PURSUANT TO A SUBORDINATION AND ATTORNMENT AGREEMENT.
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 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).
4.18
OWNERSHIP OF BORROWER.
THE SOLE LIMITED PARTNER (99.9% LIMITED
PARTNER) OF BORROWER IS BEHRINGER HARVARD OPERATING PARTNERSHIP.
THE SOLE
GENERAL PARTNER (0.1% GENERAL PARTNER) OF BORROWER IS BORROWER GP.
THE ONLY
PARTNERS OF BEHRINGER HARVARD OPERATING PARTNERSHIP ARE BEHRINGER HARVARD REIT
(0.1% GENERAL PARTNER), BHR PARTNERS (IN EXCESS OF 90% LIMITED PARTNER) AND
CERTAIN OTHER INDIVIDUAL HOLDERS OF EQUITY INTERESTS (LESS THAN 10% LIMITED
PARTNERS).
THE SOLE MEMBER OF BHR PARTNERS IS BEHRINGER HARVARD REIT.
THE
PARTNERSHIP INTERESTS IN BORROWER, THE MEMBERSHIP INTEREST IN BORROWER GP AND
THE GENERAL PARTNERSHIP INTEREST OF BEHRINGER HARVARD REIT AND THE LIMITED
PARTNERSHIP INTERESTS OF BHR PARTNERS IN BEHRINGER HARVARD OPERATING PARTNERSHIP
ARE OWNED FREE AND CLEAR OF ALL LIENS, WARRANTS, OPTIONS AND RIGHTS TO
PURCHASE.
BORROWER HAS NO OBLIGATION TO ANY PERSON TO PURCHASE,
35
REPURCHASE OR ISSUE ANY OWNERSHIP INTEREST IN IT.
THE ORGANIZATIONAL CHART
ATTACHED HERETO AS SCHEDULE 4 IS COMPLETE AND ACCURATE AND ILLUSTRATES ALL
PERSONS WHO HAVE A DIRECT OR INDIRECT OWNERSHIP INTEREST IN BORROWER.
4.19
PURCHASE OPTIONS.
NEITHER THE PROPERTY NOR ANY PART THEREOF IS
SUBJECT TO ANY PURCHASE OPTIONS OR OTHER SIMILAR RIGHTS IN FAVOR OF THIRD
PARTIES.
4.20
MANAGEMENT AGREEMENT.
THE MANAGEMENT AGREEMENT IS IN FULL FORCE AND
EFFECT.
THERE IS NO DEFAULT, BREACH OR VIOLATION EXISTING THEREUNDER, AND NO
EVENT HAS OCCURRED (OTHER THAN PAYMENTS DUE BUT NOT YET DELINQUENT) THAT, WITH
THE PASSAGE OF TIME OR THE GIVING OF NOTICE, OR BOTH, WOULD CONSTITUTE A
DEFAULT, BREACH OR VIOLATION THEREUNDER, BY EITHER PARTY THERETO.
PURSUANT TO
THE MANAGEMENT AGREEMENT, BORROWER HAS APPOINTED