EXHIBIT 10.2
ESCROW AGREEMENT
▇▇▇▇▇ Fargo Bank Iowa, National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇
Corporate Trust Services, ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Behringer Harvard Mid-Term Value Enhancement Fund I LP
Ladies and Gentlemen:
BEHRINGER HARVARD MID-TERM VALUE ENHANCEMENT 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 ▇▇▇▇▇ 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 all nonaffiliates of the Partnership, the Partnership has received
subscriptions for Units resulting in total minimum capital raised of $2,000,000
(the "Required Capital"); (ii) in the case of subscriptions received from
residents of Pennsylvania ("Pennsylvania Subscribers") and Nebraska ("Nebraska
Subscribers"), the Partnership has received subscriptions for Units from
nonaffiliates of the Partnership resulting in total minimum capital raised of
$22,000,000 (the "Pennsylvania/Nebraska 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 $2,500,000 (the "New York Required Capital").
The Partnership hereby appoints ▇▇▇▇▇ 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
"▇▇▇▇▇ Fargo Bank Iowa, N.A., Escrow Agent for Behringer Harvard Mid-Term Value
Enhancement Fund I LP." Any checks, drafts or money orders received made payable
to a party other than the Escrow Agent shall be returned to the soliciting
dealer who submitted the check, draft or money order. Within one (1) business
day after receipt of instruments of payment from the Offering, the Dealer
Manager will (a) send to the Escrow Agent: each Subscriber's name, address,
executed IRS Form W-9, number of Units purchased, and purchase price remitted,
and (b) deposit the instruments of payment from such Subscribers (the
"Subscription Materials"), into an interest-bearing deposit account entitled
"ESCROW ACCOUNT FOR THE BENEFIT OF SUBSCRIBERS FOR UNITS OF BEHRINGER HARVARD
MID-TERM VALUE ENHANCEMENT FUND I LP" (the "Escrow Account"), which deposit
shall occur within one (1) business day after the Dealer Manager's receipt of
all the Subscription Materials, until such Escrow Account has closed pursuant to
paragraph 3(a) hereof. Instruments of payment received from Pennsylvania
Subscribers and Nebraska Subscribers (as identified as such by the Partnership)
shall be accounted for separately in a subaccount entitled "ESCROW ACCOUNT FOR
THE BENEFIT OF PENNSYLVANIA AND NEBRASKA SUBSCRIBERS" (the
"Pennsylvania/Nebraska Escrow Account"), until such Pennsylvania/Nebraska Escrow
Account has closed pursuant to
paragraph 3(a) hereof. 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. The Director of Banking and Finance of the
State of Nebraska shall have the right to inspect and make copies of the records
of the Escrow Agent relating to the Pennsylvania/Nebraska Escrow Account at any
reasonable time wherever the records are located. Each of the Escrow Account,
the Pennsylvania/Nebraska 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/Nebraska
Escrow Account, or New York Escrow Account. Deposits shall be held in the Escrow
Account, the Pennsylvania/Nebraska Escrow Account, and the New York Escrow
Account until such funds are disbursed in accordance with paragraph 3 hereof.
Prior to disbursement of the funds deposited in the Escrow Account, such funds
shall not be subject to claims by creditors of the Company, the Dealer Manager
or any of their affiliates. 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/Nebraska 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/Nebraska 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/Nebraska 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 Nebraska 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/Nebraska Escrow Account to the Escrow Agent until
such time as the Partnership notifies the Escrow Agent in
writing that total subscription proceeds (including the amount
then in the Pennsylvania/Nebraska Escrow Account) equal or
exceed the Pennsylvania/Nebraska Required Capital. Upon
receipt of a written notice from the Partnership that total
subscription proceeds (not including the amount then in the
Pennsylvania/Nebraska Escrow Account) equaling or exceeding
the Pennsylvania/Nebraska Required Capital have been received
in collected funds, the Escrow Agent shall promptly notify the
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Partnership and provide to the Director of Banking and Finance
of the State of Nebraska an affidavit which states that all of
the conditions of this Agreement relating to the
Pennsylvania/Nebraska Escrow Account have been met (the
"Escrow Agent Affidavit"). Upon receipt of such notice, the
Partnership shall provide the Director of Banking and Finance
of the State of Nebraska an affidavit which states that there
have been no material omissions or changes in the financial
condition of the Partnership or other changes of circumstance,
that would render the Pennsylvania/Nebraska Required Capital
inadequate to finance the Partnership's proposed plan of
operations or business, or render the representations in the
Partnership's registration statement, as amended through such
time, fraudulent, false or misleading (the "Partnership
Affidavit"). Five days after the Escrow Agent Affidavit and
the Partnership Affidavit have been provided to the Director
of Banking and Finance of the State of Nebraska, the Escrow
Agent shall (A) disburse to the Partnership, by check, ACH or
wire transfer, the funds then in the Pennsylvania/Nebraska
Escrow Account representing the gross purchase price for the
Units, and (B) disburse to the Pennsylvania Subscribers, the
Nebraska 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/Nebraska Escrow Account, and thereafter
any Subscription Materials and instruments of payment received
by the Escrow Agent from Pennsylvania Subscribers and Nebraska
Subscribers shall be deposited directly to the Escrow Account
(or to the 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 __________ ___, 2004 (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/Nebraska Escrow Account, and the New York Escrow Account
on behalf of such Subscriber (unless earlier
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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 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 nonaffiliated sources that equal or exceed the
Pennsylvania/Nebraska Required Capital, the Escrow Agent shall promptly
notify the Partnership. Thereafter, the Partnership shall send to each
Pennsylvania Subscriber and each Nebraska Subscriber by certified mail
within ten (10) calendar days after the end of the Initial Escrow
period a notification in the form of Exhibit A. If, pursuant to such
notification, a Pennsylvania Subscriber or a Nebraska Subscriber
requests the return of his or her subscription funds within ten (10)
calendar days after receipt of the notification (the "Request Period")
and the Escrow Agent is not in possession of an executed IRS form W-9,
the Partnership shall provide the Escrow Agent with an executed IRS
Form W-9 from each such Pennsylvania Subscriber or Nebraska Subscriber,
as the case may be, within ten (10) calendar days after receiving
notice from such Pennsylvania Subscriber or Nebraska Subscriber. The
Escrow Agent shall promptly refund directly to each Pennsylvania
Subscriber or Nebraska Subscriber, as the case may be, the collected
funds deposited in the Pennsylvania/Nebraska Escrow Account on behalf
of such Pennsylvania Subscriber or Nebraska Subscriber, or shall return
the instruments of payment delivered, but not yet processed for
collection prior to such time, to the address provided by the Dealer
Manager or the 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 or Nebraska Subscriber
within ten (10) calendar days, the Escrow Agent shall thereupon remit
an amount to such Pennsylvania Subscriber or Nebraska Subscriber, as
the case may be, in accordance with the provisions hereof, withholding
thirty percent (30%) of any interest income earned on subscription
proceeds (determined in accordance with paragraph 7) attributable to
such Pennsylvania Subscriber or Nebraska Subscriber for whom the Escrow
Agent does not possess an executed IRS Form W-9. However, the Escrow
Agent shall not be required to remit such payments until funds
represented by such payments have been collected by the Escrow Agent.
(d) The subscription funds of Pennsylvania Subscribers and Nebraska
Subscribers who do not request the return of their subscription funds
within the Request Period shall remain in the Pennsylvania/Nebraska
Escrow Account for successive 120-day escrow periods (a "Successive
Escrow Period"), each commencing automatically upon the termination of
the prior Successive Escrow Period, and the 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/Nebraska
Required Capital and the disbursement of the Pennsylvania/Nebraska
Escrow Account on the terms specified herein, or (iii) all funds held
in the Pennsylvania/Nebraska Escrow Account having been returned to the
Pennsylvania Subscribers and Nebraska Subscribers in accordance with
the provisions hereof.
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(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 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.
In the event that instruments of payment are returned for nonpayment,
the Escrow Agent is authorized to debit the Escrow Account, the
Pennsylvania/Nebraska Escrow Account, or the New York Escrow Account, as
applicable, in accordance with paragraph 2 hereof.
4. The Escrow Agent shall report to the Partnership weekly on the account
balances in the Escrow Account, the Pennsylvania/Nebraska 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/Nebraska 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/Nebraska Escrow Account, and
the New York Escrow Account, as applicable, in the "Short-Term Investments"
specified below, unless the costs to the Partnership for the making of such
investment are reasonably expected to exceed the anticipated interest earnings
from such investment in which case the funds and interest thereon shall remain
in the respective escrow account until the balance in the respective escrow
account reaches the minimum amount necessary for the anticipated interest
earnings from such investment to exceed the costs to the Partnership for the
making of such investment, as determined by the Partnership based upon
applicable interest rates.
"Short-Term Investments" include obligations of, or obligations
guaranteed by, the United States government or bank money-market accounts or
certificates of deposit of national or state banks that have deposits insured by
the Federal Deposit Insurance Corporation (including certificates of deposit of
any bank acting as a depository or custodian for any such funds) which mature on
or before the Expiration Date, unless such instrument cannot be readily sold or
otherwise disposed of for cash by the Expiration
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Date without any dissipation of the offering proceeds invested. Without limiting
the generality of the foregoing, Exhibit B hereto sets forth specific Short-Term
Investments which shall be deemed permissible investments hereunder.
The following securities are not permissible investments:
(a) money market mutual funds;
(b) corporate equity or debt securities;
(c) repurchase agreements;
(d) bankers' acceptances;
(e) commercial paper; and
(f) municipal securities.
It is hereby expressly agreed and stipulated by the parties hereto that the
Escrow Agent shall not be required to exercise any discretion hereunder and
shall have no investment or management responsibility and, accordingly, shall
have no duty to, or liability for its failure to, provide investment
recommendations or investment advice to the parties hereto. It is the intention
of the parties hereto that the Escrow Agent shall never be required to use,
advance or risk its own funds or otherwise incur financial liability in the
performance of any of its duties or the exercise of any of its rights and powers
hereunder.
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 or Nebraska Subscribers elects to have his or her
subscription returned in accordance with paragraph 3, interest income earned on
subscription proceeds deposited in the Escrow Account (the "Escrow Income"), the
Pennsylvania/Nebraska Escrow Account (the "Pennsylvania/Nebraska Escrow
Income"), and the New York Escrow Account (the "New York Escrow Income") shall
be remitted to Subscribers, or to the Partnership if the applicable Subscriber's
funds have been held in escrow by the Escrow Agent for less than 35 days, in
accordance with paragraph 3 and without any deductions for escrow expenses. For
each Subscriber who has invested funds that have been held in escrow by the
Escrow Agent for at least 35 days, such Subscriber's pro rata portion of Escrow
Income, Pennsylvania/Nebraska Escrow Income, or New York Escrow Income, as
applicable, shall be determined as follows: the total amount of Escrow Income
(or Pennsylvania/Nebraska Escrow Income or New York Escrow Income, as
appropriate) minus interest earned on accepted subscription proceeds held by the
Escrow Agent for less than 35 days shall be multiplied by a fraction, (i) the
numerator of which is determined by multiplying the number of Units purchased by
said Subscriber times the number of days said Subscriber's proceeds are held in
the Escrow Account, the Pennsylvania/Nebraska 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 Subscribers in such
account who have invested funds that have been held in escrow by the Escrow
Agent for at least 35 days. The Partnership shall reimburse the Escrow Agent for
all escrow expenses. The Escrow Agent shall remit all such Escrow Income,
Pennsylvania/Nebraska 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
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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 paragraph 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 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 Mid-Term Value Enhancement Fund I LP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Partner
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(b) if to the Dealer Manager:
Behringer Securities LP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Operating Officer of Harvard Property Trust,
LLC, General Partner
(c) if to the Escrow Agent:
▇▇▇▇▇ Fargo Bank Iowa, National Association
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇
Corporate Trust Services, ▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇.▇. ▇▇▇▇▇
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.
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 ▇▇▇▇▇ 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, Nebraska 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.
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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/Nebraska Escrow Account and the New York Escrow
Account are distributed either (a) to the Partnership or to Subscribers and the
Partnership has informed the Escrow Agent in writing to close the Escrow
Account, the Pennsylvania/Nebraska Escrow Account and the New York Escrow
Account 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, in
compliance with its policy and procedures, of each subscription check prior to
depositing the check in the Escrow Account, the Pennsylvania/Nebraska Escrow
Account or the New York Escrow Account and shall inform the Partnership if a
subscription check fails the OFAC search. The Dealer Manager shall provide a
copy of each subscription check in order that the Escrow Agent may perform such
OFAC search.
23. This Agreement shall not be modified, revoked, released, or terminated
unless reduced to writing and signed by all parties hereto, subject to the
following paragraph.
If, at any time, any attempt is made to modify this Agreement in a manner that
would increase the duties and responsibilities of the Escrow Agent or to modify
this Agreement in any manner which the Escrow Agent shall deem undesirable, or
at any other time, the Escrow Agent may resign by providing written notice to
the 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]
-9-
Agreed to as of the ____ day of ________________, 2003.
BEHRINGER HARVARD MID-TERM VALUE ENHANCEMENT
FUND I LP
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, General Partner
BEHRINGER SECURITIES LP
By: Harvard Property Trust, LLC
Its General Partner
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Chief Operating Officer
The terms and conditions contained above are hereby accepted and agreed to by:
▇▇▇▇▇ FARGO BANK IOWA, NATIONAL ASSOCIATION, AS ESCROW AGENT
By:
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Name:
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Title:
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-10-
EXHIBIT A
[Form of Notice to Pennsylvania Subscribers and Nebraska Subscribers]
You have tendered a subscription to purchase units of limited partnership
interest of Behringer Harvard Mid-Term Value Enhancement 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 $22,000,000 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. The Nebraska Securities Commission has imposed similar requirements on
the Partnership with respect to subscriptions from Nebraska residents.
If you wish to continue your subscription in escrow until the
Pennsylvania/Nebraska minimum subscription amount is received, nothing further
is required.
If you wish to terminate your subscription for the Partnership's units of
limited partnership interest and have your subscription returned please so
indicate below, sign, date, and return to the Escrow Agent, ▇▇▇▇▇ Fargo Bank
Iowa, National Association, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇, Corporate Trust Services,
▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
I hereby terminate my prior subscription to purchase units of limited
partnership interest of Behringer Harvard Mid-Term Value Enhancement Fund I LP
and request the return of my subscription funds. I certify to Behringer Harvard
Mid-Term Value Enhancement Fund I LP that I am a resident of either Pennsylvania
or Nebraska.
Signature:
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Name:
---------------------------------
(please print)
Date:
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Please send the subscription refund to:
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EXHIBIT B
PERMISSIBLE ESCROW INVESTMENTS
(i) obligations issued or guaranteed by the United States or by any person
controlled or supervised by or acting as an instrumentality of the
United States pursuant to authority granted by Congress, or an
investment fund consisting of such obligations;
(ii) obligations issued or guaranteed by any state or political subdivision
thereof rated either: AA or higher or MIG 1 or higher, by ▇▇▇▇▇'▇
Investors Service, Inc.; or AA or higher or an equivalent, by Standard
& Poor's Corporation, both of New York, New York, or their successors;
(iii) commercial or finance paper which is rated either: Prime-1 or higher,
or an equivalent by ▇▇▇▇▇'▇ Investors Service, Inc.; or A-1 or higher
or any equivalent by Standard & Poor's Corporation, both of New York,
New York, or their successors; or
(iv) certificates of deposit or time deposits of banks or trust companies,
organized under the laws of the United States or any state.
EXHIBIT C
ESCROW AGENT COMPENSATION
