Exhibit 10.1


 


FIRST AMENDMENT


TO


ADVISORY MANAGEMENT
AGREEMENT


 


This FIRST AMENDMENT TO THE ADVISORY MANAGEMENT
AGREEMENT (the “Amendment”)
is made and entered into as of this 13th day of August, 2008 by and between
BEHRINGER HARVARD OPPORTUNITY REIT II, INC., a Maryland corporation (the “Company”),
and BEHRINGER HARVARD OPPORTUNITY ADVISORS II LP, a Texas limited partnership
(the “Advisor”).


 


WHEREAS, the Company and the Advisor previously
entered into that certain Advisory Management Agreement dated January 4,
2008 (the “Agreement”); and


 


WHEREAS, the Company and the Advisor desire to amend
the Agreement to revise the method of determining how acquisition expenses are
paid effective as of January 1, 2008 and to prohibit the Company from
soliciting the employees of the Advisor 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 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 I.  Article I of
the Agreement is hereby amended by deleting the definition of “Acquisition
Expenses” it in its entirety and replacing it with the following:


 


Acquisition Expenses.  A
non-accountable acquisition expense reimbursement in the amount of: (i) 0.25%
of the funds paid for purchasing an Asset, including any debt attributable to
the Asset, plus 0.25% of the funds budgeted for development, construction or
improvement in the case of Assets that we acquire and intend to develop,
construct or improve or (ii) 0.25% of the funds advanced in respect of a
loan or other investment.   Acquisition
Expenses also include any investment-related expenses due to third parties in
the case of a completed investment, including, but not limited to legal fees
and expenses, travel and communications expenses, costs of appraisals,
accounting fees and expenses, third-party brokerage or finder’s fees, title
insurance, premium expenses and other closing costs.


 


3.                                       Amendment
to Section 3.02(a)(ii) of Article III.  Section 3.02(a)(ii) of Article III
is hereby amended by deleting it in its entirety and replacing it with the
following:


 


(ii)                                  Acquisition Fees and Acquisition Expenses;


 

















 


4.                                       Amendment
to Section 3.02 of Article III. 
Section 3.02 of Article III is hereby amended by adding Section
3.02(c) as follows:


 


                                                (c)                                  Notwithstanding anything to the contrary in
this Section 3.02, the Advisor will be responsible for paying all of the
investment-related expenses that the Company or the Advisor incurs that are due
to third parties with respect to investments the Company does not make.


 


5.                                       Amendment
to Article VI.  Article VI
of the Agreement is hereby amended by adding Section 6.15 as follows:


 


6.15                           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, the Company shall not, without the Advisor’s
prior written consent, directly or indirectly, (i) solicit or encourage
any person to leave the employment or other service of the Advisor or its
affiliates or (ii) hire, on behalf of the Company or any other person or
entity, any person who has left the employment within the one year period
following the termination of that person’s employment the Advisor or its
affiliates.  During the period commencing
on the date hereof through and ending one year following the termination of
this Agreement, the Company shall not, whether for its own account or for the
account of any other person, firm, corporation or other business organization,
intentionally interfere with the relationship of the Advisor or it affiliates
with, or endeavor to entice away from the Advisor or its affiliates, any person
who during the term of the Agreement is, or during the preceding one-year period
was, a customer of the Advisor or its affiliates.


 


6.                                       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.


 


7.                                       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.


 


[Signature
page follows.]


 


2

















 


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


 


	
   

  	
  BEHRINGER
  HARVARD OPPORTUNITY

  REIT II, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/
  Gerald J. Reihsen, III

  
	
   

  	
  Gerald J. Reihsen, III

  
	
   

  	
  Executive Vice President –

  
	
   

  	
  Corporate Development & Legal

  
	
   

  	
   

  
	
   

  	
  BEHRINGER HARVARD OPPORTUNITY

  
	
   

  	
  ADVISORS
  II LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Harvard Property
  Trust, LLC,

  
	
   

  	
  its General
  Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
          /s/
  Gerald J. Reihsen, III

  
	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
  Executive Vice President –

  
	
   

  	
   

  	
  Corporate Development & Legal

  



 


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