**EXHIBIT 99.1**

 

**SECOND AMENDED AND RESTATED**

**SHARE REDEMPTION PROGRAM**

**OF**

**BEHRINGERHARVARD OPPORTUNITY REIT I, INC.**

** **

This Second Amended and Restated ShareRedemption Program, effective as of May 11, 2009 (our “Program), isintended to provide limited interim liquidity for our stockholders until a bonafide secondary market develops for our shares of common stock (“Shares”).  No such market presently exists, and we canprovide no assurance that any market for the Shares will ever develop.

 

Prior to the time that a bona fide secondarymarket for our Shares has developed, stockholders who meet the applicablerequirements, as described herein, may receive the benefit of limited liquidityby presenting for redemption all or a portion of their Shares to us at any timein accordance with the procedures outlined herein.  At that time, we may, subject to theconditions and the Redemption Limitations described below, redeem for cash suchShares.  The terms on which we redeemShares may differ between redemptions upon the death or “qualifying disability”(as defined herein) of the stockholder or requests for redemption sought upon astockholder’s confinement to a long-term care facility (collectively referredto herein as “Exceptional Redemptions”) and all other redemptions (referred toherein as “Ordinary Redemptions”).

 

***Ordinary Redemptions***

 

In the case of Ordinary Redemptions, thepurchase price per Share for the redeemed Shares will equal 90% of the mostrecently disclosed estimated value per Share (the “Valuation”) as determined inaccordance with our valuation policy (the “Valuation Policy”), as suchValuation Policy is amended from time to time; provided, however, that thepurchase price per Share shall not exceed: (1) prior to the firstValuation conducted by our board of directors (our “Board”), or a committeethereof (the “Initial Board Valuation”), under the Valuation Policy, 90% of theOriginal Share Price (as defined herein) less the aggregate amount of net saleproceeds per Share, if any, distributed to stockholders prior to the redemptiondate as a result of the sale of one or more of our properties (the “SaleDistributions”); or (2) on or after the Initial Board Valuation, theOriginal Share Price less any Sale Distributions.  The Valuation Policy in effect as of the dateset forth above is attached hereto as Exhibit A.  As used herein “Original Share Price” meansthe average price per Share the original purchaser or purchasers of Shares paidto us for all of his or her Shares (as adjusted for any stock dividends,combinations, splits, recapitalizations and the like with respect to our commonstock).

 

***Exceptional Redemptions***

 

In addition, and subject to the conditionsand limitations described below, we may redeem Shares upon the death of astockholder who is a natural person, including Shares held by the stockholderthrough a revocable grantor trust, or an IRA or other retirement orprofit-sharing plan, after receiving written notice from the estate of thestockholder, the recipient of the Shares through bequest or inheritance, or, inthe case of a revocable grantor trust, the trustee of the trust, having thesole ability to request redemption on behalf of the trust.  We must, however, receive the written noticewithin one year after the death of the stockholder.  Requests not received within the one-yearperiod will not be eligible to be treated as a redemption request in connectionwith the death of a stockholder, but instead will be treated as an OrdinaryRedemption.  If spouses are jointregistered holders of Shares, the request to redeem the Shares may be made ifeither of the registered holders dies. If the stockholder is not a natural person, such as a trust (other thana revocable grantor trust), partnership, corporation or other similar entity,the right of redemption upon death does not apply.

 

1

----

 

Furthermore, and subject to the conditionsand limitations described below, we may redeem Shares held by a stockholder whois a natural person with a qualifying disability, or upon confinement to along-term care facility, including Shares held by the stockholder through arevocable grantor trust, or an IRA or other retirement or profit-sharing plan,after receiving written notice from the stockholder, provided that thecondition causing the qualifying disability was not pre-existing on the datethat the stockholder became a stockholder or that the stockholder seekingredemption was not confined to a long-term care facility on the date the personbecame a stockholder.  We must, however,receive the written notice within one year after the determination of thestockholder’s qualifying disability or with respect to redemptions sought upona stockholder’s confinement to a long-term care facility, within one year ofthe earlier of (1) the one year anniversary of the stockholder’sadmittance to the long-term care facility or (2) the date of thedetermination of the stockholder’s indefinite confinement to the long-term carefacility by a licensed physician. Requests not received within the one-year period will not be eligible tobe treated as a redemption request in connection with a qualifying disabilityof a stockholder or confinement to a long-term care facility, but instead willbe treated as an Ordinary Redemption.  Ifthe stockholder is not a natural person, such as a trust (other than arevocable grantor trust), partnership, corporation or other similar entity, theright of redemption described in this paragraph does not apply.

 

In order for a disability to be considered a “qualifyingdisability,” (1) the stockholder must receive a determination ofdisability based upon a physical or mental condition or impairment arisingafter the date the stockholder acquired the Shares to be redeemed, and (2) thedetermination of disability must be made by the governmental agency responsiblefor reviewing the disability retirement benefits that the stockholder could beeligible to receive (the “applicable governmental agency”).  The “applicable governmental agencies” arelimited to the following: (a) if the stockholder paid Social Securitytaxes and therefore could be eligible to receive Social Security disabilitybenefits, then the applicable governmental agency is the Social SecurityAdministration or the agency charged with responsibility for administeringSocial Security disability benefits at that time if other than the SocialSecurity Administration; (b) if the stockholder did not pay SocialSecurity benefits and therefore could not be eligible to receive SocialSecurity disability benefits, but the stockholder could be eligible to receivedisability benefits under the Civil Service Retirement System (CSRS), then theapplicable governmental agency is the U.S. Office of Personnel Management orthe agency charged with responsibility for administering CSRS benefits at thattime if other than the Office of Personnel Management; or (c) if thestockholder did not pay Social Security taxes and therefore could not beeligible to receive Social Security benefits but suffered a disability thatresulted in the stockholder’s discharge from military service under conditionsthat were other than dishonorable and therefore could be eligible to receivemilitary disability benefits, then the applicable governmental agency is theVeteran’s Administration or the agency charged with the responsibility foradministering military disability benefits at that time if other than theVeteran’s Administration.

 

Disability determinations by governmentalagencies for purposes other than those listed above, including but not limitedto worker’s compensation insurance, administration or enforcement of theRehabilitation Act or Americans with Disabilities Act, or waiver of insurancepremiums, will not entitle a stockholder to the terms available for ExceptionalRedemptions, unless permitted in the discretion of our Board.  Redemption requests following an award by theapplicable governmental agency of disability benefits must be accompanied by (1) thestockholder’s initial application for disability benefits and (2) a SocialSecurity Administration Notice of Award, a U.S. Office of Personnel Managementdetermination of disability under CSRS, a Veteran’s Administration record ofdisability-related discharge or such other documentation issued by theapplicable governmental agency that we deem acceptable and demonstrates anaward of the disability benefits.

 

2

----

 

We understand that the following disabilitiesdo not entitle a worker to Social Security disability benefits:

 

·                  disabilities occurring after the legalretirement age;

 

·                  temporary disabilities; and

 

·                  disabilities that do not render a workerincapable of performing substantial gainful activity.

 

Therefore, thesedisabilities will not qualify for the terms available for ExceptionalRedemptions.  However, where astockholder requests the redemption of his or her Shares due to a disabilityand the stockholder does not have a “qualifying disability” under the termsdescribed above, but has become subject to similar circumstances, our Board mayredeem the stockholder’s Shares, in its sole discretion, on the terms availablefor Exceptional Redemptions.

 

With respect to Exceptional Redemptionssought upon a stockholder’s confinement to a long-term care facility, a “long-termcare facility” shall mean an institution that: (1) either (a) isapproved by Medicare as a provider of skilled nursing care or (b) islicensed as a skilled nursing home by the state or territory in which it islocated (it must be within the United States, Puerto Rico, or U.S. VirginIslands) and (2) meets all of the following requirements: (a) itsmain function is to provide skilled, intermediate or custodial nursing care; (b) itprovides continuous room and board to three or more persons; (c) it issupervised by a registered nurse or licensed practical nurse; (d) it keepsdaily medical records of all medication dispensed; and (e) its primaryservice is other than to provide housing for residents.  A stockholder seeking an ExceptionalRedemption of his or her Shares due to confinement to a long-term care facilitymust submit a written statement from a licensed physician certifying either (1) thestockholder’s continuous and continuing confinement to a long-term carefacility over the course of the last year or (2) that the licensedphysician has determined that the stockholder will be indefinitely confined toa long-term care facility. Notwithstanding the above, where a stockholder requests an ExceptionalRedemption of his or her Shares due to confinement to a long-term care facilitybut does not meet the definition set forth above, but has become subject tosimilar circumstances, our Board may redeem the stockholder’s Shares, in theBoard’s sole discretion, on the terms available for Exceptional Redemptions.

 

In the case of Exceptional Redemptions, thepurchase price per Share will be equal to: (1) prior to the Initial BoardValuation, the Original Share Price less any Sale Distributions; or (2) onor after the Initial Board Valuation, the most recently disclosed Valuation,provided, however, that the purchase price per Share shall not exceed theOriginal Share Price less any Sale Distributions.

 

***General Terms forRedemption***

 

Our Program, whether for Ordinary orExceptional Redemptions, is available only for stockholders who have held theirShares for at least one year and who purchased their Shares directly from us orthe transferees mentioned below, and is not intended to provide liquidity toany stockholder who acquired his or her Shares by purchase from anotherstockholder.  In connection with arequest for redemption, the stockholder or his or her estate, heir orbeneficiary will be required to certify to us that the stockholder either (1) acquiredthe Shares requested to be repurchased directly from us or (2) acquiredthe Shares from the original subscriber by way of a bona fide gift not forvalue to, or for the benefit of, a member of the subscriber’s immediate orextended family (including the subscriber’s spouse, parents, siblings, childrenor grandchildren and including relatives by marriage) or through a transfer toa custodian, trustee or other fiduciary for the account of the subscriber ormembers of the subscriber’s 

 

3

----

 

immediate or extended familyin connection with an estate planning transaction, including by bequest orinheritance upon death or operation of law.

 

For purposes of the one-year holding period,limited partners of Behringer Harvard Opportunity OP, LP (“Behringer Harvard OpportunityOP”) who exchange their limited partnership units for Shares will be deemed tohave owned their Shares as of the date they were issued their limitedpartnership units in Behringer Harvard Opportunity OP.

 

We will not redeem Shares that are subject toliens or other encumbrances until the stockholder presents evidence that theliens or encumbrances have been removed. If any Shares subject to a lien are inadvertently redeemed or we shallotherwise be required to pay to any other party all or any amount in respect ofthe value of redeemed Shares, then the recipient of amounts in respect ofredemption shall repay to us the amount paid for such redemption up to theamount we are required to pay to such other party.

 

Notwithstanding the redemption pricesestablished above, the Board may determine, whether pursuant to formulae orprocesses approved by our Board or otherwise set by our Board, the redemptionprice of the Shares, which may differ between Ordinary Redemptions andExceptional Redemptions; provided, however, that we must provide at least 30days’ notice to stockholders before applying the new price that is set pursuantto this sentence to either Ordinary Redemptions or Exceptional Redemptions.

 

Any Shares approved for redemption will beredeemed on a periodic basis as determined from time to time by our Board, andno less frequently than annually.  Wewill not redeem, during any twelve-month period, more than 5% of the weightedaverage number of Shares outstanding during the twelve-month period immediatelyprior to the date of redemption (the “5% Limitation”). Further, our Board may,from time to time, in its sole discretion, limit the funds that we use toredeem Shares; provided, that in no event may the funds used for redemptionduring any period exceed the amount of gross proceeds generated from the saleof Shares through our distribution reinvestment plan (our “DRP”) during thatperiod (the “Funding Limitation” and, together with the 5% Limitation, the “RedemptionLimitations”).  The RedemptionLimitations apply to all redemptions, whether Ordinary or ExceptionalRedemptions.

 

Our Board reserves the right in its solediscretion at any time and from time to time to (1) waive the one-yearholding period applicable to requests for Exceptional Redemptions or otherexigent circumstances such as bankruptcy, a mandatory distribution requirementunder a stockholder’s IRA or with respect to Shares purchased under or throughour DRP, (2) reject any request for redemption, (3) change thepurchase price for redemptions, (4) limit the funds to be used forredemptions hereunder or otherwise change the Redemption Limitations or (5) amend,suspend (in whole or in part) or terminate the Program.  If we suspend our Program (in whole or inpart), except as otherwise provided by the Board, until the suspension islifted, we will not accept any requests for redemption in respect of Shares towhich such suspension applies in subsequent periods and any such requests andall pending requests that are subject to the suspension will not be honored orretained, but will be returned to the requestor.  Our advisor and its affiliates will defertheir own redemption requests, if any, until all other requests for redemptionhave been satisfied in any particular period.

 

A request for redemption may be withdrawn inwhole or in part by a stockholder in writing at any time prior toredemption.  We cannot guarantee that wewill accommodate all requests made in any particular redemption period.  If we do not redeem all Shares presented forredemption during any period, the stockholder or his or her estate, heir orbeneficiary can (1) withdraw the request for redemption, or (2) if wehave not suspended the redemption of the Shares that are subject to theredemption request (in which case the request will be retuned as providedabove), ask that we honor the request during the next period in which requestsare considered.  Further, if we do notredeem all Shares presented for redemption 

 

4

----

 

during any period in whichwe are redeeming Shares, then all Shares will be redeemed on a pro rata basisduring the relevant period.  Unless thestockholder seeking redemption affirmatively asks us to honor the redemptionrequest during the next period in which requests are considered, any portion ofa redemption request that is not honored will be deemed automaticallywithdrawn.  The stockholder will then berequired to resubmit a request for redemption request.  Unless otherwise determined by the Board, wewill not retain any redemption requests that are not honored or that arewithdrawn.

 

In general, a stockholder or his or herestate, heir or beneficiary may present to us fewer than all of the Sharesthen-owned for redemption, except that the minimum number of Shares that mustbe presented for redemption must be at least 25% of the holder’s Shares.  If, however, redemption is being requested (1) withinthe one-year timeframe discussed above, on behalf of a deceased stockholder orby a stockholder with a qualifying disability or who is confined to a long-termcare facility or (2) by a stockholder due to other exigent circumstances,such as bankruptcy or a mandatory distribution requirement under suchstockholder’s IRA, a minimum of 10% of the stockholder’s Shares may be presentedfor redemption; provided, however, that any future redemption request by thestockholder must present for redemption at least 25% of the stockholder’sremaining Shares.  In the case ofstockholders who undertake a series of partial redemptions, appropriateadjustments in the purchase price for the redeemed Shares will be made so thatthe blended price per Share for all redeemed Shares reflects the original priceper Share of all Shares purchased by the stockholder through the dates of eachredemption.

 

A stockholder who wishes to have Sharesredeemed must mail or deliver to us a written request on a form provided by usand executed by the stockholder, its trustee or authorized agent.  An estate, heir or beneficiary that wishes tohave Shares redeemed following the death of a stockholder must mail or deliverto us a written request on a form provided by us, including evidence acceptableto our Board of the death of the stockholder, and executed by the executor orexecutrix of the estate, the heir or beneficiary, or their trustee orauthorized agent.  A stockholderrequesting the redemption of his or her Shares due to a qualifying disabilityor confinement to a long-term care facility must mail or deliver to us a writtenrequest on a form provided by us, including the evidence and documentationdescribed above, or evidence acceptable to our Board of the stockholder’spermanent disability or confinement to a long-term care facility.  If the Shares are to be redeemed under theconditions outlined herein, we will forward the documents necessary to affectthe redemption, including any signature guaranty we may require.

 

The effective date of any redemption (the “EffectiveDate”) will be the last day of the calendar month preceding the date that theBoard accepts the request for redemption (the “Determination Date”).  Commencing on the Effective Date, any Sharesaccepted for redemption will no longer be deemed outstanding and will no longerbe eligible to receive distributions. Our Board will consider only properly completed redemption requests thatwe received on or before the end of the period ending no later than the lastday of the calendar month preceding the Determination Date.  Payment for the Shares so approved forredemption, assuming that we have not exceeded the Redemption Limitations andthat all necessary conditions have been satisfied, will be made no later than15 days after the Determination Date.

 

Subject to the restrictions in BehringerHarvard Opportunity OP’s limited partnership agreement and any other applicableagreement, we may cause Behringer Harvard Opportunity OP to offer to itslimited partners (other than our subsidiaries, BHO, Inc. and BHO BusinessTrust) a partnership unit redemption program equivalent to our Program.  Any units redeemed under the partnership unitredemption program will be redeemed upon terms substantially equivalent to theredemption terms of our Program and will be treated as Shares for purposes ofcalculating the Redemption Limitations.

 

Neither our advisor, any member of our Boardnor any of their affiliates will receive any fee on the repurchase of Shares byus pursuant to our Program.

 

5

----

 

The Shares we purchase under our Program willbe cancelled, and will have the status of authorized but unissued Shares.  We will not reissue repurchased Shares unlessthey are first registered with the Securities and Exchange Commission under theSecurities Act of 1933, as amended, and under appropriate state securities lawsor otherwise issued in compliance with or exemption from registration underthese laws.

 

The foregoing provisions regarding ourProgram in no way limit our ability to repurchase Shares or other of oursecurities or those of Behringer Harvard Opportunity OP from holders thereof byany other legally available means for any reason that the advisor or our Board,each in its discretion, deems to be in our best interest.

 

6

----

 

**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 a saleof the Company’s assets in an orderly liquidation;

 

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

 

·                  separate valuations of the Company’s assets;

 

A-1

----

 

·                  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;

 

·                  the prices at which the Company’s securitieswere sold in other offerings, such as a distribution reinvestment planoffering;

 

·                  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 rely on the Advisor or a third-party valuation expert toassist in estimating the value of the Company’s assets or its shares of CommonStock.  However, with respect to assetvaluations, the Board shall not be required to obtain asset-by-asset appraisalsprepared by appraisers certified by a Member of the Appraisal Institute orother trade organization that monitors appraisers, nor must any appraisalsconform to formats or 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 on anoffering 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.

 

A-2

----

 

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 any estimateof the value of Common Stock made pursuant to this policy, there can be noassurance that:

 

·                  the estimated value per share would actuallybe realized by the Company’s stockholders upon liquidation, bulk portfoliosales of the Company’s assets, sale of the Company or listing of the CommonStock on an exchange;

 

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

 

·                  the estimated value per share would berelated to any individual or aggregated value estimates or appraisals of theCompany’s assets; 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.

 

A-3

----