EXHIBIT 10.13
RECORDING REQUESTED BY, )
WHEN RECORDED MAIL TO: )
)
Behringer Harvard Enclave H LP )
0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000 )
Xxxxxx, Xxxxx 00000 )
)
)
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Above Space for Recorder's Use
TENANTS IN COMMON AGREEMENT
This TENANTS IN COMMON AGREEMENT ("Agreement") is made and effective as
of the date of recordation hereof (the "Effective Date"), by and between
Behringer Harvard Enclave S LP, a Texas limited partnership ("Behringer") and
Behringer Harvard Enclave H LP, a Texas limited partnership (the "Company")
(each of Behringer and the Company shall sometimes individually be referred to
as "Tenant in Common" and collectively as "Tenants in Common"), with reference
to the facts set forth below.
RECITALS
A. The Tenants in Common will acquire the percentage undivided
interests set forth on Exhibit "A" in certain real property and improvements, as
more particularly described in Exhibit "B" attached hereto and incorporated
herein (the "Project").
B. The Tenants in Common desire to enter into this Agreement to
provide for the orderly administration of their rights and responsibilities as
to each other and as to others and to delegate authority and responsibility for
the intended further operation and management of the Project.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
set forth below.
1. NATURE OF RELATIONSHIP BETWEEN CO-TENANTS. The Tenants in Common
shall each hold their respective interests in the Project as tenants-in-common.
The Tenants in Common do not intend by this Agreement to create a partnership or
a joint venture, but merely to set forth the terms and conditions upon which
each of them shall hold their respective interests in the Project. Neither do
the Tenants in Common wish to create a partnership or joint venture with the
Property Manager (as defined below). Each Tenant in Common hereby elects to be
excluded from the provisions of Subchapter K of Chapter 1 of the Internal
Revenue Code of 1986, as amended (the "Code"), with respect to the joint
ownership of the Project. The exclusion elected by the Tenants in Common
hereunder shall commence with the execution of this Agreement and shall be
equally applicable to all assignees of a Tenant in Common upon such assignment.
Each Tenant in Common hereby covenants and agrees that each Tenant in Common
shall report on such Tenant in Common's respective federal and state income tax
returns such Tenant in Common's respective share of items of income, gain/loss,
deduction and credits that result from holding the Project in a manner
consistent with (i) the treatment of the co-tenancy as a co-ownership of real
property (and not a partnership) for Federal and state income tax purposes and
(ii) the exclusion of the Tenants in Common from Subchapter K of Chapter 1 of
the Code, commencing with the first taxable year of such Tenant in Common that
includes the Effective Date or, for assignees of a Tenant in Common, the date of
such assignment. No Tenant in Common shall notify the Commissioner of Internal
Revenue that such Tenant in Common desires that Subchapter K of the Code apply
to the Tenants in Common and each
Tenant in Common hereby agrees to indemnify, protect, defend and hold the other
Tenants in Common free and harmless from all costs, liabilities, tax
consequences and expenses, including, without limitation, attorneys' fees, which
may result from any Tenant in Common so notifying the Commissioner in violation
of this Agreement or otherwise taking a contrary position on any tax return. The
Tenants in Common shall not file a partnership or corporate tax return, conduct
business under a common name, execute an agreement identifying any or all of the
Tenants in Common as partners, shareholders, or members of a business entity, or
otherwise hold themselves out as a partnership or other form of business entity.
Except as expressly provided herein, no Tenant in Common is authorized to act as
agent for, to act on behalf of, or to do any act that will bind any other Tenant
in Common or to incur any obligations with respect to the Project.
2. MANAGEMENT.
2.1 Concurrently with the acquisition of the Project, the
Tenants in Common will enter into a Property and Asset Management Agreement (the
"Management Agreement") with Behringer Harvard TIC Management Services LP, a
Texas limited partnership ("Property Manager"). Pursuant to the Management
Agreement, the Property Manager shall be the sole and exclusive manager of the
Project, interface with the owner and holder of any first lien deed of trust
encumbering the Project during the term of the Management Agreement and act as
the agent of the Tenants in Common with respect to the management, operation,
maintenance and leasing of the Project during the term of the Management
Agreement. A copy of the Management Agreement is attached hereto as Exhibit "C"
and the terms, covenants and conditions of the Management Agreement are
incorporated herein as if set forth in full. Neither (a) the death, retirement,
removal, withdrawal, termination or resignation of the Property Manager, (b) any
assignment for the benefit of creditors by or the adjudication of bankruptcy or
incompetency of the Property Manager nor (c) the termination of the Management
Agreement shall cause the termination of this Agreement and this Agreement shall
remain in full force and effect notwithstanding any such events.
2.2 UNANIMOUS CONSENT OF THE TENANTS IN COMMON. The consent
of all of the Tenants in Common shall be required with respect to any sale,
exchange, lease or release of all or a portion of the Project, any loans or
modifications of any loans secured by the Project, the approval of any property
management agreement or any extension, renewal or modification thereof. Whenever
in this Agreement the consent or approval of the Tenants in Common is required
or otherwise requested, with respect to any (i) sale or exchange of all or a
portion of the Project or (ii) loan or modification of any loan secured by the
Project, the Tenants in Common shall have fifteen (15) days after the date the
request for such consent or approval is received pursuant to Section 10.8 to
approve or disapprove of the matter. Whenever in this Agreement the consent or
approval of the Tenants in Common is required or otherwise requested, with
respect to any modification or renewal of the any property management agreement,
the Tenants in Common shall have thirty (30) days after the date the request for
consent or approval is received pursuant to Section 10.8 to the Tenants in
Common for their approval or disapproval of the matter. Whenever in this
Agreement the consent or approval of the Tenants in Common is required or
otherwise requested, with respect to any lease or release of all or a portion of
the Project, the Tenants in Common shall have five (5) days after the date the
request for consent or approval is received pursuant to Section 10.8 to the
Tenants in Common for their approval or disapproval of the matter. The Tenants
in Common agree to use their best efforts to respond to any request for consent
or approval. If a Tenant in Common does not disapprove of such matter within the
specified response period described above, the Tenant in Common shall be deemed
to have approved the matter. By execution hereof, the Tenants in Common confirm
their approval of the Property Management Agreement and that certain loan made
(or to be made immediately after the execution of this Agreement) by State Farm
Life Insurance Company (together with its successors and/or assigns, the
"Lender") secured by, among other things, a mortgage or deed of trust ("Deed of
Trust") on the Project (the "State Farm Loan").
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2.3 MAJORITY CONSENT OF THE TENANTS IN COMMON. Whenever the
approval or consent of the Tenants in Common is required with respect to any
items, other than those set forth in Section 2.2, the approval or consent of the
Tenants in Common holding more than 50% of the percentage interest in the
Project shall be required to approve such action. The Tenants in Common agree to
use their best efforts to respond to any request for consent or approval. If a
Tenant in Common does not disapprove of such matter within the specified
response period described above, the Tenant in Common shall be deemed to have
approved the matter.
3. INCOME AND LIABILITIES. Except as otherwise provided herein and
in the Management Agreement, all benefits and obligations of the ownership of
the Project, including, without limitation, income, revenue, operating expenses,
proceeds from sale or refinance or condemnation awards shall be shared by the
Tenants in Common in proportion to their respective undivided interests in the
Project. Notwithstanding the foregoing, (a) each Tenant in Common shall be
responsible for all real estate and personal property taxes, general and special
real property assessments and other like charges (collectively "Taxes")
attributable to its undivided interest in the Project, (b) fees under the
Management Agreement shall be paid by each of the Tenants in Common as provided
in the Management Agreement and (c) expenses or other costs that are not applied
to the Tenants in Common pro rata based on their interests in the Project shall
be separately charged to each Tenant in Common. The Tenants in Common shall
receive, within 3 months of receipt by the Property Manager, all cash from
operations of the Project after payment of expenses and debt service, in
proportion to their respective undivided interests in the Project, except for
such amounts as may be determined by the Property Manager pursuant to the
Management Agreement to be retained for reserves or improvements
4. CO-TENANT'S OBLIGATIONS. The Tenants in Common each agree to
perform such acts as may be reasonably necessary to carry out the terms and
conditions of this Agreement, including, without limitation:
4.1 DOCUMENTS. The Tenants in Common shall execute any and
all documents required in connection with a sale or refinancing of the Project
in accordance with Section 5 and such additional documents as may be required
under this Agreement or may be reasonably required to effect the intent of the
Tenants in Common with respect to the Project or any loans encumbering the
Project.
4.2 ADDITIONAL FUNDS. Each Tenant in Common will be
responsible for a pro rata share (based on its undivided interest or as
otherwise provided with respect to the fees under the Management Agreement, or
other items specifically applicable to individual Tenants in Common) of any
future cash needed in connection with the ownership, operation, management and
maintenance of the Project as determined by the Property Manager pursuant to the
Management Agreement. Without limiting the foregoing, each Tenant in Common
agrees that if any loan for the Project provides for recourse liability to the
Company or any affiliate and non-recourse liability to one or more of the other
Tenants in Common, and if the Company or any affiliate pays more than its pro
rata share of the liability related to the loan (as compared to its ownership
interest) as a result of such recourse liability ("Excess Payment"), the Tenants
in Common agree to reimburse the Company or any affiliate for the Tenants in
Common's pro rata share of such Excess Payment; provided, however, that the
Property Manager has agreed to indemnify the Tenants in Common in Section 13.9.2
of the Management Agreement to the extent a Tenant in Common becomes liable to
the lender as a result of certain actions of the Property Manager. In addition,
each Tenant in Common shall be liable for, and indemnify and hold harmless, the
other Tenants in Common and their affiliates as a result of any action or
inaction by such Tenant in Common that causes any recourse liability or damages
to the Tenants in Common or their affiliates or the Project with respect to any
loan. To the extent any Tenant in Common fails to advance any funds pursuant to
this Section within fifteen (15) days after the Property Manager or the Company
delivers notice that such additional funds are required, any other Tenant(s) in
Common may pay such amount. The nonpaying
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Tenant in Common shall reimburse the paying Tenant(s) in Common within 30 days
the amount of any such payments plus interest thereon at the rate of ten percent
(10%) per annum (but not more than the maximum rate allowed by law) until paid.
In the event any Tenant in Common defaults under the preceding sentence, the
Property Manager is hereby authorized to pay the Tenant(s) in Common entitled to
reimbursement and interest the amounts due out of future cash from operations or
from the sale or refinancing of the Project or other distributions pursuant to
the Management Agreement from the defaulting Tenant's in Common share of
proceeds. The remedies against a nonpaying Tenant in Common provided for herein
are in addition to any other remedies that may otherwise be available,
including, but not limited to, the right to obtain a lien against the undivided
interest in the Project of the nonpaying Tenant in Common to the extent allowed
by law. Notwithstanding the preceding provisions, however, it is expressly
understood and agreed that all such rights to, or to obtain, reimbursement are
subject and subordinate in all respects to the rights of any lender.
5. SALE OR ENCUMBRANCE OF PROJECT.
5.1 SALE. In accordance with the Management Agreement, the
Property Manager shall be entitled to seek and negotiate the terms of (a)
permanent and other financing for the Project, including loans secured by the
Project, (b) the sale of the Project (or portions thereof) to third-party
purchasers (a "Sale") and (c) any lease of all or any portion of the Project.
All of the items described in (a), (b) and (c) shall require the unanimous
approval of the Tenants in Common, which approval shall be as set forth in
Section 2.2. Any such written request of the Property Manager shall be
accompanied by a copy of a bona fide offer to purchase, a loan commitment letter
setting forth all the material terms of the transaction or the principal lease
terms.
5.2 To the extent necessary, the proceeds of a Sale shall
(i) first, be, used to pay in full any loans encumbering title to the Project
(ii) second, be used to pay all outstanding costs and expenses incurred in
connection with the holding, marketing and sale of the Project and (iii) third,
any proceeds of a Sale remaining after payment of the items set forth above
shall be paid as provided in Section 3.
6. POSSESSION. The Tenants in Common intend to lease the Project at
all times and no Tenant in Common shall have the right to occupy or use the
Project at any time during the term of this Agreement.
7. TRANSFER OR ENCUMBRANCE.
7.1 Each Tenant in Common may sell, transfer, convey,
pledge, encumber or hypothecate its interest in the Project or any part thereof
(each a "Transfer"), provided that any transferee shall take such interest
subject to this Agreement and the Management Agreement, to the extent the
Management Agreement is in effect at the time of the Transfer, and the
transferor and transferee shall execute and cause to be recorded an assignment
and assumption agreement ("Assumption Agreement") whereby (i) the transferor
assigns to the transferee all of its right, title and interest in and to this
Agreement and the Management Agreement; and (ii) the transferee assumes and
agrees to perform faithfully and to be bound by all of the terms, covenants,
conditions, provisions and agreements of this Agreement and the Management
Agreement with respect to the undivided interest to be transferred. Upon
execution and recordation of such Assumption Agreement the transferor shall be
relieved of all liability under this Agreement accruing after the date of
recordation of the Assumption Agreement and the transferee shall become a party
to this Agreement without further action by the other Tenants in Common. The
Tenants in Common acknowledge that Xxxxxxxxx is selling undivided interests in
the Project pursuant to the Confidential Private Placement Memorandum of Tenant
in Common Interests in Enclave on the
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Lake dated March 1, 2004. Each Tenant in Common shall be responsible for
compliance with applicable securities laws with respect to any sale of its
interest in the Project.
7.2 RIGHT OF FIRST OFFER. If a Tenant in Common (a "Selling
Tenant") desires to sell its interest in the Project, then such Selling Tenant
shall first allow the Company or its affiliates or assigns, and second the
Tenants in Common other than the Selling Tenant (each an "Offeror" and
collectively the "Offerors") to make an offer to purchase the Selling Tenant's
interest pursuant to the terms and conditions set forth in this Section 7.2. If
a Selling Tenant desires to sell its interest in the Project, such Selling
Tenant shall provide written notice (the "Notice") of its intent to sell its
interest to each Offeror. The Company or its affiliates or its assigns shall
first have the right, within fifteen (15) days after receipt of such Notice
pursuant to Section 10.8, to deliver a written offer to the Selling Tenant to
purchase the Selling Tenant's interest in the Project. If the Selling Tenant
does not accept an offer from the Company or its affiliates or it assigns within
fifteen (15) days after receipt of the Notice pursuant to Section 10.8 then the
Tenants in Common other than the Selling Tenant shall have the right within the
next fifteen (15) days after the end of the first fifteen (15) day period, to
deliver an offer to the Selling Tenant to purchase the Selling Tenants interest
in the Project for a price that is greater than the price offered by the Company
or its affiliates or assigns. If the Selling Tenant does not accept the offer
from either the Company or its affiliates or assigns or the Tenants in Common
other than the Selling Tenant, then the Selling Tenant shall be free to sell its
interest in the Project to a purchaser other than an Offeror, provided that the
sale of the Selling Tenant's interest to a purchaser (other than an Offeror) is
for a price greater than any purchase price offered by an Offeror pursuant to
this Section 7.2 and is in compliance with the terms of any loan encumbering the
Project.
7.3 PURCHASE OPTION. The Tenants in Common agree that the
Company or any of its affiliates or their assigns shall have the right, while
this Agreement remains in effect, to purchase a Dissenting Tenant in Common's
(as defined below) interest in the Project as set forth in this Section 7.3. A
Dissenting Tenant in Common shall mean a Tenant in Common who votes against or
fails to consent to any item that requires the unanimous approval or consent of
the Tenants in Common pursuant to the terms of this Agreement when at least 50%
of the Tenants in Common have voted or provided consent for such action. In
order to execute this option, the Company or its affiliate shall provide written
notice of its election to exercise this option to the Dissenting Tenant in
Common at any time prior to 45 days after the approval period for such vote or
consent has terminated as provided in any request for such vote or consent. In
the event that the Company or its affiliates or their assigns exercise this
purchase option, all of the Dissenting Tenant in Common's right, title and
interest in its Interest shall transfer to the Company or its affiliates or
their assigns as of the date the election to exercise the purchase option is
received by the Dissenting Tenant in Common pursuant to Section 10.8, and the
Company shall own all right, title and interest to such Interest as of such
date; provided, however, that the Company or its affiliates or their assigns may
delay the transfer of the Interest for any length of time as specified in its
election to exercise the purchase option up and through the payment date and
provided, further, that the transfer, and effective date of such transfer, shall
be subject to any consent of the Lender, if required. The purchase price of the
Dissenting Tenants in Common interest shall be equal to the Fair Market Value of
the Interest (as defined in Section 8 of this Agreement) of the Dissenting
Tenant in Common. Such purchase price sale shall be paid by the Company or its
affiliates or their assigns within 30 days of the determination of the Fair
Market Value of the Project, and the obligation to pay the purchase price shall
bear interest at the short term Applicable Federal Rate from the date of
transfer through the payment date. The purchaser and seller shall begin
negotiation of the Fair Market Value of the Project within fifteen (15) days
after the date of the written notice from the Company or assignee and shall
follow the procedures set forth in Section 8. The allocation of the costs and
liabilities shall be subject to the terms set forth in Section 8.
7.4 DEFAULTING TENANT IN COMMON. The Tenants in Common agree
that the Company or any of its affiliates or their assigns shall have the right,
while this Agreement remains in
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effect, to purchase a Defaulting Tenant in Common's (as defined below) interest
in the Project as set forth in this Section 7.4. A Defaulting Tenant in Common
shall mean a Tenant in Common who is in default under any loan documents
attributable to any loan secured by the Project, the Management Agreement or
this Agreement. In order to execute this option, the Company or its affiliate
shall provide written notice of its election to exercise this option to the
Defaulting Tenant in Common during the period such Defaulting Tenant in Common
is in default or for a period of 30 days thereafter to the Company of such
default. In the event that the Company or its affiliates or their assigns
exercise this purchase option, all of the Defaulting Tenant in Common's right,
title and interest in its Interest shall transfer to the Company or its
affiliates or their assigns as of the date the election to exercise the purchase
option is received by the Defaulting Tenant in Common pursuant to Section 10.8,
and the Company shall own all right, title and interest to such Interest as of
such date; provided, however, that the Company or its affiliates or their
assigns may delay the transfer of the Interest for any length of time as
specified in its election to exercise the purchase option up and through the
payment date and provided, further, that the transfer, and effective date of
such transfer, shall be subject to any consent of the Lender, if required. The
purchase price of the Defaulting Tenants in Common interest shall be equal to
the Fair Market Value of the Interest (as defined in Section 8 of this
Agreement) of the Defaulting Tenant in Common. Such purchase price sale shall be
paid by the Company or its affiliates or their assigns within 30 days of the
determination of the Fair Market Value of the Project, and the obligation to pay
the purchase price shall bear interest at the short term Applicable Federal Rate
from the date of transfer through the payment date. The purchaser and seller
shall begin negotiation of the Fair Market Value of the Project within fifteen
(15) days after the date of the written notice from the Company or assignee and
shall follow the procedures set forth in Section 8. The allocation of the costs
and liabilities shall be subject to the terms set forth in Section 8. In the
event a Defaulting Tenant in Common's Interest is purchased pursuant to this
Section 7.4 and the Defaulting Tenant in Common is liable to Lender for Lender's
losses as a result of the Defaulting Tenant in Common's violation of a
non-recourse carve-out under the Loan documents, the Defaulting Tenant in Common
hereby authorizes the Company to withhold from the payment of the purchase price
an amount equal to such Lender losses and to pay such amounts directly to Lender
on behalf of the Defaulting Tenant in Common.
7.5 PURCHASE OPTION BY THE COMPANY. In the event Behringer
Harvard REIT I, Inc., ("XX XXXX") becomes the member of the Company, the Company
shall have the option, but not the obligation, to purchase all of the Tenants in
Common's undivided interests in the Project as set forth in this Section 7.5. In
order to execute this option, the Company shall provide written notice of its
election to exercise this option to the Tenants in Common no sooner than 3
months prior to the end of the State Farm Loan term and no later than 30 days
prior to the end of the end of the State Farm Loan. The purchase price of each
Tenant in Common's interests shall be equal to the Fair Market Value of the
Interest (as defined in Section 8 of this Agreement) of such Tenant in Common.
Such purchase price shall be paid by the Company within 30 days of the
determination of the Fair Market Value of the Project, and the obligation to pay
the purchase price shall bear interest at the short term Applicable Federal Rate
from the date of transfer through the payment date. The Company may, in its sole
and absolute discretion, offer the Tenants in Common the option to exchange
their Interest for partnership interests in the XX XXXX umbrella partnership at
an amount equal to the Fair Market Value of the Interest and at then current
fair market value of the XX XXXX shares. In the event the Company does not offer
an exchange of XX XXXX umbrella partnership shares or in the event the Tenant in
Common declines such offer of XX XXXX umbrella partnership shares, the Tenant in
Common shall receive cash in amount equal to the Fair Market Value of such
Tenant in Common's Interest. The purchaser and seller shall begin negotiation of
the Fair Market Value of the Project within fifteen (15) days after the date of
the written notice from the Company and shall follow the procedures set forth in
Section 8. The allocation of the costs and liabilities shall be subject to the
terms set forth in Section 8.
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8. RIGHT OF PARTITION. The Tenants in Common agree that any Tenant
in Common and any of its successors-in-interests shall have the right, while
this Agreement remains in effect, to have the Project partitioned, and to file a
complaint or institute any proceeding at law or in equity to have the Project
partitioned in accordance with and to the extent provided by applicable law. The
Tenants in Common acknowledge that partition of the Project may result in a
forced sale by all of the Tenants in Common. To avoid the inequity of a forced
sale and the potential adverse effect on the investment by the Tenants in
Common, the Tenants in Common agree that, as a condition precedent to filing a
partition action, the Tenant in Common filing such action ("Seller") shall first
make a written offer ("Offer") to sell its undivided interest first to Behringer
or its affiliates or assigns and second to the other Tenants in Common at a
price equal to the Fair Market Value of the Interest (as defined below) of
Seller's undivided interest. If Xxxxxxxxx does not accept such Offer, then the
other Tenants in Common shall be entitled to purchase a portion of the Seller's
interest in proportion to their undivided interest in the Project. If any Tenant
in Common elects not to purchase his or her share of the Seller's interest, the
other Tenants in Common shall be entitled to purchase additional interests based
on their undivided interest in the Project; "Fair Market Value of the Interest"
shall mean the fair market value of Seller's undivided interest (determined by
multiplying the partitioning Tenant in Common's percentage interest in the
Project on the date of the Offer by the Fair Market Value of the Project reduced
by (i) liabilities secured by the Project or liabilities taken subject to, (ii)
Seller's proportionate share of any fee or other amount that would be payable to
the Property Manager or any affiliates (including any real estate commission)
under the Management Agreement upon the sale of the Project at a price equal to
the Fair Market Value of the Project and (iii) selling, prepayment or other
costs that would apply in the event the Project was sold on the date of the
Offer) as determined in accordance with the procedures set forth below,
including any unpaid advanced made pursuant to Section 4.2 on behalf of Seller.
Xxxxxxxxx shall have twenty (20) days after delivery of the Offer to accept the
Offer. If Xxxxxxxxx does not accept the offer within such twenty (20) day
period, the other Tenants in Common shall have the right within the next twenty
(20) days to accept the Offer. If Behringer or any or all of the other Tenants
in Common ("Purchaser") accept the Offer, Seller and Purchaser shall commence
negotiation of the Fair Market Value of the Project within fifteen (15) days
after the Offer is accepted. If the parties do not agree, after good faith
negotiations, within ten (10) days, then each party shall submit to the other a
proposal containing the Fair Market Value of the Project the submitting party
believes to be correct ("Proposal"). If either party fails to timely submit a
Proposal, the other party's submitted proposal shall determine the Fair Market
Value of the Project. If both parties timely submit Proposals, then the Fair
Market Value of the Project shall be determined by final and binding arbitration
in accordance with the procedures set forth below. The parties shall meet within
seven (7) days after delivery of the last Proposal and make a good faith attempt
to mutually appoint a certified MAI real estate appraiser as an arbitrator who
shall have been active full-time over the previous five (5) years in the
appraisal of comparable properties located in the county in which the Project is
located to act as the arbitrator. If the parties are unable to agree upon a
single arbitrator, then the parties each shall, within five (5) days after the
meeting, select an arbitrator that meets the foregoing qualifications. The two
(2) arbitrators so appointed shall, within fifteen (15) days after their
appointment, appoint a third arbitrator meeting the foregoing qualifications.
The determination of the arbitrator(s) shall be limited solely to the issue of
whether Seller's or Purchaser's Proposal most closely approximates the Project's
fair market value. The decision of the single arbitrator or of the arbitrator(s)
shall be made within thirty (30) days after the appointment of a single
arbitrator or the third arbitrator, as applicable. The arbitrator(s) shall have
no authority to create an independent structure of fair market value or
prescribe or change any or several of the components or the structure thereof;
the sole decision to be made shall be which of the parties' Proposals shall
determine the Fair Market Value of the Project. The decision of the single
arbitrator or majority of the three (3) arbitrators shall be binding upon the
parties. If either party fails to appoint an arbitrator within the time period
specified above, the arbitrator appointed by one of them shall reach a decision
which shall be binding upon the parties. The cost of the arbitrators shall be
paid equally by Seller and Purchaser. The arbitration shall be conducted in
Dallas County, Texas, in accordance with the Texas Arbitration Act, ss. 171.001
et. Seq. of the Texas Civil
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Practice and Remedies Code, as modified by this Agreement. The parties agree
that Federal Arbitration Act, Title 9 of the United States Code, shall not apply
to any arbitration hereunder. The parties shall have no discovery rights in
connection with the arbitration. The decision of the arbitrator(s) may be
submitted to any court of competent jurisdiction by the party designated in the
decision. The party designated in the decision shall submit to the superior
court a form of judgment incorporating the decision of the arbitrator(s), and
such judgment, when signed by a judge of the superior court, shall become final
for all purposes and shall be entered by the clerk of the court on the judgment
roll of the court. If one party refuses to arbitrate an arbitrable dispute and
the party demanding arbitration obtains a court order directing the other party
to arbitrate, the party demanding arbitration shall be entitled to all of its
reasonable attorneys' fees and costs in obtaining such order, regardless of
which party ultimately prevails in the matter. In addition, if one party refuses
arbitration and is subsequently ordered by a court to arbitrate, such party
shall also pay all of the arbitration costs and expenses. By executing this
Agreement each Tenant in Common is agreeing to have any dispute arising out of
the matters included in the arbitration of disputes provision decided by neutral
arbitration as provided by Texas law and each Tenant in Common is giving up its
rights might possess to have the dispute litigated in a court or jury trial. By
executing this Agreement you are giving up your judicial rights to discovery and
appeal. If a Tenant in Common refuses to submit to arbitration after agreeing to
this provision, the Tenant in Common may be compelled to arbitrate under the
authority of the Texas Arbitration Act, ss. 171.001 et. Seq. of the Texas Civil
Practice and Remedies Code. Each Tenant in Common's agreement to Tenant in
Common arbitration provision is voluntary. The closing of the purchase of
Seller's interest shall occur at a mutually agreeable title company where the
Project is located within 30 days from the date a Fair Market Value of the
Project is determined, whether by agreement or arbitration. Closing costs and
prorations shall be allocated as is standard practice where the Project is
located. The Purchaser shall take Seller's interest subject to the liabilities
included in the determination of Fair Market Value of the Project secured by the
Project and the Management Agreement which may include unpaid fees due to the
Property Manager. In the event a portioning Tenant in Common's Interest is
purchase pursuant to this Section 8 and the partitioning Tenant in Common is
liable to Lender for Lender's losses as a result of the portioning Tenant in
Common's violation of a non-recourse carve-out under the Loan documents, the
partitioning Tenant in Common hereby authorizes the Company to withhold from the
payment of the purchase price an amount equal to such Lender losses and to pay
such amounts directly to Lender on behalf of the portioning Tenant in Common.
9. BANKRUPTCY OPTION.
9.1 OPTION. If, during the term of this Agreement, a Tenant
in Common is Bankrupt, Behringer and/or an affiliate or assignee shall have the
right, to be exercised by written notice ("Bankruptcy Call Notice") to the
Bankrupt Tenant in Common, to purchase all of the Bankrupt Tenant in Common's
interest in the Project. Upon receipt of the Bankruptcy Call Notice, the
Bankrupt Tenant in Common shall be obligated to provide Behringer and/or its
affiliate or in the event that Behringer and/or an affiliate does not elect to
exercise the option within 20 days of the receipt of the Bankruptcy Call Notice,
the other Tenants in Common an option to purchase the Bankrupt Tenant in
Common's entire interest in the Project for the Fair Market Value of the
Bankrupt Tenant in Common's interest in the Project as determined under Section
8. Such purchase and sale shall be closed within 30 days of the determination of
the Fair Market Value of the Project. The allocation of the costs and
liabilities shall be subject to the terms set forth in Section 8. In the event a
bankrupt Tenant in Common's Interest is purchased pursuant to this Section 9.1
and the bankrupt Tenant in Common is liable to Lender for Lender's losses as a
result of the bankrupt Tenant in Common's violation of a non-recourse carve-out
under the Loan documents, the bankrupt Tenant in Common hereby authorizes the
Company to withhold from the payment of the purchase price funds in an amount
equal to such Lender losses and to pay such amounts directly to Lender on behalf
of the bankrupt Tenant in Common.
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9.2 BANKRUPT. For purposes of this Agreement, a Tenant in
Common shall be considered Bankrupt if such Tenant in Common: (1) is unable to
pay debts as they come due, including any debt associated with the Project; (2)
admits in writing to his or her inability to pay debts as they due, including
any debt associated with the Project; (3) makes a general assignment for the
benefit of creditors; (4) files any petition or answer seeking to adjudicate it
bankrupt or insolvent; (5) seeks liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief or composition of its debts; (6)
seeks, consents to or acquiesces in the entry of an order for relief or the
appointment of a receiver, trustee, custodian, or other similar official or for
any substantial part of its property; (7) the entry of an order for relief or
approving a petition for relief or reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future bankruptcy, insolvency or similar statute, law or regulation or the
filing of any such petition that is not dismissed in 90 days; (8) entry of an
order appointing a trustee, custodian, receiver or liquidator of all or any
substantial portion of its property, which order is not dismissed within 60 days
or (9) is considered bankrupt under the loan documents attributable to any loan
which is secured by the Project.
9.3 RIGHT OF FIRST REFUSAL. If, under federal bankruptcy
law, similar debtor relief laws, or other laws affecting the Project, the option
to purchase granted under this Section 9 is voided or declared unenforceable,
Behringer and/or an affiliate shall have a right of first refusal to buy any
interest in the Project of a Bankrupt Tenant in Common in the event of any
proposed transfer by a trustee, receiver, conservator, liquidator, guardian, or
other transferee. Such right of first refusal shall provide that Xxxxxxxxx
and/or its affiliate may purchase the Bankrupt Tenant in Common's interest in
the Project at the same price and on the same terms as such Project is proposed
to be sold by such trustee, receiver, conservator, liquidator, guardian or other
transferee.
10. GENERAL PROVISIONS.
10.1 MUTUALITY, RECIPROCITY, RUNS WITH THE LAND. All
provisions, conditions, covenants, restrictions, obligations and agreements
contained herein or in the Management Agreement are made for the direct, mutual
and reciprocal benefit of each and every part of the Project; shall be binding
upon and shall inure to the benefit of each of the Tenants in Common and their
respective heirs, executors, administrators, successors, assigns, devisees,
representatives, lessees and all other persons acquiring any undivided interest
in the Project or any portion thereof whether by operation of law or any manner
whatsoever (collectively, "Successors"); shall create mutual, equitable
servitudes and burdens upon the undivided interest in the Project of each Tenant
in Common in favor of the interest of every other Tenant in Common; shall create
reciprocal rights and obligations between the respective Tenants in Common,
their interests in the Project, and their Successors; and shall, as to each of
the Tenants in Common and their Successors operate as covenants running with the
land, for the benefit of the other Tenants in Common pursuant to applicable law.
It is expressly agreed that each covenant contained herein or in the Management
Agreement (i) is for the benefit of and is a burden upon the undivided interests
in the Project of each of the Tenants in Common, (ii) runs with the undivided
interest in the Project of each Tenant in Common and (iii) benefits and is
binding upon each Successor owner during its ownership of any undivided interest
in the Project, and each owner having any interest therein derived in any manner
through any Tenant in Common or Successor. Every person or entity who now or
hereafter owns or acquires any right, title or interest in or to any portion of
the Project is and shall be conclusively deemed to have consented and agreed to
every restriction, provision, covenant, right and limitation contained herein or
in the Management Agreement, whether or not such person or entity expressly
assumes such obligations or whether or not any reference to this Agreement or
the Management Agreement is contained in the instrument conveying such interest
in the Project to such person or entity. The Tenants in Common agree that any
Successor shall become a party to this Agreement and the Management Agreement
upon acquisition of an undivided interest in the Project as if such person was a
Tenant in Common initially executing this Agreement.
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10.2 BINDING ARBITRATION. Any controversy between the parties
hereto arising out of or related to this Agreement or the breach thereof or an
investment in the tenant in common interests in the Project shall be settled by
arbitration in Dallas County, Texas, in accordance with the rules of The
American Arbitration Association, and judgment entered upon the award rendered
may be enforced by appropriate judicial action. The arbitration panel shall
consist of one member, which shall be the mediator if mediation has occurred or
shall be a person agreed to by each party to the dispute within 30 days
following notice by one party that he or she desires that a matter be
arbitrated. If there was no mediation and the parties are unable within such 30
day period to agree upon an arbitrator, then the panel shall be one arbitrator
selected by the Houston office of The American Arbitration Association, which
arbitrator shall be experienced in the area of real estate and limited liability
companies and who shall be knowledgeable with respect to the subject matter area
of the dispute. The losing party shall bear any fees and expenses of the
arbitrator, other tribunal fees and expenses, reasonable attorneys' fees of both
parties, any costs of producing witnesses and any other reasonable costs or
expenses incurred by the losing party or the prevailing party or such costs
shall be allocated by the arbitrator. The arbitration panel shall render a
decision within 30 days following the close of presentation by the parties of
their cases and any rebuttal. The parties shall agree within 30 days following
selection of the arbitrator to any prehearing procedures or further procedures
necessary for the arbitration to proceed, including interrogatories or other
discovery; provided, in any event each Tenant in Common shall be entitled to
discovery in accordance with the Texas Arbitration Act, ss. 171.001 et. Seq. of
the Texas Civil Practice and Remedies Code.
10.3 ATTORNEYS' FEES. If any action or proceeding is
instituted between all or any of the Tenants in Common arising from or related
to or with this Agreement, the Tenant in Common or Tenants in Common prevailing
in such action or proceeding shall be entitled to recover from the other Tenant
in Common or Tenants in Common all of its or their costs of action or
proceeding, including, without limitation, attorneys' fees and costs as fixed by
the court or arbitrator therein.
10.4 ENTIRE AGREEMENT. This Agreement, together with the
Management Agreement, constitutes the entire agreement between the parties
hereto pertaining to the subject matter hereof and all prior and contemporaneous
agreements, representations, negotiations and understandings of the parties
hereto, oral or written, are hereby superseded and merged herein.
10.5 GOVERNING LAW. This Agreement shall be governed by and
construed under the internal laws of the State of Texas without regard to choice
of law rules.
10.6 VENUE. Any action relating to or arising out of this
Agreement shall be brought only in a court of competent jurisdiction located in
Dallas, Texas.
10.7 MODIFICATION. No modification, waiver, amendment,
discharge or change of this Agreement shall be valid unless the same is in
writing and signed by the party against which the enforcement of such
modification, waiver, amendment, discharge or change is or may be sought. No act
of any Tenant in Common shall be construed to be a waiver of any provision of
this Agreement, unless such waiver is in writing and signed by the Tenant in
Common affected. Any Tenant in Common hereto may specifically waive any breach
of this Agreement by any other Tenant in Common, but no such waiver shall
constitute a continuing waiver of similar or other breaches.
10.8 NOTICE AND PAYMENTS. Any notice to be given or other
document or payment to be delivered by any party to any other party hereunder
may be delivered in person, or may be deposited in the United States mail, with
postage prepaid, or by Federal Express or other similar overnight delivery
service, and addressed to the party for whom intended, as follows:
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To the Tenants in Common at:
c/o Behringer Harvard Enclave H LP
0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
With a copy to the Tenants in Common at the addresses specified
in Exhibit "A" hereto.
Any party hereto may from time to time, by written notice to the others,
designate a different address which shall be substituted for the one above
specified. Unless otherwise specifically provided for herein, all notices,
payments, demands or other communications given hereunder shall be in writing
and shall be deemed to have been duly given and received (i) upon personal
delivery, or (ii) as of the third business day after mailing by United States
registered or certified mail, postage prepaid, addressed as set forth above, or
(iii) the immediately succeeding business day after deposit with Federal Express
or other similar overnight delivery system.
10.9 SUCCESSORS AND ASSIGNS. All provisions of this Agreement
shall inure to the benefit of and shall be binding upon the
successors-in-interest, assigns, and legal representatives of the parties
hereto. Any assignee of a Tenant in Common shall be considered a Tenant in
Common.
10.10 TERM. This Agreement shall commence as of the date of
recordation and shall terminate at such time as the Tenants in Common or their
successors-in-interest or assigns no longer own the Project as
tenants-in-common. In no event shall this Agreement continue beyond December 31,
2025. The bankruptcy, death, dissolution, liquidation, termination, incapacity
or incompetency of a Tenant in Common shall not cause the termination of this
Agreement.
10.11 WAIVERS. No act of any Tenant in Common shall be
construed to be a waiver of any provision of this Agreement, unless such waiver
is in writing and signed by the Tenant in Common affected. Any Tenant in Common
hereto may specifically waive any breach of this Agreement by any other Tenant
in Common, but no such waiver shall constitute a continuing waiver of similar or
other breaches.
10.12 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which, when taken together, shall be deemed one fully
executed original.
10.13 SEVERABILITY. If any portion of this Agreement shall
become illegal, null or void or against public policy, for any reason, or shall
be held by any court of competent jurisdiction to be illegal, null or void or
against public policy, the remaining portions of this Agreement shall not be
affected thereby and shall remain in full force and effect to the fullest extent
permissible by law.
10.14 APPLICABLE SECURITIES LAWS. NEITHER THE SECURITIES AND
EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR
DISAPPROVED THE SECURITIES OFFERED HEREBY OR PASSED UPON THE ACCURACY OR
ADEQUACY OF ANY DISCLOSURE MADE IN CONNECTION THIS OFFERING. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE. THE SECURITIES OFFERED HEREBY HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR
EXEMPTION THEREFROM.
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10.15 TIME IS OF THE ESSENCE. Time is of the essence of each
and every provision of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
TENANTS IN COMMON:
BEHRINGER HARVARD ENCLAVE H LP, a Texas
limited partnership
By: Behringer Harvard Enclave H GP, LLC, its
General Partner
By: /s/ Xxxxxx X. Xxxxxxx, III
------------------------------------------
Xxxxxx X. Xxxxxxx, III, Secretary
BEHRINGER HARVARD ENCLAVE S LP, a Texas
limited partnership
By: Behringer Harvard Enclave S GP, LLC, its
General Partner
By: /s/ Xxxxxx X. Xxxxxxx, III
------------------------------------------
Xxxxxx X. Xxxxxxx, III, Secretary
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STATE OF TEXAS )
) ss:
COUNTY OF DALLAS )
On April 12, 2004, before me, Xxxxxxxx Xxxxxxxx, personally appeared
Xxxxxx X. Xxxxxxx, III, Secretary of Behringer Harvard Enclave H GP, LLC,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxxxx Xxxxxxxx
---------------------------------------
Notary Public (Signature)
STATE OF TEXAS )
) ss:
COUNTY OF DALLAS )
On April 12, 2004, before me, Xxxxxxxx Xxxxxxxx, personally appeared
Xxxxxx X. Xxxxxxx, III, Secretary of Behringer Harvard Enclave S GP, LLC,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
/s/ Xxxxxxxx Xxxxxxxx
---------------------------------------
Notary Public (Signature)
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