EXHIBIT 10.9
AMENDED AND RESTATED ACCOMMODATION AGREEMENT
This Amended and Restated Accommodation Agreement (this "AGREEMENT") is
made as of August 9, 2004 by and between Behringer Harvard REIT I, Inc., a
Maryland corporation ("XX XXXX"), and Behringer Harvard Holdings, LLC, a
Delaware limited liability company ("BHH").
RECITALS
A. BHH is in the business of, among other things, acquiring real estate
projects for tenant in common syndication (each a "PROJECT").
B. BHH and XX XXXX have previously entered into an arrangement whereby
XX XXXX may agree to guarantee certain short-term loans from lenders ("LENDERS")
of up to $1,000,000 in principal amount each to fund acquisition and syndication
costs with respect to certain Projects in exchange for a fee and, if agreed by
the parties at the time of such guarantee, the right to acquire an interest in
such Projects.
C. XX XXXX and/or its operating limited partnership provides certain
accommodations to BHH in connection with its tenant in common offerings whereby
for a fee will agree to purchase unsold tenant in common interests in offerings
thereof by BHH (each a "TIC OFFERING") that utilize bridge financing and BHH and
XX XXXX wish to amend the terms of their arrangement such that XX XXXX may agree
to guarantee certain bridge loans associated with such tenant in common
interests and/or provide security therefor.
D. BHH and XX XXXX desire to enter into this Agreement to reflect their
understanding regarding the guarantees to be provided by XX XXXX, and the
compensation payable to XX XXXX for such guarantees.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. GUARANTY OF ACQUISITION AND SYNDICATION COST LOANS. In the event
that BHH wishes to obtain a guaranty (each an "ACQUISITION AND SYNDICATION COST
LOAN GUARANTY") from XX XXXX of any loan (each an "ACQUISITION AND SYNDICATION
COST LOAN") to fund acquisition and syndication costs and deposits with respect
to any Project, and XX XXXX agrees to provide such ACQUISITION AND SYNDICATION
COST Loan Guarantee, the parties will evidence such agreement pursuant to their
completion and execution of a Project Schedule in the form of Exhibit A attached
hereto (each a "PROJECT SCHEDULE").
1.1 BASIC TERMS OF ACQUISITION AND SYNDICATION COST LOANS\
GUARANTY. Each Acquisition and Syndication Cost Loan Guaranty shall be
on commercially usual forms (a form generally utilized by a
federal-chartered banking institution, state-chartered banking
institution or a national third-party commercial lender will be deemed
usual), will be for a period not to exceed six (6) months and shall be
limited to no more than One Million Dollars ($1,000,000) in principal
amount plus related accrued interest thereon. As a condition precedent
to execution by management of XX XXXX, each Acquisition and
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Syndication Cost Loan Guaranty shall first be approved by a majority of
the members of the Board of Directors of XX XXXX not otherwise
interested in the transaction, including a majority of the independent
directors. Each Acquisition and Syndication Cost Loan Guaranty will be
supported by a letter of credit obtained by XX XXXX or a pledge of cash,
in form and substance acceptable to XX XXXX (provided that arrangements
substantially similar to the arrangements currently in place with First
American Bank, SSB (the "FAB ARRANGEMENTS") in respect of the existing
$2,500,000 credit line entered into pursuant to this Section 1 shall be
deemed acceptable to XX XXXX) if required by the Lender (or other
collateral acceptable to XX XXXX).
1.2 EXTENSION OF ACQUISITION AND SYNDICATION COST LOAN
GUARANTY. Upon written request by BHH and subject to the prior consent
of a majority of the independent directors of XX XXXX, each Acquisition
and Syndication Cost Loan Guaranty may be extended for one or more
additional six (6) month periods in exchange for the additional
consideration set forth in Section 3 below.
2. GUARANTY OF BRIDGE LOANS. In the event that BHH wishes to obtain
a guaranty (each a "BRIDGE GUARANTY") from XX XXXX of any loan pursuant to which
BHH acquires its interest in respect of a Project, which interest is intended to
be sold in a TIC Offering (each a "BRIDGE LOAN"), and XX XXXX agrees to provide
such Bridge Guarantee, the parties will evidence such agreement pursuant to
their completion and execution of a Project Schedule.
2.1 BASIC TERMS OF BRIDGE LOANS GUARANTY. Each Bridge
Guaranty shall be on commercially usual forms (a form generally utilized
by a federal-chartered banking institution, state-chartered banking
institution or a national third-party commercial lender will be deemed
usual), will be for a period not to exceed six (6) months and shall be
limited to no more than the obligations under the Bridge Loan. Each
Bridge Guaranty will be supported by a letter of credit obtained by XX
XXXX or a pledge of cash and/or XX XXXX'x interest in the Project, if
required by the Lender (or other collateral acceptable to XX XXXX), in
each case in form and substance acceptable to XX XXXX (provided that
arrangements substantially similar to the FAB Arrangements shall be
deemed acceptable to XX XXXX). As a condition precedent to execution by
management of XX XXXX, each Project the subject of a Bridge Guaranty
shall first be approved by a majority of the members of the Board of
Directors of XX XXXX not otherwise interested in the transaction,
including a majority of the independent directors, as a Project that may
be one hundred percent (100%) acquired by XX XXXX and each Bridge
Guaranty shall first be approved by a majority of the members of the
Board of Directors of XX XXXX not otherwise interested in the
transaction, including a majority of the independent directors.
2.2 EXTENSION OF BRIDGE GUARANTY. Upon written request by
BHH and subject to the prior consent of a majority of the independent
directors of XX XXXX, each Bridge Guaranty may be extended for one or
more additional six (6) month periods in exchange for the additional
consideration set forth in Section 3 below.
3. GUARANTY FEE. BHH shall pay to XX XXXX a fee (the "GUARANTY
FEE") in an amount equal to one percent (1%) of the Acquisition and Syndication
Cost Loan or Bridge Loan (each a "LOAN") amount guaranteed by XX XXXX, which
Guaranty Fee shall be paid on the date or dates
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such Loan or portion thereof is made. If an Acquisition and Syndication Cost
Guaranty or Bridge Guaranty (each a "GUARANTY") is extended for any additional
six (6) month period, an additional 1% Guaranty Fee shall be paid on the date of
each such extension.
4. RIGHT TO PURCHASE INTEREST IN PROJECTS. BHH hereby agrees that,
if required by XX XXXX in the Project Schedule for any Guaranty, XX XXXX (or its
affiliates) shall have the option, but not the obligation, to purchase up to a
5% interest in each Project with respect to which a Guaranty is made by XX XXXX.
The purchase price for each 1% interest shall be equal to the purchase price
paid by BHH for a 1% interest in the Project plus a pro rata share of the
closing costs and expenses unless substantial justification for an excess amount
exists and such excess is reasonable in the sole discretion of the majority of
independent directors of XX XXXX. In no event shall the pro rated purchase price
for any interest acquired by XX XXXX in the Project exceed the Project's pro
rated appraised value if XX XXXX'x interest is acquired from an affiliate of XX
XXXX'x advisor. Upon the mutual agreement of the parties, the percentage
interest that may be purchased by XX XXXX (or its affiliates) pursuant to this
Section 3 may exceed 5%.
5. SECURITY INTEREST; PURCHASE RIGHT, SUBROGATION; SETOFF; PLEDGE.
5.1 BHH hereby grants to XX XXXX a security interest in each
purchase agreement entered into with respect to a Project for which a
Guaranty is made by XX XXXX. BHH further agrees that it will not grant a
security interest in any such purchase agreement to any other party. If
BHH fails to acquire a Project during the period specified in the
purchase agreement for such Project and no extension is granted for such
acquisition, such failure shall constitute an event of default with
respect to such Project ("PROJECT DEFAULT"). Upon a Project Default, BHH
shall (i) transfer all of its rights under the purchase agreement with
respect to such Project to XX XXXX, and (ii) shall cooperate with XX
XXXX to obtain an extension of such purchase agreement with the seller.
In addition, XX XXXX shall have the right to exercise any other remedies
available at law or in equity or as provided for herein.
5.2 BHH hereby grants to XX XXXX a right to acquire any or
all of the tenant in common interests is any Project the subject of a
Bridge Guaranty on the basis set forth in Section 4 above at any time
after the fifth (5th) day before the related Bridge Loan would become
due by its terms or upon any default of the related Bridge Loan.
5.3 Subject to any limitations in the applicable Guaranty,
XX XXXX shall have full rights of subrogation in respect of any amounts
of the related Loan it pays to the Lender under such Guaranty.
5.4 BHH agrees that, in addition to, and without limitation
of, any right of setoff, security interest, lien or counterclaim XX XXXX
may otherwise have, XX XXXX shall be entitled, at the sole option of XX
XXXX, to offset any amounts that XX XXXX may at any time become
obligated to pay BHH or any of its direct or indirect subsidiaries,
including without limitation, organization and offering expense
reimbursements, acquisition and advisory fees, acquisition expense
reimbursements property management fees, leasing commissions, and asset
management fees (but specifically excluding commissions and dealers
manager's fees payable to Behringer Securities LP) against any
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amount payable by BHH to XX XXXX under this Agreement or pursuant to any
rights of subrogation that are not paid when due.
6. PROJECT SCHEDULE. The terms of each Guaranty made under this
Agreement shall be set forth on a Project Schedule to this Agreement in the form
attached hereto as Exhibit A, which Exhibit shall be amended as Projects are
completed or added.
7. TERM OF AGREEMENT. This Agreement shall be effective until
terminated at any time by written notice from one party to the other of such
termination. Regardless of any such termination this Agreement shall remain
effective as to any Guaranty provided prior to such termination.
8. NOTICES. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of delivery, if delivered personally to the party to whom
notice is to be given, or on the first (1st) business day after deposit, if
deposited with Federal Express or another reputable overnight courier service,
or on the third (3rd) day after mailing by first class mail, registered or
certified, postage prepaid, if mailed to the party to whom notice is given.
9. SEVERABILITY OF PROVISIONS. The provisions of this Agreement
shall be deemed severable and the invalidity or unenforceability of any one or
more of the provisions hereof shall not affect the validity and enforceability
of the other provisions hereof.
10. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Texas without regards to
principals of conflicts of laws.
11. BINDING AGREEMENT. This Agreement shall be binding on the
parties hereto, and their respective heirs, executors, personal representatives,
successors and assigns.
12. HEADINGS. All section headings in this Agreement are for
convenience of reference only and are not intended to qualify the meaning of any
section.
13. RELIANCE. No person other than the parties to this Agreement may
directly or indirectly rely upon or enforce the provisions of this Agreement,
whether as a third party beneficiary or otherwise.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire written
agreement between the parties and supersedes all prior agreements, oral or
written, including without limitation the Accommodation Agreement dated January
28, 2004 between the parties hereto, with respect to the subject matter hereof.
15. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original (including copies sent to a party by
telecopy or facsimile transmission) as against the party signing such
counterpart, but which together shall constitute one and the same instrument.
16. EXPENSES. BHH shall pay and/or reimburse upon demand all costs
of XX XXXX in connection with this Agreement, the transactions contemplated
hereby (including any costs
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associated with any pledge of assets or the placement of any letter of credit)
and any enforcement of its rights under this Agreement, including without
limitation costs of investigation of any breach hereunder and attorneys' fees
and expenses. Any amount owed by BHH to XX XXXX not paid when due hereunder
shall earn interest at the greater of the eighteen percent (18%) per annum or
the maximum amount permitted by applicable law.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, effective as of the date first written above.
BEHRINGER HARVARD REIT I, INC., a Maryland
corporation
By:
---------------------------------------
Xxxxxx X. Xxxxxxxxx, Chief Executive
Officer
BEHRINGER HARVARD HOLDINGS, LLC, a
Delaware limited liability company
By:
---------------------------------------
Xxxxxx X. Xxxxxxxxx, Chief Executive
Officer
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EXHIBIT A
PROJECT SCHEDULE
Behringer Harvard REIT I, Inc., a Maryland corporation ("XX XXXX"), and
Behringer Harvard Holdings, LLC, a Delaware limited liability company ("BHH"),
hereby agree to this Project Schedule pursuant to the Amended and Restated
Accommodation Agreement dated as of August 9, 2004 (the "ACCOMMODATION
AGREEMENT") by and between XX XXXX and BHH and with respect to
___________________________________________ (the "PROJECT"). Capitalized terms
used herein shall have the meanings given them in the Accommodation Agreement.
1. AMOUNT OF LOAN: $___________________.
2. Type of Loan ____________________.
3. LENDER: ____________________.
4. AMOUNT GUARANTEED: $___________________.
5. LOAN ORIGINATION DATE: ____________________.
6. LOAN MATURITY DATE: ____________________.
7. PURCHASE OPTION PERCENTAGE: ___________________%.
BHH hereby certifies that it has provided XX XXXX with execution draft
of the proposed Guaranty that will be utilized in the above-referenced
transaction and that said Guaranty will not be modified or amended without the
prior written approval of a majority of the members of the Board of Directors of
XX XXXX not otherwise interested in the transaction, including a majority of the
independent directors. XX XXXX hereby certifies that the Guaranty has been
approved by a majority of the members of the Board of Directors of XX XXXX not
otherwise interested in the transaction, including a majority of the independent
directors.
IN WITNESS WHEREOF, the parties have caused this Project Schedule to be
duly executed, effective as of __________________, 20___.
BEHRINGER HARVARD REIT I, INC., a Maryland
corporation
By:
---------------------------------------
Xxxxxx X. Xxxxxxxxx, Chief Executive
Officer
BEHRINGER HARVARD HOLDINGS, LLC, a
Delaware limited liability company
By:
---------------------------------------
Xxxxxx X. Xxxxxxxxx, Chief Executive
Officer
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