EXHIBIT 10.4
ESCROW AGREEMENT
Xxxxx Fargo Bank Iowa, National Association
000 Xxxxxx X0000-000
Corporate Trust Services, XXX
Xxx Xxxxxx, XX 00000
Re: Behringer Harvard REIT I, Inc.
Ladies and Gentlemen:
BEHRINGER HARVARD REIT I, INC., a Maryland corporation (the "Company"), will
issue in a public offering (the "Offering") shares of its common stock (the
"Stock") pursuant to a Registration Statement on Form S-11 filed by the Company
with the Securities and Exchange Commission. Behringer Securities LP, a Texas
limited partnership (the "Dealer Manager"), will act as dealer manager for the
offering of the Stock. The Company is entering into this agreement to set forth
the terms on which Xxxxx Fargo Bank Iowa, National Association (the "Escrow
Agent"), will hold and disburse the proceeds from subscriptions for the purchase
of the Stock in the Offering until such time as: (i) in the case of
subscriptions received from all nonaffiliates of the Company, the Company has
received subscriptions for Stock resulting in total minimum capital raised of
$2,500,000 (the "Required Capital"); and (ii) in the case of subscriptions
received from residents of Pennsylvania ("Pennsylvania Subscribers") and
residents of Nebraska ("Nebraska Subscribers"), the Company has received
subscriptions for Stock from nonaffiliates of the Company resulting in total
minimum capital raised of $44,000,000 (the "Pennsylvania/Nebraska Required
Capital").
The Company hereby appoints Xxxxx Fargo Bank Iowa, National Association as
Escrow Agent for purposes of holding the proceeds from the subscriptions for the
Stock, on the terms and conditions hereinafter set forth:
1. Persons subscribing to purchase the Stock (the "Subscribers") will be
instructed by the Dealer Manager or any soliciting dealers to remit the purchase
price in the form of checks, drafts, wires, Automated Clearing House (ACH) or
money orders (hereinafter "instruments of payment") payable to the order of
"Xxxxx Fargo Bank Iowa, N.A., Escrow Agent for Behringer Harvard REIT I, Inc."
Any checks, drafts or money orders received made payable to a party other than
the Escrow Agent shall be returned to the soliciting dealer who submitted the
check, draft or money order. Within one (1) business day after receipt of
instruments of payment from the Offering, the Dealer Manager will (a) send to
the Escrow Agent: each Subscriber's name, address, executed IRS Form W-9, number
of shares purchased, and purchase price remitted, and (b) deposit the
instruments of payment from such Subscribers (the "Subscription Materials"),
into an interest-bearing deposit account entitled "ESCROW ACCOUNT FOR THE
BENEFIT OF SUBSCRIBERS FOR COMMON STOCK OF BEHRINGER HARVARD REIT I, INC." (the
"Escrow Account"), which deposit shall occur within one (1) business day after
the Dealer Manger's receipt of all the Subscription Materials, until such Escrow
Account has closed pursuant to paragraph 3(a) hereof. Instruments of payment
received from Pennsylvania Subscribers and Nebraska Subscribers (as identified
as such by the Company) shall be accounted for separately in a subaccount
entitled "ESCROW ACCOUNT FOR THE BENEFIT OF PENNSYLVANIA AND NEBRASKA
SUBSCRIBERS" (the "Pennsylvania/Nebraska Escrow Account"), until such
Pennsylvania/Nebraska Escrow Account has closed pursuant to paragraph 3(a)
hereof. The Director of Banking and Finance of the State of Nebraska shall have
the right to inspect and make copies of the records of the Escrow Agent
relating to the Pennsylvania/Nebraska Escrow Account at any reasonable time
wherever the records are located. Both the Escrow Account and the
Pennsylvania/Nebraska Escrow Account will be established and maintained in such
a way as to permit the interest income calculations described in paragraph 7.
2. The Escrow Agent agrees to promptly process for collection the
instruments of payment upon deposit into the applicable Escrow Account or
Pennsylvania/Nebraska Escrow Account. Deposits shall be held in the Escrow
Account or the Pennsylvania/Nebraska Escrow Account until such funds are
disbursed in accordance with paragraph 3 hereof. Prior to disbursement of the
funds deposited in the Escrow Account or the Pennsylvania/Nebraska Escrow
Account, such funds shall not be subject to claims by creditors of the Company
or the Dealer Manager or any their affiliates. If any of the instruments of
payment are returned to the Escrow Agent for nonpayment, the Escrow Agent shall
promptly notify the Dealer Manager and the Company in writing via mail, email or
facsimile of such nonpayment, and is authorized to debit the Escrow Account or
the Pennsylvania/Nebraska Escrow Account, as applicable, in the amount of such
returned payment as well as any interest earned on the amount of such payment.
3. (a) Subject to the provisions of subparagraphs 3(b)-3(f) below:
(i) once the aggregate of all collected funds in the
Escrow Account and Pennsylvania/Nebraska Escrow Account is an
amount equal to or greater than the Required Capital, the
Escrow Agent shall promptly notify the Company and, upon
receiving written instruction from the Company, (A) disburse
to the Company, by check, ACH or wire transfer, the funds in
the Escrow Account representing the gross purchase price for
the Stock, and (B) disburse to the Subscribers or the Company,
as applicable, any interest thereon pursuant to the provisions
of subparagraph 3(f). For purposes of this Agreement, the term
"collected funds" shall mean all funds received by the Escrow
Agent that have cleared normal banking channels and are in the
form of cash or a cash equivalent. After such time the Escrow
Account shall remain open and the Company shall continue to
cause subscriptions for the Stock that are not to be deposited
in the Pennsylvania/Nebraska Escrow Account to be deposited
therein until the Company informs the Escrow Agent in writing
to close the Escrow Account, and thereafter any subscription
documents and instruments of payment received by the Escrow
Agent from Subscribers other than Pennsylvania Subscribers and
Nebraska Subscribers shall be forwarded directly to the
Company.
(ii) regardless of any closing of the Escrow Account, the
Company and the Dealer Manager shall continue to forward
instruments of payment and Subscription Materials received
from Pennsylvania Subscribers for deposit into the
Pennsylvania/Nebraska Escrow Account to the Escrow Agent until
such time as the Company notifies the Escrow Agent in writing
that total subscription proceeds (including the amount then in
the Pennsylvania/Nebraska Escrow Account) equal or exceed the
Pennsylvania/Nebraska Required Capital. Upon receipt of a
written notice from the Company that total subscription
proceeds (including the amount then in the
Pennsylvania/Nebraska Escrow Account) equaling or exceeding
the Pennsylvania/Nebraska Required Capital have been received
in collected funds, the Escrow Agent shall promptly notify the
Company and provide to the Director of Banking and Finance of
the State of Nebraska an affidavit which states that all of
the conditions of this Agreement relating to the
Pennsylvania/Nebraska Escrow Account have been met (the
"Escrow Agent Affidavit"). Upon receipt of such notice, the
Company shall provide the Director of Banking and Finance of
the State of Nebraska an affidavit which states that there
have been no material omissions or changes in the financial
condition of the Company or other changes of circumstance,
that would render the Pennsylvania/Nebraska Required Capital
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inadequate to finance the Company's proposed plan of
operations or business, or render the representations in the
Company's registration statement, as amended through such
time, fraudulent, false or misleading (the "Company
Affidavit"). Five days after the Escrow Agent Affidavit and
the Company Affidavit have been provided to the Director of
Banking and Finance of the State of Nebraska, the Escrow Agent
shall (A) disburse to the Company, by check, ACH or wire
transfer, the funds then in the Pennsylvania/Nebraska Escrow
Account representing the gross purchase price for the Stock,
and (B) disburse to the Pennsylvania Subscribers, the Nebraska
Subscribers or the Company, as applicable, any interest
thereon pursuant to the provisions of subparagraph 3(f).
Following such disbursements, the Escrow Agent shall close the
Pennsylvania/Nebraska Escrow Account, and thereafter any
Subscription Materials and instruments of payment received by
the Escrow Agent from Pennsylvania Subscribers and Nebraska
Subscribers shall be deposited directly to the Escrow Account
(or to the Company, if it has closed the Escrow Account, as
instructed in writing by the Company).
(b) At the close of business on February 19, 2004 (the
"Expiration Date") the Escrow Agent shall promptly notify the Company
if it is not in receipt of evidence of Subscription Materials accepted
on or before the Expiration Date, and instruments of payment dated not
later than that the Expiration Date, for the purchase of Stock
providing for total purchase proceeds that equal or exceed the Required
Capital (from all sources but exclusive of any funds received from
subscriptions for Stock from entities which the Company has notified
the Escrow Agent are affiliated with the Company). In the event the
Escrow Agent is not in possession of an executed IRS Form W-9 from any
Subscriber, the Company shall provide the Escrow Agent an executed IRS
Form W-9 from such Subscriber within ten (10) calendar days after such
notice. On the tenth (10th) day following the receipt of such notice,
the Escrow Agent shall promptly return directly to each Subscriber the
collected funds deposited in the Escrow Account and the
Pennsylvania/Nebraska Escrow Account on behalf of such Subscriber
(unless earlier disbursed in accordance with paragraph 3(c)), or shall
return the instruments of payment delivered, but not yet processed for
collection prior to such time, together with interest in the amounts
calculated pursuant to paragraph 7 for each Subscriber at the address
provided by the Dealer Manager or the Company. In the event an executed
IRS Form W-9 is not received for each Subscriber within ten (10)
calendar days, the Escrow Agent shall thereupon remit an amount to the
Subscribers in accordance with the provisions hereof, withholding
thirty percent (30%) of any interest income on subscription proceeds
(determined in accordance with paragraph 7) attributable to those
Subscribers for whom the Escrow Agent does not possess an executed IRS
Form W-9. However, the Escrow Agent shall not be required to remit any
payments until funds represented by such payments have been collected.
(c) Notwithstanding subparagraphs 3(a) and 3(b) above, if the
Escrow Agent is not in receipt of evidence of subscriptions accepted on
or before the close of business on such date that is 120 days after
commencement of the Offering (the Company will notify the Escrow Agent
of the commencement date of the Offering) (the "Initial Escrow
Period"), and instruments of payment dated not later than that date,
for the purchase of Stock providing for total purchase proceeds from
all nonaffiliated sources that equal or exceed the
Pennsylvania/Nebraska Required Capital, the Escrow Agent shall promptly
notify the Company. Thereafter, the Company shall send to each
Pennsylvania Subscriber and Nebraska Subscriber by certified mail
within ten (10) calendar days after the end of the Initial Escrow
period a notification in the form of Exhibit A. If, pursuant to such
notification, a Pennsylvania Subscriber or a Nebraska Subscriber
requests the return of his or her subscription funds within ten (10)
calendar days after receipt of the notification (the "Request Period")
and the Escrow Agent is not in possession of an executed IRS form W-9,
the Company shall provide the Escrow Agent with an executed IRS Form
W-9 from each such
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Pennsylvania Subscriber or Nebraska Subscriber, as the case may be,
within ten (10) calendar days after receiving notice from such
Pennsylvania Subscriber or Nebraska Subscriber. The Escrow Agent shall
promptly refund directly to each Pennsylvania Subscriber or Nebraska
Subscriber, as the case may be, the collected funds deposited in the
Pennsylvania/Nebraska Escrow Account on behalf of such Pennsylvania
Subscriber or Nebraska Subscriber, or shall return the instruments of
payment delivered, but not yet processed for collection prior to such
time, to the address provided by the Dealer Manager or the Company,
together with interest income in the amounts calculated pursuant to
paragraph 7. If an executed IRS Form W-9 is not received for such
Pennsylvania Subscriber or Nebraska Subscriber within ten (10) calendar
days, the Escrow Agent shall thereupon remit an amount to such
Pennsylvania Subscriber or Nebraska Subscriber, as the case may be, in
accordance with the provisions hereof, withholding thirty percent (30%)
of any interest income earned on subscription proceeds (determined in
accordance with paragraph 7) attributable to such Pennsylvania
Subscriber or Nebraska Subscriber for whom the Escrow Agent does not
possess an executed IRS Form W-9. However, the Escrow Agent shall not
be required to remit such payments until funds represented by such
payments have been collected by the Escrow Agent.
(d) The subscription funds of Pennsylvania Subscribers and
Nebraska Subscribers who do not request the return of their
subscription funds within the Request Period shall remain in the
Pennsylvania/Nebraska Escrow Account for successive 120-day escrow
periods (a "Successive Escrow Period"), each commencing automatically
upon the termination of the prior Successive Escrow Period, and the
Company and Escrow Agent shall follow the notification and payment
procedure set forth in subparagraph 3(c) above with respect to the
Initial Escrow Period for each Successive Escrow Period until the
occurrence of the earliest of (i) the Expiration Date, (ii) the receipt
and acceptance by the Company of subscriptions for the purchase of
Stock with total purchase proceeds that equal or exceed the
Pennsylvania/Nebraska Required Capital and the disbursement of the
Pennsylvania/Nebraska Escrow Account on the terms specified herein, or
(iii) all funds held in the Pennsylvania/Nebraska Escrow Account having
been returned to the Pennsylvania Subscribers and Nebraska Subscribers
in accordance with the provisions hereof.
(e) If the Company rejects any subscription for which the Escrow
Agent has collected funds, the Escrow Agent shall, upon the written
request of the Company, promptly issue a refund to the rejected
Subscriber. If the Company rejects any subscription for which the
Escrow Agent has not yet collected funds but has submitted the
Subscriber's check for collection, the Escrow Agent shall promptly
return the funds in the amount of the Subscriber's check to the
rejected Subscriber after such funds have been collected. If the Escrow
Agent has not yet submitted a rejected Subscriber's check for
collection, the Escrow Agent shall promptly remit the Subscriber's
check directly to the Subscriber.
(f) At any time after funds are disbursed upon the Company's
acceptance of subscriptions pursuant to subparagraph 3(a) above on the
tenth (10th) day following the date of such acceptance, the Escrow
Agent shall promptly provide directly to each Subscriber the amount of
the interest payable to the Subscribers; provided that the Escrow Agent
is in possession of such Subscriber's executed IRS Form W-9. In the
event the Escrow Agent is not in possession of an executed IRS Form W-9
from any Subscriber, the Company shall provide the Escrow Agent with an
executed IRS Form W-9 from such Subscriber within ten (10) calendar
days after acceptance of such subscription. In the event an executed
IRS Form W-9 is not received for each Subscriber within such period,
the Escrow Agent shall remit an amount to the Subscribers in accordance
with the provisions hereof, withholding thirty percent (30%) of any
interest income on subscription proceeds (determined in accordance with
paragraph 7) attributable to those Subscribers for whom the Escrow
Agent does not possess an executed IRS Form W-9. However, the Escrow
Agent
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shall not be required to remit any payments until funds represented by
such payments have been collected by the Escrow Agent. The forgoing
notwithstanding, interest, if any, earned on accepted subscription
proceeds will be payable to a Subscriber only if the Subscriber's funds
have been held in escrow by the Escrow Agent for at least 35 days;
interest, if any, earned on accepted subscription proceeds of
Subscribers' funds held less than 35 days will be payable to the
Company.
In the event that instruments of payment are returned for nonpayment,
the Escrow Agent is authorized to debit the Escrow Account or the
Pennsylvania/Nebraska Escrow Account, as applicable, in accordance with
paragraph 2 hereof.
4. The Escrow Agent shall report to the Company weekly on the account
balances in the Escrow Account and the Pennsylvania/Nebraska Escrow Account and
the activity in each account since the last report.
5. Prior to the disbursement of funds deposited in the Escrow Account or
the Pennsylvania/Nebraska Escrow Account in accordance with the provisions of
paragraph 3 hereof, the Escrow Agent shall invest all of the funds deposited as
well as earnings and interest derived therefrom in the Escrow Account and the
Pennsylvania/Nebraska Escrow Account, as applicable, in the "Short-Term
Investments" specified below, unless the costs to the Company for the making of
such investment are reasonably expected to exceed the anticipated interest
earnings from such investment in which case the funds and interest thereon shall
remain in the respective escrow account until the balance in the respective
escrow account reaches the minimum amount necessary for the anticipated interest
earnings from such investment to exceed the costs to the Company for the making
of such investment, as determined by the Company based upon applicable interest
rates.
"Short-Term Investments" include obligations of, or obligations
guaranteed by, the United States government or bank money-market accounts or
certificates of deposit of national or state banks that have deposits insured by
the Federal Deposit Insurance Corporation (including certificates of deposit of
any bank acting as a depository or custodian for any such funds) which mature on
or before the Expiration Date, unless such instrument cannot be readily sold or
otherwise disposed of for cash by the Expiration Date without any dissipation of
the offering proceeds invested. Without limiting the generality of the
foregoing, Exhibit B hereto sets forth specific Short-Term Investments that
shall be deemed permissible investments hereunder.
The following securities are not permissible investments:
(a) money market mutual funds;
(b) corporate equity or debt securities;
(c) repurchase agreements;
(d) bankers' acceptances;
(e) commercial paper; and
(f) municipal securities.
It is hereby expressly agreed and stipulated by the parties hereto that the
Escrow Agent shall not be required to exercise any discretion hereunder and
shall have no investment or management responsibility and, accordingly, shall
have no duty to, or liability for its failure to, provide investment
recommendations or investment advice to the parties hereto. It is the intention
of the parties hereto that the Escrow Agent shall never be required to use,
advance or risk its own funds or otherwise incur financial liability in the
performance of any of its duties or the exercise of any of its rights and powers
hereunder.
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6. The Escrow Agent is entitled to rely upon written instructions received
from the Company, unless the Escrow Agent has actual knowledge that such
instructions are not valid or genuine; provided that, if in the Escrow Agent's
opinion, any instructions from the Company are unclear, the Escrow Agent may
request clarification from the Company prior to taking any action, and if such
instructions continue to be unclear, the Escrow Agent may rely upon written
instructions from the Company's legal counsel in distributing or continuing to
hold any funds. However, the Escrow Agent shall not be required to disburse any
funds attributable to instruments of payment that have not been processed for
collection, until such funds are collected and then shall disburse such funds in
compliance with the disbursement instructions from the Company.
7. If the Offering terminates prior to receipt of the Required Capital or
one or more Pennsylvania Subscribers or Nebraska Subscribers elects to have his
or her subscription returned in accordance with paragraph 3, interest income
earned on subscription proceeds deposited in the Escrow Account (the "Escrow
Income"), the Pennsylvania/Nebraska Escrow Account (the "Pennsylvania/Nebraska
Escrow Income") shall be remitted to Subscribers, or to the Company if the
applicable Subscriber's funds have been held in escrow by the Escrow Agent for
less than 35 days, in accordance with paragraph 3 and without any deductions for
escrow expenses. For each such Subscriber who has invested funds that have been
held in escrow by the Escrow Agent for at least 35 days, such Subscriber's pro
rata portion of Escrow Income or Pennsylvania/Nebraska Escrow Income, as
applicable, shall be determined as follows: the total amount of Escrow Income
(or Pennsylvania/Nebraska Escrow Income, as appropriate) minus interest earned
on accepted subscription proceeds held by the Escrow Agent for less than 35 days
shall be multiplied by a fraction, (i) the numerator of which is determined by
multiplying the number of shares of Stock purchased by said Subscriber times the
number of days said Subscriber's proceeds are held in the Escrow Account or the
Pennsylvania/Nebraska Escrow Account, as applicable, prior to the date of
disbursement, and (ii) the denominator of which is the total of the numerators
for all Subscribers in such account who have invested funds that have been held
in escrow by the Escrow Agent for at least 35 days. The Company shall reimburse
the Escrow Agent for all escrow expenses. The Escrow Agent shall remit all such
Escrow Income and Pennsylvania/Nebraska Escrow Income in accordance with
paragraph 3. If the Company chooses to leave the Escrow Account open after
receiving the Required Capital then it shall make regular acceptances of
subscriptions therein, but no less frequently than monthly, and the Escrow
Income from the last such acceptance shall be calculated and remitted to the
Subscribers or the Company, as applicable, pursuant to the provisions of
paragraph 3(f).
8. The Escrow Agent shall receive compensation from the Company as set
forth in Exhibit C attached hereto.
9. In performing any of its duties hereunder, the Escrow Agent shall not
incur any liability to anyone for any damages, losses, or expenses, except for
willful misconduct, breach of trust, or gross negligence. Accordingly, the
Escrow Agent shall not incur any such liability with respect to any action taken
or omitted (a) in good faith upon advice of the Escrow Agent's counsel given
with respect to any questions relating to the Escrow Agent duties and
responsibilities under this Agreement, or (b) in reliance upon any instrument,
including any written instrument or instruction provided for in this Agreement,
not only as to its due execution and validity and effectiveness of its
provisions but also as to the truth and accuracy of information contained
therein, which the Escrow Agent shall in good faith believe to be genuine, to
have been signed or presented by a proper person or persons and to conform to
the provisions of this Agreement.
10. The Company hereby agrees to indemnify and hold the Escrow Agent
harmless against any and all losses, claims, damages, liabilities, and expenses,
including reasonable attorneys' fees and disbursements, that may be imposed on
or incurred by the Escrow Agent in connection with acceptance of appointment as
the Escrow Agent hereunder, or the performance of the duties hereunder,
including any
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litigation arising from this Agreement or involving the subject matter hereof,
except where such losses, claims, damages, liabilities, and expenses result from
willful misconduct, breach of trust, or gross negligence.
11. In the event of a dispute between the parties hereto sufficient in the
Escrow Agent's discretion to justify doing so, the Escrow Agent shall be
entitled to tender into the registry or custody of any court of competent
jurisdiction all money or property in its hands under this Agreement, together
with such legal pleadings as deemed appropriate, and thereupon be discharged
from all further duties and liabilities under this Agreement. In the event of
any uncertainty as to the duties hereunder, the Escrow Agent may refuse to act
under the provisions of this Agreement pending order of a court of competent
jurisdiction and shall have no liability to the Company or to any other person
as a result of such action. Any such legal action may be brought in such court
as the Escrow Agent shall determine to have jurisdiction thereof. The filing of
any such legal proceedings shall not deprive the Escrow Agent of its
compensation earned prior to such filing.
12. All communications and notices required or permitted by this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally or by messenger or by overnight delivery service or when received via
telecopy or other electronic transmission, in all cases addressed to the person
for whom it is intended at such person's address set forth below or to such
other address as a party shall have designated by notice in writing to the other
party in the manner provided by this paragraph:
(a) if to the Company:
Behringer Harvard REIT I, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: President and Chief Executive Officer
(b) if to the Dealer Manager:
Behringer Securities LP
0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Chief Operating Officer of Harvard Property Trust,
LLC, General Partner
(c) if to the Escrow Agent:
Xxxxx Fargo Bank Iowa, National Association
000 Xxxxxx
X0000-000
Corporate Trust Services, XXX
Xxx Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: X.X. Xxxxx
Each party hereto may, from time to time, change the address to which notices to
it are to be delivered or mailed hereunder by notice in accordance herewith to
the other parties.
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13. This Agreement shall be governed by the laws of the State of Texas as
to both interpretation and performance without regard to the conflict of laws
rules thereof.
14. The provisions of this Agreement shall be binding upon the legal
representatives, successors, and assigns of the parties hereto.
15. The Company and the Dealer Manager hereby acknowledge that Xxxxx Fargo
Bank Iowa, National Association is serving as Escrow Agent only for the limited
purposes herein set forth, and hereby agree that they will not represent or
imply that, by serving as Escrow Agent hereunder or otherwise, have investigated
the desirability or advisability of investment in the Company or have approved,
endorsed, or passed upon the merits of the Stock or the Company, nor shall they
use the name of the Escrow Agent in any manner whatsoever in connection with the
offer or sale of the Stock other than by acknowledgment that is has agreed to
serve as Escrow Agent for the limited purposes herein set forth.
16. This Agreement and any amendment hereto may be executed by the parties
hereto in one or more counterparts, each of which shall be deemed to be an
original.
17. Except as otherwise required for subscription funds received from
Pennsylvania Subscribers and Nebraska Subscribers as provided herein, in the
event that the Dealer Manager receives instruments of payment after the Required
Capital has been received and the proceeds of the Escrow Account have been
distributed to the Company, the Escrow Agent is hereby authorized to deposit
such instruments of payment within one (1) business day to any deposit account
as directed by the Company. The application of said funds into a deposit account
or to forward such funds directly to the Company, in either case directed by the
Company shall be a full acquittance to the Escrow Agent, who shall not be
responsible for the application of said funds thereafter.
18. The Escrow Agent shall be bound only by the terms of this Escrow
Agreement and shall not be bound by or incur any liability with respect to any
other agreements or understanding between any other parties, whether or not the
Escrow Agent has knowledge of any such agreements or understandings.
19. Indemnification provisions set forth herein shall survive the
termination of this Agreement.
20. In the event that any part of this Agreement is declared by any court
or other judicial or administrative body to be null, void, or unenforceable,
said provision shall survive to the extent it is not so declared, and all of the
other provisions of this Agreement shall remain in full force and effect.
21. Unless otherwise provided in this Agreement, final termination of this
Escrow Agreement shall occur on the date that all funds held in the Escrow
Account and the Pennsylvania/Nebraska Escrow Account are distributed either (a)
to the Company or to Subscribers and the Company has informed the Escrow Agent
in writing to close the Escrow Account and the Pennsylvania/Nebraska Escrow
Account pursuant to paragraph 3 hereof or (b) to a successor escrow agent upon
written instructions from the Company.
22. The Escrow Agent has no responsibility for accepting, rejecting, or
approving subscriptions. The Escrow Agent shall complete an OFAC search, in
compliance with its policy and procedures, of each subscription check prior to
depositing the check in the Escrow Account or the Pennsylvania/Nebraska Escrow
Account and shall inform the Company if a subscription check fails the OFAC
search. The Dealer Manager shall provide a copy of each subscription check in
order that the Escrow Agent may perform such OFAC search.
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23. This Agreement shall not be modified, revoked, released, or terminated
unless reduced to writing and signed by all parties hereto, subject to the
following paragraph.
If, at any time, any attempt is made to modify this Agreement in a manner that
would increase the duties and responsibilities of the Escrow Agent or to modify
this Agreement in any manner which the Escrow Agent shall deem undesirable, or
at any other time, the Escrow Agent may resign by providing written notice to
the Company and until (a) the acceptance by a successor escrow agent as shall be
appointed by the Company; or (b) thirty (30) days after such written notice has
been given, whichever occurs sooner, the Escrow Agent's only remaining
obligation shall be to perform its duties hereunder in accordance with the terms
of the Agreement.
24. The Escrow Agent may resign at any time from its obligations under this
Escrow Agreement by providing written notice to the Company. Such resignation
shall be effective on the date specified in such notice, which shall be not less
than thirty (30) days after such written notice has been given. The Escrow Agent
shall have no responsibility for the appointment of a successor escrow agent.
25. The Escrow Agent may be removed for cause by the Company by written
notice to the Escrow Agent effective on the date specified in such written
notice. The removal of the Escrow Agent shall not deprive the Escrow Agent of
its compensation earned prior to such removal.
[Signature page follows]
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Agreed to as of the 12th day of February, 2003.
BEHRINGER HARVARD REIT I, INC.
By:_________________________________
Xxxxxx X. Xxxxxxxxx, President
BEHRINGER SECURITIES LP
By: Harvard Property Trust, LLC
Its General Partner
By:_________________________________
Xxxxxx X. Xxxxxxx, III
Chief Operating Officer
The terms and conditions contained above are hereby accepted and agreed to by:
XXXXX FARGO BANK IOWA, NATIONAL ASSOCIATION, AS ESCROW AGENT
By:_____________________________________
Name:___________________________________
Title:__________________________________
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EXHIBIT A
[Form of Notice to Pennsylvania Subscribers and Nebraska Subscribers]
You have tendered a subscription to purchase shares of common stock of Behringer
Harvard REIT I, Inc. (the "Company"). Your subscription is currently being held
in escrow. The guidelines of the Pennsylvania Securities Commission do not
permit the Company to accept subscriptions from Pennsylvania residents until an
aggregate of $44,000,000 of gross offering proceeds have been received by the
Company. The Pennsylvania guidelines provide that until this minimum amount of
offering proceeds is received by the Company, every 120 days during the offering
period Pennsylvania Subscribers may request that their subscription be returned.
The Nebraska Securities Commission has imposed similar requirements on the
Company with respect to subscriptions from Nebraska residents.
If you wish to continue your subscription in escrow until the
Pennsylvania/Nebraska minimum subscription amount is received, nothing further
is required.
If you wish to terminate your subscription for the Company's common stock and
have your subscription returned please so indicate below, sign, date, and return
to the Escrow Agent, Xxxxx Fargo Bank Iowa, National Association, at 000 Xxxxxx
X0000-000, Corporate Trust Services, XXX, Xxx Xxxxxx, Xxxx 00000.
I hereby terminate my prior subscription to purchase shares of common stock of
Behringer Harvard REIT I, Inc. and request the return of my subscription funds.
I certify to Behringer Harvard REIT I, Inc. that I am a resident of either
Pennsylvania or Nebraska.
Signature:________________________________
Name: ________________________________
(please print)
Date: ________________________________
Please send the subscription refund to:
__________________________________
__________________________________
__________________________________
__________________________________
EXHIBIT B
PERMISSIBLE ESCROW INVESTMENTS
(i) obligations issued or guaranteed by the United States or by any person
controlled or supervised by or acting as an instrumentality of the
United States pursuant to authority granted by Congress, or an
investment fund consisting of such obligations;
(ii) obligations issued or guaranteed by any state or political subdivision
thereof rated either: AA or higher or MIG 1 or higher, by Xxxxx'x
Investors Service, Inc.; or AA or higher or an equivalent, by Standard
& Poor's Corporation, both of New York, New York, or their successors;
(iii) commercial or finance paper which is rated either: Prime-1 or higher,
or an equivalent by Xxxxx'x Investors Service, Inc.; or A-1 or higher
or any equivalent by Standard & Poor's Corporation, both of New York,
New York, or their successors; or
(iv) certificates of deposit or time deposits of banks or trust companies,
organized under the laws of the United States or any state.
EXHIBIT C
ESCROW AGENT COMPENSATION
Assumptions
- Receipt by Xxxxx Fargo of the
electronic transmission of subscriber data in a format
compatible with Xxxxx Fargo systems
- WF does not handle subscription documents or checks
- WF receives funds via deposit by issuer or its agent in the escrow account
or ACH/wires representing subscription funds
- Transfer agent sends WF copy of OFAC check
- Investment of Funds
- Monthly reporting
ACCEPTANCE FEE: $1,000.00
For initial services including examination of the Escrow Agent Agreement and all
supporting documents as well as database development. This is a one-time fee
payable upon the execution of the Escrow Agent Agreement.
ANNUAL ADMINISTRATION FEE: $3,000.00
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This annual administration fee covers standard services required under the
documents. Also includes periodic disbursements to company. An additional charge
of $500 per subaccount will be billed for accounts opened in connection with
certain state regulations (estimate of 2-3). Transaction charges noted below
apply for certain responsibilities including payments to subscribers. This fee
is payable upon the execution of the Escrow Agreement and annually thereafter
for any 12-month period or portion thereof. This fee shall be reviewed at the
end of the first year and may be renegotiated in accordance with new volume
estimates.
TRANSACTION FEES:
Wire transfer of funds to investors $15.00 per item
Check transfer of funds to investors $15.00 per item
Receipt and posting of incoming wires No charge
Receipt and posting of incoming check No charge
Asset transactions (purchases/sales/calls/deposit/withdrawals, etc.) $25.00 per transaction
1099 INT Tax reporting $25.00 per form
ACH transfer of funds No charge
Electronic predetermined reports No charge
Interest calculations No charge
EXTRAORDINARY SERVICES:
Additional reasonable compensation will be charged for extraordinary services
based on the then current standard hourly charge. Extraordinary services
include, but are not limited to, attending escrow closings, processing
assignments of escrow interest, specialized reports (e.g., tax reporting other
than 1099s), unusual certifications, reviewing and accepting modifications or
amendments to the escrow agreement, and letter of credit draws, etc. You will be
informed in advance of Xxxxx Fargo's performance of services that are considered
extraordinary.
Any overdrafts caused by failed or incomplete wires of funds or failed or
incomplete securities deliveries will be reimbursable to Xxxxx Fargo Bank at
prime plus two percent (2%).
All out-of-pocket expenses incurred in the administration of the account,
including, but not limited to, postage, telephone charges, insurance,
photocopies, supplies, and legal fees with the exception of legal fees incurred
at the inception of the account, will be billed to the customer at cost.
Xxxxxxxx over 30 days past due are subject to a 1.5% per month late payment
penalty of the balance due.
