EXHIBIT 1.2
PARTICIPATING BROKER-DEALER AGREEMENT
NNN CAPITAL CORP.
a California corporation,
Santa Ana, California
PARTICIPATING BROKER-DEALER AGREEMENT
For Shares of Common Stock Offered By
NNN APARTMENT REIT, INC.
__________________, 2006
Ladies and Gentlemen:
The undersigned, NNN Capital Corp., a California corporation (the "Dealer
Manager"), has entered into a Dealer-Manager Agreement dated ______, 2006 (the
"Selling Agreement") with NNN APARTMENT REIT, Inc., a Maryland corporation (the
"Company"), with respect to the offer and sale of up to 100,000,000 shares of
common stock of the Company (the "Shares"). The terms of the offering (the
"Offering") are set forth in the Company's Prospectus dated ________, 2006 (with
all exhibits, appendices, addenda and supplements thereto, collectively the
"Prospectus").
The Offering will terminate on the first to occur of (i) the sale of an
aggregate of 100,000,000 Shares (excluding any Shares sold pursuant to the
Company's Distribution Reinvestment Plan) and (ii) __________, 2008 (the
"Offering Termination Date"). If subscriptions for at least 300,000 Shares (the
"Minimum Offering") have not been received and accepted by the Company prior to
__________, 2007, none of the Shares will be sold and all funds tendered for the
purchase of Shares will be refunded in full to each subscriber (plus interest
and without deduction for escrow expenses) in accordance with the Prospectus.
Further, the Company may terminate the Offering prior to the Offering
Termination Date at any time in its sole discretion.
You are invited to become one of the broker-dealers permitted to solicit
subscriptions for the Shares ("Soliciting Dealers"). By your confirmation
hereof, you agree to act in such capacity and to use your best efforts, in
accordance with the following terms and conditions, to sell the Shares.
1. You hereby confirm that you are (i) a member in good standing of the
National Association of Securities Dealers, Inc. ("NASD"), (ii) qualified and
duly registered to act as a broker-dealer within all states in which you will
sell the Shares, (iii) a broker-dealer duly registered with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and (iv) hereby required and will maintain all such
registrations and qualifications in good standing for the duration of your
involvement in the Offering. Further, you confirm that all persons who undertake
to offer and sell the Shares on your behalf are, and at all applicable times
during the Offering will be, properly registered and/or licensed with the NASD
and all applicable state securities regulators.
2. (a) You hereby agree to solicit in accordance with the Rules of the NASD,
specifically including, but not in any way limited to, NASD Rules 2420, 2730,
2740 and 2750.
(b) You hereby agree to solicit, as an independent contractor and not as
the agent of the Dealer Manager or of the Company (or their affiliates), persons
acceptable to the Company to purchase the Shares pursuant to the subscription
agreement in the form attached to the Prospectus (the "Subscription Agreement")
and in accordance with the terms of the Prospectus. You hereby agree to
diligently make inquiries as required by this Agreement, as set forth in the
Prospectus, and as required by all applicable laws of all prospective investors
in order to ascertain whether a purchase of the Shares is suitable for each such
investor. Further, all funds received by you with respect to any Subscription
Agreement shall be transmitted to the Dealer Manager by 12:00 p.m. (noon) on the
next business day following receipt thereof. The Dealer Manager will be
responsible for the prompt deposit of funds for purchase of Shares with Wachovia
Bank, N.A., as escrow agent with such funds held in escrow (the "Escrow
Account") pursuant to an escrow agreement between the Company and Wachovia Bank,
N.A. No Subscription Agreement shall be effective unless and until accepted by
the Company in its sole discretion.
(c) You understand that the offering of Shares is made on a
"minimum-maximum" basis, as described in the Prospectus. You further understand
and agree that payment of compensation to you for the sale of Shares is
conditioned upon sale of at least 300,000 Shares ("the Minimum Offering") and
acceptance of said sales by the Company in its sole discretion. The failure to
sell at least the Minimum Offering shall relieve the Dealer Manager of any
obligation to pay you for any services rendered by you in connection with the
sale of Shares under this Agreement or otherwise.
(d) You agree that prior to participating in the Offering you will have
reasonable grounds to believe, based on information made available to you by the
Dealer Manager and/or the Company through the Prospectus, that all material
facts are adequately and accurately disclosed in the Prospectus and provide a
basis for evaluating an investment in the Company and the Shares.
(e) You agree not to rely upon the efforts of the Dealer Manager, which is
affiliated with the Company, in determining whether the Company has adequately
and accurately disclosed all material facts upon which to provide a basis for
evaluating the Company to the extent required by federal or state laws or the
NASD. You further agree to conduct your own investigation to make that
determination independent of the efforts of the Dealer Manager.
(f) You agree not to execute any sale of the Shares in an account over
which you have discretionary authority to make investments without prior written
approval of the transaction by the owner of the account.
(g) You agree to retain in your records and make available to the Dealer
Manager and to the Company for a period of at least six (6) years following the
Offering Termination Date, information establishing that each investor who
purchases the Shares pursuant to a Subscription Agreement solicited by you is
within the permitted class of investors under the requirements of the
jurisdiction in which such purchaser is a resident and the suitability standards
set forth in the Prospectus and the Subscription Agreement.
(h) All subscriptions solicited by you will be strictly subject to
confirmation by the Dealer Manager and acceptance thereof by the Company in its
sole discretion. The Dealer Manager and the Company reserve the right in their
sole and absolute discretion to reject any such subscription and to accept or
reject subscriptions in the order of their receipt by the Company or otherwise.
Neither you nor any other person is authorized to give any information or make
any representation other than those contained in the Prospectus or in any
supplemental sales literature furnished by the Dealer Manager or the Company for
use in making solicitations in connection with the offer and sale of the Shares.
(i) Upon release by the Dealer Manager, you may offer the Shares at the
offering price set forth in the Prospectus, subject to the terms and conditions
thereof.
(j) The Dealer Manager will provide you with such number of copies of the
Prospectus, and such number of copies of amendments and supplements thereto as
you may reasonably request. The Dealer Manager may provide you with certain
supplemental sales material to be used by you in connection with the
solicitation of purchasers of the Shares. You will keep a written record of all
persons to whom you provide a copy of the Prospectus and/or supplemental sales
materials and provide such log to the Company or the Dealer Manager upon
request. In the event you elect to use such supplemental sales material, you
agree that such material shall not be used in connection with the solicitation
of purchasers of the Shares unless accompanied or preceded by the Prospectus, as
then currently in effect, and as it may be amended or supplemented in the
future. You agree that you will not use any sales materials other than those
provided to you by the Company or approved by the Company for use in the
Offering, as set forth in writing by the Company. The use of any other sales
material is expressly prohibited.
(k) 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. The
Dealer Manager shall be under no liability to you except for lack of good faith
and for obligations expressly assumed by it in this Participating Broker-Dealer
Agreement. Nothing contained in this Section is intended to operate as, and the
provisions of this Section shall not constitute, a waiver by you of compliance
with any provision of the Securities Act of 1933, as amended (the "Securities
Act"), the Exchange Act, other applicable federal securities laws, applicable
state securities laws, the rules and regulations promulgated thereunder and the
rules of the NASD.
(l) Except as provided in the "Plan of Distribution" section of the
Prospectus, and in consideration of your services hereunder, the Dealer Manager
will pay you compensation (collectively, "Compensation") as follows: (i) up to
7.0% of the gross proceeds from the sale of Shares sold by you ("Selling
Commission"), (ii) up to 0.5% of the gross proceeds from the sale of Shares sold
by you as a non-accountable marketing allowance, and (iii) up to 0.5% of the
gross proceeds from the sale of Shares sold by you for reimbursement of
accountable bona fide due diligence expenses; provided, however, that a
"purchaser," as defined below, who
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purchases more than 50,000 shares at any one time through you will receive a
mandatory discount on the purchase price of the shares above 50,000. The Selling
Commission payable to you will be commensurately reduced. The following table
shows the discounted price per share and reduced selling commissions payable for
volume discounts:
Price
Commission Per
Shares Purchased in the Transaction Rate Share
- ----------------------------------- ---------- -----
1 to 50,000...................................................... 7.0% $10.00
50,001 to 100,000................................................ 6.0% $9.90
100,001 to 200,000............................................... 5.0% $9.80
200,001 to 500,000............................................... 4.0% $9.70
500,001 to 750,000............................................... 3.0% $9.60
750,001 to 1,000,000............................................. 2.0% $9.50
1,000,001 and up................................................. 1.0% $9.40
For the purposes of such volume discounts, the term "purchaser" includes:
- 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;
- a corporation, partnership, association, joint-stock company, trust
fund or any organized group of persons, whether incorporated or not;
- an employees' trust, pension, profit sharing or other employee benefit
plan qualified under the federal income tax laws; and
- all commingled trust funds maintained by a given bank.
No Compensation of any kind shall be paid with respect to Shares issued
pursuant to the Company's Distribution Reinvestment Plan, or the 2006 Incentive
Award Plan, as described in the Prospectus. Payment of the Compensation shall be
subject to the following conditions:
(i) No Compensation will be payable with respect to any subscriptions
for Shares which are rejected by the Company or the Dealer Manager, or
with respect to any subscriptions for Shares received subsequent to the
termination of the Offering.
(ii) No Compensation will be payable unless or until the Minimum
Offering has been sold by the Dealer Manager and the Soliciting Dealers.
(iii) No Compensation will be payable to you with respect to any sale
of the Shares by you unless and until such time as the Company has
received (A) the total proceeds of any such sale from the Escrow Account
and the Dealer Manager has received from the Company the aggregate amount
of Compensation to which it is entitled and (B) a completed and executed
Subscription Agreement from the investor who satisfies the suitability
standards and minimum purchase requirements set forth in the Prospectus.
Except as otherwise provided herein, all expenses incurred by you in the
performance of your obligations hereunder, including, but not limited to,
expenses related to the Offering and any attorneys' fees, shall be at your sole
cost and expense, and the foregoing shall apply notwithstanding the fact that
the Offering is not consummated for any reason.
Once Compensation becomes payable, it will be paid weekly or as otherwise
determined by the Dealer Manager in its sole discretion; provided, however,
Compensation will be paid no less frequently than monthly.
(m) For the sale of Shares, you will instruct all prospective investors to
make their checks payable to "Wachovia Bank, N.A., as escrow agent for NNN
Apartment REIT, Inc." You agree to be bound by the terms of the Escrow Agreement
dated as of _______, 2006 between the Company and Wachovia Bank, N.A.
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(n) You agree that in recommending to a prospective investor the purchase
of the Shares, you will:
(i) Have reasonable grounds to believe, on the basis of information
obtained from the prospective investor concerning his investment
objectives, other investments, financial situation and needs, and any
other information known by you, that:
(A) The prospective investor meets the investor suitability
standards set forth in the Prospectus;
(B) The prospective investor is or will be in a financial position
appropriate to enable him to realize to a significant extent the benefits
described in the Prospectus;
(C) The prospective investor has a fair market net worth sufficient
to sustain the risks inherent in the investment, including loss of
investment and lack of liquidity; and
(D) The investment is otherwise suitable for the prospective
investor, and
(ii) Maintain in your files for six (6) years following the Offering
Termination Date information describing the basis upon which the
determination of suitability was reached as to each investor.
(o) You agree that, prior to accepting a subscription for the Shares, you
will inform the prospective investor of all pertinent facts relating to the
illiquidity and lack of marketability of the Shares, as appropriate, during the
term of the investment.
(p) You hereby undertake and agree to comply with all obligations
applicable to you under all applicable laws, rules and regulations, including
those set forth by the NASD.
3. This Agreement may be terminated by the Dealer Manager at any time upon
written notice to you.
4. In soliciting persons to acquire the Shares, you agree to comply with any
applicable requirements of the Securities Act, the Exchange Act, other
applicable federal securities laws, applicable state securities laws, the rules
and regulations promulgated thereunder and the rules of the NASD and, in
particular, you agree that you will not give any information or make any
representations other than those contained in the Prospectus and in any
supplemental sales literature furnished to you by the Dealer Manager for use in
making such solicitations.
5. It is understood and agreed that under no circumstances will you engage in
any activities hereunder in any state other than those for which permission has
been granted by the Dealer Manager to you, as evidenced by written
acknowledgment by the Dealer Manager that such state has been cleared for offer
and sale activity.
6. Nothing contained herein shall constitute the Soliciting Dealers, or any
of them, as an association, partnership, unincorporated business, or other
separate entity. The Dealer Manager shall be under no liability to make any
payment to you except out of the funds received by it from the Company as
hereinabove provided, and the Dealer Manager shall not be under any liability
for, or in respect of the value or validity of the Subscription Agreements, the
Shares, or the performance by any one of any agreement on its part, or for, or
in respect of any matter connected with, this Agreement, except for lack of good
faith by the Dealer Manager, and for obligations expressly assumed by the Dealer
Manager herein. You agree that the Company shall have no liability or obligation
to you for Compensation hereunder and you shall look solely to the Dealer
Manager for Compensation.
7. Under the Selling Agreement, a copy of which you acknowledge receiving,
the Company has agreed to indemnify the Dealer Manager, the Soliciting Dealers,
and each person, if any, who controls the Dealer Manager or Soliciting Dealers
(within the meaning of the Securities Act and the Exchange Act) against certain
liabilities under the Securities Act, the Exchange Act, other applicable federal
securities laws, applicable state securities laws and the rules and regulations
promulgated thereunder. Each Soliciting Dealer agrees to indemnify the Dealer
Manager, the Company, its officers, directors and certain other persons to the
same extent and in the same manner as the Dealer Manager has agreed to indemnify
the Company, its officers, directors and certain other persons as provided in
Section 10 of the Selling Agreement and to indemnify each other Soliciting
Dealer to the same extent and in the same manner as such Soliciting Dealer
agrees to indemnify the Dealer Manager, the Company, its officers, directors and
certain other persons. In the execution of the Selling Agreement, the Dealer
Manager shall be deemed to have acted as a representative for each of the
Soliciting Dealers, and the Soliciting Dealers shall be deemed to be in privity
of contract with the Company for purposes of this Section 7.
8. All representations, warranties, covenants and agreements of the Dealer
Manager and each Soliciting Dealer contained herein shall survive the delivery,
execution and closing thereof.
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9. This Agreement will be governed by, subject to and construed in accordance
with the laws of the State of California. This Agreement constitutes the entire
understanding between the parties hereto and supersedes any prior understandings
or written or oral agreements between them respecting the subject matter hereof.
10. Any notice from the Dealer Manager to you as Soliciting Dealer shall be
deemed to have been fully given if mailed or sent to you by facsimile at your
address set forth below.
11. If any portion of this Agreement shall be held invalid or inoperative,
then so far as is reasonable and possible the remainder of this Agreement shall
be considered valid and operative and effect shall be given the intent
manifested by the portion held invalid or inoperative.
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Please confirm this Agreement to solicit persons to acquire the Shares on the
foregoing terms and conditions by signing and returning the form enclosed
herewith.
Very truly yours,
NNN CAPITAL CORP.
By:
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Name: Kevin K. Hull
Title: President and Chief Executive
Officer
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NNN CAPITAL CORP.
1551 N. Tustin Avenue, Suite 200
Santa Ana, California 92705
Re: NNN Apartment REIT Inc. - Offering of Shares of Common Stock
Gentlemen:
The undersigned confirms its agreement to act as a Soliciting Dealer as
referred to in the foregoing Participating Broker-Dealer Agreement subject to
the terms and conditions of such agreement. The undersigned confirms that it is
a member in good standing of the National Association of Securities Dealers,
Inc., and is qualified under federal law and the laws of the states in which
sales are to be made by the undersigned to act as a broker-dealer.
Dated: , 2006
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(Print Name of Firm)
By:
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(Authorized Representative)
Address:
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Phone:
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Facsimile:
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