EXHIBIT 10.1


 


SECOND AMENDED AND
RESTATED

DISTRIBUTION REINVESTMENT PLAN


 


Behringer Harvard REIT I, Inc.

Effective as of January 15, 2006


 


Behringer Harvard REIT I, Inc., a Maryland corporation (the “Company”),
has adopted this amended and restated distribution reinvestment plan (the “Plan”),
administered by the Company or an unaffiliated third-party (the “Administrator”),
as agent for participants in the Plan (“Participants”), on the terms and
conditions set forth below.


 


1.             ELECTION TO
PARTICIPATE.  Any purchaser of shares of
common stock of the Company, par value $.0001 per share (the “Shares”), may
become a Participant by making a written election to participate on such
purchaser’s subscription agreement at the time of subscription for Shares.  Any stockholder who has not previously
elected to participate in the Plan, and subject to

Section 10(b) herein any participant in any previous or subsequent
publicly offered limited partnership, real estate investment trust or other
real estate program sponsored by the Company or its affiliates, including but
not limited to Behringer Harvard Mid-Term Value Enhancement Fund I LP and
Behringer Harvard Short-Term Opportunity Fund I LP (“Affiliated Programs”), may
so elect at any time by completing and executing an authorization form obtained
from the Administrator or any other appropriate documentation as may be
required by the Administrator. 
Participants generally are required to have the full amount of their
cash distributions (other than “Designated Special Distributions” as defined
below) with respect to all Shares or shares of stock or units of limited
partnership interest of an Affiliated Program (collectively “Securities”) owned
by them reinvested pursuant to the Plan. 
However, the Administrator shall have the sole discretion, upon the
request of a Participant, to accommodate a Participant’s request for less than
all of the Participant’s Securities to be subject to participation in the Plan.


 


2.             DISTRIBUTION
REINVESTMENT PLAN.  The Administrator
will receive all cash distributions (other than “Designated Special
Distributions” as defined below) paid by the Company or an Affiliated Program
with respect to Securities of Participants (collectively, the “Distributions”).  Participation will commence with the next
Distribution payable after receipt of the Participant’s election pursuant to
Paragraph 1 hereof, provided it is received at least ten days prior to the last
day of the month to which such Distribution relates.  Subject to the preceding sentence, regardless
of the date of such election, a holder of Securities will become a Participant
in the Plan effective on the first day of the month following such election,
and the election will apply to all Distributions attributable to such month and
to all months thereafter.  As used in
this Plan, the term “Designated Special Distributions” shall mean those cash or
other distributions designated as Designated Special Distributions by the Board
of the Company or board or general partner of an Affiliated Program, as
applicable.


 


3.             GENERAL TERMS OF
PLAN INVESTMENTS.  The Administrator will
apply all Distributions subject to this Plan, as follows:


 


(a)           Prior to the
termination of the Company’s second public offering of the Shares reserved for
issuance under the Plan pursuant to the Company’s prospectus dated February 11,
2005, as thereafter amended or supplemented (the “Second Offering”), the
Administrator will invest Distributions in Shares 


 


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at a price of
$9.50 per Share regardless of the price per Security paid by the Participant
for the Securities in respect of which the Distributions are paid.


 


(b)           After termination of
the Second Offering, the Administrator will invest Distributions in Shares that
may (but are not required to) be supplied from either (i) Shares
registered with the Securities and Exchange Commission (the “Commission”)
pursuant to an effective registration statement for Shares for use in the Plan
(a “Future Registration”) or (ii) Shares purchased by the Administrator
for the Plan in a secondary market (if available) or on a national stock
exchange or The Nasdaq Stock Market (if listed) (collectively, the “Secondary
Market”) and registered with the Commission for resale pursuant to the
Plan.  Shares purchased on the Secondary
Market as set forth in (ii) above will be purchased at the then-prevailing
market price, and the average price paid by the Administrator for all such
purchases for a single Distribution will be utilized for purposes of purchases
of Shares in the Plan on such investment date. 
Shares acquired by the Administrator on the Secondary Market or
registered in a Future Registration for use in the Plan may be at prices lower
or higher than the per Share price that will be paid for the Shares purchased for
the Plan pursuant to the Second Offering and any subsequent offering.  If the Administrator acquires Shares in the
Secondary Market for use in the Plan, the Administrator shall use reasonable
efforts to acquire Shares for use in the Plan at the lowest price then
reasonably available.  However, the
Administrator does not in any respect guaranty or warrant that the Shares so
acquired and purchased by the Participants in the Plan will be at the lowest
possible price.  Further, irrespective of
the Administrator’s ability to acquire Shares in the Secondary Market or the
Company’s ability to complete a Future Registration for shares to be used in
the Plan, neither the Administrator nor the Company is in any way obligated to
do either.


 


(c)           If a Participant designates
in writing that such Participant’s broker who made the initial sale of
Securities to the Participant shall receive commissions for purchases under the
Plan, then such broker shall be paid a selling commission not to exceed 1% of
value of the Shares purchased under the Plan (reduced commission rates will
apply as set forth in paragraph (a) above).  No dealer manager fee will be paid for Shares
purchased pursuant to the Plan.  Each
Participant is permitted to identify, change or eliminate the name of his
account executive at a participating broker-dealer with respect to Shares
purchased pursuant to the Plan.  In the
event that no account executive is identified, or in the event that the account
executive is not employed by a broker-dealer having a valid selling agreement
with the dealer manager, no selling commission will be paid with respect to
such purchases.  If no such broker is
designated, or if the Participant designates only a portion of the selling
commission to be paid to the Participant’s broker, the amount that would have
been paid as a selling commission will be retained and used by the Company.


 


(d)           For each
Participant, the Administrator will maintain an account which shall reflect for
each month the Distributions received by the Administrator on behalf of such
Participant.  A Participant’s account
shall be reduced as purchases of Shares are made on behalf of such Participant.


 


(e)           Distributions shall
be invested in Shares by the Administrator promptly following the payment date
with respect to such Distributions to the extent Shares are available for
purchase under the Plan.  If sufficient
Shares are not available, any such funds that have not been invested in Shares
within 30 days after receipt by the Administrator will be distributed to the
Participants.  Any interest earned on
such accounts will be paid to the Company and is and will become the property
of the Company.


 


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(f)            Fractional Shares,
computed to four decimal places, shall be purchased for each Participant
account, if applicable.  The ownership of
the Shares shall be reflected on the books of the Company or its transfer
agent.


 


4.             DISTRIBUTION OF
FUNDS.  In making purchases for
Participants’ accounts, the Administrator may commingle Distributions
attributable to Securities owned by Participants and any additional payments
received from Participants pursuant to the Company automatic payment plan.


 


5.             ABSENCE OF
LIABILITY.  Neither the Company nor the
Administrator shall have any responsibility or liability as to the value of the
Shares, any change in the value of the Shares acquired for the Participant’s
account, or the rate of return earned on, or the value of, the interest-bearing
accounts in which Distributions are invested. 
Neither the Company nor the Administrator shall be liable for any act
done in good faith, or for any good faith omission to act, including, without
limitation, any claims of liability (a) arising out of the failure to
terminate a Participant’s participation in the Plan upon such Participant’s
death prior to receipt of notice in writing of such death and the expiration of
15 days from the date of receipt of such notice and (b) with respect to
the time and the prices at which Shares are purchased for a Participant.


 


6.             SUITABILITY.


 


(a)           Each Participant
shall notify the Administrator in the event that, at any time during his
participation in the Plan, there is any material change in the Participant’s
financial condition or inaccuracy of any representation under the Subscription
Agreement for the Participant’s initial purchase of Securities.


 


(b)           For purposes of this
Paragraph 6, a material change shall include any anticipated or actual decrease
in net worth or annual gross income or any other change in circumstances that
would cause the Participant to fail to meet the suitability standards set forth
in the Company’s prospectus for the Participant’s initial purchase of
Securities.


 


7.             REPORTS TO
PARTICIPANTS.  Within 60 days after the
end of each fiscal quarter, the Administrator will mail to each Participant a
statement of account describing, as to such Participant, the Distributions
received during the quarter, the number of Shares purchased during the quarter,
the per Share purchase price for such Shares, and the total Shares purchased on
behalf of the Participant pursuant to the Plan. 
Each statement shall also advise the Participant that, in accordance
with Paragraph 6(a) hereof, the Participant is required to notify the
Administrator in the event that there is any material charge in the Participant’s
financial condition or if any representation made by the Participant under the
subscription agreement for the Participant’s initial purchase of Securities
becomes inaccurate.  Tax information
regarding a Participant’s participation in the Plan will be sent to each
Participant by the Company or the Administrator at least annually.


 


8.             NO DRAWING.  No Participant shall have any right to draw
checks or drafts against the Participant’s account or give instructions to the
Company or the Administrator except as expressly provided herein.


 


9.             TAXES.  Taxable Participants may incur a tax
liability for Company Distributions even though they have elected not to
receive their Distributions in cash but rather to have their Distributions held
in their account under the Plan.


 


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10.           REINVESTMENT IN
SUBSEQUENT PROGRAMS.


 


(a)           After the
termination of the Second Offering, the Company may determine, in its sole
discretion, to cause the Administrator to provide to each Participant notice of
the opportunity to have some or all of such Participant’s Distributions (at the
discretion of the Administrator and, if applicable, the Participant) invested
through the Plan in any publicly offered limited partnership, real estate
investment trust or other real estate program sponsored by the Company or an
Affiliated Program (a “Subsequent Program”). 
If the Company makes such an election, Participants may invest
Distributions in equity securities issued by such Subsequent Program through
the Plan only if the following conditions are satisfied:


 


(i)            prior to the time
of such reinvestment, the Participant has received the final prospectus and any
supplements thereto offering interests in the Subsequent Program and such
prospectus allows investment pursuant to a distribution reinvestment plan;


 


(ii)           a registration
statement covering the interests in the Subsequent Program has been declared
effective under the Securities Act of 1933, as amended;


 


(iii)          the offering and
sale of such interests are qualified for sale under the applicable state
securities laws;


 


(iv)          the Participant
executes the subscription agreement included with the prospectus for the
Subsequent Program; and


 


(v)           the Participant
qualifies under applicable investor suitability standards as contained in the
prospectus for the Subsequent Program.


 


(b)           The
Company may determine, in its sole discretion, to cause the Administrator to
allow one or more participants of other publicly offered limited partnership,
real estate investment trust or other real estate program sponsored by the
Company or an Affiliated Program (a “Prior Program”) to become a “Participant.”
If the Company makes such an election, such Participants may invest
distributions received from the Prior Program in Shares through this Plan, if
the following conditions are satisfied:


 


(i)            Prior to the time
of such reinvestment, such Participant has received the final prospectus and
supplements thereto offering the Shares;


 


(ii)           A registration statement
covering the Shares has been declared effective under the Securities Act of
1933, as amended;


 


(iii)          The offering and
sale of the Shares are qualified for sale under the applicable state securities
laws;


 


(iv)          The Participant
executes the subscription agreement included with the Company’s prospectus; and


 


(v)           The participant
qualifies under applicable investor suitability standards as contained in the
Company’s prospectus.


 


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11.           TERMINATION.


 


(a)           A Participant may
terminate or modify his participation in the Plan at any time by written notice
to the Administrator.  To be effective
for any Distribution, such notice must be received by the Administrator at
least ten days prior to the last day of the month to which such Distribution
relates.


 


(b)           Prior to the listing
of the Shares on a national stock exchange or inclusion of the Shares for
quotation on The Nasdaq Stock Market, a Participant’s transfer of Shares will
terminate participation in the Plan with respect to such transferred Shares as
of the first day of the quarter in which such transfer is effective, unless the
transferee of such Shares in connection with such transfer demonstrates to the
Administrator that such transferee meets the requirements for participation
hereunder and affirmatively elects participation by delivering an executed
authorization form or other instrument required by the Administrator.


 


(c)           The Administrator
may terminate a Participant’s individual participation in the Plan, and the
Company may terminate the Plan itself, at any time by ten days’ prior written
notice to a Participant, or to all Participants, as the case may be.


 


(d)           After termination of
the Plan or termination of a Participant’s participation in the Plan, the Administrator
will send to each Participant (i) a statement of account in accordance
with Paragraph 7 hereof, and (ii) a check for the amount of any
Distributions in the Participant’s account that have not been invested in
Shares.  Any future Distributions with
respect to such former Participant’s Shares made after the effective date of
the termination of the Participant’s participation in the Plan will be sent
directly to the former Participant or to such other party as the Participant
has designated pursuant to an authorization form or other documentation
satisfactory to the Administrator.


 


12.           STATE REGULATORY
RESTRICTIONS.  The Administrator is
authorized to deny participation in the Plan to residents of any state which
imposes restrictions on participation in the Plan that conflict with the
general terms and provisions of this Plan, including, without limitation, any
general prohibition on the payment of broker-dealer commissions or dealer
manager fees for purchases under the Plan.


 


13.           NOTICE.  Any notice or other communication required or
permitted to be given by any provision of this Plan shall be in writing and, if
to the Administrator, addressed to Investor Services Department, 15601 Dallas
Parkway, Suite 600, Addison, Texas 75001, or such other address as may be
specified by the Administrator by written notice to all Participants.  Notices to a Participant may be given by
letter addressed to the Participant at the Participant’s last address of record
with the Administrator.  Each Participant
shall notify the Administrator promptly in writing of any change of address.


 


14.           AMENDMENT.  The terms and conditions of this Plan may be
amended or supplemented by the Company at any time, including but not limited
to an amendment to the Plan to substitute a new Administrator to act as agent
for the Participants, by mailing an appropriate notice at least 30 days prior
to the effective date thereof to each Participant.  Such amendment or supplement shall be deemed
conclusively accepted by each Participant except those Participants from whom
the Administrator receives written notice of termination prior to the effective
date thereof.


 


15.           GOVERNING LAW.  THIS PLAN AND PARTICIPANT’S ELECTION TO
PARTICIPATE IN THE PLAN SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND.


 


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16.           PARTICIPATION BY
LIMITED PARTNERS OF BEHRINGER HARVARD OPERATING PARTNERSHIP I, LP.  For purposes of this Plan, “stockholders”
shall be deemed to include limited partners of Behringer Harvard Operating
Partnership I, LP (the “Partnership”), “Participants” shall be deemed to
include limited partners of the Partnership that elect to participate in the
Plan, and “Distribution,” when used with respect to a limited partner of the
Partnership, shall mean cash distributions on limited partnership interests
held by such limited partner.


 


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