PRIME REALTY INCOME TRUST, INC. Up to 60,000,000 Shares of Common Stock FORM OF SELECTED DEALER AGREEMENT

Exhibit 1.2

PRIME REALTY INCOME TRUST, INC.

 

Up to 60,000,000 Shares of Common Stock

 

FORM OF SELECTED DEALER AGREEMENT

 

Ladies and Gentlemen:

 

Capital Financial Services, Inc., a Wisconsin corporation, as the dealer manager (the “Dealer Manager”) for Prime Realty Income Trust, Inc. (the “Company”), a Maryland corporation that intends to qualify to be taxed as a real estate investment trust, invites you (the “Dealer”) to participate in the distribution of up to 60,000,000 shares of common stock (collectively, the “Shares”) of the Company, which is comprised of 50,000,000 Shares that will be issued and sold to the public (the “Primary Shares”) and 10,000,000 Shares that will be offered pursuant to the Company’s dividend reinvestment plan (the “DRIP Shares”), subject to the following terms:

 

 

The Dealer Manager has entered into a Dealer Manager Agreement (the “Dealer Manager Agreement”) with the Company and The Prime Group, an Illinois corporation (the “Advisor”) dated                 , 2009, in the form attached hereto as Exhibit A. The terms of the Dealer Manager Agreement relating to the Dealer are incorporated herein by reference as if set forth verbatim. By your acceptance of this agreement (the “Agreement”), you will become one of the Dealers referred to in such Dealer Manager Agreement, as well as a third-party beneficiary of the Dealer Manager Agreement as set forth in Section 15 of the Dealer Manager Agreement, and, in particular, will be entitled and subject to the indemnification provisions contained in Section 8 of the Dealer Manager Agreement wherein the Dealers severally agree to indemnify and hold harmless the Company, the Dealer Manager and each officer and director thereof, and each person, if any, who controls the Company, the Advisor or the Dealer Manager within the meaning of the Securities Act. Except as otherwise specifically stated herein, capitalized terms used in this Agreement not otherwise defined herein shall have the meanings given them in the Dealer Manager Agreement. The Shares are to be offered solely through broker-dealers who are members of the Financial Industry Regulatory Authority, Inc. (“FINRA”).

 

The Dealer hereby agrees to use its best efforts to sell the Shares for cash on the terms and conditions stated in the Prospectus. Nothing in this Agreement shall be deemed or construed to make the Dealer an employee, agent, representative or partner of the Dealer Manager or of the Company, and the Dealer is not authorized to act for the Dealer Manager, the Advisor or the Company or to make any representations on their behalf except as set forth in the Prospectus and any Supplemental Information furnished to Dealer by the Dealer Manager or the (as defined below).

 

The Company has filed with the Securities and Exchange Commission (the “SEC”) the Registration Statement, including the Prospectus, for the registration of the offering of the Shares under the Securities Act of 1933, as amended (the “Securities Act”). Such registration statement has been declared effective by the SEC. The offering of the Shares has also been qualified in all fifty states of the United States, Puerto Rico and the District of Columbia. The Dealer Manager

 

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will provide the Dealer as many copies of the Prospectus as the Dealer may from time to time reasonably request.

 

 

Except as set forth below, those persons who purchase Shares will be instructed by the Dealer to make their checks payable to “▇▇▇▇▇ FARGO BANK, NA, AS AGENT FOR PRIME REALTY INCOME TRUST, INC.” After the Company meets the Minimum Offering requirement of $2,500,000, subscribers (except residents of Pennsylvania) will be instructed by the Dealer to make their checks payable to or to send wire transfers for the account of “Prime Realty Income Trust, Inc.” Those persons who purchase Shares and are residents of Pennsylvania, will be instructed by the Dealer Manager or the Dealer to make their checks payable to “▇▇▇▇▇ FARGO BANK, NA, AS AGENT FOR PRIME REALTY INCOME TRUST, INC.” until the Company receives aggregate gross proceeds from the Offering of $29,750,000 after which checks should be made payable to or wire transfers sent for the account of “Prime Realty Income Trust, Inc.” Any Dealer receiving a check not conforming to the foregoing instructions shall return such check directly to such subscriber not later than the end of the next business day following its receipt. Checks received by the Dealer which conform to the foregoing instructions shall be transmitted for deposit in accordance with the following procedures.

 

Where, pursuant to a Dealer’s internal supervisory procedures, internal supervisory review is conducted at the same location at which subscription documents and checks are initially received from subscribers, checks will be transmitted by the end of the next business day following receipt of the subscription documents and the check by the Dealer.

 

Where, pursuant to a Dealer’s internal supervisory procedures, final internal supervisory review is conducted at a different location (the “Final Review Office”), subscription documents and checks will be transmitted to the Final Review Office by the end of the next business day following receipt of the subscription documents and check by the Dealer. The Final Review Office will transmit such subscription documents and checks by the end of the next business day following receipt by the Final Review Office.

 

Except as agreed to in writing by the Dealer Manager, Dealers shall mail checks and completed subscription documents by direct overnight mail to Prime Realty Income Trust, Inc., c/o The Prime Group, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: Chief Financial Officer.

 

 

The Shares shall be offered to the public at the offering price of $10.00 per Share payable in cash; provided, however, that Shares shall be offered to the public pursuant to the Company’s dividend reinvestment plan for a maximum purchase price of $9.50 per Share, subject to the terms and pricing information provided in the Prospectus and the Distribution Reinvestment Plan therein, including the Company’s right to reallocate Share amounts. Except as otherwise indicated in the Prospectus or in any letter or memorandum sent to the Dealer by the Company or the Dealer Manager, subscribers must initially purchase at least $2,500 of Shares. After investors

 

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have satisfied the minimum purchase requirement, minimum additional purchases must be in increments of $500, except for purchases made pursuant to our distribution reinvestment plan. The Shares are nonassessable. The Dealer hereby agrees to place any order for the full purchase price.

 

 

Except for discounts described in or as otherwise provided in the “Plan of Distribution” section of the Prospectus, the Dealer’s sales commission is up to (a) seven percent (7.0%) of the gross proceeds of the Primary Shares and (b) three percent (3.0%) of the gross proceeds of the DRIP Shares, in each case, sold by it and accepted and confirmed by the Company, which commission will be paid to the Dealer Manager and reallowed to the Dealer. For these purposes, a “sale of Shares” shall occur if and only if a transaction has closed with a securities purchaser pursuant to all applicable offering and subscription documents and the Company has thereafter distributed the commission to the Dealer Manager in connection with such transaction.

 

As provided in the “Plan of Distribution” section of the Prospectus, the Dealer Manager and the Dealer may reduce the amount of its dealer manager fee and its sales commission on sales of $250,000 of Primary Shares or more to certain purchasers in order to provide a reduction to the total purchase price for such Shares. It is the sole responsibility of the Dealer to determine whether a particular purchase by a subscriber qualifies for a volume discount to the Dealer’s sales commission and to confirm that the appropriate volume discount was accorded to the subscriber based on the Dealer’s review of the transaction confirmation issued by the Company.

 

The Company and the Advisor will not be liable or responsible to the Dealer for direct payment of commissions or any other amounts to the Dealer, it being the sole and exclusive responsibility of the Dealer Manager for all payments to the Dealer. The Dealer hereby waives any and all rights to receive payment of commissions and any other payments due until such time as the Dealer Manager is in receipt of the commission or other payment from the Company or the Advisor, as applicable. The Dealer affirms that the Dealer Manager’s liability for commissions payable is limited solely to the proceeds of commissions receivable associated therewith.

 

The parties hereby agree that the foregoing commission is not in excess of the usual and customary distributors’ or sellers’ commission received in the sale of securities similar to the Shares, that the Dealer’s interest in the offering is limited to such commission from the Dealer Manager and the Dealer’s indemnity referred to in Section 8 of the Dealer Manager Agreement, and that the Company is not liable or responsible for the direct payment of such commission to the Dealer.

 

 

Notwithstanding the foregoing, Shares may be sold to (A) executive officers and directors of the Company and their immediate family members, (B) officers and employees of the Advisor or other affiliates and their immediate family members, and (C) if approved by the Board of Directors of the Company, joint venture partners, consultants and other service providers, at a discount equal to a purchase price of $9.10 per Share which, as provided in the

 

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“Plan of Distribution” section of the Prospectus, reflects a reduction in (X) the dealer manager fee and/or (Y) the sales commission otherwise payable with respect to such Shares. Also as provided in the “Plan of Distribution” section of the Prospectus, (1) the Dealer Manager and the Dealer shall reduce the amount of its dealer manager fees and sales commission on sales to Qualifying Purchasers who purchase $250,000 of Shares or more in order to provide a reduction to the total purchase price per share for such Shares and (2) the Dealer Manager, in its sole discretion, may reduce the amount of its dealer manager fee and sales commission on sales to Qualifying Purchasers who purchase in excess of $3,000,000 of Shares. For purposes of this Article V, the term “Qualifying Purchaser” includes (A) an individual, his or her spouse and members of their immediate families who purchase the Shares for his, her or their own account; (B) a corporation, partnership, association, joint stock company, trust fund or any organized group of persons, whether incorporated or not; (C) an employees’ trust, pension, profit sharing or other employee benefit plan qualified under Section 401(a) of the Code; and (D) all commingled trust funds maintained by a bank.

 

Subscriptions for Shares made by Qualifying Purchasers may be combined for the purpose of determining whether the Qualifying Purchaser is eligible for a volume discount and/or the applicable level of volume discount, provided that all such Shares are purchased through the Dealer. If such subscriptions are combined, then the volume discount (i.e., the reduction in sales commission and dealer manager fees) shall be prorated among such Qualifying Purchasers based on the ratio of the amount of each Qualifying Purchaser’s respective investment to their collective purchase amount.

 

Notwithstanding Section 6(b)(ii) above, the Dealer Manager may, in its reasonable discretion, enter into an agreement with the Dealer, pursuant to which the Dealer may aggregate subscriptions as part of a combined order for the purposes of offering purchasers a volume discount in an amount not to exceed five percent (5.0%), provided that any such aggregate group of subscriptions must be received by the Dealer. If such aggregate group of subscriptions are received by the Dealer Manager from the Dealer, then the volume discount (i.e., the reduction in sales commission and dealer manager fees) shall be credited on a pro rata basis based on the ratio of the amount of each purchaser’s respective investment to the purchasers’ aggregate purchase price.

 

If the subscriptions to be combined pursuant to this Article V are not submitted at the same time, then any volume discount to be credited in connection with such combined purchases shall be credited to the last component purchase, unless the Company is otherwise directed in writing at the time of such submission; except however, the volume discount to be credited to any tax-exempt entities whose subscriptions are combined for purposes of the volume discount shall be credited only on a pro-rata basis based on the ratio of the amount of the investment of each tax-exempt entity to such entities’ aggregate purchase price.

 

 

Payments of sales commissions will be made by the Dealer Manager to the Dealer within thirty (30) days of the receipt by the Dealer Manager of the gross commission payments from the Company.

 

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All orders, whether initial or additional, are subject to acceptance by and shall only become effective upon confirmation by the Company, which reserves the right to reject any order. Orders not accompanied by an executed Subscription Agreement and the required check or wire transfer in payment for the Shares may be rejected. Issuance and delivery of the Shares will be made only after actual receipt of payment therefor. If any check is not paid upon presentment, or if the Company is not in actual receipt of clearinghouse funds or cash, certified or cashier’s check or the equivalent in payment for the Shares within fifteen (15) days of sale, the Company reserves the right to cancel the sale without notice. In the event an order is rejected, canceled or rescinded for any reason, the Dealer agrees to return to the Dealer Manager any commission theretofore paid with respect to such order.

 

 

Dealer is not authorized or permitted to give and will not give any information or make any representation concerning the Shares except as set forth in the Prospectus and any additional sales literature which has been approved in advance in writing by the Dealer Manager (“Supplemental Information”). The Dealer Manager will supply Dealer with reasonable quantities of the Prospectus, any supplements thereto and any amended Prospectus, as well as any Supplemental Information, for delivery to investors, and Dealer will deliver a copy of the Prospectus and all supplements thereto and any amended Prospectus to each investor to whom an offer is made prior to or simultaneously with the first solicitation of an offer to sell the Shares to an investor. The Dealer agrees that it will not send or give any supplement to the Prospectus or any Supplemental Information to an investor unless it has previously sent or given a Prospectus and all previous supplements thereto and any amended Prospectus to that investor or has simultaneously sent or given a Prospectus and all previous supplements thereto and any amended Prospectus with such supplement to the Prospectus or Supplemental Information. The Dealer agrees that it will not show or give to any investor or prospective investor or reproduce any material or writing which is supplied to it by the Dealer Manager and marked “dealer only” or otherwise bearing a legend denoting that it is not to be used in connection with the sale of Shares to members of the public. Dealer agrees that it will not use in connection with the offer or sale of Shares any material or writing which relates to another company supplied to it by the Company or the Dealer Manager bearing a legend which states that such material may not be used in connection with the offer or sale of any securities other than the company to which it relates. The Dealer further agrees that it will not use in connection with the offer or sale of Shares any materials or writings which have not been previously approved by the Dealer Manager in writing. The Dealer agrees, if the Dealer Manager so requests, to furnish a copy of any revised preliminary Prospectus to each person to whom it has furnished a copy of any previous preliminary Prospectus, and further agrees that it will itself mail or otherwise deliver all preliminary and final Prospectuses required for compliance with the provisions of Rule 15c2-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Regardless of the termination of this Agreement, the Dealer will deliver a Prospectus in transactions in the Shares for a period of 90 days from the effective date of the Registration Statement or such longer period as may be required by the Exchange Act. On becoming a Dealer, and in offering and selling Shares, the Dealer agrees to comply with all the applicable requirements under the Securities Act, and the Exchange Act. Notwithstanding the termination of this Agreement or the

 

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payment of any amount to the Dealer, the Dealer agrees to pay the Dealer’s proportionate share of any claim, demand or liability asserted against the Dealer and the other Dealers on the basis that such Dealers or any of them constitute an association, unincorporated business or other separate entity, including in each case such Dealer’s proportionate share of any expenses incurred in defending against any such claim, demand or liability.

 

 

The Dealer’s acceptance of this Agreement constitutes a representation to the Company and the Dealer Manager that the Dealer is a properly registered or licensed broker-dealer, duly authorized to sell Shares under federal and state securities laws and regulations and in all states where it offers or sells Shares, and that it is a member in good standing of FINRA. This Agreement shall automatically terminate if the Dealer ceases to be a member in good standing of FINRA. The Dealer agrees to notify the Dealer Manager immediately if the Dealer ceases to be a member in good standing of FINRA. In addition, each of the Dealer Manager and the Dealer hereby agrees to abide by the Conduct Rules of FINRA and to comply with Rules 2730, 2740, 2420, 2440, 2750, and 2810 of the National Association of Securities Dealers, Inc. as they are incorporated into the FINRA Conduct Rules.

 

 

The Dealer will offer Shares only to persons who meet the financial qualifications set forth in the Prospectus or in any suitability letter or memorandum sent to it by the Company or the Dealer Manager and will only make offers to persons in the states in which it is advised in writing by the Dealer Manager that the Shares are qualified for sale or that such qualification is not required.

 

In offering Shares, the Dealer will make every reasonable effort to determine that the purchase of the Shares is a suitable and appropriate investment for each purchaser of the Shares solicited by the Dealer and will comply with the requirements imposed upon it by the Prospectus, the Securities Act, the Exchange Act, applicable Blue Sky laws, and all applicable FINRA rules, including the NASD Conduct Rules set forth in the FINRA Manual, as well as all other applicable rules and regulations relating to suitability of investors and prospectus delivery requirements, including without limitation, the provisions of Article III.C. and Article III.E.1. of the Statement of Policy Regarding Real Estate Investment Trusts of the North American Securities Administrators Association, Inc. Nothing contained in this Selected Dealer Agreement shall be construed to impose upon the Company or the Dealer Manager the responsibility of assuring that prospective investors meet the suitability standards in accordance with the terms and provisions of the Prospectus.

 

 

The Dealer agrees that it shall have reasonable grounds to believe, based on the information made available to it through the Prospectus or other materials, that all material facts are adequately and accurately disclosed in the Prospectus and provide a basis for evaluating the Shares. In making this determination, the Dealer shall evaluate items of compensation, physical properties, tax aspects, financial stability and experience of the sponsor, conflicts of interest and

 

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risk factors; and appraisals and other pertinent reports. If the Dealer relies upon the results of any inquiry conducted by another member or members of FINRA, the Dealer shall have reasonable grounds to believe that such inquiry was conducted with due care, that the member or members conducting or directing the inquiry consented to the disclosure of the results of the inquiry and that the person who participated in or conducted the inquiry is not the Dealer Manager or a sponsor or an affiliate of the sponsor of the Company.

 

 

The Dealer acknowledges that investors who purchase Shares through Dealer are “customers” of Dealer and not the Dealer Manager. The Dealer hereby represents that it has complied and will comply with Section 326 of the USA Patriot Act and the implementing rules and regulations promulgated thereunder in connection with broker/dealers’ anti-money laundering obligations. The Dealer hereby represents that it has adopted and implemented, and will maintain a written anti-money laundering compliance program including, without limitation, anti-money laundering policies and procedures relating to customer identification as required by the USA Patriot Act and the implementing rules and regulations promulgated thereunder. The Dealer will certify annually to the Dealer Manager that the Dealer (i) has implemented its anti-money laundering compliance program and (ii) will perform the specified requirements of its customer identification policies and procedures.

 

 

The Dealer hereby authorizes and ratifies the execution and delivery of the Dealer Manager Agreement by the Dealer Manager for the Dealer Manager and on behalf of the Dealer and authorizes the Dealer Manager to agree to any variation of its terms or provisions and to execute and deliver any amendment, modification or supplement thereto. The Dealer hereby agrees to be bound by all provisions of the Dealer Manager Agreement relating to the Dealer. Dealer also authorizes the Dealer Manager to exercise, in the Dealer Manager’s discretion, all the authority or discretion now or hereafter vested in the Dealer Manager by the provisions of the Dealer Manager Agreement and to take all such actions as the Dealer Manager may believe desirable in order to carry out the provisions of the Dealer Manager Agreement and of this Agreement.

 

 

The Dealer will suspend or terminate its offer and sale of Shares upon the request of the Company or the Dealer Manager at any time and will resume its offer and sale of Shares hereunder upon subsequent request of the Company or the Dealer Manager. Any party may terminate this Agreement by written notice. Such termination shall be effective 48 hours after the mailing of such notice. This Agreement is the entire agreement of the parties and supersedes all prior agreements, if any, between the parties hereto.

 

This Agreement may be amended at any time by written agreement of the Dealer and the Dealer Manager.

 

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The respective agreements and obligations of the Dealer Manager and Dealer set forth in Sections IV, V, VI, VII, XIII through XXIII of this Agreement shall remain operative and in full force and effect regardless of the termination of this Agreement.

 

 

Each party agrees to promptly provide to the other party copies of any written or otherwise documented complaints from customers of the Dealer received by such party relating in any way to the Offering (including, but not limited to, the manner in which the Shares are offered by the Dealer).

 

 

No party shall assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other party. This Agreement shall be binding upon the Dealer Manager and the Dealer and their respective successors and permitted assigns.

 

 

Nothing in this Agreement shall be construed or interpreted to constitute the Dealer as in association with or in partnership with the Dealer Manager, the Company, the Advisor or the other Dealers; instead, this Agreement shall only constitute the Dealer as a dealer authorized by the Dealer Manager to sell the Shares according to the terms set forth in the Registration Statement and the Prospectus as amended and supplemented and in this Agreement.

 

 

All notices, approvals, requests, authorizations, directions or other communications under this Agreement shall be given in writing and shall be deemed to be delivered when delivered in person, by courier, or by over-night delivery service, or within three days when deposited in the United States mail, properly addressed and stamped with the required postage, registered or certified mail, return receipt requested as follows:

 

 

 

This Agreement and the exhibits hereto are the entire agreement of the parties and supersede all prior agreements, if any, relating to the subject matter hereof between the parties hereto.

 

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The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.

 

 

In any action to enforce the provisions of this Agreement or to secure damages for its breach, the prevailing party shall recover its costs and reasonable attorney’s fees. This Agreement shall be construed under the laws of the State of Illinois and shall take effect when signed by the Dealer and countersigned by the Dealer Manager.

 

 

EACH OF THE PARTIES (A) AGREES THAT THE EXCLUSIVE JURISDICTION FOR ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE BROUGHT IN THE FEDERAL COURTS LOCATED IN CHICAGO, ILLINOIS; (B) CONSENTS TO THE EXCLUSIVE JURISDICTION OF EACH SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING RELATING TO OR ARISING OUT OF THIS AGREEMENT; (C) WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LAYING OF VENUE IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT; AND (D) AGREES THAT SERVICE OF ANY COURT PAPER MAY BE MADE IN SUCH MANNER AS MAY BE PROVIDED UNDER APPLICABLE LAWS OR COURT RULES GOVERNING SERVICE OF PROCESS.

 

 

THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

 

This Agreement may be executed in any number of counterparts. Each counterpart, when executed and delivered, shall be an original contract, but all counterparts, when taken together, shall constitute one and the same agreement.

 

[signature page follows]

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DEALER MANAGER:

CAPITAL FINANCIAL SERVICES, INC.

 

 

We have read the Agreement and we hereby accept and agree to the terms and conditions herein set forth. We hereby represent that the attached list of jurisdictions in which we are registered or licensed as a broker or dealer and are fully authorized to sell securities is true and correct, and we agree to advise you of any change in such list during the term of this Agreement.

 

 

 

 

Licensed as broker-dealer all States: Yes ___No ___

If no, list all States licensed as broker-dealer:

 

 

Name:

Company:

Address:

City, State and Zip:

Telephone:

Fax:

Email:

AGREED TO AND ACCEPTED BY THE DEALER:

 

 

 

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