whether the affected customer has exercised his or her opt-out rights. The Dealer Manager understands that it is prohibited from using or disclosing any nonpublic personal information of any customer that is identified on the List as having opted out of such disclosures. 4.9 Pursuant to Section 326 of the PATRIOT Act, the Dealer Manager has implemented reasonable Customer Identification Procedures (“CIP”) to (a) verify and identify customers who open new accounts, (b) maintain records of the information retrieved from the customer, including the name, address and other identifying information, and (c) consult lists of known or suspected terrorists or terrorist organizations to determine if the potential investor appears on any such list and will provide the Company with annual re-certification of such ~~information relating~~ implementation to the ~~offer and sale of~~ extent reasonably requested by the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities lawsCompany. ~~4.7~~4.10 Neither the Dealer Manager nor any person associated with the Dealer Manager solicited customers’ orders for the Offered Shares prior to the Effective Date. The Dealer Manager agrees to take all reasonable steps to make available a copy of the final Prospectus relating to the Offered Shares to each person associated with the Dealer Manager who is expected, after the Effective Date, to solicit customer orders for the Offered Shares prior to the making of any such solicitation by such associated persons. The Dealer Manager agrees to take reasonable steps to furnish each Selected Dealer with sufficient copies, as requested by them, of the final Prospectus to enable them to comply with paragraphs (b), (c), (d) and (e) of Rule 15c2-8 of the Exchange Act, and the prospectus delivery requirements of Section 5(b)(1) and (2) of the Securities Act. Neither the Dealer Manager nor the Selected Dealer nor any person associated with the Dealer Manager or the Selected Dealer will ~~permit a~~ furnish Prospectuses to any person in any State (a) listed as not cleared on the “Blue-Sky Survey” by counsel to the Company or the Dealer Manager or (b) in which the Dealer Manager or Selected Dealer or any person associated with the Dealer Manager or Selected Dealer who solicits offers to ~~participate in~~ buy or offers to sell the ~~Offering only if such~~ Offered Shares, or make subscriptions to purchase the Offered Shares available, is not currently registered; provided, however, that this provision is not to be construed to relieve the Dealer ~~is a member~~ Manager or each Selected Dealer from complying with the requirements of ~~FINRA.~~Section 5(b)(1) and (2)

Appears in 1 contract

Samples: Dealer Manager Agreement (ICON ECI Fund Sixteen)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s 's participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s 's obligation to maintain records of an investor’s 's financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Second Amended and Restated Escrow Agreement dated October 5, 2009, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 1 contract

Samples: Dealer Manager Agreement (KBS Strategic Opportunity REIT, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the ~~Company~~ Fund that: ~~4.1.~~ (a) In connection with the Dealer Manager’s 's participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will ~~comply, and in its agreements with Dealers will require that the Dealers comply,~~ comply with all requirements and obligations imposed upon ~~any of them~~ it by (ai) the Securities Act, the Exchange Act, the 1940 Act and the rules and regulations of the SEC promulgated under ~~both~~ such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (bii) all applicable state securities laws and regulations as from time to time in effect; (ciii) the applicable rules of FINRA~~, including, but not in any way limited to, Rule 2440 of the NASD Conduct Rules and FINRA Rule 2310 and FINRA Rule 5141~~; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (eiv) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (fv) this Agreement and the ~~Prospectus~~ Prospectus, as either may be amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the ~~Shares, and in its agreements with Dealers will require that the Dealers not offer Shares,~~ Shares in any jurisdiction unless and until (a) the Dealer Manager has been advised by the ~~Company~~ Fund in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and ~~any Dealer offering Shares in such jurisdiction~~ its personnel have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will ~~make, and in its agreements with Dealers will require that Dealers make,~~ make no representations concerning the Offering except as set forth in the ~~Prospectus~~ Prospectus, as amended and ~~supplemented~~ supplemented, and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. 4.7. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 1 contract

Samples: Dealer Manager Agreement (Predex)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: ~~4.1.~~ (a) In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, FINRA Rule ~~2440 of the NASD Conduct Rules and~~ 2121, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ (d) The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no ~~commission~~ commission, dealer manager fee or distribution and shareholder servicing fee will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. Resource Securities, Inc. 10 Amended and Restated Dealer Manager Agreement The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six (6) years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ (e) Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ (f) The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated April 28, 2016, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, a copy of which is attached hereto as Exhibit C and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. (g) The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (h) The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA. (i) The Dealer Manager will pay all expenses incident to the performance of your obligations under this Agreement, including the formation and management of the selling group and the fees and expenses of your own counsel and accountants, even if the Offering is not successfully completed. Resource Securities, Inc. 11 Amended and Restated Dealer Manager Agreement

Appears in 1 contract

Samples: Dealer Manager Agreement (Resource Apartment REIT III, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s 's participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s 's obligation to maintain records of an investor’s 's financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated September 17, 2010, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 1 contract

Samples: Dealer Manager Agreement (KBS Real Estate Investment Trust III, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: ~~4.1.~~ (a) In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, Rule 2440 of the NASD Conduct ~~Rules and~~ Rules, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ (d) The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six (6) years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ (e) Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ (f) The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated , among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, a copy of which is attached hereto as Exhibit C and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. (g) The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (h) The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA. (i) The Dealer Manager will pay all expenses incident to the performance of your obligations under this Agreement, including the formation and management of the selling group and the fees and expenses of your own counsel and accountants, even if the Offering is not successfully completed.

Appears in 1 contract

Samples: Dealer Manager Agreement (Resource Real Estate Opportunity REIT II, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated , 2010, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 1 contract

Samples: Dealer Manager Agreement (KBS Real Estate Investment Trust III, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: ~~4.1.~~ (a) In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. Cxxxxxxx Securities, Inc. Dealer Manager Agreement EAST\43209550.1 8/12/10 (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the ~~Xxxxx~~Gxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ (d) The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six (6) years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ (e) Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or Cxxxxxxx Securities, Inc. Dealer Manager Agreement EAST\43209550.1 8/12/10 prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ (f) The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated __________ __, 2010, among TD Bank, N.A., as escrow agent, the Dealer Manager and the Company, a copy of which is attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that TD Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. (g) The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (h) The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA. (i) The Dealer Manager will pay all expenses incident to the performance of your obligations under this Agreement, including the formation and management of the selling group and the fees and expenses of your own counsel and accountants, even if the Offering is not successfully completed.

Appears in 1 contract

Samples: Dealer Manager Agreement (Resource Real Estate Opportunity REIT, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company and the Sponsor that: ~~4.1.~~ (a) In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, FINRA Rule ~~2440 of the NASD Conduct Rules and~~ 2121, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ (d) The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no ~~commission~~ commission, dealer manager fee or distribution and shareholder servicing fee will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. Resource Securities, Inc. 12 Dealer Manager Agreement The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six (6) years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ (e) Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ (f) The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated [ ], 201[ ], among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, a copy of which is attached hereto as Exhibit C and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. (g) The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (h) The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA. (i) The Dealer Manager will pay all expenses incident to the performance of your obligations under this Agreement, including the formation and management of the selling group and the fees and expenses of your own counsel and accountants, even if the Offering is not successfully completed. Resource Securities, Inc. 13 Dealer Manager Agreement

Appears in 1 contract

Samples: Dealer Manager Agreement (Resource Apartment REIT III, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as are from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA ~~Patriot~~ PATRIOT Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six ~~years~~years from the date of an investor’s subscription, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated _____________ ____, 2011, among People’s United Bank, as escrow agent, the Dealer Manager and the Company, and the Dealer Manager further agrees that it will ~~provide~~ not represent or imply that People’s United Bank, as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with ~~such information relating to~~ the offer ~~and~~ or sale of the Shares other than by acknowledgment that it has agreed to serve as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities lawsescrow agent. ~~4.7. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.~~

Appears in 1 contract

Samples: Dealer Manager Agreement (Plymouth Opportunity REIT Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: 4.1. In connection with the Dealer Manager’s 's participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, ~~Rule 2440~~ Rules 2440, 2730, 2740 and 2750 of the NASD Conduct Rules and FINRA Rule ~~2310 and FINRA Rule 5141~~2310; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. 4.2. The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. 4.3. The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. 4.4. The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions~~, including initial enrollments and increased participations in the DRP~~). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s 's obligation to maintain records of an investor’s 's financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. 4.5. Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. 4.6. The Dealer Manager agrees to be bound by the terms of the Amended and Restated Escrow Agreement dated March 8, 2010, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, copies of which are attached hereto as Exhibit B and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. 4.7. The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7~~4.8. The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA.

Appears in 1 contract

Samples: Dealer Manager Agreement (KBS Legacy Partners Apartment REIT, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: ~~4.1.~~ (a) In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, FINRA Rule ~~2440 of the NASD Conduct Rules and~~ 2121, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ (d) The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no ~~commission~~ commission, dealer manager fee or distribution and shareholder servicing fee will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six (6) years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Resource Securities, Inc. Dealer Manager Agreement 10 Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ (e) Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ (f) The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated [ ], 2016, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, a copy of which is attached hereto as Exhibit C and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. (g) The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (h) The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA. (i) The Dealer Manager will pay all expenses incident to the performance of your obligations under this Agreement, including the formation and management of the selling group and the fees and expenses of your own counsel and accountants, even if the Offering is not successfully completed.

Appears in 1 contract

Samples: Dealer Manager Agreement (Resource Apartment REIT III, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: ~~4.1.~~ (a) In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Resource Securities, Inc. Dealer Manager Agreement 7 Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, Rule 2440 of the NASD Conduct ~~Rules and~~ Rules, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ (d) The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six (6) years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence.. Resource Securities, Inc. Dealer Manager Agreement 8 ~~4.5.~~ (e) Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ (f) The Dealer Manager agrees to be bound by the terms of the Escrow Agreement dated , among TD Bank, N.A., as escrow agent, the Dealer Manager and the Company, a copy of which is attached hereto as Exhibit C and the Dealer Manager further agrees that it will not represent or imply that TD Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. (g) The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (h) The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA. (i) The Dealer Manager will pay all expenses incident to the performance of your obligations under this Agreement, including the formation and management of the selling group and the fees and expenses of your own counsel and accountants, even if the Offering is not successfully completed.

Appears in 1 contract

Samples: Dealer Manager Agreement (Resource Real Estate Opportunity REIT II, Inc.)

Covenants of the Dealer Manager. The Dealer Manager covenants and agrees with the Company that: ~~4.1.~~ (a) In connection with the Dealer Manager’s participation in the offer and sale of Shares (including, without limitation, any resales and transfers of Shares), the Dealer Manager will comply, and in its agreements with Dealers will require that the Dealers comply, with all requirements and obligations imposed upon any of them by (a) the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated under both such acts, including the obligation to deliver a copy of the Prospectus as amended or supplemented; (b) all applicable state securities laws and regulations as from time to time in effect; (c) the applicable rules of FINRA, including, but not in any way limited to, Rule 2440 of the NASD Conduct ~~Rules and~~ Rules, FINRA Rule 2310 and FINRA Rule 5141; (d) all applicable rules and regulations relating to the suitability of the investors, including, without limitation, the provisions of Articles III.C and III.E of the Statement of Policy regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. (“NASAA Guidelines”); (e) any other state and federal laws and regulations applicable to the Offering, the sale of Shares or the activities of the Dealer Manager pursuant to this Agreement, including without limitation the privacy standards and requirements of state and federal laws, including the Xxxxx-Xxxxx-Xxxxxx Act of 1999, and the laws governing money laundering abatement and anti-terrorist financing efforts, including the applicable rules of the SEC and FINRA, the Bank Secrecy Act, as amended, the USA Patriot Act of 2001 and regulations administered by the Office of Foreign Asset Control at the Department of the Treasury; and (f) this Agreement and the Prospectus as amended and supplemented. ~~4.2.~~ (b) The Dealer Manager will not offer the Shares, and in its agreements with Dealers will require that the Dealers not offer Shares, in any jurisdiction unless and until (a) the Dealer Manager has been advised by the Company in writing that the Shares are either registered in accordance with, or exempt from, the securities laws of such jurisdiction and (b) the Dealer Manager and any Dealer offering Shares in such jurisdiction have all required licenses and registrations to offer Shares in that jurisdiction. ~~4.3.~~ (c) The Dealer Manager will make, and in its agreements with Dealers will require that Dealers make, no representations concerning the Offering except as set forth in the Prospectus as amended and supplemented and in the Authorized Sales Materials. ~~4.4.~~ (d) The Dealer Manager will offer Shares, and in its agreements with Dealers will require that the Dealers offer Shares, only to persons who meet the financial qualification and suitability standards set forth in the Prospectus as amended and supplemented or in any suitability letter or memorandum sent to the Dealer Manager by the Company. The Dealer Manager further agrees that the Company, in its sole and absolute discretion, may accept or reject any subscription, in whole or in part, for any reason whatsoever and no commission will be paid to the Dealer Manager with respect to the portion of any subscription that is rejected. The Dealer Manager shall maintain, or in its agreements with Dealers shall require the Dealers to maintain, for at least six (6) years, a record of the information obtained to determine that an investor meets the financial qualification and suitability standards imposed on the offer and sale of the Shares (both at the time of the initial subscription and at the time of any additional subscriptions, including initial enrollments and increased participations in the DRP). In making these determinations as to financial qualification and suitability, the Dealer Manager may rely on representations from (i) investment advisers who are not affiliated with a Dealer or (ii) banks acting as trustees or fiduciaries. With respect to the Dealer Manager’s obligation to maintain records of an investor’s financial qualification and suitability, the Company agrees that the Dealer Manager can satisfy its obligations by contractually requiring such information to be maintained by the investment advisers or banks discussed in the preceding sentence. ~~4.5.~~ (e) Except for Authorized Sales Materials, the Company has not authorized the use of any supplemental literature or sales material in connection with the Offering and the Dealer Manager agrees not to use any such material that has not been authorized by the Company. The Dealer Manager further agrees (a) not to deliver any Authorized Sales Materials to any person unless it is accompanied or preceded by the Prospectus as amended and supplemented, (b) not to show or give to any investor or prospective investor or reproduce any material or writing that is supplied to it by the Company and marked “broker-dealer use only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public and (c) not to show or give to any investor or prospective investor in a particular jurisdiction any material or writing that is supplied to it by the Company if such material bears a legend denoting that it is not to be used in connection with the sale of Shares to members of the public in such jurisdiction. ~~4.6.~~ (f) The Dealer Manager agrees to be bound by the terms of the Amended and Restated Escrow Agreement dated January 14, 2014, among UMB Bank, N.A., as escrow agent, the Dealer Manager and the Company, a copy of which is attached hereto as Exhibit C and the Dealer Manager further agrees that it will not represent or imply that UMB Bank, N.A., as the escrow agent identified in the Prospectus, has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of the Shares or of the Company, nor will the Dealer Manager use the name of said escrow agent in any manner whatsoever in connection with the offer or sale of the Shares other than by acknowledgment that it has agreed to serve as escrow agent. (g) The Dealer Manager will provide the Company with such information relating to the offer and sale of the Shares by it as the Company may from time to time reasonably request or as may be requested to enable the Company to prepare such reports of sale as may be required to be filed under applicable federal or state securities laws. ~~4.7.~~ (h) The Dealer Manager will permit a Dealer to participate in the Offering only if such Dealer is a member of FINRA. (i) The Dealer Manager will pay all expenses incident to the performance of your obligations under this Agreement, including the formation and management of the selling group and the fees and expenses of your own counsel and accountants, even if the Offering is not successfully completed.

Appears in 1 contract

Samples: Dealer Manager Agreement (Resource Real Estate Opportunity REIT II, Inc.)

Common use of Covenants of the Dealer Manager Clause in Contracts