FORM OF SOLICITING DEALER AGREEMENT HEALTHCARE TRUST OF AMERICA, INC.
Exhibit 1.4
Ladies and Gentlemen:
Realty Capital Securities, LLC (the “Dealer Manager”) has entered into an exclusive
dealer manager agreement (the “Dealer Manager Agreement”) which is a part hereof and
attached hereto, with Healthcare Trust of America, Inc., a Maryland corporation (the
“Company”), under which the Dealer Manager has agreed to use the Dealer Manager’s best
efforts to solicit subscriptions for the shares of the Company’s common stock (the
“Shares”). The Company is offering to the public an aggregate maximum of up to
$2,000,000,000 Shares at a price of $10.00 per Share on a “best efforts” basis (the “Primary
Offering”), and up to $200,000,000 Shares issued pursuant to the distribution reinvestment
program (“DRP”) at a price of $9.50 per Share, (subject to the right of the Company to
reallocated the Shares between the Primary Offering and the DRP) (the “Offering”). Unless
otherwise defined, capitalized terms used herein shall have the same meaning as in the Dealer
Manager Agreement.
In connection with the performance of the Dealer Manager’s obligations under Section 3 of the
Dealer Manager Agreement, the Dealer Manager is authorized to retain the services of securities
dealers (the “Soliciting Dealers”) who are members of the Financial Industry Regulatory
Authority (“FINRA”) to solicit subscriptions. You are hereby invited to become a
Soliciting Dealer and, as such, to use your best efforts to solicit subscribers for Shares, in
accordance with the following terms and conditions:
1. Registration Statement.
(a) A registration statement on Form S-11 (File No. 333-158418), including a preliminary
prospectus, was filed with the Securities and Exchange Commission (the “Commission”) on
April 6, 2009, in accordance with the applicable requirements of the Securities Act of 1933, as
amended (the “Securities Act”), and the applicable rules and regulations of the Commission
promulgated thereunder (the “Securities Act Rules and Regulations”) for the registration of
the Offering. The Company has prepared and filed such amendments thereto, if any, and such amended
prospectus, if any, as may have been required to the date hereof, and will file such additional
amendments and supplements thereto as may hereafter be required. The prospectus, as amended or
supplemented, on file with the Commission at the Effective Date (as defined below) of the
registration statement (including financial statements, exhibits and all other documents related
thereto filed as a part thereof or incorporated therein), is hereinafter referred to as the
“Prospectus,” except that if the Prospectus is amended or supplemented after the Effective Date,
the term “Prospectus” shall refer to the Prospectus as amended or supplemented to date, and if the
Prospectus filed by the Company pursuant to Rule 424(b) or 424(c) of the Securities Act Rules and
Regulations shall differ from the Prospectus on file at the time the registration statement or any
post-effective amendment to the registration statement shall become effective, the term
“Prospectus” shall refer to the Prospectus filed pursuant to either Rule 424(b) or 424(c) of the
Securities Act Rules and Regulations from and after the date on which it shall have been filed with
the Commission. As used in this agreement, the term “Registration Statement” means the
Registration Statement, as amended through the date hereof, except that, if the Company files
any post-effective amendments to the Registration Statement, “Registration Statement” shall refer
to the Registration Statement as so amended by the last post-effective amendment declared
effective, and the term “Effective Date” means the applicable date upon which the Registration
Statement or any post-effective amendment thereto is or was first declared effective by the
Commission.
(b) The Shares and the Offering are more particularly described in the enclosed Prospectus.
Additional copies of the Prospectus will be supplied to the Soliciting Dealer in reasonable
quantities upon request. The Dealer Manager will also provide the Soliciting Dealer with reasonable
quantities of any supplemental literature prepared by the Company in connection with the Offering.
2. Compliance with Applicable Rules and Regulations; License and Association Membership.
Solicitation and other activities by the Soliciting Dealers hereunder shall be undertaken only
in accordance with the Dealer Manager Agreement, this Agreement, the Securities Act, the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), the applicable rules and regulations
of the Commission, the Blue Sky Survey, the Rules of FINRA, specifically including, but not in any
way limited to, FINRA Rules 2340, 2420, 2730, 2740, 2750, and 2810 of the FINRA Conduct Rules, and
the provisions of Article III.C. of the Statement of Policy Regarding Real Estate Investment Trusts
of the North American Securities Administrators Association, Inc. (the “NASAA Guidelines”).
Upon the effectiveness of this Agreement, the undersigned dealer will become one of the
“Soliciting Dealers” referred to in the Dealer Manager Agreement. Soliciting Dealer’s acceptance
of this Agreement constitutes a representation to the Company and to the Dealer Manager that
Soliciting Dealer is a properly registered or licensed broker-dealer, duly authorized to sell
Shares under federal and state securities laws and regulations in all states where it offers or
sells Shares, and that it is a member in good standing of FINRA. Soliciting Dealer represents and
warrants that it is currently licensed as a broker-dealer in the jurisdictions identified on
Schedule 1 to this Agreement and that its independent contractors and registered representatives
have the appropriate licenses(s) to offer and sell the Shares in such jurisdictions. This Agreement
shall automatically terminate if Soliciting Dealer ceases to be a member in good standing of FINRA,
or with the securities commission of the state in which Soliciting Dealer’s principal office is
located. Soliciting Dealer agrees to notify the Dealer Manager and the Company immediately if
Soliciting Dealer ceases to be a member in good standing of FINRA or with the securities commission
of any state in which Soliciting Dealer is currently registered or licensed.
3. Limitation of Offer; Investor Suitability.
(a) The Soliciting Dealer will offer Shares only to persons that it has reasonable grounds to
believe meet the financial qualifications set forth in the Prospectus or in any suitability letter
or memorandum sent by the Company, the FINRA Rules and NASAA Guidelines. In offering the sale of
Shares to any person, each Soliciting Dealer shall have
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reasonable grounds to believe (based on such information obtained from the investor concerning
the investor’s age, investment objectives, other investments, financial situation, needs or any
other information known by the Soliciting Dealer after due inquiry) that: (i) such person is in a
financial position appropriate to enable such person to realize to a significant extent the
benefits described in the Prospectus, including the tax benefits where they are a significant
aspect of the Company; (ii) the investor has a fair market net worth sufficient to sustain the
risks inherent in the program, including loss of investment and lack of liquidity; (iii) the
purchase of the Shares is otherwise suitable for such person; and (iv) such person has either: (a)
a minimum annual gross income of $70,000 and a minimum net worth (exclusive of home, home
furnishings and automobiles) of $70,000; or (b) a minimum net worth (determined with the foregoing
exclusions) of $250,000 and meets the higher suitability standards, if applicable, imposed by the
state in which the investment by such investor is made. In making the determinations as to
financial qualifications and as to suitability required by the NASAA Guidelines, a Soliciting
Dealer may rely on (i) representations from investment advisers who are not affiliated with the
Soliciting Dealer, banks acting as trustees or fiduciaries and (ii) information it has obtained
from a prospective investor, including such information as the investment objectives, other
investments, financial situation and needs of the person or any other information known by the
Soliciting Dealer after due inquiry. Notwithstanding the foregoing, the Soliciting Dealer shall
not execute any transaction in the Company in a discretionary account without prior written
approval of the transaction by the customer.
(b) Each Soliciting Dealer shall maintain, for at least six years or for a period of time not
less than that required in order to comply with all applicable federal, state and other regulatory
requirements, whichever is later, a record of the information obtained to determine that an
investor meets the suitability standards imposed on the offer and sale of the Shares (both at the
time of the initial subscription and at the time of any additional subscriptions) and a
representation of the investor that the investor is investing for the investor’s own account or, in
lieu of such representation, information indicating that the investor for whose account the
investment was made met the suitability standards. A Soliciting Dealer can satisfy its obligation
by contractually requiring such information to be maintained by the investment advisers or banks
discussed above. Each Soliciting Dealer further agrees to comply with the record keeping
requirements of the Exchange Act, including by not limited to Rules 17a-3 and 17a-4 promulgated
under the Exchange Act. Each Soliciting Dealer agrees to make such documents and records available
to the Dealer Manager and the Company upon request and representatives of the Commission, FINRA and
applicable state securities administrators upon Soliciting Dealer’s receipt of an appropriate
document subpoena or other appropriate request for documents from any such agency.
4. Delivery of Prospectus and Approved Sales Literature.
(a) Each Soliciting Dealer agrees: (i) to deliver to each person who subscribes for the
Shares, a Prospectus, as then supplemented or amended, prior to the tender of his subscription
agreement (the “Subscription Agreement”); (ii) to comply promptly with the written request
of any person for a copy of the Prospectus during the period between the effective date of the
Registration Statement and the termination of the Offering; (iii) to deliver in accordance with
applicable law or as prescribed by any state securities
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administrator to any person a copy of any prescribed document included within the Registration
Statement and any supplements thereto during the course of the Offering; (iv) not to use any sales
materials in connection with the solicitation of purchasers of the Shares except materials provided
or approved in writing by the Company (“Approved Sales Literature”); (v) to the extent the
Company provides Approved Sales Literature, not to use such materials unless accompanied or
preceded by the Prospectus, as then currently in effect, and as may be supplemented in the future;
and (vi) not to give or provide any information or make any representation other than those
contained in the Prospectus or the Approved Sales Literature.
(b) Neither the Soliciting Dealer nor any other person is authorized by the Company or by the
Dealer Manager to give any information or make any representations in connection with this
Agreement or the offer of Shares other than those contained in the Prospectus, as then amended or
supplemented, or any Approved Sales Literature. Each Soliciting Dealer agrees not to publish,
circulate or otherwise use any other advertisement or solicitation material in connection with the
Offering without the Dealer Manager’s and the Company’s prior written approval.
(c) Nothing in this Agreement shall be deemed or construed to make Soliciting Dealer an
employee, agent, representative, or partner of the Dealer Manager or the Company, and Participating
Dealer is not authorized to act for the Dealer Manager or the Company.
(d) Each Soliciting Dealer agrees that it will not send or give supplements to the Prospectus
or any Authorized Sales Materials to any investor unless it has previously sent or given a
Prospectus and all supplements thereto with such Prospectus supplement or Authorized Sales
Materials.
(e) Each Soliciting Dealer agrees that it will not show or give to any investor or reproduce
or distribute to third parties any material or writing which is supplied to it by the Dealer
Manager or the Company and marked “broker-dealer use only,” “due diligence information” or
otherwise bearing a legend denoting that it is not to be used in connection with the offer or sale
of Shares to members of the public.
5. Submission of Orders.
(a) Subject to any individual state requirements and except for shares issued to the Company’s
existing investors, including pursuant to the DRP or the Company’s automatic investment plan, the
Company will sell Shares only to investors who purchase a minimum of 100 shares for an aggregate
price of $1,000. In order to satisfy the purchase requirements for retirement plans, a husband and
wife may jointly contribute funds from their separate IRAs, provided that each such contribution is
made in increments of $100. An investment in shares shall not, itself, create a retirement plan,
and in order to create a retirement plan a stockholder must comply with all applicable provisions
of the Internal Revenue Code. Following the initial minimum investment, a stockholder shall not be
permitted to transfer, fractionalize or subdivide such shares so as to retain less than 100 shares.
(b) With respect to the Soliciting Dealer’s participation in any resales or transfers
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of the Shares, the Soliciting Dealer agrees to comply with any applicable requirements set
forth in Section 2 and to fulfill the obligations pursuant to FINRA Rule 2810.
(c) Payments for Shares shall be made by checks payable to “Healthcare Trust of America, Inc.”
and forwarded together with a copy of the Subscription Agreement, executed and initialed by the
subscriber as provided for in the Subscription Agreement, to the Company’s escrow agent (the
“Escrow Agent”). Funds will be deposited into an escrow account no later than noon of the
next business day after receipt of such Subscription Agreement and check (when the Soliciting
Dealer’s internal supervisory procedures are completed at the site at which the Subscription
Agreement and check were received by the Soliciting Dealer) or, when the Soliciting Dealer’s
internal supervisory procedures are performed at a different location (the “Final Review
Office”), the Soliciting Dealer shall transmit the check and Subscription Agreement to the
Final Review Office by the noon of the next business day following the Soliciting Dealer’s receipt
of the Subscription Agreement and check. The Final Review Office will, by the noon of the next
business day following its receipt of the Subscription Agreement and check, forward both the
Subscription Agreement and check to the Escrow Agent. If any Subscription Agreement solicited by
the Soliciting Dealer is rejected by the Dealer Manager or the Company, the Subscription Agreement
and check will be returned to the rejected subscriber within 10 business days from the date of
rejection.
6. Soliciting Dealer Compensation.
(a) Subject to the terms and conditions set forth herein and in the Dealer Manager Agreement
and except as described in or as otherwise provided for in the “Plan of Distribution” section of
the Prospectus, the Dealer Manager shall pay to the Soliciting Dealer a selling commission of 7.0%
of the selling price of each Share for which a sale is completed (except for certain sales for
which commissions may be reduced or eliminated in accordance with the terms of the Prospectus and
as set forth below) from the up to $2,000,000,000 Shares offered in the Primary Offering on a “best
efforts” basis for which the Soliciting Dealer have acted as Soliciting Dealer pursuant to this
Agreement.
(b) Purchasers (as defined below) purchasing more than 50,000 Shares will be entitled to a
reduced Share purchase price and a reduction in selling commissions payable described in or as
otherwise provided in the “Plan of Distribution” section of the Prospectus. The discounts will be
applied on a transaction-by transaction basis and in a progressive fashion. All commissions will
be paid based on a $10.00 per Share issue price without regard to any per Share price discounts
based on volume.
(c) For the purposes of such volume discounts, the term “purchaser” includes: (a) an
individual, his or her spouse and their children under the age of 21 who purchase the shares for
his, her or their own accounts; (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
Internal Revenue Code; and (d) all commingled trust funds maintained by a given bank.
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(d) No selling commissions will be paid, and the per Share price shall be reduced to $9.30, in
connection with Shares sold in the offering of up to $2,000,000,000 Shares in the event the
investor has engaged the services of a registered investment advisor or other financial advisor,
paid on a fee-for-service basis by the investor.
(e) No selling commissions will be paid, and the per Share price shall be reduced to $9.30, in
connection with Shares sold to (i) retirement plans of the Soliciting Dealer, (ii) the Soliciting
Dealer in its individual capacity, (iii) IRAs and qualified plans of Soliciting Dealer’s registered
representatives or (iv) any one of Soliciting Dealer’s registered representatives in their
individual capacities.
(f) No selling commissions will be paid for sales of common stock under the Company’s DRP.
(g) Notwithstanding the foregoing, it is understood and agreed that no commission shall be
payable with respect to particular Shares if the Company rejects a proposed subscriber’s
Subscription Agreement, which it may do, as provided in the form of Subscription Agreement for any
reason or for no reason. Accordingly, the Soliciting Dealer shall have no authority to issue a
confirmation (pursuant to Exchange Act Rule 10b-10) to any subscriber; such authority residing
solely in the Dealer Manager, as the Dealer Manager and processing broker-dealer.
(h) The Dealer Manager may, in its sole discretion, re-allow to the Soliciting Dealers, a
portion of the dealer manager fee received by it. In addition, pursuant to and subject to the
terms and conditions of the Dealer Manager Agreement, the Company has agreed to reimburse the
Soliciting Dealer for reasonable accountable bona fide due diligence expenses, provided such
expenses are supported by detailed and itemized invoices. Certain marketing expenses such as
Soliciting Dealer conferences may be advanced to a Soliciting Dealer and later deducted from the
portion of the dealer manager fee reallowed to that Soliciting Dealer. If the Offering is not
consummated, the Soliciting Dealer will repay any such advance to the extent not expended on
marketing expenses. Any such advance shall be deducted from the maximum amount of the dealer
manager fee that may otherwise be re-allowable to the Soliciting Dealer.
(i) The Company will not be liable or responsible to any Soliciting Dealer for the payment of
any selling commissions or any reallowance of fees to the Soliciting Dealer, it being the sole and
exclusive responsibility of the Dealer Manager for the payment of selling commissions or any
reallowance to Soliciting Dealers.
7. Reserved Shares.
The number of Shares, if any, to be reserved for sale by each Soliciting Dealer may be decided
by the mutual agreement, from time to time, of the Dealer Manager and the Company. The Dealer
Manager reserves the right to notify the Soliciting Dealer by United States mail or by other means
of the number of Shares reserved for sale by the Soliciting Dealer, if any. Such Shares will be
reserved for sale by the Soliciting Dealer until the time specified in the Dealer Manager’s
notification to the Soliciting Dealer. Sales of any reserved
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Shares after the time specified in the notification to the Soliciting Dealer or any requests
for additional Shares will be subject to rejection in whole or in part.
8. Blue Sky Qualification.
(a) The Dealer Manager will inform the Soliciting Dealer as to the jurisdictions in which the
Dealer Manager has been advised by the Company that the Shares have been qualified for sale or are
exempt under the respective securities or “blue sky” laws of such jurisdictions; but the Dealer
Manager has not assumed and will not assume any obligation or responsibility as to the Soliciting
Dealer’s right to act as a broker and/or dealer with respect to the Shares in any such
jurisdiction. The Soliciting Dealer agrees that the Soliciting Dealer will not make any offers or
sell any Shares except in states in which the Dealer Manager may advise the Soliciting Dealer that
the Offering has been qualified or is exempt and in which the Soliciting Dealer is legally
qualified to make offers and further agrees to assure that each person to whom the Soliciting
Dealer sells Shares (at both the time of the initial purchase as well as at the time of any
subsequent purchases) meets any special suitability standards which apply to sales in a particular
jurisdiction, as described in the Blue Sky Survey and the Subscription Agreement. Neither the
Dealer Manager nor the Company assume any obligation or responsibility in respect of the
qualification of the Shares covered by the Prospectus under the laws of any jurisdiction or the
Soliciting Dealer’s qualification to act as a broker and/or dealer with respect to the Shares in
any jurisdiction. The Blue Sky Survey which has been or will be furnished to the Soliciting Dealer
indicates the jurisdictions in which it is believed that the offer and sale of Shares covered by
the Prospectus is exempt from, or requires action under, the applicable blue sky or securities laws
thereof, and what action, if any, has been taken with respect thereto.
(b) It is understood and agreed that under no circumstances will the Soliciting Dealer, as a
Soliciting Dealer, engage in any activities hereunder in any jurisdiction in which the Soliciting
Dealer may not lawfully so engage or in any activities in any jurisdiction with respect to the
Shares in which the Soliciting Dealer may lawfully so engage unless the Soliciting Dealer have
complied with the provisions hereof.
9. Dealer Manager’s Authority. Subject to the terms of the Dealer Manager Agreement, the
Dealer Manager shall have full authority to take such action as it may deem advisable with respect
to all matters pertaining to the Offering or arising thereunder. The Dealer Manager shall not be
under any liability to the Soliciting Dealer (except for (i) its own lack of good faith and (ii)
for obligations expressly assumed by the Dealer Manager hereunder) for or in respect of the
validity or value of or title to, the Shares; the form of, or the statements contained in, or the
validity of, the Registration Statement, the Prospectus or any amendment or supplement thereto, or
any other instrument executed by the Company or by others; the form or validity of the Dealer
Manager Agreement or this Agreement; the delivery of the Shares; the performance by the Company or
by others of any agreement on its or their part; the qualification of the Shares for sale under
the laws of any jurisdiction; or any matter in connection with any of the foregoing; provided,
however, that nothing in this paragraph shall be deemed to relieve the Company or the Dealer
Manager from any liability imposed by the Securities Act. No obligations or liability on the part
of the Company or the Dealer Manager shall be implied or inferred herefrom.
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10. Indemnification.
(a) Under the Dealer Manager Agreement and subject to the terms, conditions and limitation set
forth therein, the Company has agreed to indemnify the Soliciting Dealer and the Dealer Manager and
each person, if any, who controls the Soliciting Dealer or the Dealer Manager, in certain instances
and against certain liabilities, including liabilities under the Securities Act in certain
circumstances. The Soliciting Dealer agrees to indemnify the Company and each person who controls
it as provided in the Dealer Manager Agreement and to indemnify the Dealer Manager to the extent
and in the manner that the Soliciting Dealer agrees to indemnify the Company in such Dealer Manager
Agreement.
(b) In furtherance of, and not in limitation of the foregoing, the Soliciting Dealer will
indemnify, defend and hold harmless the Dealer Manager and the Company, and their officers,
directors, employees, members, partners, affiliates, agents and representatives (“Indemnified
Parties”), and each person, if any, who controls such entity within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, and each person who has signed the
Registration Statement, from and against any losses, claims, damages or liabilities to which any of
the Indemnified Parties, and each person who signed the Registration Statement, may become subject,
under the Securities Act or the Exchange Act, or otherwise, insofar as such losses, claims and
expenses (including the reasonable legal and other expenses incurred in investigating and
defending any such claims or liabilities), damages or liabilities (or actions in respect thereof)
arise out of or are based upon (a) in whole or in part, any material inaccuracy in the
representations or warranties contained in this Agreement or any material breach of a covenant
contained herein by the Soliciting Dealer, or (b) any untrue statement or any alleged untrue
statement of a material fact contained (i) in any Registration Statement or any post-effective
amendment thereto or in the Prospectus or any amendment or supplement to the Prospectus or (ii) in
any Approved Sales Literature or (iii) any blue sky application or other document executed by the
Company or on its behalf specifically for the purpose of qualifying any or all of the Shares for
sale under the securities laws of any jurisdiction or based upon written information furnished by
the Company under the securities laws thereof, or (c) the omission or alleged omission to state a
material fact required to be stated in the Registration Statement or any post-effective amendment
thereof to make the statements therein not misleading or the omission or alleged omission to state
a material fact required to be stated in the Prospectus or any amendment or supplement to the
Prospectus to make the statements therein, in light of the circumstances under which they were
made, not misleading, provided, however, that in each case described in clauses (b) and (c) to the
extent, but only to the extent, that such untrue statement or omission was made in reliance upon
and in conformity with written information furnished to the Company or the Dealer Manager by the
Soliciting Dealer specifically for use with reference to the Soliciting Dealer in the preparation
of the Registration Statement or any such post-effective amendments thereof or the Prospectus or
any such amendment thereof or supplement thereto, (d) any use of sales literature, including
“broker dealer use only” materials, by the Soliciting Dealer that is not Approved Sales Literature,
(e) any untrue statement made by the Soliciting Dealer or the Soliciting Dealer’s representatives
or agents or omission by the Soliciting Dealer or the Soliciting Dealer’s representatives or agents
to state a fact necessary in order to make the statements made, in light of the circumstances under
which they were made, not
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misleading in connection with the offer and sale of the Shares in each case, other than
statements or omissions made in conformity with the Registration Statement, Prospectus, Approved
Sales Literature or any other materials or information furnished by or on behalf of the Company, or
(f) any failure by the Soliciting Dealer to comply with applicable laws governing money laundry
abatement and anti-terrorist financing efforts in connection with the Offering, including
applicable FINRA Rules, Exchange Act Rules and Regulations and the USA PATRIOT Act. The Soliciting
Dealer will reimburse the aforesaid parties for any reasonable legal or other expenses incurred in
connection with investigation or defense of such loss, claim, damage, liability or action. This
indemnity agreement will be in addition to any liability which the Soliciting Dealer may otherwise
have.
(c) Promptly after receipt by any indemnified party under this Section 10 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 10, promptly notify the indemnifying party
of the commencement thereof; provided, however, the failure to give such notice shall not relieve
the indemnifying party of its obligations hereunder except to the extent it shall have been
prejudiced by such failure. In case any such action is brought against any indemnified party, and
it notifies an indemnifying party of the commencement thereof, the indemnifying party will be
entitled, to the extent it may wish, jointly with any other indemnifying party similarly notified,
to participate in the defense thereof, with separate counsel. Such participation shall not relieve
such indemnifying party of the obligation to reimburse the indemnified party for reasonable legal
and other expenses incurred by such indemnified party in defending itself, except for such expenses
incurred after the indemnifying party has deposited funds sufficient to effect the settlement, with
prejudice, of, and unconditional release of all liabilities from, the claim in respect of which
indemnity is sought. Any such indemnifying party shall not be liable to any such indemnified party
on account of any settlement of any claim or action effected without the consent of such
indemnifying party, such consent not to be unreasonably withheld.
(d) An indemnifying party under Section 10 of this Agreement shall be obligated to reimburse
an indemnified party for reasonable legal and other expenses as follows: the indemnifying party
shall pay all legal fees and expenses reasonably incurred by the indemnified party in the defense
of such claims or actions; provided, however, that the indemnifying party shall not be obligated to
pay legal expenses and fees to more than one law firm in connection with the defense of similar
claims arising out of the same alleged acts or omissions giving rise to such claims notwithstanding
that such actions or claims are alleged or brought by one or more parties against more than one
indemnified party. If such claims or actions are alleged or brought against more than one
indemnified party, then the indemnifying party shall only be obliged to reimburse the expenses and
fees of the one law firm (in addition to local counsel) that has been participating by a majority
of the indemnified parties against which such action is finally brought; and in the event a
majority of such indemnified parties is unable to agree on which law firm for which expenses or
fees will be reimbursable by the indemnifying party, then payment shall be made to the first law
firm of record representing an indemnified party against the action or claim. Such law firm shall
be paid only to the extent of services performed by such law firm and no reimbursement shall be
payable to such law firm on account of legal services performed by another law firm.
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11. Contribution.
If the indemnification provided for in Section 10 hereof is for any reason unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, the contributions provisions set forth in Section 9 of the
Dealer Manager Agreement shall be applicable.
12. Information
Subject to any applicable limitations under the securities laws and FINRA Rules, the
Soliciting Dealer agrees to provide the Dealer Manager and the Company with such information
relating to the offer and sale of the Shares by it as may be requested by the Dealer Manager or the
Company from time to time to enable the Company to prepare such reports of sale as may be required
to be filed under applicable federal or state securities laws; provided that this section shall not
require the Soliciting Dealer to disclose any of its or any third party confidential information.
13. Company as Party to Agreement.
It is the intent of the Dealer Manager and the Soliciting Dealer that the Company be a third
party beneficiary of this Agreement. To the greatest extent permitted by law, the Company shall be
a third party beneficiary of the Soliciting Dealer’s representations, warranties, covenants and
obligations contained in this Agreement, including without limitation Sections 10, 11 and 12. The
Company shall have all enforcement rights in law and in equity, including without limitation all of
the rights and remedies of the Dealer Manager hereunder, with respect to those portions of this
Agreement as to which it is third party beneficiary.
14. Privacy Laws.
Each Soliciting Dealer agrees to: (a) abide by and comply with (i) the privacy standards and
requirements of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999 (the “GLB Act”); (ii) the privacy
standards and requirements of any other applicable federal or state law; and (iii) the Soliciting
Dealer’s own internal privacy policies and procedures, each as may be amended from time to time;
(b) refrain from the use or disclosure of nonpublic personal information (as defined under the GLB
Act) of all customers, except as necessary to service the customers or as otherwise necessary or
required by applicable law.
15. Anti-Money Laundering Compliance Programs.
The Soliciting Dealer represents to the Dealer Manager and to the Company that the Soliciting
Dealer has established and implemented anti-money laundering compliance programs in accordance with
applicable law, including applicable FINRA Rules, Exchange Act Rules and Regulations and the
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act (USA PATRIOT Act) of 2001, as amended (the “USA PATRIOT Act”), specifically
including, but not limited to, Section 352 of the International Money Laundering Abatement and
Anti-Terrorist Financing
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Act of 2001 (the “Money Laundering Abatement Act,” and together with the USA PATRIOT
Act, the “AML Rules”) reasonably expected to detect and cause the reporting of suspicious
transactions in connection with the offering and sale of the Shares. The Soliciting Dealer further
represents that the Soliciting Dealer is currently in compliance with all AML Rules, specifically
including, but not limited to, the Customer Identification Program requirements under Section 326
of the Money Laundering Abatement Act, and the Soliciting Dealer hereby covenants to remain in
compliance with such requirements and shall, upon request by the Dealer Manager or the Company,
provide a certification to the Dealer Manager or the Company that, as of the date of such
certification (a) the Soliciting Dealer’s AML Program is consistent with the AML Rules and (b) it
is currently in compliance with all AML Rules, specifically including, but not limited to, the
Customer Identification Program requirements under Section 326 of the Money Laundering Abatement
Act.
16. Due Diligence;
(a) Prior to offering the Shares for sale, the Soliciting Dealer shall have conducted an
inquiry such that the Soliciting Dealer have reasonable grounds to believe, based on information
made available to the Soliciting Dealer by the Company or the Advisor through the Prospectus or
other materials, that all material facts are adequately and accurately disclosed and provide a
basis for evaluating a purchase of Shares. In determining the adequacy of disclosed facts pursuant
to the foregoing, each Soliciting Dealer may obtain, upon request, information on material facts
relating at a minimum to the following:
(1) items of compensation;
(2) physical properties if available;
(3) tax aspects;
(4) financial stability and experience of the Company and the Advisor;
(5) conflicts and risk factors; and
(6) appraisals and other pertinent reports.
(b) Notwithstanding the foregoing, each Soliciting Dealer may rely upon the results of an
inquiry conducted by another Soliciting Dealer, provided that:
(i) such Soliciting Dealer has reasonable grounds to believe that such inquiry was
conducted with due care;
(ii) the results of the inquiry were provided to the Soliciting Dealer with the
consent of the Soliciting Dealer conducting or directing the inquiry; and
(iii) no Soliciting Dealer that participated in the inquiry is an affiliate of the
Company.
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(c) Prior to the sale of the Shares, each Soliciting Dealer shall inform the prospective
purchaser of all pertinent facts relating to the liquidity and marketability of the Shares during
the term of the investment.
17. Miscellaneous.
(a) The Soliciting Dealer hereby authorizes and ratifies the execution and delivery of the
Dealer Manager Agreement by the Dealer Manager as Dealer Manager for itself and on behalf of the
Soliciting Dealers (including the Soliciting Dealer party hereto) 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. Each Soliciting Dealer hereby agrees to be bound by all
provisions of the Dealer Manager Agreement relating to Soliciting Dealers. The Soliciting 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.
(b) This Agreement, except for the provisions of Sections 9, 10, 11, 12, 13 and 14 hereof, may
be terminated at any time by either party hereto by two days prior written notice to the other
party and, in all events, this Agreement shall terminate on the termination date of the Dealer
Manager Agreement, except for the provisions of Sections 9, 10, 11, 12, 13 and 14 hereof.
(c) Any communications from the Soliciting Dealer should be in writing addressed to the Dealer
Manager at Realty Capital Securities, LLC, Three ▇▇▇▇▇▇ Place, Suite 3300, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Any
notice from the Dealer Manager to the Soliciting Dealer shall be deemed to have been duly given if
mailed, communicated by electronic delivery or facsimile or delivered by overnight courier to the
Soliciting Dealer at the Soliciting Dealer’s address shown below.
(d) Nothing herein contained shall constitute the Dealer Manger, the Soliciting Dealer, the
other Soliciting Dealers or any of them as an association, partnership, limited liability company,
unincorporated business or other separate entity.
(e) If this Agreement is executed before the DMA Effective Date, the Dealer Manager will
notify the Soliciting Dealer in writing when the DMA Effective Date has occured. The Soliciting
Dealer agrees that the Soliciting Dealer will not make any offers to sell the Shares or solicit
purchasers for the Shares until the Soliciting Dealer has received such written notice of the DMA
Effective Date from the Dealer Manager or the Company. This Agreement shall be effective for all
sales by the Soliciting Dealer on and after the DMA Effective Date.
(f) The Company may authorize the Company’s transfer agent to provide information to the
Broker Dealer and each Soliciting Dealer regarding record holder information about the clients of
such Soliciting Dealer who have invested with the Company on an on-going basis for so long as such
Soliciting Dealer has a relationship with such client.
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The Soliciting Dealer shall not disclose any password for a restricted website or portion of a
website provided to the Soliciting Dealer in connection with the Offering and shall not disclose to
any person, other than an officer, director, employee or agent of such Soliciting Dealers, any
material downloaded from such restricted website or portion of a restricted website.
If the foregoing is in accordance with the Soliciting Dealer’s understanding and agreement,
please sign and return the attached duplicate of this Agreement. The Soliciting Dealer’s indicated
acceptance thereof shall constitute a binding agreement between the Soliciting Dealer and the
Dealer Manager.
Very truly yours,
REALTY CAPITAL SECURITIES, LLC
By:
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
Title: President
, 2009
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The undersigned dealer confirms its agreement to act as a Soliciting Dealer pursuant to all
the terms and conditions of the above Soliciting Dealer Agreement and the attached Dealer Manager
Agreement. The undersigned dealer hereby represents that the it will comply with the applicable
requirements of the Securities Act and the Exchange Act and the published rules and regulations of
the Commission thereunder, and applicable blue sky or other state securities laws. The undersigned
dealer represents and warrants that the undersigned dealer is duly registered as a broker-dealer
under the provisions of the Exchange Act and the published rules and regulations of the Commission
thereunder or is exempt from such registration. The undersigned dealer confirms that it and each
salesperson acting on its behalf are members in good standing of FINRA and duly licensed by each
regulatory authority in each jurisdiction in which the undersigned dealer or such salesperson will
offer and sell Shares, or are exempt from registration with such authorities. The undersigned
dealer hereby represents that it will comply with the Rules of FINRA and all rules and regulations
promulgated by FINRA.
Dated: , 2009 |
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| Name of Soliciting Dealer | ||||||
| Federal Identification Number | ||||||
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| Authorized Signature | ||||||
Kindly have checks representing commissions forwarded as follows (if different than above): (Please
type or print)
Name of Firm: |
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Address: |
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Attention: |
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Soliciting Dealer represents and warrants that it is currently licensed as a broker-dealer in
the following jurisdictions:
o Alabama
o Alaska
o Arizona
o Arkansas
o California
o Colorado
o Connecticut
o Delaware
o District of Columbia
o Florida
o Georgia
o Hawaii
o Idaho
o Illinois
o Indiana
o Iowa
o Kansas
o Kentucky
o Louisiana
o Maine
o Maryland
o Massachusetts
o Michigan
o Minnesota
o Mississippi
o Missouri
o Montana
o Nebraska
o Nevada
o New Hampshire
o New Jersey
o New Mexico
o New York
o North Carolina
o North Dakota
o Ohio
o Oklahoma
o Oregon
o Pennsylvania
o Puerto Rico
o Rhode Island
o South Carolina
o South Dakota
o Tennessee
o Texas
o Utah
o Vermont
o Virgin Islands
o ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇
o West Virginia
o Wisconsin
o Wyoming
o Alaska
o Arizona
o Arkansas
o California
o Colorado
o Connecticut
o Delaware
o District of Columbia
o Florida
o Georgia
o Hawaii
o Idaho
o Illinois
o Indiana
o Iowa
o Kansas
o Kentucky
o Louisiana
o Maine
o Maryland
o Massachusetts
o Michigan
o Minnesota
o Mississippi
o Missouri
o Montana
o Nebraska
o Nevada
o New Hampshire
o New Jersey
o New Mexico
o New York
o North Carolina
o North Dakota
o Ohio
o Oklahoma
o Oregon
o Pennsylvania
o Puerto Rico
o Rhode Island
o South Carolina
o South Dakota
o Tennessee
o Texas
o Utah
o Vermont
o Virgin Islands
o ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇▇
o West Virginia
o Wisconsin
o Wyoming