Common use of Recycled Entity Clause in Contracts

Recycled Entity. With respect to each Borrower, (i) such Borrower is and always has been duly formed, validly existing and in good standing in the state in which it was formed and in any other jurisdictions where it is qualified to do business; (ii) such Borrower has no outstanding judgments or liens of any nature against it other than pursuant to the Loan Documents and Permitted Encumbrances; (iii) such Borrower is in compliance in all material respects with all laws, regulations and orders applicable to such Borrower and has received all material permits necessary for such Borrower to operate and for which a failure to possess would materially and adversely affect the condition, financial or otherwise, of Borrower; (iv) no Borrower is aware of any pending or threatened litigation involving such Borrower that, if adversely determined, might materially adversely affect the condition (financial or otherwise) of such Borrower, or the condition or ownership of the property owned by such Borrower; (v) such Borrower is not involved in any material dispute with any taxing authority; (vi) such Borrower has paid or has caused to be paid all real estate taxes that are due and payable with respect to its applicable Individual Property except as otherwise permitted pursuant to this Agreement; (vii) such Borrower is not now, a party to any lawsuit, arbitration, summons or legal proceeding that, if adversely determined, might materially adversely affect the condition (financial or otherwise) of such Borrower or the condition or ownership of the property owned by such Borrower nor has Borrower ever been a party to any lawsuit, arbitration, summons or legal proceeding that resulted in a judgment against it that has not been paid in full or otherwise resolved; (viii) all financial statements that Borrower has provided to Lender are true, correct and complete in all material respects and reflect an accurate view in all material respects of the financial condition of Borrower (taken as a whole) as of the date hereof; (ix) the most recent Phase One environmental audit for the applicable Individual Property owned by such Borrower recommended no action; (x) such Borrower has no material contingent or actual obligations not related to its applicable Individual Property, (xi) such Borrower has not owned any property other than its related Individual Property and (xii) at all times since its formation to the date hereof, such Borrower has complied with the separateness covenants set forth in its previous organizational documents and has been a single purpose entity.

Recycled Entity. With respect to each Borrower, (i) such Borrower is has since its formation owned no other property other than the Property (and always has been duly formedpersonal property incidental thereto), validly existing and in good standing in the state in which it was formed and in any other jurisdictions where it is qualified to do business; (ii) such Borrower has no outstanding judgments contingent liabilities or liens of any nature against it actual liabilities or indebtedness other than the Loan and unsecured trade debt not in excess of 3% of the original principal amount of the Loan in the aggregate (total for both Borrowers in the aggregate) and other contingent liabilities with respect to customary indemnity and defense obligations for potential future liabilities under the documents evidencing the Previous Non-Recourse Indebtedness (as hereinafter defined) which pursuant to the terms thereof survive the payment in full of such loans, but provided that (A) Borrower is not aware of the existence of any facts or circumstances that could reasonably be expected to result in any such contingent liabilities becoming actual liabilities, and (B) none of such contingent liabilities are expected to have a material adverse effect on Borrower's financial condition or its ability to perform its obligations under the Loan Documents and Permitted Encumbrances; Documents, (iii) such Borrower is in compliance in all material respects with all laws, regulations and orders applicable to such Borrower and has received all material permits necessary for such Borrower to operate and for which a failure to possess would materially and adversely affect the condition, financial or otherwise, of Borrower; (iv) no Borrower is aware of any pending or threatened litigation involving such Borrower that, if adversely determined, might materially adversely affect the condition (financial or otherwise) of such Borrower, or the condition or ownership of the property owned by such Borrower; (v) such Borrower is not involved in any material dispute with any taxing authority; (vi) such Borrower has paid or has caused to be paid all real estate taxes that are due and payable with respect to its applicable Individual Property except as otherwise permitted pursuant to this Agreement; (vii) such Borrower is not now, a party to any lawsuit, arbitration, summons or legal proceeding that, if adversely determined, might materially adversely affect the condition (financial or otherwise) of such Borrower or the condition or ownership of the property owned by such Borrower nor has Borrower ever been a party to any lawsuit, arbitration, summons or legal proceeding that resulted in a judgment against it that has not been paid in full or otherwise resolved; (viii) all financial statements that Borrower has provided to Lender are with true, correct and complete copies of Borrower's financial statements since its formation and with true, correct and complete copies of all environmental reports in all material respects Borrower's possession concerning the Property, and reflect an accurate view in all material respects with true, correct and complete copies of the financial condition principal loan documents for both of the previous secured loans of Borrower (taken as a wholethe "PREVIOUS NON-RECOURSE INDEBTEDNESS"), and (iv) as of the date hereof; other than (ixA) the most recent Phase One environmental audit for the applicable Individual Property owned by such Borrower recommended no action; Previous Non-Recourse Indebtedness, which was non-recourse in nature, (B) unsecured indebtedness that was (x) such incurred in the ordinary course of the construction of the Improvements or the performance of tenant improvements at the Property, and (y) paid within sixty (60) days after the date first incurred, and (C) intercompany balances owed by Behringer LLC to Behringer LP in respect of the Ground Lease that are being paid concurrently with the acquisition of Borrower by Behringer Harvard I, Behringer Harvard II, and Behringer Harvard III, to Borrower's knowledge Borrower has no material contingent or actual obligations not related to not, since its applicable Individual Propertyformation, (xi) such Borrower has not owned incurred any property indebtedness other than the Loan and unsecured trade debt not in excess (in the aggregate, for both Borrowers) of 3% of the original principal amount of the Loan. (b) Behringer LLC hereby represents and warrants that: (A) since the date of its related Individual inception its sole purpose has been, and is, to own or lease and operate the Property and (xii) that it has at all times since its formation complied with clauses (i), (ii), (iii), (iv), (ix), (x), (xii), (xiii), (xv), (xvi), (xvii), (xxiii), (xxv), (xxvi), (xxvii), (xxviii), (xxix), and (xxx) of clause (y) of the definition of Single Purpose Bankruptcy Remote Entity (set forth on Schedule 5); and (B) to the best of its knowledge, since the date hereof, such Borrower of its inception it has at all times complied with clauses (xi), (xiv), (xviii), (xix), (xx), (xxi) (subject to clause 4.25(a)(iv) above), (xxii), and (xxiv) of clause (y) of the separateness covenants set forth definition of Single Purpose Bankruptcy Remote Entity. Behringer LP hereby represents and warrants that (Y) since the date of its inception its sole purpose has been, and is, to acquire, hold, maintain, develop, operate, sell, improve, lease, dispose of and otherwise invest in and deal with the Property and that it has at all times complied with clauses (i), (ii), (iii), (iv), (ix), (x), (xii), (xiii), (xv), (xvi), (xvii), (xxiii), (xxv), (xxvi), (xxvii), (xxviii), (xxix), and (xxx) of clause (y) of the definition of Single Purpose Bankruptcy Remote Entity; and (Z) to the best of its previous organizational documents knowledge, since the date of its inception it has at all times complied with clauses (xi), (xiv), (xviii), (xix), (xx), (xxi) (subject to clause 4.25(a)(iv) above), (xxii), and has been a single purpose entity(xxiv) of clause (y) of the definition of Single Purpose Bankruptcy Remote Entity. (c) No Behringer Entity (as defined in the Non-Consolidation Opinion) had any direct or indirect interest in either Borrower prior to the Behringer Entities' acquisition of Borrowers and no Behringer Entity had engaged directly or indirectly in the operation or management of the Property prior to the Acquisition (as defined in the Non-Consolidation Opinion).

Recycled Entity. With respect Borrower hereby represents and warrants to each BorrowerLender that: (a) no Individual Borrower has, since its formation (i) such Borrower is and always has been failed to be duly formed, validly existing existing, and in good standing in under the laws of the State of Delaware and each applicable state in which it was formed and in any other jurisdictions where it its Individual Property is qualified to do businesslocated; (ii) such Borrower has no outstanding had any judgments or liens of any nature against it other than pursuant to except for (A) tax liens not yet delinquent, (B) judgments which have been satisfied in full, (C) liens in connection with the Prior Loan Documents and (D) Permitted Encumbrances; (iii) to such Borrower is in compliance Individual Borrower’s knowledge, failed to comply in all material respects with all laws, regulations regulations, and orders applicable to such Individual Borrower or failed to receive all permits and has received all material permits licenses necessary for such Individual Borrower to operate its business as presently conducted and for which a failure to possess would materially and adversely affect the its condition, financial or otherwiseotherwise or the condition, value or ownership of Borrowerthe applicable Individual Property; (iv) no Borrower is aware of any pending or threatened litigation involving such Borrower that, if adversely determined, might materially adversely affect the condition (financial or otherwise) of such Borrower, or the condition or ownership of the property owned by such Borrower; (v) such Borrower is not been involved in any material dispute with any taxing authority; (vi) such Borrower has paid authority which is unresolved as of the Closing Date or has caused failed to pay or cause to be paid all real estate taxes that are due and payable with respect to its the applicable Individual Property except as otherwise permitted pursuant prior to this Agreementthe delinquency thereof (or, if later, then with all applicable penalties, interest and other sums due in connection therewith); (viiv) such Borrower is not now, a ever been party to any lawsuit, arbitration, summons summons, or legal proceeding that, that is still pending and if adversely determined, might materially adversely affect the condition (financial would be reasonably likely to result in a Material Adverse Effect or otherwise) of such Borrower or the condition or ownership of the property owned by such Borrower nor has Borrower ever been a party to any lawsuit, arbitration, summons or legal proceeding that resulted in a judgment against it that has not been paid in full or otherwise resolvedfull; (viiivi) all financial statements that Borrower has provided failed to Lender are true, correct and complete comply in all material respects and reflect an accurate view with all separateness covenants contained in all material respects of the financial condition of Borrower (taken as a whole) as of the date hereofits organizational documents since its formation; (ixvii) the most recent Phase One environmental audit other than for the applicable Individual Property owned by such Borrower recommended no action; (x) such Borrower has no Prior Loans, had any material contingent or actual obligations not related to its the applicable Individual Property, except as permitted by this Agreement; or (xiviii) such Borrower been the product of, the subject of or otherwise involved in, in each case, any Division; (b) the Prior Loan has not owned any property been satisfied or defeased in full on or before the date hereof (other than its related environmental and other limited and customary indemnity obligations which survive the satisfaction or defeasance in full of the Prior Loan), (c) neither Borrower nor Guarantor has any remaining liabilities or obligations, actual or contingent, in connection with the Prior Loan (other than environmental and other limited and customary indemnity obligations which survive the satisfaction or defeasance in full of the Prior Loan), (d) all collateral and security for the Prior Loan (including any Individual Property and (xiithat was collateral for any Prior Loan) at all times since its formation has been released on or prior to the date hereof, such (e) under no circumstance shall any recourse be had whatsoever against all or any portion of the Property to satisfy the Prior Loan (or any portion thereof), nor shall all or any portion of the Property be available to satisfy any Prior Loan, (f) Borrower has complied provided Lender with true, correct and complete copies of (i) Borrower’s current financial statements, and (ii) Borrower’s organizational documents since formation (and all amendments and modifications thereto) (collectively, “Borrower’s Organizational Documents”), and (g) Borrower has at all times prior to the Closing Date conducted its affairs in substantial accordance with the separateness covenants set forth in its previous organizational provisions of Borrower’s Organizational Documents and the loan documents and has been a single purpose entityfor the Prior Loan.