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) 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) 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 3.8 HEREOF; (VIII) 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 THE BORROWER AND THE APPLICABLE TENANT THEREUNDER;
(X) NO PERSON HAS ANY POSSESSORY INTEREST IN, OR RIGHT TO OCCUPY, THE PROPERTY
EXCEPT UNDER THE TERMS OF THE LEASE; AND (XI) EACH LEASE IS SUBORDINATE TO THE
LOAN DOCUMENTS, EITHER PURSUANT TO ITS TERMS OR 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).
32
4.18
OWNERSHIP OF BORROWER. THE SOLE GENERAL PARTNER OF BORROWER IS
BEHRINGER HARVARD TERRACE GP, LLC, A DELAWARE LIMITED LIABILITY COMPANY
("BORROWER GP"). THE SOLE MEMBER OF BORROWER GP, AND THE SOLE LIMITED PARTNER OF
BORROWER, IS BEHRINGER HARVARD OPERATING PARTNERSHIP I LP ("BORROWER HOLDING").
THE SOLE OWNER OF 100% OF THE EQUITY INTERESTS IN BORROWER HOLDING IS THE
HARVARD REIT OPERATING PARTNERSHIP. THE ONLY PARTNERS OF THE HARVARD REIT
OPERATING