EXHIBIT 10.4
ESCROW AGREEMENT
Xxxxx Fargo Bank Iowa, National Association
000 Xxxxxx X0000-000
Corporate Trust Services, XXX
Xxx Xxxxxx, XX 00000
Re: Behringer Harvard REIT I, Inc.
Ladies and Gentlemen:
BEHRINGER HARVARD REIT I, INC., a Maryland corporation (the "Company"), will
issue in a public offering (the "Offering") shares of its common stock (the
"Stock") pursuant to a Registration Statement on Form S-11 filed by the Company
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 Stock. The Company 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 Stock in the Offering until such time as: (i) proceeds from nonaffiliates
of the Company have been received for Stock, resulting in total minimum capital
raised of $2,500,000 (the "Required Capital"); (ii) in the case of proceeds
received from residents of Pennsylvania ("Pennsylvania Investors"), the Company
has received subscriptions for Stock resulting in total minimum capital raised
of $44,000,000, not including subscriptions from Pennsylvania Investors (the
"Pennsylvania Required Capital"); and (iii) in the case of subscriptions
received from residents of New York ("New York Investors"), the Company has
received proceeds for Stock resulting in total minimum capital raised of
$2,500,000, not including proceeds from New York Investors (the "New York
Required Capital").
The Company hereby appoints Xxxxx Fargo Bank Iowa, National Association as
Escrow Agent for purposes of holding the proceeds from the subscriptions for the
Stock, on the terms and conditions hereinafter set forth:
1. Persons subscribing to purchase the Stock (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, Behringer Harvard REIT I, Inc." 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 shares 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 COMMON STOCK OF
BEHRINGER HARVARD REIT I, INC." (the "Escrow Account"), which deposit shall
occur within one (1) business day after its receipt of all the Subscription
Materials, until such Escrow Account has closed pursuant to Section 3(a) hereof.
Instruments of payment received from Pennsylvania Investors (as identified as
such by the Company) shall be accounted for separately in a subaccount entitled
"ESCROW ACCOUNT FOR THE BENEFIT OF PENNSYLVANIA INVESTORS" (the "Pennsylvania
Escrow Account"), until such Pennsylvania Escrow Account has closed pursuant to
Section 3(a) hereof. Instruments of payment received from New York Investors (as
identified as such by the Company) shall be accounted for separately in a
subaccount entitled "ESCROW ACCOUNT FOR THE BENEFIT OF NEW YORK INVESTORS" (the
"New York Escrow Account"), until such New York Escrow Account has closed
pursuant to Section 3(a) hereof. Each of the Escrow Accounts, 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
Investors, the Pennsylvania Required Capital or, in connection with
subscriptions from New York Investors, the New York Required Capital, the Escrow
Agent shall promptly notify the Dealer Manager and the Company 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 Company and, upon receiving
written instruction from the Company, (A) disburse to the
Company, by check, ACH or wire transfer, the funds in the
Escrow Account representing the gross purchase price for the
Stock, and (B) disburse to the Subscribers or the Company, 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 Company shall continue to
cause subscriptions for the Stock that are not to be deposited
in the Pennsylvania Escrow Account or the New York Escrow
Account to be deposited therein until the Company 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 Investors and New York Investors shall be
forwarded directly to the Company.
(ii) regardless of any closing of the Escrow Account, the
Company and the Dealer Manager shall continue to forward
instruments of payment and Subscription Materials received
from Pennsylvania Investors for deposit into the Pennsylvania
Escrow Account to the Escrow Agent until such time as the
Company 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
Company 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
Company, by check, ACH or wire transfer, the funds then in the
Pennsylvania Escrow Account representing the gross purchase
price for the Stock, and (B) disburse to the Pennsylvania
Investors or the Company, as applicable, any interest thereon
pursuant to the provisions of subparagraph 3(f). Following
such disbursements, the Pennsylvania Escrow Account will close
and thereafter any Subscription Materials and instruments of
payment received by the Escrow Agent from Pennsylvania
Investors shall be deposited directly to the Escrow Account
(or to the Company, if it has closed the Escrow Account, as
instructed in writing by the Company).
(iii) regardless of any closing of the Escrow Account, the
Company and the Dealer Manager shall continue to forward
instruments of payment and Subscription Materials received
from New York Investors for deposit into the New York Escrow
Account to the Escrow Agent until such time as the Company
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 Company 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 Company, by check, ACH
or wire transfer, the funds then in the New York Escrow
Account representing the gross purchase price for the Stock,
and (B) disburse to the New York Investors or the Company, as
applicable, any interest thereon pursuant to the provisions of
subparagraph 3(f). Following such disbursements, the New York
Escrow Account will close and thereafter any Subscription
Materials and instruments of payment received by the Escrow
Agent
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from New York Investors shall be deposited directly to the
Escrow Account (or to the Company, if it has closed the Escrow
Account, as instructed in writing by the Company).
(b) If, at the close of business on __________ ___, 2003 (the
"Expiration Date") the Escrow Agent shall promptly notify the Company
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 Stock
providing for total purchase proceeds that equal or exceed the Required
Capital (from all sources but exclusive of any funds received from
subscriptions for Stock from entities which the Company has notified
the Escrow Agent are affiliated with the Company). In the event, the
Escrow Agent is not in possession of an executed IRS Form W-9 from any
Subscriber, the Company 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 Company. 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 Company 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 Stock providing for total purchase proceeds (from
all sources other than Pennsylvania Investors) that equal or exceed the
Pennsylvania Required Capital, the Escrow Agent shall promptly notify
the Company. Thereafter, the Company shall send to each Pennsylvania
Investor 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 Investor 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 Company
shall provide the Escrow Agent with an executed IRS Form W-9 from each
such Pennsylvania Investor within ten (10) calendar days after
receiving notice from such Pennsylvania Investor. The Escrow Agent
shall promptly refund directly to each Pennsylvania Investor the
collected funds deposited in the Pennsylvania Escrow Account on behalf
of such Pennsylvania Investor, 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 Company,
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 Investor within ten (10) calendar days, the Escrow Agent
shall thereupon remit an amount to such Pennsylvania Investor 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 Investor
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 Investors 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
Company 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 Company of subscriptions for the purchase of
Stock with total collected funds that equal or exceed the Pennsylvania
Required Capital and the disbursement of the
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Pennsylvania Escrow Account on the terms specified herein, or (iii) all
funds held in the Pennsylvania Escrow Account having been returned to
the Pennsylvania Investors in accordance with the provisions hereof.
(e) If the Company rejects any subscription for which the Escrow Agent
has collected funds, the Escrow Agent shall, upon the written request
of the Company, promptly issue a refund to the rejected Subscriber. If
the Company 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 Company'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 Company 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 Company.
4. The Escrow Agent shall report to the Company 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 can be
readily sold or otherwise disposed of for cash without any disposition 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.
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The Escrow Agent shall invest the funds deposited in the Escrow Account, the
Pennsylvania Escrow Account, and the New York Escrow Account in the arrangements
provided in Exhibit C attached hereto.
6. The Escrow Agent is entitled to rely upon written instructions received from
the Company, 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 Company are unclear, the Escrow Agent may request
clarification from the Company prior to taking any action, and if such
instructions continue to be unclear, the Escrow Agent may rely upon written
instructions from the Company'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 which 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 Company.
7. If the Offering terminates prior to receipt of the Required Capital or one or
more Pennsylvania Investors 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 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 shares of Stock 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 Company
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. Upon receiving the Required Capital and
if the Company chooses to leave the Escrow Account open after receiving the
Required Capital than 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 as set
forth above as of the day of such acceptance.
8. The Escrow Agent shall receive compensation as set forth in Exhibit B
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 Company 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 Company 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
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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 Company:
Behringer Harvard REIT I, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: President and Chief Executive Officer
(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.
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 Company and the Dealer Manager hereby acknowledge that Xxxxx Fargo Bank
Iowa, N.A. 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 Company or have approved, endorsed, or passed
upon the merits of the Stock or the Company, nor shall they use the name of the
Escrow Agent in any manner whatsoever in connection with the offer or sale of
the Stock 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.
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17. Except as otherwise required for subscription funds received from
Pennsylvania Investors and New York Investors 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 Company, 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 Company. The application of said funds into a deposit account or
to forward such funds directly to the Company, in other case directed by the
Company 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 are distributed either (a) to the Company or to Subscribers pursuant to
paragraph 3 hereof or (b) to a successor escrow agent upon written instructions
from the Company.
22. The Escrow Agent has no responsibility for accepting, rejecting, or
approving subscriptions.
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 Company and until (a) the acceptance by a successor escrow agent as shall be
appointed by the Company; 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 Company. 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 Company 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 REIT I, INC.
By:
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Xxxxxx X. Xxxxxxxxx, President
BEHRINGER SECURITIES LP
By: Harvard Property Trust, LLC
Its General Partner
By:
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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
By:
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Name:
-----------------------------------
Title:
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EXHIBIT A
[Form of Notice to Pennsylvania Investors]
You have tendered a subscription to purchase shares of common stock of Behringer
Harvard REIT I, Inc. (the "Company"). Your subscription is currently being held
in escrow. The guidelines of the Pennsylvania Securities Commission do not
permit the Company to accept subscriptions from Pennsylvania residents until an
aggregate of $44,000,000 of gross offering proceeds have been received by the
Company. The Pennsylvania guidelines provide that until this minimum amount of
offering proceeds is received by the Company, 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 Company's common stock and
have your subscription returned please so indicate below, sign, date, and return
to the Escrow Agent, Xxxxx Fargo Bank, at the address below.
I hereby terminate my prior subscription to purchase shares of common stock of
Behringer Harvard REIT I, Inc. and request the return of my subscription funds.
I certify to Behringer Harvard REIT I, Inc. that I am a resident of
Pennsylvania.
Signature
Signature:
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Name:
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(please print)
Date:
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Please send the subscription refund to:
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