**EXHIBIT4.2**

 

**FIRSTAMENDMENT**

**TOTHE**

**SECONDAMENDED AND RESTATED**

**DISTRIBUTIONREINVESTMENT PLAN**

**OF**

**BEHRINGERHARVARD OPPORTUNITY REIT I, INC.**

 

Behringer HarvardOpportunity REIT I, Inc., a Maryland corporation (the “Company”), herebyadopts this first amendment, effective as of May 11, 2009 (the “Amendment”),to the second amended and restated distribution reinvestment plan of theCompany (the “Plan”), on the terms and conditions set forth below.  Any capitalized term used herein that is nototherwise defined herein shall have the meaning ascribed to such term asprovided in the Plan.

 

1.                                       Amendmentto Paragraph 3. Paragraph 3 of the Plan is hereby amended by deleting it inits entirety and replacing it with the following:

 

3. General Terms ofPlan Investments. The Administrator will apply all Distributions subject tothis Plan, as follows:

 

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

 

(b) Aftertermination of the DRP Offering, the Administrator will invest Distributions inShares that may (but are not required to) be supplied from either (1) Sharesregistered 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 forthe Plan in a secondary market (if available) or on a national stock exchange(if listed) (collectively, the “Secondary Market”) and registered with theCommission for resale pursuant to the Plan. Shares registered in a Future Registration that are not purchased by theAdministrator in the Secondary Market will be issued at a price equal to 95% ofthe most recently disclosed Valuation. Shares purchased on the Secondary Market as set forth in (2) abovewill be purchased at the then-prevailing market price, and the average pricepaid by the Administrator for all such purchases for a single Distribution willbe utilized for purposes of determining the purchase price for Shares purchasedunder the Plan on such investment date; however, in no event will the purchaseprice for Shares purchased under the Plan be less than 95% of the market pricefor Shares on the investment date. Shares acquired by the Administrator on theSecondary Market or registered in a Future Registration for use in the Plan maybe at prices lower or higher than the per Share price that will be paid for theShares purchased for the Plan pursuant to the DRP Offering and any subsequentoffering. If the Administrator acquires Shares in the Secondary Market for usein the Plan, the Administrator shall use reasonable efforts to acquire Shares foruse in the Plan at the lowest price then reasonably available. However, theAdministrator does not in any respect guaranty or warrant that the Shares soacquired and purchased by the Participants in the Plan will be at the lowestpossible price. Further, irrespective of the Administrator’s ability to acquireShares in the Secondary Market or the Company’s ability to complete a FutureRegistration for shares to be used in the Plan, neither the Administrator northe Company is in any way obligated to do either.

 

(c) Regardless ofthe pricing determined pursuant to Paragraphs 3(a) and 3(b) above,the Board may determine, from time to time, in its sole discretion, the priceat which the Administrator will invest Distributions in Shares; provided thatif the Board takes such action under this Paragraph 3(c), the Company shall delivera notice regarding the new price to each Participant at least 30

 

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days prior to theeffective date of the new price.  Noadvance notice of pricing pursuant to Paragraphs (a) or (b) aboveshall be required.

 

(d) No sellingcommission or dealer manager fee will be paid for Shares purchased pursuant tothe Plan.

 

(e) For eachParticipant, the Administrator will maintain an account which shall reflect foreach month the Distributions received by the Administrator on behalf of suchParticipant. A Participant’s account shall be reduced as purchases of Sharesare made on behalf of such Participant.

 

(f) Distributionsshall be invested in Shares by the Administrator promptly following the paymentdate with respect to such Distributions to the extent Shares are available forpurchase under the Plan. If sufficient Shares are not available, any such fundsthat have not been invested in Shares within 30 days after receipt by theAdministrator will be distributed to the Participants. Any interest earned onsuch accounts will be paid to the Company and is and will become the propertyof the Company.

 

(g) FractionalShares, computed to four decimal places, shall be purchased for eachParticipant account, if applicable. The ownership of the Shares shall bereflected on the books of the Company or its transfer agent.

 

2.                                       Amendmentto Paragraph 7. The first sentence of Paragraph 7 of the Plan is herebyamended by deleting it in its entirety and replacing it with the following:

 

Within 60 days after theend of each fiscal quarter, the Administrator will deliver to each Participanta statement of account describing, as to such Participant, the Distributionsreceived during the quarter, the number of Shares purchased during the quarterand the calendar year pursuant to the Plan, and the per Share purchase pricefor such Shares.

 

3.                                       Amendmentto Paragraph 10(a). Paragraph 10(a) of the Plan is hereby amended bydeleting it in its entirety and replacing it with the following:

 

(a) A Participantmay terminate or modify his participation in the Plan at any time by writtennotice mailed to the Administrator. To be effective for any Distribution, suchnotice must be received by the Administrator at least ten days prior to thelast day of the month to which such Distribution relates.

 

4.                                       Amendmentto Paragraph 10(c). Paragraph 10(c) of the Plan is hereby amended bydeleting it in its entirety and replacing it with the following:

 

(c) TheAdministrator may terminate a Participant’s individual participation in thePlan, and the Company may suspend or terminate the Plan itself, at any time byten days’ prior written notice to a Participant, or to all Participants, as thecase may be.

 

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

 

12.  Notice. Any notice or othercommunication required or permitted to be given by any provision of this Planshall be in writing and, if to the Administrator, addressed to BehringerHarvard Investment Services, 15601 Dallas Parkway, Suite 600, Addison,Texas  75001, or such other address asmay be specified by the Administrator by written notice to all Participants.Notices to a Participant may be given by letter addressed to the Participant atthe Participant’s last address of record with the Administrator or delivered byelectronic means to any address specified by the Participant. Each Participantshall notify the Administrator promptly in writing of any change of address.

 

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6.                                       Amendmentto Paragraph 13.  Paragraph 13 of thePlan is hereby amended by adding the following provision:

 

13.  Amendment. The terms and conditions ofthis Plan may be amended or supplemented by the Company at any time, includingbut not limited to an amendment to the Plan to substitute a new Administratorto act as agent for the Participants, by delivering an appropriate notice toeach Participant at least 30 days prior to the effective date of the amendmentor supplement. Such amendment or supplement shall be deemed conclusivelyaccepted by each Participant except those Participants from whom theAdministrator receives written notice of termination prior to the effective datethereof.

 

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

 

7.                                       ContinuingEffect.  Except as otherwise setforth in this Amendment, the terms of the Plan shall continue in full force andeffect 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 assistfiduciaries in discharging their obligations under ERISA reporting requirementsand to assist broker-dealers in connection with their obligations underapplicable FINRA Rules with respect to customer account statements,Behringer Harvard Opportunity REIT I, Inc. (the “Company”) has adoptedthis 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 atthe time of its adoption, there is no limitation on the ability of the Board tocause 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 provideits stockholders a per share estimated value of its common stock on a periodicbasis, generally annually.  Until 18months have passed without a sale in an offering of the Common Stock (or othersecurities from which the Board believes the value of a share of common stockcan be estimated), the Company shall use the gross offering price of a share ofthe Common Stock in its most recent offering as the per share estimated valuethereof or, with respect to an offering of other securities from which thevalue of a share of Common Stock can be estimated, the Company shall use thevalue derived from the gross offering price of such other security as the pershare estimated value of the Common Stock. For purposes of the foregoing, an offering shall not include an offeringrelated to a distribution reinvestment plan, employee benefit plan or theredemption of interests in the Company’s operating partnership.

 

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

 

If the Company has soldassets and made distributions to stockholders of net proceeds from such salessince the termination of the most recent offering, the estimated value pershare shall generally be net of the amount of those distributions.

 

The Board or committeethereof will have the discretion to choose a methodology or combination ofmethodologies as it deems reasonable under then current circumstances forestimating the per share value of the Common Stock.  These methodologies may take account numerousfactors including, without limitation, the following:

 

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

 

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

 

·                  separate valuations of the Company’sassets;

 

·                  private real estate market conditions;

 

·                  public real estate market conditions;

 

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

 

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·                  the prices at which the Company’ssecurities were sold in other offerings, such as a distribution reinvestmentplan offering;

 

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

 

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

 

·                  the Company’s going concern value.

 

The Board may relyon the Advisor or a third-party valuation expert to assist in estimating thevalue 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 byappraisers certified by a Member of the Appraisal Institute or other tradeorganization that monitors appraisers, nor must any appraisals conform to formatsor standards promulgated by any such trade organization.  The Company shall disclose the effective dateof the estimated valuation.  The Companyshall not release individual property value estimates or any of the datasupporting the estimated per share value, and the Board is under no obligationto describe the factors on which it relied or the methodologies utilized inestimating the estimated value of a share of Common Stock.

 

After first publishing anestimate by the Board within 18 months after an offering as described above,the Company shall repeat the process of estimating share value of the CommonStock periodically thereafter.  However,if deemed appropriate by the Board, the Company may return to the publicationof an estimated value based solely on the offering price of a share of CommonStock or other securities if the Company has conducted another offering within18 months of the disclosure of an estimated per share value.  The Company shall provide this information inits annual report on Form 10-K.  TheCompany may also disseminate this information by a posting on the web sitemaintained for the Company and the Advisor and its affiliates at www.behringerharvard.comor by other means.

 

Estimates based solely onan offering price will be subject to numerous limitations.  For example, such estimates will not takeinto account:

 

·                  individual oraggregate values of the Company’s assets;

 

·                  real estatemarket fluctuations affecting the Company’s assets generally;

 

·                  adverse orbeneficial developments with respect to one or more assets in the Company’sportfolio;

 

·                  the Company’scosts of the offering; or

 

·                  the Company’scosts of acquiring assets.

 

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

 

With respect to anyestimate of the value of Common Stock made pursuant to this policy, there canbe no assurance that:

 

·                  the estimated value per share wouldactually be realized by the Company’s stockholders upon liquidation, bulkportfolio sales of the Company’s assets, sale of the Company or listing of theCommon Stock on an exchange;

 

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

 

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·                  the estimated value per share would berelated to any individual or aggregated value estimates or appraisals of the Company’sassets; or

 

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

 

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