Exhibit 10.1


 


SECOND AMENDMENT


TO THE


FIFTH AMENDED AND RESTATED 

PROPERTY MANAGEMENT AND LEASING AGREEMENT


 


This SECOND AMENDMENT TO THE FIFTH AMENDED AND
RESTATED PROPERTY MANAGEMENT AND LEASING AGREEMENT (the “Amendment”) is made and entered
into as of this 13th day of August, 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, as amended by the First Amendment to the Fifth Amended
and Restated Property Management and Leasing Agreement dated June 25, 2008
(the “Agreement”).


 


WHEREAS, the Parties desire to amend the Agreement to
clarify how technology costs and expenses related to the Properties will be
paid and to clarify when construction management fees are 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 1.16, as follows:


 


                1.16         “Construction Work” has the
meaning set forth in Section 5.2 hereof.


 


3.             Amendment
to Section 4.1.  Section 4.1
of the Agreement is hereby amended by deleting it in its entirety and replacing
it with the following:


 


4.1           Owner’s Expenses.  Except as otherwise specifically provided,
all costs and expenses incurred hereunder by Manager in fulfilling its duties
to Owner shall be for the account of and on behalf of Owner.  Such costs and expenses shall include the
wages and salaries and other employee-related expenses of all on-site and
off-site employees of Manager who are engaged in the operation, management,
maintenance and leasing or access control of the Properties, including taxes,
insurance and benefits relating to such employees, costs of technology related
to the Properties, including computers, telephone systems and property
management and accounting software and any upgrades or conversions thereof, and
legal, travel and other out-of-pocket expenses that are directly related to the
management of specific Properties.  All
costs and expenses for which 


 


 

















 


 


Owner is responsible
under this Management Agreement shall be paid by Manager out of the
Account.  In the event the Account does
not contain sufficient funds to pay all said expenses, Owner shall fund all
sums necessary to meet such additional costs and expenses.


 


                4.             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 reconstruction and tenant improvements (collectively, “Construction
Work”).  In the event that Manager
supervises the Construction Work with respect to a Property, Owner shall pay
Manager a construction supervision fee equal to an amount not greater than five
percent (5%) of all hard construction costs incurred in connection with the
Construction Work.  Owner shall pay
construction supervision fees at the same time it makes payments to any third
party contractors in respect of any Construction Work at that Property.


 


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.


 


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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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