EXHIBIT 1.1
INLAND RETAIL REAL ESTATE TRUST, INC.
150,000,000
SHARES OF COMMON STOCK
$.01 PAR VALUE PER SHARE
FORM OF DEALER MANAGER AGREEMENT
_____________, 0000
Xxxxxx Securities Corporation
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Ladies/Gentlemen:
Inland Retail Real Estate Trust, Inc. (the "Company"), a Maryland
corporation, is qualified as a real estate investment trust (a "REIT") under
federal income tax laws. The Company was formed on September 3, 1998, and is
governed by the Bylaws, as amended (the "Bylaws") and the Articles of
Incorporation, as amended (the "Articles") in the form incorporated by reference
into the Registration Statement, as described in Section 1(a) hereof (such
Bylaws and Articles being hereinafter referred to as the "Organizational
Documents"). The advisor to the Company is Inland Retail Real Estate Advisory
Services, Inc., an Illinois corporation (the "Advisor").
The Company is offering (i) on a "best efforts" basis up to 150,000,000
shares of common stock, $.0l par value per share (the "Shares") for a purchase
price of $10.00 per Share with a minimum initial investment of $3,000 ($1,000 in
the case of tax-exempt investors, except for residents of the State of Iowa
where Individual Retirement Accounts must have a minimum investment of $3,000,
and for residents of the State of Minnesota where Individual Retirement Accounts
and qualified plan accounts must have a minimum investment of $2,000), (ii)
6,000,000 warrants which may be issued to you or to Soliciting Dealers (as
defined below) (the "Soliciting Dealer Warrants") and the 6,000,000 Shares
issuable on exercise of the Soliciting Dealer Warrants and (iii) up to
12,000,000 Shares for a purchase price of $9.50 per Share for issuance through
the Company's distribution reinvestment program, all upon the other terms and
conditions set forth in the Prospectus, as described in Section 1(a) hereof (the
"Offering"). The subscribers, each of whom will be required to enter into a
subscription agreement substantially similar to the form of the Subscription
Agreement attached as Appendix C to the Prospectus (the "Subscription
Agreement"), will, upon acceptance of their subscriptions by and in the
discretion of the Company, become stockholders of the Company (the
"Stockholders").
1. REPRESENTATION AND WARRANTIES OF THE COMPANY. The Company hereby
represents, warrants and agrees with you that:
(a) Registration Statement and Prospectus. A registration statement
(File NO. 333-[_____]) on Form S-11 with respect to an aggregate of
168,000,000 Shares, plus 6,000,000 Soliciting Dealer Warrants (the
"Warrants") (which are issuable in certain circumstances in connection
with the sale of the Shares), and such 168,000,000 Shares include
6,000,000 Shares issuable on exercise of the Warrants and 12,000,000
Shares issuable pursuant to the Company's distribution reinvestment
program, has been prepared by the Company pursuant to the Securities Act
of 1933, as amended (the "Act"), and the rules and regulations (the "Rules
and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and has been filed with the Commission under the
Act; one or more amendments to such registration statement have been or
may be so prepared and filed. As used in this Agreement, the term
"Registration Statement" means such registration statement in the form in
which it becomes effective, the term "Effective Date" means the date upon
which the Registration Statement is or was first declared effective by the
Commission and the term "Prospectus" means the prospectus in the form
constituting a part of the Registration Statement as well as in the form
first filed with the Commission pursuant to its Rule 424 after the
Registration Statement becomes effective. The Commission has not issued
any stop order suspending the effectiveness of the Registration Statement
and no proceedings for that purpose have been instituted or are pending
before or threatened by the Commission under the Act.
(b) Compliance with the Act. From the time the Registration
Statement becomes effective and at all times subsequent thereto up to and
including the Termination Date (as defined in Section 2(c) hereof):
(i) the Registration Statement, the Prospectus and any
amendments or supplements thereto will contain all statements which are
required to be stated therein by the Act and the Rules and Regulations and
will comply in all material respects with the Act and the Rules and
Regulations; and
(ii) neither the Registration Statement nor the Prospectus nor
any amendment or supplement thereto will at any such time 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 were made, not misleading.
(c) No Subsequent Material Events. Subsequent to the respective
dates as of which information is given in the Registration Statement and
Prospectus and prior to the Termination Date, except as contemplated in
the Prospectus or as disclosed in a supplement or amendment thereto or in
the periodic financial statements of the Company, the Company has not and
will not have:
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(i) incurred any material liabilities or obligations, direct
or contingent; or
(ii) entered into any material transaction, not in the
ordinary course of business and, except as so disclosed, there has not
been and will not be any material adverse change in the financial position
or results of operations of the Company.
(d) Corporation Status. The Company is a corporation duly formed and
validly existing under the General Corporation Law of Maryland.
(e) Authorization of Agreement. This Agreement has been duly and
validly authorized, executed and delivered by or on behalf of the Company
and constitutes the valid and binding agreement of the Company 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). The performance of this
Agreement, the consummation of the transactions contemplated herein and
the fulfillment of the terms hereof, do not and will not result in a
breach of any of the terms and provisions of, or constitute a default
under, any statute, indenture, mortgage, deed of trust, voting trust
agreement, note, lease or other agreement or instrument to which the
Company is a party or by which the Company or its property is bound, or
under any rule or regulation or order of any court or other governmental
agency or body with jurisdiction over the Company or any of its
properties; and no consent, approval, authorization or order of any court
or governmental agency or body has been or is required for the performance
of this Agreement or for the consummation of the transactions contemplated
hereby (except as have been obtained under the Act, from the National
Association of Securities Dealers, Inc. (the "NASD") or as may be required
under state securities or 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).
(f) Pending Actions. There is no material action, suit or proceeding
pending or, to the knowledge of the Company, threatened, to which the
Company is a party, before or by any court or governmental agency or body
which adversely affects the Offering of the Shares.
(g) Required Filings. There are no contracts or other documents
required to be filed by the Act or the Rules and Regulations of the
Commission thereunder as exhibits to the Registration Statement which have
not been so filed.
(h) Federal Income Tax Laws. The Corporation has obtained an opinion
of Xxxxxx Xxxxxx Xxxxx Xxxxxxxx stating that, under existing federal
income tax laws and regulations, assuming the Company acts as described in
the "Federal Income Tax Considerations" section of the Prospectus and
timely files the requisite elections, counsel is of the opinion that the
Company has been organized in conformity with the requirements for
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qualification as a REIT beginning with its taxable year ending December
31, 1999, and that its prior, current and anticipated methods of operation
(as described in the Prospectus and represented by management) has enabled
and should enable it to satisfy the REIT Requirements (as defined in the
Prospectus).
(i) Independent Public Accountants. To the best of the Company's
knowledge, the accountants who have certified certain financial statements
appearing in the Prospectus are independent public accountants within the
meaning of the Act and the Rules and Regulations.
(j) Escrow Agreement. the Company has entered into an escrow
agreement (the "Escrow Agreement") with Inland Securities Corporation, Oak
Brook, Illinois (the "Dealer Manager"), and LaSalle Bank National
Association, Chicago, Illinois (the "Escrow Agent"), in the form included
as an exhibit to the Registration Statement, which provides for the
establishment of an escrow account (the "Escrow Account"). During the
period commencing with the Effective Date and ending on the Termination
Date, the Company will deposit subscribers funds in the Escrow Account as
described in Section 2 below.
(k) Sales Literature. In addition to and apart from the Prospectus,
the Company may use certain supplemental sales material in connection with
the Offering of the Shares. This material, prepared by the Advisor, would
consist of a brochure describing the Advisor and its Affiliates and the
objectives of the Company and may also contain pictures and summary
descriptions of properties similar to those to be acquired by the Company
that Affiliates of the Company have previously acquired. This material may
also include pictures and summary descriptions of properties similar to
those to be acquired by the Company, as well as a brochure, audiovisual
materials and tape presentations highlighting and explaining various
features of the Offering, properties of prior real estate programs and
real estate investments in general; and articles and publications
concerning real estate. Business reply cards, introductory letters and
seminar invitation forms may be sent to Soliciting Dealers (as hereinafter
defined) and prospective investors. These materials shall be hereinafter
referred to collectively as the "sales literature." No person has been
authorized to prepare for, or furnish to, a prospective investor, any
sales literature other than: (i) that described herein; and (ii) so-called
"tombstone" newspaper advertisements/solicitations of interest, limited to
identifying the Offering and the location of sources of further
information. Use of any sales literature is conditioned upon filing with
and, if required, clearance by appropriate regulatory agencies (including,
without limitation, the NASD and any state securities regulator or
commissioner). Such clearance (if provided), however, does not indicate
that the regulatory agency allowing the use of the materials has passed on
the merits of the Offering or the adequacy or accuracy of the sales
materials. Except as described herein, the Company has not authorized the
use of other supplemental literature or sales material in connection
with this Offering. Although it is believed that the information contained
in the sales literature or sales material will not conflict with any of
the information set forth in the Prospectus, the sales literature will not
purport to be complete, and should not be considered as a part of the
Prospectus, or as incorporated in the Prospectus by reference, or as
forming the basis of the Offering.
(l) Authorization of the Shares. The Company has an authorized and
outstanding capitalization as set forth in the Registration Statement and
Prospectus. The sale of the Shares has been duly and validly authorized by
the Company, and when subscriptions for the Shares have been accepted by
the Company as contemplated in the Prospectus and the Shares have been
issued to the respective subscribers, the Shares will represent ownership
in the Company and will conform to the description thereof contained in
the Prospectus. Stockholders have no preemptive rights to purchase or
subscribe for securities of the Company, and the Shares are not
convertible or subject to redemption at the option of the
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Company. The Shares are entitled to one vote per Share and do not have
cumulative voting rights. Subject to the rights of the holders of any
class of capital stock of the Company having any preference or priority
over the Shares, the Stockholders are entitled to distributions in such
amounts as may be declared by the Board of Directors from time to time out
of funds legally available for such payments and, in the event of
liquidation, to share ratably in any assets of the Company remaining after
payment in full of all creditors and provisions for any liquidation
preferences on any outstanding preferred stock ranking prior to the
Shares.
2. OFFERING AND SALE OF THE SHARES. On the basis of the representations,
warranties and agreements herein contained, and subject to the terms and
conditions herein set forth, the Company hereby appoints you as its exclusive
Dealer Manager to solicit and to cause other dealers (as described in Section 2
(a) hereof) to solicit subscriptions for the Shares at the subscription price to
be paid and otherwise upon the other terms and conditions set forth in the
Prospectus and in the Subscription Agreement, and you agree to use your best
efforts as such Dealer Manager to procure subscribers for the Shares, during the
period commencing with the Effective Date and ending on the Termination Date
(the "Offering Period"). The number of Shares, if any, to be reserved for sale
by each Soliciting Dealer may be decided by the mutual agreement, from time to
time, of you and the Company. In the absence of such mutual agreement, the
Company shall, subject to the provisions of Section 2(b) hereof accept
Subscription Agreements based upon a first come, first accepted reservation or
other similar method.
(a) Soliciting Dealers. The Shares offered and sold through you
under this Agreement shall be offered and sold only by you and, at your
sole option, any other securities dealers whom you may retain
(collectively the "Soliciting Dealers"), each of whom are members of the
NASD, executing agreements with you substantially in the form of the
Soliciting Dealers Agreement attached hereto as Exhibit A.
(b) Subscription Agreements and Subscribers' Funds. Each person
desiring to purchase Shares through you or any other Soliciting Dealer
will be required to complete and execute the Subscription Agreement and to
deliver such document to you or such Soliciting Dealer, together with a
check payable to the order of "LBNA/Escrow Agent for IRRET" in the amount
of $10 per Share.
Each Soliciting Dealer shall forward any such Subscription Agreement
and check to you not later than noon of the next business day after
receipt of such Subscription Agreement, if the Soliciting Dealer conducts
its internal supervisory procedures at the location where the Subscription
Agreement and check were initially received. When such internal
supervisory procedures are to be performed at a different location (the
"Final Review Office"), the Subscription Agreement and check must be
transmitted to the Final Review Office by the end of the next business day
following receipt of the Subscription Agreement and check by the
Soliciting Dealer. The Final Review Office will, by the next business day
following receipt of the Subscription Agreement and check, forward both
the Subscription Agreement and check to you as processing broker-dealer in
order that you may complete your review of the documentation and process
the Subscription Agreement and
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check. The Company will have representatives available to review the
Subscription Agreement at your location in order to determine whether it
wishes to accept the proposed purchaser as a Stockholder, it being
understood that the Company reserves the unconditional right to reject the
tender of any Subscription Agreement and check (exclusive of the Company's
distribution reinvestment program). Any check received by you directly or
as processing broker-dealer from the Soliciting Dealers will, in all
cases, be forwarded to the Escrow Agent as soon as practicable, but in any
event by the end of the second business day following receipt by you of
the Subscription Agreement and check. The Company will promptly notify you
or the Soliciting Dealer, as appropriate, of any rejection, and you shall
send the check and the Subscription Agreement to the Escrow Agent with
directions to promptly return the check and the Subscription Agreement to
the rejected subscriber. All subscription funds may be deposited directly
with the Company.
Nothing contained in this Section 2 shall be construed to impose
upon the Company the responsibility of assuring that prospective
purchasers meet the suitability standards contained in the Prospectus or
to relieve you or any of the Soliciting Dealers of the responsibility of
complying with the Rules of the NASD.
(c) Termination of the Offering. The Offering Period will terminate
on a date on or before one year from the date of the Prospectus (subject
to requalification in certain states, the Company may extend the Offering
Period from time to time, but in no event for longer than two years from
the date of the Prospectus), subject in any event to the Company's right
to terminate the Offering at any time (the "Termination Date") and the
proceeds will be applied as set forth in the Prospectus.
(d) Dealer-Manager Compensation.
(i) The Company agrees to pay to you a selling commission of
7% of the sales price for each Share sold (except for Special Sales) from
the 150,000,000 Shares offered on a "best efforts" basis, as set forth in
the Prospectus under the caption "Plan of Distribution," subject to the
limitations described below, as well as to offer to issue and sell to you
for a purchase price of $.0008 per Soliciting Dealer Warrant, one
Soliciting Dealer Warrant for every 25 Shares sold from the 150,000,000
Shares offered on a "best efforts" basis, of which such compensation may
be retained or reallowed by you, subject to federal and state securities
laws, to the Soliciting Dealer who sold the Shares, as described more
fully in the Soliciting Dealers Agreement; provided, however, that the
Company will not issue more than 6,000,000 Warrants in connection with the
Offering of the Shares. In lieu of reimbursement of specific expenses, you
will also receive, subject to the limitations described herein and in the
Prospectus, a marketing contribution (equal to 2%) and due diligence
expense allowance (equal to 0.5%), both aggregating 2.5% of the sale price
from the 150,000,000 Shares offered on a "best efforts" basis (except for
certain Special Sales), some portion of which may be reallowed by you to
the Soliciting Dealers.
Subject to certain conditions and exceptions explained below,
investors making an initial cash investment of at least $250,010 through
the same Soliciting Dealer may receive a reduction of the customary 7%
selling commission payable in connection with the purchase of those Shares
in accordance with the following schedule:
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Amount of Purchaser's Investment
----------------------------------------------------
Amount of Selling Volume Maximum Commission Per
Discount From To Share
--------------------------- ------------------------- ------------------------ --------------------------
1% $ 250,010 $500,000 6%
2% $ 500,010 $1,000,000 5%
3% $ 1,000,010 $2,500,000 4%
4% $ 2,500,010 $5,000,000 3%
5% $ 5,000,010 $10,000,000 2%
6% $10,000,010 more than 1%
$10,000,010
Any reduction in the amount of the selling commissions in
respect of volume discounts received will be credited to the investor in
the form of additional whole shares or fractional shares. Selling
commissions will not be paid on any such whole shares or fractional shares
issued for a volume discount.
Certain purchases may be combined for the purpose of
qualifying for a volume discount and crediting a purchaser or purchasers
with additional Shares for the above described volume discount, and for
determining commissions payable to you and reallowable to Soliciting
Dealers, so long as all such combined purchases are made through the same
Soliciting Dealer and approved by the Company. A purchaser may combine
subscriptions made in the Offering with other subscriptions in the
Offering or with subscriptions from the Company's initial public offering
pursuant to its registration statement declared effective by the
Commission on February 11, 1999 and its subsequent public offering
pursuant to its registration statement declared effective by the
Commission on February 1, 2001, for the purpose of computing amounts
invested. Purchases by spouses may also be combined and purchases by any
investor may be combined with other purchases of Shares to be held as a
joint tenant or a tenant in common by such investor with others for
purposes of computing amounts invested. Purchases by Tax-Exempt Entities
may only be combined with purchases by other Tax-Exempt Entities for
purposes of computing amounts invested only if investment decisions are
made by the same Person, provided that if the investment decisions are
made by an independent investment adviser, that investment adviser may not
have any direct or indirect beneficial interest in any of the Tax-Exempt
Entities whose purchases are sought to be combined. The investor must xxxx
the "Additional Investment" space on the Subscription Agreement Signature
Page in order for purchases to be combined. The Company is not responsible
for failing to combine purchases, where the investor fails to xxxx the
"Additional Investment" space.
If the Subscription Agreements for the purchases to be
combined are submitted at the same time, then the additional Shares to be
credited to the purchasers as a
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result of such combined purchases will be credited on a pro rata basis. If
the Subscription Agreements for the purchases to be combined are not
submitted at the same time, then any additional Shares to be credited as a
result of such combined purchases will be credited to the last component
purchase, unless the Company is otherwise directed in writing at the time
of such submission; except however, the additional Shares to be credited
to any Tax-Exempt Entities whose purchases are combined for purposes of
the volume discount will be credited only on a pro rata basis based on the
amount of the investment of each Tax-Exempt Entity and their combined
purchases.
Notwithstanding the preceding paragraphs, in no event shall
any investor receive a discount greater than 5% on any purchase of Shares
if such investor already owns, or may be deemed to already own, any
Shares. This restriction may limit the amount of the volume discount
available to a purchaser after the purchaser's initial purchase and the
amount of additional Shares that may be credited to a purchaser as a
result of the combination of purchases.
In the event the dollar amount of commissions paid for such
combined purchases exceeds the maximum commissions for such combined
purchases (taking the volume discount into effect), you will be obligated
to forthwith return to the Company any excess commissions received. The
Company may adjust any future commissions due to you for any such excess
commissions that have not been returned.
Notwithstanding the foregoing, it is understood and agreed
that no commission shall be payable with respect to particular Shares if
the Company rejects a proposed subscriber's Subscription Agreement, which
it may do for any reason or for no reason, as set forth in the form of
Subscription Agreement. In addition, no selling commission, Marketing
Contribution or Due Diligence Expense Allowance shall be payable in
connection with the sale of Shares directly by the Company, in connection
with the performance of services, to employees and associates of the
Company and its Affiliates, the Advisor, Affiliates of the Advisor, the
Dealer Manager or their respective officers and employees and certain of
their affiliates who request and are entitled to such discount.
(ii) All selling commissions payable to you will be paid on a
weekly basis, substantially concurrently with the acceptance of a
subscriber as a Stockholder by the Company, in an amount equal to the
selling commissions payable with respect to such Shares; provided however,
the Company reserves the right, at its sole discretion, to change the
frequency of the payment of such commissions to a monthly basis.
(iii) Certain other Special Sales shall be effected directly
by the Company and not pursuant to this Agreement, and no selling
commission shall be payable in connection with such Special Sales,
including sales to one or more Soliciting Dealers and their respective
officers and employees and certain of their respective affiliates who
request and are entitled to purchase Shares net of selling commissions.
Furthermore, no selling commission shall be payable on the Shares credited
to an investor as a result of a volume discount or on sales of Shares to
certain investors whose contracts for investment advisory and related
brokerage services include a fixed or "wrap" fee feature. The term
"Special
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Sales" shall have the meaning ascribed to it in the Prospectus. The
Marketing Contribution and Due Diligence Expense Allowance will, however,
be allowed and paid with respect to those sales which are "Special Sales"
solely by virtue of (a) the presence of a contract for investment advisory
and related brokerage services with the proposed investor/subscriber which
includes a fixed or "wrap" fee feature , (b) being sales to the Soliciting
Dealers and their respective officers and employees and certain of their
respective affiliates who request and are entitled to purchase Shares net
of selling commissions, and (c) being sales of Shares which are entitled
to a volume discount, including the Shares credited to an investor as a
result of a volume discount. Any subsequent purchases of Shares by
investors who initially purchased Shares net of the 7% selling commission
are limited to a maximum discount of 5% of the public offering price per
Share.
(iv) Certain subscribers to the Company's Shares may agree
with their participating Soliciting Dealer and the Dealer Manager to have
selling commissions due with respect to the purchase of their Shares paid
over a period of up to six years pursuant to a deferred commission option
arrangement (the "Deferred Commission Option"), as more fully explained,
and subject to the conditions set forth, under the section "Plan of
Distribution--Deferred Commission Option" in the Company's Prospectus,
which section is incorporated by reference herein. Stockholders electing
the Deferred Commission Option will be required to pay a total of $9.40
per Share purchased upon subscription, rather than $10.00 per Share, with
respect to which $0.10 per Share will be payable by the Company to the
Dealer Manager as selling commissions due upon subscription, which may be
reallowed to the participating Soliciting Dealer by the Dealer Manager.
For each of the six years following such subscription on a date or dates
to be determined by the Dealer Manager, $0.10 per Share will be paid by
the Company to the Dealer Manager as deferred selling commissions with
respect to Shares sold pursuant to the Deferred Commission Option, which
amounts will be deducted from and paid out of cash distributions otherwise
payable to such stockholders holding such Shares, and may be reallowed to
the participating Soliciting Dealer by the Dealer Manager. The net
proceeds to the Company will not be affected by the election of the
Deferred Commission Option. Under this arrangement and based on a $10.00
per Share deemed value for each Share issued, a stockholder electing the
Deferred Commission Option will pay a 1% selling commission upon
subscription, rather than a 7% selling commission, and an amount equal to
up to a 1% selling commission per year thereafter for up to the next six
years which will be deducted from and paid by the Company out of cash
distributions otherwise payable to such stockholder.
As in any volume discount situation, selling commissions are
not paid on any Shares issued for a volume discount. Therefore, when the
deferred commission option is used, no deductions will be made for
deferred commission obligations from cash distributions payable on the
Shares issued for a volume discount, because there will not be any
deferred commission obligation as to those particular Shares. The number
of Shares issued, if any, for a volume discount, will be determined as
described above in Section 2(d)(i) of the Agreement.
At such time, if any, that the Company's Shares are listed on
a national securities exchange or included for quotation on a national
market system, or such listing or
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inclusion is reasonably anticipated to occur at any time prior to the
satisfaction of the remaining deferred commission obligations, the Company
shall accelerate all outstanding payment obligations under the Deferred
Commission Option. The amount of the remaining selling commissions due
shall be deducted and paid by the Company out of cash distributions
otherwise payable to such Stockholders during the time period prior to any
such listing of the Shares for trading on a national securities exchange
or inclusion for quotation on a national market system; provided that, in
no event may the Company withhold in excess of $0.60 per Share in the
aggregate during the six-year period following the subscription. The
maximum amount that may be withheld and the maximum number of years for
which selling commissions may be deferred will be lower when the volume
discount provisions are also applicable and less than 6% of the selling
commissions are deferred. To the extent that the cash distributions during
such time period are insufficient to satisfy the remaining deferred
selling commissions due, the obligations of the Company and the Company's
Stockholders to make any further payments of deferred selling commissions
under the Deferred Commission Option shall terminate and the Dealer
Manager (and participating Soliciting Dealers if the deferred selling
commissions are reallowed to them by the Dealer Manager) will not be
entitled to receive any further portion of the unpaid deferred selling
commissions following any such listing for trading or inclusion for
quotation of the Shares.
3. COVENANTS OF THE COMPANY. The Company covenants and agrees with you as
follows:
(a) Registration Statement. The Company will use its best efforts to
cause the Registration Statement and any subsequent amendments thereto to
become effective as promptly as possible and will not, at any time after
the Effective Date, file any amendment to the Registration Statement or
supplement to the Prospectus of which you shall not previously have been
advised and furnished a copy at a reasonable time prior to the proposed
filing or to which you shall have reasonably objected or which is not, to
the best of the Company's knowledge in compliance with the Act and the
Rules and Regulations. The Company will prepare and file with the
Commission and will use its best efforts to cause to become effective as
promptly as possible:
(i) any amendments to the Registration Statement or
supplements to the Prospectus which may be required pursuant to the
undertakings in the Registration Statement; and
(ii) upon your reasonable request any amendments to the
Registration Statement or supplements to the Prospectus which, in the
opinion of you or your counsel, may be necessary or advisable in view of
the requirements of the Act and the Rules and Regulations in connection
with the offer and sale of the Shares during the Offering Period.
(b) SEC Orders. As soon as the Company is advised or obtains
knowledge thereof, it will advise you of any request made by the
Commission for amending the Registration Statement, supplementing the
Prospectus or for additional information, or of the issuance by the
Commission of any stop order or of any other order preventing or
suspending the use of the Prospectus or the institution of any proceedings
for that purpose,
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and will use its best efforts to prevent the issuance of any such order
and, if any such order is issued, to obtain the removal thereof as
promptly as possible.
(c) Blue Sky Qualifications. The Company will use its best efforts
to qualify the Shares for offering and sale under the securities or blue
sky laws of such jurisdictions as you may reasonably request and to make
such applications, file such documents and furnish such information as may
be reasonably required for that purpose. The Company will, at your
request, furnish you copies of all material documents and correspondence
sent to or received from such jurisdictions (including, but not limited
to, summaries of telephone calls and copies of telegrams) and will
promptly advise you as soon as the Company obtains knowledge thereof to
the effect that the Shares are qualified for offering and sale in each
such jurisdiction. The Company will promptly advise you of any request
made by the securities administrators of each such jurisdiction for
revising the Registration Statement or the Prospectus or for additional
information or of the issuance by such securities administrators of any
stop order preventing or suspending the use of the Prospectus or of the
institution of any proceedings for that purpose, and will use its best
efforts to prevent the issuance of any such order and if any such order is
issued, to obtain the removal thereof as promptly as possible. The Company
will furnish you with a Blue Sky Survey dated as of the Effective Date,
which will be supplemented to reflect changes or additions to the
information disclosed in such survey.
(d) Amendments and Supplements. If at any time when a Prospectus
relating to the Shares is required to be delivered under the Act, any
event shall have occurred to the knowledge of the Company as a result of
which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact, or omit to state a material fact
necessary to make the statements therein not misleading in light of the
circumstances existing at the time it is so required to be delivered to a
subscriber, or if it is necessary at any time to amend the Registration
Statement or supplement the Prospectus relating to the Shares to comply
with the Act, the Company will promptly notify you thereof and will
prepare and file with the Commission an amendment or supplement which will
correct such statement or effect such compliance.
(e) Copies of Registration Statement. The Company will furnish you
copies of the Registration Statement (only one of which need be signed and
need include all exhibits), the Prospectus and all amendments and
supplements thereto, including any amendment or supplement prepared after
the Effective Date, and such other information with respect to the Company
as you may from time to time reasonably request, in each case as soon as
available and in such quantities as you may reasonably request.
(f) Qualification to Transact Business. The Company will take all
steps necessary to ensure that at all times the Company will be validly
existing 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.
11
(g) Authority to Perform Agreements. The Company undertakes to
obtain all consents, approvals, authorizations or orders of any court or
governmental agency or body which are required for the performance of this
Agreement and under the Organizational Documents or the consummation of
the transactions contemplated hereby and thereby, respectively, or the
conducting by the Company of the business described in the Prospectus.
(h) Copies of Reports. The Company will use its best efforts to
furnish to you as promptly as shall be practicable the following:
(i) a copy of each report or general communication (whether
financial or otherwise) sent to the Stockholders;
(ii) a copy of each report (whether financial or otherwise)
filed with the Commission; and
(iii) such other information as you may from time to time
reasonably request regarding the financial condition and operations of the
Company including, but not limited to, copies of operating statements of
properties acquired by the Company.
(i) Use of Proceeds. The Company will apply the proceeds from the
sale of the Shares as stated in the Prospectus or, if for any reason
whatsoever all or a portion of the proceeds of the Offering are not
applied or committed for use as stated within 12 months of the Termination
Date, the Company shall promptly return those proceeds from the sale of
the Shares not so applied or committed as stated in the Prospectus, with
interest, to the subscribers, each subscriber sharing in the return in the
ratio that the number of the Shares owned by such subscriber bears to the
total number of the Shares owned by all subscribers.
(j) Organization and Offering Expenses. In no event shall the total
of the organizational expenses and expenses of the Offering to be paid
directly by the Company exceed 15% of the gross proceeds of the Offering.
4. COVENANTS OF THE DEALER MANAGER. You covenant and agree with the
Company on your behalf and on behalf of the Soliciting Dealers as follows:
(a) Compliance with Laws. With respect to your participation and the
participation by each Soliciting Dealer in the offer and sale of the
Shares (including, without limitation any resales and transfers of
Shares), you agree, and each Soliciting Dealer agrees, to comply and shall
comply with any applicable requirements of the Act, the Securities
Exchange Act of 1934, as amended, and the published rules and regulations
of the Commission thereunder, and the applicable state securities or blue
sky laws, and the Rules of the NASD, specifically including, but not in
any way limited to, Rules 2440, 2730, 2740, and 2750 therein. In
particular, you agree not to deliver the sales literature (as defined
above) to any person prior to the Effective Date and, after the Effective
Date, not to deliver the sales literature to any person unless the sales
literature is accompanied or preceded by the Prospectus. In addition, you
shall, in accordance with applicable law or as prescribed by any state
securities administrator, provide or cause Soliciting Dealers to provide
to any
12
prospective investor copies of any prescribed document which is part of
the Registration Statement. If you intend to use electronic delivery means
in the distribution of the Prospectus to any person, you represent and
agree that you will comply with all appropriate procedures in compliance
with requirements of the Commission.
With respect to your and each Soliciting Dealer's participation in
any resales or transfers of the Shares, you agree, and each Soliciting
Dealer agrees, to comply and shall comply with any applicable requirements
as set forth above. In addition, you and each Soliciting Dealer agree that
should you or they assist with the resale or transfer of the Shares, you
and each Soliciting Dealer will fulfill the obligations pursuant to
Sections 3(b) and 4(d) of Rule 2810 of the Rules of the NASD.
(b) No Additional Information. In offering the Shares for sale, you
and each Soliciting Dealer shall not give or provide any information or
make any representation other than those contained in the Prospectus, the
sales literature or any other document provided to you for such purpose by
the Company.
(c) Sales of Shares. You and each Soliciting Dealer shall solicit
purchases of the Shares only in the jurisdictions in which you and such
Soliciting Dealer are legally qualified to so act and in which you and
each Soliciting Dealer have been advised by the Company that such
solicitations can be made.
(d) Subscription Agreement. Subscriptions will be submitted by you
and each Soliciting Dealer to the Company only on the form which is
included as Appendix C to the Prospectus or as such form of Subscription
Agreement may be revised by the Company. You and each Soliciting Dealer
understand and acknowledge that the Subscription Agreement must be
executed by the subscriber. In addition, you and each Soliciting Dealer
shall ensure that no Subscription Agreement is presented to the Company
for acceptance until at least five (5) business days after the date on
which the subscriber received the Prospectus.
(e) Suitability. In offering the Shares to any person, you and each
Soliciting Dealer shall have reasonable grounds to believe (based on such
information as the investment objectives, other investments, financial
situation and needs of the person or any other information known by you
after due inquiry) that: (i) such person has the capability of
understanding the fundamental aspects of the Company, which capacity may
be evidenced by the following: (A) the nature of employment experience;
(B) educational level achieved; (C) access to advice from qualified
sources, such as attorneys, accountants and tax advisors; and (D) prior
experience with investments of a similar nature; (ii) such person has
apparent understanding of: (A) the fundamental risks and possible
financial hazards of this type of investment; (B) the lack of liquidity of
this investment; (C) the Advisor's role in directing or managing the
investment; and (D) the tax consequences of the investment; and (iii) such
person has the financial capability to invest in the Company and you or
each Soliciting Dealer (as the case may be) shall maintain records
disclosing the basis upon which you and each Soliciting Dealer determined
the suitability of any persons offered Shares. Notwithstanding the
foregoing, you and each Soliciting Dealer shall have reasonable
13
grounds to believe that such person has either: (a) a minimum annual gross
income of $45,000 and a minimum net worth (exclusive of home, home
furnishing and automobiles) of $45,000; or (b) a minimum net worth
(determined with the foregoing exclusions) of $150,000. Suitability
standards are higher in certain states as set forth in the Subscription
Agreement and the Prospectus. You and/or the Soliciting Dealers shall
maintain, for at least six years, a record of the information obtained to
determine that an investor meets the 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) and 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.
(f) Due Diligence. Prior to offering the Shares for sale, you and
each Soliciting Dealer shall have conducted an inquiry such that you have
reasonable grounds to believe, based on information made available to you
by the Company through the Prospectus or other materials, that all
material facts are adequately and accurately disclosed and provide a basis
for evaluating the purchase of the Shares. In determining the adequacy of
disclosed facts pursuant to the foregoing, you and each Soliciting Dealer
may obtain, upon request, information on material facts relating at a
minimum to the following:
(1) items of compensation;
(2) Company properties;
(3) tax aspects;
(4) conflicts and risk factors; and
(5) appraisals and other pertinent reports.
Notwithstanding the foregoing, you and each Soliciting Dealer may rely
upon the results of an inquiry conducted by another Soliciting Dealer,
provided that:
(i) such Soliciting Dealer has reasonable grounds to believe
that such inquiry was conducted with due care;
(ii) the results of the inquiry were provided to you with the
consent of the Soliciting Dealer conducting or directing the inquiry; and
(iii) no Soliciting Dealer that participated in the inquiry is
an affiliate of the Company or the Advisor.
(g) Offering Price Adjustment. If, after the Effective Date, the
Company shall adjust the initial purchase price of $10.00 per Share for
the 150,000,000 Shares to be offered for sale on a "best efforts" basis in
the Offering, you agree (and each Soliciting Dealer agrees) that the total
of all compensation payable to the Dealer Manager as provided in
14
Section 2(d) above, shall be adjusted proportionally. In no event shall
the total of all such compensation paid to you and to all Soliciting
Dealers (i.e., the aggregate of the selling commission and the marketing
contribution and due diligence expense allowance) exceed nine and one-half
percent (9.5%) of the total of all subscription proceeds received by the
Company.
Prior to the sale of the Shares, you and each Soliciting Dealer shall inform the
prospective purchaser of all pertinent facts relating to the liquidity and
marketability of the Shares during the term of the investment.
5. EXPENSES. The Company agrees with you that, whether or not the
transactions contemplated in this Agreement are consummated, the Company will
pay all actual fees and expenses incident to the performance of its obligations
under this Agreement, including, but not limited to:
(a) the Commission's registration fee;
(b) expenses of printing the Registration Statement, the Prospectus
and any amendment or supplement thereto and the expense of furnishing to
you copies of the Registration Statement, the Prospectus and any amendment
or supplement thereto as herein provided;
(c) fees and expenses of its and your accountants and counsel in
connection with the Offering contemplated by this Agreement;
(d) fees and expenses incurred in connection with any required
filing with the NASD;
(e) all of your expenses in connection with the Offering, subject to
the limitations contained in the Prospectus, including, but not limited
to, the travel expenses and similar expenses of your employees and
personnel incurred in connection with the Offering; and
(f) 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.
In no event, however, will the total of: (a) the selling commissions paid
to you (which you may reallow to the Soliciting Dealers) and (b) the marketing
contribution and due diligence expense allowance paid to you (which you may
reallow to the Soliciting Dealers) and (c) the value attributable to the
Soliciting Dealer Warrants, exceed ten and one-half percent (10.5%) of the gross
proceeds of the Offering.
6. CONDITIONS OF OBLIGATIONS. Your obligations hereunder shall be subject
to the accuracy of the representations and warranties on the part of the Company
contained in Section 1 hereof, the accuracy of the statements of the Company
made pursuant to the provisions hereof, to
15
the performance by the Company of its covenants, agreements and obligations
contained in Sections 3 and 5 hereof, and to the following additional
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement shall have become effective not later than 5:00 p.m., Chicago,
Illinois time, on the day following the date of this Agreement, or such
later time and date as you and the Company shall have agreed; 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 or you, 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 you or your counsel.
(b) Accuracy of Registration Statement. You shall not have advised
the Company that the Registration Statement or the Prospectus, or any
amendment or any supplement thereto, in the reasonable opinion of you or
your counsel, contains any untrue statement of fact which is material, or
omits to state a fact which is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless you, each
Soliciting Dealer and each person, if any, who controls you or any
Soliciting Dealer within the meaning of the Act (collectively, the
"Indemnified Parties"), against any and all loss, liability, claim, damage
and expense whatsoever caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the
Prospectus or any amendment or supplement thereto, or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Such
indemnification shall be subject to the provisions of Sections 7(b) and
(c) of this Agreement.
The Company shall not provide indemnification for any liability or
loss suffered by you, nor shall it provide that you be held harmless for
any liability suffered by the Company unless all of the following
conditions are met: (i) the party seeking indemnification has determined,
in good faith, that its course of conduct, if such course of conduct
caused the loss or liability, was in the best interests of the Company;
(ii) the person seeking indemnification was acting on behalf of or
performing services on behalf of the Company; (iii) such liability or loss
was not the result of negligence or misconduct on the part of the party
seeking indemnification or the Indemnified Party; and (iv) such
indemnification or agreement to be held harmless is recoverable only out
of the assets of the Company and not from the Stockholders.
In no case shall the Company be liable under this indemnity
agreement with respect to any claim made against any of the Indemnified
Parties unless the Company shall have been notified in writing (in
the manner provided in Section 10 hereof) of the nature of the claim
within a reasonable time after the assertion thereof; but the failure to
so notify the
16
Company shall not relieve the Company from any liability which the Company
would have incurred otherwise than on account of this indemnity agreement.
The Company shall be entitled to participate, at its own expense, in the
defense of, or if it so elects within a reasonable time after receipt of
such notice, to assume the defense of any claim or suit for which any of
the Indemnified Parties seek indemnification hereunder. If the Company
elects to assume said defense, such defense shall be conducted by counsel
chosen by it and reasonably satisfactory to the Indemnified Parties.
In the event that the Company elects to assume the defense of any
such suit and retains such counsel, the Company shall not be liable under
this Section 7 to the Indemnified Parties in the suit for any legal or
other expenses subsequently incurred by the Indemnified Parties, and the
Indemnified Parties shall bear the fees and expenses of any additional
counsel retained by the Indemnified Parties unless: (A) the employment of
counsel by the Indemnified Party has been authorized by the Company; or
(B) the Company shall not in fact have employed counsel to assume the
defense of such action, in either of which events such fees and expenses
shall be borne by the Company.
The Company may advance amounts to the Indemnified Parties for legal
and other expenses and costs incurred as a result of any legal action for
which indemnification is being sought only if all of the following
conditions are satisfied: (i) the legal action relates to acts or
omissions with respect to the performance of duties or services by one or
more Indemnified Parties for or on behalf of the Company; (ii) the legal
action is initiated by a third party who is not a Stockholder and a court
of competent jurisdiction specifically approves such advancement; and
(iii) the Indemnified Parties receiving such advances undertake to repay
the advanced funds to the Company, together with the applicable legal rate
of interest thereon, in cases in which such Indemnified Parties are
thereafter found not to be entitled to indemnification.
Notwithstanding the foregoing provisions of this Section 7, the
Company will not be liable in any such case to the extent that any loss,
liability, claim, damage or expense 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 or on behalf of you or any Soliciting Dealer
for use in the preparation of the Registration Statement (or any amendment
thereof) or the Prospectus (or any supplement thereto). The foregoing
indemnity agreement is subject to the further condition that, insofar as
it relates to any untrue statement, alleged untrue statement, omission or
alleged omission made in the Prospectus but eliminated or remedied in any
amendment or supplement thereto, such indemnity agreement shall not inure
to your benefit or to any Soliciting Dealer from whom the person asserting
any loss, liability, claim, damage or expense purchased the Shares which
are the subject thereof (or to the benefit of any person who controls you
or any Soliciting Dealer), if a copy of the Prospectus as so amended or
supplemented was not sent or given to such person at or prior to the time
the subscription of such person was accepted by the Company; but only if a
copy of the Prospectus (as so amended or supplemented) had been supplied
by the Company to you or any Soliciting Dealer prior to such acceptance.
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
17
(b) The indemnification and agreement to hold harmless provided in
subparagraph (a) of this Section 7 is further limited to the extent that
no such indemnification by the Company of you or a Soliciting Dealer 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: (i) there has been a successful adjudication
on the merits of each count involving alleged securities law violations by
you or any Soliciting Dealer and a court of competent jurisdiction has
approved indemnification of the litigation costs; (ii) such claims against
you or any Soliciting Dealer have been dismissed with prejudice on the
merits by a court of competent jurisdiction as to the particular
indemnitee and the court has approved indemnification of the litigation
costs; or (iii) a court of competent jurisdiction approves a settlement of
the claims against you or any Soliciting Dealer and finds that
indemnification of the settlement and related costs should be made and the
court considering the request has been advised of the position of the
Commission and of the published positions of the Tennessee Securities
Division and any other state securities regulatory authority in which
securities of the Company were offered and sold respecting the
availability and/or propriety of indemnification for securities law
violations.
(c) You and each Soliciting Dealer agree to indemnify and hold
harmless the Company, and each person, if any, who controls the Company
within the meaning of the Act and any controlling person of the Company:
(i) to the same extent as in the foregoing indemnity from the Company to
you and each Soliciting Dealer, but only with reference to statements or
omissions based upon the information relating to you or any Soliciting
Dealer furnished in writing by you or such Soliciting Dealer or on your or
their behalf for use in the Registration Statement or the Prospectus, or
any amendment or supplement thereto; and (ii) for any violation by you or
any Soliciting Dealer in the sale of the Shares of any applicable state or
federal law or any rule, regulation or instruction thereunder, provided
that such violation is not committed in reliance on any violation by the
Company of such law, rule, regulation or instruction.
You and each Soliciting Dealer further agree to indemnify and hold
harmless the Company and any controlling person of the Company against any
losses, liabilities, claims, damages or expenses to which the Company or
any such controlling person may become subject under the securities or
blue sky laws of any jurisdiction insofar as such losses, liabilities,
claims, damages or expenses (or actions, proceedings or investigations in
respect thereof) arise by reason of a sale of the Shares through the
efforts of you (with respect to sales effected without the assistance of a
Soliciting Dealer) or a Soliciting Dealer (with respect to sales effected
by such Soliciting Dealer) which is effected other than in accordance with
the Blue Sky Survey supplied to you by the Company (a "NonPermitted
Sale"), whether such NonPermitted Sale is caused by a sale in a
jurisdiction other than those specified in the Blue Sky Survey, by a sale
in a jurisdiction in which you or the Soliciting Dealer is not registered
to sell the Shares or which results in a sale in a jurisdiction in excess
of the number of Shares permitted to be sold in such jurisdiction, and
will reimburse the Company or any such controlling person for any legal
fees, monetary penalties or other expenses reasonably incurred by any of
them in connection with investigating, curing or defending against any
such losses, liabilities, claims, damages, actions, proceedings or
18
investigations. This indemnity agreement will be in addition to any
liability which you or any Soliciting Dealer may otherwise have.
(d) The notice provisions contained in Section 7(a) hereof, relating
to notice to the Company, shall be equally applicable to you and each
Soliciting Dealer if the Company or any controlling person of the Company
seeks indemnification pursuant to Section 7(c) hereof. In addition, you
and each Soliciting Dealer may participate in the defense, or assure the
defense, of any such suit so sought under Section 7(c) hereof and have the
same rights and privileges as the Company enjoys with respect to such
suits under Section 7(a) hereof.
8. TERMINATION OF THIS AGREEMENT. This Agreement may be terminated by you
in the event that the Company shall have materially failed to comply with any of
the material provisions of this Agreement on its part to be performed at or
prior to the Effective Date or if any of the representations, warranties,
covenants or agreements of the Company herein contained shall not have been
materially complied with or satisfied within the times specified.
In any case, this Agreement shall terminate at the close of business on
the Termination Date. Termination of this Agreement pursuant to this Section 8
shall be without liability of any party to any other party other than as
provided in Sections 5 and 7 hereof, which shall survive such termination.
9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Agreement or
contained in certificates of the Company submitted pursuant hereto shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of you or any person who controls you, or by or on behalf of the
Company, and shall survive the Termination Date.
10. NOTICES. All communications hereunder shall be in writing and, if sent
to you, shall be mailed by registered mail or delivered, telefacsimilied or
telegraphed and confirmed in writing to Inland Securities Corporation, 0000
Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000, (Attention: Xx. Xxxxxx X. Xxxxxx,
President) and, if sent to the Company, shall be mailed by registered mail or
delivered, telefacsimilied or telegraphed and confirmed in writing to Inland
Retail Real Estate Trust, Inc., 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx
00000, (Attention: Xx. Xxxxxxx X. Xxxxxx, Vice President).
11. REFERENCE TO INLAND SECURITIES CORPORATION. All references herein to
Inland Securities Corporation or the Dealer Manager hereunder shall be deemed to
include all successors and assigns of Inland Securities Corporation.
12. PARTIES. This Agreement shall inure to the benefit of and be binding
upon you, the Company and the successors and assigns of you and the Company.
This Agreement and the conditions and provisions hereof, are intended to be and
shall be for the sole and exclusive benefit of the parties hereto and their
respective successors and controlling persons, and for the benefit of no other
person, firm or corporation, and the term "successors and assigns," as used
herein, shall not include any purchaser of Shares as such.
19
13. 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 Illinois.
14. EFFECTIVENESS OF AGREEMENT. This Agreement shall become effective at
5:00 p.m., Chicago, Illinois time, on the Effective Date, or at such earlier
time as you and the Company agree.
15. NOT A SEPARATE ENTITY. Nothing contained herein shall constitute you
and/or the Soliciting Dealers or any of them an association, partnership,
limited liability company, unincorporated business or other separate entity.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
20
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.
Inland Retail Real Estate Trust, Inc.,
a Maryland corporation
By:
-------------------------------------------
Title:
----------------------------------------
Accepted as of the date first above written:
Inland Securities Corporation
By:
--------------------------------------------
Title:
-----------------------------------------
21
EXHIBIT A TO DEALER MANAGER AGREEMENT
INLAND RETAIL REAL ESTATE TRUST, INC.
SOLICITING DEALERS AGREEMENT
Ladies and Gentlemen:
We have entered into an agreement (the "Dealer Manager Agreement") which
is a part hereof and attached hereto, with Inland Retail Real Estate Trust,
Inc., a Maryland corporation (the "Company"), under which we have agreed to use
our best efforts to solicit subscriptions for the shares of common stock (the
"Shares") in the Company. The Company is offering to the public an aggregate
maximum of up to 150,000,000 Shares at a price of $10 per Share on a "best
efforts" basis, up to 12,000,000 Shares issued pursuant to the Company's
distribution reinvestment program at a price of $9.50 per Share and 6,000,000
warrants issuable to us and to you (the "Soliciting Dealer Warrants") (and
Shares issuable on exercise of the Soliciting Dealer Warrants) which are
issuable in certain circumstances in connection with the sale of Shares (the
"Offering").
In connection with the performance of our obligations under Section 2 of
the Dealer Manager Agreement, we are authorized to retain the services of
securities dealers who are members of the National Association of Securities
Dealers, Inc. (the "Soliciting Dealers") to solicit subscriptions. You are
hereby invited to become a Soliciting Dealer and, as such, to use your best
efforts to solicit subscribers for Shares, in accordance with the following
terms and conditions:
1. A registration statement (the "Registration Statement") with respect to
the 168,000,000 Shares and the Soliciting Dealer Warrants has been filed with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), and has become effective. The 168,000,000
Shares, the Soliciting Dealer Warrants and the Offering are more particularly
described in the enclosed prospectus (the "Prospectus") which is part of the
Registration Statement. Additional copies of the Prospectus will be supplied to
you in reasonable quantities upon request and may be provided to you in
electronic version by us or by the Company. We will also provide you with
reasonable quantities of any supplemental literature prepared by the Company in
connection with the offering of the Shares (the "Offering").
2. Solicitation and other activities by the Soliciting Dealers hereunder
shall be undertaken only in accordance with the Dealer Manager Agreement, this
Agreement, the Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the applicable rules and regulations of the Commission, the
Blue Sky Survey hereinafter referred to and the Rules of the National
Association of Securities Dealers, Inc. (the "NASD"), specifically including,
but not in any way limited to, NASD Rules 2440, 2730, 2740, and 2750. In
offering the sale of Shares to any person, each Soliciting Dealer shall have
reasonable grounds to believe (based on such information as the investment
objectives, other investments, financial situation and needs of the person or
any other information known by you after due inquiry) that: (i) such person is
or will be in a financial position appropriate to enable such person to realize
to a significant extent the benefits described in the Prospectus and has a net
worth sufficient to sustain the risks inherent in the program, including loss of
investment and lack of liquidity; (ii) the purchase of the Shares is otherwise
suitable for such person, and each Soliciting Dealer shall maintain records
disclosing the basis upon which each Soliciting Dealer determined the
suitability of any persons offered Shares; and (iii) such person has either: (a)
a minimum annual gross income of $45,000 and a minimum net worth
(exclusive of home, home furnishings and automobiles) of $45,000; or (b) a
minimum net worth (determined with the foregoing exclusions) of $150,000.
If the investor is a resident of Massachusetts, Missouri, Oregon or
Tennessee, the investor must have either: (i) a minimum net worth (excluding
home, home furnishings and automobiles) of $225,000; or (ii) a minimum annual
gross income of $60,000 and a minimum net worth (exclusive of home, home
furnishings and automobiles) of $60,000.
If the investor is a resident of Maine, the investor must have either: (i)
a minimum net worth (excluding home, home furnishings and automobiles) of
$200,000; or (ii) a minimum annual gross income of $50,000 and a minimum net
worth (exclusive of home, home furnishings and automobiles) of $50,000.
In addition, if the investor is a resident of Ohio or Pennsylvania, the
investment may not exceed 10% of the investor's liquid net worth.
Each Soliciting Dealer agrees: (i) to deliver to each person who
subscribes for the Shares, a Prospectus, as then supplemented or amended, prior
to the tender of his subscription agreement (the "Subscription Agreement"); (ii)
to comply promptly with the written request of any person for a copy of the
Prospectus during the period between the effective date of the Registration
Statement and the later of the termination of the distribution of the Shares or
the expiration of 40 days after the first date upon which the Shares were
offered to the public; (iii) to deliver in accordance with applicable law or as
prescribed by any state securities administrator to any person a copy of any
prescribed document included within the Registration Statement; and (iv) to
maintain in its files for at least six years, documents disclosing the basis
upon which the determination of suitability was reached as to each purchaser of
Shares. If any such Soliciting Dealer intends to use electronic delivery means
in distributing the Prospectus to any person, such Soliciting Dealer represents
and agrees that it will comply with all appropriate procedures in compliance
with requirements of the Commission.
3. Subject to the terms and conditions set forth herein and in the Dealer
Manager Agreement, the Company shall pay to you a selling commission of 7% of
the price paid per Share for all Shares sold (except for Special Sales) from the
150,000,000 Shares offered on a "best efforts" basis for which you have acted as
Soliciting Dealer pursuant to this Agreement. Soliciting Dealers will also
receive, subject to applicable federal and state securities laws, one Soliciting
Dealer Warrant for each 25 Shares sold by such Soliciting Dealer during the
Offering (the "Warrants"), which Warrants will be reallowed from the Inland
Securities Corporation, as the dealer manager (the "Dealer Manager"), from the
Warrants issued and sold to it by the Company for a purchase price of $.0008 per
Warrant. The Company will not issue more than 6,000,000 of the Warrants in
connection with the Offering of the Shares. The Warrants will be issued
quarterly commencing 60 days after the date on which Shares are first sold
pursuant to the Offering. In making a request that the Company or the Dealer
Manager transfer Warrants, you hereby represent that the transfer of such
Warrants to you is permissible and proper under applicable state securities laws
for sales of Shares to residents of the appropriate state(s). All Shares sold by
the Company in the Offering, other than through the distribution reinvestment
program will be included in the computation of the number of Shares sold to
determine the number of Soliciting Dealer Warrants to be issued. The holder of
2
a Warrant will be entitled to purchase one Share from the Company at a price of
$12 (or 120% of the public offering price per Share, if the then current
offering price of Shares in the Offering is higher than $10 per Share) during
the time period beginning one year from the date of the first issuance of any of
the Soliciting Dealer Warrants and ending five years from the date of such first
issuance (the "Exercise Period"). If a Soliciting Dealer Warrant has not been
exercised by the end of the Exercise Period, it will terminate and the holder
thereof will have no further rights thereunder. Soliciting Dealers should
consult their tax advisors regarding the income tax aspects of receiving and/or
exercising the Soliciting Dealer Warrants.
Subject to certain conditions and exceptions explained below, investors
making an initial cash investment of at least $1,000,000 through the same
Soliciting Dealer may receive, in the form of a volume discount, a reduction of
the customary 7% selling commission payable in connection with the purchase of
those Shares. The volume discount will be in such amount as may be agreed upon
between the subscriber and the participating Soliciting Dealer, subject to the
approval of the Dealer Manager, but may not exceed 6%. The amount of the selling
commissions per Share will be reduced by the same proportionate amount as the
volume discount may be increased, so that the sum of the selling commissions per
Share and the volume discount will always equal 7%. For example, if a volume
discount of 2% or 3% is agreed upon, then the amount of selling commissions per
Share would be reduced to 5% or 4%, respectively.
Any reduction in the amount of the selling commissions in respect of
volume discounts received may be credited to the investor in the following three
ways: (1) as an actual reduction in the amount of selling commissions, (2) in
the form of additional whole Shares or fractional Shares, or (3) any combination
of (1) and (2), as may be agreed upon between the subscriber and the
participating Soliciting Dealer, subject to the approval of the Dealer Manager.
The agreement between the subscriber and the Soliciting Dealer as to the
method of effecting the volume discount and the amount of the volume discount
must be set forth in writing in an instrument satisfactory in form and substance
to the Company and to the Dealer Manager.
Certain purchases may be combined for the purpose of qualifying for a
volume discount and crediting a purchaser or purchasers with additional Shares
for the above described volume discount, and for determining commissions
reallowable to you, so long as all such combined purchases are made through you
and approved by the Company. Purchases by spouses may be combined and purchases
by any investor may be combined with other purchases of Shares to be held as
joint tenants or a tenant in common by such investor with others for purposes of
computing amounts invested. Purchases by tax-exempt entities may only be
combined with purchases by other tax-exempt entities for purposes of computing
amounts invested only if investment decisions are made by the same Person,
provided that if the investment decisions are made by an independent investment
adviser, that investment adviser may not have any direct or indirect beneficial
interest in any of the tax-exempt entities whose purchases are sought to be
combined. The investor must xxxx the "Additional Investment" space on the
Subscription Agreement Signature Page in order for purchases to be combined. The
Company is not responsible for failing to combine purchases, where the investor
fails to xxxx the "Additional Investment" space.
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If the Subscription Agreements for the purchases to be combined are
submitted at the same time, then the additional Shares to be credited to the
purchasers as a result of such combined purchases will be credited on a pro rata
basis. If the Subscription Agreements for the purchases to be combined are not
submitted at the same time, then any additional Shares to be credited as a
result of such combined purchases will be credited to the last component
purchase, unless the Company is otherwise directed in writing at the time of
such submission; except however, the additional Shares to be credited to any
Tax-Exempt Entities whose purchases are combined for purposes of the volume
discount will be credited only on a pro rata basis based on the amount of the
investment of each Tax-Exempt Entity and their combined purchases.
Notwithstanding the preceding paragraphs, in no event shall any investor
receive a discount greater than 5% on any purchase of Shares if such investor
already owns, or may be deemed to already own, any Shares. This restriction may
limit the amount of the volume discount available to a purchaser after the
purchaser's initial purchase and the amount of additional Shares that may be
credited to a purchaser as a result of the combination of purchases.
In the event the dollar amount of commissions paid for such combined
purchases exceeds the maximum commissions for such combined purchases (taking
the volume discount into effect), you will be obligated to forthwith return to
the Dealer Manager (for credit to the Company) any excess commissions received.
The Dealer Manager may adjust any future commissions due to you for any such
excess commissions that have not been returned.
You (and other Soliciting Dealers) also may receive an amount equal to a
maximum of an additional 1.5% of the price per Share for all Shares sold (except
for certain Special Sales) from the 150,000,000 Shares offered on a "best
efforts" basis for which you have acted as Soliciting Dealer hereunder, as a
sales credit (as described it the following paragraph) (equal to 1%) and due
diligence expense allowance (equal to 0.5%). However, except to the extent set
forth below, such amounts will only be paid to a Soliciting Dealer for actual
marketing and due diligence expenses. Furthermore, you (and other Soliciting
Dealers) will not be paid any portion of the wholesaling fees paid in connection
with the Offering. Such wholesaling fees and the sales credit described in the
following paragraph are included within the maximum Marketing Contribution.
You (and other Soliciting Dealers) who sell more than a predetermined
number of Shares (to be determined by the Dealer Manager annually on a calendar
year basis) shall be entitled to receive a sales credit in the amount of 1% of
the price of all Shares sold by that Soliciting Dealer, which amount(s) shall be
paid quarterly, in arrears, upon first reaching the predetermined annual
threshold and each quarter thereafter during the calendar year in which the
Soliciting Dealer is credited with additional sales. Certain marketing and due
diligence expenses such as Soliciting Dealer conferences and due diligence fees
may be advanced to a Soliciting Dealer and later deducted from that Soliciting
Dealer's sales credit. Any sales credit shall be deducted from the maximum
Marketing Contribution, which may otherwise be reallowable to the Soliciting
Dealer.
You (and other Soliciting Dealers) may reallow any portion of the above
sales credit to its registered representatives as is permitted under applicable
law and regulations including, without limitation, the federal and any
applicable state securities laws, any rules and/or regulations thereunder and
the rules and regulations of the NASD.
4
In connection with the performance of services, employees, Directors and
associates of the Company and its Affiliates, the Advisor, Affiliates of the
Advisor, the Dealer Manager and their respective officers and employees and
certain of their affiliates will be permitted to purchase Shares, as Special
Sales, net of selling commissions, the Marketing Contribution and the Due
Diligence Expense Allowance, and you shall not be entitled to receive any
compensation attributable to any such purchase(s).
Certain subscribers to the Company's Shares may agree with their
participating Soliciting Dealer and the Dealer Manager to have selling
commissions due with respect to the purchase of their Shares paid over a period
of up to six years pursuant to a deferred commission option arrangement (the
"Deferred Commission Option"), as more fully explained, and subject to the
conditions set forth, under the section "Plan of Distribution--Deferred
Commission Option" in the Company's Prospectus, which section is incorporated by
reference herein. Stockholders electing the Deferred Commission Option will be
required to pay a total of $9.40 per Share purchased upon subscription, rather
than $10.00 per Share, with respect to which $0.10 per Share will be payable by
the Company to the Dealer Manager as selling commissions due upon subscription,
which may be reallowed to the participating Soliciting Dealer by the Dealer
Manager. For each of the six years following such subscription on a date or
dates to be determined by the Dealer Manager, $0.10 per Share will be paid by
the Company to the Dealer Manager as deferred selling commissions with respect
to Shares sold pursuant to the Deferred Commission Option, which amounts will be
deducted from and paid out of cash distributions otherwise payable to such
stockholders holding such Shares, and may be reallowed to the participating
Soliciting Dealer by the Dealer Manager. The net proceeds to the Company will
not be affected by the election of the Deferred Commission Option. Under this
arrangement and based on a $10.00 per Share deemed value for each Share issued,
a stockholder electing the Deferred Commission Option will pay a 1% selling
commission upon subscription, rather than a 7% selling commission, and an amount
equal to up to a 1% selling commission per year thereafter for up to the next
six years which will be deducted from and paid by the Company out of cash
distributions otherwise payable to such stockholder.
As in any volume discount situation, selling commissions are not paid on
any Shares issued for a volume discount. Therefore, when the deferred commission
option is used, no deductions will be made for deferred commission obligations
from cash distributions payable on the Shares issued for a volume discount,
because there will not be any deferred commission obligation as to those
particular Shares. The number of Shares issued, if any, for a volume discount,
will be determined as described above in Section 2(d)(i) of the Agreement.
At such time, if any, that the Company's Shares are listed on a national
securities exchange or included for quotation on a national market system, or
such listing or inclusion is reasonably anticipated to occur at any time prior
to the satisfaction of the remaining deferred commission obligations, the
Company shall accelerate all outstanding payment obligations under the Deferred
Commission Option. The amount of the remaining selling commissions due shall be
deducted and paid by the Company out of cash distributions otherwise payable to
such Stockholders during the time period prior to any such listing of the Shares
for trading on a national securities exchange or inclusion for quotation on a
national market system; provided that, in no event may the Company withhold in
excess of $0.60 per Share in the aggregate during the six-year period following
the subscription. The maximum amount that may be withheld and the maximum number
of years for which selling commissions may be deferred will be lower when the
volume discount provisions are
5
also applicable and less than 6% of the selling commissions are deferred. To the
extent that the cash distributions during such time period are insufficient to
satisfy the remaining deferred selling commissions due, the obligations of the
Company and the Company's Stockholders to make any further payments of deferred
selling commissions under the Deferred Commission Option shall terminate and the
Dealer Manager (and participating Soliciting Dealers if the deferred selling
commissions are reallowed to them by the Dealer Manager) will not be entitled to
receive any further portion of the unpaid deferred selling commissions following
any such listing for trading or inclusion for quotation of the Shares.
4. We reserve the right to notify you by telegram or by other means of the
number of Shares reserved for sale by you. Such Shares will be reserved for sale
by you until the time specified in our notification to you. Sales of any
reserved Shares after the time specified in the notification to you or any
requests for additional Shares will be subject to rejection in whole or in part.
5. Payments for Shares shall be made by checks payable to "LBNA/Escrow
Agent for IRRET" and forwarded together with a copy of the Subscription
Agreement, which is attached as Appendix C to the Prospectus or such other form
of Subscription Agreement as may be revised by the Company, executed by the
subscriber, to Inland Securities Corporation, 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx,
Xxxxxxxx 00000, not later than noon of the next business day after receipt of
such Subscription Agreement and check (when your internal supervisory procedures
are completed at the site at which the Subscription Agreement and check were
received by you) or, when your internal supervisory procedures are performed at
a different location (the "Final Review Office"), you shall transmit the check
and Subscription Agreement to the Final Review Office by the end of the next
business day following your receipt of the Subscription Agreement and check. The
Final Review Office will, by the end of the next business day following its
receipt of the Subscription Agreement and check, forward both the Subscription
Agreement and check to the Dealer Manager as processing broker-dealer. If any
Subscription Agreement solicited by you is rejected by the Company, the
Subscription Agreement and check will be forwarded to the escrow agent for
prompt return to the rejected subscriber.
6. We will inform you as to the jurisdictions in which we have been
advised by the Company that the Shares have been qualified for sale or are
exempt under the respective securities or "blue sky" laws of such jurisdictions;
but we have not assumed and will not assume any obligation or responsibility as
to your right to act as a broker and/or dealer with respect to the Shares in any
such jurisdiction. You agree that you will not make any offers except in states
in which we may advise you that the Offering has been qualified or is exempt and
further agree to assure that each person to whom you sell Shares (at both the
time of the initial purchase as well as at the time of any subsequent purchases)
meets any special suitability standards which apply to sales in a particular
jurisdiction, as described in the Blue Sky Survey and the Subscription
Agreement. Neither we nor the Company assumes any obligation or responsibility
in respect of the qualification of the Shares covered by the Prospectus under
the laws of any jurisdiction or your qualification to act as a broker and/or
dealer with respect to the Shares in any jurisdiction. The Blue Sky Survey which
has been or will be furnished to you indicates the jurisdictions in which it is
believed that the offer and sale of Shares covered by the Prospectus is exempt
from, or requires action under, the applicable blue sky or securities laws
thereof, and what action, if any, has been taken with respect thereto.
6
It is understood and agreed that under no circumstances will you, as a
Soliciting Dealer, engage in any activities hereunder in any jurisdiction in
which you may not lawfully so engage or in any activities in any jurisdiction
with respect to the Shares in which you may lawfully so engage unless you have
complied with the provisions hereof.
7. Neither you nor any other person is authorized by the Company or by us
to give any information or make any representations in connection with this
Agreement or the offer of Shares other than those contained in the Prospectus,
as then amended or supplemented, or any sales literature approved by us and the
Company. You agree not to publish, circulate or otherwise use any other
advertisement or solicitation material without our prior written approval. You
are not authorized to act as our agent in any respect, and you agree not to act
as such agent and not to purport to act as such agent.
8. We shall have full authority to take such action as we may deem
advisable with respect to all matters pertaining to the Offering or arising
thereunder. We shall not be under any liability (except for (i) our own lack of
good faith and (ii) for obligations expressly assumed by us hereunder) for or in
respect of the validity or value of or title to, the Shares; the form of, or the
statements contained in, or the validity of, the Registration Statement, the
Prospectus or any amendment or supplement thereto, or any other instrument
executed by Inland Retail Real Estate Advisory Services, Inc., the Company's
advisor (the "Advisor"), the Company or by others; the form or validity of the
Dealer Manager Agreement or this Agreement; the delivery of the Shares; the
performance by the Advisor, the Company or by others of any agreement on its or
their part; the qualification of the Shares for sale under the laws of any
jurisdiction; or any matter in connection with any of the foregoing; provided,
however, that nothing in this paragraph shall be deemed to relieve the Company
or the undersigned from any liability imposed by the Act. No obligations on the
part of the Company or the undersigned shall be implied or inferred herefrom.
9. Under the Dealer Manager Agreement, the Company has agreed to indemnify
you and us and each person, if any, who controls you or us, in certain instances
and against certain liabilities, including liabilities under the Act in certain
circumstances. You agree to indemnify the Company and each person who controls
it as provided in the Dealer Manager Agreement and to indemnify us to the extent
and in the manner that you agree to indemnify the Company in such Dealer Manager
Agreement.
10. You hereby authorize and ratify the execution and delivery of the
Dealer Manager Agreement by us as Dealer Manager for ourselves and on behalf of
the Soliciting Dealers (including you) and authorize us to agree to any
variation of its terms or provisions and to execute and deliver any amendment,
modification or supplement thereto. Each Soliciting Dealer hereby agrees to be
bound by all provisions of the Dealer Manager Agreement relating to Soliciting
Dealers. You also authorize us to exercise, in our discretion, all the authority
or discretion now or hereafter vested in us by the provisions of the Dealer
Manager Agreement and to take all such actions as we may believe desirable in
order to carry out the provisions of the Dealer Manager Agreement and of this
Agreement.
11. This Agreement, except for the provisions of Sections 8 and 9 hereof,
may be terminated at any time by either party hereto by two days' prior written
notice to the other party and,
7
in all events, this Agreement shall terminate on the termination date of the
Dealer Manager Agreement, except for the provisions of Sections 8 and 9 hereof.
12. Any communications from you should be in writing addressed to us at
Inland Securities Corporation, 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000,
Attention: Xx. Xxxxxx X. Xxxxxx, President. Any notice from us to you shall be
deemed to have been duly given if mailed, communicated by telegraph or
telefacsimile or delivered by overnight courier to you at your address shown
below.
13. Nothing herein contained shall constitute the undersigned, you, the
other Soliciting Dealers or any of them as an association, partnership, limited
liability company, unincorporated business or other separate entity.
14. Prior to offering the Shares for sale, you shall have conducted an
inquiry such that you have reasonable grounds to believe, based on information
made available to you by the Company or the Advisor through the Prospectus or
other materials, that all material facts are adequately and accurately disclosed
and provide a basis for evaluating a purchase of Shares. In determining the
adequacy of disclosed facts pursuant to the foregoing, each Soliciting Dealer
may obtain, upon request, information on material facts relating at a minimum to
the following:
(1) items of compensation;
(2) physical properties;
(3) tax aspects;
(4) financial stability and experience of the Company and
the Advisor;
(5) conflicts and risk factors; and
(6) appraisals and other pertinent reports.
Notwithstanding the foregoing, each Soliciting Dealer may rely upon the results
of an inquiry conducted by another Soliciting Dealer, provided that:
(i) such Soliciting Dealer has reasonable grounds to believe
that such inquiry was conducted with due care;
(ii) the results of the inquiry were provided to you with the
consent of the Soliciting Dealer conducting or directing
the inquiry; and
(iii) no Soliciting Dealer that participated in the inquiry is
an affiliate of the Company.
Prior to the sale of the Shares, each Soliciting Dealer shall inform the
prospective purchaser of all pertinent facts relating to the liquidity and
marketability of the Shares during the term of the investment.
If the foregoing is in accordance with your understanding and agreement,
please sign and return the attached duplicate of this Agreement. Your indicated
acceptance thereof shall constitute a binding agreement between you and us.
8
Very truly yours,
INLAND SECURITIES CORPORATION
By:
--------------------------------------
Title:
------------------------------------
____________ ___, 2002
9
We confirm our agreement to act as a Soliciting Dealer pursuant to all the
terms and conditions of the above Soliciting Dealer Agreement and the attached
Dealer Manager Agreement. We hereby represent that we will comply with the
applicable requirements of the Act and the Exchange Act and the published Rules
and Regulations of the Commission thereunder, and applicable blue sky or other
state securities laws. We confirm that we are a member in good standing of the
NASD. We hereby represent that we will comply with the Rules of the NASD and all
rules and regulations promulgated by the NASD.
Dated: ____________ ___, 2002
---------------------------------------
Name of Soliciting Dealer
---------------------------------------
Federal Identification Number
By:
------------------------------------
Authorized Signature
Kindly have checks representing commissions forwarded as follows (if different
than above):
(Please type or print)
Name of Firm:
--------------------------------------------------------
Address:
--------------------------------------------------------
Street
--------------------------------------------------------
City
--------------------------------------------------------
State and Zip Code
--------------------------------------------------------
(Area Code) Telephone No.
Attention:
--------------------------------------------------------
10
