UNDER EACH LEASE IS THE AMOUNT OF FIXED RENT SET FORTH IN THE RENT ROLL,
AND THERE IS NO CLAIM OR BASIS FOR A CLAIM BY THE TENANT THEREUNDER FOR AN
ADJUSTMENT TO THE RENT; (V) TO BORROWER'S BEST KNOWLEDGE, NO TENANT HAS MADE ANY
CLAIM AGAINST THE LANDLORD UNDER ANY LEASE WHICH REMAINS OUTSTANDING, THERE ARE
NO DEFAULTS ON THE PART OF THE LANDLORD UNDER ANY LEASE, AND NO EVENT HAS
OCCURRED WHICH, WITH THE GIVING OF NOTICE OR PASSAGE OF TIME, OR BOTH, WOULD
CONSTITUTE SUCH A DEFAULT; (VI) TO BORROWER'S BEST KNOWLEDGE, THERE IS NO
PRESENT MATERIAL DEFAULT BY THE TENANT UNDER ANY LEASE; (VII)
ALL SECURITY
DEPOSITS UNDER LEASES ARE AS SET FORTH ON THE RENT ROLL AND ARE HELD CONSISTENT
WITH SECTION 3.7 OF THE MORTGAGE LOAN AGREEMENT; (VIII) MORTGAGE BORROWER IS THE
SOLE OWNER OF THE ENTIRE LESSOR'S INTEREST IN EACH LEASE; (IX) EACH LEASE IS THE
VALID, BINDING AND ENFORCEABLE OBLIGATION OF MORTGAGE BORROWER AND THE
APPLICABLE TENANT THEREUNDER; AND (X) TO BORROWER'S BEST KNOWLEDGE, NO PERSON
HAS ANY POSSESSORY INTEREST IN, OR RIGHT TO OCCUPY, THE PROPERTY EXCEPT UNDER
THE TERMS OF THE LEASE.
NONE OF THE LEASES CONTAINS ANY OPTION TO PURCHASE OR
RIGHT OF FIRST REFUSAL TO PURCHASE THE PROPERTY OR ANY PART THEREOF.
NEITHER
THE LEASES NOR THE RENTS HAVE BEEN ASSIGNED OR PLEDGED EXCEPT TO MORTGAGE
LENDER, AND NO OTHER PERSON HAS ANY INTEREST THEREIN EXCEPT THE TENANTS
THEREUNDER.
4.17
FRAUDULENT TRANSFER.
BORROWER HAS NOT ENTERED INTO THE LOAN OR ANY
LOAN DOCUMENT WITH THE ACTUAL INTENT TO HINDER, DELAY, OR DEFRAUD ANY CREDITOR,
AND BORROWER HAS RECEIVED REASONABLY EQUIVALENT VALUE IN EXCHANGE FOR ITS
OBLIGATIONS UNDER THE LOAN DOCUMENTS.
GIVING EFFECT TO THE TRANSACTIONS
CONTEMPLATED BY THE LOAN DOCUMENTS, THE FAIR SALEABLE VALUE OF BORROWER'S ASSETS
EXCEEDS AND WILL, IMMEDIATELY FOLLOWING THE EXECUTION AND DELIVERY OF THE LOAN
DOCUMENTS, EXCEED BORROWER'S TOTAL PROBABLE LIABILITIES, INCLUDING SUBORDINATED,
UNLIQUIDATED, DISPUTED OR CONTINGENT LIABILITIES, INCLUDING THE MAXIMUM AMOUNT
OF ITS CONTINGENT LIABILITIES OR ITS DEBTS AS SUCH DEBTS BECOME ABSOLUTE AND
MATURED.
BORROWER'S ASSETS DO NOT AND, IMMEDIATELY FOLLOWING THE EXECUTION AND
DELIVERY OF THE LOAN DOCUMENTS WILL NOT, CONSTITUTE UNREASONABLY SMALL CAPITAL
TO CARRY OUT ITS BUSINESS AS CONDUCTED OR AS PROPOSED TO BE CONDUCTED.
BORROWER
DOES NOT INTEND TO, AND DOES NOT BELIEVE THAT IT WILL, INCUR DEBTS AND
LIABILITIES (INCLUDING CONTINGENT LIABILITIES AND OTHER COMMITMENTS) BEYOND ITS
ABILITY TO PAY SUCH DEBTS AS THEY MATURE (TAKING INTO ACCOUNT THE TIMING AND
AMOUNTS TO BE PAYABLE ON OR IN RESPECT OF OBLIGATIONS OF BORROWER).
40
4.18
OWNERSHIP OF BORROWER.
BORROWER IS THE SOLE LIMITED PARTNER OF
MORTGAGE BORROWER AND THE SOLE MEMBER OF MORTGAGE BORROWER GP.
THE ONLY MEMBER
OF BORROWER IS BEHRINGER HARVARD OPPORTUNITY OP I, LP.
THE ONLY PARTNERS OF
BEHRINGER HARVARD OPPORTUNITY OP I, LP ARE BHO, INC. (LESS THAN 0.1% GENERAL
PARTNER), AND BHO BUSINESS TRUST (IN EXCESS OF 99.9% LIMITED PARTNER).
THE SOLE
BENEFICIARY OF BHO BUSINESS TRUST AND SOLE SHAREHOLDER OF