Exhibit 10.4


 


THIRD AMENDMENT


TO


PROPERTY MANAGEMENT AND LEASING AGREEMENT


 


This
THIRD AMENDMENT TO THE FIFTH AMENDED AND RESTATED PROPERTY MANAGEMENT AND
LEASING AGREEMENT (the “Amendment”)
is made and entered into as of this 9th day of November, 2010 by and among
BEHRINGER HARVARD REIT I, INC., a Maryland corporation (“BH REIT”),
BEHRINGER HARVARD OPERATING PARTNERSHIP I LP, a Texas limited partnership (“BH
OP”), and HPT MANAGEMENT SERVICES, LLC, a Texas limited liability company
(the “Manager”, and together with BH REIT and BH OP, the “Parties”).


 


WHEREAS,
the Parties previously entered into that certain Fifth Amended and Restated
Property Management and Leasing Agreement, dated May 15, 2008, as amended
by the First Amendment to the Fifth Amended and Restated Property Management
and Leasing Agreement, dated June 25, 2008, and the Second Amendment to
the Fifth Amended and Restated Property Management and Leasing Agreement, dated
August 13, 2008 (the “Agreement”); and


 


WHEREAS,
the Parties desire to amend the Agreement to clarify and revise the
construction management fees payable to Manager.


 


NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the Parties, intending to be legally bound hereby, do hereby agree, as follows:


 


1.             Defined Terms. Any term used
herein that is not otherwise defined herein shall have the meaning ascribed to
such term as provided in the Agreement.


 


2.             Amendment to Section 5.2.  Section 5.2 of the Agreement is hereby
amended by deleting it in its entirety and replacing it with the following:


 


5.2           Construction
Supervision Fees.  Manager shall
supervise construction performed by or on behalf of Owner with respect to the
Properties, including, but not limited to capital repairs and improvements,
major building construction and tenant improvements (collectively, the “Construction
Work”).  Owner shall pay Manager a
construction supervision fee based on hard construction costs incurred in connection
with the Construction Work and in accordance with the rates set forth in Appendix
1 attached hereto.  Owner shall pay
construction supervision fees at the same time it makes payments to any third
party contractors in respect of the Construction Work.


 


4.             Continuing Effect.  Except as otherwise set forth in this
Amendment, the terms of the Agreement shall continue in full force and effect
and shall not be deemed to have otherwise been amended, modified, revised or
altered.


 


5.             Counterparts.  The Parties agree that this Amendment has
been or may be executed in several counterparts, each of which shall be deemed
an original, and all counterparts shall together constitute one and the same
instrument.


 

















 


IN
WITNESS WHEREOF, the Parties have duly executed this Amendment as of the date
first written above.


 


	
   

  	
  BEHRINGER HARVARD REIT I, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Geral J. Reihsen III

  
	
   

  	
   

  	
  Gerald
  J. Reihsen, III

  
	
   

  	
   

  	
  Executive
  Vice President —

  
	
   

  	
   

  	
  Corporate
  Development & Legal

  
	
   

  	
   

  	
   

  
	
   

  	
  BEHRINGER HARVARD OPERATING  PARTNERSHIP I LP

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  BHR, Inc.,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Geral J. Reihsen III

  
	
   

  	
   

  	
   

  	
  Gerald
  J. Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive
  Vice President —

  
	
   

  	
   

  	
   

  	
  Corporate
  Development & Legal

  
	
   

  	
   

  	
   

  
	
   

  	
  HPT MANAGEMENT SERVICES, LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Geral J. Reihsen III

  
	
   

  	
   

  	
  Gerald
  J. Reihsen, III

  
	
   

  	
   

  	
  Executive
  Vice President —

  
	
   

  	
   

  	
  Corporate
  Development & Legal

  



 


2

















 


APPENDIX 1


 


	
   

  	
   

  	
  Construction Management Fees*

  
	
   

  	
   

  	
  Project Size

  
	
   

  	
   

  	
  $1

  	
   

  	
  $200,001

  	
   

  	
  $500,001

  	
   

  	
  $1,000,001

  	
   

  	
   

  
	
   

  	
   

  	
  to

  	
   

  	
  to

  	
   

  	
  to

  	
   

  	
  to

  	
   

  	
  over

  
	
   

  	
   

  	
  $200,000

  	
   

  	
  $500,000

  	
   

  	
  $1,000,000

  	
   

  	
  $2,000,000

  	
   

  	
  $2,000,001

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  On-Site Property Manager

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  On-site
  Property Manager supervises and runs the project on a day-to-day basis; no
  Project Manager or third party firm is involved.

  	
   

  	
  5.0%

  	
   

  	
  4.0%

  	
   

  	
  3.0%

  	
   

  	
  2.0%

  	
   

  	
  1.5%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Project Manager

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Project
  Manager supervises and runs the project; the on-site Property Manager or
  Chief Enginer may assist the Project Manager in day-to-day activities.

  	
   

  	
  5.0%

  	
   

  	
  4.0%

  	
   

  	
  3.0%

  	
   

  	
  2.0%

  	
   

  	
  1.5%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Third Party Firm (Hired by Manager)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A
  third party firm is contracted by Manager to provide construction management
  services; the on-site Property Manager or Chief Engineer may assist in
  day-to-day activities.

  	
   

  	
   

  	
   

  	
  (Per the Third Party Contract)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Administrative Fee to Manager (paid in addition to
  the third party fee) for review of all draw requests, change orders and lien
  waivers submitted by the third party and administration of invoice approval
  and check requests.

  	
   

  	
  2.0%

  	
   

  	
  1.5%

  	
   

  	
  1.5%

  	
   

  	
  1.0%

  	
   

  	
  1.0%

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Third Party Firm (Hired by Tenant)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A
  third party firm is contracted by tenant to provide construction management
  services; the on-site Property Manager and/or Chief Engineer will review and
  approve actions and activities by third party firm.

  	
   

  	
   

  	
   

  	
  (Per the Third Party Contract)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Administrative Fee to Manager (paid in addition to
  the third party fee) for review of all draw requests, change orders and lien
  waivers submitted by the third party and administration of invoice approval
  and check requests.

  	
   

  	
  2.0%

  	
   

  	
  1.5%

  	
   

  	
  1.5%

  	
   

  	
  1.0%

  	
   

  	
  1.0%

  



 






*The calculation of the above fees are cumulative. For example,
for a project supervised by the on-site property manager, the fee is calculated
as 5% on the first $200,000, 4% on the next $300,000, 3% on the next $500,000,
2% on the next $1,000,000 and 1.5% on all amounts over $2,000,001.