EXHIBIT
10.1


 


FORM OF ADVISORY MANAGEMENT AGREEMENT


 


This ADVISORY MANAGEMENT AGREEMENT (this “Agreement”)
is entered into on this [        ] day of [                    ], 2008, by and between BEHRINGER HARVARD REIT II, INC., a
Maryland corporation (the “Company”), and
BEHRINGER ADVISORS II LP, a Texas limited partnership (the “Advisor”).


 


W I T N E S S E T H


 


WHEREAS, the Company
will be issuing shares of its common stock, par value $0.0001, to the public,
such shares to be registered with the Securities and Exchange Commission and
may subsequently issue additional securities;


 


WHEREAS, the Company
has been formed to acquire and operate a diverse portfolio of real estate
assets such as office, industrial, retail, hospitality, recreation and leisure,
single-tenant and multifamily, public infrastructure assets (such as roads,
correctional facilities and water utilities) and other real properties ;


 


WHEREAS, the Company
intends to qualify as a real estate investment trust and intends to invest its
funds in investments permitted by the terms of the Company’s Articles of
Incorporation and Sections 856 through 860 of the Internal Revenue Code;


 


WHEREAS, the Company
desires to avail itself of the experience, sources of information, advice,
assistance and certain facilities available to the Advisor and to have the
Advisor undertake the duties and responsibilities hereinafter set forth, on
behalf of, and subject to the supervision of, the Board, all as provided
herein; and


 


WHEREAS, the Advisor
is willing to undertake to provide these services, subject to the supervision
of the Board, on the terms and conditions hereinafter set forth.


 


NOW, THEREFORE, in
consideration of the foregoing and of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:


 


ARTICLE I


DEFINITIONS


 


The following defined terms used in this Agreement shall have the
meanings specified below:


 


2%/25% Guidelines.
The requirement pursuant to the NASAA Guidelines that, in any twelve month
period, Total Operating Expenses not exceed the greater of 2% of Average
Invested Assets during the twelve month period or 25% of Net Income over the
same twelve month period.


 


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 the Company acquires and intends 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.


 


Acquisition Fees.
Any and all fees and commissions, exclusive of Acquisition Expenses but
including the Acquisition and Advisory Fees, paid by any Person to any other
duly qualified and licensed Person (including any fees or commissions paid by
or to any duly qualified and licensed Affiliate of the Company or the Advisor)
in connection with making or investing in Mortgages or other loans or the
purchase, development or construction of an Asset, including, without limitation,
real estate commissions, selection fees, investment banking fees, third party
seller’s fees (to the extent the Company agrees to pay any such fees as part of
an acquisition), Development Fees, Construction Fees, non-recurring management
fees, loan fees, points or any other fees of a similar nature. Excluded shall
be Development Fees and Construction Fees paid to any Person not affiliated
with the Sponsor in connection with the actual development and construction of
any Property.


 


Acquisition and Advisory Fees.
The fees payable to the Advisor pursuant to Section 3.01(b).


 


Advisor. Behringer
Advisors II LP, a Texas limited partnership, any successor advisor to the
Company, or any Person to which Behringer Advisors II LP or any successor
advisor subcontracts all or substantially all of its functions.


 


Affiliate or Affiliated. As to
any Person, (i) any Person directly or indirectly owning, controlling, or
holding, with the power to vote, 10% or more of the outstanding voting
securities of the other Person; (ii) any Person 10% or more of whose
outstanding voting securities are directly or indirectly owned, controlled, or
held, with power to vote, by the other Person; (iii) any Person, directly
or indirectly, controlling, controlled by, or under common control with the
other Person; (iv) any executive officer, director, trustee or general
partner of the other Person; and (v) any legal entity for which the Person
acts as an executive officer, director, trustee or general partner.


 


Articles of Incorporation.
The Articles of Incorporation of the Company filed with the Maryland State
Department of Assessments and Taxation in accordance with the Maryland General
Corporation Law, as amended or restated from time to time.


 


Assets. Properties,
Mortgages, loans and other direct or indirect investments (other than
investments in bank accounts, money market funds or other current assets) owned
by the Company, directly or indirectly through one or more of its Affiliates or
Joint Ventures or through other investment interests.


 


Asset Management Fee.
The fee payable to the Advisor for day-to-day professional management services
in connection with the Company and its investments in Assets pursuant to Section 3.01(a) of
this Agreement.


 


Average Invested Assets.
For a specified period, the average of the aggregate book value of the Assets
before deduction for depreciation, bad debts or other non-cash reserves,
computed by taking the average of the values at the end of each month during
the period.


 


Board. The
Board of Directors of the Company.


 


Bylaws. The
bylaws of the Company, as the same are in effect from time to time.


 


2

















 


Change of Control.
Any (i) event (including, without
limitation, issue, transfer or other disposition of Shares of capital stock of
the Company or equity interests in the Partnership, merger, share exchange or
consolidation) after which any “person” (as that term is used in
Sections 13(d) and 14(d) of the Exchange Act) is or becomes the “beneficial
owner” (as defined in Rule 13d-3 of the Exchange Act), directly or
indirectly, of securities of the Company or the Partnership representing
greater than 50% of the combined voting power of the Company’s or the
Partnership’s then outstanding securities, respectively; provided, that
a Change of Control shall not be deemed to occur as a result of any widely
distributed public offering of the Shares or (ii) direct or indirect sale,
transfer, conveyance or other disposition (other than pursuant to clause (i)),
in one or a series of related transactions, of all or substantially all of the
properties or assets of the Company or the Partnership, taken as a whole.


 


Code. Internal
Revenue Code of 1986, as amended from time to time, or any successor statute
thereto. Reference to any provision of the Code shall mean the provision as in
effect from time to time, as the same may be amended, and any successor
provision thereto, as interpreted by any applicable regulations as in effect
from time to time.


 


Company. Behringer
Harvard REIT II, Inc., a corporation organized under the laws of the State
of Maryland. Unless the context clearly indicates otherwise, references to the
Company shall include its direct and indirect subsidiaries, including the
Partnership.


 


Company Acquisition Expenses.
Any and all expenses incurred by the Company in connection with the selection
and acquisition of any Asset, whether or not acquired, including, without
limitation, legal fees and expenses, costs of appraisals, nonrefundable option
payments on property not acquired, accounting fees and expenses, title
insurance premiums and other closing costs.


 


Competitive Real Estate Commission.
A real estate or brokerage commission paid or, if no commission is paid, the
amount that customarily would be paid for the purchase or sale of a Property
that is reasonable, customary, and competitive in light of the size, type and
location of the Property (as determined by the Board, including a majority of
the Independent Directors).


 


Construction Fee.
A fee or other remuneration for acting as general contractor or construction
manager to construct improvements, supervise and coordinate projects or to
provide major repairs or rehabilitations on a Property.


 


Contract Purchase Price.
The amount actually paid in respect of the purchase of a Property, and the
amount budgeted in respect of the development, construction or improvement of a
Property, the amount of funds advanced with respect to a Mortgage or other loan
or the amount actually paid in respect to the purchase of other Assets, in each
case exclusive of Acquisition Fees, Acquisition Expenses and Company
Acquisition Expenses, but including any debt attributable to the acquired
Assets.


 


Contract Sales Price.
The total consideration provided for in the sales contract for the Sale of a
Property.


 


Cost of Investment.
For each Asset, (i) with respect to an Asset wholly owned by the Company
or any wholly owned subsidiary, the Fully Loaded Cost, and (ii) in the
case of an Asset owned by any Joint Venture or in some other manner in which
the Company is a co-venturer or partner or otherwise a co-owner, (A) the
Fully Loaded Cost if the Company (or any subsidiary) owns a 100% interest,
directly or indirectly, in the Asset or (B) the portion of the Fully
Loaded Cost that is attributable to the Company’s investment in the Joint
Venture or other interest in such Asset if the Company does not own a 100%
interest in the Asset.


 


3

















 


Dealer Manager.
Behringer Securities LP, an Affiliate of the Advisor, or any Person selected by
the Board to act as the dealer manager for an Offering.


 


Development Fee.
A fee for the packaging of an Asset, including the negotiation and approval of
plans, and any assistance in obtaining zoning and necessary variances and financing
for a specific development Property, either initially or at a later date.


 


Director.
A member of the Board.


 


Disposition Fee.
The fee payable to the Advisor for services provided in connection with the
Sale of one or more Properties pursuant to Section 3.01(c).


 


Distributions.
Any dividends or other distributions of money or other property by the Company
to Stockholders, including distributions that may constitute a return of
capital for federal income tax purposes but excluding distributions that
constitute the redemption of any Shares and excluding distributions on any
Shares before their redemption.


 


Exchange Act.
The Securities Exchange Act of 1934, as amended from time to time, or any
successor statute thereto. Reference to any provision of the Exchange Act shall
mean such provision as in effect from time to time, as the same may be amended,
and any successor provision thereto, as interpreted by any applicable
regulations as in effect from time to time.


 


Fully Loaded Cost. The
Contract Purchase Price of an Asset plus (i) the amount of any costs
payable to third parties for the development, construction or improvement of
the Asset and (ii) the amount of any subsequent debt attributable to the
Asset.


 


Gross Proceeds.
The aggregate purchase price of all Shares sold for the account of the Company
through an Offering, without deduction for Selling Commissions, volume
discounts, any marketing support and due diligence expense reimbursement or
Organization and Offering Expenses. For the purpose of computing Gross
Proceeds, the purchase price of any Share for which reduced Selling Commissions
are paid to the Dealer Manager or a Soliciting Dealer (where net proceeds to
the Company are not reduced) shall be deemed to be the full amount of the
Offering price per Share pursuant to the Prospectus for the Offering without
reduction.


 


Independent Director.
A Director who is not on the date of determination, and within the last two
years from the date of determination has not been, directly or indirectly
associated with the Sponsor or the Advisor by virtue of (i) ownership of
an interest in the Sponsor, the Advisor or any of their Affiliates, other than
the Company, (ii) employment by the Sponsor, the Company, the Advisor or
any of their Affiliates, (iii) service as an officer or director of the
Sponsor, the Advisor or any of their Affiliates, other than as a Director of
the Company, (iv) performance of services for the Company, other than as a
Director of the Company, (v) service as a director or trustee of more than
three real estate investment trusts organized by the Sponsor or advised by the
Advisor, or (vi) maintenance of a material business or professional
relationship with the Sponsor, the Advisor or any of their Affiliates. Notwithstanding
the foregoing, and consistent with (v) above, serving as a director of or
receiving director fees from or owning an interest in a REIT or other real
estate program organized by the Sponsor or advised or managed by the Advisor or
its Affiliates shall not, by itself, cause a Director to be deemed associated
with the Sponsor or the Advisor. A business or professional relationship is
considered material if the aggregate annual gross revenue derived by the
Director from the Sponsor, the Advisor and their Affiliates (excluding fees for
serving as a director of the Company or other REIT or real estate program
organized or advised or managed by the Advisor or its Affiliates) exceeds 5% of
either the Director’s annual gross income during either of the last two years
or the Director’s net worth on a fair market value basis. An 


 


4

















 


indirect association with the Sponsor or the Advisor shall include
circumstances in which a Director’s spouse, parent, child, sibling, mother- or
father-in-law, son- or daughter-in-law, or brother- or sister-in-law is or has
been associated with the Sponsor, the Advisor, any of their Affiliates, or the
Company.


 


Intellectual Property Rights.
All rights, titles and interests, whether foreign or domestic, in and to any
and all trade secrets, confidential information rights, patents, invention
rights, copyrights, service marks, trademarks, know-how, or similar
intellectual property rights and all applications and rights to apply for the
rights, as well as any and all moral rights, rights of privacy, publicity and
similar rights and license rights of any type under the laws or regulations of
any governmental, regulatory, or judicial authority, foreign or domestic and
all renewals and extensions thereof.


 


Joint Ventures.
A legal organization formed to provide for the sharing of 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 Assets.


 


Listing or Listed.
The filing of a Form 8-A to register any class of the Company’s securities
on a national securities exchange and the approval of an original listing
application related thereto by the applicable exchange; provided, that
the Shares shall not be deemed to be Listed until trading in the Shares shall
have commenced on the relevant national securities exchange.


 


Mortgages.
In connection with mortgage financing provided, invested in or purchased by the
Company, all of the notes, deeds of trust, security interests or other evidence
of indebtedness or obligations, which are secured or collateralized by Real
Property owned by the borrowers under the notes, deeds of trust, security
interests or other evidence of indebtedness or obligations.


 


NASAA Guidelines.
The Statement of Policy Regarding Real Estate Investment Trusts adopted by the
North American Securities Administrators Association, Inc. on May 7,
2007, and in effect on the date hereof.


 


Net Income.
For any period, the Company’s total revenues applicable to that period, less
the total expenses applicable to the period other than additions to reserves
for depreciation, bad debts or other similar non-cash reserves and excluding
any gain from the sale of the Assets.


 


Offering.
Any public offering of Shares pursuant to an effective registration statement
filed under the Securities Act, other than a public offering of Shares under a
distribution reinvestment plan.


 


Organization and Offering Expenses.
Any and all costs and expenses incurred by and to be paid by the Company in
connection with an Offering, the formation of the Company, and including the
qualification and registration of the Offering and the marketing and
distribution of its Shares, including, without limitation: total underwriting
and brokerage discounts and commissions (including fees of the underwriters’
attorneys); expenses for printing, engraving, amending registration statements
and supplementing prospectuses; mailing and distribution costs; salaries of
employees while engaged in sales activity, such as preparing supplemental sales
literature; telephone and other telecommunication costs; all advertising and
marketing expenses, including the costs related to investor and broker-dealer
meetings; charges of transfer agents, registrars, trustees, escrow holders,
depositories and experts; filing, registration and qualification fees and taxes
relating to the Offering under federal and state laws; and accountants’ and
attorneys’ fees.


 


Partnership.
Behringer Harvard Operating Partnership II LP, a Texas limited partnership,
through which the Company may own Assets, or otherwise conduct its operations.


 


5

















 


Person. An
individual, corporation, association, business trust, estate, trust,
partnership, limited liability company or other legal entity.


 


Property or Properties. As the
context requires, any, or all, respectively, of the Real Property acquired by
the Company, either directly or indirectly (whether through Joint Ventures or
other investment interests, regardless of whether the Company consolidates the
financial results of these entities).


 


Proprietary Property. All modeling algorithms, tools,
computer programs, know-how, methodologies, processes, technologies, ideas,
concepts, skills, routines, subroutines, operating instructions and other
materials and aides used in performing the duties set forth in Section 2.02
that relate to advice regarding current and potential Assets, and all
modifications, enhancements and derivative works of the foregoing.


 


Prospectus.
Prospectus has the meaning set forth in Section 2(a)(10) of the
Securities Act, including a preliminary prospectus, an offering circular as
described in Rule 253 of the General Rules and Regulations under the
Securities Act or, in the case of an intrastate offering, any document by whatever
name known, utilized for the purpose of offering and selling securities of the
Company.


 


Real Property or Real Estate.
Land, rights in land (including leasehold interests), and any buildings,
structures, improvements, furnishings, fixtures and equipment located on or
used in connection with land and rights or interests in land.


 


REIT. A
corporation, trust, association or other legal entity (other than a real estate
syndication) that is engaged primarily in investing in interests in Real Estate
(including fee ownership and leasehold interests) or in loans secured by Real
Estate or both in accordance with Sections 856 through 860 of the Code.


 


Sale or Sales.
(i) Any transaction or series of transactions whereby: (A) the
Company or the Partnership directly or indirectly (except as described in other
subsections of this definition) sells, grants, transfers, conveys, or
relinquishes its ownership of any Property or portion thereof, including the
lease of any Property consisting of a building only, and including any event
with respect to any Property which gives rise to a significant amount of
insurance proceeds or condemnation awards; (B) the Company or the
Partnership directly or indirectly (except as described in other subsections of
this definition) sells, grants, transfers, conveys, or relinquishes its
ownership of all or substantially all of the interest of the Company or the
Partnership in any Joint Venture in which it is a co-venturer or partner; (C) any
Joint Venture directly or indirectly (except as described in other subsections
of this definition) in which the Company or the Partnership as a co-venturer or
partner sells, grants, transfers, conveys, or relinquishes its ownership of any
Property or portion thereof, including any event with respect to any Property
which gives rise to insurance claims or condemnation awards; (D) the
Company or the Partnership directly or indirectly (except as described in other
subsections of this definition) sells, grants, conveys or relinquishes its
interest in any Mortgage or other loan or portion thereof (including with
respect to any Mortgage or other loan, all payments thereunder or in
satisfaction thereof other than regularly scheduled interest payments of
amounts owed pursuant to the Mortgage or other loan) and any event with respect
to a Mortgage or other loan which gives rise to a significant amount of
insurance proceeds or similar awards; or (E) the Company or the
Partnership directly or indirectly (except as described in other subsections of
this definition) sells, grants, transfers, conveys, or relinquishes its
ownership of any other Asset not previously described in this definition or any
portion thereof, but (ii) not including any transaction or series of
transactions specified in clause (i) (A) through (E) above in
which the proceeds of the transaction or series of transactions are reinvested
in one or more Assets within 180 days thereafter.


 


6

















 


Securities Act.
The Securities Act of 1933, as amended from time to time, or any successor
statute thereto. Reference to any provision of the Securities Act shall mean
the provision as in effect from time to time, as the same may be amended, and
any successor provision thereto, as interpreted by any applicable regulations
as in effect from time to time.


 


Selling Commissions.
Any and all commissions payable to underwriters, dealer managers or other
broker-dealers in connection with the sale of Shares, including, without
limitation, commissions payable to Behringer Securities LP.


 


Shares. Any
shares of the Company’s common stock, par value $0.0001 per share.


 


Soliciting Dealers.
Broker-dealers who are members of the Financial Industry Regulatory Authority, Inc.,
or that are exempt from broker-dealer registration, and who, in either case,
have executed participating broker or other agreements with the Dealer Manager
to sell Shares.


 


Sponsor. Sponsor
has the meaning ascribed to such term in the Articles of Incorporation.


 


Stockholders.
The record holders of the Company’s Shares as maintained in the books and
records of the Company or its transfer agent.


 


Termination Date.
The date of termination of this Agreement.


 


Texas Tax Code. The
Texas Tax Code as amended by Texas H.B. 3, 79th Leg., 3rd C.S. (2006). Reference
to any provision of the Texas Tax Code Act shall mean the provision as in
effect from time to time, as the same may be amended, and any successor
provision thereto, as interpreted by any applicable administrative rules as
in effect from time to time.


 


Total Operating Expenses.
All costs and expenses paid or incurred by the Company, as determined under
generally accepted accounting principles, which are in any way related to the
operation of the Company or to Company business, including the Asset Management
Fee, but excluding (i) the expenses of raising capital such as
Organization and Offering Expenses, legal, audit, accounting, underwriting,
brokerage, listing, registration, and other fees, printing and other expenses
and tax incurred in connection with the issuance, distribution, transfer,
registration and Listing of the Shares, (ii) interest payments, (iii) taxes,
(iv) non-cash expenditures such as depreciation, amortization and bad debt
reserves, (v) Acquisition Fees and Acquisition Expenses, (vi) real
estate commissions on the Sale of Assets (including the Disposition Fee) and (vii) other
fees and expenses connected with the acquisition, disposition, management and
ownership of real estate interests, mortgage loans or other property (including
the costs of foreclosure, insurance premiums, legal services, maintenance,
repair and improvement of property).


 


Value of Investment.
For each Asset, if available, (i) with respect to an Asset wholly
owned by the Company or any wholly owned subsidiary, the Asset’s value
established by the most recent independent valuation report (without reduction
for depreciation, bad debts or other non-cash reserves), and (ii) in the
case of an Asset owned by any Joint Venture or in some other manner in which
the Company is a co-venturer or partner or otherwise a co-owner, (A) the
Asset’s value established by the most recent independent valuation report
(without reduction for depreciation, bad debts or other non-cash reserves) if
the Company (or any subsidiary) owns a 100% interest, directly or indirectly,
in the Asset or (B) the portion of the Asset’s value established by the
most recent independent valuation report (without reduction for depreciation,
bad debts or other non-cash reserves) that is attributable to the Company’s
investment in the Joint Venture or other interest in such Asset if the Company
does not own a 100% 


 


7

















 


interest in the Asset. Nothing in this definition is intended to
obligate the Advisor to obtain independent valuations at any point in time
beyond those specified in the Company’s Prospectus.


 


ARTICLE II


THE ADVISOR


 


2.01        Appointment. The Company hereby
appoints the Advisor to serve as its advisor on the terms and conditions set
forth in this Agreement, and the Advisor hereby accepts the appointment.


 


2.02        Duties of the Advisor. The Advisor
shall be deemed to be in a fiduciary relationship to the Company and its
Stockholders. Subject to Section 2.08, the Advisor undertakes to
use its commercially reasonable best efforts to present to the Company
potential investment opportunities consistent with the investment objectives
and policies of the Company as determined and adopted from time to time by the
Board. In performance of its duties, subject to the supervision of the Board
and consistent with the provisions of the Company’s most recent Prospectus for
Shares, the Articles of Incorporation and Bylaws, the Advisor shall, either
directly or by engaging a duly qualified and licensed Affiliate of the Advisor
or other duly qualified and licensed Person:


 


(a)           provide the Company with research and
economic and statistical data in connection with the Assets and investment
policies;


 


(b)           manage the Company’s day-to-day
operations and perform and supervise the various administrative functions
reasonably necessary for the management and operations of the Company;


 


(c)           maintain and preserve the books and
records of the Company, including stock books and records reflecting a record
of the Stockholders and their ownership of the Company’s Shares;


 


(d)           investigate, select, and, on behalf
of the Company, engage and conduct business with the duly qualified and
licensed Persons as the Advisor deems necessary to the proper performance of
its obligations hereunder, including but not limited to duly qualified and
licensed consultants, accountants, correspondents, lenders, technical advisors,
attorneys, brokers, underwriters, corporate fiduciaries, escrow agents,
depositaries, custodians, agents for collection, insurers, insurance agents,
banks, builders, developers, property owners, mortgagors, property management
companies, transfer agents and any and all agents for any of the foregoing,
including duly qualified and licensed Affiliates of the Advisor, and duly
qualified and licensed Persons acting in any other capacity deemed by the
Advisor necessary or desirable for the performance of any of the foregoing
services, including but not limited to entering into contracts in the name of
the Company with any of the foregoing;


 


(e)           consult with the officers and the
Board and assist the Board in the formulation and implementation of the Company’s
financial policies, and, as necessary, furnish the Board with advice and
recommendations with respect to the making of investments consistent with the
investment objectives and policies of the Company and in connection with any
borrowings proposed to be undertaken by the Company;


 


(f)            subject to the provisions of Sections
2.02(h) and 2.03 hereof, (i) locate, analyze and select
potential investments in Assets, (ii) structure and negotiate the terms
and conditions of transactions pursuant to which investment in Assets will be
made or acquired for the Company or 


 


8

















 


the Partnership; (iii) make
investments in Assets on behalf of the Company or the Partnership in compliance
with the investment objectives and policies of the Company; (iv) arrange
for financing and refinancing and make other changes in the asset or capital
structure of, and dispose of, reinvest the proceeds from the sale of, or
otherwise deal with the investments in, Assets; (v) enter into leases of
Property and service contracts for Assets with duly qualified and licensed
non-affiliated and Affiliated Persons and, to the extent necessary, perform all
other operational functions for the maintenance and administration of the
Assets, including the servicing of Mortgages; and (vi) arrange for, or
provide, accounting and other record-keeping functions at the Asset level;


 


(g)           provide the Board with periodic
reports regarding prospective investments in Assets;


 


(h)           obtain the prior approval of the
Board (including a majority of all Independent Directors) for any and all
investments in Assets;


 


(i)            negotiate on behalf of the Company
with banks or lenders for loans to be made to the Company, negotiate on behalf
of the Company with investment banking firms and broker-dealers, and negotiate
private sales of Shares and other securities of the Company or obtain loans for
the Company, as and when appropriate, but in no event in such a way so that the
Advisor shall be acting as broker-dealer or underwriter; and provided, further,
that any fees and costs payable to third parties incurred by the Advisor in
connection with the foregoing shall be the responsibility of the Company;


 


(j)            obtain reports (which may be
prepared by or for the Advisor or its Affiliates), where appropriate,
concerning the value of investments or contemplated investments of the Company
in Assets;


 


(k)           from time to time, or at any time
reasonably requested by the Board, make reports to the Board of its performance
of services to the Company under this Agreement;


 


(l)            assist the Company in arranging for
all necessary cash management services;


 


(m)          deliver to or maintain on behalf of
the Company copies of all appraisals obtained in connection with the
investments in Assets;


 


(n)           upon request of the Company, act, or
obtain the services of duly qualified and licensed others to act, as
attorney-in-fact or agent of the Company in making, acquiring and disposing of
Assets, disbursing, and collecting the funds, paying the debts and fulfilling
the obligations of the Company and retaining counsel or other advisors to
assist in handling, prosecuting and settling any claims of the Company,
including foreclosing and otherwise enforcing mortgage and other liens and
security interests comprising any of the Assets;


 


(o)           supervise the preparation and filing
and distribution of returns and reports to governmental agencies and to
Stockholders and other investors and act on behalf of the Company;


 


(p)           provide office space, equipment and
personnel as required for the performance of the foregoing services as Advisor;


 


9

















 


(q)           assist the Company in preparing all
reports and returns required by the Securities and Exchange Commission,
Internal Revenue Service and other state or federal governmental agencies; and


 


(r)            do all things necessary to assure
its ability to render the services described in this Agreement.


 


2.03        Authority of Advisor.


 


(a)           Pursuant to the terms of this
Agreement (including the restrictions included in this Section 2.03
and in Section 2.06), and subject to the continuing and exclusive
authority of the Board over the management of the Company, the Board hereby
delegates to the Advisor the authority to take those actions set forth in Section 2.02.


 


(b)           Notwithstanding the foregoing, any
investment in Assets by the Company or the Partnership (as well as any
financing acquired by the Company or the Partnership in connection with the investment),
will require the prior approval of the Board (including a majority of the
Independent Directors).


 


(c)           The prior approval of a majority of
the Independent Directors and a majority of the Board not otherwise interested
in the transaction will be required for each transaction with the Advisor or
its Affiliates.


 


(d)           If a transaction requires approval by
the Board, the Advisor will deliver to the Directors all documents required by
them to properly evaluate the proposed transaction.


 


The Board may, at any time upon the giving of notice to the Advisor,
modify or revoke the authority set forth in this Section 2.03. If
and to the extent the Board so modifies or revokes the authority contained
herein, the Advisor shall henceforth submit to the Board for prior approval the
proposed transactions involving investments in Assets as thereafter require
prior approval; provided, however, that the modification or
revocation shall be effective upon receipt by the Advisor and shall not be
applicable to investment transactions to which the Advisor has committed the
Company prior to the date of receipt by the Advisor of the notification.


 


2.04        Bank Accounts. The Advisor may
establish and maintain one or more bank accounts in its own name for the
account of the Company or in the name of the Company and may collect and
deposit into any account or accounts, and disburse from any account or
accounts, any money on behalf of the Company, under the terms and conditions as
the Board may approve, provided that no funds of the Company or the Partnership
shall be commingled nor shall any of such funds be commingled with the funds of
the Advisor; and the Advisor shall from time to time render accountings of the
collections and payments to the Board, its Audit Committee and the auditors of
the Company.


 


2.05        Records; Access. The Advisor shall
maintain records of all its activities hereunder and make the records available
for inspection by the Board and by counsel, auditors and authorized agents of
the Company, at any time or from time to time during normal business hours. The
Advisor shall at all reasonable times have access to the books and records of
the Company.


 


2.06        Limitations on Activities. Anything
else in this Agreement to the contrary notwithstanding, the Advisor shall refrain
from taking any action which, in its sole judgment made in good faith, would (a) adversely
affect the status of the Company as a REIT, (b) subject the Company to
regulation under the Investment Company Act of 1940, as amended, or (c) violate
any law, rule, 


 


10

















 


regulation or
statement of policy of any governmental body or agency having jurisdiction over
the Company, the Shares or any of the Company’s securities, or otherwise not be
permitted by the Articles of Incorporation or Bylaws, except if the action
shall be ordered by the Board, in which case the Advisor shall notify promptly
the Board of the Advisor’s judgment of the potential impact of the action and
shall refrain from taking the action until it receives further clarification or
instructions from the Board. The Advisor shall have no liability for acting in
accordance with the specific instructions of the Board so given.  The Advisor, its directors, officers, employees and
stockholders, and the directors, officers, employees and stockholders of the
Advisor’s Affiliates shall not be liable to the Company or to the Board or
Stockholders for any act or omission by the Advisor, its directors, officers,
employees or stockholders, or for any act or omission of any Affiliate of the
Advisor, its directors, officers or employees or stockholders except as
provided in Section 5.02 of this Agreement.


 


2.07        Relationship with Directors. Directors,
officers and employees of the Advisor or an Affiliate of the Advisor may serve
as Directors, officers or employees of the Company, except that no director,
officer or employee of the Advisor or its Affiliates who also is a Director
shall receive any compensation from the Company for serving as a Director other
than reasonable reimbursement for travel and related expenses incurred in
attending meetings of the Board.


 


2.08        Other Activities of the Advisor. Nothing
herein contained shall prevent the Advisor or its Affiliates from engaging in
other activities, including, without limitation, rendering advice to other
Persons (including other REITs) and the management of other programs advised,
sponsored or organized by the Advisor or its Affiliates; nor shall this
Agreement limit or restrict the right of any director, officer, employee, or
stockholder of the Advisor or its Affiliates to engage in any other business or
to render services of any kind to any other Person. The Advisor may, with
respect to any investment in which the Company is a participant, also render
advice and service to each and every other participant therein. The Advisor
shall report to the Board the existence of any condition or circumstance,
existing or anticipated, of which it has knowledge, which creates or could
create a conflict of interest between the Advisor’s obligations to the Company
and its obligations to, or its interest in, any other Person. The Advisor or
its Affiliates shall promptly disclose to the Board knowledge of the condition
or circumstance. The Advisor shall inform the Board at least quarterly of the
investment opportunities that have been offered to other programs sponsored by
the Sponsor, Advisor, Director or their Affiliates that have similar investment
objectives. If the Sponsor, Advisor, Director or Affiliates thereof have
sponsored other investment programs with similar investment objectives which
have investment funds available at the same time as the Company, it shall be
the duty of the Board (including the Independent Directors) to adopt the method
set forth in the Company’s most recent Prospectus for its Shares or another
reasonable method by which investments are to be allocated to the competing
investment entities and to use their best efforts to apply the method fairly to
the Company.


 


2.09        Third Party
Alliances. To the extent that the Advisor deems
necessary, it may enter into strategic relationships with third parties having
specialized or particularized knowledge or experience regarding certain Assets.
The Advisor may reallow to these third parties a portion of the fees to be paid
to it by the Company, as described in Section 3.01.


 


2.10        Payment of Certain
Organization and Offering Expenses. The Company
shall pay directly all Organization and Offering Expenses considered
underwriting compensation by the Financial Industry Regulatory Authority, or
FINRA. Such payments, other than Selling Commissions and the dealer manager
fee, shall apply toward the limit on Organization and Offering Expenses
reimbursable by the Company to the Advisor pursuant to Section 3.02(a)(1) below.


 


11
















 


ARTICLE III


COMPENSATION AND REIMBURSEMENT OF SPECIFIED COSTS.


 


3.01        Fees.


 


(a)           Asset Management Fee.
For each and every Asset, the Company shall pay the Advisor a monthly Asset
Management Fee on the 15th day of each month in an amount equal to one-twelfth
of 1% of the sum of, for each and every Asset, the higher of the Cost of
Investment or the Value of Investment; provided, however, in the
case of an Asset owned by any Joint Venture in which the Company is a
co-venturer or partner or otherwise a co-owner, the Asset Management Fee may be
paid to the Advisor directly by the Joint Venture rather than the Company; provided,
further, that any Asset Management Fee paid by a Joint Venture in
accordance with the terms of this Section 3.01(a) shall be
credited to the Company in an amount equal to (i) the Asset Management Fee
paid by the Joint Venture multiplied by (ii) the percentage of the Company’s
ownership interest in that Joint Venture. In the event that the Asset
Management Fee is based on the Cost of Investment in respect of an Asset being
developed, constructed or improved, upon completion of the development,
construction or improvement project, the Advisor shall determine the actual
amounts paid. To the extent the amounts actually paid vary from the budgeted
amounts on which the Asset Management Fee was initially based, the Advisor will
pay or invoice the Company for one-twelfth of 1% of the budget variance,
multiplied by the number of months for which an Asset Management Fee was paid. The
Advisor, in its sole discretion, may waive, reduce or defer all or any portion
of the Asset Management Fee to which it would otherwise be entitled.


 


(b)           Acquisition and
Advisory Fees. The Company shall pay the Advisor a fee in the amount of
2.5% of the Contract Purchase Price of each Asset as Acquisition and Advisory
Fees. The total of all Acquisition Fees and any Acquisition Expenses shall be
limited in accordance with the Articles of Incorporation. Acquisition and
Advisory Fees shall be paid as follows: (1) for real property (including
properties where development/redevelopment is expected), at the time of
acquisition, (2) for development/redevelopment projects (other than the
initial acquisition of the real property), at the time a final budget is
approved and (3) for loans and similar assets (including without
limitation mezzanine loans), quarterly based on the value of loans made or
acquired. In the case of a development/redevelopment project subject to clause (2) above,
upon completion of the development/redevelopment project, the Advisor shall
determine the actual amounts paid. To the extent the amounts actually paid vary
from the budgeted amounts on which the Acquisition and Advisory Fee was
initially based, the Advisor will pay or invoice the Company for 2.5% of the budget
variance such that the Acquisition and Advisory Fee is ultimately 2.5% of
amounts expended on such development/redevelopment project. The Advisor, in its
sole discretion, may waive, reduce or defer all or any portion of the
Acquisition and Advisory Fees to which it would otherwise be entitled.


 


(c)           Disposition Fee.
If the Advisor or an Affiliate provides a substantial amount of services (as
determined by a majority of the Independent Directors) in connection with the
Sale of one or more Assets, the Advisor or the Affiliate shall receive, subject
to the satisfaction of the condition outlined below, a Disposition Fee in an
amount (the “Disposition Fee”)
equal to (subject to the limitation in the following paragraph) (i) in the
case of the sale of Property, the lesser of (A) one-half of a Competitive
Real Estate Commission or (B) 3% of the sales price of the Property and (ii) in
the case of the sale of any Asset other than Property, 3% of the sales price of
the Asset or Assets.


 


12

















 


The Disposition
Fee may be payable in addition to real estate commissions paid to persons not
affiliated with the Company or the Advisor and their respective Affiliates; provided,
however, that the total real estate commissions paid to all Persons by
the Company (together with the Disposition Fee) shall in no case exceed an
amount equal to the lesser of (i) 6% of the Contract Sales Price of an
Asset or (ii) the Competitive Real Estate Commission in respect of any
Property. The Advisor, in its sole discretion, may waive, reduce or defer all
or any portion of the Disposition Fee to which it would otherwise be entitled.


 


(d)           Debt Financing Fee.
In the event of any debt financing obtained by or for the Company (including
any refinancing of debt), the Company will pay to the Advisor a debt financing
fee equal to 1% of the amount available under the financing. The Debt Financing
Fee includes the reimbursement of the specified cost incurred by the Advisor of
engaging third parties to source debt financing, and nothing herein shall
prevent the Advisor from entering fee-splitting arrangements with third parties
with respect to the Debt Financing Fee. The Advisor, in its sole discretion,
may waive, reduce or defer all or any portion of the Debt Financing Fee to
which it would otherwise be entitled.


 


(e)           Development Fee.
If the Advisor or an Affiliate provides development services, the Company shall
pay the Advisor or its Affiliate Development Fees in amounts that are usual and
customary for comparable services rendered to similar projects in the
geographic market; provided, however, that a majority of the
Independent Directors must determine that such Development Fees are fair and
reasonable and on terms and conditions not less favorable than those available
from unaffiliated third parties. Development Fees will include the
reimbursement of the specified cost incurred by the Advisor of engaging third
parties for such services. The Advisor, in its sole discretion, may waive,
reduce or defer all or any portion of the Development Fee to which it would
otherwise be entitled. Notwithstanding the above, the Advisor may engage (on
behalf of the Company) third parties to provide development services pursuant
to its authority under Section 2.03 and pay such third parties all
applicable Development Fees.


 


3.02        Expenses.


 


(a)           In addition to the
compensation paid to the Advisor pursuant to Section 3.01 hereof
and except as noted in Section 2.09 above, the Company shall pay
directly or reimburse the Advisor for all of the costs and expenses paid or
incurred by the Advisor that are in any way related to the operations of the
Company or the business of the Company or the services the Advisor provides to
the Company pursuant to this Agreement, including, but not limited to:


 


(i)            Organization and
Offering Expenses; provided, however, that (i)  the Company
shall not reimburse the Advisor to the extent such reimbursement would cause
the total amount spent by the Company on Organization and Offering Expenses
(other than Selling Commissions and the dealer manager fee) to exceed 1.5% of
the Gross Proceeds as of the date of the reimbursement and (ii) within 60
days after the end of the month in which an Offering terminates, the Advisor
shall reimburse the Company for any Organization and Offering Expenses (other
than Selling Commissions and the dealer manager fee) to the extent that such
Organization and Offering Expenses incurred by the Company exceed 1.5% of the
Gross Proceeds raised in the completed Offering;


 


(ii)           Acquisition Fees and
Acquisition Expenses;


 


(iii)          the actual cost of
goods, services and materials used by the Company and obtained from Persons not
affiliated with the Advisor, other than Acquisition Expenses, 


 


13

















 


including brokerage fees paid
in connection with the purchase and sale of Shares or other securities;


 


(iv)          interest and other costs
for borrowed money, including discounts, points and other similar fees;


 


(v)           taxes and assessments
on income or property and taxes as an expense of doing business;


 


(vi)          costs associated with
insurance required in connection with the business of the Company or by the
Board;


 


(vii)         expenses of managing and
operating Assets owned by the Company, whether or not payable to an Affiliate
of the Advisor;


 


(viii)        all expenses in connection
with payments to the Board for attendance at meetings of the Board and
Stockholders;


 


(ix)           except as otherwise
limited by the Articles of Incorporation, expenses associated with Listing or
with the issuance and distribution of Shares and other securities of the
Company, such as Selling Commissions and fees, advertising expenses, taxes,
legal and accounting fees and Listing and registration fees, but excluding
Organization and Offering Expenses;


 


(x)            expenses connected
with payments of Distributions in cash or otherwise made or caused to be made
by the Company to the Stockholders;


 


(xi)           expenses of organizing,
reorganizing, liquidating or dissolving the Company and the expenses of filing
or amending the Articles of Incorporation;


 


(xii)          expenses of any third
party transfer agent for the Shares and of maintaining communications with
Stockholders, including the cost of preparation, printing, and mailing annual
reports and other Stockholder reports, proxy statements and other reports
required by governmental entities;


 


(xiii)         personnel and related
employment costs incurred by the Advisor or its Affiliates in performing the
services described herein, including but not limited to reasonable salaries and
wages, benefits and overhead of all employees directly involved in the
performance of the services; provided, that no reimbursement shall be
made for costs of the employees of the Advisor or its Affiliates to the extent
that the employees perform services for which the Advisor receives a separate
fee; and


 


(xiv)        audit, accounting and
legal fees.


 


(b)           Expenses incurred by
the Advisor on behalf of the Company and payable pursuant to this Section 3.02
shall be reimbursed no less than quarterly to the Advisor within sixty days
after the end of each quarter. The Advisor shall prepare a statement
documenting the expenses of the Company during each quarter, and shall deliver
the statement to the Company within 45 days after the end of each quarter.


 


14

















 


(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 chooses not to pursue.


 


3.03        Other Services. Should the Board request that
the Advisor or any director, officer or employee thereof render services for
the Company other than set forth in Section 2.02, the services shall
be separately compensated at the rates and in the amounts as are agreed by the
Advisor and the Independent Directors, subject to the limitations contained in
the Articles of Incorporation, and shall not be deemed to be services pursuant
to the terms of this Agreement.


 


3.04        Reimbursement to the Advisor. The Company
shall not reimburse the Advisor for Total Operating Expenses paid by the
Advisor to the extent that Total Operating Expenses (including the Asset
Management Fee), in the four consecutive fiscal quarters then ended (the “Expense Year”) exceed (the “Excess
Amount”) the greater of 2% of Average Invested Assets or 25% of Net
Income for that period of four consecutive fiscal quarters. Any Excess Amount
paid to the Advisor during a fiscal quarter shall be repaid to the Company. Reimbursement
of all or any portion of the Total Operating Expenses that exceed the
limitation set forth in the preceding sentence may, at the option of the
Advisor, be deferred without interest and may be reimbursed in any subsequent
Expense Year where the limitation would permit the reimbursement if the Total
Operating Expense were incurred during that period. Notwithstanding the
foregoing, if there is an Excess Amount in any Expense Year and the Independent
Directors determine that all or a portion of the excess was justified, based on
unusual and nonrecurring factors which they deem sufficient, the Excess Amount
may be reimbursed to the Advisor. If the Independent Directors determine the
excess was justified, then after the end of any fiscal quarter of the Company
for which there is an Excess Amount for the twelve months then ended paid to
the Advisor, the Advisor, at the direction of the Independent Directors, shall
cause the fact to be disclosed in the next quarterly report of the Company in a
separate writing and sent to the Stockholders within sixty days of the quarter
end, together with an explanation of the factors the Independent Directors
considered in determining that the Excess Amount was justified. The
determination shall be reflected in the minutes of the meetings of the Board. The
Company will not reimburse the Advisor or its Affiliates for services for which
the Advisor or its Affiliates are entitled to compensation in the form of a
separate fee. All figures used in any computation pursuant to this Section 3.04
shall be determined in accordance with generally accepted accounting principles
applied on a consistent basis.


 


ARTICLE IV


TERM AND TERMINATION


 


4.01        Term; Renewal. Subject to Section 4.02
hereof, this Agreement shall continue in force until the first anniversary of
the date hereof. Thereafter, this Agreement may be renewed for an unlimited
number of successive one-year terms upon mutual consent of the parties. It is
the duty of the Board to evaluate the performance of the Advisor annually
before renewing the Agreement, and each renewal shall be for a term of no more
than one year.


 


4.02        Termination. This agreement may be terminated
at the option of either party upon sixty days written notice without cause or
penalty (if termination is by the Company, then the termination shall be upon
the approval of a majority of the Independent Directors). Notwithstanding the
foregoing, the provisions of this Agreement which provide for payment to the
Advisor of expenses, fees or other compensation following the date of
termination shall continue in full force and effect until all amounts payable
thereunder to the Advisor are paid in full.


 


15

















 


4.03        Payments to and Duties of Advisor upon Termination.


 


(a)           After the Termination
Date, the Advisor shall not be entitled to compensation for further services
hereunder except it shall be entitled to and receive from the Company within
thirty days after the effective date of the termination all unpaid
reimbursements of expenses, subject to the provisions of Section 3.04
hereof, and all contingent liabilities related to fees payable to the Advisor
prior to termination of this Agreement.


 


(b)           The Advisor shall
promptly upon termination:


 


(i)            pay over to the
Company all money collected and held for the account of the Company pursuant to
this Agreement, after deducting any accrued compensation and reimbursement for
its expenses to which it is then entitled;


 


(ii)           deliver to the Board a
full accounting, including a statement showing all payments collected by it and
a statement of all money held by it, covering the period following the date of
the last accounting furnished to the Board;


 


(iii)          deliver to the Board all
assets, including the Assets, and documents of the Company then in the custody
of the Advisor; and


 


(iv)          cooperate with the
Company and take all reasonable actions requested by the Company to provide an
orderly management transition.


 


ARTICLE V


INDEMNIFICATION


 


5.01        Indemnification by the Company.


 


(a)           The Company shall
indemnify and hold harmless the Advisor and its Affiliates, including their
respective officers, directors, partners and employees, from all liability,
claims, damages or losses arising in the performance of their duties hereunder,
and related expenses, including reasonable attorneys’ fees, to the extent such
liability, claims, damages or losses and related expenses are not fully
reimbursed by insurance, subject to any limitations imposed by the laws of the
State of Maryland, the Articles of Incorporation and the NASAA Guidelines.
Notwithstanding the foregoing, the Company shall not indemnify or hold harmless
the Advisor or its Affiliates, including their respective officers, directors,
partners and employees, for any liability or loss suffered by the Advisor or
its Affiliates, including their respective officers, directors, partners and
employees, nor shall it provide that the Advisor or its Affiliates, including
their respective officers, directors, partners and employees, be held harmless
for any loss or liability suffered by the Company, unless all of the following
conditions are met: (i) the Advisor or its Affiliates, including their
respective officers, directors, partners and employees, have determined, in
good faith, that the course of conduct which caused the loss or liability was
in the best interests of the Company; (ii) the Advisor or its Affiliates,
including their respective officers, directors, partners and employees, were
acting on behalf of or performing services of the Company; (iii) the
liability or loss was not the result of negligence or misconduct by the Advisor
or its Affiliates, including their respective officers, directors, partners and
employees; and (iv) the indemnification or agreement to hold harmless is
recoverable only out of the Company’s net assets and not from the individual
assets of the stockholders. Notwithstanding the foregoing, the 


 


16

















 


Advisor and its Affiliates,
including their respective officers, directors, partners and employees, shall
not be indemnified by the Company for any losses, liability or expenses arising
from or out of an alleged violation of federal or state securities laws by such
party unless one or more of the following conditions are met: (i) there
has been a successful adjudication on the merits of each count involving
alleged securities law violations as to the particular indemnitee; (ii) such
claims have been dismissed with prejudice on the merits by a court of competent
jurisdiction as to the particular indemnitee; and (iii) a court of
competent jurisdiction approves a settlement of the claims against a particular
indemnitee and finds that indemnification of the settlement and the related
costs should be made, and the court considering the request for indemnification
has been advised of the position of the Securities and Exchange Commission and
of the published position of any state securities regulatory authority in which
securities of the Company were offered or sold as to indemnification for
violations of securities laws.


 


(b)           The Company may advance
funds to the Advisor or its Affiliates, including their respective officers,
directors, partners and employees, for legal expenses and other costs incurred
as a result of any legal action for which indemnification is being sought is
permissible only if all of the following conditions are satisfied: (i) the
legal action relates to acts or omissions with respect to the performance of
duties or services on behalf of the Company; (ii) the legal action is
initiated by a third-party who is not a stockholder or the legal action is
initiated by a stockholder acting in his or her capacity as such and a court of
competent jurisdiction specifically approves such advancement; (iii) the Advisor
or its Affiliates, including their respective officers, directors, partners and
employees, undertake to repay the advanced funds to the Company together with
the applicable legal rate of interest thereon, in cases in which the Advisor or
its Affiliates, including their respective officers, directors, partners and
employees, are found not to be entitled to indemnification.


 


(c)           Notwithstanding the
provisions of this Section 5.01, the Advisor shall not be entitled
to indemnification or be held harmless pursuant to this Section 5.01
for any activity which the Advisor shall be required to indemnify or hold
harmless the Company pursuant to Section 5.02.


 


5.02        Indemnification by Advisor. The Advisor shall
indemnify and hold harmless the Company from contract or other liability,
claims, damages, taxes or losses and related expenses including attorneys’
fees, to the extent that the liability, claims, damages, taxes or losses and
related expenses are not fully reimbursed by insurance and are incurred by
reason of the Advisor’s bad faith, fraud, misfeasance, misconduct, gross
negligence or reckless disregard of its duties, but the Advisor shall not be
held responsible for any action of the Board in following or declining to
follow any advice or recommendation given by the Advisor.


 


ARTICLE VI


MISCELLANEOUS


 


6.01        Non-Solicitation.
During the period commencing on the date on which this Agreement is entered
into and ending one year following the termination of the 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 (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. During the period commencing on the date hereof through and ending one
year following the termination of this Agreement, the Company will not, whether
for his own account or for the account of any other person, firm, corporation
or other business 


 


17

















 


organization,
intentionally interfere with the relationship of the Advisor with, or endeavor
to entice away from the Advisor, any person who during the term of the
Agreement is, or during the preceding one-year period, was a tenant,
co-investor, co-developer, joint venturer or other customer of the Advisor.


 


6.02        Assignment to an Affiliate. This Agreement
and any rights, duties, liabilities and obligations hereunder and the fees and
compensation related thereto may be assigned by the Advisor, in whole or in
part, to a duly qualified and licensed Affiliate of the Advisor without
obtaining the approval of the Board. Any other assignment shall be made only
with the approval of a majority of the Board (including a majority of the
Independent Directors). The Advisor may assign any rights to receive fees or
other payments under this Agreement without obtaining the approval of the
Board. This Agreement shall not be assigned by the Company without the consent
of the Advisor, except in the case of an assignment by the Company to a
corporation or other organization which is a successor to all of the assets,
rights and obligations of the Company, in which case the successor organization
shall be bound hereunder and by the terms of said assignment in the same manner
as the Company is bound by this Agreement. This Agreement shall be binding on
successors to the Company resulting from a Change of Control, and shall
likewise be binding upon any successor to the Advisor.


 


6.03        Relationship of Advisor and Company. The
Company and the Advisor are not partners or joint venturers with each other,
and nothing in this Agreement shall be construed to make them the partners or
joint venturers or impose any liability as such on either of them.


 


6.04        Notices. Any notice, report or other
communication required or permitted to be given hereunder shall be in writing
unless some other method of giving the notice, report or other communication is
required by the Articles of Incorporation, the Bylaws, or accepted by the party
to whom it is given, and shall be given by being delivered by hand or by
overnight mail or other overnight delivery service to the addresses set forth
herein:


 


	
  To the Directors and to the Company:

  	
  Behringer Harvard REIT II, Inc.

  
	
   

  	
  15601 Dallas Parkway

  
	
   

  	
  Suite 600

  
	
   

  	
  Addison, Texas 75001

  
	
   

  	
   

  
	
  To the Advisor:

  	
  Behringer Advisors II LP

  
	
   

  	
  15601 Dallas Parkway

  
	
   

  	
  Suite. 600

  
	
   

  	
  Addison, Texas 75001

  



 


Either party shall, as soon as reasonably practicable, give notice in
writing to the other party of a change in its address for the purposes of this Section 6.04.


 


6.05        Modification. This Agreement shall not be
changed, modified, or amended, in whole or in part, except by an instrument in
writing signed by both parties hereto, or their respective successors or
permitted assignees.


 


6.06        Severability. The provisions of this
Agreement are independent of and severable from each other, and no provision
shall be affected or rendered invalid or unenforceable by virtue of the fact
that for any reason any other or others of them may be invalid or unenforceable
in whole or in part.


 


6.07        Choice of Law; Venue. The provisions of this
Agreement shall be construed and interpreted in accordance with the laws of the
State of Texas, and venue for any action brought with respect to any claims
arising out of this Agreement shall be brought exclusively in Dallas County,
Texas.


 


18

















 


6.08        Entire Agreement. This Agreement contains the
entire agreement and understanding among the parties hereto with respect to the
subject matter hereof, and supersedes all prior and contemporaneous agreements,
understandings, inducements and conditions, express or implied, oral or
written, of any nature whatsoever with respect to the subject matter hereof. The
express terms hereof control and supersede any course of performance and/or
usage of the trade inconsistent with any of the terms hereof. This Agreement
may not be modified or amended other than by an agreement in writing signed by
each of the parties hereto.


 


6.09        Waiver. Neither the failure nor any delay on
the part of a party to exercise any right, remedy, power or privilege under
this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of the right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted the
waiver.


 


6.10        Gender; Number. Words used herein regardless
of the number and gender specifically used, shall be deemed and construed to
include any other number, singular or plural, and any other gender, masculine,
feminine or neuter, as the context requires.


 


6.11        Headings. The titles and headings of sections
and subsections contained in this Agreement are for convenience only, and they
neither form a part of this Agreement nor are they to be used in the
construction or interpretation hereof.


 


6.12        Execution in Counterparts. This Agreement may
be executed in multiple counterparts, each of which shall be deemed to be an
original as against any party whose signature appears thereon, and all of which
shall together constitute one and the same instrument. This Agreement shall
become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as
the signatories.


 


6.13        Initial Investment. The Advisor or one of its
Affiliates has contributed $200,000 (the “Initial Investment”)
in exchange for the initial issuance of
Shares of the Company. The Advisor or its Affiliates may not sell any of
the Shares purchased with the Initial Investment while the Advisor acts in an
advisory capacity to the Company. The restrictions included above shall not
apply to any Shares acquired by the Advisor or its Affiliates other than the
Shares acquired through the Initial Investment. Neither the Advisor nor its
Affiliates shall vote any Shares they now own, or hereafter acquires, in any
vote for the election of Directors or any vote regarding the approval or
termination of any contract with the Advisor or any of its Affiliates.


 


6.14        Ownership of Proprietary Property. The
Advisor retains ownership of and reserves all Intellectual Property Rights in
the Proprietary Property. To the extent that the Company has or obtains any
claim to any right, title or interest in the Proprietary Property, including
without limitation in any suggestions, enhancements or contributions that
Company may provide regarding the Proprietary Property, the Company hereby
assigns and transfers exclusively to the Advisor all right, title and interest,
including without limitation all Intellectual Property Rights, free and clear
of any liens, encumbrances or licenses in favor of the Company or any other
party, in and to the Proprietary Property. In addition, at the Advisor’s
expense, the Company will perform any acts that may be deemed desirable by the
Advisor to evidence more fully the transfer of ownership of right, title and
interest in the Proprietary Property to the Advisor, including but not limited
to the execution of any instruments or documents now or hereafter requested by
the Advisor to perfect, defend or confirm the assignment described herein, in a
form determined by the Advisor.


 


19

















 


6.15        Treatment Under Texas Margin Tax. For
purposes of the Texas margin tax, the Advisor’s performance of the services
specified in this Agreement will cause the Advisor to conduct part of the
active trade or business of the Company, and the compensation specified in Article III
includes both the payment of management fees and the reimbursement of specified
costs incurred in the Advisor’s conduct of the active trade or business of the
Company. Therefore, the Advisor and Company intend Advisor to be, and shall
treat Advisor as, a “management company” within the meaning of Section 171.0001(11)
of the Texas Tax Code. The Company and the Advisor will apply Sections
171.1011(m-1) and 171.1013(f)-(g) of the Texas Tax Code to the Company’s
reimbursements paid to the Advisor pursuant to this Agreement of specified
costs and wages and compensation. The Advisor and the Company further recognize
and intend that (i) as a result of the fiduciary relationship created by
this Agreement and acknowledged in Section 2.02, reimbursements
paid to the Advisor pursuant to this Agreement are “flow-though funds” that the
Advisor is mandated by law or fiduciary duty to distribute, within the meaning
of Section 171.1011(f) of the Texas Tax Code, and (ii) as a
result of Advisor’s contractual duties under this Agreement, certain
reimbursements under this Agreement are “flow-through funds” mandated by
contract to be distributed within the meaning of Section 171.1011(g) of
the Texas Tax Code. The terms of this Agreement shall be interpreted in a
manner consistent with the characterization of the Advisor as a “management
company” as defined in Section 171.0001(11), and with the characterization
of the reimbursements as “flow-though funds” within the meaning of Section 171.1011(f)-(g) of
the Texas Tax Code.


 


20

















 


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


 


	
   

  	
  BEHRINGER
  HARVARD REIT II, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
  Executive
  Vice President – Corporate

  
	
   

  	
   

  	
  Development &
  Legal

  
	
   

  	
   

  
	
   

  	
  BEHRINGER
  ADVISORS II LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Harvard
  Property Trust II, LLC,

  
	
   

  	
   

  	
  its General
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
  Executive
  Vice President – Corporate

  
	
   

  	
   

  	
  Development &
  Legal

  
						



 


21