Exhibit 10.2


 


FIRST AMENDMENT


TO


SECOND AMENDED AND RESTATED  

PROPERTY MANAGEMENT AND LEASING AGREEMENT


 


This FIRST AMENDMENT TO THE SECOND AMENDED AND RESTATED PROPERTY
MANAGEMENT AND LEASING AGREEMENT (the “Amendment”) is made and entered into as of this 23rd  day of June, 2008 by and among BEHRINGER
HARVARD OPPORTUNITY REIT I, INC., a Maryland corporation (“BH OP REIT”),
BEHRINGER HARVARD OPPORTUNITY OP I, LP, a Texas limited partnership (“BH OP”),
BEHRINGER HARVARD OPPORTUNITY MANAGEMENT SERVICES, LLC, a Texas limited
liability company (“BHOMS”), HPT MANAGEMENT SERVICES LP, a Texas limited
partnership (“HPT” and collectively with BHOMS, the “Manager”),
Behringer Harvard Real Estate Services, LLC, a Texas limited liability company
(“BHRES”), and Behringer Harvard Cordillera, LLC, a Delaware limited
liability company, Behringer Harvard Whitewater, LLC, a Delaware limited
liability company, Behringer Harvard Northpoint LP, a Delaware limited
partnership, Behringer Harvard Alexan Voss, LLC, a Delaware limited liability
company, Behringer Harvard Augusta LP, a Delaware limited partnership,
Behringer Harvard Bent Tree LP, a Delaware limited partnership, Behringer
Harvard TCU, LLC, a Delaware limited liability company, Behringer Harvard Bowen
Road LP, a Delaware limited partnership, Behringer Harvard Frisco Square LP, a
Delaware limited partnership, Behringer Harvard Las Colinas LP, a Delaware
limited partnership, Behringer Harvard Regency LP, a Delaware limited
partnership, Behringer Harvard Northborough Tower LP, a Delaware limited
partnership, Behringer Harvard Rio Salado, LLC, a Delaware limited liability
company, Behringer Harvard Santa Clara LP, a Delaware limited partnership,
Behringer Harvard UVA, LLC, a Delaware limited liability company, Chase Park
Plaza Hotel, LLC, a Delaware limited liability company, The Private Residences,
LLC, a Delaware limited liability company, Behringer Harvard Alexan Nevada,
LLC, a Delaware limited liability company, Behringer Harvard Alexan Voss, LLC,
a Delaware liability company, and Behringer Harvard Ferncroft, LLC, a Delaware
limited liability company (each, individually, an “SPE” and,
collectively, the “SPEs”).  BH OP
REIT, BH OP, BHOMS, BHRES and HPT together with the SPEs shall be called the “Parties.”


 


WHEREAS, the BH OP, BH OP REIT and HPT previously entered into that
certain Property Management and Leasing Agreement dated September 20,
2005, as amended and restated by the Amended and Restated Property Management
and Leasing Agreement dated March 9, 2006, and the Second Amended and
Restated Property Management and Leasing Agreement dated as of December 29,
2006 (as so amended, the “Agreement”).


 


WHEREAS, BHRES and each SPE became a party to the Agreement pursuant to
the execution of a partial assignment and assumption of the Agreement.


 


WHEREAS, the Parties desire to amend the Agreement to explain how
Management Fees will be paid in respect of Properties owned by joint ventures,
to decrease the amount of oversight fees payable to Manager and to prohibit BH
OP REIT and BH OP from soliciting the employees of Manager and its affiliates
during the term of the Agreement and for the one-year period following the
termination thereof.


 

















 


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 Article I.  Article I of
the Agreement is hereby amended by adding Sections 1.12, 1.13 and 1.14, as
follows:


 


1.12                           “Economic
Interest Percentage” means the percentage of capital contributed directly
or indirectly to the Joint Venture as compared with the total capital
contributed to the Joint Venture by all of the owners of the Joint Venture as
the percentage shall be calculated in good faith by the Owner.  Any in-kind contribution shall be considered
in the calculation of the Economic Interest Percentage and valued at the fair
market value of the contribution on the date of contribution as determined by
the Owner.


 


1.13                           “Joint
Venture” means an investment in a legal organization formed to provide for
the sharing of the risks and rewards in an enterprise co-owned and operated for
mutual benefit by two or more business partners and established to acquire or
hold Properties.


 


1.14                           “Oversight
Fee” has the meaning set forth in Section 5.1 hereof.


 


3.                                       Amendment
to Section 5.1.  Section 5.1
of the Agreement is hereby deleted in its entirety and replaced with the
following:


 


5.1                                 Management
Fees.  Owner shall pay Manager
property management and leasing fees in an amount equal to four and one-half
percent (4.5%) of Gross Revenues (the “Management Fee”) on a monthly
basis from the rental income received from the Properties over the term of this
Management Agreement.  Certain of these
Properties may be owned by Joint Ventures. 
When Manager is not paid by the Joint Venture directly in respect of its
services, the compensation to be paid by the Owner to Manager will be
calculated by multiplying the Management Fee by the Economic Interest
Percentage owned directly or indirectly by the Owner in that Property.  In the event that Owner, on or after January 1,
2008, contracts directly with a third-party property manager not affiliated
with Manager in respect of a Property for which the Owner, in its sole
discretion, has the ability to appoint or hire Manager as property manager, Owner
shall pay Manager an oversight fee (“Oversight Fee”) equal to one-half
of one percent (0.50%) of Gross Revenues of such Property to compensate Manager
for transition services to coordinate and align the systems and policies of the
third-party property manager with those of Manager.  In no event will Owner pay both a Management
Fee and an Oversight Fee to Manager with respect to any Property.  If Manager subcontracts its responsibilities
hereunder to another person or entity, Manager shall be solely responsible for
the payment to the third party.  Manager’s compensation under this Section 5.1
shall apply to all renewals, extensions or expansions of Leases that Manager
has originally negotiated.  


 


2

















 


In the event Manager assists
with planning and coordinating the construction of any tenant-paid finish-out
or improvements, Manager shall be entitled to receive from any such tenant an
amount equal to not greater than five percent (5.0%) of the cost of such tenant
improvements.  The Management Fee
includes the reimbursement of the specified cost incurred by Manger of engaging
another person or entity to perform Manager’s responsibilities hereunder; provided,
however, that Manager shall be responsible for payment of all amounts to
these third parties.  Nothing herein
shall prevent Manager from entering fee-splitting arrangements with third
parties with respect to the Management Fee.


 


4.                                       Amendment
to Article VIII.  Article VIII
of the Agreement is hereby amended by adding Section 8.16, as follows:


 


8.16                           Non-Solicitation.  During the period commencing on the date on
which this Agreement is entered into and ending one year following the
termination of this Agreement, neither BH OP REIT nor BH OP shall, without Manager’s
prior written consent, directly or indirectly, (i) solicit or encourage
any person to leave the employment or other service of Manager or its
affiliates or (ii) hire, on behalf of the BH OP REIT, BH OP, or any other
person or entity, any person who has left the employment of Manager or its
affiliates within the one year period following the termination of that person’s
employment with Manager or its affiliates. 
During the period commencing on the date hereof through and ending one
year following the termination of this Agreement, neither BH OP REIT nor BH OP
shall, whether for their own accounts or for the account of any other person,
firm, corporation or other business organization, intentionally interfere with
the relationship of Manager or its affiliates with, or endeavor to entice away
from Manager or its affiliates, any person who during the term of the Agreement
is, or during the preceding one-year period was, a customer of Manager or its
affiliates.


 


5.                                       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.


 


6.                                       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.


 


3

















 


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


 


	
   

  	
   BEHRINGER HARVARD OPPORTUNITY

  REIT I, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
   

  	
  Gerald J. Reihsen, III

  
	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
  Development & Legal

  



 


	
   

  	
   BEHRINGER
  HARVARD OPPORTUNITY

  OP I, LP

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  BHO, Inc.,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   BEHRINGER
  HARVARD OPPORTUNITY

  MANAGEMENT SERVICES, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  IMS, LLC,

  
	
   

  	
   

  	
  its manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   HPT
  MANAGEMENT SERVICES LP

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
  Development & Legal

  
						



 


4

















 


	
   

  	
   

  	
   BEHRINGER HARVARD REAL ESTATE

  SERVICES, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   BEHRINGER HARVARD CORDILLERA,

  LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   BEHRINGER HARVARD WHITEWATER,

  LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   BEHRINGER
  HARVARD NORTHPOINT LP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   BEHRINGER HARVARD ALEXAN
  VOSS,

  LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  



 


5

















 


	
   

  	
   

  	
   BEHRINGER
  HARVARD AUGUSTA LP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   BEHRINGER
  HARVARD BENT TREE LP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   BEHRINGER
  HARVARD TCU, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   BEHRINGER
  HARVARD BOWEN ROAD LP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   BEHRINGER HARVARD FRISCO
  SQUARE

  LP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  



 


6

















 


	
   

  	
   

  	
   BEHRINGER
  HARVARD LAS COLINAS LP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   BEHRINGER
  HARVARD REGENCY LP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   BEHRINGER HARVARD

  NORTHBOROUGH TOWER LP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   BEHRINGER HARVARD RIO SALADO,

  LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   BEHRINGER
  HARVARD SANTA CLARA LP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  



 


7

















 


	
   

  	
   

  	
   BEHRINGER
  HARVARD UVA, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   CHASE
  PARK PLAZA HOTEL, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   THE
  PRIVATE RESIDENCES, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   BEHRINGER HARVARD ALEXAN

  NEVADA, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   BEHRINGER HARVARD ALEXAN
  VOSS,

  LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  



 


8

















 


	
   

  	
   

  	
   BEHRINGER HARVARD FERNCROFT,

  LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
   

  	
  Development & Legal

  



 


9