RECORDING REQUESTED BY, )
WHEN RECORDED MAIL TO: )
Behringer Harvard Xxxxx H, LLC )
00000 Xxxxxx Xxxxxxx, Xxxxx 000 )
Xxxxxxx, 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 among Behringer
Harvard Xxxxx H, LLC, a Delaware limited liability company (the "Company"), and
the other Tenants in Common set forth on Schedule A attached hereto (each of the
Company and the other Tenants in Common 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", tenant in common interests in the Project shall be
referred to herein as "Interests").
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 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. 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
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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 MANAGEMENT AGREEMENT. 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.
2.2.1 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 secured by the Project ("Loan") or
modifications thereof, 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, 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 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 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 Management Agreement and that certain Loan made (or to be
made immediately after the execution of this Agreement) by Citigroup Global
Markets Realty Corp.
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(together with its successors and/or assigns, "Citigroup") secured by, among
other things, a mortgage or deed of trust ("Deed of Trust") on the Project (the
"Citigroup Loan").
2.2.2 The consent of 50% of the Tenants in Common
shall be required for the approval of the annual capital and operating budget
("Budget") for the promotion, operation, leasing, repair, maintenance and
improvement of the Project for each calendar year. The Property Manager shall
prepare the Budget. The Budget for the initial calendar year is attached hereto
as Exhibit "C" to the Management Agreement and is hereby approved by each Tenant
in Common. The Property Manager shall deliver each subsequent Budget for each
subsequent calendar year by December 15th of the calendar year before the budget
year, or as soon as possible thereafter. The Tenants in Common shall have
fifteen (15) days after delivery of the Budget to the Tenants in Common to
approve or disapprove of the Budget. The Tenants in Common agree to use their
best efforts to approve the Budget. If a Tenant in Common does not disapprove
the Budget, or any item therein, within such fifteen (15) day specified response
period described above, the Tenant in Common shall have been deemed to have
approved the Budget. In the event the approval is not obtained, the
non-approving Tenant(s) in Common shall negotiate in good faith with the
Property Manager and the other Tenants in Common for fifteen (15) days to
resolve the issue. If the parties are unable to reach an agreement, the issue
shall be resolved by arbitration as set forth in Section 8.1 with the disputing
Tenants in Common and the other Tenants in Common each paying 50% of the costs
of the arbitration. The Property Manager may proceed under the terms of the
proposed Budget for items that are not objected to and may take any action with
respect to items not approved for Emergency Expenditures (as defined in Section
2.5.2 of the Management Agreement). In the event that the items that are
objected to are operational expenditures, as opposed to capital expenditures,
the Property Manager shall be entitled to operate the Project using the prior
year's budget until approval is obtained. The Property Manager may at any time
submit a revised Budget to the Tenants in Common for their approval which will
be governed by the terms of this Section 2.2.2.
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 undivided Interests in the
Project shall be required to approve such action. 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. 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 any item
requiring the consent of the Tenants in Common pursuant to this Section 2.3
within the fifteen (15) day 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 and reserve
payments under any Loan, including the Citigroup Loan, 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.
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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.
4.2 ADDITIONAL FUNDS. Each Tenant in Common will be
responsible for a pro rata share (based on its undivided Interest in the Project
or as otherwise provided with respect to the fees under the Management Agreement
or other items specifically applicable to individual Tenants in Common) with
respect to operating expenses, Taxes (as defined in the Management Agreement),
debt service, the fees payable to the Property Manager pursuant to the
Management Agreement, or other items specifically applicable to individual
Tenants in Common or 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 Behringer or the Company or any affiliate and
non-recourse liability to one or more of the other Tenants in Common, and if
Behringer or 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 Behringer or 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
any 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 or fails to
pay its share of expenses pursuant to this Section within fifteen (15) days
after the Property Manager or the Company delivers notice that such additional
funds are required, such Tenant in Common shall be deemed to be a Defaulting
Tenant in Common as defined in Section 7.3 of this Agreement. In addition, the
Property Manager is hereby authorized to withhold from the Defaulting Tenant in
Common's share of proceeds and distributions any amounts due under this Section
4.2 and not paid by any such Defaulting Tenant in Common. In the event any
Tenant in Common becomes a Defaulting Tenant in Common, the ownership Interest
in the Project of the Defaulting Tenant in Common may be purchased in accordance
with Sections 7.3 and 8.3 of this Agreement. Notwithstanding anything to the
contrary contained in this Agreement, in no event shall any loans among any
Tenants in Common exist or be deemed to exist at any time that the Citigroup
Loan or any portion thereof is outstanding.
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, (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. Any Loan and any sale, exchange,
transfer, lease or release of all or a portion of the Project shall be subject
to unanimous approval of the Tenants in Common, which approval shall be as set
forth in Section 2.2.1. 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.
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5.2 SALE PROCEEDS. To the extent necessary, the proceeds of
a Sale shall (i) first, be, used to pay in full any Loans, (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 TRANSFER. Each Tenant in Common may sell, transfer,
convey, pledge, encumber or hypothecate its Interest 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 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 Behringer Harvard Xxxxx S, LLC, a Delaware limited liability company
("Behringer") is selling Interests pursuant to the Confidential Private
Placement Memorandum of Tenant in Common Interests in 250 West Xxxxx dated
November 11, 2004 ("Offering Memorandum"). Each Tenant in Common shall be
responsible for compliance with applicable securities laws with respect to any
sale of its Interest.
7.2 RIGHT OF FIRST OFFER. If a Tenant in Common (a "Selling
Tenant") desires to sell its Interest or any portion thereof, 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;
provided, however, no right of first offer will be required with respect to (i)
sales by Behringer of undivided Interests in the Project pursuant to the
Offering Memorandum, or (ii) transfers from Behringer or the Company to their
affiliates. If a Selling Tenant desires to sell its Interest, such Selling
Tenant shall provide written notice (the "First Refusal 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
the First Refusal Notice pursuant to Section 10.8, to deliver a written offer to
the Selling Tenant to purchase the Selling Tenant's entire Interest. If the
Selling Tenant does not accept an offer from the Company or its affiliates or
assigns within fifteen (15) days after receipt of the First Refusal Notice
pursuant to Section 10.8 then each Tenant 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 Tenant's Interest for a price that is greater than the
price offered by the Company or its affiliates or assigns. Each Tenant in Common
shall be entitled to purchase a portion of the Selling Tenant's Interest in
proportion to their undivided Interest in the Project. If any Tenant in Common
elects not to purchase such Tenant in Common's share of the Selling Tenant's
Interest, then the other Tenants in Common shall be entitled to purchase
additional portions of the Selling Tenant's Interests based on their Interest in
the Project. If the Selling Tenant accepts any offer pursuant to the preceding
three sentences, it must also accept all other offers at a purchase price at or
above the offers it accepts. If the Selling Tenant does not accept the offers
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for the sale of the Selling Tenant's entire Interest from either the Company or
its affiliates or assigns or the Tenants in Common other than the Selling Tenant
for any portion of the Selling Tenant's Interest, then the Selling Tenant shall
be free to sell its Interest (or remaining 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 (a) for a price greater than
any purchase price offered by an Offeror and not accepted by the Selling Tenant
pursuant to this Section 7.2, (b) in compliance with the terms of any Loan, and
(c) completed within 120 days of such Selling Tenant's refusal of the last offer
from either the Company or its affiliates or assigns or the Tenants in Common
other than the Selling Tenant. If such sale is not completed within such 120 day
period, the Selling Tenant must again provide each Offeror with its right of
first offer granted hereunder if it wishes to sell its Interest or any portion
thereof. Any offer provided hereunder by the Company or its affiliates or
assigns or a Tenant in Common and any acceptance of such an offer shall be
irrevocable and may be enforced through an action for specific performance
without the necessity of posting bond. The closing of any such offer shall occur
not later than ninety (90) days after the date of acceptance at the offices of
the Company. The provisions of this Section shall not apply to the sale of any
Tenant in Common's Interest if the process for purchase of such Interest has
begun under any other provision of this Agreement, including under Section 7.3,
7.4, 8.1 or 9, and this Section may not be invoked after any such process is
begun unless and until that process is abandoned.
7.3 PURCHASE OPTION OF DISSENTING OR DEFAULTING TENANT IN
COMMON'S INTEREST. The Tenants in Common agree that the Company or any of its
affiliates or assigns shall have the right, while this Agreement remains in
effect, to purchase a Dissenting Tenant in Common's (as defined below) interest
or a Defaulting 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 Tenants in Common holding more than fifty percent (50%)
of the undivided Interests in the Project have voted or provided consent for
such action. A "Defaulting Tenant in Common" shall mean a Tenant in Common who
is in default under any Loan or any documents in respect of any such Loan ("Loan
Documents"), the Management Agreement or this Agreement. In order to exercise
this option, the Company or its affiliates or assigns shall provide written
notice of its election to exercise this option (i) if to a Dissenting Tenant in
Common at any time prior to forty-five (45) days after the approval period for
such vote or consent has terminated as provided in any request for such vote or
consent or (ii) if to a Defaulting Tenant in Common during the period such
Defaulting Tenant in Common is in default and for a period of forty-five (45)
days thereafter. The purchase price of the Dissenting Tenant in Common or the
Defaulting Tenant in Common's Interest shall be equal to the Fair Market Value
of its Interest (as determined pursuant to Section 8.3 of this Agreement). In
the event a Defaulting Tenant in Common's Interest is purchased pursuant to this
Section and the Defaulting Tenant in Common is liable to any party under the
Management Agreement, this Agreement or any Loan, including any Lender, for its
losses or for any principal or interest of a Loan as a result of any
non-recourse carve-out or springing recourse under the Loan Documents, the
Defaulting Tenant in Common hereby authorizes the Company (although the Company
will have no obligation hereunder) to withhold from the payment of the purchase
price an amount equal to such losses or principal or interest and to pay such
amounts directly to the Lender or other party claiming under the applicable Loan
on behalf of the Defaulting Tenant in Common.
7.4 PURCHASE OPTION BY THE COMPANY. In the event Behringer
Harvard REIT I, Inc. or any other real estate fund affiliated with or directly
or indirectly sponsored by Behringer Harvard Holdings, LLC (a "BH Fund") becomes
the direct or indirect owner of the Company, the Company or its affiliates or
assigns shall have the option, but not the obligation, to purchase all of the
Tenants in Common's Interests as set forth in this Section 7.4 beginning no
sooner than the earlier of (i) one year prior to the end of any Loan term, (ii)
the announcement by BH Fund of its intention to liquidate its assets, or (iii)
the announcement by the BH Fund of its intention to liquidate its investment
portfolio or
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list its equity securities on any national securities exchange or the NASDAQ
stock market (collectively, an "Exchange"). In order to exercise this option,
the Company or its affiliates or assigns shall provide written notice of its
election to so exercise to the Tenants in Common. The purchase price of any
Interest purchased under this Section 7.4 shall be equal to the Fair Market
Value of such Interest (as determined pursuant to Section 8.3 of this
Agreement).
8. RIGHT OF PARTITION.
8.1 Subject to Section 8.2, 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
("Partition Seller") shall first make a written offer to sell its Interest first
to the Company 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 determined
pursuant to Section 8.3 of this Agreement). If the Company or its affiliates or
assigns do not accept such offer within such twenty (20) day period, then the
other Tenants in Common shall be entitled to purchase a portion of the Partition
Seller's Interest in proportion to their undivided Interests in the Project at a
price equal to the Fair Market Value of the Interest (as determined in
accordance with Section 8.3 of this Agreement) within the next twenty (20) days.
If any Tenant in Common elects not to purchase its share of the Partition
Seller's Interest, the other Tenants in Common shall be entitled to purchase
additional Interests based on their percentage Interests in the Project.
8.2 Notwithstanding anything to the contrary in Section 8.1,
so long as the Citigroup Loan or any portion thereof is outstanding, each Tenant
in Common agrees that it will not seek or be entitled to seek and obtain a
partition of all or any part of the Project without first obtaining the prior
written consent of Citigroup. Accordingly, each Tenant in Common expressly
waives any right it may have to partition the Project or any part thereof,
whether such rights arise under the law of the State of Maryland, or otherwise,
unless Citigroup has consented in writing to such party's exercise of such
rights.
8.3 DETERMINATION OF FAIR MARKET VALUE AND CLOSING
MECHANICS.
8.3.1 For purposes of this Agreement, the "Fair Market
Value" of a Tenant in Common seller's ("Seller") Interest in the Project in
connection with any sales made under Section 7.3, 7.4, 8.1 or 9 hereof shall
mean the fair market value of Seller's undivided Interest (determined by
multiplying the selling Tenant in Common's percentage Interest in the Project on
the date of an offer or exercise of an option, as applicable, 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 and (iii) selling, closing, prepayment (to the extent
reasonably anticipated to be incurred by the other Tenants in Common) or other
costs that would apply in the event the Project was sold on the date of the
offer or exercise of the option, as applicable) as determined in accordance with
the procedures set forth below, including any unpaid advances made pursuant to
Section 4.2 on behalf of Seller. Closing costs and prorations shall be allocated
as is standard practice where the Project is located. Upon the exercise of an
option under Sections 7.3, 7.4 or 9 or acceptance of an offer under Section 8.1
by the Company or its affiliates or assigns or any or all of the other Tenants
in Common ("Purchaser"), as applicable, Purchaser shall submit to Seller its
estimate of the fair market value of the Project, along with all documentation
supporting such estimate
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which Purchaser deems appropriate. If Seller does not accept such estimate
within fifteen (15) days, Purchaser may either (a) abandon and rescind its
option exercise or offer acceptance by written notice to Seller or (b) select an
independent certified MAI real estate appraiser to determine the fair market
value of the Project, which determination shall be made within thirty (30) days
of the appointment of such appraiser. Seller shall have fifteen (15) days after
receipt of the appraisal to accept or reject such appraisal. If the Seller does
not respond or any Seller rejects the appraisal, Purchaser may either (a)
abandon and rescind its option exercise or offer acceptance by written notice to
Seller or (b) select a second independent certified MAI real estate appraiser
within five (5) days of such rejection. The first appraiser and the second
appraiser shall then select a third certified MAI real estate appraiser within
fifteen (15) days of the selection of the second appraiser, and the third
appraiser shall make a determination of the fair market value of the Project
within 30 days of its appointment. The determination by the third appraiser
shall be binding on the parties. The cost of such appraisal shall be paid
equally by Seller (and all other Sellers acquiring in connection with the same
process) and Purchaser. The foregoing notwithstanding, nothing shall prevent a
Seller from agreeing to the price to be paid for its Interest regardless of the
above procedure. The consummation of the purchase of Interests under any of
Sections 7.3, 7.4, 8.1 or 9 hereof may be made contingent upon the occurrence of
some other event (the "Contingent Event") if so provided in the notice of option
exercise or offer acceptance; provided that the notice shall be deemed rescinded
if the specified event fails to occur within one hundred eighty (180) days after
the date of receipt of such notice as determined under Section 10.8. Any such
rescission shall not prevent a subsequent exercise of the options under Sections
7.3, 7.4 or 9, all of which remain open to exercise after the event giving rise
to the option. The Company may, in its sole and absolute discretion, offer
Seller the option to exchange its Interest for equity securities of the BH Fund
or, if applicable, its umbrella partnership (the "Exchange Securities") at an
amount equal to the Fair Market Value of the Interest (as determined above) and
at then current fair market value of the BH Fund shares or units. The fair
market value of such Exchange Securities shall be the average daily closing
price of such securities on the main Exchange on which they are listed for the
five trading days after the date of the Company's notice of exercise of the
option or acceptance of the offer, as applicable, or if not so listed and the BH
Fund is offering the Exchange Security to the public in connection with its
listing on an Exchange, the offering price for the Exchange Securities in such
offering, or if not so listed, as last established by an independent process in
the ordinary course by the BH Fund or, in the BH Fund's sole discretion, an
appraisal by an independent appraiser for the purpose of establishing such fair
market value in connection therewith. For valuation purposes, the value of any
umbrella partnership units of a BH Fund shall be the value established for the
common stock of such BH Fund as adjusted for the ratio of conversion of such
units into such common stock if not one for one. In the event that the Company
exercises the option and does not offer the Tenants in Common the option to
exchange their Interest for Exchange Securities or a Tenant in Common elects not
to exchange its Interest for Exchange Securities, the purchase price for the
Seller's Interest shall be paid in cash.
8.3.2 Any Interest to be purchased under this Section
8.3 or any of Sections 7.3, 7.4, 8.1 or 9 hereof shall be transferred to the
Purchaser as of the date of notice of exercise of option or acceptance of offer
pursuant to Section 10.8 or, if applicable, the date of the occurrence of the
Contingent Event; provided, however, the Company or its affiliates or assigns
may delay the transfer of the Interest for any length of time as specified in
such notice up and through the date of the payment date and provided, further,
that, notwithstanding the provisions of Sections 7.3, 7.4, 8.1 or 9 hereof, the
transfer, and effective date of such transfer, shall be subject to any consent
of any Lender, if required. The closing of the purchase of Seller's Interest
shall occur at the offices of the Company within thirty (30) days from the date
a fair market value of the Project is determined or Seller otherwise agrees to
the price to be paid. The obligation to pay the purchase price shall bear
interest at the short-term Applicable Federal Rate from the date of exercise of
the option or acceptance of the offer through the payment date. 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
8
unpaid fees due to the Property Manager. For purposes of this Section 8.3, there
will be multiple Sellers in the event that (i) multiple Tenants in Common
simultaneously have on file a partition action, (ii) a simultaneous transaction
results in multiple Dissenting Tenants in Common or Defaulting Tenants in
Common, (iii) multiple Tenant in Common Interests are purchased pursuant to
Section 7.4 or (iv) a simultaneous transaction results in multiple Bankrupt
Tenants in Common.
9. BANKRUPTCY OPTION.
9.1 OPTION. If, during the term of this Agreement, a Tenant
in Common becomes Bankrupt, it shall so notify the Company in writing (the
"Bankrupt Tenant's Notice"). After such notification or after the Company
independently becomes aware that the Tenant in Common has become Bankrupt and
the Company provides written notice of such fact to the Tenant in Common (the
"Notice of Bankruptcy"), the Company or its affiliates or assigns 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 sell to the Company or its
affiliates or assigns or in the event that the Company or its affiliates or
assigns do not elect to exercise the option within twenty (20) days of the first
to occur of Bankrupt Tenant's Notice or the Notice of Bankruptcy without receipt
of the Bankruptcy Call Notice, sell to the other Tenants in Common who by
written notice within twenty (20) days thereafter exercise an option to purchase
the Bankrupt Tenant in Common's entire Interest for the Fair Market Value of the
Bankrupt Tenant in Common's Interest (as determined pursuant to Section 8.3). If
any Tenant in Common elects not to purchase its share of the Bankrupt Tenant in
Common's Interest, the other Tenants in Common shall be entitled to purchase
additional Interests based on their percentage Interests in the Project.
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 sixty
(60) days or (9) is considered bankrupt under the Loan Documents.
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,
the Company or its affiliates or assigns 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 the Company
or its affiliates or assigns may purchase the Bankrupt Tenant in Common's
interest in the Project at the same price and on the same terms as the Project
is proposed to be sold by such trustee, receiver, conservator, liquidator,
guardian or other transferee.
9
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
or any portion thereof whether by operation of law or any manner whatsoever
(collectively, "Successors"); shall create mutual, equitable servitudes and
burdens upon the Interest 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, 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 of each of the Tenants in Common, (ii) runs with
the undivided Interest of each Tenant in Common and (iii) benefits and is
binding upon each Successor owner during its ownership of any Interest, 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 Interest as if such person was a Tenant in Common initially executing this
Agreement.
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 Interests 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 Dallas 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
10
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. Except as otherwise provided herein, this
Agreement shall be governed by and construed under the internal laws of the
State of Maryland 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 and,
except for amendments occurring as a result of a transfer of any Interest that
is made pursuant to the loan documents in respect of the Citigroup Loan (the
"Citigroup Loan Documents") is consented to in writing by Citigroup and, after
securitization of the Citigroup Loan, unless the Property Manager shall have
provided written confirmation from each rating agency that provides a rating in
connection with the Citigroup Loan that such amendment shall not result in any
withdrawal, qualification or downgrade of such rating. Citigroup is expressly
intended to be a third party beneficiary of this Section and shall have the
right to enforce the obligations of the parties hereunder.
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
shall be addressed to the party for whom intended, as follows:
To the Tenants in Common at:
c/o Behringer Harvard Xxxxx H, LLC
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 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
mail, with 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.
11
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,
2030. 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 WITH 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.
10.15 TIME IS OF THE ESSENCE. Time is of the essence of each
and every provision of this Agreement.
11. ADDITIONAL COVENANTS AND AGREEMENTS REGARDING THE "CITIGROUP
LOAN.
11.1 Each Tenant in Common agrees that this Agreement, and
all rights and privileges and remedies of each Tenant in Common hereunder,
including without limitation, (i) any rights of first refusal (including any
such rights arising under Section 363(i) of Chapter 11 of the United States
Bankruptcy Code), purchase options or other similar rights under this Agreement,
are subject and subordinate to the deed of trust and the other loan documents
with respect to the Citigroup Loan ("Loan Documents") and the liens created
thereby, and to all rights of the Lender thereunder. No party may exercise any
remedy provided for herein (including any rights of indemnification) against any
other party for as long as the Citigroup Loan (or any portion thereof) is
outstanding; provided, however, that as long as no Event of Default (as defined
in the Loan Documents) currently exists, the parties subject to the rights
described above and in Sections 7.3, 7.4, 8 and 9 shall be entitled to exercise
such options.
11.2 Notwithstanding anything to the contrary contained
herein, each Tenant in Common hereby waives, for so long as the Citigroup Loan
(or any portion thereof) is outstanding, any lien rights, whether statutory or
otherwise, that it may have against the co-tenancy interest of any other Tenant
in Common.
12
11.3 For so long as the Citigroup Loan (or any portion
thereof) is outstanding, the Lender shall be a third party beneficiary of this
Agreement.
11.4 For so long as the Citigroup Loan (or any portion
thereof) is outstanding, this Agreement may not be terminated or cancelled,
modified, changed, supplemented, altered or amended in any manner whatsoever,
without the prior written consent of the Lender except pursuant to any Permitted
Transfers allowed under the Loan Documents.
11.5 Each Tenant in Common covenants and agrees not to take
any action with respect to the Project or its respective co-tenancy interest in
the Project that would constitute a default under the Citigroup Loan, or create
personal liability for any Tenant in Common under the provisions of the Loan
Documents.
11.6 This Agreement as it may be amended from time to time in
accordance with the provisions hereof, and all of the terms and conditions
hereof, are hereby made and shall continue to be fully subject and subordinate
in all respects to all of the liens, terms and conditions of the Loan Documents.
Such subordination shall be automatic and no further agreement or document shall
be necessary to effect such subordination but, without detracting from the
automatic nature of such subordination, upon Citigroup's request, each Tenant in
Common shall execute and deliver to Citigroup an instrument of subordination
satisfactory to Citigroup in form and substance.
11.7 Each Tenant in Common hereby irrevocably assigns to
Citigroup its claim and rights to vote in any bankruptcy or similar proceeding
of any other Tenant in Common.
11.8 In the event of any conflict or inconsistency between
the provisions of this Section 11 and any other provision of this Agreement, the
provisions of this Section 11 shall control.
12. POWER OF ATTORNEY. The Company shall at all times during the
term of this Agreement have a special and limited power of attorney as the
attorney-in-fact for any Tenant in Common whose Interest is to be purchased
pursuant to the option rights granted in Sections 7.3, 7.4, 8.1 and 9, with the
power and authority to act in the name and on behalf of each such Tenant in
Common to execute, acknowledge, and swear to in the execution, acknowledgment
and filing of documents that are not inconsistent with the provisions of this
Agreement and which may include, but is not limited to, any contract for
purchase or sale of real estate, and any deed, deed of trust, mortgage, or other
instrument of conveyance or encumbrance, with respect to the Interests and/or
the Project or any other instrument or document that may be required to
effectuate the sale of the Project or an Interest.
12.1 This power of attorney may be exercised by the Company
for such Tenant in Common by the signature of the Company acting as
attorney-in-fact for such Tenant in Common, or by such method as may be required
or requested in connection with the recording or filing of any instrument or
other document so executed.
12.2 This power of attorney shall be irrevocable and shall
survive an assignment by the Tenant in Common of all or any portion of its
Interest. Furthermore, this power of attorney shall survive the bankruptcy,
death, dissolution, liquidation, termination, incapacity or incompetency of the
Tenant in Common.
12.3 The Company shall promptly furnish to Tenant in Common a
copy of any document executed by the Company pursuant to this power of attorney.
13
13. SUBORDINATION. This Agreement and all of the terms and
provisions hereof shall in all respects be subject to and subordinate to the
terms of any loan documents evidencing and secured by a mortgage or deed of
trust on the Project.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
Behringer Harvard Xxxxx H, LLC, a Delaware
limited liability company
By:______________________________________
Xxxxxx X. Xxxxxxx, III, Secretary
TIC Xxxxx 1, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 2, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 4, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 5, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 6, LLC, a Delaware limited
liability company
By:______________________________________
14
TIC Xxxxx 8, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 9, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 10, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 11, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 13, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 15, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 16, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 17, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 18, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 19, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 23, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 24, LLC, a Delaware limited
liability company
By:______________________________________
TIC Xxxxx 25, LLC, a Delaware limited
liability company
By:______________________________________
STATE OF TEXAS )
) ss:
COUNTY OF DALLAS )
On ____________, 200__, before me, _________________________(insert name
of notary), personally appeared Xxxxxx X. Xxxxxxx, 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.
__________________________________________
Notary Public (Signature)
[For Tenants in Common]
STATE OF ________________ )
) ss:
COUNTY OF _______________ )
On ____________, 200__, before me, _________________________(insert name
of notary), personally appeared ______________________________ (insert name of
tenant in common), 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.
________________________________________
Notary Public (Signature)
STATE OF ________________ )
) ss:
COUNTY OF _______________ )
On ____________, 200__, before me, _________________________(insert name
of notary), personally appeared ______________________________ (insert name of
tenant in common), 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.
________________________________________
Notary Public (Signature)
