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; (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 BORROWER AND THE APPLICABLE TENANT THEREUNDER; (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; 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).
46
4.18
OWNERSHIP OF BORROWER.
THE SOLE LIMITED PARTNER
(99.9% LIMITED PARTNER) OF BORROWER IS BEHRINGER HARVARD SANTA CLARA M, LLC.
THE SOLE GENERAL PARTNER (0.1% GENERAL PARTNER) OF BORROWER IS BORROWER GP.
THE
ONLY MEMBER OF BEHRINGER HARVARD SANTA CLARA M, LLC 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 BHO, INC. IS