EXHIBIT
4.2


 


FIRST
AMENDMENT


TO
THE


SECOND
AMENDED AND RESTATED


DISTRIBUTION
REINVESTMENT PLAN


OF


BEHRINGER
HARVARD OPPORTUNITY REIT I, INC.


 


Behringer Harvard
Opportunity REIT I, Inc., a Maryland corporation (the “Company”), hereby
adopts this first amendment, effective as of May 11, 2009 (the “Amendment”),
to the second amended and restated distribution reinvestment plan of the
Company (the “Plan”), on the terms and conditions set forth below.  Any capitalized term used herein that is not
otherwise defined herein shall have the meaning ascribed to such term as
provided in the Plan.


 


1.                                       Amendment
to Paragraph 3. Paragraph 3 of the Plan is hereby amended by deleting it in
its entirety and replacing it with the following:


 


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 public offering of the Shares reserved for
issuance under the Plan pursuant to the Company’s prospectus dated October 26,
2007, as thereafter amended or supplemented (the “DRP Offering”), the
Administrator will invest Distributions in Shares at a price equal to 95% of
the most recently disclosed estimated value per Share (the “Valuation”) as
determined in accordance with our valuation policy (the “Valuation Policy”), as
such Valuation Policy is amended from time to time, regardless of the price per
Share paid by the Participant for the Shares in respect of which the
Distributions are paid.  The Valuation
Policy in effect as of the effective date of this Amendment is attached hereto
as Exhibit A.


 


(b) After
termination of the DRP Offering, the Administrator will invest Distributions in
Shares that may (but are not required to) be supplied from either (1) 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 (2) Shares purchased by the Administrator for
the Plan in a secondary market (if available) or on a national stock exchange
(if listed) (collectively, the “Secondary Market”) and registered with the
Commission for resale pursuant to the Plan. 
Shares registered in a Future Registration that are not purchased by the
Administrator in the Secondary Market will be issued at a price equal to 95% of
the most recently disclosed Valuation. 
Shares purchased on the Secondary Market as set forth in (2) 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 determining the purchase price for Shares purchased
under the Plan on such investment date; however, in no event will the purchase
price for Shares purchased under the Plan be less than 95% of the market price
for Shares on the 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 DRP 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) Regardless of
the pricing determined pursuant to Paragraphs 3(a) and 3(b) above,
the Board may determine, from time to time, in its sole discretion, the price
at which the Administrator will invest Distributions in Shares; provided that
if the Board takes such action under this Paragraph 3(c), the Company shall deliver
a notice regarding the new price to each Participant at least 30


 

















 


days prior to the
effective date of the new price.  No
advance notice of pricing pursuant to Paragraphs (a) or (b) above
shall be required.


 


(d) No selling
commission or dealer manager fee will be paid for Shares purchased pursuant to
the Plan.


 


(e) 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.


 


(f) 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.


 


(g) 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.


 


2.                                       Amendment
to Paragraph 7. The first sentence of Paragraph 7 of the Plan is hereby
amended by deleting it in its entirety and replacing it with the following:


 


Within 60 days after the
end of each fiscal quarter, the Administrator will deliver 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
and the calendar year pursuant to the Plan, and the per Share purchase price
for such Shares.


 


3.                                       Amendment
to Paragraph 10(a). Paragraph 10(a) of the Plan is hereby amended by
deleting it in its entirety and replacing it with the following:


 


(a) A Participant
may terminate or modify his participation in the Plan at any time by written
notice mailed 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.


 


4.                                       Amendment
to Paragraph 10(c). Paragraph 10(c) of the Plan is hereby amended by
deleting it in its entirety and replacing it with the following:


 


(c) The
Administrator may terminate a Participant’s individual participation in the
Plan, and the Company may suspend or 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.


 


5.                                       Amendment
to Paragraph 12. Paragraph 12 of the Plan is hereby amended by deleting it
in its entirety and replacing it with the following:


 


12.  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 Behringer
Harvard Investment Services, 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 or delivered by
electronic means to any address specified by the Participant. Each Participant
shall notify the Administrator promptly in writing of any change of address.


 


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6.                                       Amendment
to Paragraph 13.  Paragraph 13 of the
Plan is hereby amended by adding the following provision:


 


13.  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 delivering an appropriate notice to
each Participant at least 30 days prior to the effective date of the amendment
or supplement. 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.


 


In the event that the
Plan is amended pursuant to this Paragraph 13 or suspended pursuant to
Paragraph 10(c) hereof, each Participant shall remain a Participant in the
Plan receiving cash distributions during such period that the Plan is suspended
or the Shares cannot otherwise be distributed hereunder, unless the Participant
terminates his participation in accordance with the procedures set forth under
Paragraph 10(a) above.  Once such
suspension or other inability to distribute Shares hereunder ceases, the
Participant will then receive Shares hereunder.


 


7.                                       Continuing
Effect.  Except as otherwise set
forth in this Amendment, the terms of the Plan shall continue in full force and
effect and shall not be deemed to have otherwise been amended, modified,
revised or altered.


 


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EXHIBIT A


 


POLICY FOR ESTIMATION OF COMMON STOCK VALUE


OF


BEHRINGER HARVARD OPPORTUNITY REIT I, INC.


 


In order to assist
fiduciaries in discharging their obligations under ERISA reporting requirements
and to assist broker-dealers in connection with their obligations under
applicable FINRA Rules with respect to customer account statements,
Behringer Harvard Opportunity REIT I, Inc. (the “Company”) has adopted
this policy in respect of estimating the per share value of its common stock
(the “Common Stock”) as of May 11, 2009. 
This policy may be amended by the Board of Directors of the Company (the
“Board”) at any time in its sole discretion. 
In addition, although this policy expresses the intent of the Board at
the time of its adoption, there is no limitation on the ability of the Board to
cause the Company to vary from this policy to the extent it deems appropriate,
with or without an express amendment of this policy.


 


The Company shall provide
its stockholders a per share estimated value of its common stock on a periodic
basis, generally annually.  Until 18
months have passed without a sale in an offering of the Common Stock (or other
securities from which the Board believes the value of a share of common stock
can be estimated), the Company shall use the gross offering price of a share of
the Common Stock in its most recent offering as the per share estimated value
thereof or, with respect to an offering of other securities from which the
value of a share of Common Stock can be estimated, the Company shall use the
value derived from the gross offering price of such other security as the per
share estimated value of the Common Stock. 
For purposes of the foregoing, an offering shall not include an offering
related to a distribution reinvestment plan, employee benefit plan or the
redemption of interests in the Company’s operating partnership.


 


No later than 18 months
after the last sale in an offering of the securities described above, the
Company shall disclose an estimated per share value that is not based solely on
the offering price of securities in the most recent offering.  This estimate shall be determined by the
Board, or a committee thereof, after consultation with Behringer Harvard
Opportunity Advisors I, LLC (the “Advisor”), or if the Company shall no longer
be administered by the Advisor, the Company’s officers and employees.  The Advisor or the Company may engage such
experts and third parties as it may deem appropriate.  If a committee of the Board of Directors
estimates the value, a majority of the voting members of the committee will be
independent directors; however, the committee may also include officers or
employees of the Company, the Advisor or the Advisor’s affiliates.


 


If the Company has sold
assets and made distributions to stockholders of net proceeds from such sales
since the termination of the most recent offering, the estimated value per
share shall generally be net of the amount of those distributions.


 


The Board or committee
thereof will have the discretion to choose a methodology or combination of
methodologies as it deems reasonable under then current circumstances for
estimating the per share value of the Common Stock.  These methodologies may take account numerous
factors including, without limitation, the following:


 


·                  net amounts that might be realized in a
sale of the Company’s assets in an orderly liquidation;


 


·                  net amounts that might be realized in a
bulk portfolio sale of the Company’s assets;


 


·                  separate valuations of the Company’s
assets;


 


·                  private real estate market conditions;


 


·                  public real estate market conditions;


 


·                  the business plan of the Company and
characteristics and factors specific to the portfolio or securities;


 


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·                  the prices at which the Company’s
securities were sold in other offerings, such as a distribution reinvestment
plan offering;


 


·                  the prices paid for Company securities in
other transactions, including secondary market trades;


 


·                  the relative prices paid for comparable
companies listed on a national securities exchange; and


 


·                  the Company’s going concern value.


 


The Board may rely
on the Advisor or a third-party valuation expert to assist in estimating the
value of the Company’s assets or its shares of Common Stock.  However, with respect to asset valuations,
the Board shall not be required to obtain asset-by-asset appraisals prepared by
appraisers certified by a Member of the Appraisal Institute or other trade
organization that monitors appraisers, nor must any appraisals conform to formats
or standards promulgated by any such trade organization.  The Company shall disclose the effective date
of the estimated valuation.  The Company
shall not release individual property value estimates or any of the data
supporting the estimated per share value, and the Board is under no obligation
to describe the factors on which it relied or the methodologies utilized in
estimating the estimated value of a share of Common Stock.


 


After first publishing an
estimate by the Board within 18 months after an offering as described above,
the Company shall repeat the process of estimating share value of the Common
Stock periodically thereafter.  However,
if deemed appropriate by the Board, the Company may return to the publication
of an estimated value based solely on the offering price of a share of Common
Stock or other securities if the Company has conducted another offering within
18 months of the disclosure of an estimated per share value.  The Company shall provide this information in
its annual report on Form 10-K.  The
Company may also disseminate this information by a posting on the web site
maintained for the Company and the Advisor and its affiliates at www.behringerharvard.com
or by other means.


 


Estimates based solely on
an offering price will be subject to numerous limitations.  For example, such estimates will not take
into account:


 


·                  individual or
aggregate values of the Company’s assets;


 


·                  real estate
market fluctuations affecting the Company’s assets generally;


 


·                  adverse or
beneficial developments with respect to one or more assets in the Company’s
portfolio;


 


·                  the Company’s
costs of the offering; or


 


·                  the Company’s
costs of acquiring assets.


 


After the estimated value
hereunder is based on factors in addition to the most recent offering price of
a share of Common Stock or other security, the estimated value will not reflect
developments that occur after the most recent estimated valuation date.  Further, such valuations will be estimates
only and may be based upon a number of estimates, assumptions and opinions that
may not be or may later prove not to be accurate or complete, which could make
the estimated valuations incorrect.


 


With respect to any
estimate of the value of Common Stock made pursuant to this policy, there can
be no assurance that:


 


·                  the estimated value per share would
actually be realized by the Company’s stockholders upon liquidation, bulk
portfolio sales of the Company’s assets, sale of the Company or listing of the
Common Stock on an exchange;


 


·                  any stockholder of the Company would be
able to realize estimated share values in any attempt to sell shares;


 


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·                  the estimated value per share would be
related to any individual or aggregated value estimates or appraisals of the Company’s
assets; or


 


·                  the estimated value, or method used to
estimate value, would be found by any regulatory authority to comply with the
ERISA, FINRA or other regulatory requirements.


 


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