EXHIBIT
10.1


 


SECOND AMENDMENT


TO


ADVISORY MANAGEMENT
AGREEMENT


 


This SECOND AMENDMENT TO THE FIFTH AMENDED AND
RESTATED ADVISORY MANAGEMENT AGREEMENT (the “Amendment”) is made and entered into as of this 14th day of May,
2009 by and between BEHRINGER HARVARD REIT I, INC., a Maryland corporation (the
“Company”), and BEHRINGER ADVISORS, LLC, a Texas limited liability
company (the “Advisor”).


 


WHEREAS, the Company and the Advisor previously
entered into that certain Fifth Amended and Restated Advisory Management
Agreement dated December 29, 2006, as amended by the First Amendment to
the Fifth Amended and Restated Advisory Management Agreement dated June 25,
2008 (the “Agreement”).


 


WHEREAS, the Company and the Advisor desire to amend
the Agreement to permit the parties to audit the records, books and accounts of
the other party, as related to any fees and reimbursements paid to the Advisor.


 


NOW, THEREFORE, in consideration of the premises and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, 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 Article III.  Article III
of the Agreement is hereby amended by adding Section 3.05, as follows:


 


3.05                           Audit of Advisor Payments.  It
is the intention of the parties hereto to conform strictly to the applicable
provisions hereof as to fees, reimbursements and any other amounts (the “Advisor
Payments”) to be paid to the Advisor hereunder.  However, at any time, either party shall have
the right, upon reasonable written notice, to engage a separate audit, on a
confidential basis, of its own and the other party’s records, books and
accounts in respect of Advisor Payments to ascertain whether the Advisor
Payments were properly determined and paid. 
An audit may be engaged only once in any 12-month period regardless of
which party engages the audit.  Any such
audit shall be conducted by an independent certified public accounting firm of
recognized national standing designated by the party requesting the audit (the “Requesting
Party”), other than the then current auditor of its or any of its Affiliates’
financial statements, and shall be conducted during regular business hours and
in such a manner so as not to interfere with the Company’s or the Advisor’s
regular business activities.  The
Requesting Party shall bear the costs of the audit unless the audit
conclusively reveals an underpayment or overpayment of Advisor Payments adverse
to the Requesting Party in an amount greater than 10% of the total amount of
Advisor Payments owed for the period being inspected, in which case the other
party shall bear the costs of the audit. 
Any auditor who is engaged to perform an audit shall not be compensated
on a contingent basis or any other


 

















 


basis that would tend to
give the auditor an interest in the outcome of the audit, and the auditor shall
perform its audit on an impartial basis and certify in writing as such.  If the audit conclusively reveals an
overpayment or underpayment of Advisor Payments, the Company or the Advisor
shall promptly pay to the other party the amount of the overpayment or
underpayment, as the case may be, without interest; provided, however, that in
the event that the audit conclusively reveals an overpayment of Advisor
Payments and the Advisor has at any time previously waived or forgiven in
writing any Advisor Payments that it would otherwise have been entitled to
hereunder, the Company shall credit against the overpayment any amounts
previously waived or forgiven, without interest, and the Advisor shall not be
obligated to repay the Company to the extent that the overpayments do not
exceed the aggregate of the waived or forgiven amounts not already so credited.  Any underpayment or overpayment under this
Agreement shall not be a breach of this Agreement unless and until an audit
performed in accordance with this Section 3.05 is completed and the party
who may be obligated to make a payment hereunder as a result of such audit shall
have failed to promptly make any required payment.


 


3.                                       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.


 


4.                                       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.


 


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


 


	
   

  	
  BEHRINGER
  HARVARD REIT I, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas F. August

  
	
   

  	
  Name:

  	
  Thomas F. August

  
	
   

  	
  Its:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BEHRINGER ADVISORS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  Harvard Property Trust, LLC,

  
	
   

  	
  its
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
  Gerald J. Reihsen, III

  
	
   

  	
   

  	
  Executive
  Vice President — 

  
	
   

  	
   

  	
  Corporate
  Development & Legal

  
				



 


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