Exhibit 10.2


 


FIRST AMENDMENT


TO


PROPERTY MANAGEMENT AND
LEASING AGREEMENT


 


This FIRST AMENDMENT TO THE FIFTH AMENDED AND RESTATED
PROPERTY MANAGEMENT AND LEASING AGREEMENT (the “Amendment”) is made and entered into as of this 25th day of June,
2008 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 LP, a Texas limited
partnership (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 (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 and to decrease the amount of oversight fees payable to the 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 Article I.  Article I of
the Agreement is hereby amended by adding Sections 1.13, 1.14 and 1.15, as
follows:


 


1.13         “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.


 


1.14         “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.


 


1.15         “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 amended by deleting it in its entirety and replacing
it with the following:


 


5.1           Management Fees.  Owner shall pay Manager property management
fees in an amount equal to three percent (3%) of Gross Revenues (the “Management
Fee”) on a monthly basis from the income received from the Properties over
the term of this Management Agreement. 
Certain of these Properties may be owned by Joint Ventures.  When the Manager is not paid by the Joint
Venture directly in respect of its services, the applicable Management Fee or
Oversight Fee (as defined below) to be paid by the Owner 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
contracts directly with a third-party property manager not affiliated with the
Manager in respect of a Property for which the Owner, in its sole discretion,
has the ability to appoint or hire the Manager, Owner shall pay Manager an
oversight fee (“Oversight Fee”) equal to one-half of one percent (0.50%)
of Gross Revenues.  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.  The Management Fee includes the reimbursement
of the specified cost incurred by the 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.             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.


 


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


 


	
   

  	
  BEHRINGER
  HARVARD REIT I, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
      /s/
  Gerald 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/
  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

  



 


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