EXHIBIT 10.2
ESCROW AGREEMENT
Xxxxx Fargo Bank Iowa, National Association
000 Xxxxxx X0000-000
Corporate Trust Services, XXX
Xxx Xxxxxx, XX 00000
Re: Behringer Harvard Short-Term Opportunity Fund I LP
Ladies and Gentlemen:
BEHRINGER HARVARD SHORT-TERM OPPORTUNITY FUND I LP, a Texas limited partnership
(the "Partnership"), will issue in a public offering (the "Offering") units of
its limited partnership interests (the "Units") pursuant to a Registration
Statement on Form S-11 filed by the Partnership with the Securities and Exchange
Commission. Behringer Securities LP, a Texas limited partnership (the "Dealer
Manager"), will act as dealer manager for the offering of the Units. The
Partnership is entering into this agreement to set forth the terms on which
Xxxxx Fargo Bank Iowa, National Association (the "Escrow Agent"), will hold and
disburse the proceeds from subscriptions for the purchase of the Units in the
Offering until such time as: (i) in the case of subscriptions received from
nonaffiliates of the Partnership, the Partnership has received subscriptions for
Units resulting in total minimum capital raised of $1,000,000 (the "Required
Capital"); (ii) in the case of subscriptions received from residents of
Pennsylvania ("Pennsylvania Subscribers"), the Partnership has received
subscriptions for Units resulting in total minimum capital raised of $4,125,000,
not including subscriptions from Pennsylvania Subscribers (the "Pennsylvania
Required Capital"); and (iii) in the case of subscriptions received from
residents of New York ("New York Subscribers"), the Partnership has received
subscriptions for Units resulting in total minimum capital raised of $1,000,000,
not including subscriptions from New York Subscribers (the "New York Required
Capital").
The Partnership hereby appoints Xxxxx Fargo Bank Iowa, National Association, as
Escrow Agent for purposes of holding the proceeds from the subscriptions for the
Units, on the terms and conditions hereinafter set forth:
1. Persons subscribing to purchase the Units (the "Subscribers") will be
instructed by the Dealer Manager or any soliciting dealers to remit the purchase
price in the form of checks, drafts, wires, Automated Clearing House (ACH) or
money orders (hereinafter "instruments of payment") payable to the order of
"Xxxxx Fargo Bank Iowa, N.A., Escrow Agent for Behringer Harvard Short-Term
Opportunity Fund I LP." Any checks received made payable to a party other than
the Escrow Agent shall be returned to the soliciting dealer who submitted the
check. Within one (1) business day after receipt of instruments of payment from
the Offering, the Dealer Manager will send to the Escrow Agent: (a) each
Subscriber's name, address, executed IRS Form W-9, number of Units purchased,
and purchase price remitted, and (b) the instruments of payment from such
Subscribers (the "Subscription Materials"), for deposit by the Escrow Agent into
an interest-bearing deposit account entitled "ESCROW ACCOUNT FOR THE BENEFIT OF
SUBSCRIBERS FOR UNITS OF BEHRINGER HARVARD SHORT-TERM OPPORTUNITY FUND I LP"
(the "Escrow Account"), which deposit shall occur within one (1) business day
after the Escrow Agent's receipt of all the Subscription Materials, until such
Escrow Account has closed pursuant to paragraph 3(a) hereof. Instruments of
payment received from Pennsylvania Subscribers (as identified as such by the
Partnership) shall be accounted for separately in a subaccount
entitled "ESCROW ACCOUNT FOR THE BENEFIT OF PENNSYLVANIA SUBSCRIBERS" (the
"Pennsylvania Escrow Account"), until such Pennsylvania Escrow Account has
closed pursuant to paragraph 3(a) hereof. Instruments of payment received from
New York Subscribers (as identified as such by the Partnership) shall be
accounted for separately in a subaccount entitled "ESCROW ACCOUNT FOR THE
BENEFIT OF NEW YORK SUBSCRIBERS" (the "New York Escrow Account"), until such New
York Escrow Account has closed pursuant to paragraph 3(a) hereof. Each of the
Escrow Account, the Pennsylvania Escrow Account, and New York Escrow Account
will be established and maintained in such a way as to permit the interest
income calculations described in paragraph 7.
2. The Escrow Agent agrees to promptly process for collection the instruments of
payment upon deposit into the applicable Escrow Account, Pennsylvania Escrow
Account, or New York Escrow Account. Deposits shall be held in the Escrow
Account, the Pennsylvania Escrow Account, and the New York Escrow Account until
such funds are disbursed in accordance with paragraph 3 hereof. If any of the
instruments of payment are returned to the Escrow Agent for nonpayment prior to
receipt of the Required Capital or, in connection with subscriptions from
Pennsylvania Subscribers, the Pennsylvania Required Capital or, in connection
with subscriptions from New York Subscribers, the New York Required Capital, the
Escrow Agent shall promptly notify the Dealer Manager and the Partnership in
writing via mail, email or facsimile of such nonpayment, and is authorized to
debit the Escrow Account, the Pennsylvania Escrow Account, or the New York
Escrow Account, as applicable, in the amount of such returned payment as well as
any interest earned on the amount of such payment.
3. (a) Subject to the provisions of subparagraphs 3(b)-3(f) below:
(i) once collected funds in the Escrow Account are an amount
equal to or greater than the Required Capital, the Escrow
Agent shall promptly notify the Partnership and, upon
receiving written instruction from the Partnership, (A)
disburse to the Partnership, by check, ACH or wire transfer,
the funds in the Escrow Account representing the gross
purchase price for the Units, and (B) disburse to the
Subscribers or the Partnership, as applicable, any interest
thereon pursuant to the provisions of subparagraph 3(f). For
purposes of this Agreement, the term "collected funds" shall
mean all funds received by the Escrow Agent that have cleared
normal banking channels and are in the form of cash or a cash
equivalent. After such time the Escrow Account shall remain
open and the Partnership shall continue to cause subscriptions
for the Units that are not to be deposited in the Pennsylvania
Escrow Account or the New York Escrow Account to be deposited
therein until the Partnership informs the Escrow Agent in
writing to close the Escrow Account, and thereafter any
subscription documents and instruments of payment received by
the Escrow Agent from Subscribers other than Pennsylvania
Subscribers and New York Subscribers shall be forwarded
directly to the Partnership.
(ii) regardless of any closing of the Escrow Account, the
Partnership and the Dealer Manager shall continue to forward
instruments of payment and Subscription Materials received
from Pennsylvania Subscribers for deposit into the
Pennsylvania Escrow Account to the Escrow Agent until such
time as the Partnership notifies the Escrow Agent in writing
that total subscription proceeds (not including the amount
then in the Pennsylvania Escrow Account) equal or exceed the
Pennsylvania Required Capital. Upon receipt of a written
notice from the Partnership that total subscription proceeds
(not including the amount then in the Pennsylvania Escrow
Account) equaling or exceeding the Pennsylvania Required
Capital have been received in collected funds, the Escrow
Agent shall (A) disburse to the Partnership, by check, ACH or
wire transfer, the funds then in the Pennsylvania Escrow
Account representing the gross purchase price for the
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Units, and (B) disburse to the Pennsylvania Subscribers or the
Partnership, as applicable, any interest thereon pursuant to
the provisions of subparagraph 3(f). Following such
disbursements, the Escrow Agent shall close the Pennsylvania
Escrow Account, and thereafter any Subscription Materials and
instruments of payment received by the Escrow Agent from
Pennsylvania Subscribers shall be deposited directly to the
Escrow Account (or to the Partnership, if it has closed the
Escrow Account, as instructed in writing by the Partnership).
(iii) regardless of any closing of the Escrow Account, the
Partnership and the Dealer Manager shall continue to forward
instruments of payment and Subscription Materials received
from New York Subscribers for deposit into the New York Escrow
Account to the Escrow Agent until such time as the Partnership
notifies the Escrow Agent in writing that total subscription
proceeds (not including the amount then in the New York Escrow
Account) equal or exceed the New York Required Capital. Upon
receipt of a written notice from the Partnership that total
subscription proceeds (not including the amount then in the
New York Escrow Account) equaling or exceeding the New York
Required Capital have been received in collected funds, the
Escrow Agent shall (A) disburse to the Partnership, by check,
ACH or wire transfer, the funds then in the New York Escrow
Account representing the gross purchase price for the Units,
and (B) disburse to the New York Subscribers or the
Partnership, as applicable, any interest thereon pursuant to
the provisions of subparagraph 3(f). Following such
disbursements, the Escrow Agent shall close the New York
Escrow Account, and thereafter any Subscription Materials and
instruments of payment received by the Escrow Agent from New
York Subscribers shall be deposited directly to the Escrow
Account (or to the Partnership, if it has closed the Escrow
Account, as instructed in writing by the Partnership).
(b) At the close of business on __________ ___, 2003 (the "Expiration
Date"), the Escrow Agent shall promptly notify the Partnership if it is
not in receipt of evidence of Subscription Materials accepted on or
before the Expiration Date, and instruments of payment dated not later
than that the Expiration Date, for the purchase of Units providing for
total purchase proceeds that equal or exceed the Required Capital (from
all sources but exclusive of any funds received from subscriptions for
Units from entities which the Partnership has notified the Escrow Agent
are affiliated with the Partnership). In the event the Escrow Agent is
not in possession of an executed IRS Form W-9 from any Subscriber, the
Partnership shall provide the Escrow Agent an executed IRS Form W-9
from such Subscriber within ten (10) calendar days after such notice.
On the tenth (10th) day following the receipt of such notice, the
Escrow Agent shall promptly return directly to each Subscriber the
collected funds deposited in the Escrow Account, the Pennsylvania
Escrow Account, and the New York Escrow Account on behalf of such
Subscriber (unless earlier disbursed in accordance with paragraph
3(c)), or shall return the instruments of payment delivered, but not
yet processed for collection prior to such time, together with interest
in the amounts calculated pursuant to paragraph 7 for each Subscriber
at the address provided by the Dealer Manager or the Partnership. In
the event an executed IRS Form W-9 is not received for each Subscriber
within ten (10) calendar days, the Escrow Agent shall thereupon remit
an amount to the Subscribers in accordance with the provisions hereof,
withholding thirty percent (30%) of any interest income on subscription
proceeds (determined in accordance with paragraph 7) attributable to
those Subscribers for whom the Escrow Agent does not possess an
executed IRS Form W-9. However, the Escrow Agent shall not be required
to remit any payments until funds represented by such payments have
been collected.
(c) Notwithstanding subparagraphs 3(a) and 3(b) above, if the Escrow
Agent is not in receipt of evidence of subscriptions accepted on or
before the close of business on such date that is 120
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days after commencement of the Offering (the Partnership will notify
the Escrow Agent of the commencement date of the Offering) (the
"Initial Escrow Period"), and instruments of payment dated not later
than that date, for the purchase of Units providing for total purchase
proceeds (from all sources other than Pennsylvania Subscribers) that
equal or exceed the Pennsylvania Required Capital, the Escrow Agent
shall promptly notify the Partnership. Thereafter, the Partnership
shall send to each Pennsylvania Subscriber by certified mail within ten
(10) calendar days after the end of the Initial Escrow period a
notification in the form of Exhibit A. If, pursuant to such
notification, a Pennsylvania Subscriber requests the return of his or
her subscription funds within ten (10) calendar days after receipt of
the notification (the "Request Period") and the Escrow Agent is not in
possession of an executed IRS form W-9, the Partnership shall provide
the Escrow Agent with an executed IRS Form W-9 from each such
Pennsylvania Subscriber within ten (10) calendar days after receiving
notice from such Pennsylvania Subscriber. The Escrow Agent shall
promptly refund directly to each Pennsylvania Subscriber the collected
funds deposited in the Pennsylvania Escrow Account on behalf of such
Pennsylvania Subscriber, or shall return the instruments of payment
delivered, but not yet processed for collection prior to such time, to
the address provided by the Dealer Manager or the Partnership, together
with interest income in the amounts calculated pursuant to paragraph 7.
If an executed IRS Form W-9 is not received for such Pennsylvania
Subscriber within ten (10) calendar days, the Escrow Agent shall
thereupon remit an amount to such Pennsylvania Subscriber in accordance
with the provisions hereof, withholding thirty percent (30%) of any
interest income earned on subscription proceeds (determined in
accordance with paragraph 7) attributable to such Pennsylvania
Subscriber for whom the Escrow Agent does not possess an executed IRS
Form W-9. However, the Escrow Agent shall not be required to remit such
payments until funds represented by such payments have been collected
by the Escrow Agent.
(d) The subscription funds of Pennsylvania Subscribers who do not
request the return of their subscription funds within the Request
Period shall remain in the Pennsylvania Escrow Account for successive
120-day escrow periods (a "Successive Escrow Period"), each commencing
automatically upon the termination of the prior Successive Escrow
Period, and the Partnership and Escrow Agent shall follow the
notification and payment procedure set forth in subparagraph 3(c) above
with respect to the Initial Escrow Period for each Successive Escrow
Period until the occurrence of the earliest of (i) the Expiration Date,
(ii) the receipt and acceptance by the Partnership of subscriptions for
the purchase of Units with total purchase proceeds that equal or exceed
the Pennsylvania Required Capital and the disbursement of the
Pennsylvania Escrow Account on the terms specified herein, or (iii) all
funds held in the Pennsylvania Escrow Account having been returned to
the Pennsylvania Subscribers in accordance with the provisions hereof.
(e) If the Partnership rejects any subscription for which the Escrow
Agent has collected funds, the Escrow Agent shall, upon the written
request of the Partnership, promptly issue a refund to the rejected
Subscriber. If the Partnership rejects any subscription for which the
Escrow Agent has not yet collected funds but has submitted the
Subscriber's check for collection, the Escrow Agent shall promptly
return the funds in the amount of the Subscriber's check to the
rejected Subscriber after such funds have been collected. If the Escrow
Agent has not yet submitted a rejected Subscriber's check for
collection, the Escrow Agent shall promptly remit the Subscriber's
check directly to the Subscriber.
(f) At any time after funds are disbursed upon the Partnership's
acceptance of subscriptions pursuant to subparagraph 3(a) above on the
tenth (10th) day following the date of such acceptance, the Escrow
Agent shall promptly provide directly to each Subscriber the amount of
the interest payable to the Subscribers; provided that the Escrow Agent
is in possession of such
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Subscriber's executed IRS Form W-9. In the event the Escrow Agent is
not in possession of an executed IRS Form W-9 from any Subscriber, the
Partnership shall provide the Escrow Agent with an executed IRS Form
W-9 from such Subscriber within ten (10) calendar days after acceptance
of such subscription. In the event an executed IRS Form W-9 is not
received for each Subscriber within such period, the Escrow Agent shall
remit an amount to the Subscribers in accordance with the provisions
hereof, withholding thirty percent (30%) of any interest income on
subscription proceeds (determined in accordance with paragraph 7)
attributable to those Subscribers for whom the Escrow Agent does not
possess an executed IRS Form W-9. However, the Escrow Agent shall not
be required to remit any payments until funds represented by such
payments have been collected by the Escrow Agent. The forgoing
notwithstanding, interest, if any, earned on accepted subscription
proceeds will be payable to a Subscriber only if the Subscriber's funds
have been held in escrow by the Escrow Agent for at least 35 days;
interest, if any, earned on accepted subscription proceeds of
Subscribers' funds held less than 35 days will be payable to the
Partnership.
4. The Escrow Agent shall report to the Partnership weekly on the account
balances in the Escrow Account, the Pennsylvania Escrow Account, and the New
York Escrow Account and the activity in each account since the last report.
5. Prior to the disbursement of funds deposited in the Escrow Account, the
Pennsylvania Escrow Account, or the New York Escrow Account in accordance with
the provisions of paragraph 3 hereof, the Escrow Agent shall invest all of the
funds deposited as well as earnings and interest derived therefrom in the Escrow
Account, the Pennsylvania Escrow Account, and the New York Escrow Account, as
applicable, in the "Short-Term Investments" specified below. In the event that
instruments of payment are returned for nonpayment, the Escrow Agent is
authorized to debit the Escrow Account, the Pennsylvania Escrow Account, or the
New York Escrow Account, as applicable, in accordance with paragraph 2 hereof.
"Short-Term Investments" include obligations of, or obligations
guaranteed by, the United States government or bank money-market accounts or
certificates of deposit of national or state banks that have deposits insured by
the Federal Deposit Insurance Corporation (including certificates of deposit of
any bank acting as a depository or custodian for any such funds) which mature on
or before the Expiration Date, unless such instrument cannot be readily sold or
otherwise disposed of for cash by the Expiration Date without any dissipation of
the offering proceeds invested.
The following securities are not permissible investments:
(a) money market mutual funds;
(b) corporate equity or debt securities;
(c) repurchase agreements;
(d) bankers' acceptances;
(e) commercial paper; and
(f) municipal securities.
The Escrow Agent shall invest the funds deposited in the Pennsylvania Escrow
Account and the New York Escrow Account in the manner set forth in Exhibit B
attached hereto. Without limiting the generality of the foregoing, it is hereby
expressly agreed and stipulated by the parties hereto that the Escrow Agent
shall not be required to exercise any discretion hereunder and shall have no
investment or management responsibility and, accordingly, shall have no duty to,
or liability for its failure to, provide investment recommendations or
investment advice to the parties hereto. It is the intention of the parties
hereto that the Escrow Agent shall never be required to use, advance or risk its
own funds or otherwise
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incur financial liability in the performance of any of its duties or the
exercise of any of its rights and powers hereunder.
6. The Escrow Agent is entitled to rely upon written instructions received from
the Partnership, unless the Escrow Agent has actual knowledge that such
instructions are not valid or genuine; provided that, if in the Escrow Agent's
opinion, any instructions from the Partnership are unclear, the Escrow Agent may
request clarification from the Partnership prior to taking any action, and if
such instructions continue to be unclear, the Escrow Agent may rely upon written
instructions from the Partnership's legal counsel in distributing or continuing
to hold any funds. However, the Escrow Agent shall not be required to disburse
any funds attributable to instruments of payment that have not been processed
for collection, until such funds are collected and then shall disburse such
funds in compliance with the disbursement instructions from the Partnership.
7. If the Offering terminates prior to receipt of the Required Capital or one or
more Pennsylvania Subscribers elects to have his or her subscription returned in
accordance with paragraph 3, interest income earned on subscription proceeds
deposited in the Escrow Account (the "Escrow Income"), the Pennsylvania Escrow
Account (the "Pennsylvania Escrow Income"), and the New York Escrow Account (the
"New York Escrow Income") shall be remitted to Subscribers in accordance with
paragraph 3 and without any deductions for escrow expenses. Each Subscriber's
pro rata portion of Escrow Income, Pennsylvania Escrow Income, or New York
Escrow Income, as applicable, shall be determined as follows: the total amount
of Escrow Income (or Pennsylvania Escrow Income or New York Escrow Income, as
appropriate) shall be multiplied by a fraction, (i) the numerator of which is
determined by multiplying the number of Units purchased by said Subscriber times
the number of days said Subscriber's proceeds are held in the Escrow Account,
the Pennsylvania Escrow Account, or the New York Escrow Account, as applicable,
prior to the date of disbursement, and (ii) the denominator of which is the
total of the numerators for all such Subscribers in such account. The
Partnership shall reimburse the Escrow Agent for all escrow expenses. The Escrow
Agent shall remit all such Escrow Income, Pennsylvania Escrow Income, and New
York Escrow Income in accordance with paragraph 3. If the Partnership chooses to
leave the Escrow Account open after receiving the Required Capital, then it
shall make regular acceptances of subscriptions therein, but no less frequently
than monthly, and the Escrow Income from the last such acceptance shall be
calculated and remitted to the Subscribers or the Partnership, as applicable,
pursuant to the provisions of subparagraph 3(f).
8. The Escrow Agent shall receive compensation from the Partnership as set forth
in Exhibit C attached hereto.
9. In performing any of its duties hereunder, the Escrow Agent shall not incur
any liability to anyone for any damages, losses, or expenses, except for willful
misconduct, breach of trust, or gross negligence. Accordingly, the Escrow Agent
shall not incur any such liability with respect to any action taken or omitted
(a) in good faith upon advice of the Escrow Agent's counsel given with respect
to any questions relating to the Escrow Agent duties and responsibilities under
this Agreement, or (b) in reliance upon any instrument, including any written
instrument or instruction provided for in this Agreement, not only as to its due
execution and validity and effectiveness of its provisions but also as to the
truth and accuracy of information contained therein, which the Escrow Agent
shall in good faith believe to be genuine, to have been signed or presented by a
proper person or persons and to conform to the provisions of this Agreement.
10. The Partnership hereby agrees to indemnify and hold the Escrow Agent
harmless against any and all losses, claims, damages, liabilities, and expenses,
including reasonable attorneys' fees and disbursements, that may be imposed on
or incurred by the Escrow Agent in connection with acceptance of appointment as
the Escrow Agent hereunder, or the performance of the duties hereunder,
including any
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litigation arising from this Agreement or involving the subject matter hereof,
except where such losses, claims, damages, liabilities, and expenses result from
willful misconduct, breach of trust, or gross negligence.
11. In the event of a dispute between the parties hereto sufficient in the
Escrow Agent's discretion to justify doing so, the Escrow Agent shall be
entitled to tender into the registry or custody of any court of competent
jurisdiction all money or property in its hands under this Agreement, together
with such legal pleadings as deemed appropriate, and thereupon be discharged
from all further duties and liabilities under this Agreement. In the event of
any uncertainty as to the duties hereunder, the Escrow Agent may refuse to act
under the provisions of this Agreement pending order of a court of competent
jurisdiction and shall have no liability to the Partnership or to any other
person as a result of such action. Any such legal action may be brought in such
court as the Escrow Agent shall determine to have jurisdiction thereof. The
filing of any such legal proceedings shall not deprive the Escrow Agent of its
compensation earned prior to such filing.
12. All communications and notices required or permitted by this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
or by messenger or by overnight delivery service or when received via telecopy
or other electronic transmission, in all cases addressed to the person for whom
it is intended at such person's address set forth below or to such other address
as a party shall have designated by notice in writing to the other party in the
manner provided by this paragraph:
(a) if to the Partnership:
Behringer Harvard Short-Term Opportunity Fund I LP
0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, General Partner
(b) if to the Dealer Manager:
Behringer Securities LP
0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: Chief Operating Officer of Harvard Property
Trust, LLC, General Partner
(c) if to the Escrow Agent:
Xxxxx Fargo Bank Iowa, National Association
000 Xxxxxx
X0000-000
Corporate Trust Services, XXX
Xxx Xxxxxx, XX 00000
Fax: (000) 000-0000
Attention: X.X. Xxxxx
Each party hereto may, from time to time, change the address to which notices to
it are to be delivered or mailed hereunder by notice in accordance herewith to
the other parties.
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13. This Agreement shall be governed by the laws of the State of Texas as to
both interpretation and performance without regard to the conflict of laws rules
thereof.
14. The provisions of this Agreement shall be binding upon the legal
representatives, successors, and assigns of the parties hereto.
15. The Partnership and the Dealer Manager hereby acknowledge that Xxxxx Fargo
Bank Iowa, National Association is serving as Escrow Agent only for the limited
purposes herein set forth, and hereby agree that they will not represent or
imply that, by serving as Escrow Agent hereunder or otherwise, have investigated
the desirability or advisability of investment in the Partnership or have
approved, endorsed, or passed upon the merits of the Units or the Partnership,
nor shall they use the name of the Escrow Agent in any manner whatsoever in
connection with the offer or sale of the Units other than by acknowledgment that
is has agreed to serve as Escrow Agent for the limited purposes herein set
forth.
16. This Agreement and any amendment hereto may be executed by the parties
hereto in one or more counterparts, each of which shall be deemed to be an
original.
17. Except as otherwise required for subscription funds received from
Pennsylvania Subscribers and New York Subscribers as provided herein, in the
event that the Escrow Agent receive instruments of payment after the Required
Capital has been received and the proceeds of the Escrow Account have been
distributed to the Partnership, the Escrow Agent is hereby authorized to deposit
such instruments of payment within one (1) business day to any deposit account
as directed by the Partnership. The application of said funds into a deposit
account or to forward such funds directly to the Partnership, in either case
directed by the Partnership, shall be a full acquittance to the Escrow Agent,
who shall not be responsible for the application of said funds thereafter.
18. The Escrow Agent shall be bound only by the terms of this Escrow Agreement
and shall not be bound by or incur any liability with respect to any other
agreements or understanding between any other parties, whether or not the Escrow
Agent has knowledge of any such agreements or understandings.
19. Indemnification provisions set forth herein shall survive the termination of
this Agreement.
20. In the event that any part of this Agreement is declared by any court or
other judicial or administrative body to be null, void, or unenforceable, said
provision shall survive to the extent it is not so declared, and all of the
other provisions of this Agreement shall remain in full force and effect.
21. Unless otherwise provided in this Agreement, final termination of this
Escrow Agreement shall occur on the date that all funds held in the Escrow
Account, the Pennsylvania Escrow Account and the New York Escrow Account are
distributed either (a) to the Partnership or to Subscribers pursuant to
paragraph 3 hereof or (b) to a successor escrow agent upon written instructions
from the Partnership.
22. The Escrow Agent has no responsibility for accepting, rejecting, or
approving subscriptions. The Escrow Agent shall complete an OFAC search of each
subscription check prior to depositing the check in the Escrow Account, the
Pennsylvania Escrow Account or the New York Escrow Account and shall provide the
Partnership with a report containing the results of such OFAC search. The Dealer
Manager shall provide a copy of each subscription check in order that the Escrow
Agent may perform such OFAC search.
23. This Agreement shall not be modified, revoked, released, or terminated
unless reduced to writing and signed by all parties hereto, subject to the
following paragraph.
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If, at any time, any attempt is made to modify this Agreement in a manner that
would increase the duties and responsibilities of the Escrow Agent or to modify
this Agreement in any manner which the Escrow Agent shall deem undesirable, or
at any other time, the Escrow Agent may resign by providing written notice to
the Partnership and until (a) the acceptance by a successor escrow agent as
shall be appointed by the Partnership; or (b) thirty (30) days after such
written notice has been given, whichever occurs sooner, the Escrow Agent's only
remaining obligation shall be to perform its duties hereunder in accordance with
the terms of the Agreement.
24. The Escrow Agent may resign at any time from its obligations under this
Escrow Agreement by providing written notice to the Partnership. Such
resignation shall be effective on the date specified in such notice which shall
be not less than thirty (30) days after such written notice has been given. The
Escrow Agent shall have no responsibility for the appointment of a successor
escrow agent.
25. The Escrow Agent may be removed for cause by the Partnership by written
notice to the Escrow Agent effective on the date specified in such written
notice. The removal of the Escrow Agent shall not deprive the Escrow Agent of
its compensation earned prior to such removal.
[Signature page follows]
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Agreed to as of the ____ day of ________________, 2002.
BEHRINGER HARVARD SHORT-TERM OPPORTUNITY
FUND I LP
By:
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Xxxxxx X. Xxxxxxxxx, General Partner
BEHRINGER SECURITIES LP
By: Harvard Property Trust, LLC
Its General Partner
By:
----------------------------------------
Xxxxxx X. Xxxxxxx, III
Chief Operating Officer
The terms and conditions contained above are hereby accepted and agreed to by:
XXXXX FARGO BANK IOWA, NATIONAL ASSOCIATION, AS ESCROW AGENT
By:
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Name:
----------------------------------------
Title:
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EXHIBIT A
[Form of Notice to Pennsylvania Subscribers]
You have tendered a subscription to purchase units of limited partnership
interest of Behringer Harvard Short-Term Opportunity Fund I LP (the
"Partnership"). Your subscription is currently being held in escrow. The
guidelines of the Pennsylvania Securities Commission do not permit the
Partnership to accept subscriptions from Pennsylvania residents until an
aggregate of $4,125,000 of gross offering proceeds have been received by the
Partnership. The Pennsylvania guidelines provide that until this minimum amount
of offering proceeds is received by the Partnership, every 120 days during the
offering period Pennsylvania Subscribers may request that their subscription be
returned.
If you wish to continue your subscription in escrow until the Pennsylvania
minimum subscription amount is received, nothing further is required.
If you wish to terminate your subscription for the Partnership's units of
limited partnership interest and have your subscription returned please so
indicate below, sign, date, and return to the Escrow Agent, Xxxxx Fargo Bank
Iowa, National Association, at the address below.
I hereby terminate my prior subscription to purchase units of limited
partnership interest of Behringer Harvard Short-Term Opportunity Fund I LP and
request the return of my subscription funds. I certify to Behringer Harvard
Short-Term Opportunity Fund I LP that I am a resident of Pennsylvania.
Signature:
--------------------------------
Name:
--------------------------------
(please print)
Date:
--------------------------------
Please send the subscription refund to:
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EXHIBIT B
PENNSYLVANIA AND NEW YORK ARRANGEMENTS
EXHIBIT C
ESCROW AGENT COMPENSATION
