EXHIBIT 1.1
XXXXX REAL ESTATE INVESTMENT TRUST, INC.
Up to 220,000,000 Shares of Common Stock/$2,190,000,000
DEALER MANAGER AGREEMENT
March __, 2004
Xxxxx Real Estate Securities, Inc.
Suite 5880
0000 Xxxx Xxx Xxxxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Ladies and Gentlemen:
Xxxxx Real Estate Investment Trust, Inc., a Maryland corporation (the
"Company"), is registering for public sale a maximum of 220,000,000 shares (the
"Shares") of its common stock, $.001 par value per share (the "Offering"), to be
issued and sold for an aggregate purchase price of $2,190,000,000 (200,000,000
shares to be offered to the public at a purchase price of $10.00 per share and
20,000,000 shares to be offered pursuant to the Company's dividend reinvestment
plan at a purchase price of $9.50 per share). The minimum purchase by any one
person shall be 250 Shares except as otherwise indicated in the Prospectus or in
any letter or memorandum from the Company to Xxxxx Real Estate Securities, Inc.
(the "Dealer Manager"). It is anticipated that the Dealer Manager will enter
into Selected Dealer Agreements in the form attached to this Dealer Manager
Agreement as Exhibit "A" with other broker-dealers participating in the Offering
(each dealer being referred to herein as a "Dealer" and said dealers being
collectively referred to herein as the "Dealers"). This Dealer Manager
Agreement shall be effective upon the registration statement (as described in
Section 1.1 below) becoming effective with the Securities and Exchange
Commission (the "SEC"). The Company shall have the right to approve any material
modifications or addendums to the form of the Selected Dealer Agreement. Terms
not defined herein shall have the same meaning as in the Prospectus. In
connection therewith, the Company hereby agrees with the Dealer Manager, as
follows:
1. Representations and Warranties of the Company
The Company represents and warrants to the Dealer Manager and each
Dealer with whom the Dealer Manager enters into a Selected Dealer Agreement
that:
1.1 A registration statement with respect to the Company has
been prepared by the Company in accordance with applicable requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the applicable
rules and regulations (the "Rules and Regulations") of the SEC promulgated
thereunder, covering the Shares. Said registration statement, which includes a
preliminary prospectus, was initially filed with the SEC on September 12, 2003.
Copies of such registration statement and each amendment thereto have been or
will be delivered to the Dealer Manager. (The registration
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statement and prospectus contained therein, as finally amended and revised at
the effective date of the registration statement, are respectively hereinafter
referred to as the "Registration Statement" and the "Prospectus," except that if
the Prospectus filed by the Company pursuant to Rule 424(b) under the Securities
Act shall differ from the Prospectus, the term "Prospectus" shall also include
the Prospectus filed pursuant to Rule 424(b).)
1.2 The Company has been duly and validly organized and formed
as a corporation under the laws of the State of Maryland, with the power and
authority to conduct its business as described in the Prospectus.
1.3 The Registration Statement and Prospectus comply with the
Securities Act and the Rules and Regulations, and the Prospectus and any and all
authorized sales materials prepared or approved by the Company for use with
potential investors in connection with the Offering, when used in conjunction
with the Prospectus, do not contain any untrue statements of material facts or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; provided, however, that the
foregoing provisions of this Section 1.3 will not extend to such statements
contained in or omitted from the Registration Statement or Prospectus or
authorized sales materials as are primarily within the knowledge of the Dealer
Manager or any of the Dealers and are based upon information either (1)
furnished by a Dealer in writing to the Dealer Manager or the Company, or (2)
furnished by the Dealer Manager in writing to the Company specifically for
inclusion therein.
1.4 The Company intends to use the funds received from the
sale of the Shares as set forth in the Prospectus.
1.5 No consent, approval, authorization or other order of any
governmental authority is required in connection with the execution or delivery
by the Company of this Dealer Manager Agreement or the issuance and sale by the
Company of the Shares, except such as may be required under the Securities Act
or applicable state securities laws.
1.6 There are no actions, suits or proceedings pending or to
the knowledge of the Company, threatened against the Company at law or in equity
or before or by any federal or state commission, regulatory body or
administrative agency or other governmental body, domestic or foreign, which
will have a material adverse effect on the business or property of the Company.
1.7 The execution and delivery of this Dealer Manager
Agreement, the consummation of the transactions herein contemplated and
compliance with the terms of this Dealer Manager Agreement by the Company will
not conflict with or constitute a default under any charter, by-law, indenture,
mortgage, deed of trust, lease, rule, regulation, writ, injunction or decree of
any government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company, except to the extent that the
enforceability of the indemnity and/or contribution provisions contained in
Section 4 of this Dealer Manager Agreement may be limited under applicable
securities laws.
1.8 The Company has full legal right, power and authority to
enter into this Dealer Manager Agreement and to perform the transactions
contemplated hereby, except to the
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extent that the enforceability of the indemnity and/or contribution provisions
contained in Section 4 of this Dealer Manager Agreement may be limited under
applicable securities laws.
1.9 The Shares, when subscribed for, paid for and issued, will
be duly and validly issued, fully paid and non-assessable and will conform to
the description thereof contained in the Prospectus; no holder thereof will be
subject to personal liability for the obligations of the Company solely by
reason of being such a holder; such Shares are not subject to the preemptive
rights of any shareholder of the Company; and all corporate action required to
be taken for the authorization, issuance and sale of such Shares shall have been
validly and sufficiently taken.
1.10 The Company is not in violation of its Articles of
Incorporation or its Bylaws.
1.11 The financial statements of the Company filed as part of
the Registration Statement and those included in the Prospectus present fairly
in all material respects the financial position of the Company as of the date
indicated and the results of its operations for the periods indicated; said
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis.
1.12 The Company does not intend to conduct its business so as
to be an "investment company" as that term is defined in the Investment Company
Act of 1940, as amended, and the rules and regulation thereunder, and it will
exercise reasonable diligence to ensure that it does not become an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
2. Covenants of the Company
The Company covenants and agrees with the Dealer Manager that:
2.1 It will prepare and file with the SEC and each appropriate
state securities commission, at no expense to the Dealer Manager, the
Registration Statement, including all amendments and exhibits thereto. In
addition, it will furnish the Dealer Manager, at no expense to the Dealer
Manager, with such number of printed copies of the Registration Statement,
including all amendments and exhibits thereto, as the Dealer Manager may
reasonably request. It will similarly furnish to the Dealer Manager and others
designated by the Dealer Manager as many copies as the Dealer Manager may
reasonably request in connection with the offering of the Shares of: (a) the
Prospectus in preliminary and final form and every form of supplemental or
amended prospectus; and (b) this Dealer Manager Agreement.
2.2 It will prepare and file with the appropriate regulatory
authorities, at no expense to the Dealer Manager, the printed sales literature
or other materials authorized by the Company to be used in offering and selling
the Shares to members of the public ("Authorized Sales Materials"). In addition,
it will furnish the Dealer Manager, at no expense to the Dealer Manager, with
such number of printed copies of Authorized Sales Materials as the Dealer
Manager may reasonably request.
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2.3 It will furnish such proper information and execute and
file such documents as may be necessary for the Company to qualify the Shares
for offer and sale under the securities laws of such jurisdictions as the Dealer
Manager may reasonably designate and will file and make in each year such
statements and reports as may be required. The Company will furnish to the
Dealer Manager a copy of such papers filed by the Company in connection with any
such qualification.
2.4 It will use its best efforts to cause the Registration
Statement to become effective with the SEC and each state securities commission
which it deems appropriate in its sole discretion. If at any time the SEC or any
state securities commission shall issue any stop order suspending the
effectiveness of the Registration Statement, and to the extent the Company
determines that such action is in the best interest of its shareholders, it will
use its best efforts to obtain the lifting of such order at the earliest
possible time.
2.5 If at any time when a Prospectus is required to be
delivered under the Securities Act any event occurs as a result of which, in the
opinion of either the Company or the Dealer Manager, the Prospectus or any other
prospectus then in effect would include an untrue statement of a material fact
or, in view of the circumstances under which they were made, omit to state any
material fact necessary to make the statements therein not misleading, the
Company will promptly notify the Dealer Manager thereof (unless the information
shall have been received from the Dealer Manager) and will effect the
preparation of an amended or supplemental prospectus which will correct such
statement or omission. The Company will then promptly prepare such amended or
supplemental prospectus or prospectuses as may be necessary to comply with the
requirements of Section 10 of the Securities Act.
2.6 Each of the representations and warranties contained in
this Dealer Manager Agreement are true and correct and the Company will comply
with each covenant and agreement contained in this Dealer Manager Agreement.
2.7 It will be duly qualified to do business as a foreign
corporation in each jurisdiction in which it will own or lease property of a
nature, or transact business of a type, that will make such qualification
necessary.
2.8 It intends to satisfy the requirements of the Internal
Revenue Code of 1986, as amended (the "Code"), for qualification of the Company
as a real estate investment trust. The Company will elect to be treated as a
real estate investment trust under the Code at such time as it so qualifies and
will direct the investment of the proceeds of the offering of the Shares in such
a manner, and will exercise reasonable diligence to operate the business of the
Company so as to comply with such requirements.
3. Obligations and Compensation of Dealer Manager
3.1 The Company hereby appoints the Dealer Manager as its
agent and principal distributor for the purpose of selling for cash up to a
maximum of 220,000,000 Shares through the Dealers, all of whom shall be members
of the National Association of Securities Dealers, Inc. (the "NASD"). The Dealer
Manager may also sell Shares for cash directly to its own clients and customers
and employees (and certain family members) of the Company and the Dealer Manager
and their affiliates subject to the terms and conditions
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stated in the Prospectus. The Dealer Manager hereby accepts such agency and
distributorship and agrees to use its best efforts to sell the Shares on said
terms and conditions. The Dealer Manager represents to the Company that it is a
member of the NASD and that it and its employees and representatives have all
required licenses and registrations to act under this Dealer Manager Agreement.
The Dealer Manager agrees to be bound by the terms of the
Amended and Restated Escrow Agreement executed as of February 25, 2004, between
Xxxxx Fargo Bank, N.A., as escrow agent, and the Company.
3.2 Promptly after the effective date of the Registration
Statement, the Dealer Manager and the Dealers shall commence the offering of the
Shares for cash to the public in jurisdictions in which the Shares are
registered or qualified for sale or in which such offering is otherwise
permitted. The Dealer Manager and the Dealers will suspend or terminate offering
of the Shares upon request of the Company at any time and will resume offering
the Shares upon subsequent request of the Company.
3.3 Except as otherwise provided in the "Plan of Distribution"
section of the Prospectus, as compensation for the services rendered by the
Dealer Manager, the Company agrees that it will pay to the Dealer Manager
selling commissions in the amount of 6.0% of the gross proceeds of the Shares
sold plus a dealer manager fee in the amount of 2.2% of the gross proceeds of
the Shares sold to the public. No dealer manager fee shall be paid with respect
to Shares sold pursuant to the Company's dividend reinvestment plan.
Notwithstanding the foregoing, no commissions, payments or amount whatsoever
will be paid to the Dealer Manager under this Section 3.3 unless or until
1,000,000 Shares have been sold by the Dealer Manager and its Dealers (the
"Minimum Offering"). Until the Minimum Offering is obtained, proceeds from the
sale of Shares will be held in escrow and, if the Minimum Offering is not
obtained, will be returned to the investors in accordance with the terms of the
Prospectus. The Company will not be liable or responsible to any Dealer for
direct payment of commissions to any Dealer, it being the sole and exclusive
responsibility of the Dealer Manager for payment of commissions to Dealers.
Notwithstanding the above, at the discretion of the Company, the Company may act
as agent of the Dealer Manager by making direct payment of commissions to
Dealers on behalf of the Dealer Manager without incurring any liability
therefor. In addition, the Company or its advisor may reimburse the Dealer
Manager for certain employee compensation and other expenses relating to the
Offering as described in the Prospectus, including but not limited to
reimbursement of up to 0.5% of gross proceeds for bona fide due diligence
expenses incurred by the Dealer Manager or any Dealer.
3.4 The Dealer Manager represents and warrants to the Company
and each person that signs the Registration Statement that the information under
the caption "Plan of Distribution" in the Prospectus and all other information
furnished to the Company by the Dealer Manager in writing expressly for use in
the Registration Statement, any preliminary prospectus, the Prospectus, or any
amendment or supplement thereto, does not contain 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 not misleading.
3.5 The Dealer Manager represents and warrants to the Company
that it will not use any sales literature not authorized and approved by the
Company or use any "broker-dealer
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use only" materials with members of the public in connection with offers or
sales or the Shares.
3.6 The Dealer Manager represents and warrants to the Company
that it will not represent or imply that the escrow agent, as identified in the
Prospectus, has investigated the desirability or advisability of investment in
the Company, or has approved, endorsed or passed upon the merits of the Shares
or the Company, nor will they use the name of said escrow agent in any manner
whatsoever in connection with the offer or sale of the Shares other than by
acknowledgment that it has agreed to serve as escrow agent.
4. Indemnification
4.1 The Company will indemnify and hold harmless the Dealers
and the Dealer Manager, their officers and directors and each person, if any,
who controls such Dealer or Dealer Manager within the meaning of Section 15 of
the Securities Act or Section 20 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") from and against any losses, claims, damages or
liabilities, joint or several, to which such Dealers or Dealer Manager, their
officers and directors, or such controlling person may become subject, under the
Securities Act or the Exchange Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (a) any untrue statement or alleged untrue statement of a material fact
contained (i) in any Registration Statement (including the Prospectus as a part
thereof) or any post-effective amendment thereto or in the Prospectus or any
amendment or supplement to the Prospectus, or (ii) in any Authorized Sales
Material, or (iii) in any blue sky application or other document executed by the
Company or on its behalf specifically for the purpose of qualifying any or all
of the Shares for sale under the securities laws of any jurisdiction or based
upon written information furnished by the Company under the securities laws
thereof (any such application, document or information being hereinafter called
a "Blue Sky Application"), or (b) the omission or alleged omission to state in
the Registration Statement (including the Prospectus as a part thereof) or any
post-effective amendment thereof or in the Prospectus or any amendment or
supplement to the Prospectus or in any Authorized Sales Material or in any Blue
Sky Application a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Company will reimburse each
Dealer or the Dealer Manager, as appropriate, and their officers and directors
and controlling persons, for any reasonable legal or other expenses reasonably
incurred by such Dealer or the Dealer Manager, and their officers and directors
and controlling persons, in connection with investigating or defending such
loss, claim, damage, liability or action; provided that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of, or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished (x) to the Company by the Dealer
Manager or (y) to the Company or the Dealer Manager by or on behalf of any
Dealer specifically for use in the preparation of the Registration Statement or
any such post-effective amendment thereof, any such Authorized Sales Materials,
any such Blue Sky Application or any such preliminary prospectus or the
Prospectus or any such amendment thereof or supplement thereto; and further
provided that the Company will not be liable in any such case if it is
determined that such Dealer or the Dealer Manager had knowledge of the matter or
event giving rise to or resulting in such loss, claim, damage, liability or
action.
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Notwithstanding the foregoing, as required by Section II.G. of
the Statement of Policy Regarding Real Estate Investment Trusts of the North
American Securities Administrators Association, Inc. (the "NASAA REIT
Guidelines"), the indemnification and agreement to hold harmless provided in
this Section 4.1 is further limited to the extent that no such indemnification
by the Company of a 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: (1) there has been a successful
adjudication on the merits of each count involving alleged securities law
violations; (2) such claims have been dismissed with prejudice on the merits by
a court of competent jurisdiction; or (3) a court of competent jurisdiction
approves a settlement of the claims against the indemnitee and finds that
indemnification of the settlement and the related costs should be made, and the
court considering the request for indemnification has been advised of the
position of the SEC and of the published position of any state securities
regulatory authority in which the securities were offered or sold as to
indemnification for violations of securities laws.
4.2 The Dealer Manager will indemnify and hold harmless the
Company its officers and directors (including any persons named in any of the
Registration Statements with his consent, as about to become a director), each
person who has signed any of the Registration Statements and each person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any losses, claims,
damages or liabilities to which any of the aforesaid parties may become subject,
under the Securities Act or the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (a) any untrue statement of a material fact contained (i)
in the Registration Statement (including the Prospectus as a part thereof) or
any post-effective amendment thereof, or (ii) in any Authorized Sales Materials,
or (iii) in any Blue Sky Application, or (b) the omission to state in the
Registration Statement (including the Prospectus as a part thereof) or any
post-effective amendment thereof or in the Prospectus or in any amendment or
supplement to the Prospectus or in any Authorized Sales Materials or in any Blue
Sky Application a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case described in clauses
(a) and (b) to the extent, but only to the extent, that such untrue statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Dealer Manager specifically for
use with reference to the Dealer Manager in the preparation of the Registration
Statement or any such post-effective amendments thereof or any Authorized Sales
Materials or any such Blue Sky Application or any such preliminary prospectus or
the Prospectus or any such amendment thereof or supplement thereto, or (c) any
use of sales literature not authorized or approved by the Company or any use of
"broker-dealer use only" materials with members of the public concerning the
Shares by the Dealer Manager, or (d) any untrue statement made by the Dealer
Manager or its representatives or agents or omission to state a fact necessary
in order to make the statements made, in light of the circumstances under which
they were made, not misleading in connection with the offer and sale of the
Shares, or (e) any material violation of this Agreement, or (f) any failure to
comply with applicable laws governing money laundry abatement and anti-terrorist
financing efforts, including applicable NASD Rules, SEC Rules and the USA
PATRIOT Act of 2001, or (g) any other failure to comply with applicable NASD or
SEC Rules. The Dealer Manager will reimburse the aforesaid parties, in
connection with investigation or defending such
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loss, claim, damage, liability or action. This indemnity agreement will be in
addition to any liability which the Dealer Manager may otherwise have.
4.3 Each Dealer severally will indemnify and hold harmless the
Company, the Dealer Manager and each of their officers and directors (including
any persons named in any of the Registration Statements with his consent, as
about to become a director), each person who has signed any of the Registration
Statements and each person, if any, who controls the Company and the Dealer
Manager within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any losses, claims, damages or liabilities to
which the Company, the Dealer Manager, any such director or officer, or
controlling person may become subject, under the Securities Act or the Exchange
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (a) any untrue
statement or alleged untrue statement of a material fact contained (i) in the
Registration Statement (including the Prospectus as a part thereof) or any
post-effective amendment thereof, or (ii) in any Authorized Sales Materials, or
(iii) in any Blue Sky Application, or (b) the omission or alleged omission to
state in the Registration Statement (including the Prospectus as a part thereof)
or any post-effective amendment thereof or in the Prospectus or in any amendment
or supplement to the Prospectus or in any Authorized Sales Materials or in any
Blue Sky Application a material fact required to be stated therein or necessary
to make the statements therein not misleading, in each case described in clauses
(a) and (b) to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company or the
Dealer Manager by or on behalf of such Dealer specifically for use with
reference to such Dealer in the preparation of the Registration Statement or any
such post-effective amendments thereof or any such Authorized Sales Materials or
any such Blue Sky Application or any such preliminary prospectus or the
Prospectus or any such amendment thereof or supplement thereto, or (c) any use
of sales literature not authorized or approved by the Company or use of
"broker-dealer use only" materials with members of the public concerning the
Shares by such Dealer or Dealer's representatives or agents, or (d) any untrue
statement made by such Dealer or its representatives or agents or omission to
state a fact necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading in connection with the
offer and sale of the Shares, or (e) any failure to comply with Section VII or
Section X or any other material violation of the Selected Dealer Agreement, or
(f) any failure to comply with applicable laws governing money laundry abatement
and anti-terrorist financing efforts, including applicable NASD Rules, SEC Rules
and the USA PATRIOT Act of 2001, or (g) any other failure to comply with
applicable NASD or SEC Rules. Each such Dealer will reimburse the Company and
the Dealer Manager and any such directors or officers, or controlling person, in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which such Dealer may otherwise have.
4.4 Promptly after receipt by an indemnified party under this
Section 4 of notice of the commencement of any action (but in no event in excess
of 30 days after receipt of actual notice), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 4, notify in writing the indemnifying party of the commencement thereof
and the omission so to notify the indemnifying party will relieve it from any
liability under this Section 4 as to the particular item for which
indemnification is then being
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sought, but not from any other liability which it may have to any indemnified
party. In case any such action is brought against any indemnified party, and it
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled, to the extent it may wish, jointly with any other
indemnifying party similarly notified, to participate in the defense thereof,
with separate counsel. Such participation shall not relieve such indemnifying
party of the obligation to reimburse the indemnified party for reasonable legal
and other expenses (subject to Section 4.5) incurred by such indemnified party
in defending itself, except for such expenses incurred after the indemnifying
party has deposited funds sufficient to effect the settlement, with prejudice,
of the claim in respect of which indemnity is sought. Any such indemnifying
party shall not be liable to any such indemnified party on account of any
settlement of any claim or action effected without the consent of such
indemnifying party.
4.5 The indemnifying party shall pay all reasonable legal fees
and expenses of the indemnified party in the defense of such claims or actions;
provided, however, that the indemnifying party shall not be obliged to pay legal
expenses and fees to more than one law firm in connection with the defense of
similar claims arising out of the same alleged acts or omissions giving rise to
such claims notwithstanding that such actions or claims are alleged or brought
by one or more parties against more than one indemnified party. If such claims
or actions are alleged or brought against more than one indemnified party, then
the indemnifying party shall only be obliged to reimburse the expenses and fees
of the one law firm that has been selected by a majority of the indemnified
parties against which such action is finally brought; and in the event a
majority of such indemnified parties is unable to agree on which law firm for
which expenses or fees will be reimbursable by the indemnifying party, then
payment shall be made to the first law firm of record representing an
indemnified party against the action or claim. Such law firm shall be paid only
to the extent of services performed by such law firm and no reimbursement shall
be payable to such law firm on account of legal services performed by another
law firm.
4.6 The indemnity agreements contained in this Section 4 shall
remain operative and in full force and effect regardless of (a) any
investigation made by or on behalf of any Dealer, or any person controlling any
Dealer or by or on behalf of the Company, the Dealer Manager or any officer or
director thereof, or by or on behalf of the Company or the Dealer Manager, (b)
delivery of any Shares and payment therefor, and (c) any termination of this
Dealer Manager Agreement or any Selected Dealer Agreement. A successor of any
Dealer or of any of the parties to this Dealer Manager Agreement, as the case
may be, shall be entitled to the benefits of the indemnity agreements contained
in this Section 4.
5. Survival of Provisions
The respective agreements, representations and warranties of the
Company and the Dealer Manager set forth in this Dealer Manager Agreement shall
remain operative and in full force and effect regardless of (a) any termination
of this Dealer Manager Agreement, (b) any investigation made by or on behalf of
the Dealer Manager or any Dealer or any person controlling the Dealer Manager or
any Dealer or by or on behalf of the Company or any person controlling the
Company, and (c) the acceptance of any payment for the Shares.
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6. Applicable Law
This Dealer Manager Agreement was executed and delivered in, and its
validity, interpretation and construction shall be governed by, the laws of the
State of Texas; provided however, that causes of action for violations of
federal or state securities laws shall not be governed by this Section.
7. Counterparts
This Dealer Manager Agreement may be executed in any number of
counterparts. Each counterpart, when executed and delivered, shall be an
original contract, but all counterparts, when taken together, shall constitute
one and the same agreement.
8. Successors and Amendment
8.1 This Dealer Manager Agreement shall inure to the benefit
of and be binding upon the Dealer Manager and the Company and their respective
successors, and to the benefit of the Dealers to the extent set forth in
Sections 1 and 4 hereof. Nothing in this Dealer Manager Agreement is intended or
shall be construed to give to any other person any right, remedy or claim,
except as otherwise specifically provided herein.
8.2 This Dealer Manager Agreement may be amended by the
written agreement of the Dealer Manager and the Company.
9. Term
This Dealer Manager Agreement may be terminated by either party (1)
immediately upon notice to the other party in the event that the other party
shall have materially failed to comply with any of the material provisions of
this Dealer Manager Agreement on its part to be performed during the term of
this Agreement or if any of the representations, warranties, covenants or
agreements of such party contained herein shall not have been materially
complied with or satisfied within the times specified or (2) by either party on
60 days' written notice.
In any case, this Dealer Manager Agreement shall expire at the close of
business on the effective date that the Offering is terminated. The provisions
of Section 4 hereof shall survive such termination. In addition, the Dealer
Manager, upon the expiration or termination of this Dealer Manager Agreement,
shall promptly deliver to the Company all records and documents in its
possession which relate to the Offering which are not designated as dealer
copies. The Dealer Manager, at its sole expense, may make and retain copies of
all such records and documents, but shall keep all such information
confidential. The Dealer Manager shall use its best efforts to cooperate with
the Company to accomplish any orderly transfer of management of the Offering to
a party designated by the Company. Upon expiration or termination of this Dealer
Manager Agreement, the Company shall pay to the Dealer Manager all commissions
to which the Dealer Manager is or becomes entitled under Section 3 at such time
as such commissions become payable.
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10. Confirmations
The Company hereby agrees to prepare and send confirmations to all
purchasers of Shares whose subscriptions for the purchase of Shares are accepted
by the Company.
11. Suitability of Investors
The Dealer Manager will offer Shares, and in its agreements with
Dealers will require that the Dealers offer Shares, only to persons who meet the
suitability standards set forth in the Prospectus or in any suitability letter
or memorandum sent to it by the Company and will only make offers to persons in
the states in which it is advised in writing that the Shares are qualified for
sale or that such qualification is not required. In offering Shares, the Dealer
Manager will, and in its agreements with Dealers, the Dealer Manager will,
require that the Dealer comply with the provisions of all applicable rules and
regulations relating to suitability of investors, including without limitation,
the provisions of Article III.C. of the NASAA REIT Guidelines.
12. Submission of Orders
12.1 Those persons who purchase Shares will be instructed by
the Dealer Manager or the Dealer to make their checks payable to an escrow agent
for the Company, whenever appropriate, or to the Company after the Minimum
Offering has been achieved. The Dealer Manager and any Dealer receiving a check
not conforming to the foregoing instructions shall return such check directly to
such subscriber not later than the end of the next business day following its
receipt. Checks received by the Dealer Manager or Dealer which conform to the
foregoing instructions shall be transmitted for deposit pursuant to one of the
methods described in this Section 12. Transmittal of received investor funds
will be made in accordance with the following procedures.
12.2 Where, pursuant to a Dealer's internal supervisory
procedures, internal supervisory review is conducted at the same location at
which subscription documents and checks are received from subscribers, checks
will be transmitted by the end of the next business day following receipt by the
Dealer to the Company for deposit with an escrow agent, where appropriate, or
for deposit directly with the Company after the Minimum Offering has been
achieved.
12.3 Where, pursuant to a Dealer's internal supervisory
procedures, final internal supervisory review is conducted at a different
location, checks will be transmitted by the end of the next business day
following receipt by the Dealer to the office of the Dealer conducting such
final internal supervisory review (the "Final Review Office"). The Final Review
Office will in turn transmit by the end of the next business day following
receipt at a different location by the Final Review Office such checks to the
Company for deposit with an escrow agent, where appropriate, or for deposit
directly with the Company after the Minimum Offering has been achieved.
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter and your acceptance shall constitute a binding agreement
between us as of the date first above written.
11
Very truly yours,
XXXXX REAL ESTATE INVESTMENT TRUST, INC.
By:
--------------------------------------
Xxxxxxx X. Xxxxx
President
Accepted and agreed as of the
date first above written.
XXXXX REAL ESTATE SECURITIES, INC.
By:
------------------------------------
Xxxxxx X. Xxxxxx, Xx.
President
12
EXHIBIT "A"
XXXXX REAL ESTATE INVESTMENT TRUST, INC.
Up to 220,000,000 Shares of Common Stock/$2,190,000,000
SELECTED DEALER AGREEMENT
Ladies and Gentlemen:
Xxxxx Real Estate Securities, Inc., as the dealer manager ("Dealer
Manager") for Xxxxx Real Estate Investment Trust, Inc. (the "Company"), a
Maryland corporation, invites you (the "Dealer") to participate in the
distribution of shares of common stock ("Shares") of the Company subject to the
following terms:
I. Dealer Manager Agreement
The Dealer Manager and the Company have entered into that certain
Dealer Manager Agreement dated March __, 2004, in the form attached hereto as
Exhibit "A." By your acceptance of this Selected Dealer Agreement, you will
become one of the Dealers referred to in such Dealer Manager Agreement between
the Company and the Dealer Manager and will be entitled and subject to the
indemnification provisions contained in such Dealer Manager Agreement, including
specifically the provisions of Section 4.3 of such Dealer Manager Agreement
wherein each Dealer, upon execution of this Selected Dealer Agreement, severally
agrees to indemnify and hold harmless the Company, the Dealer Manager and each
officer and director thereof, and each person, if any, who controls the Company
and the Dealer Manager within the meaning of the Securities Act of 1933, as
amended (the "Securities Act") or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), for the matters set forth in said Section 4.3.
Except as otherwise specifically stated herein, all terms used in this Selected
Dealer Agreement have the meanings provided in the Dealer Manager Agreement. The
Shares are offered solely through broker-dealers who are members of the National
Association of Securities Dealers, Inc. (the "NASD").
Dealer hereby agrees to use its best efforts to sell the Shares for
cash on the terms and conditions stated in the Prospectus. Nothing in this
Selected Dealer Agreement shall be deemed or construed to make Dealer an
employee, agent, representative or partner of the Dealer Manager or of the
Company, and Dealer is not authorized to act for the Dealer Manager or the
Company or to make any representations except as set forth in the Prospectus and
such other printed information furnished to Dealer by the Dealer Manager or the
Company to supplement the Prospectus ("Supplemental Information").
II. Submission of Orders
Those persons who purchase Shares will be instructed by the Dealer to
make their checks payable to "Xxxxx Fargo Bank, N.A., as Escrow Agent for Xxxxx
Real Estate Investment Trust, Inc." where appropriate, or directly to Xxxxx Real
Estate Investment Trust, Inc after the Minimum Offering has been achieved.
Dealer hereby agrees to be bound by the terms of the
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Amended and Restated Escrow Agreement executed as of February 25, 2004, between
Xxxxx Fargo Bank, N.A., as escrow agent, and the Company. Any Dealer receiving a
check not conforming to the foregoing instructions shall return such check
directly to such subscriber not later than the end of the next business day
following its receipt. Checks received by the Dealer which conform to the
foregoing instructions shall be transmitted for deposit pursuant to one of the
methods in this Article II. Transmittal of received investor funds will be made
in accordance with the following procedures:
Where, pursuant to the Dealer's internal supervisory procedures,
internal supervisory review is conducted at the same location at which
subscription documents and checks are received from subscribers, checks
will be transmitted by the end of the next business day following
receipt by the Dealer to the Company for deposit with an escrow agent,
where appropriate, or for deposit directly with the Company after the
Minimum Offering has been achieved.
Where, pursuant to the Dealer's internal supervisory procedures, final
and internal supervisory review is conducted at a different location,
checks will be transmitted by the end of the next business day
following receipt by the Dealer to the office of the Dealer conducting
such final internal supervisory review (the "Final Review Office"). The
Final Review Office will in turn transmit by the end of the next
business day following receipt at a different location by the Final
Review Office such checks to the Company for deposit with an escrow
agent, where appropriate, or for deposit directly with the Company
after the Minimum Offering has been achieved.
III. Pricing
Except as may be otherwise provided for in the "Plan of Distribution"
section of the Prospectus, Shares shall be offered to the public at the offering
price of $10.00 per Share and Shares shall be offered pursuant to the Company's
dividend reinvestment plan at $9.50 per Share. Except as otherwise indicated in
the Prospectus or in any letter or memorandum sent to the Dealer by the Company
or Dealer Manager, a minimum initial purchase of 250 Shares is required. Except
as otherwise indicated in the Prospectus, additional investments may be made in
minimal increments of at least five (5) Shares. The Shares are nonassessable.
IV. Dealers' Commissions
Except for volume discounts described in the "Plan of Distribution"
section of the Prospectus, which volume discounts shall be the responsibility of
the Dealer to provide to investors who qualify, and except as otherwise provided
in the "Plan of Distribution" section of the Prospectus, the Dealer's selling
commission applicable to the Shares sold by Dealer which it is authorized to
sell hereunder is 6.0% of the gross proceeds of Shares sold by it and accepted
and confirmed by the Company, which commission will be payable by the Dealer
Manager. For these purposes, shares shall be deemed to be "sold" if and only if
a transaction has closed with a subscriber for Shares pursuant to all applicable
offering and subscription documents, the Company has accepted the subscription
agreement of such subscriber, and such Shares have been fully paid for. The
Dealer affirms that the Dealer Manager's liability for commissions payable is
limited solely to the proceeds of commissions receivable from the Company, and
the Dealer
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hereby waives any and all rights to receive payment of commissions due until
such time as the Dealer Manager is in receipt of the commission from the
Company. In addition, as set forth in the Prospectus, the Dealer Manager may, in
its sole discretion, reallow a portion of its dealer manager fee to Dealers
participating in the offering of Shares as marketing fees, reimbursement of
costs and expenses of attending educational conferences or to defray other
distribution-related expenses. Such reallowance shall be contained in Schedule 1
to this Selected Dealer Agreement.
The parties hereby agree that the foregoing commission is not in excess
of the usual and customary distributors' or sellers' commission received in the
sale of securities similar to the Shares, that Dealer's interest in the offering
is limited to such commission from the Dealer Manager and Dealer's indemnity
referred to in Section 4 of the Dealer Manager Agreement, and that the Company
is not liable or responsible for the direct payment of such commission to the
Dealer. In addition, as set forth in the Prospectus, the Dealer Manager may
reimburse Dealers up to 0.5% of gross proceeds for bona fide due diligence
expenses incurred by such Dealers. The Dealer Manager shall have the right to
require that any Dealer provide a detailed and itemized invoice for any such due
diligence expenses.
V. Payment
Payments of selling commissions will be made by the Dealer Manager (or
by the Company as provided in the Dealer Manager Agreement) to Dealer within 30
days of the receipt by the Dealer Manager of the gross commission payments from
the Company.
VI. Right to Reject Orders or Cancel Sales
All orders, whether initial or additional, are subject to acceptance by
and shall only become effective upon confirmation by the Company, which reserves
the right to reject any order. Orders not accompanied by a Subscription
Agreement Signature Page and the required check in payment for the Shares may be
rejected. Issuance of the Shares will be made only after actual receipt of
payment therefor. If any check is not paid upon presentment, or if the Company
is not in actual receipt of clearinghouse funds or cash, certified or cashier's
check or the equivalent in payment for the Shares within 15 days of sale, the
Company reserves the right to cancel the sale without notice. In the event an
order is rejected, canceled or rescinded for any reason, the Dealer agrees to
return to the Dealer Manager any commission theretofore paid with respect to
such order and, failing to do so, the Dealer Manager shall have the right to
offset amounts owed against future commissions due and otherwise payable to said
Dealer.
VII. Prospectus and Supplemental Information
Dealer is not authorized or permitted to give, and will not give, any
information or make any representation (written or oral) concerning the Shares,
except as set forth in the Prospectus and any Authorized Sales Materials. The
Dealer Manager will supply Dealer with reasonable quantities of the Prospectus,
any supplements thereto and any amended Prospectus, as well as any Authorized
Sales Materials, for delivery to investors, and Dealer will deliver a copy of
the Prospectus and all supplements thereto and any amended Prospectus to each
investor to whom an offer is made prior to or simultaneously with the first
solicitation of an offer to sell the Shares to an investor. The Dealer agrees
that it will not send or give any Supplemental Information or
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Authorized Sales Materials to an investor unless it has previously sent or given
a Prospectus and all supplements thereto and any amended Prospectus to that
investor or has simultaneously sent or given a Prospectus and all supplements
thereto with such Supplemental Information or Authorized Sales Materials, as the
case may be. Dealer agrees that it will not show or give to any investor or
prospective investor or reproduce any material or writing which is supplied to
it by the Dealer Manager and marked "broker-dealer use only" or otherwise
bearing a legend denoting that it is not to be used in connection with the sale
of Shares to members of the public. Dealer agrees that it will not use in
connection with the offer or sale of Shares any material or writing supplied to
it by the Company or the Dealer Manager bearing a legend which states that such
material may not be used in connection with the offer or sale of the Shares or
any other securities. Dealer further agrees that it will not use in connection
with the offer or sale of Shares any materials or writings which have not been
previously authorized or approved by the Dealer Manager. Each Dealer agrees to
furnish a copy of any revised preliminary Prospectus to each person to whom it
has furnished a copy of any previous preliminary Prospectus, and further agrees
that it will itself mail or otherwise deliver all preliminary and final
Prospectuses required for compliance with the provisions of Rule 15c2-8 under
the Exchange Act. Regardless of the termination of this Selected Dealer
Agreement, Dealer will deliver a Prospectus in transactions in the Shares for a
period of 90 days from the effective date of the Registration Statement or such
longer period as may be required by the Exchange Act. On becoming a Dealer, and
in offering and selling Shares, Dealer agrees to comply with all the applicable
requirements under the Securities Act and the Exchange Act.
VIII. License and Association Membership
Dealer's acceptance of this Selected Dealer Agreement constitutes a
representation to the Company and the Dealer Manager that Dealer is a properly
registered or licensed broker-dealer, duly authorized to sell Shares under
Federal and state securities laws and regulations and in all states where it
offers or sells Shares, and that it is a member in good standing of the NASD.
This Selected Dealer Agreement shall automatically terminate if the Dealer
ceases to be a member in good standing of such association, or in the case of a
foreign dealer, so to conform. Dealer agrees to notify the Dealer Manager
immediately if Dealer ceases to be a member in good standing, or in the case of
a foreign dealer, so to conform. The Dealer Manager and Dealer each hereby agree
to abide by applicable NASD Rules, specifically including, but not limited to,
Rules 2340, 2420, 2730, 2740 and 2750.
IX. Anti-Money Laundering Compliance Programs
Dealer's acceptance of this Selected Dealer Agreement constitutes a
representation to the Company and the Dealer Manager that Dealer has established
and implemented an anti-money laundering compliance program ("AML Program") in
accordance with applicable law, including applicable NASD Rules, SEC Rules and
the USA PATRIOT Act, specifically including, but not limited to, Section 352 of
the Money Laundering Abatement Act (collectively, the "AML Rules"), reasonably
expected to detect and cause the reporting of suspicious transactions in
connection with the sale of Shares of the Company. Upon request by the Dealer
Manager at any time, Dealer hereby agrees to (i) furnish a copy of its AML
Program to the Dealer Manager for review, and (ii) furnish a copy of the
findings and any remedial actions taken in connection with Dealer's most recent
independent testing of its AML Program. Dealer hereby represents that it is
currently in compliance with all AML Rules, specifically including, but not
limited to, the Customer Identification Program requirements under Section 326
of the USA PATRIOT Act. Dealer hereby agrees to provide an annual certification
to Dealer Manager that, as of the date of
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such certification (i) its AML Program is consistent with the AML Rules, (ii) it
has continued to implement its AML Program, and (iii) it is currently in
compliance with all AML Rules, specifically including, but not limited to, the
Customer Identification Program requirements under Section 326 of the USA
PATRIOT Act.
X. Limitation of Offer; Suitability
Dealer will offer Shares only to persons who meet the suitability
standards set forth in the Prospectus or in any suitability letter or memorandum
sent to it by the Company or the Dealer Manager and will only make offers to
persons in the states in which it is advised in writing that the Shares are
qualified for sale or that such qualification is not required.
In offering Shares, Dealer will comply with the provisions of all
applicable NASD Conduct Rules, as well as all other applicable rules and
regulations relating to suitability of investors, including without limitation,
the provisions of Article III.C. of the Statement of Policy Regarding Real
Estate Investment Trusts of the North American Securities Administrators
Association, Inc.
Dealer further represents, warrants and covenants that no Dealer, or
person associated with Dealer, shall offer or sell Shares in any jurisdiction
except to investors who satisfy the investor suitability standards and minimum
investment requirements under the most restrictive of the following: (1)
applicable provisions of the Prospectus; (2) applicable laws of the jurisdiction
of which such investor is a resident; or (3) applicable NASD Conduct Rules.
Dealer agrees to ensure that, in recommending the purchase, sale or exchange of
Shares to an investor, each Dealer, or person associated with Dealer, shall have
reasonable grounds to believe, on the basis of information obtained from the
investor (and thereafter maintained in the manner and for the period provided in
such Rules) concerning his age, investment objectives, other investments,
financial situation and needs, and any other information known to Dealer, or
person associated with Dealer, that (A) the investor is or will be in a
financial position appropriate to enable him to realize to a significant extent
the benefits described in the Prospectus, including the tax benefits to the
extent they are a significant aspect of the Company, (B) the investor has a fair
market net worth sufficient to sustain the risks inherent in an investment in
Shares in the amount proposed, including loss, and lack of liquidity of such
investment, and (C) an investment in Shares is otherwise suitable for such
investor. Dealer further represents, warrants and covenants that Dealer, or a
person associated with Dealer, will make every reasonable effort to determine
the suitability and appropriateness of an investment in Shares of each proposed
investor by reviewing documents and records disclosing the basis upon which the
determination as to suitability was reached as to each purchaser of Shares
pursuant to a subscription solicited by Dealer, whether such documents and
records relate to accounts which have been closed, accounts which are currently
maintained, or accounts hereafter established. Dealer agrees to retain such
documents and records in Dealer's records for a period of six years from the
date of the applicable sale of Shares and to make such documents and records
available to (i) the Dealer Manager and the Company upon request, and (ii) to
representatives of the SEC, NASD and applicable state securities administrators
upon your firm's receipt of an appropriate document subpoena or other
appropriate request for documents from any such agency. Dealer shall not
purchase any Shares for a discretionary account without obtaining the prior
written approval of Dealer's customer and his or her signature on a Subscription
Agreement.
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XI. Due Diligence; Adequate Disclosure
Prior to offering the Shares for sale, Dealer shall have conducted an
inquiry such that Dealer has reasonable grounds to believe, based on information
made available to Dealer by the Company or the Dealer Manager 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
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 its
advisor; (5) conflicts and risk factors; and (6) appraisals and other pertinent
reports.
Notwithstanding the foregoing, each Dealer may rely upon the results of
an inquiry conducted by an independent third party retained for that purpose or
another Dealer, provided that: (1) such Dealer has reasonable grounds to believe
that such inquiry was conducted with due care by said independent third party or
such other Dealer; (2) the results of the inquiry were provided to Dealer with
the consent of the other Dealer conducting or directing the inquiry; and (3) no
Dealer that participated in the inquiry is an affiliate of the Company.
Prior to the sale of the Shares, each Dealer shall inform each
prospective purchaser of Shares of pertinent facts relating to the Shares
including specifically the lack of liquidity and lack of marketability of the
Shares during the term of the investment.
XII. Compliance with Record Keeping Requirements
Dealer agrees to comply with the record keeping requirements of the
Exchange Act, including but not limited to, Rules 17a-3 and 17a-4 promulgated
under the Exchange Act. Dealer further agrees to keep such records with respect
to each customer who purchases Shares, his suitability and the amount of Shares
sold and to retain such records for such period of time as may be required by
the SEC, any state securities commission, the NASD or the Company.
XIII. Customer Complaints
Each party hereby agrees to provide to the other party copies of any
written or otherwise documented customer complaints received by such party
relating in any way to the Offering (including, but not limited to, the manner
in which the Shares are offered by the Dealer Manager or the Dealer), the Shares
or the Company.
XIV. Termination; Amendment
Dealer will immediately suspend or terminate its offer and sale of
Shares upon the request of the Company or the Dealer Manager at any time and
will resume its offer and sale of Shares hereunder upon subsequent request of
the Company or the Dealer Manager. Any party may terminate this Selected Dealer
Agreement by written notice. Such termination shall be effective 48 hours after
the mailing of such notice. This Selected Dealer Agreement and the exhibits
and schedules hereto are the entire agreement of the parties and supersedes all
prior agreements, if any, between the parties hereto.
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This Selected Dealer Agreement may be amended at any time by the Dealer
Manager by written notice to the Dealer, and any such amendment shall be deemed
accepted by Dealer upon placing an order for sale of Shares after he has
received such notice.
XV. Privacy Laws
The Dealer Manager and Dealer each hereby agree to abide by and comply
with (i) the privacy standards and requirements of the Xxxxx-Xxxxx-Xxxxxx Act of
1999 ("GLB Act"), (ii) the privacy standards and requirements of any other
applicable Federal or state law, and (iii) its own internal privacy policies and
procedures, each as may be amended from time to time.
XVI. Notice
All notices will be in writing and will be duly given to the Dealer
Manager when mailed to the attention of Xxxxxx X. Xxxxxx, Xx., President, Xxxxx
Real Estate Securities, Inc. at 0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxx 00000-0000, and to Dealer when mailed to the address specified by Dealer
herein.
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XVII. Attorney's Fees and Applicable Law
In any action to enforce the provisions of this Selected Dealer
Agreement or to secure damages for its breach, the prevailing party shall
recover its costs and reasonable attorney's fees. This Selected Dealer Agreement
shall be construed under the laws of the State of Texas and shall take effect
when signed by Dealer and countersigned by the Dealer Manager.
THE DEALER MANAGER:
XXXXX REAL ESTATE SECURITIES, INC.
By:
-----------------------------------
Xxxxxx X. Xxxxxx, Xx.
President
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We have read the foregoing Selected Dealer Agreement and we hereby accept and
agree to the terms and conditions therein set forth. We hereby represent that
the list below of jurisdictions in which we are registered or licensed as a
broker or dealer and are fully authorized to sell securities is true and
correct, and we agree to advise you of any change in such list during the term
of this Selected Dealer Agreement.
1. Identity of Dealer:
Name:
---------------------------------------------------------------------------
Type of
entity:
-------------------------------------------------------------------------
(to be completed by Dealer) (corporation, partnership or proprietorship)
Organized in the State of:
------------------------------------------------------
(to be completed by Dealer) (State)
Licensed as broker-dealer in the following
States:
-------------------------------------------------------------------------
(to be completed by Dealer)
Tax I.D. #:
---------------------------------------------------------------------
2. Person to receive notice pursuant to Section XVI.
Name:
---------------------------------------------------------------------------
Company:
------------------------------------------------------------------------
Address:
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City, State and Zip Code:
-------------------------------------------------------
Telephone No.:( )
----- -----------------------------------------------------------
Telefax No.:( )
----- -------------------------------------------------------------
AGREED TO AND ACCEPTED BY THE DEALER:
--------------------------------------------------------------
(Dealer's Firm Name)
By:
-----------------------------------------------------------
Signature
Title:
--------------------------------------------------------
Date:
---------------------------------------------------------
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