AMENDMENT NO. 1 TO DEALER MANAGER AGREEMENT
Exhibit 1.2
AMENDMENT NO. 1 TO DEALER MANAGER AGREEMENT
AND PARTICIPATING DEALER AGREEMENT
This Amendment No. 1 to Dealer Manager Agreement and Participating Dealer Agreement (this “Amendment”) is made and entered into as of this 25th day of November, 2014 by and among Xxxxxxx Capital Essential Asset REIT II, Inc., a Maryland corporation (the “Company”) and Xxxxxxx Capital Securities, Inc., a California corporation (the “Dealer Manager”).
RECITALS
WHEREAS, the Company previously filed a Registration Statement on Form S-11 (File No. 333-194280) to register for offer and sale up to $2.0 billion in shares of its common stock (the “Shares”), consisting of up to $1.0 billion in shares of Class A common stock and up to $1.0 billion in shares of Class T common stock (excluding shares of its common stock to be offered and sold pursuant to the Company’s distribution reinvestment plan), at an initial purchase price of $10.00 per share for shares of Class A common stock and $9.4241 per share for shares of Class T common stock (the “Offering”), which Offering was declared effective by the SEC on July 31, 2014;
WHEREAS, in connection with the Offering, the Company and the Dealer Manager have entered into a Dealer Manager Agreement, dated June 20, 2014 (the “Dealer Manager Agreement”), and the Dealer Manager has subsequently entered into Participating Dealer Agreements, dated various dates, with participating dealers;
WHEREAS, the Company reached the minimum offering amount on September 23, 2014 and wishes to remove references to the minimum offering in the Dealer Manager Agreement and the Participating Dealer Agreement; and
WHEREAS, the Company has determined that it no longer will sell shares of Class T common stock in the Offering, and the Company and the Dealer Manager are entering into this Amendment to reflect the reallocation of Class T shares in the Offering such that the Offering now consists of up to $2.0 billion in shares of Class A common stock (excluding shares of common stock to be offered and sold pursuant to the Company’s distribution reinvestment plan).
NOW THEREFORE, the Company and the Dealer Manager hereby modify and amend the Dealer Manager Agreement and agree as follows:
1. | Defined Terms. Capitalized terms used herein and not defined herein shall have the meanings set forth in the Dealer Manager Agreement. |
2. | Amendments to Dealer Manager Agreement to remove references to the Minimum Offering and to Class T Shares. |
The introductory paragraph is hereby removed and replaced with the following:
“Xxxxxxx Capital Essential Asset REIT II, Inc., a Maryland corporation (the “Company”), is registering for public sale a maximum of up to $2.2 billion in shares (the “Shares”) of its common stock, $0.001 par value per share (the “Offering”), to be issued and sold ($2 billion in shares to be offered to the public, consisting of Class A shares at a purchase price of $10.00 per share, and $200 million in shares to be offered pursuant to the Company’s distribution reinvestment plan, consisting of Class A shares at a purchase price of $9.50 per share). The minimum purchase by any one person shall be $2,500 in Shares except as otherwise indicated in the Prospectus or in any letter or memorandum from the Company to Xxxxxxx Capital Securities, Inc. (the “Dealer Manager”). It is anticipated that the Dealer Manager will enter into Participating Dealer Agreements in the form attached to this Dealer Manager Agreement with other broker-dealers participating in the Offering (each dealer being referred to herein as a “Dealer” and said dealers being collectively referred to herein as the “Dealers”). The Company shall have the right to approve any material modifications or addendums to the form of the Participating Dealer Agreement. Terms not defined herein shall have the same meaning as in the Prospectus. In connection therewith, the Company hereby agrees with the Dealer Manager, as follows:”
Section 3.3 is hereby removed and replaced with the following:
“3.3 Except as otherwise provided in the “Plan of Distribution” section of the Prospectus, as compensation for the services rendered by the Dealer Manager, the Company agrees that it will pay to the Dealer Manager sales commissions in the amount of 7.0% of the gross proceeds of the Class A shares sold, plus a dealer manager fee in the amount of 3.0% of the gross proceeds of the Shares sold to the public. No selling commissions or dealer manager fee shall be paid with respect to Shares sold pursuant to the Company’s distribution reinvestment plan. In no event shall the total aggregate underwriting compensation payable to the Dealer Manager and any Dealers participating in the Offering, including, but not limited to, selling commissions and the dealer manager fee (which includes expense reimbursements and non-cash compensation), exceed 10.0% of gross offering proceeds in the aggregate. The Company will not be liable or responsible to any Dealer for direct payment of commissions to any Dealer, it being the sole and exclusive responsibility of the Dealer Manager for payment of commissions to Dealers. Notwithstanding the above, at the discretion of the Company, the Company may act as agent of the Dealer Manager by making direct payment of commissions to Dealers on behalf of the Dealer Manager without incurring any liability.”
Section 12 is hereby amended to remove any references to the Minimum Offering.
3. | Amendments to Participating Dealer Agreement to remove references to the Minimum Offering and to Class T Shares. |
The introductory paragraph is hereby removed and replaced with the following:
“Xxxxxxx Capital Securities, Inc., as the dealer manager (“Dealer Manager”) for Xxxxxxx Capital Essential Asset REIT II, Inc. (the “Company”), a Maryland corporation, invites you (the “Dealer”) to participate in the distribution of shares of common stock (“Shares”) of the Company, consisting of Class A shares, subject to the following terms:”
Section III is hereby removed and replaced with the following:
“Except as may be otherwise provided for in the “Plan of Distribution” section of the Prospectus, Shares shall be offered to the public at the offering price of $10.00 per Class A Share and Shares shall be offered pursuant to the Company’s distribution reinvestment plan at $9.50 per Class A Share. Except as otherwise indicated in the Prospectus or in any letter or memorandum sent to the Dealer by the Company or Dealer Manager, a minimum initial purchase of $2,500 in Shares is required. The Shares are nonassessable.”
The first sentence of Section II is hereby removed and replaced with the following:
“Those persons who purchase Shares will be instructed by the Dealer to make their checks payable to Xxxxxxx Capital Essential Asset REIT II, Inc.”
The first paragraph of Section V is hereby removed and replaced with the following:
“Except for volume discounts described in the “Plan of Distribution” section of the Prospectus, which volume discounts shall be the responsibility of the Dealer to provide to investors who qualify, and except as otherwise provided in the “Plan of Distribution” section of the Prospectus, the Dealer’s sales commission applicable to the Shares sold by Dealer which it is authorized to sell hereunder is 7.0% of the gross proceeds of the Class A Shares sold by it and accepted and confirmed by the Company. No sales commissions shall be paid with respect to Shares issued and sold pursuant to the Company’s distribution reinvestment plan. For these purposes, shares shall be deemed to be “sold” if and only if a transaction has closed with a subscriber for Shares pursuant to all applicable offering and subscription documents, the Company has accepted the subscription agreement of such subscriber, and such Shares have been fully paid for. The Dealer affirms that the Dealer Manager’s liability for commissions
payable is limited solely to the proceeds of commissions receivable from the Company, and the Dealer hereby waives any and all rights to receive payment of commissions due until such time as the Dealer Manager is in receipt of the commission from the Company. In addition, as set forth in the Prospectus, the Dealer Manager may, in its sole discretion, reallow a portion of its dealer manager fee to Dealers participating in the offering of Shares as marketing fees, reimbursement of costs and expenses of attending educational conferences or to defray other distribution-related expenses.”
4. | Amendment. This Amendment may not be amended or modified except in writing signed by all parties. |
5. | Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of California. |
6. | Counterparts. This Amendment may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute a single instrument. |
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date and year first above written.
COMPANY: | |
XXXXXXX CAPITAL ESSENTIAL ASSET REIT II, INC. | |
By: | /s/ Xxxxx X. Xxxxxxx |
Name: | Xxxxx X. Xxxxxxx |
Title: | Chief Executive Officer |
DEALER MANAGER: | |
XXXXXXX CAPITAL SECURITIES, INC. | |
By: | /s/ Xxxxxxx X. Xxxxxxxx |
Name: | Xxxxxxx X. Xxxxxxxx |
Title: | President of Capital Markets |
