Phillips Edison – ARC Shopping Center REIT Inc. UP TO 180,000,000 SHARES OF COMMON STOCK AMENDED AND RESTATED EXCLUSIVE DEALER MANAGER AGREEMENT April 9, 2010
Exhibit 1.1
Xxxxxxxx Xxxxxx – ARC Shopping Center REIT Inc.
UP TO 180,000,000 SHARES OF COMMON STOCK
AMENDED AND RESTATED EXCLUSIVE DEALER MANAGER AGREEMENT
April 9, 2010
Realty Capital Securities, LLC
Three Xxxxxx Place, Suite 3300
Xxxxxx, Xxxxxxxxxxxxx 00000
Ladies and Gentlemen:
Xxxxxxxx Xxxxxx – ARC Shopping Center REIT Inc. (the “Company”) is a Maryland corporation that intends to qualify to be taxed as a real estate investment trust (a “REIT”) for federal income tax purposes beginning with the taxable year ending December 31, 2010, or the first year during which the Company begins material operations. The Company proposes to offer (a) up to 150,000,000 shares of common stock, $.01 par value per share (the “Shares”), for a purchase price of $10.00 per Share, with a minimum initial investment of $2,500, in the primary offering (the “Primary Offering”), and (b) up to 30,000,000 Shares for a purchase price of $9.50 per Share for issuance through the Company’s distribution reinvestment program (the “DRP” and together with the Primary Offering, the “Offering”) (subject to the right of the Company to reallocate such Shares between the Primary Offering and the DRP), all upon the other terms and subject to the conditions set forth in the Prospectus (as defined in Section 1(a)).
The Company will be managed by American Realty Capital II Advisors, LLC (the “Advisor”) pursuant to the advisory agreement to be entered into between the Company and the Advisor (the “Advisory Agreement”) substantially in the form included as an exhibit to the Registration Statement (as defined in Section 1(a)). The Advisor will enter into a sub-advisory agreement (the “Sub-Advisory Agreement”) with Xxxxxxxx Xxxxxx & Company SubAdvisor LLC (the “Sub-advisor”) substantially in the form included as an exhibit to the Registration Statement.
The parties hereto entered into an Exclusive Dealer Agreement on January 11, 2010 (the “Original Agreement”) and the parties have agreed to make certain amendments and desire to amend and restate the Original Agreement. In consideration of the foregoing and of the mutual covenants and agreements contained herein, intending to be legally bound, the parties agree to the terms and conditions set forth in this Amended and Restated Exclusive Dealer Agreement (the “Agreement”).
Upon the terms and subject to the conditions contained in this Agreement, the Company hereby appoints Realty Capital Securities, LLC, a Delaware limited liability company (the “Dealer Manager”), to act as the exclusive dealer manager for the Offering, and the Dealer Manager desires to accept such engagement.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SUB-ADVISOR. The Company and the Sub-advisor hereby represent, warrant and agree as follows:
(c) COMPLIANCE WITH THE SECURITIES ACT, ETC. During the term of this Agreement:
2
(i) on (A) each applicable Effective Date, (B) the date of the preliminary Prospectus, (C) the date of the Prospectus and (D) the date any supplement to the Prospectus is filed with the Commission, the Registration Statement, the Prospectus and any amendments or supplements thereto, as applicable, have complied, and will comply, in all material respects with the Securities Act, the Securities Act Rules and Regulations, the Exchange Act and the Exchange Act Rules and Regulations; and
(ii) the Registration Statement does not, and any amendment thereto will not, in each case as of the applicable Effective Date, include any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus does not, and any amendment or supplement thereto will not, as of the applicable filing date, include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading; provided, however, that the foregoing provisions of this Section 1(c) will not extend to any statements contained in, incorporated by reference in or omitted from the Registration Statement, the Prospectus or any amendment or supplement thereto that are based upon written information furnished to the Company by the Dealer Manager expressly for use therein.
3
The execution and delivery of this Agreement and the performance of this Agreement, the consummation of the transactions contemplated herein and the fulfillment of the terms hereof, do not and will not (i) conflict with, or result in a breach of any of the terms and provisions of, or constitute a default under: (1) the Company’s or any of its subsidiaries’ declaration of trust, charter, by-laws, or other organizational documents, as the case may be, or (2) any indenture, mortgage, deed of trust, voting trust agreement, note, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or any of their properties is bound except, for purposes of this clause (2) only, for such conflicts, breaches or defaults that do not result in and could not reasonably be expected to result in, individually or in the aggregate, a Company MAE (as defined below in this Section 1(f)); or (ii) result in and could not reasonably be expected to result in, individually or in the aggregate, in any material respect any conflict with, breach of, or default under, any statute, rule or regulation or order of any court or other governmental agency or body having jurisdiction over the Company, any of its subsidiaries or any of their properties. No consent, approval, authorization or order of any court or other governmental agency or body has been or is required for the performance of this Agreement or for the consummation by the Company of any of the transactions contemplated hereby (except as have been obtained under the Securities Act, the Exchange Act, from the Financial Industry Regulatory Authority (the “FINRA”) or as may be required under state securities or applicable blue sky laws in connection with the offer and sale of the Shares or under the laws of states in which the Company may own real properties in connection with its qualification to transact business in such states or as may be required by subsequent events which may occur). Neither the Company nor any of its subsidiaries is in violation of its declaration of trust, charter, by-laws or other organizational documents, as the case may be.
As used in this Agreement, “Company MAE” means any event, circumstance, occurrence, fact, condition, change or effect, individually or in the aggregate, that is, or could reasonably be expected to be, materially adverse to (A) the condition, financial or otherwise, earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, or (B) the ability of the Company to perform its obligations under this Agreement or the validity or enforceability of this Agreement or the Shares.
4
5
provided for the payment of all such material taxes indicated by such tax returns and all material assessments received by the Company to the extent that such taxes or assessments have become due, except as may be described in the Prospectus.
The Company and its subsidiaries each maintains a system of internal accounting and other controls sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles as applied in the United States and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Registration Statement, since the end of the Company’s most recent audited fiscal year, there has been (A) no material weakness in the Company’s internal control over financial reporting (whether or not remediated), and (B) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
6
(q) MATERIAL ADVERSE CHANGE. Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as may otherwise be stated therein or contemplated thereby, there has not occurred a Company MAE, whether or not arising in the ordinary course of business.
(s) SUB-ADVISOR; SUB-ADVISORY AGREEMENT.
(i) The Sub-advisor is a limited partnership duly formed and validly existing under the laws of the State of Delaware, with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
(ii) Each of this Agreement and the Sub-advisory Agreement is duly and validly authorized, executed and delivered by or on behalf of the Sub-advisor and constitutes a valid and binding agreement of the Sub-advisor enforceable in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws of the United States, any state or any political subdivision thereof which affect creditors’ rights generally or by equitable principles relating to the availability of remedies or except to the extent that the enforceability of the indemnity and contribution provisions contained in this Agreement may be limited under applicable securities laws).
(iii) The execution and delivery of each of this Agreement and the Sub-advisory Agreement and the performance thereunder by the Sub-advisor do not and will not (i) conflict with, or result in a breach of any of the terms and provisions of, or constitute a default under: (1) the Sub-advisor’s or any of its subsidiaries’ charter or by-laws, or other organizational documents, or (2) any indenture, mortgage, deed of trust, voting trust agreement, note, lease or other agreement or instrument to which the Sub-advisor or any of its subsidiaries is a party or by which the Sub-advisor or any of its subsidiaries or any of their properties is bound except, for purposes of this clause (2) only, for such conflicts, breaches or defaults that could not reasonably be expected to have or result in, individually or in the aggregate, (A) a material adverse effect on the condition, financial or otherwise, earnings, business affairs or business prospects of the Sub-advisor, or (B) a Company MAE; or (ii) result in and could not reasonably be expected to result in, individually or in the aggregate, in any material respect any conflict with, breach of, or default under, any statute, rule or regulation or order of any court or other governmental agency or body having jurisdiction over the Sub-advisor or any of its properties.
7
No consent, approval, authorization or order of any court or other governmental agency or body has been or is required for the performance of the Sub-advisory Agreement by the Sub-advisor. The Sub-advisor is not in violation of its agreement of limited partnership or other organizational documents.
(iv) There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Sub-advisor, threatened against or affecting the Sub-advisor, except as may be described in the Prospectus or that would not result in or have, individually or in the aggregate, a Company MAE or a material adverse effect on the condition, financial or otherwise, earnings, business affairs or business prospects of the Sub-advisor.
(v) The Sub-advisor possesses such certificates, authorities or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it, other than those the failure to possess or own would not have or result in, individually or in the aggregate, (A) a material adverse effect on the condition, financial or otherwise, earnings, business affairs or business prospects of the Sub-advisor, (B) a Company MAE, or (C) a material adverse effect on the performance of the services under the Sub-advisory Agreement by the Sub-advisor, and the Sub-advisor has received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit.
8
2. REPRESENTATIONS AND WARRANTIES OF THE DEALER MANAGER. The Dealer Manager represents, warrants and agrees to the Company during the term of this Agreement that:
9
or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
3. OFFERING AND SALE OF THE SHARES. Upon the terms and subject to the conditions set forth in this Agreement, the Company hereby appoints the Dealer Manager as its agent and exclusive distributor to solicit and to retain the Soliciting Dealers (as defined in Section 3(a)) to solicit subscriptions for the Shares at the subscription price to be paid in cash. The Dealer Manager hereby accepts such agency and exclusive distributorship and agrees to use its reasonable best efforts to sell or cause to be sold the Shares in such quantities and to such Persons in accordance with such terms as are set forth in this Agreement, the Prospectus and the Registration Statement. Unless this Agreement is earlier terminated pursuant to Section 11, the Dealer Manager shall use such reasonable best efforts during the Offering Period (as defined below).
As used in this Agreement, “Offering Period” means the period commencing on the initial Effective Date and ending on the earliest to occur of the following: (1) the acceptance by the Company of subscriptions for 150,000,000 Shares; (2) the termination of the Offering by the Company, which the Company shall have the right to terminate in its sole and absolute discretion at any time (it being understood and agreed that the termination of the Offering by the Company pursuant this clause (2) shall not constitute a termination of the Agreement pursuant to Section 11); (3) the termination or expiration of the effectiveness of the Registration Statement; and (4) the liquidation or dissolution of the Company.
Notwithstanding the foregoing, if the Company or an affiliate of the Company commences a public offering pursuant to the Registration Statement or another registration statement filed pursuant to the Securities Act within nine months from the date of the termination or expiration of the Offering Period, then, at the election of the Dealer Manager (such election to be given by notice thereof to the Company), the Dealer Manager’s exclusive retention pursuant to this Agreement and the Offering Period shall be reinstated, and this Agreement shall be deemed amended mutatis mutandis in connection therewith; provided, however, that neither the Dealer Manager’s exclusive retention nor the Offering Period shall be reinstated (x) if the public offering by the Company or an affiliate of the Company is for securities listed or approved for listing upon notice of issuance on a national securities exchange, (y) with respect to a public offering by an affiliate of the Company only, if the Offering Period lasted for at least three years or was terminated due to the acceptance by the Company of subscriptions for 150,000,000 Shares, or (z) if the Company previously has terminated this Agreement pursuant to Section 11(b).
10
The number of Shares, if any, to be reserved for sale by each Soliciting Dealer may be determined, from time to time, by the Dealer Manager upon prior consultation with the Company. In the absence of such determination, the Company shall, subject to the provisions of Section 3(b), accept Subscription Agreements based upon a first-come, first accepted reservation or other similar method. Under no circumstances will the Dealer Manager be obligated to underwrite or purchase any Shares for its own account and, in soliciting purchases of Shares, the Dealer Manager shall act solely as the Company’s agent and not as an underwriter or principal.
(d) DEALER-MANAGER COMPENSATION.
(i) Subject to the volume discounts and other special circumstances described in or otherwise provided in the “Plan of Distribution” section of the Prospectus or this Section 3(d), the Company agrees to pay the Dealer Manager selling commissions in the amount of seven percent (7%) of the selling price of each Share for which a sale is completed from the Shares offered in the Primary
11
(ii) Subject to the special circumstances described in or otherwise provided in the “Plan of Distribution” section of the Prospectus or this Section 3(d), as compensation for acting as the dealer manager, the Company will pay the Dealer Manager, a dealer manager fee in the amount of three percent (3%) of the selling price of each Share for which a sale is completed from the Shares offered in the Primary Offering (the “Dealer Manager Fee”). No Dealer Manager Fee will be paid in connection with Shares sold pursuant to the DRP. The Dealer Manager may retain or re-allow all or a portion of the Dealer Manager Fee, subject to federal and state securities laws, to the Soliciting Dealer who sold the Shares, as described more fully in the Soliciting Dealers Agreement.
(iii) All selling commissions payable to the Dealer Manager will be paid within thirty (30) days after the investor subscribing for the Share is admitted as a shareholder of the Company, in an amount equal to the selling commissions payable with respect to such Shares.
(iv) In no event shall the total aggregate underwriting compensation payable to the Dealer Manager and any Soliciting Dealers participating in the Offering, including, but not limited to, selling commissions and the Dealer Manager Fee exceed ten percent (10.0%) of gross offering proceeds from the Primary Offering in the aggregate.
(v) Notwithstanding anything to the contrary contained herein, if the Company pays any selling commission to the Dealer Manager for sale by a Soliciting Dealer of one or more Shares and the subscription is rescinded as to one or more of the Shares covered by such subscription, then the Company shall decrease the next payment of selling commissions or other compensation otherwise payable to the Dealer Manager by the Company under this Agreement by an amount equal to the commission rate established in this Section 3(d), multiplied by the number of Shares as to which the subscription is rescinded. If no payment of selling commissions or other compensation is due to the Dealer Manager after such withdrawal occurs, then the Dealer Manager shall pay the amount specified in the preceding sentence to the Company within a reasonable period of time not to exceed thirty (30) days following receipt of notice by the Dealer Manager from the Company stating the amount owed as a result of rescinded subscriptions.
(vi) Notwithstanding the foregoing, no commissions, payments or amounts whatsoever will be paid to the Dealer Manager under this Section 3(d) until an
12
investment or a subscription is accepted and such investor is admitted pursuant to the terms set forth in the Prospectus and herein.
(vii) The Company will not be liable or responsible to any Soliciting Dealer for direct payment for selling commissions to such Soliciting Dealer; the Dealer Manager is solely and exclusively responsible for the payment of selling commissions to Soliciting Dealers.
4. EXCLUSIVITY AND RESTRICTION.
(a) As set forth in Section 3, the Company has appointed the Dealer Manager as its agent and exclusive distributor to solicit and to retain the Soliciting Dealers to solicit subscriptions for the Shares during the Offering Period (including any reinstatement thereof pursuant to the provisions of Section 3). During the period from the date hereof until the earlier to occur of (i) the end of the Offering Period (including any reinstatement thereof pursuant to the provisions of Section 3) and (ii) the termination of this Agreement pursuant to Section 11, the Company will not (and will cause its affiliates to not) engage or appoint any Person other than the Dealer Manager to distribute, solicit and/or retain securities dealers to solicit subscriptions for the Shares or other securities of the Company.
(b) During the period from the date hereof until the earlier to occur of (i) the end of the Offering Period (including any reinstatement thereof pursuant to the provisions of Section 3) and (ii) the termination of this Agreement pursuant to Section 11, the Dealer Manager will not (and will cause its affiliates to not) distribute or market any non-traded REIT significantly engaged in the acquisition, ownership, leasing, operation and/or management of anchored shopping centers in the United States with a purchase price of less than $20,000,000 (the “Target Activities”). For the avoidance of doubt, American Realty Capital Trust, Inc. and American Realty Capital New York Recovery REIT Inc., to the extent the primary investment focus of each such entity remains as set forth in such entity’s respective prospectus on file with the Commission as of the date hereof, shall not be considered a non-traded REIT significantly engaged in the Target Activities for purposes of this Section 4(b).
5. CONDITIONS TO THE DEALER MANAGER’S OBLIGATIONS. The Dealer Manager’s obligations hereunder shall be subject to the following terms and conditions (and if all such conditions are not satisfied or waived by the Dealer Manager on or before the initial Effective Date or at any time thereafter until the Termination Date (as defined in Section 11(a)), then no funds shall be released (1) from the Escrow Account if the Dealer Manager provides
13
notice to this effect to the Company and the Escrow Agent, and (2) from the Deposit Account if the Dealer Manager provides notice to this effect to the Company and Escrow Agent:
(a) The representations and warranties on the part of the Company and the Sub-advisor contained in this Agreement hereof shall be true and correct in all material respects and the Company and the Sub-advisor shall have complied with their covenants, agreements and obligations contained in this Agreement in all material respects;
(b) The Registration Statement shall have become effective and no stop order suspending the effectiveness of the Registration Statement shall have been issued by the Commission and, to the best knowledge of the Company and the Sub-advisor, no proceedings for that purpose shall have been instituted, threatened or contemplated by the Commission; and any request by the Commission for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Dealer Manager.
(c) The Registration Statement and the Prospectus, and any amendment or any supplement thereto, shall not contain any untrue statement of material fact, or omit to state a material fact that is required to be stated therein or is necessary to make the statements therein not misleading.
(d) On the initial Effective Date and at or prior to the fifth business day following the Effective Date of each post-effective amendment to the Registration Statement that includes or incorporates by reference new audited financial statements for the Company, the Dealer Manager shall have received from Deloitte & Touche LLP or such other independent registered public accountants for the Company, (i) a letter, dated the applicable date, addressed to the Dealer Manager, in form and substance satisfactory to the Dealer Manager, containing statements and information of the type ordinarily included in accountant’s “comfort letters” to placement agents or dealer managers, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited financial statements and certain financial information contained in the Registration Statement and the Prospectus, and (ii) confirming that they are (A) independent registered public accountants as required by the Securities Act, and (B) in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X.
(e) At or prior to the fifth business day following the Effective Date of each post-effective amendment to the Registration Statement (other than post-effective amendments filed solely pursuant to Rule 462(d) under the Securities Act and other than the post-effective amendments referred to in Section 5(d)), the Dealer Manager shall have received from Deloitte & Touche LLP or such other independent public or certified public accountants for the Company, a letter, dated such date, in form and substance satisfactory to the Dealer Manager, to the effect that they reaffirm the statements made in the most recent letter furnished pursuant to Section 5(d), except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the date of the letter furnished pursuant to this Section 5(e).
14
(f) On the Effective Date the Dealer Manager shall have received the opinion of DLA Piper LLP (US), counsel for the Company, and a supplemental “negative assurances” letter from such counsel, each dated as of the Effective Date, and each in the form and substance reasonably satisfactory to the Dealer Manager.
(g) At or prior to the Effective Date and at or prior to the fifth business day following the effective date of each post-effective amendment to the Registration Statement (other than post-effective amendments filed solely pursuant to Rule 462(d) under the Securities Act), the Dealer Manager shall have received a written certificate executed by the Chief Executive Officer or President of the Company and the Chief Financial Officer of the Company, in their capacities as officers of the Company, dated as of the applicable date, to the effect that: (i) the representations and warranties of the Company and the Sub-advisor set forth in this Agreement are true and correct in all material respects with the same force and effect as though expressly made on and as of the applicable date; and (ii) the Company and the Sub-advisor have complied in all material respects with all the agreements hereunder and satisfied all the conditions on their part to be performed or satisfied hereunder at or prior to the applicable date.
6. COVENANTS OF THE COMPANY AND THE SUB-ADVISOR. The Company and the Sub-advisor covenant and agree with the Dealer Manager as follows:
15
its commercially reasonable efforts to prevent the issuance of any such order and if any such order is issued, to use its commercially reasonable efforts to obtain the removal thereof as promptly as possible. The Company will furnish the Dealer Manager with a Blue Sky Survey dated as of the initial Effective Date, which will be supplemented to reflect changes or additions to the information disclosed in such survey.
(g) QUALIFICATION TO TRANSACT BUSINESS. The Company will take all steps necessary to ensure that at all times the Company will validly exist as a Maryland corporation and will be qualified to do business in all jurisdictions in which the conduct of its business requires such qualification and where such qualification is required under local law.
16
(l) CUSTOMER INFORMATION. Each of the Company and the Sub-advisor shall:
(i) abide by and comply with (A) the privacy requirements of the Xxxxx-Xxxxx-Xxxxxx Act of 1999 (the “GLB Act”) that are applicable to it, (B) the privacy requirements of any other applicable federal or state law that are applicable to it, and (C) its own internal privacy policies and procedures, each as may be amended from time to time;
(ii) 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
(iii) determine which customers have opted out of the disclosure of nonpublic personal information by periodically reviewing and, if necessary, retrieving an aggregated list of such customers from the Soliciting Dealers (the “List”) to identify customers that have exercised their opt-out rights. If either party uses or discloses nonpublic personal information of any customer for purposes other than servicing the customer, or as otherwise required by applicable law, that party will consult the List to determine whether the affected customer has exercised his or her opt-out rights. Each party 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.
17
(m) DEALER MANAGER’S REVIEW OF PROPOSED AMENDMENTS AND SUPPLEMENTS. Prior to amending or supplementing the Registration Statement, any preliminary prospectus or the Prospectus (including any amendment or supplement through incorporation of any report filed under the Exchange Act), the Company shall furnish to the Dealer Manager for review, a reasonable amount of time prior to the proposed time of filing or use thereof, a copy of each such proposed amendment or supplement, and the Company shall not file or use any such proposed amendment or supplement without the Dealer Manager’s consent, which consent shall not be unreasonably withheld or delayed; provided, however, that the Company may file or use any such proposed amendment or supplement without the Dealer Manager’s prior consent if the Company is advised by outside securities counsel that, at the time such advice is rendered, (i) the Company will be in imminent violation of any federal or state securities law, rule or regulation applicable to it and its activities, including, without limitation, with respect to the Offering and the sale of the Shares, or (ii) a suspension of the offer or sale of Shares in the Offering is imminent, in each case if the Company does not promptly file or use any such proposed amendment or supplement.
The Company confirms that it is bound by the terms of the Escrow Agreement. The Company agrees that it will not represent or imply that the Escrow Agent has investigated the desirability or advisability of an investment in the Company or has approved, endorsed or passed upon the merits of an investment in the Shares, nor will the Company use the name of the 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.
18
correspondence or other information that the Company proposes to deliver, make or file with any governmental authority or agency (federal, state or otherwise) or with FINRA (other than any non-material correspondence in respect of Blue Sky matters) in connection with the Offering, this Agreement or any of the transactions completed hereby.
7. COVENANTS OF THE DEALER MANAGER. The Dealer Manager covenants and agrees with the Company as follows:
In addition, the Dealer Manager shall, in accordance with applicable law or as prescribed by any state securities administrator, provide, or require in the Soliciting Dealer Agreement that the Soliciting Dealer shall provide, to any prospective investor copies of the Prospectus and any supplements thereto during the course of the Offering and prior to the sale. The Company may provide the Dealer Manager with certain Approved Sales Literature to be used by the Dealer Manager and the Soliciting Dealers in connection with the solicitation of purchasers of the Shares. 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 Shares and that it will direct Soliciting 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 Company for use in the Offering. The use of any other sales material is expressly prohibited.
19
of the public; and (ii) 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 or the Sub-advisor 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.
20
Investors to whom it makes such recommendations) to maintain in the files of the Dealer Manager (or the Soliciting Dealer, as applicable) documents disclosing the basis upon which the determination of suitability was reached as to each investor. In making the determinations as to financial qualifications and as to suitability required by the NASAA Guidelines, the Dealer Manager and Soliciting Dealers may rely on (A) representations from investment advisers who are not affiliated with a Soliciting Dealer, banks acting as trustees or fiduciaries, and (B) information it has obtained from a prospective investor, including such information as the investment objectives, other investments, financial situation and needs of the Person or any other information known by the Dealer Manager (or Soliciting Dealer, as applicable), after due inquiry. Notwithstanding the foregoing, the Dealer Manager shall not, and each Soliciting Dealer shall agree not to, execute any transaction in the Company in a discretionary account without prior written approval of the transaction by the customer.
(i) COORDINATION. The Company and the Dealer Manager shall have the right, but not the obligation, to meet with key personnel of the other on an ongoing and regular basis to discuss the conduct of the officers.
21
but not limited to, Section 352 of the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001 (the “Money Laundering Abatement Act”, and together with the USA PATRIOT Act, the “AML Rules”), reasonably expected to detect and cause the reporting of suspicious transactions in connection with the offering and sale of the Shares. The Dealer Manager further represents that it is currently in compliance with all AML Rules, specifically including, but not limited to, the Customer Identification Program requirements under Section 326 of the Money Laundering Abatement Act, and the Dealer Manager hereby covenants to remain in compliance with such requirements and shall, upon request by the Company, provide a certification to the Company that, as of the date of such certification (i) its AML Program is consistent with the AML Rules, and (ii) it is currently in compliance with all AML Rules, specifically including, but not limited to, the Customer Identification Program requirements under Section 326 of the Money Laundering Abatement Act.
(m) PRIVACY REQUIREMENTS. The Dealer Manager shall:
(i) abide by and comply with (A) the privacy requirements of the GLB Act that are applicable to the Dealer Manager, (B) the privacy requirements of any other applicable federal or state law that are applicable to the Dealer Manager, and (C) its own internal privacy policies and procedures, each as may be amended from time to time; and
(ii) 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.
22
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.
8. EXPENSES.
(a) Subject to Sections 8(b) and 8(c), the Dealer Manager shall pay all its own costs and expenses incident to the performance of its obligations under this Agreement.
(b) The Company agrees to pay all costs and expenses related to:
(i) the registration of the offer and sale of the Shares with the Commission;
(ii) expenses of printing the Registration Statement and the Prospectus and any amendment or supplement thereto as herein provided;
(iii) fees and expenses incurred in connection with any required filing with the FINRA;
(iv) all the expenses of agents of the Company, excluding the Dealer Manager, incurred in connection with performing marketing and advertising services for the Company; and
(v) expenses of qualifying the Shares for offering and sale under state blue sky and securities laws, and expenses in connection with the preparation and printing of the Blue Sky Survey.
(c) The Company shall reimburse the Dealer Manager and Soliciting Dealers for approved or deemed approved reasonable bona fide due diligence expenses in accordance with Section 3(e).
9. INDEMNIFICATION.
23
respect thereof) arise out of or are based upon: (i) in whole or in part, any material inaccuracy in a representation or warranty contained herein by the Company or the Sub-advisor, any material breach of a covenant contained herein by the Company or the Sub-advisor, or any material failure by the Company or the Sub-advisor to perform, its obligations hereunder or to comply with state or federal securities laws applicable to the Offering; (ii) any untrue statement or alleged untrue statement of a material fact contained (A) in any Registration Statement or any post-effective amendment thereto or in the Prospectus or any amendment or supplement to the Prospectus, (B) in any Approved Sales Literature or (C) in any blue sky application or other document executed by the Company or on its behalf specifically for the purpose of qualifying any or all of the Offered Shares for sale under the securities laws of any jurisdiction or based upon written information furnished by the Company under the securities laws thereof (any such application, document or information being hereinafter called a “Blue Sky Application”); or (iii) the omission or alleged omission to state a material fact required to be stated in the Registration Statement or any post-effective amendment thereof to make the statements therein not misleading or the omission or alleged omission to state a material fact required to be stated in the Prospectus or any amendment or supplement to the prospectus to make the statements therein, in light of the circumstances under which they were made, not misleading, and the Company will reimburse each Soliciting Dealer or the Dealer Manager, and their respective Indemnified Parties, for any reasonable legal or other expenses incurred by such Soliciting Dealer or the Dealer Manager, and their respective Indemnified Parties, in connection with investigating or defending such loss, claim, expense, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, expense, damage or liability arises out of, or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by the Dealer Manager expressly for use in the Registration Statement or any post-effective amendment thereof or the Prospectus or any such amendment thereof or supplement thereto. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
Notwithstanding the foregoing, as required by the Company’s charter and Section II.G. of the NASAA REIT Guidelines, the indemnification and agreement to hold harmless provided in this Section 9(b) is further limited to the extent that no such indemnification by the Company of a Soliciting Dealer or the Dealer Manager, or their respective Indemnified Parties, shall be permitted under this Agreement for, or arising out of, an alleged violation of federal or state securities laws, unless one or more of the following conditions are met: (a) there has been a successful adjudication on the merits of each count involving alleged securities law violations as to the particular Indemnified Party; (b) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the particular Indemnified Party; or (c) a court of competent jurisdiction approves a settlement of the claims against the particular Indemnified Party and finds that indemnification of the settlement and the related costs should be made, and the court considering the request for indemnification has been advised of the position of the Commission and of the published position of any state securities regulatory authority in which the securities were offered or sold as to indemnification for violations of securities laws.
24
25
any Indemnified Party, and it notifies an indemnifying party of the commencement thereof, the indemnifying party will be entitled, to the extent it may wish, jointly with any other indemnifying party similarly notified, to participate in the defense thereof, with separate counsel. Such participation shall not relieve such indemnifying party of the obligation to reimburse the Indemnified Party for reasonable legal and other expenses incurred by such Indemnified Party in defending itself, except for such expenses incurred after the indemnifying party has deposited funds sufficient to effect the settlement, with prejudice, of, and unconditional release of all liabilities from, the claim in respect of which indemnity is sought. Any such indemnifying party shall not be liable to any such Indemnified Party on account of any settlement of any claim or action effected without the consent of such indemnifying party, such consent not to be unreasonably withheld or delayed. Any indemnified party shall not be bound to perform or refrain from performing any act pursuant to the terms of any settlement of any claim or action effected without the consent of such indemnified party.
(i) In the case of the Company indemnifying the Dealer Manager, the advancement of Company funds to the Dealer Manager for legal expenses and other costs incurred as a result of any legal action for which indemnification is being sought shall be permissible (in accordance with Section II.G. of the NASAA REIT Guidelines) only if all of the following conditions are satisfied: (A) the legal action relates to acts or omissions with respect to the performance of duties or services on behalf of the Company; (B) the legal action is initiated by a third party who is not a shareholder of the Company or the legal action is initiated by a shareholder of the Company acting in his or her capacity as such and a court of competent jurisdiction specifically approves such advancement; and (C) the Dealer Manager undertakes to repay the advanced funds to the Company, together with the applicable legal rate of interest thereon, in cases in which the Dealer Manager is found not to be entitled to indemnification.
(ii) In any case of indemnification other than that described in Section 9(f)(i) above, the indemnifying party shall pay all legal fees and expenses reasonably incurred by the Indemnified Party in the defense of such claims or actions; provided, however, that the indemnifying party shall not be obligated to pay legal expenses and fees to more than one law firm in connection with the defense of similar claims arising out of the same alleged acts or omissions giving rise to such claims notwithstanding that such actions or claims are alleged or brought by one or more parties against more than one Indemnified Party. If such claims or actions are alleged or brought against more than one Indemnified Party, then the indemnifying party shall only be obliged to reimburse the expenses and fees of the one law firm (in addition to local counsel) that has been selected by a majority of the indemnified parties against which such action is finally brought; and if a majority of such indemnified parties is unable to agree on which law firm for which expenses or fees will be reimbursable by the indemnifying party, then
26
payment shall be made to the first law firm of record representing an Indemnified Party against the action or claim. Such law firm shall be paid only to the extent of services performed by such law firm and no reimbursement shall be payable to such law firm on account of legal services performed by another law firm.
10. CONTRIBUTION.
(a) If the indemnification provided for in Section 9 is for any reason unavailable to or insufficient to hold harmless an Indemnified Party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such Indemnified Party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, the Dealer Manager and the Soliciting Dealer, respectively, from the proceeds received in Primary Offering pursuant to this Agreement and the relevant Soliciting Dealer Agreement, or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, the Dealer Manager and the Soliciting Dealer, respectively, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
(b) The relative benefits received by the Company, the Dealer Manager and the Soliciting Dealer, respectively, in connection with the proceeds received in the Primary Offering pursuant to this Agreement and the relevant Soliciting Dealer Agreement shall be deemed to be in the same respective proportion as the total net proceeds from the Primary Offering pursuant to this Agreement and the relevant Soliciting Dealer Agreement (before deducting expenses), received by the Company, and the total selling commissions and dealer manager fees received by the Dealer Manager and the Soliciting Dealer, respectively, in each case as set forth on the cover of the Prospectus bear to the aggregate offering price of the Shares sold in the Primary Offering as set forth on such cover.
(c) The relative fault of the Company, the Dealer Manager and the Soliciting Dealer, respectively, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact related to information supplied by the Company, by the Dealer Manager or by the Soliciting Dealer, respectively, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(d) The Company, the Dealer Manager and the Soliciting Dealer (by virtue of entering into the Soliciting Dealer Agreement) agree that it would not be just and equitable if contribution pursuant to this Section 10 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable contributions referred to above in this Section 10. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an Indemnified Party and referred to above in this
27
Section 10 shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission or alleged omission.
(e) Notwithstanding the provisions of this Section 10, the Dealer Manager and the Soliciting Dealer shall not be required to contribute any amount by which the total price at which the Shares sold in the Primary Offering to the public by them exceeds the amount of any damages which the Dealer Manager and the Soliciting Dealer have otherwise been required to pay by reason of any untrue or alleged untrue statement or omission or alleged omission.
(f) No party guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any party who was not guilty of such fraudulent misrepresentation.
(g) For the purposes of this Section 10, the Dealer Manager’s officers, directors, employees, members, partners, agents and representatives, and each Person, if any, who controls the Dealer Manager within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution of the Dealer Manager, and each officers, directors, employees, members, partners, agents and representatives of the Company, each officer of the Company who signed the Registration Statement and each Person, if any, who controls the Company, within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution of the Company. The Soliciting Dealers’ respective obligations to contribute pursuant to this Section 10 are several in proportion to the number of Shares sold by each Soliciting Dealer in the Primary Offering and not joint.
11. TERMINATION OF THIS AGREEMENT.
Notwithstanding the foregoing and anything herein to the contrary, any reinstatement of the Offering Period pursuant to the provisions of Section 3 shall be deemed to rescind any expiration of this Agreement. Any such reinstatement of the Offering Period shall not affect the ability of the Company or the Dealer Manager subsequently to terminate this Agreement pursuant to Section 11(b) or 11(c), respectively.
28
The date upon which this Agreement shall have expired or been terminated earlier shall be referred to in this Agreement as the “Termination Date”.
(i) For Cause (as defined below);
(ii) A court of competent jurisdiction enters a decree or order for relief in respect of the Dealer Manager in any involuntary case under the applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appoints a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Dealer Manager or for any substantial part of its property or orders the winding up or liquidation of the Dealer Manager’s affairs;
(iii) The Dealer Manager commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, or consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Dealer Manager or for any substantial part of its property, or makes any general assignment for the benefit of creditors, or fails generally to pay its debts as they become due;
(iv) The Effective Date has not occurred by October 31, 2010;
(v) The Company has not sold at least 5,000,000 Shares in the Primary Offering by investors unaffiliated with the Company or the Advisor by the first anniversary of the Escrow Break Date;
(vi) The Company has not sold at least 30,000,000 Shares in the Primary Offering by investors unaffiliated with the Company or the Advisor by the second anniversary of the Escrow Break Date;
(vii) The Company has not sold at least 60,000,000 Shares in the Primary Offering by investors unaffiliated with the Company or the Advisor by the third anniversary of the Escrow Break Date;
(viii) There shall have occurred an event, circumstance, occurrence, fact, condition, change or effect, individually or in the aggregate, that materially affects or would reasonably be expected to materially affect the Dealer Manager’s ability to perform its services under this Agreement and such event, circumstance, occurrence, fact, condition, change or effect has not ceased to exist within 30 days of receiving notice of such material adverse change from the Company; or
(ix) If both Xxxxxxx Xxxxxx and Xxxxxxxx Xxxxxxxx cease to be actively involved in the management of the Dealer Manager.
29
As used above, “Cause” means: (A) fraud, criminal conduct, willful misconduct or willful or grossly negligent breach of the Dealer Manager’s obligations under this Agreement which materially adversely affects the Dealer Manager’s ability to perform its duties; or (B) a material breach of this Agreement by the Dealer Manager which materially affects adversely affects the Dealer Manager’s ability to perform its duties, provided that (1) the Dealer Manager does not cure any such material breach within 30 days of receiving notice of such material breach from the Company, or (2) if such material breach is not of a nature that can be remedied within such 30-day period, the Dealer Manager does not diligently take all reasonable steps to cure such breach and does not cure such breach within 60 days of receiving notice of such material breach.
(i) For Good Reason (as defined below);
(ii) A court of competent jurisdiction enters a decree or order for relief in respect of the Company or any of its subsidiaries in any involuntary case under the applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appoints a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or any of its subsidiaries or for any substantial part of its property or orders the winding up or liquidation of the Company’s or any of its subsidiaries’ affairs;
(iii) The Company or any of its subsidiaries commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under any such law, or consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or any of its subsidiaries or for any substantial part of their property, or makes any general assignment for the benefit of creditors, or fails generally to pay its debts as they become due;
(iv) There shall have been a material change in the nature of the business which is conducted or contemplated to be conducted, or a material change in the manner of how such business is conducted or contemplated to be conducted, by the Company, as set forth in the Registration Statement at the initial Effective Date by the Company and its subsidiaries, considered as one entity;
(v) There shall have occurred a Company MAE, whether or not arising in the ordinary course of business;
(vi) A stop order suspending the effectiveness of the Registration Statement shall have been issued by the Commission and is not rescinded within 10 business days after the issuance thereof;
30
(vii) A material action, suit, proceeding or investigation of the type referred to in Section 1(g) shall have occurred or arisen on or after the initial Effective Date;
(viii) The Company materially reduces its dividend or suspends or terminates its share redemption program, in each case without the prior written consent of the Dealer Manager;
(ix) There is a material adverse change in the value of the Company’s common shares that materially adversely affects the marketability of its shares; or
(x) The initial Effective Date has not occurred by October 31, 2010.
As used above, “Good Reason” means: (A) fraud, criminal conduct, willful misconduct or willful or grossly negligent breach of the Company’s obligations under this Agreement; or (B) a material breach of this Agreement by the Company, provided that (1) the Company does not cure any such material breach within 30 days of receiving notice of such material breach from the Dealer Manager, or (2) if such material breach is not of a nature that can be remedied within such 30-day period, the Company does not diligently take all reasonable steps to cure such breach and does not cure such breach within 60 days of receiving notice of such material breach, unless extended by mutual consent of the parties.
12. MISCELLANEOUS.
31
courier service; or (iii) sent by facsimile transmission, provided confirmation of receipt is received by sender and such Notice is sent or delivered contemporaneously by an additional method provided hereunder; in each case above provided such Notice is addressed to the intended recipient thereof as set forth below:
If to the Company: |
Xxxxxxxx Xxxxxx – ARC Shopping Center REIT Inc. 00000 Xxxxxxxxx Xxxxx Xxxxxxxxxx, Xxxx 00000 Facsimile No.: (000) 000-0000 Attention: Xxxx Xxxxxx
and
000 X. 000 Xxxxx Xxxxx 000 Xxxx Xxxx Xxxx, Xxxx 00000 Facsimile No.: (000) 000-0000 Attention: Xxxx Xxxxxx
with a copy to (which shall not constitute a Notice):
DLA Piper US LLP 0000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxx, XX 00000-0000 Facsimile No.: (000) 000-0000 Attention: Xxxxxx X. Xxxxxxxx, Esq. | |
If to the Dealer Manager: |
Realty Capital Securities, LLC Three Xxxxxx Place, Suite 3300B Xxxxxx, XX 00000 Facsimile No.: (000) 000-0000 Attention: Xxxxxx Xxxxxx President
with a copy to (which shall not constitute a Notice):
Proskauer Rose LLP 0000 Xxxxxxxx Xxx Xxxx, XX 00000 Facsimile No: (000) 000-0000 Attention: Xxxxx X. Xxxx, Esq. Xxxxx X. Gerkis, Esq. | |
If to the Sub-advisor: |
Xxxxxxxx Xxxxxx & Company SubAdvisor LLC 00000 Xxxxxxxxx Xxxxx Xxxxxxxxxx, Xxxx 00000 |
32
Facsimile No.: (000) 000-0000 Attention: Xxxx Xxxxxx
and 000 X. 000 Xxxxx Xxxxx 000 Xxxx Xxxx Xxxx, Xxxx 00000 Facsimile No.: (000) 000-0000 Attention: Xxxx Xxxxxx |
Any party may change its address specified above by giving each party Notice of such change in accordance with this Section 12(b). Each Notice shall be effective and deemed given upon actual receipt (or refusal of receipt).
(f) APPLICABLE LAW. This Agreement and any disputes relative to the interpretation or enforcement hereto shall be governed by and construed under the internal laws, as opposed to the conflicts of laws provisions, of the State of New York.
(g) WAIVER. EACH OF THE PARTIES HERETO WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) RELATED TO OR ARISING OUT OF THIS AGREEMENT. The parties hereto each hereby irrevocably submits to the exclusive jurisdiction of the courts of the State of New York and the Federal courts of the United States of America located in the Borough of Manhattan, New York City, in respect of the interpretation and enforcement of the terms of this Agreement, and in respect of the transactions contemplated hereby, and each hereby waives, and agrees not to assert, as a defense in any action, suit or proceeding for the interpretation or enforcement hereof, that it is not subject thereto or that such action, suit or proceeding may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement may not be enforced in or by such courts, and the parties hereto each hereby irrevocably agrees that all claims with respect to such action or proceeding shall be heard and determined in such a New York State or Federal court.
33
establishing its rights hereunder or thereunder, including, without limitation, court costs and attorneys and expert witness fees. In addition to the foregoing award of costs and fees, the prevailing also shall be entitled to recover its attorneys’ fees incurred in any post-judgment proceedings to collect or enforce any judgment.
(h) THIRD PARTY BENEFICIARIES. Except for the Persons referred to in Section 9 and Section 10, there shall be no third party beneficiaries of this Agreement, and no provision of this Agreement is intended to be for the benefit of any Person not a party to this Agreement, and no third party shall be deemed to be a beneficiary of any provision of this Agreement. Except for the Persons referred to in Section 9 and Section 10, no third party shall by virtue of any provision of this Agreement have a right of action or an enforceable remedy against any party to this Agreement. Each of the Persons referred to in Section 9 and Section 10 shall be a third party beneficiary of this Agreement.
34
not disclose to any Person, other than an officer, director, employee or agent of such Soliciting Dealers, any material downloaded from such a restricted website or portion of a restricted website. The Dealer Manager and the Company shall meet on a regular basis (frequency to be determined by mutual agreement of the parties) to discuss and consult with one another regarding the Offering and shall cause their respective principals to meet in person or by phone with representatives of the other upon the reasonable request of the other party. The Dealer Manager will provide the Company with information regarding the Offering, including without limitation, copies of any agreements with Soliciting Dealers and access to books and records in respect of marketing efforts, as reasonably requested by the Company.
If the foregoing is in accordance with your understanding of our agreement, kindly sign and return it to us, whereupon this instrument will become a binding agreement between you and the Company in accordance with its terms.
[Signatures on following page]
35
IN WITNESS WHEREOF, the parties hereto have each duly executed this Amended and Restated Exclusive Dealer Manager Agreement as of the day and year set forth above.
COMPANY: | ||
XXXXXXXX XXXXXX – ARC SHOPPING CENTER REIT INC. | ||
By: | /S/ XXXX X. XXXXXX | |
Name: Xxxx X. Xxxxxx Title: President | ||
SUB-ADVISOR: | ||
XXXXXXXX XXXXXX & COMPANY SUBADVISOR LLC | ||
By: | /S/ XXXX X. XXXXXX | |
Name: Xxxx X. Xxxxxx Title: President |
Accepted as of the date first above written:
DEALER MANAGER:
REALTY CAPITAL SECURITIES, LLC
By: | /S/ XXXXXX XXXXXX | |
Name: Xxxxxx Xxxxxx Title: President |
[Signature Page to Amended and Restated Exclusive Dealer Manager Agreement among Xxxxxxxx
Xxxxxx – ARC Shopping Center REIT Inc., Xxxxxxxx Xxxxxx & Company SubAdvisor LLC and
Realty Capital Securities, LLC]