Exhibit 4.6
FORM OF
SELLING AGREEMENT
$200,000,000
BERKELEY INCOME TRUST, INC.
A Real Estate Investment Trust (REIT)
20,000,000 SHARES at $10 per SHARE
Best Efforts
____________ 0000
Xxxxxxxx Capital Securities, Inc.
0000 Xxxxxx Xxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
as Dealer-Manager for the
above-described Shares
Gentlemen:
Berkeley Trust Advisors, LLC ("BERKELEY" or the "Advisor") as Advisor and on
behalf of Berkeley Income Trust, Inc., A Maryland Corporation and a Real Estate
Investment Trust (REIT) (the "REIT") pursuant to the Management Agreement
between said parties (the "Management Agreement") set forth as Exhibit "__" to
the Prospectus (as hereinafter defined), hereby confirms its agreement with you
as follows:
1. Description of Shares. Subject to the terms hereof the REIT proposes to issue
and to offer for sale an aggregate of 200,000,000 of its shares (the "shares"),
at a price of $10 per share through you and those licensed brokers, if any,
designated by you.
2. Representations, Warranties and Agreements of the REIT and the Advisor. The
REIT and the Advisor, jointly and severally, represent and warrant to, and agree
with, you as follows:
(a) The REIT has prepared and filed with the Securities and Exchange Commission
(the "Commission") an Amended Registration Statement and amendments thereto, on
Form S-l1 (File No. 333-109907) covering the registration of the Shares under
the Securities Act of 1933 (the "Securities Act"), including the related
preliminary prospectus. Such preliminary prospectus bears, and any amended
prospectus will bear, the legend required by the rules and regulations of the
Commission under the Securities Act (the "Rules and Regulations"). Such
Registration Statement, as amended, at the time it becomes effective, and the
final prospectus included therein, are herein respectively called the
"Registration Statement" and the "Prospectus."
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(b) The Registration Statement and the Prospectus, and all amendments or
supplements thereto, will contain all statements which are required to be stated
therein in accordance with the Securities Act and the Rules and Regulations, and
neither the Registration Statement nor the Prospectus, nor any amendment or
supplement thereto, will contain any untrue statement of a material fact or omit
any material fact required to be stated therein or necessary to make the
statements therein not misleading. In this connection, it is understood by the
REIT and the Advisor that Rule 2810(b)(3) of the Conduct Rules of the National
Association of Securities Dealers, Inc. requires that you determine that all
material facts relating to the subject offering are adequately and accurately
disclosed to prospective subscribers and provide a basis for evaluating the
offering, and the REIT and the Advisor therefore specifically represent and
warrant that:
(i) all items of compensation payable to them and their affiliates are and will
be set forth in the Prospectus under the caption "Management Compensation";
(ii) all types of real property to be acquired by the REIT are and will be
described in the Prospectus under the caption "Investment Objectives and
Policies - Types of Real Property" or in a supplement to be included inside the
back cover of the Prospectus;
(iii) all material tax aspects are and will be set forth in the Prospectus under
the captions "Income Tax Consequences" and "Risk Factors";
(iv) the financial position and business experience of the Advisor and of those
affiliates of the Advisor who are of relevance to the subject offering are and
will be accurately and adequately reflected in the Prospectus under the captions
"Management" and "Prior Performance Summary";
(v) all material conflicts of interest and risk factors are and will be set
forth in the Prospectus under the captions "Conflicts of Interest" and "Risk
Factors"; and
(vi) all pertinent facts relating to the liquidity and marketability of the
Shares are and will be set forth in the Prospectus under the captions "Risk
Factors - Limited Transferability of Shares" and "Summary of the Operating
Agreement - Transferability of Shares."
(c) The accountants who have certified or shall certify the audited financial
statements filed and to be filed with the Commission as parts of the
Registration Statement and the Prospectus are independent accountants as
required by the Act and the Rules and Regulations.
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(d) The financial statements filed with and as part of the Registration
Statement present fairly the respective financial positions of the REIT and
Advisor as of the date of such financial statements, in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the period involved.
(e) Except as set forth in or contemplated by the Registration Statement and the
Prospectus, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
adverse change in the condition, financial or otherwise, of the Advisor or the
REIT; and except as set forth in or contemplated by the Registration Statement
and the Prospectus, neither the Advisor nor the REIT have incurred any liability
or obligation or entered into any transaction since the date as of which
information is given in the Registration Statement and the Prospectus, otherwise
than in the ordinary course of business, which is material to the financial
condition of the Advisor or the REIT.
(f) The Shares conform to the description thereof contained in the Prospectus in
all material respects.
(g) Neither the issuance nor the sale of the Shares, nor the consummation of any
other of the transactions herein contemplated, nor the fulfillment of the terms
hereof, will conflict with, result in a breach of or constitute a default under
the terms of any indenture, or other material agreement or instrument to which
the Advisor or the REIT are, or will be, a party or are, or will be, bound, or,
to the best of the knowledge of the Advisor, any order or regulation applicable
to the Advisor or the REIT of any court, regulatory body, administrative agency
or governmental body having jurisdiction over the Advisor or the REIT or any of
their respective assets or operations.
(h) The Shares, when issued, will be duly authorized, validly issued, fully paid
and non-assessable.
(i) The REIT has been duly formed pursuant to the Laws of the State of Maryland
and is validly existing as a corporation registered in and in good standing
under the laws of the State of California with full power and authority to own
real properties (or interests therein) and conduct its business as described in
the Prospectus. The REIT is qualified to do business as a corporation in those
jurisdictions where such qualification is necessary. The Advisor has been
organized and exists as a Delaware Limited Liability Company, is validly
existing and in good standing, under the laws of the State of Delaware with full
power and authority to act as Advisor of the REIT and conduct its business as
described in the Prospectus.
(j) The person or persons who have signed this Selling Agreement on behalf of
the REIT and the Advisor are duly authorized so to sign, and this Selling
Agreement has been duly executed and delivered by, and is the valid, legal and
binding agreement of, the REIT and the Advisor, enforceable in accordance with
its terms.
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3. Representations and Warranties of the Dealer Manager. You represent and
warrant to and agree with the REIT as follows:
(a) You are a member in good standing of the National Association of Securities
Dealers, Inc., and will maintain such membership throughout the term of this
Agreement.
(b) You will comply with all federal laws pertaining to the sale of securities,
the laws of the jurisdictions in which you sell the Units, the Rules and
Regulations of the Commission and the Constitution, By-Laws and Rules of the
National Association of Securities Dealers, Inc., specifically including and
Rule 15c2-4 under the Securities Exchange Act of 1934, as interpreted in NASD
Notice to Members 84-64 (which requires that during the escrow period checks be
transmitted by you to the escrow agent as soon as practicable, but in any event
by noon of the second business day following receipt by you).
(c) You will make no sale of the Shares unless such sale is preceded or
accompanied by the Prospectus.
(d) You will assist the Fund in qualifying the Shares for sale under the laws of
the State of California and such other jurisdictions as the Dealer Manager and
the Advisor shall mutually agree.
(e) You will (i) diligently make inquiries as required by law of all prospective
investors in order to ascertain whether a purchase of Shares is suitable for the
investors and (ii) inform each prospective investor of all pertinent facts
relating to the liquidity and marketability of the Shares during the term of the
investment. In recommending a purchase, sale or exchange of the Shares you
shall:
(1) have reasonable grounds to believe, on the basis of information obtained
from the participant concerning his investment objectives, other instruments,
financial situation and needs, and any other information known by you, that:
(i) the participant is or will be in a financial position appropriate to enable
him to realize to a significant extent the benefits described in the Prospectus;
(ii) the participant has a fair market net worth sufficient to sustain the risks
inherent in the program, including loss of investment and lack of liquidity; and
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(iii) the program is otherwise suitable for the participant; and
(2) maintain in your files for at least six years documents disclosing the basis
upon which the determination of suitability was reached as to each participant.
(f) All Subscription Agreements shall be promptly transmitted to the REIT in
accordance with instructions set forth in the Subscription Agreements, and all
funds received by you with respect to any Subscription Agreement shall be
promptly transmitted to the REIT , provided, however, that pending sale of a
minimum of 1,000,000 Shares, all subscription checks shall be made payable to,
and all Subscription Agreements and funds shall be promptly transmitted by you
to, such bank as may be selected to act as escrow agent for the REIT . As used
herein, the term "promptly transmitted" shall have the meaning set forth in Rule
15c2-4 under the Securities Exchange Act of 1934.
(g) You will maintain copies of all Subscription Agreements in your records for
the longer of the periods prescribed by either (i) Rule 17a-4 of the Securities
Exchange Act of 1934 or (ii) applicable state blue sky laws.
(h) You will execute no transaction in a discretionary account without prior
written approval of the transaction by the investor.
4. Sale of Shares. On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, you agree
to sell the Shares on a "best efforts" basis, as agent for the REIT. You are
authorized to enlist other members of the National Association of Securities
Dealers, Inc. ("Soliciting Dealers"), acceptable to the REIT, to sell the
Shares. As compensation for these services, the REIT agrees that it will pay you
a selling commission in an amount equal to 8% of the offering price of the
Shares sold pursuant to the terms of this Agreement, from which you may re-allow
a dealer commission of up to 6% of such offering price. You will pay wholesaling
compensation to your personnel out of the selling commissions you will receive
hereunder. Aggregate selling compensation paid in connection with the offering,
will not exceed a total equal to 10% of the Gross Proceeds, plus an additional
one-half of 1% as provided in the following sentence. The Fund may reimburse the
Soliciting Dealers for their bona fide and accountable expenses for due
diligence purposes, in an amount not to exceed one-half of l% of the offering
price of the Shares sold pursuant to this Agreement. In addition to the selling
compensation described above, the REIT may establish a non-cash sales incentive
program as described in the Prospectus, subject to the prior review and approval
of the NASD and compliance with all applicable NASD rules and procedures.
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Notwithstanding the foregoing, however, it is understood and agreed that the
Advisor has reserved the right to accept or reject any subscriptions for Shares
as set forth in the Prospectus and no selling commission will be payable to you
or any of the Soliciting Dealers with respect to the tender of any Subscription
Agreement which is rejected by you or the Advisor as aforesaid. Furthermore, no
subscription will be deemed binding until at least five days following delivery
of a Prospectus.
The REIT further agrees that it will pay the foregoing selling commission with
respect to the purchase price of each of the Shares upon the Advisor's
acceptance of the order for such Shares; provided, however, that none of such
commissions will be payable or paid until release to the REIT from the escrow
account in which they are to be deposited of proceeds from subscriptions for a
minimum of 1,000,000 Units.
It is understood and agreed that you may, in your discretion, permit you, the
Advisor, a Soliciting Dealer or any Affiliate or employee of any of the
foregoing or certain clients of registered investment advisors to purchase
Shares net of the 6% retail selling commissions at a per Share price of $9.40,
as more specifically described in the Prospectus under "Plan of Distribution -
Investments by Certain Persons." Any such sale of Shares net of retail
commissions to you, the Advisor, a Soliciting Dealer or any Affiliate or
employee of such person will only be made if and to the extent that any
Soliciting Dealer which would otherwise be entitled to a selling commission on
any such transaction agrees to such rebate.
5. Certain Covenants of the REIT and the Advisor. The REIT and the Advisor
covenant and agree with you as follows:
(a) The REIT will not at any time file or make any amendment or supplement to
the Registration Statement or Prospectus of which you shall not have previously
been advised and furnished a copy, or to which you or any Soliciting Dealer
shall object in writing.
(b) The REIT will advise you and each Soliciting Dealer immediately, and confirm
the advice in writing, (i) when the Registration Statement shall have become
effective with the Commission, (ii) when any post-effective amendment to the
Registration Statement shall have become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (iii) of any request
of the Commission for amendment or supplementation of the Registration Statement
or Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Shares for offering
or sale in any jurisdiction, or of the institution of any proceedings for any
such purposes. The REIT will use its best efforts to prevent the issuance of any
such stop order or of any order preventing or suspending such use and to obtain
as soon as possible the lifting thereof, if issued.
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(c) The Fund will deliver to you and each Soliciting Dealer without charge, and
when requested, such number of copies of the preliminary and amended preliminary
prospectus, and the Prospectus (as supplemented or amended, if the REIT shall
have made any supplements or amendments to the Prospectus) as you and each
Soliciting Dealer may reasonably request.
(d) The REIT will comply to the best of its ability with the Securities Act and
the Rules and Regulations so as to permit the continuance of sales of and
dealings in the Shares under the Securities Act. If at any time when a
prospectus is required to be delivered under the Securities Act, an event shall
have occurred as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein not untrue or misleading or
to make the Prospectus comply with the Securities Act, the REIT will notify you
and each Soliciting Dealer promptly thereof and will furnish to you an amendment
or supplement which will correct such statement in accordance with the
requirements of Section l0 of the Securities Act.
(e) The REIT will use its best efforts to qualify the Shares for sale under the
laws of the State of California and such other jurisdictions as the Advisor and
you shall mutually agree and will comply to the best of its ability with such
laws so as to permit the continuance of sales of and dealings in the Shares
there under.
(f) The REIT will furnish to you and each Soliciting Dealer with copies of all
such documents, reports and information as shall be of general interest and are
furnished by the REIT to investors in the Shares generally.
(g) The REIT and the Advisor will pay and bear all costs and expenses in
connection with the preparation, printing and filing of the Registration
Statement, preliminary and amended preliminary prospectus and Prospectus and
amendments or supplements thereto, including fees of legal counsel for the REIT
, the qualifying of the Shares under the laws of certain jurisdictions as
aforesaid, including filing fees and fees and disbursements of counsel in
connection therewith, and the cost of furnishing to you and the Soliciting
Dealers copies of the Registration Statement, preliminary and amended
preliminary prospectus and Prospectus as herein provided.
6. Conditions to Dealer Manager's Obligations. Within a period of five days
after the effective date of the Prospectus (the "Effective Date"), there shall
be furnished to you the following:
(a) The favorable opinion of O'Melveny & Xxxxxx, counsel for the REIT and the
Advisor, dated the Effective Date, in form and substance satisfactory to your
legal counsel, to the effect that:
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(i) The Registration Statement has become effective under the Securities Act
and, to the best of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or are contemplated under
the Securities Act.
(ii) The Registration Statement, the Prospectus, and each amendment or
supplement thereto (except for the financial statements, as to which such
counsel need express no opinion) comply as to form in all material respects with
the requirements of the Securities Act and the Rules and Regulations.
(iii) Such counsel have participated in the preparation of the Registration
Statement and Prospectus and no facts have come to the attention of such counsel
to lead them to believe that either the Registration Statement or the Prospectus
or any such amendment or supplement (except for the financial statements, as to
which such counsel need express no opinion) contains any untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(iv) The description in the Registration Statement and Prospectus of the
contracts and other documents therein described are accurate and fairly
represent the information required to be shown.
(v) Such counsel do not know of any statutes or regulations or legal or
governmental proceedings required to be described in the Prospectus which are
not described as required, nor of any contract or documents of a character
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement which are not described and
filed as required.
(vi) This Agreement has been duly executed and delivered by the Advisor; and
(upon the assumption that the Registration Statement complies with the
Securities Act) this Agreement is a valid and binding agreement of the Advisor
in accordance with its terms.
(b) A certificate, dated the Effective Date, signed by the Advisor, to the
effect that: (i) the representations and warranties of the REIT and the Advisor
contained in this Agreement are correct; and (ii) the signers of said
certificate have carefully examined the Registration Statement and the
Prospectus, and in their opinion (A) neither the Registration Statement nor the
Prospectus nor any amendment or supplement thereto contains 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 (B)
there are no material legal or governmental proceedings to which the REIT or
Advisor are a party or of which the business or assets of the REIT or Advisor
are the subject which are not disclosed in the Registration Statement and the
Prospectus.
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(c) A letter addressed to you from Xxxxxx, Xxxx & Company LLP dated not earlier
than the business day immediately preceding the Effective Date, stating that:
(i) With respect to the REIT , they are "independent public accountants" as such
term is defined in the Securities Act and the Rules and Regulations, and they
were not employed by the REIT on a contingent basis and they (and their partners
and associates individually) do not, either at the time of the preparation of
financial statements reported upon by them or at any time thereafter, have
substantial interest in the REIT or any of its parents (as such term is defined
in Rule 405(n) of the Commission) or have any connection with the REIT as a
promoter, underwriter, voting trustee, director, officer, partner or employee.
(ii) In their opinion, the balance sheets of the REIT and Advisor reported upon
by them and included in the Registration Statement comply in all material
respects with all of the accounting requirements contained in the Securities Act
and the Rules and Regulations with respect to Registration Statements on Form
S-11.
(iii) On the basis of a reading of the audited balance sheets of the REIT and
Advisor included in the Registration Statement and upon inquiries of officers of
the REIT responsible for financial and accounting matters and other specified
procedures, nothing has come to their attention which caused them to believe
that (a) said balance sheets: (x) do not comply as to form in all material
respects with the applicable requirements of the Securities Act and the Rules
and Regulations with respect to Registration Statements on Form S-11 and (y) are
not fairly presented in conformity with generally accepted accounting principles
applied on a consistent basis; or (b) as of the date of the latest available
unaudited interim balance sheets prepared by the REIT or advisor, there was any
material change from the amounts shown in the balance sheets included in the
Prospectus, except in all instances for changes or decreases which the
Prospectus discloses have occurred or may occur.
(iv) On the basis of inquiries of officers of the REIT responsible for financial
and accounting matters and such other procedures as they have deemed adequate in
connection with said opinion, nothing has come to their attention which caused
them to believe that at a specific date within five days of the date of such
letter there was any material change from amounts shown on the balance sheet
included in the Prospectus except in all instances for changes or decreases
which the Prospectus discloses have occurred or may occur.
7. Indemnification.
(a) The Advisor shall indemnify and hold you and any Soliciting Dealers harmless
against any losses, claims, damages or liabilities, joint or several:
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(i) to which you or any Soliciting Dealer may become subject under the
Securities Act, the various State securities laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus or any
amendment or supplement thereto or in any sales literature furnished by us, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading; or
(ii) to which you or any Soliciting Dealer may become subject due to the
misrepresentation by the REIT or the Advisor or its agents (other than you or
any Soliciting Dealer) of material facts in connection with the sale of the
Shares, unless the misrepresentation of such material facts was the direct
result of misleading information provided to the REIT or the Advisor or its
agents by you; or
(iii) to which you or any Soliciting Dealer may become subject as a result of
any breach by the REIT or the Advisor of the representations, warranties, and
covenants contained herein.
The Advisor will reimburse you and any Soliciting Dealers for any legal or other
expenses reasonably incurred in connection with investigating or defending any
such loss, claim, damage or liability (or actions in respect thereof); provided,
however, that the Advisor shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Prospectus, or such amendment or
supplement or in any sales literature, in reliance upon and in conformity with
written information furnished to the REIT or the Advisor by you specifically for
use in the preparation thereof. This indemnity agreement shall be in addition to
any liabilities which the REIT or the Advisor may otherwise have in connection
with this offering.
The foregoing indemnity agreement shall extend upon the same terms and
conditions to, and shall inure to the benefit of, each person, if any, who
controls you or any Soliciting Dealer within the meaning of the Securities Act.
(b) You agree and each Soliciting Dealer will agree to indemnify and hold
harmless the REIT and the Advisor against any losses, claims, damages or
liabilities, joint or several, to which the REIT or the Advisor may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto or in any sales literature, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
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in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in the
Registration Statement, the Prospectus, or such amendment or supplement or in
any sales literature, in reliance upon and in conformity with written
information furnished to the REIT or the Advisor by you specifically for use in
the preparation thereof; and will reimburse the REIT and the Advisor for any
legal or other expenses reasonably incurred in connection with investigating or
defending any such loss, claim, damage or liability (or action in respect
thereof). This indemnity agreement shall be in addition to any liabilities which
you or any Soliciting Dealer may otherwise have in connection with this
offering.
The foregoing indemnity agreement shall extend upon the same terms and
conditions to, and shall inure to the benefit of, each person, if any, who
controls the REIT or the Advisor within the meaning of the Securities Act.
(c) Promptly after receipt by an indemnified party of notice of the commencement
of any action, such indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party under subparagraphs (a) and (b) of this
Paragraph 7, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subparagraph. In case any such action shall be brought against such
indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that it shall wish, jointly with any other indemnifying
party, similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnifying and indemnified parties, and after the
indemnified party shall have received notice from the agreed upon counsel that
the defense has been so assumed, in the event that the indemnified party
nonetheless elects to participate in the defense of any such action for any
reason other than the presence of a conflict of interest, the indemnifying party
shall not be responsible for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof.
8. Non-Circumvention. Neither the Advisor, the REIT , nor any affiliates
thereof, will (a) notify or actively solicit any Soliciting Dealer's clients
with respect to any further transactions, or (b) release the name and/or account
information for any of any Soliciting Dealer's clients to any other party unless
required by court order, an authorized governmental or self-regulatory entity,
or by the Operating Agreement to do so. For purposes of this paragraph "notify"
or "solicit shall not be deemed to include any direct and unassisted contact by
a broker-dealer other than the Advisor, the Dealer Manager or the REIT . The
provisions of this section shall survive any termination of this Selling
Agreement.
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9. Termination. This Agreement shall automatically be terminated, and the REIT
shall have no liability for the payment of any commissions or fees hereunder, in
the event of the failure of you and the Soliciting Dealers to sell at least
1,000,000 of the Shares prior to the termination of the offering by the Advisor.
10. Applicable Law. This Agreement shall be construed in accordance with the
laws of the State of California.
11. Notices. Except as otherwise provided in this Agreement, (a) whenever notice
is required by the provisions of this Agreement to be given to the REIT or the
Advisor, such notice shall be in writing addressed to the Fund or the Manager,
or both, as the case may be, at __________________ _______________, California
(zip) and (b) whenever notice is required by the provisions of this Agreement to
be given to the Dealer Manager or the Soliciting Dealers, such notice shall be
in writing addressed to you at__________________________, California (zip).
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12. Benefit. This Agreement shall be binding upon and inure to the benefit of
the respective successors and assigns of the parties hereto.
If the foregoing correctly sets forth your understanding, please so indicate in
the space provided below for that purpose, whereupon this letter shall
constitute a binding agreement between us.
Very truly yours,
BERKELEY INCOME TRUST, INC.
a Maryland Corporation
By: Berkeley Trust Advisors, LLC,
A Delaware Limited Liability Company, Advisor
By: ___________________________
Xxxxxx Xxxxx, CEO
Accepted this __ day of ______, 2005:
BERKELEY CAPITAL SECURITIES, LLC,
A Delaware Limited Liability Company, Dealer Manager
By: __________________________
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