HINES REAL ESTATE INVESTMENT TRUST, INC. UP TO 3,500,000,000 SHARES OF COMMON STOCK SELECTED DEALER AGREEMENT October 14, 2008
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REAL ESTATE INVESTMENT TRUST, INC.
UP
TO 3,500,000,000 SHARES OF COMMON
STOCK
October 14,
2008
Ameriprise
Financial Services, Inc.
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▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Each of
▇▇▇▇▇ Real Estate Investment Trust, Inc. a Maryland corporation (the “Company”),
▇▇▇▇▇ Real Estate Securities, Inc. a corporation (the ”Dealer
Manager”), and ▇▇▇▇▇ Advisors Limited Partnership, a limited partnership
(the ”Advisor”),
hereby confirms its agreement with Ameriprise Financial Services, Inc., a
Delaware corporation (“Ameriprise”),
as follows:
1. Introduction. This
Selected Dealer Agreement (the “Agreement”)
sets forth the understandings and agreements between the Company and Ameriprise
whereby Ameriprise will offer and sell on a best efforts basis for the account
of the Company shares of common stock (the “Common
Stock”), par value $0.001 per share (each a “Share,”
and collectively, the “Shares”),
of the Company registered pursuant to the Registration Statement (as defined
below) at the per share price set forth in the Registration Statement from time
to time (subject to certain volume and other
discounts set forth therein) (the
“Offering”),
pursuant to which Shares are also being offered pursuant to the Company's
Dividend Reinvestment Plan (the “DRIP”). The
Shares are more fully described in the Registration Statement referred to
below.
Ameriprise
is hereby invited to act as a Selected Dealer for the Offering, subject to the
other terms and conditions set forth below.
2. Representations and
Warranties of the Company, the Dealer Manager, and the
Advisor.
The
Company, the Dealer Manager, and the Advisor (collectively, the “Issuer
Entities”), jointly and severally, represent, warrant and covenant with
Ameriprise for Ameriprise’s benefit that, as of the date hereof and at all times
during the term of this Agreement:
(a) Registration Statement and
Prospectus. The Company has filed with the Securities and
Exchange Commission (the “Commission”)
an effective registration statement on Form S-11 (File No. 333-148854), for the registration of up to $3,500,000,000 in Shares under the Securities Act
of 1933, as amended (the “Securities
Act”) and the regulations thereunder (the “Regulations”). The
registration statement, as amended, (including financial statements, exhibits
and all other documents related thereto filed as a part thereof or incorporated
therein), and any registration statement filed under Rule 462(b) of the
Securities Act, are herein called the “Registration
Statement” and the prospectus contained therein is called the “Prospectus,”
and if the Registration Statement is amended by a post-effective amendment, the
term “Registration Statement” shall, from and after the declaration of
effectiveness of such post-effective amendment, refer to the Registration
Statement as so amended and the term “Prospectus” shall refer to the Prospectus
as so amended, and if any Prospectus filed by the Company pursuant to Rule
424(b) or 424(c) of the Regulations shall differ from the Prospectus on file at
the time any post-effective amendment shall become effective, the term
“Prospectus” shall refer to the Prospectus filed pursuant to either of such
Rules from and after the date on which it shall have been filed with the
Commission. Further, if a separate prospectus is filed and becomes
effective with respect solely to the DRIP, the term “Prospectus” shall refer to
such prospectus from and after the declaration of effectiveness of the same, as
such prospectus may be amended or supplemented from time to time.
(b) Compliance with the Securities
Act. The Registration Statement has been prepared and filed by
the Company and has been declared effective by the
Commission. Neither the Commission nor any state securities authority
has issued any order preventing or suspending the use of any Prospectus filed
with the Registration Statement or any amendments or supplements thereto and no
proceedings for that purpose have been instituted, or to the Company’s
knowledge, are threatened or contemplated by the Commission or by the state securities authorities. At the
time the Registration Statement became effective (the “Effective
Date”) and at the time that any post-effective amendments thereto or any
additional registration statement filed under Rule 462(b) of the Securities Act
becomes effective, the Registration Statement or any amendment thereto (1)
complied, or will comply, as to form in all material respects with the
requirements of the Securities Act and the Regulations and (2) did not or will
not contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein not misleading. When
the Prospectus or any amendment or supplement thereto is filed with the
Commission pursuant to Rule 424(b) or 424(c) of the Regulations and at all times
subsequent thereto through the date on which the Offering is terminated (“Termination
Date”), the Prospectus will comply in all material respects with the
requirements of the Securities Act and the Regulations, and will not include any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. Any
Prospectus delivered to Ameriprise will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(c) The Company. The
Company has been duly incorporated and validly exists as a corporation in good
standing under the laws of the State of Maryland with full power and authority
to conduct the business in which it is engaged as described in the Prospectus,
including without limitation to acquire properties as more fully described in
the Prospectus, including land and buildings, as well as properties upon which
properties are to be constructed for the Company or to be owned by the Company
(the “Properties”)
or make loans, or other permitted investments as referred to in the
Prospectus. The Company and each of its subsidiaries is duly
qualified to do business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type that would make such qualification necessary except
where the failure to be so qualified or in good standing could not have,
individually or in the aggregate, a Material Adverse Effect. The term
“Material
Adverse Effect” means a material adverse effect on, or change in, the
business affairs, business,
prospects, properties, operations, condition (financial or otherwise) or results
of operations of the Company and its subsidiaries, taken as a whole, whether or
not arising in the ordinary course of business.
(d) The Shares. The
Shares, when issued, will be duly and validly issued, fully paid and
non-assessable and will conform in all material respects 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
stockholder of the Company; and all corporate action required to be taken for
the authorization, issuance and sale of such Shares has been validly and
sufficiently taken. All shares of the Company’s issued and
outstanding capital stock have been duly authorized and validly issued and are
fully paid and non-assessable; none of the outstanding shares of capital stock
of the Company were issued in violation of the preemptive or other similar
rights of any stockholder of the Company.
(e) Capitalization. The
authorized capital stock of the Company conforms in all material respects to the
description thereof contained in the Prospectus under the caption “Description
of Capital Stock.” Except as disclosed in the
Prospectus: no shares of Common Stock have been or are to be reserved for any
purpose; there are no outstanding securities convertible into or exchangeable
for any shares of Common Stock; and there are no outstanding options, rights
(preemptive or otherwise) or warrants to purchase or subscribe for shares of
Common Stock or any other securities of the Company.
(f) Violations. No
Issuer Entity or any respective subsidiary thereof is (i) in violation of its
charter or bylaws, its partnership agreement, declaration of trust or trust
agreement, or limited liability company agreement (or other similar agreement),
as the case may be; (ii) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which such party is a party or by which any of
them may be bound or to which any of the respective properties or assets of such
party is subject (collectively, “Agreements and
Instruments”); or (iii) any law, order, rule or regulation, writ,
injunction or decree of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of its
property, except in the case of clauses (ii) and (iii), where such conflict,
breach, violation or default would not reasonably be expected to have individually or in
the aggregate, a Material Adverse Effect. The execution, delivery and
performance by each Issuer Entity, as applicable, of this Agreement, that
certain Dealer Manager Agreement between the Dealer Manager and the Company (the
“Dealer
Manager Agreement”), the Selected Dealer Agreements between the Dealer
Manager and, with the exception of Ameriprise, each of the selected dealers
soliciting subscriptions for shares of the Company’s common stock pursuant to
the Offering (collectively, the “Selected Dealer
Agreements”) and the Advisory Agreement between the Company and the
Advisor (the “Advisory
Agreement”), and the consummation of the transactions contemplated herein
and therein (including the issuance and sale of the Shares and the use of the
proceeds from the sale of the Shares as described in the Prospectus under the
caption “Use of
Proceeds”) and compliance by the Company and the Advisor with its
obligations hereunder and thereunder do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, default or Repayment Event (as defined below) under any
of the Agreements and Instruments, or result in the creation or imposition of
any Lien (as defined below) upon any property or assets of any Issuer Entity or
any respective subsidiary thereof (except for such conflicts, breaches or
defaults, Repayment Events or Liens that, individually or in the aggregate,
would not reasonably be expected to have a
Material Adverse Effect) nor will such action result in any violation of the
provisions of the charter or bylaws (or similar document) of any Issuer Entity
or respective subsidiary thereof or any applicable law, rule, regulation, or
governmental or court judgment, order, writ or decree of any government,
governmental instrumentality or court, domestic or foreign, having jurisdiction
over Issuer Entities or any of their properties. As used herein, a
“Repayment
Event” means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by an Issuer Entity or any respective
subsidiary thereof. “Lien”
means any mortgage, deed of trust, lien, pledge, encumbrance, charge or security
interest in or on any asset.
(g) Financial
Statements. The consolidated financial statements of the
Company and the financial statements of each entity acquired by the Company, to
the extent required by Regulation S-X, (each, an “Acquired
Entity”),
including the schedules and notes
thereto, 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, its consolidated subsidiaries and each Acquired Entity as of the date
indicated and the results of its operations, stockholders’ equity and cash flows
of the Company, its consolidated subsidiaries and each Acquired Entity for the
periods specified; said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis and
comply with the requirements of Regulation S-X promulgated by the
Commission. Deloitte & Touche LLP, whose report is filed with the
Commission as a part of the Registration Statement, are, with respect to the
Company and its subsidiaries, independent accountants as required by the
Securities Act and the Regulations and have been registered with the Public
Company Accounting Oversight Board. The selected financial data and
the summary financial information included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with that
of the audited financial statements included in the Registration
Statement. The pro forma financial statements and the related notes
thereto included in the Registration Statement and the Prospectus present fairly
the information shown therein, have been prepared in accordance with the
Commission’s rules and guidelines with respect to pro forma financial statements
and have been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions and
circumstances referred to therein. All disclosures contained in the Registration
Statement or the Prospectus, or incorporated by reference therein, regarding
“non-GAAP financial measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G of the Securities
Exchange Act of 1934 (the “Exchange
Act”) and Item 10 of Regulation S-K of the Securities Act, to the extent
applicable.
(h) No Subsequent Material
Events. Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as may otherwise
be stated in or contemplated by the Registration Statement and the Prospectus,
(a) there has not been any Material Adverse Effect, (b) there have not been any
material transactions entered into by the Company except in the ordinary course
of business, (c) there has not been any material increase in the long-term
indebtedness of the Company and (d) except for regular dividends on the
Company’s common stock, there has been no distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(i) Investment Company
Act. The Company is not, will not become by virtue of the
transactions contemplated by this Agreement and the application of the net
proceeds therefrom, and 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 regulations 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.
(j) Authorization of
Agreements. This Agreement, the Dealer Manager Agreement, the
Selected Dealer Agreements and the Advisory Agreement between the Company, the
Dealer Manager and the Advisor, as applicable, have been duly and validly
authorized, executed and delivered by the Company, the Dealer Manager and the
Advisor, as applicable, and constitute valid, binding and enforceable agreements
of the Company, the Dealer Manager and the Advisor, as applicable.
(k) The Advisor. The
Advisor has been duly organized and validly exists as a limited partnership in
good standing under the laws of the State of Texas with full power and authority
to conduct the business in which it is engaged as described in the
Prospectus. The Advisor is duly qualified to do business as a foreign
limited partnership and is in good standing in each other jurisdiction in which
it owns or leases property of a nature, or transacts business of a type, that
would make such qualification necessary except where the failure to be so
qualified or in good standing would not,
individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(l) The Dealer
Manager. The Dealer Manager has been duly incorporated and
validly exists as a corporation in good standing under the laws of the State of
Delaware with full power and authority to conduct the business in which it is
engaged as described in the Prospectus. The Dealer Manager is duly
qualified to do business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification necessary
except where the failure to be so qualified or in good standing would not, individually or in the aggregate,
reasonably be expected to have a Material
Adverse Effect.
(m) Description of
Agreements. The Company is not a party to or bound by any
contract or other instrument of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described and filed as required.
(n) Qualification as a Real Estate
Investment Trust. The Company intends to satisfy the
requirements of the Internal Revenue Code of 1986 as amended (the “Code”) for
qualification and taxation of the Company as a real estate investment
trust. Commencing with its taxable year ending December 31, 2004, the
Company has been organized and has operated in conformity with the requirements
for qualification as a real estate investment trust under the Code and its
actual method of operation has enabled it and its proposed method of operation
will enable it to continue to meet the requirements for qualification and
taxation as a real estate investment trust under the Code.
(o) ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and USA
Patriot Act. The Company complies in all material respects
with applicable privacy provisions of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and applicable
provisions of the USA Patriot Act.
(p) Sales
Material. All advertising and supplemental sales literature
prepared or approved by the Company or any of its affiliates (whether designated
solely for broker-dealer use or otherwise) to be used or delivered by the
Company or any of its affiliates or Ameriprise in connection with the Offering
of the Shares will not contain an untrue statement of material fact or omit to
state a material fact required to be stated therein, in light of the
circumstances under which they were made and when read in conjunction with the
Prospectus, not misleading. Furthermore, all such advertising and
supplemental sales literature has received all required regulatory approval,
which may include but is not limited to, the Commission, the Financial Industry
Regulatory Authority, (“FINRA”)
and state securities agencies, as applicable. Any required consent
and authorization has been obtained for the use of any trademark or service ▇▇▇▇
in any sales literature or advertising delivered by the Company to Ameriprise or
approved by the Company for use by Ameriprise and, to the Company’s knowledge,
its use does not constitute the unlicensed use of intellectual
property.
(q) Good Standing of
Subsidiaries. Each “significant subsidiary” of the Company (as
such term is defined in Rule 1-02 of Regulation S-X) and each other entity in
which the Company holds a direct or indirect ownership interest that is material
to the Company (each a “Subsidiary”
and, collectively, the “Subsidiaries”)
has been duly organized or formed and is validly existing as a corporation,
partnership, limited liability company or similar entity in good standing under
the laws of the jurisdiction of its incorporation, has power and authority to
own, lease and operate its properties and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to be so qualified would not reasonably be expected to have a Material Adverse
Effect. Except as otherwise disclosed in the Registration Statement,
all of the issued and outstanding capital stock of each such Subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear of Lien,
claim or equity. None of the outstanding shares of capital stock of
any Subsidiary was issued in violation of the preemptive or similar rights of
any stockholder of such Subsidiary. The only direct subsidiaries of the Company as of the date
of the Registration Statement or the most recent amendment to the Registration
Statement, as applicable, are the subsidiaries listed on Exhibit 21 to the
Registration Statement or such amendment to the Registration
Statement.
(r) No Pending
Action. There is no action, suit or proceeding pending, or, to
the knowledge of the Company, threatened or contemplated before or by any
arbitrator, court or other government body, domestic or foreign, against or
affecting any Issuer Entity or any respective subsidiary thereof which is
required to be disclosed in the Registration Statement (other than as disclosed
therein), or which would reasonably be expected
to result in
a Material Adverse Effect, or which would reasonably be expected to materially and adversely
affect the properties or assets thereof or the consummation of the transactions
contemplated by this Agreement. The aggregate of all pending legal or
governmental proceedings to which any Issuer Entity or any respective subsidiary
thereof is a party or of which any of their respective properties or assets is
the subject which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, would not reasonably be expected to result in a Material
Adverse Effect or materially adversely affect other properties or assets of
the Issuer Entities taken as a whole.
(s) Possession of Intellectual
Property. The Company and its subsidiaries own or possess, or
can acquire on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, “Intellectual
Property”) necessary to carry on the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice or is
otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or inadequate
to protect the interest of the Company or any of its subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, individually or in the
aggregate, could reasonably be expected
to result in
a Material Adverse Effect.
(t) Absence of Further
Requirements. No filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by
the Company of its obligations under this Agreement, the Dealer Manager
Agreement, the Selected Dealer Agreements and the Advisory Agreement, in
connection with the offering, issuance or sale of the Shares or the consummation
of the other transactions contemplated by this Agreement, the Dealer Manager
Agreement, the Selected Dealer Agreements and the Advisory Agreement, except
such as have been already made or obtained under the Securities Act or the
Exchange Act.
(u) Possession of Licenses and
Permits. The Company and its subsidiaries possess such
permits, licenses, approvals, consents and other authorizations (collectively,
“Governmental
Licenses”) issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now operated by
them (except such Governmental Licenses, the
failure of which to possess, would not reasonably be expected to have a Material
Adverse Effect), and the Company and its subsidiaries are in
compliance (in all material respects) with
the terms and conditions of all such Governmental Licenses. All of
the Governmental Licenses are valid and in full force and effect; and neither
the Company nor any of its subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such Governmental
Licenses.
(v) Partnership
Agreements. Each of the partnership agreements, declarations
of trust or trust agreements, limited liability company agreements (or other
similar agreements) and, if applicable, joint venture agreements to which the
Company or any of its subsidiaries is a party has been duly authorized, executed
and delivered by the Company or the relevant subsidiary, as the case may be, and
constitutes the valid and binding agreement of the Company or such subsidiary,
as the case may be, enforceable in accordance with its terms, except as the
enforcement thereof may be limited by (A) the effect of bankruptcy, insolvency
or other similar laws now or hereafter in effect relating to or affecting
creditors’ rights generally or (B) the effect of general principles of equity,
and the execution, delivery and performance of such agreements did not, at the
time of execution and delivery, and does not constitute a breach of or default
under the charter or bylaws, partnership agreement, declaration of trust or
trust agreement, or limited liability company agreement (or other similar
agreement), as the case may be, of the Company or any of its subsidiaries or any
of the Agreements and Instruments or any law, administrative regulation or
administrative or court order or decree.
(w) Properties. Except
as otherwise disclosed in the Prospectus: (i) the Company and its subsidiaries
have good and insurable or good, valid and insurable title (either in fee simple
or pursuant to a valid leasehold interest) to all properties and assets
described in the Prospectus as being owned or leased, as the case may be, by
them and to all properties reflected in the Company’s most recent consolidated
financial statements included in the Prospectus, and neither the Company nor any
of its subsidiaries has received notice of any claim that has been or may be
asserted by anyone adverse to the rights of the Company or any subsidiary with
respect to any such properties or assets (or any such lease) or affecting or
questioning the rights of the Company or any such subsidiary to the continued
ownership, lease, possession or occupancy of such property or assets, except for such claims that could not, singly or in
the aggregate, reasonably be expected to have a Material Adverse
Effect; (ii)
there are no Liens, claims or restrictions on or affecting the properties and
assets of the Company or any of its subsidiaries which would reasonably be expected, individually or in the
aggregate, to have a Material Adverse
Effect; (iii) no person or entity, including, without limitation, any tenant
under any of the leases pursuant to which the Company or any of its subsidiaries
leases (as lessor) any of its properties (whether directly or indirectly through
other partnerships, limited liability companies, business trusts, joint ventures
or otherwise) has an option or right of first refusal or any other right to
purchase any of such properties, except for such
options, rights of first refusal or other rights to purchase which, individually
or in the aggregate, are not material with respect to the Company and its
subsidiaries taken as a whole; (iv) to the Company’s
knowledge, each of the properties of the Company or any of its subsidiaries has
access to public rights of way, either directly or through insured easements,
except where the failure to have such access would not, individually or in the
aggregate, reasonably be expected to have a
Material Adverse Effect; (v) to the Company’s knowledge, each of the properties
of the Company or any of its subsidiaries is served by all public utilities
necessary for the current operations on such property in sufficient quantities
for such operations, except where the failure to have such public utilities
would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect; (vi) to the knowledge of the Company, each of the properties of the
Company or any of its subsidiaries complies with all applicable codes and zoning
and subdivision laws and regulations, except for such failures to comply which
would not, individually or in
the aggregate, reasonably be expected to
have a Material Adverse Effect; (vii) all of the leases under which the
Company or any of its subsidiaries holds or uses any real property or
improvements or any equipment relating to such real property or improvements are
in full force and effect, except where the failure to be in full force and
effect would
not,
individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect, and neither the Company nor any of its subsidiaries is in default in the
payment of any amounts due under any such leases or in any other default
thereunder and the
Company knows of no event which, with the passage of time or the giving of
notice or both, could constitute a default under any such lease, except such
defaults that would not, individually or in
the aggregate, reasonably be expected
to have a Material Adverse
Effect; (viii) to
the knowledge of the Company, there is no pending or threatened condemnation,
zoning change, or other proceeding or action that could in any manner affect the
size of, use of, improvements on, construction on or access to the properties of
the Company or any of its subsidiaries, except such proceedings or actions that,
individually or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect; and (ix) neither the Company nor any of its subsidiaries nor (to the knowledge of the Company) any
lessee of any of the real property or improvements of the Company or any of its
subsidiaries is in default in the payment of any amounts due or in any other
default under any of the leases pursuant to limited
liability companies, joint ventures or otherwise), and the Company knows of no
event which, with the passage of time or the giving of notice or both, would
constitute such a default under any of such leases, except such defaults as
would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
(x) Insurance. The
Company and/or its subsidiaries have title insurance on all U.S. real property
and improvements described in the Prospectus as being owned or leased under a
ground lease, as the case may be, by them and to all U.S. real property and
improvements reflected in the Company’s most recent consolidated financial
statements included in the Prospectus in an amount at least equal to the
original purchase price paid to the sellers of the
property and the Company and its subsidiaries are entitled to all
benefits of the insured thereunder. With respect to all non-U.S. real
property described in the Prospectus as being owned or leased by the Company’s
subsidiaries, each such subsidiary has received a title opinion or title
certificate or other customary evidence of title assurance, as appropriate for
the respective jurisdiction, showing good and indefeasible title to such
properties in fee simple or valid leasehold estate or its respective equivalent,
as the case may be, vested in the applicable subsidiary. Each property described
in the Prospectus is insured by extended coverage hazard and casualty insurance
in amounts and on such terms as are customarily carried by owners of properties
similar to those owned by the Company and its subsidiaries (in the markets in
which the Company’s and subsidiaries’ respective properties are located), and
the Company and its subsidiaries carry comprehensive general liability insurance
and such other insurance as is customarily carried by owners of properties
similar to those owned by the Company and its subsidiaries in amounts and on
such terms as are customarily carried by owners of properties similar to those
owned by the Company and its subsidiaries (in the markets in which the Company’s
and its subsidiaries’ respective properties are located) and the Company or one
of its subsidiaries is named as an additional insured on all policies required
under the leases for such properties.
(y) Environmental
Matters. Except as otherwise disclosed in the Prospectus: (i)
all real property and improvements owned or leased by the Company or any of its
subsidiaries, including, without limitation, the Environment (as defined below)
associated with such real property and improvements, is free of any Contaminant
(as defined below) in violation of applicable Environmental Laws (as defined
below) except for such violations that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; (ii)
neither the Company, nor any of its subsidiaries has caused or suffered to exist
or occur any Release (as defined below) of any Contaminant into the Environment
in violation of any applicable Environmental Law that would reasonably be
expected to have a Material Adverse Effect or could result in a violation of any
applicable Environmental Laws, except for such violations that would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; (iii) neither the Company nor any of its subsidiaries is aware
of any notice from any governmental body claiming any violation of any
Environmental Laws or requiring or calling for any work, repairs, construction,
alterations, removal or remedial action or installation by the Company or any of
its subsidiaries on or in connection with such real property or improvements,
whether in connection with the presence of asbestos-containing materials or mold
in such properties or otherwise, except for any violations that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, or any
such work, repairs, construction, alterations, removal or remedial action
or installation, if required or called for, which would not result in the
incurrence of liabilities by the Company, which, individually or in the
aggregate, would reasonably be expected to
have a Material Adverse Effect, nor is the Company aware of any information which may serve as the
basis for any such notice that would, individually or in the aggregate,
reasonably be expected to have a Material
Adverse Effect; (iv) neither the Company nor any of its subsidiaries has caused
or suffered to exist or occur any environmental condition on any of the
properties or improvements of the Company or any of its subsidiaries that could
reasonably be expected to give rise to the imposition of any Lien under any
Environmental Laws except such Liens which, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect; and (v) to
the Company’s knowledge, no real property or improvements owned or leased by the
Company or any of its subsidiaries is being used or has been used for
manufacturing or for any other operations that involve or involved the use,
handling, transportation, storage, treatment or disposal of any Contaminant,
where such operations require or required permits or are or were otherwise
regulated pursuant to the Environmental Laws and where such permits have not
been or were not obtained or such regulations are not being or were not complied
with, except in all instances where any failure to
obtain a permit or comply with any regulation would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect. “Contaminant”
means any pollutant, hazardous substance, toxic substance, hazardous waste,
special waste, petroleum or petroleum-derived substance or waste, asbestos or
asbestos-containing materials, PCBs, lead, pesticides or regulated radioactive
materials or any constituent of any such substance or waste, as identified or
regulated under any Environmental Law. “Environmental
Laws” means the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. 9601 et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. 6901, et seq., the Clean Air Act,
42 U.S.C. 7401, et
seq., the Clean Water Act, 33 U.S.C. 1251, et seq., the Toxic Substances
Control Act, 15 U.S.C. 2601, et seq., the Occupational
Safety and Health Act, 29 U.S.C. 651, et seq., and all other
federal, state and local laws, ordinances, regulations, rules, orders, decisions
and permits, which are directed at the protection of human health or the
Environment. “Environment”
means any surface water, drinking water, ground water, land surface, subsurface
strata, river sediment, buildings, structures, and ambient
air. “Release”
means any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing of any Contaminant into the
Environment, including, without limitation, the abandonment or discard of
barrels, containers, tanks or other receptacles containing or previously
containing any Contaminant or any release, emission or discharge as those terms
are defined or used in any applicable Environmental Law.
(z) Registration
Rights. There are no persons, other than the Company, with
registration or other similar rights to have any securities registered pursuant
to the Registration Statement or otherwise registered by the Company under the
Securities Act, or included in the Offering contemplated hereby.
(aa) Finders’
Fees. Neither the Company nor any affiliate thereof has
received or is entitled to receive, directly or indirectly, a finder’s fee or
similar fee from any person other than that as described in the Prospectus in
connection with the acquisition, or the commitment for the acquisition, of the
Properties by the Company.
(bb) Taxes. The Company
and each of its subsidiaries has filed all
material federal, state and foreign income tax returns and all other
material tax returns which have been required to be filed on or before the due
date thereof (taking into account all extensions of time to file) and all such
tax returns are correct and complete in all material respects. The
Company has paid or provided for the payment of all taxes reflected on its tax
returns and all assessments received by the Company and each of its subsidiaries
to the extent that such taxes or assessments have become due, except where the Company is contesting such
assessments in good faith and except for such taxes and assessments, the failure
of which to pay, would not reasonably be expected to have a Material Adverse
Effect. There are no
audits, deficiencies or assessments pending against the Company or its
subsidiaries relating to income taxes.
(cc) Internal
Controls. The Company maintains a system of internal control
over financial reporting (as such term is defined in Rule 13a-15(f) of the
Exchange Act) that complies with the requirements of the Exchange Act and has
been designed by the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted
accounting principles. The Company’s internal control over financial
reporting is effective as of December 31,
2007, and the Company is not aware of any material weaknesses in its
internal control over financial reporting. Since the date of the latest audited
financial statements included or incorporated by reference in the Registration
Statement, there has been no change in the Company’s internal control over
financial reporting that has materially affected
in an adverse manner, or is reasonably likely to materially affect in an adverse manner, the Company’s internal
control over financial reporting.
(dd) Disclosure Controls and
Procedures. The Company maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act)
that comply with the requirements of the Exchange Act; such disclosure controls
and procedures have been designed to ensure that material information relating
to the Company and its subsidiaries is made known to the Company’s principal
executive officer and principal financial officer by others within those
entities; and such disclosure controls and procedures are effective as of March
31, 2008.
(ee) Compliance with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act. There is and has been no failure on the part of the
Company or any of the Company’s directors or officers, in their capacities as
such, to comply in all material respects with any applicable provision of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of
2002 and the rules and regulations promulgated in connection therewith,
including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(ff) No Fiduciary
Duty. Each Issuer Entity acknowledges and agrees that: (i) Ameriprise is acting solely in the capacity
of an arm’s length contractual counterparty to it with respect to the Offering
of the Shares (including in connection with determining the terms of the
Offering) and not as a financial advisor or a fiduciary to, or an agent of, such
Issuer Entity or any other person; (ii)
Ameriprise is not advising the Issuer Entities or any other person as to any
legal, tax, investment, accounting or regulatory matters in any
jurisdiction; (iii) the Issuer Entities
shall consult with each of their own
advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated hereby,
and Ameriprise shall have no responsibility or liability to the Issuer Entities
with respect thereto; (iv) any review by
Ameriprise of the Issuer Entities, the transactions contemplated hereby or other
matters relating to such transactions will be performed solely for the benefit
of Ameriprise and shall not be on behalf of the Issuer Entities.
3. Sales of
Shares. On the basis of the representations, warranties and
covenants herein contained, but subject to the terms and conditions herein set
forth, the Company hereby appoints Ameriprise as a Selected Dealer for the
Shares during the period from the date hereof to the Termination Date (the
“Effective
Term”), including the Shares pursuant to the DRIP, each in the manner
described in the Registration Statement. Subject to the performance
by the Company of all obligations to be performed by it hereunder and the
completeness and accuracy of all of its representations and warranties,
Ameriprise agrees to use its best efforts, during the term of this Agreement, to
offer and sell such number of Shares as contemplated by this Agreement at the
price stated in the Prospectus, as the same may be adjusted from time to
time.
(a) Purchase of
Shares. The purchase of Shares must be made during the
offering period described in the Prospectus, or after such offering period in
the case of purchases made pursuant to the DRIP (each such purchase hereinafter
defined as an “Order”). Persons
desiring to purchase Shares are required to (i) deliver to Ameriprise a check in
the amount of $10.66 per Share purchased (subject to certain volume discounts or
other discounts as described in the Prospectus, or such other per share price as
may be applicable pursuant to the Offering) payable to Ameriprise, or (ii)
authorize a debit of such amount to the account such purchaser maintains with
Ameriprise. A subscription
agreement substantially similar to the form of subscription agreement attached to the
Prospectus (each a “Subscription
Agreement”) must be completed and submitted to the Company for all
investors and for all Orders. On a daily basis,
Ameriprise will transfer, via Federal Reserve bank wire, the total amount
debited from investor accounts for the purchase of Shares along with a list
(in the form of an Order File data
transmission)
including the name, address and telephone number of, the social security
number or taxpayer identification number of, the brokerage account number of (if
applicable), the number of Shares purchased by, any election to participate in
the DRIP by, and the total dollar amount of investment by, each investor on
whose behalf checks are submitted or the wire transfer is
made. Ameriprise also will forward all Subscription Agreements received (and determined to be
in good order) by Ameriprise to the Company’s transfer agent by overnight mail
within three business days after the associated funds are delivered as
contemplated in the preceding sentence. Ameriprise will advise the
Company whether the funds Ameriprise
is
submitting are attributable to individual retirement accounts, ▇▇▇▇▇ plans, or
any other employee benefit plan subject to Title I of the Employee Retirement
Income Security Act of 1974 or from some other type of
investor. Ameriprise shall use its best efforts to wire such funds or
transmit checks to the Company not later
than noon of the next business day after
receipt by Ameriprise from its customer of each Order except that, in any case in which
Ameriprise maintains a branch office, and, pursuant to Ameriprise’s internal
supervisory procedures, final internal supervisory review is conducted at a
different location, the branch office shall transmit the offering price for the
Shares and the Order Forms to the Ameriprise office conducting such internal
supervisory review by the close of business on the third business day following
their receipt by the branch office in good
order and Ameriprise shall review the Order
Forms to ensure their proper execution and form and, if they are acceptable,
transmit the offering price for the Shares covered by the Order Forms to the
Company by the close of business on the
third business day after their receipt by
Ameriprise. The parties
acknowledge that any receipt by Ameriprise of payments for subscriptions for
Shares shall be effected solely as an administrative convenience, and such
receipt of payments shall not be deemed to constitute acceptance of orders to
purchase Shares or sales of Shares by the Company.
All
Orders solicited by Ameriprise will be strictly subject to review and acceptance
by the Company and the Company reserves the right in its absolute discretion to
reject any Order or to accept or reject Orders in the order of their receipt by
the Company or otherwise. Within 30 days of receipt of an Order, the
Company must accept or reject such Order. If the Company elects to
reject such Order, within 10 business days after such rejection, it will notify
the purchaser and Ameriprise of such fact and cause the return of such
purchaser’s funds submitted with such application. If Ameriprise
receives no notice of rejection within the foregoing time limits, the Order
shall be deemed accepted. Ameriprise agrees to make commercially reasonable
efforts to determine that the purchase of Shares is a suitable and appropriate
investment for each potential purchaser of Shares based on information provided
by such purchaser regarding, among other
things, such
purchaser’s age, investment experience, financial situation
and investment
objectives. Ameriprise agrees to maintain copies of the Orders
received from investors and of the other
information obtained from investors for a minimum of 6 years from the date of
sale and will make such information available to the Company upon request by the
Company.
(b) Closing Dates and Delivery of Shares.
In no event shall a sale of Shares to an investor be completed until at least
five business days after the date the investor receives a copy of the
Prospectus. Orders shall be submitted
as contemplated by Section 12 of the Dealer Manager Agreement and as otherwise
set forth in this Agreement. Shares shall be deemed issued on the day
the Company accepts an Order. Share issuance dates for
purchases made pursuant to the DRIP will be as set forth in the
DRIP.
(c) Dealers. The
Shares offered and sold under this Agreement shall be offered and sold only by
Ameriprise, a member in good standing of FINRA. The Issuer Entities
and affiliates thereof agree to participate in Ameriprise’s marketing efforts to
the extent that Ameriprise may reasonably request and, without limiting the
generality of the foregoing, agree to visit Ameriprise’s offices as Ameriprise
may reasonably request.
(d) Compensation. In
consideration for Ameriprise’s execution of this Agreement, and for the
performance of Ameriprise’s obligations hereunder, the Dealer Manager agrees to pay or cause to be paid
to Ameriprise a selling commission (the “Selling
Commission”) of seven percent ($.75)
of the price of each Share (except for Shares sold pursuant to the DRIP) sold by
Ameriprise; provided, however, that Ameriprise’s Selling Commission shall be
reduced with respect to volume sales of Shares to single purchasers (as defined
in the Prospectus) and as otherwise set forth in
the “Plan of Distribution” section of the Prospectus. In the case of
such volume sales to single purchasers, on orders of $250,000 or more Ameriprise’s Selling Commission
shall be reduced. In the case of such volume sales to single
purchasers, Ameriprise’s Selling Commission will be reduced for each incremental
share purchase in the total volume ranges set forth in the table
below. Such reduced share price will not affect the proceeds received by the Company for
investment. The following table sets forth the reduced Selling Commissions payable to Ameriprise in connection with volume discounts:
|
Amount of Shares Purchased
|
Commission
Percentage
|
Price
per Share
to the Investor
|
Amount
of Commission Paid per
Share
|
|
Up to $249,999
|
7.0%
|
$ 10.66
|
$ 0.75
|
|
$250,000
to $499,999
|
6.0%
|
$ 10.55
|
$ 0.64
|
|
$500,000
to $749,999
|
5.0%
|
$ 10.45
|
$ 0.54
|
|
$750,000
to $999,999
|
4.0%
|
$ 10.34
|
$ 0.43
|
|
$1,000,000
to $1,249,999
|
3.0%
|
$ 10.23
|
$ 0.32
|
|
$1,250,000
to $1,499,999
|
2.0%
|
$ 10.13
|
$ 0.22
|
|
$1,500,000
and over
|
1.5%
|
$ 10.07
|
$ 0.16
|
For example, if an investor purchases $800,000 in
shares, the Selling Commissions on such shares will be reduced to 4.0%, in which
event the investor will receive 77,369 shares instead of 75,047 shares, the
number of shares the investor would have received if the investor had paid
$10.66 per share.
In the
event that an investor: has a contract for investment advisory and related
brokerage services which includes a fee based on
the amount of assets under management, a fixed or a “wrap” fee feature; has a contract for a
“commission replacement” account, which is an account in which securities are
held for a fee only; has engaged the services of a registered investment adviser
with whom the investor has agreed to pay compensation for investment advisory
services or other financial or investment advice (except where an investor has a contract for financial planning services with a registered
investment advisor who is also a registered broker dealer,
such contract will not qualify the investor for the
9.2% discount reflecting nonpayment of the
Dealer Manager Fee and Selling
Commissions as described
below); or
is investing in a bank trust account with respect to which the investor has
delegated the decision-making authority for investments made in the account to a
bank trust department for a fee, or has any other type of account which requires the
investor to pay fees based on assets under Management (and the investor’s
financial or investment advisor agrees to the waiver of Selling Commissions
payable in connection with the Offering), the Company will sell shares
to or for the account of such investor at a 9.2% discount, or $9.68 per share, reflecting that Selling
Commissions and the 2.2% dealer
manager fee (“Dealer Manager
Fee”) will not be paid in connection
with such purchases. The net proceeds received by
the Company from the sale of shares will not be affected by such sales of
shares made net of Selling Commissions and the
Dealer Manager Fee.
The Dealer Manager will also pay Ameriprise a marketing fee of up to one and
one-half percent (1.5%) of the gross
proceeds of Shares sold by Ameriprise (except for Shares sold pursuant to the DRIP) (the
“Marketing Fee”);
provided however, the
Company will not pay Ameriprise a Marketing Fee if the aggregate underwriting
compensation to be paid to all parties in connection with the Offering would exceed the limitations prescribed by
FINRA.
For
purposes of determining investors eligible for volume discounts, investments
made by accounts with the same primary account holder, as determined by the
account tax identification number, may be combined. This includes
individual accounts and joint accounts that have the same primary holder as an
individual account. Investments made through individual retirement
accounts may also be combined with accounts that have the same tax
identification number as the beneficiary of the individual retirement
account. In the event Orders are combined, the commission payable
with respect to the subsequent purchase of Shares will equal the commission per
share which would have been payable in accordance with the table set forth above
if all purchases had been made simultaneously. Any reduction of the
seven percent
(7.0%) Selling Commission
otherwise payable to Ameriprise will be credited to the purchaser as additional
Shares. Unless purchasers, or Ameriprise on behalf of purchasers,
indicate that Orders are to be combined and provide all other requested
information, the Company will not be held responsible for failing to combine
Orders properly.
No
payment of Selling Commissions or the Marketing Fee will be made in respect of
Orders (or portions thereof) which are rejected by the
Company. Selling Commissions, to the
extent payable with respect to a particular sale, will be paid within one week
after receipt by the Dealer Manager of gross commission payments from the
Company with respect to Shares sold by Ameriprise. The Marketing Fee,
to the extent payable with respect to a particular sale, will be paid within 30
days after receipt by the Dealer Manager of the Dealer Manager Fee from the
Company with respect to Shares sold by Ameriprise. Selling
Commissions and the Marketing Fee will be
payable only with respect to transactions lawful in the jurisdictions where they
occur. Purchases of Shares by the Company, Ameriprise or its or their
respective affiliates or any of their respective directors, trustees, officers
and employees shall be eligible to be net
of Selling Commissions and the Dealer
Manager Fee.
The
Dealer Manager will pay or cause to be paid to Ameriprise, the amount of any
bona fide due diligence expense consistent with the language in the Prospectus
and applicable regulations.
If the Selling Commissions and Marketing Fee payable
to Ameriprise are not paid within two calendar months of the last day of the
month in which such fees were earned, the payment will be deemed late, and a
late fee calculated at the current one year LIBOR rate will be assessed on
amounts due (“Late
Fees”). If fees, concessions and/or late fees are note paid
within three calendar months of the last day of the month in which such fees
were earned, Ameriprise may, in its sole discretion, take such measures as
Ameriprise deems appropriate, including ceasing distribution of the Shares,
until all payments due are made.
Except for the arrangements described in the “Plan of
Distribution” section of the Prospectus, the Company represents that
neither it nor any of its affiliates have offered or sold any Shares pursuant to
this Offering, other than directly to the Company’s officers and directors, and
agrees that, through the Termination Date, the Company will not offer or sell
any Shares otherwise than through the Dealer Manager as provided in the Dealer
Manager Agreement, Ameriprise as herein provided, and the selected dealers other
than Ameriprise as provided in the Selected Dealer Agreements, except to its
and its affiliates’ officers, directors,
employees and family members, as set forth in the
Prospectus.
(e) Calculation
of Fees. Ameriprise will have sole responsibility, and Ameriprise’s
records will provide the sole basis, for calculating fees for which Ameriprise
invoices under this Agreement. However, the Issuer Entities may
provide records to assist Ameriprise in its calculations.
(f) Finders
Fee. Neither the Company nor Ameriprise shall, directly or
indirectly, pay or award any finder’s fees, commissions or other compensation to
any person engaged by a potential investor for investment advice as an
inducement to such advisor to advise the purchase of Shares; provided, however,
that normal Selling Commissions and other
compensation payable to a registered broker-dealer or other properly
licensed person for selling Shares shall not be deemed a Finders Fee and shall not
be prohibited hereby.
4. Covenants. Each
Issuer Entity, jointly and severally, covenants and agrees with Ameriprise that
it will:
(a) Commission
Orders. Use its reasonable
best efforts to cause any amendments to the Registration Statement to
become effective as promptly as possible and to maintain the effectiveness of
the Registration Statement, and will promptly notify Ameriprise and confirm the
notice in writing if requested, (i) when any post-effective amendment to the
Registration Statement becomes effective, (ii) following the issuance by the
Commission or any state securities authority of any applicable jurisdiction of any stop order or of
the initiation, or the threatening (for which it has knowledge), of any proceedings
for that purpose or of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction or of the institution or threatening (for which it has knowledge) of any proceedings
for any of such purposes, (iii) following
the receipt of any material comments from
the Commission with respect to the Registration Statement, the Company’s Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, or any other Company filings, (iv) following any request by the
Commission for any amendment to the Registration Statement as filed or any
amendment or supplement to the Prospectus or for additional information relating
thereto and (v) if the Registration Statement becomes unavailable for use in
connection with the Offering of the Shares for any reason. Each of
the Company and the Dealer Manager will use its reasonable best efforts to prevent the issuance
by the Commission of a stop order or a suspension order and if the Commission
shall enter a stop order or suspension order at any time, each of the Company
and the Dealer Manager will use its reasonable
best efforts to obtain the lifting of such order at the earliest possible
moment with respect to all applicable jurisdictions covered by
the order. The Company shall not accept any order for Shares
during the effectiveness of any stop order or if the Registration Statement
becomes unavailable for use in connection with the Offering of the Shares for
any reason.
(b) Registration
Statement. Deliver to Ameriprise, without charge promptly after the Registration
Statement and each amendment thereto, and as soon as the Registration Statement
or any amendment or supplement thereto becomes effective, such number
of copies of the Prospectus (as amended or supplemented), the Registration
Statement and supplements and amendments thereto, if any (without exhibits), as
Ameriprise may reasonably request. Unless Ameriprise is otherwise notified in
writing by the Company, the Company hereby consents to the use
of the Prospectus or any amendment or supplement thereto by Ameriprise both in
connection with the Offering and for such period of time thereafter as the
Prospectus is required to be delivered in connection therewith.
(c) “Blue Sky”
Qualifications. Endeavor to seek the approval of the Offering
by FINRA, and to qualify the Shares for offering and sale under the securities
laws of all 50 states and the District of Columbia, except in those
jurisdictions Ameriprise may reasonably designate; provided, however, the Company
shall not be obligated to subject itself to taxation as a party doing business
in any such jurisdiction. In each jurisdiction where such
qualification shall be effected, the Company will, unless Ameriprise agrees that
such action is not at the time necessary or advisable, file and make such
statements or reports as are or may reasonably be required by the laws of such
jurisdiction.
(d) “Blue Sky”
Memorandum. To furnish to Ameriprise, and Ameriprise may be
allowed to rely upon, a Blue Sky Memorandum, prepared by counsel reasonably
acceptable to Ameriprise (with the understanding that ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP shall so
qualify), in
customary form naming the jurisdictions in which the Shares have been qualified
for sale under the respective securities laws of such
jurisdiction. In each jurisdiction where the Shares have been
qualified, the Company will make and file such applicable statements and reports in each year as
are or may be required by the laws of such jurisdiction.
(e) Amendments and
Supplements. If during the time when a Prospectus is required
to be delivered under the Securities Act, any event relating to the Company
shall occur as a result of which it is necessary, in the opinion of the
Company’s counsel, to amend the Registration Statement or to amend or supplement
the Prospectus in order to make the Prospectus not misleading in light of the
circumstances existing at the time it is delivered to an investor, or if it
shall be necessary, in the opinion of the Company’s counsel, at any such time to
amend the Registration Statement or amend or supplement the Prospectus in order
to comply with the requirements the Securities Act or the Regulations, the
Company will forthwith notify an Ameriprise representative in the Ameriprise
legal department, further, the Company shall prepare and furnish without expense
to Ameriprise, a reasonable number of copies of an amendment or amendments of
the Registration Statement or the Prospectus, or a supplement or supplements to
the Prospectus which will amend or supplement the Registration Statement or
Prospectus so that as amended or supplemented it will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or to
make the Registration Statement or the Prospectus comply with such
requirements. Without limiting the generality of the foregoing,
within two business days after the Company files a Quarterly Report on Form
10-Q, the Company agrees to file a supplement to
the Prospectus which incorporates the financial and other information
contained in such Quarterly Report (each a “Periodic Prospectus
Supplement”). In
addition, in order to comply with Section 10(a)(3) of the Securities Act, the
Company agrees to amend its Registration
Statement to update certain information as
required by Section 10(a)(3) of the Securities Act, including the incorporation
by reference of the Company’s Annual Report on Form 10-K for that fiscal
year, in a post-effective amendment to
the Registration Statement (each an “Annual
Post-Effective Amendment”). The Annual Post Effective
Amendment will be filed no later than 16 months from the date of the last
audited financials contained in or incorporated by
reference into the Registration Statement.
(f) Delivery of Periodic
Filings. The Company shall include with any prospectus or
“investor kit” delivered to Ameriprise for distribution to potential investors
in connection with the Offering a copy of the Company’s most recent Annual
Report on Form 10-K or Quarterly Report on Form 10-Q.
(g) Periodic Financial
Information. On or prior to the date on which there shall be
released to the general public interim financial statement information related
to the Company with respect to each of the first three quarters of any fiscal
year or preliminary financial statement information with respect to any fiscal
year, the Company shall furnish such information to Ameriprise, confirmed in
writing, and shall file such information pursuant to the rules and regulations
promulgated under the Securities Act or the Exchange Act as required
thereunder.
(h) Audited Financial
Information. On or prior to the date on which there shall be
released to the general public financial information included in or derived from
the audited financial statements of the Company for the preceding fiscal year,
the Company shall furnish such information to Ameriprise, confirmed in writing,
and shall file such information pursuant to the rules and regulations
promulgated under the Securities Act or the Exchange Act as required
thereunder.
(i) Copies of
Reports. During the (a) Offering and (b) period the Shares
remain outstanding and there is an effective
public offering available pursuant
to which holders of such Shares may
participate in the Company’s DRIP, Ameriprise will be furnished
with the following: (i) as soon as practicable after they have been sent or made
available by the Company to its stockholders or filed with the Commission, two
copies of each annual and interim financial or other report provided to
stockholders;
(ii) as
soon as practicable, two copies of every press release issued by the Company and
every material news item and article in respect of the Company or its affairs
released by the Company; and
(iii) additional
documents and information with respect to the Company and its affairs as
Ameriprise may from time to time reasonably request.
Documents
(other than final Prospectuses or supplements or amendments thereto for
distribution to investors) required to be delivered pursuant to this Agreement
(to the extent any such documents are included in materials otherwise filed with
the Commission) may be delivered
electronically and if so delivered, shall be deemed to have been delivered on
the date (i) on which the Company posts such documents, or provides a link
thereto on the Company’s website on the Internet; or (ii) on which such
documents are posted on the Company’s behalf on the website of the Commission or
any other Internet or intranet website, if any, to which Ameriprise has access;
provided that
the Company shall notify Ameriprise of the posting of any such
documents.
(j) Sales
Material. The Company will deliver to Ameriprise from time to
time, all advertising and supplemental sales material (whether designated solely
for broker-dealer use or otherwise) proposed to be used or delivered in
connection with the Offering, prior to the use or delivery to third parties of
such material, and will not so use or deliver, in connection with the Offering,
any such material to Ameriprise’s customers or registered representatives
without Ameriprise’s prior written consent, which consent, in the case of
material required by law, rule or regulation of any regulatory body including
FINRA to be delivered, shall not be unreasonably withheld or
delayed. The Company shall ensure that all advertising and
supplemental sales literature used by Ameriprise will have received all required
regulatory approval, which may include but is not limited to, the Commission,
FINRA and state securities agencies, as applicable, prior to use by
Ameriprise. For the avoidance of doubt, ordinary course
communications with the Company’s stockholders, including without limitation,
the delivery of annual and quarterly reports and financial information, dividend
notices, reports of net asset value and information regarding the tax treatment
of distributions and similar matters shall not be considered advertising and
supplemental sales material, unless the context otherwise requires.
(k) Use of
Proceeds. Apply the proceeds from the sale of Shares substantially as set forth in the section of the
Prospectus entitled “Estimated Use of Proceeds” and operate the business of the
Company in all material respects in accordance with the
descriptions of its business set forth in the Prospectus.
(l) Prospectus
Delivery. Within the time during which a prospectus relating
to the Shares is required to be delivered under the Securities Act, the Company
will comply with all requirements imposed upon it by the Securities Act, as now
and hereafter amended, and by the Rules and Regulations, as from time to time in
force, so far as necessary to permit the continuance of sales of or dealings in
the Shares as contemplated by the provisions hereof and the Prospectus. The
Dealer Manager confirms that it is familiar with Rule 15c2-8 under the Exchange
Act, relating to the distribution of preliminary and final prospectuses, and
confirms that it has complied and will comply therewith in connection with the
Offering of Shares contemplated by this Agreement, to the extent
applicable.
(m) Financial
Statements. Make generally available to its stockholders as
soon as practicable, but not later than the Availability Date, an earnings
statement of the Company (in form complying with the provisions of Rule 158
under the Securities Act) covering a period of 12 months beginning after the
Effective Date but not later than the first day of the Company’s fiscal quarter
next following the Effective Date. For purposes of the preceding
sentence, “Availability
Date” means the 45th day
after the end of the fourth fiscal quarter following the fiscal quarter that
includes such Effective Date, except that, if such fourth fiscal quarter is the
last quarter of the Company’s fiscal year, “Availability
Date” means the 90th day
after the end of such fourth fiscal quarter (or if either of such dates
specified above is a day the Commission is not open to receive filings, then the
next such day that the Commission is open to receive filings).
(n) Compliance with Exchange
Act. Comply with the requirements of the Exchange Act relating
to the Company’s obligation to file and, as applicable, deliver to its
stockholders periodic reports including annual reports on Form 10-K, quarterly
reports on Form 10-Q and current reports on Form 8-K.
(o) Title to
Property. The Company (or any partnership or joint venture
holding title to a particular Property) will acquire good and marketable title
to each Property to be owned by it, as described in the Prospectus and future
supplements to the Prospectus, it being understood that the Company may incur
debt with respect to Properties and other assets in accordance with the
Prospectus; and except as stated in the Prospectus, the Company (or any such
partnership or joint venture) will possess all licenses, permits, zoning
exceptions and approvals, consents and orders of governmental, municipal or
regulatory authorities required for the development and operation of the
Properties, as well as for the development of any vacant land included therein
as contemplated by the Prospectus,
except where the failure to so possess such items could not
reasonably be likely to cause a Material Adverse
Effect.
(p) Licensing and
Compliance. The Company and the Dealer Manager covenant that
any persons employed or retained by them to provide sales support or wholesaling
services in support of Ameriprise or its clients shall be licensed in accordance
with all applicable laws, will comply with all applicable federal and state
securities laws and regulations, and will use only sales literature approved and
authorized by the Company and the Dealer Manager.
(q) Reimbursement
Policy. The Company, the Dealer Manager and any agents of
either, including any wholesalers, shall comply with (i) all applicable federal
and state laws, regulations and rules and the rules of any applicable
self-regulatory organization, including but not limited to, FINRA rules and
interpretations governing cash and non-cash compensation and the rules of the
Municipal Securities Rulemaking Board, (ii) Ameriprise’s policies governing
revenue sharing, cash compensation, and non-cash compensation, current copies of
which are available upon request, and (iii) Ameriprise’s wholesaler
reimbursement policy as communicated to the Dealer Manager, as amended from time
to time in Ameriprise’s sole discretion provided all such policies
comply with the rules and regulations of FINRA and the Dealer Manager is notified of any
changes to such policies.
(r) Trade Names and
Trademarks. No Issuer Entity may use any company name, trade
name, trademark or service ▇▇▇▇ or logo of Ameriprise or any person or entity
controlling, controlled by, or under common control with Ameriprise without
Ameriprise’s prior written consent. Such trademarks include, without
limitation, “Ameriprise,” Ameriprise Financial,” “Ameriprise Financial
Services,” and “Riversource.”
5. Covenants of
Ameriprise. Ameriprise covenants and agrees with the Company
as follows:
(a) Prospectus
Delivery. Ameriprise confirms that it is familiar with Rule
15c2-8 under the Exchange Act, relating to the distribution of preliminary and
final prospectuses, and confirms that it has complied and will comply therewith
in connection with the Offering of the Shares contemplated by this Agreement, to
the extent applicable.
(b) Accuracy of
Information. No information supplied by Ameriprise
specifically for use in the Registration Statement will contain any untrue
statements of a material fact or omit to state any material fact necessary to
make such information not misleading.
(c) No Additional
Information. Ameriprise will not give any information or make
any representation in connection with the Offering of the Shares other than that
contained in the Prospectus, the Registration Statement, the Company’s other
filings under the Securities Act or the Exchange Act or advertising and
supplemental sales material contemplated by this Agreement and approved by the
Company.
(d) Sale of
Shares. Ameriprise shall solicit purchasers of the Shares only
in the jurisdictions in which Ameriprise has been advised by the Company that
such solicitations can be made and in which Ameriprise is qualified to so
act.
6. Payment of
Expenses.
(a) Expenses. Whether
or not the transactions contemplated in this Agreement are consummated or if
this Agreement is terminated, the Company and/or the Dealer Manager, as
designated in the Prospectus, will pay, in addition to the compensation
described in Section 3(d) (which Ameriprise may retain up to the point of
termination unless this agreement is terminated without any Shares being sold,
in which case no such compensation shall be paid), all fees and expenses
incurred in connection with the formation, qualification and registration of the
Company and in marketing, distributing and processing the Shares under
applicable Federal and state law, and any other fees and expenses actually
incurred and directly related to the Offering and the Company’s other
obligations under this Agreement, including such fees and expenses as: (i) the
preparing, printing, filing and delivering of the Registration Statement (as
originally filed and all amendments thereto) and of any preliminary prospectus
and of the Prospectus and any amendments thereof or supplements thereto and the
preparing and printing of this Agreement and Subscription Agreements, including the cost of
all copies thereof and any financial statements or exhibits relating to the
foregoing supplied to Ameriprise in quantities reasonably requested by
Ameriprise; (ii) the preparing and printing of the sales material and related
documents and the filing and/or recording of such certified certificates or
other documents necessary to comply with the laws of the State of Maryland for
the formation of a corporation and thereafter for the continued good standing of
the Company; (iii) the issuance and delivery of the Shares, including any
transfer or other taxes payable thereon; (iv) the qualification or registration
of the Shares under state securities or “blue sky” laws; (v) the filing fees payable to the Commission and
to FINRA; (vi) the preparation and printing
of advertising material in connection with and relating to the Offering,
including the cost of all sales literature and investor and broker-dealer sales
and information meetings; (vii) the cost
and expenses of counsel and accountants of the Company; and (viii) subject to Section 6(c), and as mutually agreed upon, Ameriprise’s costs of
technology associated with the offering, other costs and expenses related to
such technology costs, and the
facilitation of the marketing of the Shares and the ownership of such Shares by
Ameriprise’s customers; and (ix) any other expenses of issuance and distribution
of the Shares.
(b) Ad Hoc
Requests. From time to time, the Issuer Entities may make
requests that can reasonably be regarded as being related to but separate from
the services contemplated by this Agreement (the “Services”)
or that otherwise fall outside the ordinary course of business relationships
such as the one contemplated under this Agreement (“Ad Hoc
Requests”). Examples of Ad Hoc Requests include, but are not
limited to, requests that would require Ameriprise to implement information
technology modifications, participate in or respond to audits, inspections or
compliance reviews, or respond to or comply with document
requests. To the extent that Ameriprise’s compliance with an Ad Hoc
Request would cause Ameriprise to incur additional
material expenses, the Company and Ameriprise will mutually agree as to
the payment of such expenses between the parties. Ameriprise reserves
the right to refuse to comply with an Ad Hoc Request if the parties are unable
to reach an agreement on payment of reasonable expenses unless payment of such expenses would violate FINRA
Rules and provided that Ameriprise’s consent to an agreement
has not been unreasonably withheld. Payment for Ad Hoc Requests will
be separate from and above the payments for the Services.
(c) Limitation. Notwithstanding
the foregoing, the total compensation paid to Ameriprise from the Issuer
Entities in connection with the Offering pursuant to Section 3(d) hereof and
this Section 6 shall not exceed the limitations prescribed by
FINRA. The Company, the Dealer Manager and Ameriprise agree to
monitor the payment of all fees and expense reimbursements to assure that FINRA
limitations are not exceeded.
7. Conditions of Ameriprise’s
Obligations. Ameriprise’s obligations hereunder shall be
subject to the continued accuracy throughout the Effective Term of the
representations, warranties and agreements of the Company, to the performance by
the Company of its obligations hereunder and to the following terms and
conditions:
(a) Effectiveness of Registration
Statement. The Registration Statement shall have initially
become effective not later than 5:30 P.M., Eastern time, on the date of this
Agreement and, at any time during the term of this Agreement, no stop order
shall have been issued or proceedings therefor initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission and state securities administrators shall have been complied with and
no stop order or similar order shall have been issued or proceedings therefor
initiated or threatened by any state securities authority in any jurisdiction in
which the Company intends to offer Shares.
(b) Closings. The
Company, the Advisor and the Dealer Manager will deliver or cause to be
delivered to Ameriprise, as a condition of Ameriprise’s obligations hereunder,
those documents as described in this Section 7 as of the date hereof and on or
before the fifth business day following the filing of a Periodic Prospectus
Supplement or an Annual Post-Effective
Amendment (each such date, a “Documented
Closing Date”).
(c) Opinion of
Counsel. Ameriprise shall receive the favorable opinion of
▇▇▇▇▇▇▇▇▇ Traurig, LLP, counsel for the Company, the Advisor and the Dealer Manager, dated as of
the date hereof or as of each Documented Closing Date, as applicable, addressed
to Ameriprise substantially to the effect that:
(i) based solely on review of a letter of good standing
received from the Texas Comptroller of Public Accounts and a Certificate of
Authority, the Company is in good standing and qualified to do business in
Texas;
(ii) based solely on review of a letter of good standing
received from the Texas Comptroller and a Certificate of Authority, the Advisor
is validly existing as a limited partnership under the laws of the State of
Texas;
(iii) the Dealer Manager has been duly
incorporated and, based solely on review of a
certificate of Good Standing received from the Secretary of State of the State
of Delaware, the Dealer Manager is validly existing as a corporation
and in good standing under the laws of the
State of Delaware;
(iv) based solely on review of a letter of good standing
received from the Texas Comptroller of Public Accounts and a Certificate of
Authority, the Dealer Manager is in good standing and qualified to do business
in Texas;
(v) each
of the Dealer Manager Agreement and the Selected
Dealer Agreement has been duly authorized, executed and delivered by
the Dealer Manager and constitutes the
valid and binding agreement of the Dealer
Manager, enforceable against the Dealer
Manager in accordance with its terms;
(vi) each of the Dealer Manager Agreement, the Advisory
Agreement and the Selected Dealer Agreement (assuming the due authorization,
execution and delivery by, and enforceability against, Ameriprise and assuming
the due authorization, execution and delivery by, and enforceability against,
the Company, which is the subject of a separate opinion given by Maryland
counsel constitutes the valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms;
(vii) the
Registration Statement has become effective
under the Securities Act and, based on oral
statements made by members of the Staff of the Commission, to
counsel'’s knowledge, no stop order suspending effectiveness has been issued by the Commission, and no proceeding for such a
stop order is pending under the Securities
Act. Further, any required
filing of the Prospectus pursuant to Rule 424 under the Securities Act has been made in accordance with
Rule 424 and 430A under the Securities
Act;
(viii) the
Registration Statement, as of the date it was
declared effective, and the Prospectus, as of its date, appeared
on its face to have complied as to form in all material respects with the
requirements for registration on Form S-11 under the Securities Act and the
rules and regulations of the Commission thereunder, it being understood,
however, that no opinion shall be expressed
with respect to Regulation S-T or the financial statements,
schedules, the notes thereto and the other
financial or accounting data, included in,
or omitted from, the Registration Statement or the Prospectus;
(ix) based on oral statements made by members of the Staff of
the Commission, the Registration Statement filed under Form 8-A pursuant
to the Exchange Act has
become effective under the Exchange Act;
(x) to
counsel’s knowledge, the Company is not a
party to any agreement that would require the registration of Shares in the Registration
Statement owned by any person or entity that has
not been waived;
(xi) each of the Selected Dealer Agreement (assuming the due
authorization, execution and delivery by, and enforceability against,
Ameriprise) and the Advisory Agreement has been duly and validly
authorized, executed and delivered by or on behalf of the Advisor and constitutes the valid and binding
agreement of the Advisor, enforceable
against the Advisor in accordance with its
terms
(xii) to
counsel’s knowledge, there is no litigation
or governmental proceeding pending against the Company which is required to be
described in the Registration Statement but which is not described in the
Registration Statement;
(xiii) no
consent, approval, authorization, registration, qualification, license or order
of any court, regulatory or other governmental agency or body, in each case of the United States
or the State of Texas is
required in connection with the execution and delivery of, or the consummation
by the Company of the transactions contemplated by,
the Dealer Manager Agreement, the Selected
Dealer Agreement or the Registration Statement and the Prospectus, except
(x) such as may be necessary under Texas “blue sky” or securities laws in connection
with the Offering or such as may have been previously obtained or (y) for the clearance of such offering with the
Financial Industry Regulatory Authority;
(xiv) neither
the execution and delivery by the Company of the Dealer Manager Agreement, the Advisory Agreement or the Selected Dealer Agreement nor compliance by the
Company with the terms and provisions thereof will, and consummation by the
Company of the transactions contemplated by the Dealer Manager Agreement, the Advisory Agreement and the Selected Dealer Agreement do not and will not,
conflict with or result in a breach of or constitute a default (or an event which with the
giving of notice or lapse of time or both would constitute a default) under
(A) any Texas or federal statute, law, regulation or rule
binding on the Company, or (B) of any
decree, judgment or order binding on the Company, or (C) any document filed or incorporated by
reference as an exhibit to the Registration Statement; other than such conflicts, breaches or defaults that
would not, individually or in that aggregate have a Material Adverse
Effect;
(xv) to
counsel’s knowledge, there are no contracts
or documents of a character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed;
(xvi) the
statements in the Prospectus under the captions “The Operating Partnership” (but excluding the subsection
under the caption “Hypothetical Impact of the Participation Interest”), and
“Material Tax Considerations,” insofar as they purport to
describe or summarize certain provisions of the agreements, statutes or
regulations referred to therein, are accurate descriptions or summaries in all
material respects;
(xvii) commencing
with its taxable year ended December 31, 2004, the Company has been organized in
conformity with the requirements for qualification and taxation as a real estate
investment trust under the Internal Revenue Code of 1986, as amended, its method
of operation (as described in the Registration Statement and in an
officer's certificate furnished by the Company) has enabled it for the taxable
years ended December 31, 2005 through December 31, 2007, to meet the
requirements for qualification and taxation as a real estate investment trust
under the Internal Revenue Code of 1986, as amended, and its proposed method of
operation (as described in the Registration Statement and in the officer's
certificate furnished by the Company) will enable it to continue to meet the
requirements for qualification and taxation as a real estate investment trust
under the Internal Revenue Code of 1986, as amended; and
(xviii) based upon the analysis, assumptions and conclusions set
forth in the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ legal opinion letter addressed to the Company,
dated September 30, 2008, the Company is not required to register as an
investment company as that term is defined in the Investment Company Act of
1940, and will not be so required to register upon completion of the Offering
contemplated by the Prospectus and the
application of the net proceeds of the offering as described in the
Prospectus.
In
addition, such counsel shall, in substance,
state that, in the course of acting as counsel to the Company in connection with
the preparation by the Company of the Registration Statement and Prospectus,
such counsel has reviewed the Registration Statement and the Prospectus, and has
communicated with officers and other representatives of the Company and the
independent public accountants for the Company with respect to the contents of
the Registration Statement and the Prospectus and related
matters. Such counsel has also reviewed and relied upon certain
corporate records and documents, letters from counsel and oral and written
statements of officers and other representatives of the Company and others as to
the existence and consequence of certain factual and other
matters. Based on the foregoing, nothing came to such counsel’s
attention that leads such counsel to believe that the Registration Statement, at
the time it initially became effective or at the time that any post-effective
amendment thereto became effective, contained at such times an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or that the
Prospectus, as of its date, or the date hereof, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In
rendering the opinions set forth above, counsel may rely, as to matters of law
of states other than Delaware and Texas, upon the opinions of other counsel, in
each case satisfactory in form and substance to Ameriprise.
In addition, Ameriprise shall receive a favorable opinion of Maryland counsel for the Company, dated as of the date hereof or as of
each Documented Closing Date, as applicable, addressed to Ameriprise
substantially to the effect that:
(i) The
Company is a corporation duly incorporated and
validly existing under and by virtue of the laws of the State of Maryland and is
in good standing with the State Department of Assessments and Taxation, with
corporate power to own its assets and conduct its business in all material
respects as described in the Registration Statement and the Prospectus under the
captions “Prospectus Summary – ▇▇▇▇▇ Real Estate Investment Trust, Inc.” and
“Our Real Estate Investments.”
(ii) The
issuance of the Shares has been duly authorized and, when issued and
delivered against payment of the consideration therefor in accordance with the Registration Statement,
the Resolutions and the Subscription Agreements or the Plan, as the case may be,
the Shares will be validly issued, fully paid and nonassessable. No personal liability will
attach under the laws of the State of Maryland to holders of the Shares for any
debt or obligation of the Company solely as a result of their status as
stockholders of the Company. The issuance of the Shares is not
subject to preemptive rights of any stockholder of the Company under the
Maryland General Corporation Law (the “MGCL”) or the Charter or Bylaws.
(iv) No consent, approval, authorization, registration,
qualification, license or order under the MGCL is required in connection with
the execution and delivery by the Company of, or the consummation by the Company
of the transactions contemplated by, the Agreements or the Registration
Statement, except such as have been obtained or made.
(v) The execution and delivery by the Company of the
Agreements, the compliance by the Company with the terms and provisions thereof
and the consummation by the Company of the transactions contemplated by the
Agreements and the Prospectus do not and will not result in any violation of (a)
the Charter or Bylaws or (b) so far as is known to the Company’s Maryland
counsel, any law, statute, rule, regulation, judgment, order or decree of any
Maryland governmental authority applicable to the Company.
(vi) The statements in the Prospectus under the caption
“Description of Capital Stock,” to the extent they purport to summarize matters
arising under Maryland law or the Charter and Bylaws, are accurate in all
material respects.
(d) Accountant’s
Letter. On the date hereof, Ameriprise shall have received
from Deloitte & Touche, LLP a comfort letter, in form and substance
reasonably satisfactory to Ameriprise in all material respects.
(e) Update of Accountant’s
Letter. Ameriprise shall receive from Deloitte & Touche,
LLP, dated as of such Documented Closing Date, a comfort
letter, in form and substance reasonably satisfactory to Ameriprise in all
material respects, provided that (i) the specified date referred to in such
subsection shall be a date not more than five days prior to each such Documented
Closing Date, (ii) such comfort letter shall cover the Registration Statement
and Prospectus, as amended and supplemented through the date of the Periodic
Prospectus Supplement or Annual Post-Effective Amendment that triggers such
Documented Closing Date (the “Current
Filing”), and (iii) if financial statements or financial information of
any other entity are included in the Current Filing, Ameriprise shall
receive a comfort letter covering such financial statements or financial
information.
(f) Stop Orders. On
the Effective Date and during the Effective Term no order suspending the sale of
the Shares in any jurisdiction nor any stop order issued by the Commission shall
have been issued, and on the Effective Date and during the Effective Term no
proceedings relating to any such suspension or stop orders shall have been
instituted, or to the knowledge of the Company, shall be
contemplated.
(g) “Blue Sky”
Memorandum. Ameriprise shall have received the Blue Sky
Memorandum described in Section 4(d) above.
(h) Information Concerning the
Advisor. On the date hereof, Ameriprise shall receive a letter
dated the date hereof from the Advisor, confirming that: (1) the Advisory
Agreement has been duly and validly authorized, executed and delivered by the
Advisor and constitutes a valid agreement of the Advisor enforceable in
accordance with its terms; (2) the execution and delivery of the Advisory
Agreement, the consummation of the transactions therein contemplated and
compliance with the terms of the Advisory Agreement by the Advisor will not
conflict with or constitute a default under its articles of organization or any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the Advisor is a party,
or any law, order, rule or regulation, writ, injunction or decree of any
government, governmental instrumentality or court, domestic or foreign, having
jurisdiction over the Advisor, or any of its property except for
those conflicts or defaults that would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect; (3) except as
otherwise already obtained, no consent, approval, authorization or order
of any court or other governmental agency or body has been or is required for
the performance of the Advisory Agreement by the Advisor, or for the
consummation of the transactions contemplated thereby; and (4) the Advisor is a
partnership duly formed, validly existing and in good standing under the laws of
the State of Texas and is duly qualified to do business as a foreign limited
partnership in each other jurisdiction in which the nature of its business would
make such qualification necessary and the failure to so qualify could reasonably
be expected to have a Material Adverse Effect.
(i) Confirmation. As
of the date hereof and at each Documented Closing Date, as the case may
be:
(i) the
representations and warranties of each of the Issuer Entities in the Agreement
shall be true and correct with the same effect as if made on the date hereof or
the Documented Closing Date, as the case may be, and each of the Issuer Entities
have performed all covenants or conditions on their part to be performed or
satisfied at or prior to the date hereof or respective Documented Closing
Date;
(ii) the
Registration Statement (and any amendments or supplements thereto) does not
include any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and the Prospectus (and any amendments or supplements thereto)
does not include any untrue statement of a material fact or omits 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;
(iii) there
shall have been no material adverse change in the business, properties,
prospects or condition (financial or otherwise) of the Company subsequent to the
date of the balance sheets provided in the Registration Statement and the
Prospectus; and
(iv) since
the date hereof, no event has occurred which should have been set forth in an
amendment or supplement to the Prospectus in order to cause such Prospectus not
to contain an untrue statement of material fact or omit to state 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, but which
has not been so set forth.
Ameriprise
shall receive a certificate dated the date hereof and each Documented Closing Date, as the
case may be, confirming the above.
If any of
the conditions specified in this Agreement shall not have been fulfilled when
and as required by this Agreement, all Ameriprise’s obligations hereunder and
thereunder may be canceled by Ameriprise by notifying the Company of such
cancellation in writing or by telecopy at any time, and any such cancellation or
termination shall be without liability of any party to any other party except as
otherwise provided in Sections 3(d), 6, 8, 9 and 10 of this
Agreement. All certificates, letters and other documents referred to
in this Agreement will be in compliance with the provisions hereof only if they
are reasonably satisfactory in form and substance to Ameriprise and Ameriprise’s
counsel. The Company will furnish Ameriprise with conformed copies of
such certificates, letters and other documents as Ameriprise shall reasonably
request.
8. Indemnification.
(a) Indemnification by the Issuer
Entities. Each Issuer Entity, jointly and severally, agree to
indemnify, defend and hold harmless Ameriprise and each person, if any, who
controls Ameriprise within the meaning of Section 15 of the Securities Act, and
any of their respective officers, directors, employees and agents from and
against any and all loss, liability, claim, damage and expense whatsoever
(including but not limited to any and all expenses whatsoever reasonably
incurred in investigating, preparing for, defending against or settling any
litigation, commenced or threatened, or any claim whatsoever) arising out of or
based upon:
(i) any
untrue or alleged untrue statement of a material fact contained: (i) in the
Registration Statement (or any amendment thereto) or in the Prospectus (as from
time to time amended or supplemented) or any related preliminary prospectus;
(ii) in any application or other document (in this Section 8 collectively called
“application”) executed by an Issuer Entity or based upon information furnished
by an Issuer Entity and filed in any jurisdiction in order to qualify the Shares
under the securities laws thereof, or in any amendment or supplement thereto; or
(iii) in the Company’s periodic reports such as Annual Reports on Form 10-K,
Quarterly Reports on Form 10-Q and current reports on Form 8-K; provided however
that no Issuer Entity shall be liable in any such case to the extent any such
statement or omission was made in reliance upon and in conformity with written
information furnished to the an Issuer Entity by Ameriprise expressly for use in
the Registration Statement or related preliminary prospectus or Prospectus or
any amendment or supplement thereof or in any of such applications or in any
such sales as the case may be;
(ii) the
omission or alleged omission from (i) the Registration Statement (or any
amendment thereto) or in the Prospectus (as from time to time amended or
supplemented); (ii) any applications; or (iii) the Company’s periodic reports
such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and current
reports on Form 8-K, 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; provided however that no Issuer Entity
shall be liable in any such case to the extent any such statement or omission
was made in reliance upon and in conformity with written information furnished
to the Company by Ameriprise expressly for use in the Registration Statement or
related preliminary prospectus or Prospectus or any amendment or supplement
thereof or in any of such applications or in any such sales as the case may
be;
(iii) any
untrue statement of a material fact or alleged untrue statement of a material
fact contained in any supplemental sales material (whether designated for
broker-dealer use or otherwise) approved by the Company for use by Ameriprise or
any omission or alleged omission to state therein a material fact required to be
stated or necessary in order to make the statements therein, in light of the
circumstances under which they were made and when read in conjunction with the
Prospectus delivered therewith not misleading;
(iv) any
communication regarding the valuation of the Shares provided by or on behalf of
the Company; and
(v) the
breach by any Issuer Entity or any employee or agent acting on their behalf, of
any of the representations, warranties, covenants, terms and conditions of this
Agreement.
Notwithstanding
the foregoing, no indemnification by an Issuer Entity of Ameriprise, or each
person, if any, who controls Ameriprise within the meaning of Section 15 of the
Securities Act, and any of their respective officers, directors, employees and
agents or its officers, directors or control persons, pursuant to Section 8(a)
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 as to the
particular indemnitee; (2) such claims have been dismissed with prejudice on the
merits by a court of competent jurisdiction as to the particular indemnitee; 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 Commission and of the
published position of any state securities regulatory authority in which the
securities were offered or sold as to indemnification for violations of
securities laws.
(b) Indemnification by
Ameriprise. Subject to the conditions set forth below,
Ameriprise agrees to indemnify and hold harmless each Issuer Entity, each of
their directors and trustees, those of its officers who have signed the
Registration Statement and each other person, if any, who controls an Issuer
Entity within the meaning of Section 15 of the Securities Act to the same extent
as the foregoing indemnity from an Issuer Entity contained in subsections (a)(i)
and (a)(ii) of this Section, as incurred, but only with respect to an untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in the Registration Statement (as from time to
time amended or supplemented) or Prospectus, or any related preliminary
prospectus, or any application made in reliance upon or, in conformity with,
written information furnished by Ameriprise expressly for use in such
Registration Statement or Prospectus or any amendment or supplement thereto, or
in any related preliminary prospectus or in any of such applications.
(c) Procedure for Making
Claims. Each indemnified party shall give prompt notice to
each indemnifying party of any claim or action (including any governmental
investigation) commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify any indemnifying party shall not relieve it
from any liability that it may have hereunder, except to the extent it has been
materially prejudiced by such failure, and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. The indemnifying party, jointly with any other
indemnifying parties receiving such notice, shall assume the defense of such
action with counsel chosen by it and reasonably satisfactory to the indemnified
parties defendant in such action, unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses
available to them which are different from or in addition to those available to
such indemnifying party. Any indemnified party shall have the right
to employ a separate counsel in any such action and to participate in the
defense thereof but the fees and expenses of such counsel shall be borne by such
party unless such party has objected in accordance with the preceding sentence,
in which event such fees and expenses shall be borne by the indemnifying
parties. Except as set forth in the preceding sentence, if an
indemnifying party assumes the defense of such action, the indemnifying party
shall not be liable for any fees and expenses of separate counsel for the
indemnified parties incurred thereafter in connection with such
action. In no event shall the indemnifying parties be liable for the
reasonable fees and expenses of more than one counsel for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances.
The
indemnity agreements contained in this Section 8 and the warranties and
representations contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
party and shall survive any termination of this Agreement. An
indemnifying party shall not be liable to an indemnified party on account of any
settlement, compromise or consent to the entry of judgment of any claim or
action effected without the consent of such indemnifying party. The
Company agrees promptly to notify Ameriprise of the commencement of any
litigation or proceedings against the Company in connection with the issue and
sale of the Shares or in connection with the Registration Statement or
Prospectus.
(d) Contribution. Subject
to the limitations and exceptions set forth in Section 8(a) hereof and in order
to provide for just and equitable contribution where the indemnification
provided for in this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party under subsection (a) or (b) above in respect of
any losses, liabilities, claims, damages or expenses (or actions in respect
thereof) referred to therein (collectively, “Losses”),
except by reason of the terms thereof, the Issuer Entities on the one hand and
Ameriprise on the other shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received by
each of the Issuer Entities, on the one hand, and Ameriprise on the other from
the Offering based on the public offering price of the Shares sold and the
Selling Commissions, Marketing Fees and due
diligence expense reimbursements received by Ameriprise with respect to
such Shares sold. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits referred
to above but also the relative fault of the Issuer Entities, on the one hand and
Ameriprise on the other in connection with the statements or omissions which
resulted in such Losses (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by
the Issuer Entities, on the one hand and Ameriprise on the other shall be deemed
to be in the same proportion as (a) the sum of (i) the aggregate net
compensation retained by the Issuer Entities and their affiliates for the
purchase of Shares and (ii) total proceeds from the Offering (net of Selling
Commissions, Marketing Fees and due diligence expense reimbursements paid to
Ameriprise but before deducting expenses) received by the Company from the sale of Shares by Ameriprise bears to
(b) the Selling Commissions,
Marketing Fees and due diligence expense reimbursements
retained by Ameriprise. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by an Issuer Entity, on the one hand or Ameriprise on the
other. The Company agrees with Ameriprise that it would not be just
and equitable if contribution pursuant to this subsection (d) were determined by
pro rata allocation, or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result
of the Losses referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d),
Ameriprise shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares subscribed for through
Ameriprise were offered to the subscribers exceeds the amount of any damages
which Ameriprise has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission. Further,
in no event shall the amount of Ameriprise’s contribution to the liability
exceed the net Selling Commissions, Marketing
Fees, due diligence expense reimbursements and any other compensation
retained by Ameriprise from the proceeds of the Offering. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act or Section 10(b) of the Exchange Act, as amended) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, any person that
controls Ameriprise within the meaning of Section 15 of the Securities Act shall
have the same right to contribution as Ameriprise, and each person who controls
the Company within the meaning of Section 15 of the Securities Act shall have
the same right to contribution as the Company.
9. Representations and
Agreements to Survive. All representations and warranties
contained in this Agreement or in certificates and all agreements contained in
Section 3(a), 3(d), 6, 8, 9 and 10 of this Agreement
shall remain operative and in full force and effect regardless of any
investigation made by any party, and shall survive the Termination
Date.
(a) This
Agreement shall become effective as of the date it is executed by all parties
hereto. After this Agreement becomes effective, any party may
terminate it at any time for any reason by giving two days’ prior written notice
to the other parties. Ameriprise will
immediately suspend or terminate its offer and sale of Shares upon the request
of the Company or the Dealer Manager at any time.
(b) Additionally,
Ameriprise shall have the right to terminate this Agreement at any time during
the Effective Term without liability of any party to any other party except as
provided in Section 10(c) hereof if: (i) any representations or warranties of
any Issuer Entity hereunder shall be found to have been incorrect; or (ii) any
Issuer Entity shall fail, refuse or be unable to perform any condition of its
obligations hereunder, or (iii) the Prospectus shall have been amended or
supplemented despite Ameriprise’s objection to such amendment or supplement, or
(iv) the United States shall have become involved in a war or major hostilities
or a material escalation of hostilities or acts of terrorism involving the
United States or other national or international calamity or crisis (other than
hostilities which presently exist including Iraq and Afghanistan);
or (v) a banking moratorium shall have been declared by a state or federal
authority or person; or (vi) the Company shall have sustained a material or
substantial loss by fire, flood, accident, hurricane, earthquake, theft,
sabotage or other calamity or malicious act which, whether or not said loss
shall have been insured, will in Ameriprise’s good faith opinion make it
inadvisable to proceed with the offering and sale of the Shares; or (vii) there
shall have been, subsequent to the dates information is given in the
Registration Statement and the Prospectus, such change in the business,
properties, affairs, condition (financial or otherwise) or prospects of the
Company whether or not in the ordinary course of business or in the condition of
securities markets generally as in Ameriprise’s good faith judgment would make
it inadvisable to proceed with the offering and sale of the Shares, or which
would materially adversely affect the operations of the Company.
(c) In
the event this Agreement is terminated by any party pursuant to Sections 10(a)
or 10(b) hereof, the Company shall pay all expenses of the Offering as required
by Section 6 hereof and no party will have any additional liability to any other
party except for any liability which may exist under Sections 3(d) and 8
hereof. Following the termination of the Offering in no event will
the Company be liable to reimburse Ameriprise for expenses other then as set
forth in the previous sentence, and
Ameriprise’s actual and reasonable out-of-pocket expenses incurred, at the request of the Company, following
the termination of the Offering, including, without limitation, the cost of data
transmissions and other related client transmissions.
(d) If
Ameriprise elects to terminate this Agreement as provided in this Section 10,
Ameriprise shall notify the Company promptly by telephone or facsimile with
confirmation by letter. If the Company elects to terminate this
Agreement as provided in this Section 10, the Company shall notify Ameriprise
promptly by telephone or facsimile with confirmation by letter.
11. Notices.
(a) All
communications hereunder, except as herein otherwise specifically provided,
shall be in writing and if sent to an Issuer Entity shall be mailed, or
personally delivered, to an Issuer Entity shall be mailed, or personally
delivered, to the Company, ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇, Attention ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ at the
same address, and if sent to Ameriprise shall be mailed, or personally
delivered, to ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
General Counsel.
(b) Notice
shall be deemed to be given by any respective party to any other respective
party when it is mailed or personally delivered as provided in subsection (a) of
this Section 11.
12. Parties. This
Agreement shall inure solely to the benefit of, and shall be binding upon
Ameriprise, the Issuer Entities, and the controlling persons, trustees,
directors and officers referred to in Section 8 hereof, and their respective
successors, legal representatives and assigns, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein
contained. Notwithstanding the foregoing, this Agreement may not be
assigned without the consent of the parties hereto.
13. Choice of Law and
Arbitration.
(a) Regardless
of the place of its physical execution or performance, the provisions of this
Agreement will in all respects be construed according to, and the rights and
liabilities of the parties hereto will in all respects be governed by, the
substantive laws of the State of New York
without regard to and exclusive of New York’s conflict of laws
rules.
(b) Any
dispute between the parties concerning this Agreement not resolved between the
parties will be arbitrated in accordance with the rules and regulations of
FINRA. In the event of any dispute between Ameriprise and any Issuer
Entity, the parties will continue to
perform their obligations under this
Agreement in good faith during the resolution of such dispute unless and until
this Agreement is terminated in accordance with the provisions
hereof.
14. Counterparts. This
Agreement may be executed by the parties
hereto in two or more counterparts, each of which shall be deemed to be an
original, which together shall constitute one and the same Agreement among the
parties.
15. Finders’
Fees. Ameriprise shall have no liability for any finders’ fees
owed in connection with the transactions contemplated by this
Agreement.
Ameriprise
Confidential Information.
(a) “Ameriprise
Confidential Information” includes, but is not limited to, all
proprietary and confidential information of Ameriprise and its subsidiaries,
affiliates, and financial advisors,
including without limitation all information regarding its customers and the
customers of its subsidiaries, affiliates, or financial advisors (together “Ameriprise
Customers”); or the accounts, account numbers, names, addresses, social
security numbers or any other personal identifier of such Ameriprise Customers;
or any information derived therefrom. Ameriprise Confidential
Information will not include information which is (i) in or becomes part of the
public domain, except when such information is in the public domain due to
disclosure by an Issuer Entity , in violation of this Agreement, (ii)
demonstrably known to an Issuer Entity prior to execution of this Agreement,
(iii) independently developed by an Issuer Entity in the ordinary course of
business outside of this Agreement, or (iv) rightfully and lawfully obtained by
an Issuer Entity from any third party other than Ameriprise.
(b) No
Issuer Entity may use or disclose Ameriprise Confidential Information for any
purpose other than to carry out the purpose for which Ameriprise Confidential
Information was provided to the Issuer Entities as set forth in the
Agreement and/or, as may otherwise be required by
applicable law, rule, regulation or court order, and agrees
to cause all the Issuer Entities’ employees, agents, representatives, or any
other party to whom the Issuer Entities may provide access to or disclose
Ameriprise Confidential Information to limit the use and disclosure of
Ameriprise Confidential Information to that purpose.
(c) The
Issuer Entities agree to implement reasonable measures designed (i) to assure
the security and confidentiality of Ameriprise Confidential Information; (ii) to
protect such information against any anticipated threats or hazards to the
security or integrity of such information; (iii) to protect against unauthorized
access to, or use of, Ameriprise Confidential Information that could result in
substantial harm or inconvenience to any Ameriprise Customer; (iv) to protect
against unauthorized disclosure of non-public personal information to
unaffiliated third parties; and (v) to otherwise ensure its compliance with
the Commission’s Regulations
S-P. The Issuer Entities further agree to cause all of their
respective agents, representatives, subcontractors, or any other party to whom
the Issuer Entities may provide access to or disclose Ameriprise Confidential to
implement appropriate measures designed to meet the objectives set forth in this
paragraph.
(d) Upon
Ameriprise’s request, the Issuer Entities shall promptly return Ameriprise
Confidential Information (and any copies, extracts, and summaries thereof) to
Ameriprise, or, with Ameriprise’s written consent, shall promptly destroy, in a
manner satisfactory to Ameriprise, such materials (and any copies, extracts, and
summaries thereof) and shall further provide Ameriprise with written
confirmation of same.
18. Amendments. This Agreement may only be amended upon
written agreement executed by each of the parties hereto.
The Parties hereto acknowledge that certain of the terms
of this Agreement are subject to the approval of FINRA, which approval has not,
as of the date of this Agreement, been obtained. In connection
therewith, the parties hereto agree that with respect to obtaining FINRA
approval, they shall negotiate (among themselves) in good faith, to adopt such
amendments to this Agreement as may be reasonably necessary, to obtain FINRA
approval.
19. Additional
Offerings. The terms of this Agreement may be extended to
cover additional offerings of shares of the Company by the execution by the
parties hereto of an addendum identifying the shares and registration statement
relating to such additional offering. Upon execution of such
addendum, the terms “Shares”, “Offering”, “Registration Statement” and
“Prospectus” set forth herein shall be deemed to be amended as set forth in such
addendum.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date first set forth above.
▇▇▇▇▇
Real Estate Investment Trust, Inc.
By: /s/ ▇▇▇▇▇
Apollo
Name:
▇▇▇▇▇ Apollo
Title:
Senior Vice President – Finance, Treasurer and Secretary
▇▇▇▇▇
Real Estate Securities, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇.
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title:
President- Retail Distribution
▇▇▇▇▇
Advisors Limited Partnership
By:
▇▇▇▇▇ Advisors GP LLC, its General Partner
By: /s/ ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
President and Chief Executive Officer
Accepted
as of the date first above
written:
AMERIPRISE
FINANCIAL SERVICES, INC.
By: /s/
▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Vice President and General Manager