Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable. (a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner. (b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof. (c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing. (d) All conditions to the funding of the Mortgage have been met. (e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing. (f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General Partner does not have any personal liability with respect to and has not personally guaranteed the payment of the Mortgage. (g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing. (h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership. (i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority. (j) The Partnership has obtained Insurance written by an Insurance Company. (k) The Partnership owns the fee simple interest in the Apartment Housing. (l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract. (m) The Partnership will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum tax. (n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep the Apartment Housing free of Hazardous Substances and shall not use or generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing. (o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement. (p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable. (q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy. (r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test. (s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority. (t) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof. (u) No event has occurred which constitutes a default under any of the Project Documents. (v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner. (w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion of construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public. (x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership. (y) Upon signing of the Mortgage Loan and receipt of the written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date. (z) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period of at least two years after the closing and funding of the Mortgage.
Appears in 2 contracts
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 11), Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 11)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike worker-like manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which that are prudent and customary for the operation of properties similar to the Apartment Housing.
(e) All conditions to the funding of the Construction Loan have been met.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership General Partner will require the Accountant to depreciate Partnership items in accordance with Exhibit G attached hereto and incorporated herein by this reference and provide the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements information required by Sections 14.2(a) and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coveringsb) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxof this Agreement.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, of the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The Partnership shall retain the Architect of Record and ensure that the Architect of Record's responsibilities include, but are not limited to, preparing and overseeing the construction close-out procedures upon completion; inspecting for and overseeing resolution of the Contractor's final punch list items; receiving and approving operation and maintenance manuals; collecting, reviewing, approving and forwarding to the Partnership all warranties, check key count and key schedules; and confirming turnover of spare parts and materials.
(s) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(st) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any governmental or lending authority.
(tu) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(uv) No event has occurred which constitutes a default under any of the Project Documents.
(vw) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(wx) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(xy) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(yz) Upon signing of the Mortgage Construction Loan and receipt of the Construction Lender's written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(zaa) The General Partner has contacted the local tax assessor, or similar representative, and has determined that the Real Estate Taxes are accurate and correct, and that the Partnership will not be required to pay any more for real estate taxes, or property taxes, than the amount of Real Estate Taxes, referenced in this Agreement, except for annual increases imposed on all real estate within the same county as the Apartment Housing. In the event the actual real estate taxes, or property taxes, are greater than the Real Estate Taxes specified in this Agreement and as a result of the higher real estate tax, or property tax, the Debt Service Coverage falls below 1.15 then the General Partner will contribute additional capital to lower the principal of the Mortgage and reamortize the Mortgage so that the Debt Service Coverage is at a sustainable 1.15, as approved by the Special Limited Partner. If the Mortgage lender will not or cannot reamortize the loan as specified in this Section, and the General Partner cannot obtain another mortgage, then the General Partner will contribute additional capital as determined by the Special Limited Partner to the T & I Account in an amount equal to the annual difference between the actual real estate tax, or property tax, over the Real Estate Taxes specified in this Agreement times the number of years remaining on the 15-year LIHTC compliance term. Any payment by the General Partner pursuant to this section shall be in addition to the General Partner's obligation to fund Operating Deficits.
(bb) The Partnership will maintain a Debt Service Coverage of not less than 1.15 and will not close on a permanent loan or refinance a Mortgage loan if the Debt Service Coverage would fall below 1.15.
(cc) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner Architect of Record will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars$1,000,000, which policy should remain in force for a period of at least two 2 years after the closing and funding of the Mortgage.
(dd) The General Partner and the Guarantor have and shall maintain an aggregate net worth equal to at least $2,000,000 computed in accordance with generally accepted accounting principles.
(ee) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, with respect to the Apartment Housing.
(ff) Neither the General Partner nor its Affiliates will take any action or agree to any terms or conditions that are contrary to, or in disagreement with, the tax credit application used to secure the LIHTC, or the land use restriction agreement required to be recorded against the Apartment Housing. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 11)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which that are prudent and customary for the operation of properties similar to the Apartment Housing.
(fe) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(gf) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(hg) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(ih) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(ji) The Partnership has obtained Insurance written by an Insurance Company.
(kj) The Partnership owns the fee simple interest in the Apartment Housing.
(lk) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(ml) The Partnership General Partner will require the Accountant to depreciate Partnership items in accordance with Exhibit "G" attached hereto and incorporated herein by this reference and provide the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements information required by Sections 14.2(a) and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coveringsb) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxof this Agreement.
(nm) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(on) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition toof, the provisions of this Agreement.
(po) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(qp) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(q) The Partnership shall retain the Construction Inspector and ensure that the Architect of Record's responsibilities include, but are not limited to, preparing and overseeing the construction close-out procedures upon completion; inspecting for and overseeing resolution of the Contractor's final punch list items; receiving and approving operation and maintenance manuals; collecting, reviewing, approving and forwarding to the Partnership all warranties, check key count and key schedules; and confirming turnover of spare parts and materials.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, including without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any governmental or lending authority.
(t) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(u) No event has occurred which constitutes a default under any of the Project Documents.
(v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage mortgage Loan and receipt of the mortgage lender's written start order, the General Partner will cause construction rehabilitation of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction rehabilitation of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(zaa) The General Partner has contacted the local tax assessor, or similar representative, and has determined that the Real Estate Taxes are accurate and correct, and that the Partnership will not be required to pay any more for real estate taxes, or property taxes, than the amount of Real Estate Taxes, referenced in this Agreement, except for annual increases imposed on all real estate within the same county as the Apartment Housing. In the event the real estate taxes, or property taxes, are actually greater than the Real Estate Taxes specified in this Agreement and as a result of the higher real estate tax, or property tax, the Debt Service Coverage falls below 1.10 then the General Partner will contribute additional capital to lower the principal of the mortgage and reamortize the Mortgage so that the Debt Service Coverage is at a sustainable 1.10 as approved by the Special Limited Partner. If the Mortgage lender will not, or cannot, reamortize the loan as specified in this Section, and the General Partner cannot obtain another mortgage, then the General Partner will contribute additional capital as determined by the Special Limited Partner to the T & I Account in an amount equal to the annual difference between the actual real estate tax, or property tax, over the Real Estate Taxes specified in this Agreement times the number of years remaining on the 15-year LIHTC compliance term. Any payment by the General Partner pursuant to this section shall be in addition to the General Partner's obligation to fund Operating Deficits.
(bb) The Partnership will maintain a Debt Service Coverage of not less than 1.10 and will not close on a permanent loan or refinance a Mortgage loan if the Debt Service Coverage would fall below 1.10.
(cc) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner Architect of Record will have a policy of professional liability insurance in an amount not less than five hundred thousand one million dollars, which policy should remain in force for a period of at least two years after the closing and funding of the Mortgage.
(dd) The General Partner and the Guarantor have and shall maintain an aggregate net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles.
(ee) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, with respect to the Apartment Housing.
(ff) Neither the General Partner nor its Affiliates will take any action or agree to any terms or conditions that are contrary to, or in disagreement with, the tax credit application used to secure the LIHTC, or the land use restriction agreement required to be recorded against the Apartment Housing. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 12)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which that are prudent and customary for the operation of properties similar to the Apartment Housing.
(fe) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(gf) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(hg) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(ih) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(ji) The Partnership has obtained Insurance written by an Insurance Company.
(kj) The Partnership owns the fee simple interest in the Apartment Housing.
(lk) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(ml) The Partnership General Partner will require the Accountant to depreciate Partnership items in accordance with Exhibit "G" attached hereto and incorporated herein by this reference and provide the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements information required by Sections 14.2(a) and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coveringsb) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxof this Agreement.
(nm) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(on) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition toof, the provisions of this Agreement.
(po) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(qp) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(q) The Partnership shall retain the Construction Inspector and ensure that the Architect of Record's responsibilities include, but are not limited to, preparing and overseeing the construction close-out procedures upon completion; inspecting for and overseeing resolution of the Contractor's final punch list items; receiving and approving operation and maintenance manuals; collecting, reviewing, approving and forwarding to the Partnership all warranties, check key count and key schedules; and confirming turnover of spare parts and materials.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, including without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any governmental or lending authority.
(t) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(u) No event has occurred which constitutes a default under any of the Project Documents.
(v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage Loan and receipt of the Mortgage Lender's written start order, the General Partner will cause construction rehabilitation of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction rehabilitation of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(z) The General Partner has contacted the local tax assessor, or similar representative, and has determined that the Real Estate Taxes are accurate and correct, and that the Partnership will use its best efforts not be required to pay any more for real estate taxes, or property taxes, than the amount of Real Estate Taxes, referenced in this Agreement, except for annual increases imposed on all real estate within the same county as the Apartment Housing. In the event the real estate taxes, or property taxes, are actually greater than the Real Estate Taxes specified in this Agreement and as a result of the higher real estate tax, or property tax, the Debt Service Coverage falls below 1.10 then the General Partner will contribute additional capital to lower the principal of the mortgage and reamortize the Mortgage so that the Debt Service Coverage is at a sustainable 1.10 as approved by the Special Limited Partner. If the Mortgage lender will not, or cannot, reamortize the loan as specified in this Section, and the General Partner cannot obtain another mortgage, then the General Partner will contribute additional capital as determined by the Special Limited Partner to the T & I Account in an amount equal to the annual difference between the actual real estate tax, or property tax, over the Real Estate Taxes specified in this Agreement times the number of years remaining on the 15-year LIHTC compliance term. Any payment by the General Partner pursuant to this section shall be in addition to the General Partner's obligation to fund Operating Deficits.
(aa) The Partnership will maintain a Debt Service Coverage of not less than 1.10 and will not close on a permanent loan or refinance a Mortgage loan if the Debt Service Coverage would fall below 1.10.
(bb) The General Partner will ensure that any architect retained by the Partnership or General Partner Architect of Record will have a policy of professional liability insurance in an amount not less than five hundred thousand one million dollars, which policy should remain in force for a period of at least two years after the closing and funding of the Mortgage.
(cc) The General Partner and the Guarantor have and shall maintain an aggregate net worth equal to at least $2,000,000 computed in accordance with generally accepted accounting principles.
(dd) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, with respect to the Apartment Housing.
(ee) Neither the General Partner nor its Affiliates will take any action or agree to any terms or conditions that are contrary to, or in disagreement with, the tax credit application used to secure the LIHTC, or the land use restriction agreement required to be recorded against the Apartment Housing. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund VI, L.P., Series 13)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or 37 violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike worker-like manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which that are prudent and customary for the operation of properties similar to the Apartment Housing.
(fe) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(gf) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(hg) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(ih) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(ji) The Partnership has obtained Insurance written by an Insurance Company.
(kj) The Partnership owns the fee simple interest in the Apartment Housing.
(lk) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(ml) The Partnership General Partner will require the Accountant to depreciate Partnership items in accordance with Exhibit G attached hereto and incorporated herein by this reference and provide the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements information required by Sections 14.2(a) and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coveringsb) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxof this Agreement.
(nm) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing, except as disclosed in written environmental reports delivered to the Special Limited Partner prior to the date of this Agreement. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(on) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, of the provisions of this Agreement.
(po) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(qp) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(q) The Partnership shall retain the Construction Inspector and ensure that the Architect of Record complies with its obligations as provided in the Abbreviated Standard Form of Agreement between Owner and Architect, dated September 8, 2004.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any governmental or lending authority.
(t) The Other than as allowed and accounted for pursuant to this Agreement, the General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(u) No event has occurred which constitutes a default under any of the Project Documents.
(v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage Loan and receipt of the written start order, the The General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(z) The General Partner will use its best efforts to ensure has contacted the local tax assessor, or similar representative, and has determined that any architect retained by the Real Estate Taxes are accurate and correct, and that the Partnership will not be required to pay any more for real estate taxes, or property taxes, than the amount of Real Estate Taxes, referenced in this Agreement, except for annual increases imposed on all real estate within the same county as the Apartment Housing. In the event the actual real estate taxes, or property taxes, are greater than the Real Estate Taxes specified in this Agreement and as a result of the higher real estate tax, or property tax, the Debt Service Coverage falls below 1.15 then the General Partner will have contribute additional capital to lower the principal of the mortgage and reamortize the Mortgage so that the Debt Service Coverage is at a policy of professional liability insurance sustainable 1.15, as approved by the Special Limited Partner. If the Mortgage lender will not or cannot reamortize the loan as specified in this Section without the Partnership incurring a prepayment penalty, and the General Partner cannot obtain another mortgage, then the General Partner will contribute additional capital annually as determined by the Special Limited Partner to the T & I Account in an amount not less than five hundred thousand dollarsequal to the annual difference between the actual real estate tax, which policy should remain or property tax, over the Real Estate Taxes specified in force for a period of at least two years after the closing and funding of the Mortgage.this
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 12)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is are in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(fe) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(gf) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(hg) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(ih) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(ji) The Partnership has obtained Insurance written by an Insurance Company.
(kj) The Partnership owns the fee simple interest in the Apartment Housing.
(lk) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(ml) The Partnership General Partner will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements Partnership items in accordance with Exhibit "G" attached hereto and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxincorporated herein by this reference.
(nm) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(on) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(po) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(qp) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(rq) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(sr) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority.
(ts) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(ut) No event has occurred which constitutes a default under any of the Project Documents.
(vu) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(wv) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion of construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(xw) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(yx) Upon signing of the Mortgage Loan and receipt of the written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(zy) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner Architect of Record will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars$500,000.
(z) The Partnership shall retain the Construction Inspector and ensure that the Architect of Record's responsibilities include, which policy should remain in force but are not limited to, preparing and overseeing the construction close-out procedures upon completion; inspecting for a period of at least two years after the closing and funding overseeing resolution of the MortgageContractor's final punch list items; receiving and approving operation and maintenance manuals; collecting, reviewing, approving and forwarding to the Partnership all warranties, check key count and key schedules; and confirming turnover of spare parts and materials.
(aa) The Partnership will maintain a Debt Service Coverage of not less than 1.15 and will not close on a permanent loan or refinance a Mortgage loan if the Debt Service Coverage would fall below 1.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 10)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage Construction Loan have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General Partner does not have any personal liability with respect to and has not personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum tax.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep the Apartment Housing free of Hazardous Substances and shall not use or generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority.
(t) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(u) No event has occurred which constitutes a default under any of the Project Documents.
(v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion of construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage Construction Loan and receipt of the written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(z) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period of at least two years after the closing and funding of the Mortgage.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 11)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(e) All conditions to the funding of the Construction Loan have been met.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership will require the Accountant to depreciate the Improvements over a 27 1/2-1/2 year term. Site work work, landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be broken out separately from Improvements and depreciated over 15 7 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum tax.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority.
(t) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(u) No event has occurred which constitutes a default under any of the Project Documents.
(v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion of construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage Loan and receipt of the written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(z) The General Partner will use has and shall maintain a net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its best efforts to ensure that any architect retained investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Partnership or General Limited Partner will have as a policy result of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period of at least two years after the closing and funding any material breach of the Mortgagerepresentations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 6)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State of South Dakota and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is are in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage Construction and Renovation Loan have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or and the necessary rights of way therefore have been acquired and will be maintained by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authorityPartnership.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction and Renovation Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction and Renovation Contract, unless authorized in writing by the Special Limited Partner.
(m) The Partnership General Partner will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements Partnership items in accordance with Exhibit "G" attached hereto and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxincorporated herein by this reference.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority.
(t) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(u) No event has occurred which constitutes a default under any of the Project Documents.. 37
(v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion of construction and renovation of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage Construction and Renovation Loan and receipt of the Construction and Renovation Lender's written start order, the General Partner will cause construction and renovation of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction and renovation of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(z) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period of at least two years after the closing and funding of the Mortgage.
(aa) The General Partner and/or Guarantor has and shall maintain a net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles.
(bb) The Partnership's and General Partner's computer hardware and software used to produce financial reports and tax return information are year 2000 compliant. To the best of the General Partner's knowledge after due inquiry: the Partnership's and General Partner's office machinery and equipment are year 2000 compliant; and the Management Agent's financial reporting systems and office machinery and equipment are year 2000 compliant. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 6)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met[Intentionally omitted].
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General Partner does not have any personal liability with respect to and has not personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum tax.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep the Apartment Housing free of Hazardous Substances and shall not use or generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority.
(t) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(u) No event has occurred which constitutes a default under any of the Project Documents.
(v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion of construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage Loan and receipt of the written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(z) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period of at least two years after the closing and funding of the Mortgage.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 10)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof.
(c) The Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(e) All conditions to the funding of the Construction Loan and the Mortgage Loan have been met.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership General Partner will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements Partnership items in accordance with Exhibit "G" attached hereto and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxincorporated herein by this reference.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The Partnership shall retain the Architect of Record and ensure that the Architect of Record's responsibilities include, but are not limited to, preparing and overseeing the construction close-out procedures upon completion; inspecting for and overseeing resolution of the Contractor's final punch list items; receiving and approving operation and maintenance manuals; collecting, reviewing, approving and forwarding to the Parnership all warranties, check key count and key schedules; and confirming turnover of spare parts and materials.
(s) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(st) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof required to be funded as of the date hereof, are currently funded to required levels, including levels required by any governmental or lending authority.
(tu) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof, with the exception of payments pursuant to the Construction Loans and Mortgage Loans made by MHC.
(uv) No event has occurred which constitutes a default under any of the Project Documents.
(vw) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(wx) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(xy) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(yz) Upon signing of the Mortgage Loan and receipt of the written start order, the The General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(zaa) During the Operating Deficit Guarantee Period, the Partnership will maintain a Debt Service Coverage of not less than 1.10 and will not close on a permanent loan or refinance a Mortgage loan if the Debt Service Coverage would fall below 1.10.
(bb) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner Architect of Record will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars$1,000,000, which policy should remain in force for a period of at least two years after the closing and funding of the Mortgage.
(cc) The General Partner and the Guarantor have and shall maintain an aggregate net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles.
(dd) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, with respect to the Apartment Housing.
(ee) Neither the General Partner nor its Affiliates will take any action or agree to any terms or conditions that are contrary to, or in disagreement with, the tax credit application used to secure the LIHTC, or the land use restriction agreement required to be recorded against the Apartment Housing
(1) The Apartment Housing was acquired by purchase (as defined in Code Section 179(d)(2)); (2) a period of at least 10 years has elapsed between the date on which the Partnership acquired the Apartment Housing and the date the Apartment Housing was last placed in service; and (3) the Apartment Housing was not previously placed in service by the Partnership, the General Partner, or any other person who was a related person (as defined in Code Section 42(d)(2)(D)(iii)(II)) with respect to the Partnership as of the time the Apartment Housing was previously placed in service. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 9)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage Loan have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General Partner does not have any personal liability with respect to and has not personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum tax.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep the Apartment Housing free of Hazardous Substances and shall not use or generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority.
(t) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(u) No event has occurred which constitutes a default under any of the Project Documents.
(v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion of construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage Loan and receipt of the written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(z) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period of at least two years after the closing and funding of the Mortgage.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 10)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is are in breach or violation of any provisions thereof.
(c) To the best of its ability the Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being will be operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(e) All conditions to the funding of the Construction Loan have been met.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage, except as otherwise provided in Article VI.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership General Partner will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements Partnership items in accordance with Exhibit "G" attached hereto and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxincorporated herein by this reference.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The Partnership shall retain the Architect of Record and ensure that the Architect of Record's responsibilities include, but are not limited to, preparing and overseeing the construction close-out procedures upon completion; inspecting for and overseeing resolution of the Contractor's final punch list items; receive and approve operation and maintenance manuals; collect, review, approve and forward to the Partnership all warranties, check key count and key schedules; and confirm turnover of spare parts and materials.
(s) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(st) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded funded, or are on a satisfactory program to achieve full funding to required levels, including levels required by any authority.
(tu) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(uv) No To the best of its knowledge, no event has occurred which constitutes a default under any of the Project Documents.
(vw) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, ,however the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(wx) No To the best of its knowledge, no event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(xy) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(yz) Upon signing of the Mortgage Construction Loan and receipt of the Construction Lender's written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(zaa) The Partnership will maintain a Debt Service Coverage of not less than 1.15 and will close on a permanent loan or refinance a Mortgage loan if the Debt Service Coverage would fall below 1.15.
(bb) The General Partner will use its best efforts to ensure that any architect Architect retained by the Partnership or General Partner will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period of at least two years after the closing and funding of the Mortgage.
(cc) The General Partner has and shall maintain a net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles.
(dd) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, with respect to the Apartment Housing. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12, provided the same is not caused by or arises out of a Force Majeure or Unavoidable Event.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 9)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and the Missouri Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner, the Missouri Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any material provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner substantially in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) Additional Improvements on the Project, if any shall be completed substantially in conformity with Plans and Specifications approved by the Special Limited Partner.
(e) All conditions to the funding of the Mortgage Construction Loan have been met.
(ef) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(fg) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(gh) The Partnership is or will be after completion of rehabilitation in compliance in all material respects with all construction and use codes applicable to the Apartment Housing and is not in violation in any material respect of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(hi) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(ij) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(jk) The Partnership has obtained Insurance written by an Insurance Company.
(kl) The Partnership owns the fee simple interest in the Apartment Housing.
(lm) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(mn) The Partnership will require the Accountant to depreciate the Improvements over a 27 1/2-1/2 year term. Site work work, landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be broken out separately from Improvements and depreciated over 15 7 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum tax.
(no) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner, Missouri Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(op) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(pq) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable, and the Partnership will allocate tot he Missouri Limited Partner the Projected Annual Missouri Tax Credits, or the Revised Projected Missouri Tax Credits, if applicable.
(qr) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(rs) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(st) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority.
(tu) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(uv) No event has occurred which constitutes a default under any of the Project Documents.
(vw) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner or the Missouri Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's or the Missouri Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner or if the action causing the Missouri Limited Partner to be liable for the Partnership obligations is undertaken by the Missouri Limited Partner.
(wx) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion of construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(xy) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner, Missouri Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner and the Missouri Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage Loan and receipt of the written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(z) The General Partner will use has and shall maintain a net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles. 42 The General Partner shall be liable to the Limited Partner and the Missouri Limited Partner for any costs, damages, loss of profits, diminution in the value of its best efforts to ensure that any architect retained investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Partnership Limited Partner or General the Missouri Limited Partner will have as a policy result of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period of at least two years after the closing and funding any material breach of the Mortgagerepresentations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 6)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is are in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely (except in case of delay due to an event constituting Force Majeure) and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is will be being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment HousingHousing in the same locale.
(e) All conditions to the funding of the Construction Loan have been met or will be met.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained or will attain Insurance written by an Insurance CompanyCompany prior to commencement of construction.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered or will be entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction ContractContract prior to commencement of construction.
(m) The Partnership General Partner will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements Partnership items in accordance with Exhibit "G" attached hereto and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxincorporated herein by this reference.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The Partnership shall retain the Architect of Record and ensure that the Architect of Record's responsibilities include, but are not limited to, preparing and overseeing the construction close-out procedures upon completion; inspecting for and overseeing resolution of the Contractor's final punch list items; receiving and approving operation and maintenance manuals; collecting, reviewing, approving and forwarding to the Parnership all warranties, check key count and key schedules; and confirming turnover of spare parts and materials.
(s) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(st) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority.
(tu) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(uv) No event has occurred which constitutes a default under any of the Project Documents.
(vw) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(wx) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(xy) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(yz) Upon signing of the Mortgage Construction Loan and receipt of the Construction Lender's written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(zaa) The Partnership will maintain a Debt Service Coverage of not less than 1.10 and will close on a permanent loan or refinance a Mortgage loan if the Debt Service Coverage would fall below 1.10.
(bb) The General Partner will use its best efforts require the Architect of Record to ensure that any architect retained by the Partnership or General Partner will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period of at least two years after the closing and funding of the Mortgage.
(cc) The General Partner, or a guarantor acceptible to the Special Limited Partner, has and shall maintain a net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles.
(dd) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, with respect to the Apartment Housing.
(ee) The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 9)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is are in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(e) All conditions to the funding of the Construction Loan have been met.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership General Partner will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements Partnership items in accordance with Exhibit "G" attached hereto and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxincorporated herein by this reference.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority.
(t) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(u) No event has occurred which constitutes a default under any of the Project Documents.
(v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion of construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage Construction Loan and receipt of the Construction Lender's written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(z) The General Partner will or Guarantor has and shall use its their best efforts to ensure that any architect retained by the Partnership or General Partner will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period of at least two years after the closing and funding of the Mortgage.
(aa) The General Partner and or Guarantor has and shall maintain a net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles.
(bb) The Partnership's and General Partner's computer hardware and software used to produce financial reports and tax return information are year 2000 compliant. To the best of the General Partner's knowledge after due inquiry: the Partnership's and General Partner's office machinery and equipment are year 2000 compliant; and the Management Agent's financial reporting systems and office machinery and equipment are year 2000 compliant.
(cc) The General Partner agrees to Refinance the Mortgage by the sooner of the following:
(1) the fourth anniversary of the funding of the Mortgage; or
(2) within 120 days after the five year treasury note ("Five Year Treasury Note") as published in the Wall Street Journal ("WSJ") is equal to or exceeds 8%.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 8)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner Partner, and will be true during the term of this Agreement, to the extent then applicable. Notwithstanding the foregoing, (i) each representation regarding a General Partner shall be deemed made specifically by such General Partner and (ii) other than with respect to a representation related to itself, the representations of Non-Profit General Partners shall be made to the Non-Profit General Partners’ current actual knowledge.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof.
(c) Improvements will be completed rehabilitated in a timely and workerlike xxxxxxx-like manner in accordance with all applicable requirements of all appropriate governmental entities (in any) and the Plans and Specifications of the Apartment HousingSpecifications.
(d) All conditions to Following completion of construction, the funding of the Mortgage have been met.
(e) The Apartment Housing is being shall at all times be operated in accordance with standards and procedures which that are prudent and customary for the operation of properties similar to the Apartment Housing.
(e) All conditions to the funding of the Construction Loan have been met.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the MortgageMortgage (other than the Construction Loan), except in the event of the applicability of the standard commercial exceptions to the nonrecourse status of the Mortgage Loan set forth in the Mortgage Loan documents.
(g) The Partnership is (or will shall be after subsequent to completion of rehabilitation rehabilitation) in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time upon completion of first occupancy rehabilitation and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor in its capacity as Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum tax.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep the Apartment Housing free of Hazardous Substances and shall not use or generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, of the provisions of this Agreement.
(pn) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, LIHTC or the Revised Projected Tax CreditsLIHTC, if applicable.
(qo) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage Loans or are noted or excepted in the Title PolicyPolicy or any dedication, grant of easement or license for sidewalks, driveways, parkway, utilities or public access required by the City, Los Angeles County or a utility provider, which does not materially affect the operation or value of the Apartment Housing.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(sp) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any governmental or lending authority.
(tq) The Except as specifically disclosed to the Limited Partners prior to the date of this Agreement, the General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(ur) No event has occurred which constitutes a default under any of the Project Documents.
(vs) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(wt) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: :
(1) materially or and adversely affected the operation of the Partnership or the Apartment Housing; ;
(2) materially or and adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(xu) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate may affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(yv) Upon signing of the Mortgage Construction Loan documents and receipt of the Construction Lender’s written start order, the General Partner will cause construction rehabilitation of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction rehabilitation of the Improvements according to the Plans and Specifications so that the Improvements can be completed rehabilitated by the Completion Date.
(w) The Administrative General Partner has contacted the local tax assessor, or similar representative, and has determined that the Real Estate Taxes are accurate and correct, and that assuming the Partnership obtains and maintains the Property Tax Exemption the Partnership will not be required to pay any more for real estate taxes, or property taxes, than the amount of Real Estate Taxes, referenced in this Agreement, except for annual increases imposed on all real estate within the same county as the Apartment Housing.
(x) The Partnership will take reasonable steps to maintain a Debt Service Coverage of not less than 1.15:1.
(y) The Administrative General Partner and the Guarantor have and shall maintain a combined aggregate net worth equal to at least $5,000,000 computed in accordance with generally accepted accounting principles.
(z) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, with respect to the Apartment Housing.
(aa) No General Partner nor any Affiliate of a General Partner will take any action or agree to any terms or conditions that are contrary to, or in disagreement with, the tax credit application used to secure the LIHTC or the land use its best efforts restriction agreement required to ensure that any architect retained by be recorded against the Partnership or Apartment Housing.
(bb) The Managing General Partner has obtained a valid organizational clearance certificate from the BOE pursuant to California Revenue and Taxation Code Section 254.6 and shall take all other actions necessary to qualify the Apartment Housing for the Property Tax Exemption, including, without limitation, executing and filing the BOE Form 267- LI with the appropriate county assessor’s office. On an annual basis, upon receipt of the property tax xxxx refecting the grant of the Property Tax Exemption for the Apartment Housing, the Managing General Partner will have deliver a policy copy thereof to the Special Limited Partner.
(cc) The Administrative General Partner shall cause the Accountant to depreciate Partnership items in accordance with Exhibit F attached hereto and incorporated herein by this reference and provide the information required by Sections 14.2(a) and (b).
(dd) The buildings on the Apartment Housing site constitute or will constitute a “qualified low-income housing project” as provided in Code Section 42(g) and the Treasury Regulations. In this connection, not later than December 31 of professional liability insurance the first year of the Tax Credit Period, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(ee) The Partnership has received a Tax Exempt Reservation Letter (the “Credit Award”) from the State Tax Credit Agency pursuant to Code Section 42(h), in the amount of $606,652 in LIHTC. The Credit Award is binding and in full force and effect in accordance with its terms. At Completion of Construction, the qualified basis of the Apartment Housing under Code Section 42 is anticipated to be $15,784,109. The Apartment Housing has not made an amount not less than five hundred thousand dollarselection to fix the applicable credit percentage. The Partnership shall allocate to the Limited Partner the Projected Annual LIHTC or the Revised Projected LIHTC, which policy should remain if applicable.
(ff) The Apartment Housing was acquired by purchase (as defined in force for Code Section 179(d)(2)); a period of at least two 10 years after has elapsed between the closing date on which the Partnership acquired the Apartment Housing and funding the date the Apartment Housing was last placed in service; and the Apartment Housing was not previously placed in service by the Partnership, the General Partner, or any other person who was a related person (as defined in Code Section 42(d)(2)(D)(ii)) with respect to the Partnership as of the Mortgagetime the Apartment Housing was previously placed in service.
(gg) The Supervising General Partner has made and/or shall make an election to be taxed as a corporation and such other elections, or refrain from making such elections, with respect to the LIHTC, as are necessary to achieve and maintain the maximum allowable LIHTC to the Limited Partner, and shall make the special tax election pursuant to Code Section 168(h)(6)(F)(ii); any such elections (including elections made at the direction or with the consent of the Limited Partner) will not reduce the obligations of the Supervising General Partner pursuant to Section 7.4; and no part of the Apartment Housing will be treated as “tax-exempt use property” within the meaning of Code Section 168(h).
(hh) The Administrative General Partner shall cause the Partnership to operate the Community Service Facility in such a manner as will qualify it as a community service facility as defined in Code Section 42(d)(4)(C) and allow the costs, if any, associated with its construction or rehabilitation to be included in the Partnership’s eligible basis in the Apartment Housing;
(ii) The Administrative General Partner shall cause the Partnership to enter into a master lease with respect to the Community Service Facility for an annual base rental not to exceed $12,000, prior to the date that is the earlier of August 1, 2015 or the date of any extension or renewal of any existing lease respecting the Community Service Facility.
(jj) The General Partner has provided the Limited Partner with true, complete and correct copies of all material correspondence and contracts with, applications to, and allocation certifications, if any, from the State Tax Credit Agency concerning Tax Credits allocated or otherwise available to the Apartment Housing.
(kk) Unless otherwise Consented to by the Special Limited Partner, the Partnership will elect under Code Section 42(f)(1) to have the Tax Credit Period with respect to the Apartment Housing to be placed in service commence with 2013.
(ll) The Partnership has not and will not receive amounts funded with a federal grant within the meaning of Code Section 42(d)(5)(A) (unless such grant was made to allow the Apartment Housing to be leased to low-income tenants and does not increase the Partnership’s eligible basis in the Apartment Housing).
(mm) The Partnership shall execute an extended use agreement with respect to the Apartment Housing before the end of the first year of the Tax Credit Period or such date as is ncessary to preserve the Tax Credits. The extended use agreement will remain in effect throughout the Compliance Period.
(nn) The Partnership shall apply for all Forms 8609 for the Apartment Housing from the State Tax Credit Agency in a timely manner, and shall timely file any other tax or information returns or statements required by the Code. In furtherance of the foregoing, the General Partner shall complete Form 8609 and submit a copy of it with its federal income tax return to the IRS for the first year that the Partnership claims Tax Credit with respect to each building in the Apartment Housing. The General Partner, on behalf of the Partnership, will claim the Tax Credits and provide the information required as set forth in Code Section 42(1), Temporary Treas. Reg. Section 1.42-1(h).
(oo) The information and representations included in the Project Documents, and on which the State Tax Credit Agency relied in its determination to award the Credit Award, are true, accurate and complete.
(pp) At least 50% of the aggregate basis of each building of the Apartment Housing and the land on which such building is or will be located, for purposes of Code Section 42(h)(4) of the Code, will be financed by the proceeds of tax-exempt bonds which were issued under the volume limitations pursuant to Code Section 146. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Non-Profit Limited Partner Partner, the Limited Partner, the Georgia Limited Partner, and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely (except in case of delay due to an event constituting Force Majeure) and workerlike worker-like manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which that are prudent and customary for the operation of properties similar to the Apartment Housing.
(e) All conditions to the funding of the Construction Loan have been met.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership General Partner will require the Accountant to depreciate Partnership items in accordance with Exhibit G attached hereto and incorporated herein by this reference and provide the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements information required by Sections 14.2(a) and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coveringsb) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxof this Agreement.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner Partner, the Georgia Limited Partner, and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, of the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable, and will allocate to the Georgia Limited Partner the Projected Annual Georgia Tax Credits, or the Revised Projected Georgia Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The Partnership shall retain the Construction Inspector and ensure that the Architect of Record's responsibilities include, but are not limited to, preparing and overseeing the construction close-out procedures upon completion; inspecting for and overseeing resolution of the Contractor's final punch list items; receiving and approving operation and maintenance manuals; collecting, reviewing, approving and forwarding to the Partnership all warranties, check key count and key schedules; and confirming turnover of spare parts and materials.
(s) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(st) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any governmental or lending authority.
(tu) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(uv) No event has occurred which constitutes a default under any of the Project Documents.
(vw) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Non-Profit Limited Partner, the Limited Partner, the Georgia Limited Partner, or the Special Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Non-Profit Limited Partner, the Limited Partner, the Georgia Limited Partner, or the Special Limited Partner to be liable for the Partnership obligations is undertaken by the such Non-Profit Limited Partner, such Limited Partner, such Georgia Limited Partner, or such Special Limited Partner.
(wx) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(xy) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner Partner, the Georgia Limited Partner, and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner or the Georgia Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(yz) Upon signing of the Mortgage Construction Loan and receipt of the Construction Lender's written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(zaa) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner Architect of Record will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars$1,000,000, which policy should remain in force for a period of at least two 2 years after the closing and funding of the Mortgage.
(bb) The General Partner and the Guarantor have and shall maintain an aggregate net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles.
(cc) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, with respect to the Apartment Housing.
(dd) Neither the General Partner nor its Affiliates will take any action or agree to any terms or conditions that are contrary to, or in disagreement with, the tax credit application used to secure the LIHTC, or the land use restriction agreement required to be recorded against the Apartment Housing. The General Partner shall be liable to the Limited Partner and the Georgia Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner or the Georgia Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 10)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is are in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(fe) Except as All conditions to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General Partner does not have any personal liability with respect to and has not personally guaranteed the payment funding of the MortgageConstruction Loan have been met.
(gf) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(hg) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(ih) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(ji) The Partnership has obtained Insurance written by an Insurance Company.
(kj) The Partnership owns the fee simple interest in the Apartment Housing.
(lk) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(ml) The Partnership General Partner will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements Partnership items in accordance with Exhibit "G" attached hereto and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxincorporated herein by this reference.
(nm) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(on) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(po) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(qp) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(rq) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(sr) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority.
(ts) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(ut) No event has occurred which constitutes a default under any of the Project Documents.
(vu) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(wv) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion of construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(xw) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(yx) Upon signing of the Mortgage Construction Loan and receipt of the Construction Lender's written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(zy) The General Partner will use and/or guarantor has and shall maintain a net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its best efforts to ensure that any architect retained investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Partnership or General Limited Partner will have as a policy result of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period of at least two years after the closing and funding any material breach of the Mortgagerepresentations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 7)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is are in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike worker-like manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(e) All conditions to the funding of the Mortgage have been met.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all apartment units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership General Partner will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements Partnership items in accordance with Exhibit G attached hereto and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxincorporated herein by this reference.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, of the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The Partnership shall retain the Architect of Record and ensure that the Architect of Record's responsibilities include, but are not limited to, preparing and overseeing the construction close-out procedures upon completion; inspecting for and overseeing resolution of the Contractor's final punch list items; receiving and approving operation and maintenance manuals; collecting, reviewing, approving and forwarding to the Partnership all warranties, check key count and key schedules; and confirming turnover of spare parts and materials.
(s) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(st) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any governmental or lending authority.
(tu) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(uv) No event has occurred which constitutes a default under any of the Project Documents.
(vw) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(wx) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(xy) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(yz) Upon signing of the Mortgage Loan and receipt of the Mortgage lender's written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(zaa) The General Partner has contacted the local tax assessor, or similar representative, and has verified and confirmed that the Real Estate Taxes are accurate and correct and that the Partnership will not be required to pay any more for real estate taxes, or property taxes, than the amount of Real Estate Taxes, referenced in this Agreement, except for annual increases imposed on all real estate within the same county as the Apartment Housing. In the event the actual real estate taxes, or property taxes, are greater than the Real Estate Taxes specified in this Agreement and, as a result of the higher real estate tax, or property tax, the Debt Service Coverage falls below 1.15, then the General Partner will reamortize the Mortgage so that the Debt Service Coverage is at a sustainable 1.15, as approved by the Special Limited Partner. If the Mortgage Lender will not or cannot reamortize the loan as specified in this Section, then the General Partner will establish and fund the T & I Account as provided in Section 8.2. Payment by the General Partner pursuant to this Section is in addition to the General Partner's obligation to fund Operating Deficits.
(bb) The Partnership will maintain a Debt Service Coverage of not less than 1.15 and will not refinance a Mortgage if the Debt Service Coverage would fall below 1.15.
(cc) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner Architect of Record will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars$1,000,000, which policy should remain in force for a period of at least two 2 years after the closing and funding of the Mortgage.
(dd) The General Partner and the Guarantor has and shall maintain an aggregate net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles.
(ee) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, with respect to the Apartment Housing.
(ff) The General Partner has verified and confirmed that the Real Estate Taxes are accurate and correct. If the Real Estate Taxes are less than the actual real estate taxes in the first fully-assessed tax year and the Mortgage has not been reamortized as in (aa) above, then the General Partner will pay the difference between the Real Estate Taxes and the actual and assessed real estate taxes until such time as the General Partner has reduced or abated the actual and assessed real estate taxes to an amount equal to or less than the Real Estate Taxes. Any payment by the General Partner pursuant to this section shall be in addition to the General Partner's obligation to fund Operating Deficits.
(gg) Neither the General Partner nor its Affiliates will take any action or agree to any terms or conditions that are contrary to, or in disagreement with, the tax credit application used to secure the LIHTC, or the land use restriction agreement required to be recorded against the Apartment Housing. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12. 38
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 9)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike worker-like manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment HousingSpecifications.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which that are prudent and customary for the operation of properties similar to the Apartment Housing.
(e) All conditions to the funding of the Construction Loan have been met.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership General Partner will require the Accountant to depreciate Partnership items in accordance with Exhibit G attached hereto and incorporated herein by this reference and provide the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements information required by Sections 14.2(a) and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coveringsb) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxof this Agreement.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep the Apartment Housing free of Hazardous Substances and shall not use or generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, of the provisions of this Agreement.
(po) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(qp) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(q) The Partnership shall retain the Construction Inspector and ensure that the Architect of Record's responsibilities include, but are not limited to, preparing and overseeing the construction close-out procedures upon completion; inspecting for and overseeing resolution of the Contractor's final punch list items; receiving and approving operation and maintenance manuals; collecting, reviewing, approving and forwarding to the Partnership all warranties, check key count and key schedules; and confirming turnover of spare parts and materials.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which of the Partners elect the LIHTC to commence in accordance with the CodeTax Credit Period, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any governmental or lending authority.
(t) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(u) No event has occurred which constitutes a default under any of the Project Documents.
(v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage Construction Loan and receipt of the Construction Lender's written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(z) The General Partner has contacted the local tax assessor, or similar representative, and has determined that the Real Estate Taxes are accurate and correct, and that the Partnership will use its best efforts not be required to pay any more for real estate taxes, or property taxes, than the amount of Real Estate Taxes, referenced in this Agreement, except for annual increases imposed on all real estate within the same county as the Apartment Housing. In the event the actual real estate taxes, or property taxes, are greater than the Real Estate Taxes specified in this Agreement and as a result of the higher real estate tax, or property tax, the Debt Service Coverage falls below 1.15 then the General Partner will contribute additional capital to lower the principal of the mortgage and reamortize the Mortgage so that the Debt Service Coverage is at a sustainable 1.15, as approved by the Special Limited Partner. If the Mortgage lender will not or cannot reamortize the loan as specified in this Section, and the General Partner cannot obtain another mortgage, then the General Partner will contribute additional capital as determined by the Special Limited Partner to the T & I Account in an amount equal to the annual difference between the actual real estate tax, or property tax, over the Real Estate Taxes specified in this Agreement times the number of years remaining on the 15-year LIHTC compliance term. Any payment by the General Partner pursuant to this section shall be in addition to the General Partner's obligation to fund Operating Deficits.
(aa) The Partnership will maintain a Debt Service Coverage of not less than 1.15:1 and will not close on a permanent loan or refinance a Mortgage loan if the Debt Service Coverage would fall below 1.15:1.
(bb) The General Partner will ensure that any architect retained by the Partnership or General Partner Architect of Record will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars$1,000,000, which policy should remain in force for a period of at least two 2 years after the closing and funding of the Mortgage.
(cc) The General Partner and the Guarantor have and shall maintain an aggregate net worth equal to at least $1,000,000, computed in accordance with generally accepted accounting principles.
(dd) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, with respect to the Apartment Housing.
(ee) Neither the General Partner nor its Affiliates will take any action or agree to any terms or conditions that are contrary to, or in disagreement with, the tax credit application used to secure the LIHTC, or the land use restriction agreement required to be recorded against the Apartment Housing. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund VI, L.P., Series 13)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is are in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike worker-like manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(e) All conditions to the funding of the Construction Loan have been met.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership General Partner will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements Partnership items in accordance with Exhibit G attached hereto and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxincorporated herein by this reference.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, of the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The Partnership shall retain the Architect of Record and ensure that the Architect of Record's responsibilities include, but are not limited to, preparing and overseeing the construction close-out procedures upon completion; inspecting for and overseeing resolution of the Contractor's final punch list items; receiving and approving operation and maintenance manuals; collecting, reviewing, approving and forwarding to the Partnership all warranties, check key count and key schedules; and confirming turnover of spare parts and materials.
(s) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(st) The Supportive Housing Units shall be leased to eligible Supportive Housing Tenants until the required set-aside is met. The General Partner will maintain a separate waiting list of eligible Supportive Housing Tenants and rent to all eligible Supportive Housing Tenants on the waiting list until the required set-aside is met. In the event there is no Supportive Housing Tenant on the waiting list or a Supportive Housing Unit is not rented within 60 days of the initial lease up, the General Partner must notify DMH/MR, then the unit(s) may be rented to an otherwise income-eligible tenant.
(u) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any governmental or lending authority.
(tv) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(uw) No event has occurred which constitutes a default under any of the Project Documents.
(vx) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(wy) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(xz) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(yaa) Upon signing of the Mortgage Construction Loan and receipt of the Construction Lender's written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(zbb) The General Partner has contacted the local tax assessor, or similar representative, and has determined that the Real Estate Taxes are accurate and correct, and that the Partnership will not be required to pay any more for real estate taxes, or property taxes, than the amount of Real Estate Taxes, referenced in this Agreement, except for annual increases imposed on all real estate within the same county as the Apartment Housing. In the event the actual real estate taxes, or property taxes, are greater than the Real Estate Taxes specified in this Agreement and as a result of the higher real estate tax, or property tax, the Debt Service Coverage falls below 1.15 then the General Partner will contribute additional capital and reamortize the Mortgage so that the Debt Service Coverage is at a sustainable 1.15, as approved by the Special Limited Partner. If the Mortgage lender will not or cannot reamortize the loan as specified in this Section, then the General Partner will contribute additional capital to the T & I Account in an amount equal to the annual difference between the actual real estate tax, or property tax, over the Real Estate Taxes specified in this Agreement times the number of years remaining on the 15-year LIHTC compliance term.
(cc) The Partnership will maintain a Debt Service Coverage of not less than 1.15 and will not close on a permanent loan or refinance a Mortgage loan if the Debt Service Coverage would fall below 1.15.
(dd) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner Architect of Record will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars$1,000,000, which policy should remain in force for a period of at least two 2 years after the closing and funding of the Mortgage.
(ee) The General Partner and the Guarantor has and shall maintain an aggregate net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles.
(ff) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, with respect to the Apartment Housing.
(gg) The General Partner has verified and confirmed that the Real Estate Taxes are accurate and correct. If the Real Estate Taxes are less than the actual real estate taxes in the first fully-assessed tax year and the Mortgage has not been reamortized as in (aa) above, then the General Partner will pay the difference between the Real Estate Taxes and the actual and assessed real estate taxes until such time as the General Partner has reduced or abated the actual and assessed real estate taxes to an amount equal to or less than the Real Estate Taxes. Any payment by the General Partner pursuant to this section shall be in addition to the General Partner's obligation to fund Operating Deficits.
(hh) Neither the General Partner nor its Affiliates will take any action or agree to any terms or conditions that are contrary to, or in disagreement with, the tax credit application used to secure the LIHTC, or the land use restriction agreement required to be recorded against the Apartment Housing. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 10)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is are in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(e) All conditions to the funding of the Construction and Renovation Loan have been met.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or and the necessary rights of way therefore have been acquired and will be maintained by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authorityPartnership .
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction and Renovation Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction and Renovation Contract, unless authorized in writing by the Special Limited Partner.
(m) The Partnership General Partner will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements Partnership items in accordance with Exhibit "G" attached hereto and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxincorporated herein by this reference.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement, except as may be required by the project's HAP Contract.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Federal Tax Credits and the Projected Federal Historic Tax Credits, or the Revised Projected Federal Tax Credits and Revised Projected Federal Historic Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents Documents, HAP Contract or Mortgage or are noted or excepted in the Title Policy.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the FEDERAL LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, subject to the terms of the HAP Contract including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority.
(t) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(u) No event has occurred which constitutes a default under any of the Project Documents.
(v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal Federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion of construction and renovation of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage Loan and receipt of the Lender's written start order, the General Partner will cause construction and renovation of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction and renovation of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(z) The General Partner will or Guarantor has and shall use its their best efforts to ensure that any architect retained maintain a net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles. This Section is not applicable to the General Partner, Sioux Falls Environmental Access, Inc.
(aa) The General Partner agrees to Refinance the Mortgage by the Partnership or General Partner will have a policy sooner of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period the following:
(1) the fourth anniversary of at least two years after the closing and funding of the Mortgage; or
(2) within 120 days after the five year treasury note ("Five Year Treasury Note") as published in the Wall Street Journal ("WSJ") is equal to or exceeds 8%.
(bb) Notwithstanding the foregoing, if the Five Year Treasury Note is equal to or less than 7% at any time prior to a Refinance of the Mortgage, the General Partner has the authority to Refinance the Mortgage without the consent of the Special Limited Partner, provided the subsequent mortgage ("Refinanced Mortgage") has a fixed rate of interest and maintains a Debt Service Coverage of 1.15 as defined in Section 1.24 of this Agreement. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 7)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike worker-like manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which that are prudent and customary for the operation of properties similar to the Apartment Housing.
(e) All conditions to the funding of the Construction Loan have been met.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership General Partner will require the Accountant to depreciate Partnership items in accordance with Exhibit G attached hereto and incorporated herein by this reference and provide the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements information required by Sections 14.2(a) and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coveringsb) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxof this Agreement.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, of the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The Partnership shall retain the Construction Inspector and ensure that the Architect of Record's responsibilities include, but are not limited to, preparing and overseeing the construction close-out procedures upon completion; inspecting for and overseeing resolution of the Contractor's final punch list items; receiving and approving operation and maintenance manuals; collecting, reviewing, approving and forwarding to the Partnership all warranties, check key count and key schedules; and confirming turnover of spare parts and materials.
(s) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(st) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any governmental or lending authority.
(tu) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(uv) No event has occurred which constitutes a default under any of the Project Documents.
(vw) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(wx) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(xy) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(yz) Upon signing of the Mortgage Construction Loan and receipt of the Construction Lender's written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(zaa) The General Partner has contacted the local tax assessor, or similar representative, and has determined that the Real Estate Taxes are accurate and correct, and that the Partnership will not be required to pay any more for real estate taxes, or property taxes, than the amount of Real Estate Taxes, referenced in this Agreement, except for annual increases imposed on all real estate within the same county as the Apartment Housing. In the event the actual real estate taxes, or property taxes, are greater than the Real Estate Taxes specified in this Agreement and as a result of the higher real estate tax, or property tax, the Debt Service Coverage falls below 1.15 then the General Partner will contribute additional capital to lower the principal of the mortgage and reamortize the Mortgage so that the Debt Service Coverage is at a sustainable 1.15, as approved by the Special Limited Partner. If the Mortgage lender will not or cannot reamortize the loan as specified in this Section, and the General Partner cannot obtain another mortgage, then the General Partner will contribute additional capital as determined by the Special Limited Partner to the T & I Account in an amount equal to the annual difference between the actual real estate tax, or property tax, over the Real Estate Taxes specified in this Agreement times the number of years remaining on the 15-year LIHTC compliance term. Any payment by the General Partner pursuant to this section shall be in addition to the General Partner's obligation to fund Operating Deficits.
(bb) The Partnership will maintain a Debt Service Coverage of not less than 1.15 and will not close on a permanent loan or refinance a Mortgage loan if the Debt Service Coverage would fall below 1.15.
(cc) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner Architect of Record will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars$1,000,000, which policy should remain in force for a period of at least two 2 years after the closing and funding of the Mortgage.
(dd) The General Partner and the Guarantor have and shall maintain an aggregate net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles.
(ee) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, with respect to the Apartment Housing.
(ff) Neither the General Partner nor its Affiliates will take any action or agree to any terms or conditions that are contrary to, or in disagreement with, the tax credit application used to secure the LIHTC, or the land use restriction agreement required to be recorded against the Apartment Housing.
(gg) The Apartment Complex was acquired by purchase (as defined in Code Section 179(d)(2); a period of at least 10 years has elapsed between the date on which the Partnership or the General Partner acquired the Apartment Complex and the date the Apartment Complex was last placed in service; and the Apartment Complex was not previously placed in service by the Partnership, the General Partner or by any person who was a related person (as defined in Code Section 42(d)(2)(D)(iii)(II)) with respect to the Partnership as of the time previously placed in service.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 12)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General Partner does not have any personal liability with respect to and has not personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum tax.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep the Apartment Housing free of Hazardous Substances and shall not use or generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority.
(t) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(u) No event has occurred which constitutes a default under any of the Project Documents.
(v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion of construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage Loan and receipt of the written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(z) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner Architect of Record will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period of at least two years after the closing and funding of the Mortgage.
(aa) The General Partner has contacted the local tax assessor, or similar representative, and has determined that the Real Estate Taxes are accurate and correct, and that the Partnership will not be required to pay any more for real estate taxes, or property taxes, than the amount of Real Estate Taxes, referenced in this Agreement, except for annual increases imposed on all real estate within the same county as the Apartment Housing. In the event the real estate taxes, or property taxes, are actually greater than the Real Estate Taxes specified in this Agreement and as a result of the higher real estate tax, or property tax, the Debt Service Coverage falls below 1.15 then the General Partner will contribute additional capital to lower the principal of the mortgage and reamortize the Mortgage so that the Debt Service Coverage is at a sustainable 1.15 as approved by the Special Limited Partner. If the Mortgage lender will not, or cannot, reamortize the loan as specified in this Section, and the General Partner cannot obtain another mortgage, then the General Partner will contribute additional capital as determined by the Special Limited Partner to the T & I Account in an amount equal to the annual difference between the actual real estate tax, or property tax, over the Real Estate Taxes specified in this Agreement times the number of years remaining on the 15-year LIHTC compliance term. Any payment by the General Partner pursuant to this section shall be in addition to the General Partner's obligation to fund Operating Deficits.
(bb) The General Partner has and shall maintain a net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 12)
Covenants, Representations and Warranties. The General Partner Managing Member covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner Investor Member and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership Company is a duly organized limited partnership liability company validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner Investor Member and the Special Limited PartnerMember.
(b) The Partnership Operating Agreement and the Project Documents are in full force and effect and neither the Partnership Company nor the General Partner is Managing Member are in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans plans and Specifications specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General Partner does not No Member has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership Company is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the PartnershipCompany.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership Company has obtained Insurance written by an Insurance Company.
(k) The Partnership Company owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership Company will require the Accountant to depreciate the Improvements over a 27 1/2-1/2 year term. Site work shall be broken out separately from Improvements and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum tax.
(nm) To the best of the General PartnerManaging Member's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner Managing Member will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep Managing Member covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner Managing Member shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner Managing Member must promptly notify the Limited Partner Investor Member and the Special Limited Partner Member in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner Managing Member or the Partnership Company may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership Company or General Partner Managing Member arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(on) The General Partner Managing Member has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(po) The Partnership Company will allocate to the Limited Partner Investor Member the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(qp) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(rq) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners Members elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(sr) All accounts of the Partnership Company are required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority.
(ts) The General Partner Managing Member has not lent or otherwise advanced any funds to the Partnership Company other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership Company has no unsatisfied obligation to make any payments of any kind to the General Partner Managing Member or any Affiliate thereof.
(ut) No event has occurred which constitutes a default under any of the Project Documents.
(vu) No event has occurred which has caused, and the General Partner Managing Member has not acted in any manner which will cause (1) the Partnership Company to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership Company to fail to qualify as a limited partnership liability company under the Act, or (3) the Limited Partner Investor Member to be liable for Partnership Company obligations; provided however, the General Partner Managing Member shall not be in breach of this representation if all or a portion of a Limited Partneran Investor Member's agreed upon Capital Contributions are used to satisfy the PartnershipCompany's obligations to creditors of the Partnership Company and such action by the General Partner Managing Member is otherwise authorized under this Agreement and; provided further, however, the General Partner Managing Member shall not be in breach of this representation if the action causing the Limited Partner Investor Member to be liable for the Partnership Company obligations is undertaken by the Limited PartnerInvestor Member.
(wv) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership Company or the Apartment Housing; or (2) materially or adversely affected the ability of the General Partner Managing Member to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion of construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(xw) Neither the Partnership Company nor the General Partner Managing Member has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner Investor Member and the Special Limited Partner Member and which in the aggregate affect the ability of the Limited Partner Investor Member to obtain the anticipated benefits of its investment in the PartnershipCompany.
(y) Upon signing of the Mortgage Loan and receipt of the written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(zx) The General Partner will use its best efforts Managing Member has and shall maintain a combined net worth equal to ensure that any architect retained by the Partnership or General Partner will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period of at least two years after the closing and funding of the Mortgage$1,000,000 computed in accordance with generally accepted accounting principles.
Appears in 1 contract
Samples: Operating Agreement (WNC Housing Tax Credit Fund Vi Lp Series 7)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which that are prudent and customary for the operation of properties similar to the Apartment Housing.
(fe) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(gf) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(hg) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(ih) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(ji) The Partnership has obtained Insurance written by an Insurance Company.
(kj) The Partnership owns the fee simple interest in the Apartment Housing.
(lk) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(ml) The Partnership General Partner will require the Accountant to depreciate Partnership items in accordance with Exhibit "G" attached hereto and incorporated herein by this reference and provide the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements information required by Sections 14.2(a) and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coveringsb) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxof this Agreement.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep the Apartment Housing free of Hazardous Substances and shall not use or generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(om) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition toof, the provisions of this Agreement.
(pn) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(qo) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(rp) The Partnership shall ensure that the Architect of Record's responsibilities include, but are not limited to, preparing and overseeing the construction close-out procedures upon completion; inspecting for and overseeing resolution of the Contractor's final punch list items; receiving and approving operation and maintenance manuals; collecting, reviewing, approving and forwarding to the Partnership all warranties, check key count and key schedules; and confirming turnover of spare parts and materials.
(q) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(sr) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, including without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any governmental or lending authority.
(ts) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(ut) No event has occurred which constitutes a default under any of the Project Documents.
(vu) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(wv) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or and adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or and adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(xw) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(yx) Upon signing execution of the Mortgage Loan and receipt of the written start orderAgreement, the General Partner will issue to the Contractor a notice to proceed, that will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(y) The General Partner has contacted the local tax assessor, or similar representative, and has determined that the Real Estate Taxes are accurate and correct, and that the Partnership will not be required to pay any more for real estate taxes, or property taxes, than the amount of Real Estate Taxes, referenced in this Agreement, except for annual increases imposed on all real estate within the same county as the Apartment Housing. In the event the actual real estate taxes, or property taxes, are greater than the Real Estate Taxes specified in this Agreement, and as a result of the higher real estate tax, or property tax, the Debt Service Coverage falls below 1.10, then the General Partner will contribute additional capital as determined by the Special Limited Partner to the T & I Account in an amount equal to the annual difference between the actual real estate tax, or property tax, over the Real Estate Taxes specified in this Agreement times the number of years remaining on the 15-year LIHTC compliance term. Any payment by the General Partner pursuant to this section shall be in addition to the General Partner's obligation to fund Operating Deficits.
(z) The Partnership will maintain a Debt Service Coverage of not less than 1.10 and will not close on a permanent loan or refinance a Mortgage loan if the Debt Service Coverage would fall below 1.10.
(aa) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner Architect of Record will have a policy of professional liability insurance in an amount not less than five hundred thousand one million dollars.
(bb) The General Partner and the Guarantor have and shall maintain an aggregate net worth equal to at least $2,000,000 computed in accordance with generally accepted accounting principles.
(cc) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, which policy should remain with respect to the Apartment Housing.
(dd) Neither the General Partner nor its Affiliates will take any action or agree to any terms or conditions that are contrary to, or in force for disagreement with, the tax credit application used to secure the LIHTC, or the land use restriction agreement required to be recorded against the Apartment Housing.
(1) The Apartment Housing was acquired by purchase (as defined in Code section 179(d)(2); (2) a period of at least two 10 years after has elapsed between the closing date on which the Partnership acquired the Apartment Housing and funding the date the Apartment Housing was last placed in service; and (3) the Apartment Housing was not previously placed in service by the partnership, the general Partner, or any other person who was a related person (as defined in Code Section 42(d)(2)(D)(iii)(I)) with respect to the Partnership as of the Mortgagetime the Apartment Housing was previously placed in service.
(ff) The Apartment Housing receives rental assistance from RD for 6 units in the Apartment Housing, as provided in the Rental Assistance Agreement entered into by the Partnership and RD as of March 1, 2007 with regard to the Apartment Housing. The General Partner will ensure that the Apartment Housing complies with all requirements related to such rental assistance and will use best efforts to ensure that the Apartment Housing continues to qualify for and receive such assistance throughout the Compliance Period. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund VI, L.P., Series 13)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage Construction Loan have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership will require the Accountant to depreciate the Improvements over a 27 1/227-1/2 year term. Site work shall be broken out separately from Improvements and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum tax.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority.
(t) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(u) No event has occurred which constitutes a default under any of the Project Documents.
(v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion of construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage Construction Loan and receipt of the Construction Lender's written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(z) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period of at least two years after the closing and funding of the Mortgage.
(aa) The General Partner has and shall maintain a net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles.
(bb) The Partnership's and General Partner's computer hardware and software used to produce financial reports and tax return information are year 2000 compliant. To the best of the General Partner's knowledge after due inquiry: the Partnership's and General Partner's office machinery and equipment are year 2000 compliant; and the Management Agent's financial reporting systems and office machinery and equipment are year 2000 compliant. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 7)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is are in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage Construction Loan have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership General Partner will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements Partnership items in accordance with Exhibit "G" attached hereto and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxincorporated herein by this reference.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority.
(t) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(u) No event has occurred which constitutes a default under any of the Project Documents.
(v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion of construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage Construction Loan and receipt of the Construction Lender's written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(z) During the term of any guarantees made in conjunction with this Agreement, the General Partner and the Guarantor has and shall maintain a net worth of at least $750,000 computed in accordance with generally accepted accounting principals.
(aa) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, with respect to the Apartment Housing.
(bb) The Partnership's and General Partner's computer hardware and software used to produce financial reports and tax return information are year 2000 compliant. To the best of the General Partner's knowledge after due inquiry: the Partnership's and General Partner's office machinery and equipment are year 2000 compliant; and the Management Agent's financial reporting systems and office machinery and equipment are year 2000 compliant. The General Partner will use shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its best efforts to ensure that any architect retained investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Partnership or General Limited Partner will have as a policy result of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period of at least two years after the closing and funding any material breach of the Mortgagerepresentations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 9)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which that are prudent and customary for the operation of properties similar to the Apartment Housing.
(fe) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(gf) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(hg) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(ih) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(ji) The Partnership has obtained Insurance written by an Insurance Company.
(kj) The Partnership owns the fee simple interest in the Apartment Housing.
(lk) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(ml) The Partnership General Partner will require the Accountant to depreciate Partnership items in accordance with Exhibit "G" attached hereto and incorporated herein by this reference and provide the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements information required by Sections 14.2(a) and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coveringsb) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxof this Agreement.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep the Apartment Housing free of Hazardous Substances and shall not use or generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(om) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition toof, the provisions of this Agreement.
(pn) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(qo) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(rp) The Partnership shall ensure that the Architect of Record's responsibilities include, but are not limited to, preparing and overseeing the construction close-out procedures upon completion; inspecting for and overseeing resolution of the Contractor's final punch list items; receiving and approving operation and maintenance manuals; collecting, reviewing, approving and forwarding to the Partnership all warranties, check key count and key schedules; and confirming turnover of spare parts and materials.
(q) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(sr) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, including without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any governmental or lending authority.
(ts) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(ut) No event has occurred which constitutes a default under any of the Project Documents.
(vu) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(wv) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or and adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or and adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(xw) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(yx) Upon signing execution of the Mortgage Loan and receipt of the written start orderAgreement, the General Partner will issue to the Contractor a notice to proceed, that will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(y) The General Partner has contacted the local tax assessor, or similar representative, and has determined that the Real Estate Taxes are accurate and correct, and that the Partnership will not be required to pay any more for real estate taxes, or property taxes, than the amount of Real Estate Taxes, referenced in this Agreement, except for annual increases imposed on all real estate within the same county as the Apartment Housing. In the event the actual real estate taxes, or property taxes, are greater than the Real Estate Taxes specified in this Agreement, and as a result of the higher real estate tax, or property tax, the Debt Service Coverage falls below 1.10, then the General Partner will contribute additional capital as determined by the Special Limited Partner to the T & I Account in an amount equal to the annual difference between the actual real estate tax, or property tax, over the Real Estate Taxes specified in this Agreement times the number of years remaining on the 15-year LIHTC compliance term. Any payment by the General Partner pursuant to this section shall be in addition to the General Partner's obligation to fund Operating Deficits.
(z) The Partnership will maintain a Debt Service Coverage of not less than 1.10 and will not close on a permanent loan or refinance a Mortgage loan if the Debt Service Coverage would fall below 1.10.
(aa) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner Architect of Record will have a policy of professional liability insurance in an amount not less than five hundred thousand one million dollars.
(bb) The General Partner and the Guarantor have and shall maintain an aggregate net worth equal to at least $2,000,000 computed in accordance with generally accepted accounting principles.
(cc) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, which policy should remain with respect to the Apartment Housing.
(dd) Neither the General Partner nor its Affiliates will take any action or agree to any terms or conditions that are contrary to, or in force for disagreement with, the tax credit application used to secure the LIHTC, or the land use restriction agreement required to be recorded against the Apartment Housing.
(1) The Apartment Housing was acquired by purchase (as defined in Code section 179(d)(2); (2) a period of at least two 10 years after has elapsed between the closing date on which the Partnership acquired the Apartment Housing and funding the date the Apartment Housing was last placed in service; and (3) the Apartment Housing was not previously placed in service by the partnership, the general Partner, or any other person who was a related person (as defined in Code Section 42(d)(2)(D)(iii)(I)) with respect to the Partnership as of the Mortgagetime the Apartment Housing was previously placed in service.
(ff) The Apartment Housing receives rental assistance from RD for 25 units in the Apartment Housing, as provided in the Rental Assistance Agreement entered into by the Partnership and RD as of March 1, 1990 with regard to the Apartment Housing. The General Partner will ensure that the Apartment Housing complies with all requirements related to such rental assistance and will use best efforts to ensure that the Apartment Housing continues to qualify for and receive such assistance throughout the Compliance Period. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund VI, L.P., Series 13)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is are in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(e) All conditions to the funding of the Construction Loan have been met.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership General Partner will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements Partnership items in accordance with Exhibit "G" attached hereto and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxincorporated herein by this reference.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Tenants' Right of First Refusal, the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(r) The Partnership shall retain the Architect of Record and ensure that the Architect of Record's responsibilities include, but are not limited to, preparing and overseeing the construction close-out procedures upon completion; inspecting for and overseeing resolution of the Contractor's final punch list items; receiving and approving operation and maintenance manuals; collecting, reviewing, approving and forwarding to the Parnership all warranties, check key count and key schedules; and confirming turnover of spare parts and materials.
(s) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(st) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof required to be funded as of the date hereof, are currently funded to required levels, including levels required by any authority.
(tu) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(uv) No event has occurred which constitutes a default under any of the Project Documents.
(vw) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(wx) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(xy) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(yz) Upon signing of the Mortgage Construction Loan and receipt of the Construction Lender's written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(zaa) The Partnership will maintain a Debt Service Coverage of not less than 1.10 and will close on a permanent loan or refinance a Mortgage loan if the Debt Service Coverage would fall below 1.10.
(bb) The General Partner will use its best efforts to ensure that any architect retained by the Partnership or General Partner Architect of Record will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period of at least two years after the closing and funding of the Mortgage.
(cc) The General Partner has and shall maintain a net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles.
(dd) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, with respect to the Apartment Housing.
(ee) Neither the General Partner nor any affiliate of the General Partner, including but not limited to Star-Development, L.L.C., shall develop or construct any improvements on any real estate located within a one mile radius of the Apartment Housing prior to Completion of Construction without Consent of the Special Limited Partner, which Consent may be granted or withheld in the sole discretion of the Special Limited Partner. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 9)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner Partner, and will be true during the term of this Agreement, to the extent then applicable. For purposes of this Section, "to the best of its knowledge and belief" means that the representation or warranty is based on the current conscious awareness of facts or other information of the General Partner's officers and directors.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is in breach or violation of any material provisions thereof.
(c) Improvements will be completed in a timely and workerlike worker-like manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment HousingSpecifications.
(d) All conditions to To the funding best of its knowledge and belief, the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which that are prudent and customary for the operation of properties similar to the Apartment Housing.
(e) All conditions to the funding of the Construction Loan have been met.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently or will be available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership, with the exception of temporary disruptions in service not caused by the General Partner.
(i) All roads necessary for the full utilization of the Improvements have either been completed or the necessary rights of way therefore have been acquired by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authority.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction Contract.
(m) The Partnership General Partner will require the Accountant to depreciate Partnership items in accordance with Exhibit G attached hereto and incorporated herein by this reference and provide the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements information required by Sections 14.2(a) and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coveringsb) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxof this Agreement.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep the Apartment Housing free of Hazardous Substances and shall not use or generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, of the provisions of this Agreement.
(po) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(qp) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents or Mortgage or are noted or excepted in the Title Policy.
(q) The Partnership shall ensure that the Architect of Record's responsibilities include, but are not limited to, preparing and overseeing the construction close-out procedures upon completion; inspecting for and overseeing resolution of the Contractor's final punch list items; receiving and approving operation and maintenance manuals; collecting, reviewing, approving and forwarding to the Partnership all warranties, check key count and key schedules; and confirming turnover of spare parts and materials.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which of the Partners elect the LIHTC to commence in accordance with the CodeCredit Period, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any governmental or lending authority.
(t) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicableLoan or any other loan allowed by this Agreement, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(u) No event has occurred which constitutes a material default under any of the Project DocumentsDocuments and has not been cured within any applicable cure period.
(v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations events described above is undertaken by the Limited Partner.
(w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or and adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or and adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion Completion of construction Construction of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage Construction Loan and receipt of the Construction Lender's written start order, the General Partner will cause construction of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(z) The General Partner or its consultant has contacted the local tax assessor, or similar representative, and has determined that the Apartment Housing qualifies for property tax exemption under State law, and that the Partnership will use its best efforts not be required to pay any more for real estate taxes, or property taxes, than the amount of Real Estate Taxes referenced in this Agreement, except for annual increases imposed on all real estate within the same county as the Apartment Housing. In the event the actual real estate taxes, or property taxes, are greater than the Real Estate Taxes specified in this Agreement and as a result of the higher real estate tax, or property tax, the Debt Service Coverage falls below 1.15 then the General Partner will contribute additional capital to lower the principal of the mortgage and reamortize the Mortgage so that the Debt Service Coverage is at a sustainable 1.15, as approved by the Special Limited Partner. If the Mortgage lender will not or cannot reamortize the loan as specified in this Section, and the General Partner cannot obtain another mortgage, then the General Partner will contribute additional capital as determined by the Special Limited Partner to the T & I Account in an amount equal to the annual difference between the actual real estate tax, or property tax, over the Real Estate Taxes specified in this Agreement times the number of years remaining on the 15-year LIHTC compliance term. Any payment by the General Partner pursuant to this section shall be in addition to the General Partner's obligation to fund Operating Deficits.
(aa) The Partnership will maintain a Debt Service Coverage of not less than 1.15:1 and will not close on a permanent loan or refinance a Mortgage loan if the Debt Service Coverage would fall below 1.15:1.
(bb) The General Partner will ensure that any architect retained by the Partnership or General Partner Architect of Record will have a policy of professional liability insurance in an amount not less than five hundred thousand dollars$1,000,000, which policy should remain in force for a period of at least two 2 years after the closing and funding of the Mortgage.
(cc) The General Partner and the Guarantor have and shall maintain an aggregate net worth equal to at least $8,000,000 computed in accordance with generally accepted accounting principles.
(dd) The Partnership is in compliance with and will maintain compliance with the requirements of the federal Fair Housing Act of 1968 (42 U.S.C. 3600 et seq.) as amended, with respect to the Apartment Housing.
(ee) Neither the General Partner nor its Affiliates will take any action or agree to any terms or conditions that are contrary to, or in disagreement with, the tax credit application used to secure the LIHTC, or the land use restriction agreement required to be recorded against the Apartment Housing.
(1) The Apartment Housing was acquired by purchase (as defined in Code Section 179(d)(2); (2) a period of at least 10 years has elapsed between the date on which the Partnership acquired the Apartment Housing and the date the Apartment Housing was last placed in service; and (3) the Apartment Housing was not previously placed in service by the Partnership, the General Partner, or any other person who was a related person (as defined in Code Section 42(d)(2)(D)(iii)(II)) with respect to the Partnership as of the time the Apartment Housing was previously placed in service.
(gg) The Apartment Housing receives rental assistance from RD for an aggregate of nine units in the Apartment Housing, as provided in the Rental Assistance Agreement entered into by the Partnership and RD as of February 1, 2007 with regard to the Apartment Housing. The General Partner will ensure that that the Apartment Housing complies with all requirements related to such rental assistance and will use best efforts to ensure that the Apartment Housing continues to qualify for and receive such assistance throughout the Compliance Period. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, as allowed by law or in equity, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund VI, L.P., Series 13)
Covenants, Representations and Warranties. The General Partner covenants, represents and warrants that the following are presently true, will be true at the time of each Capital Contribution payment made by the Limited Partner and will be true during the term of this Agreement, to the extent then applicable.
(a) The Partnership is a duly organized limited partnership validly existing under the laws of the State and has complied with all filing requirements necessary for the protection of the limited liability of the Limited Partner and the Special Limited Partner.
(b) The Partnership Agreement and the Project Documents are in full force and effect and neither the Partnership nor the General Partner is are in breach or violation of any provisions thereof.
(c) Improvements will be completed in a timely and workerlike manner in accordance with all applicable requirements of all appropriate governmental entities and the Plans and Specifications of the Apartment Housing.
(d) All conditions to the funding of the Mortgage have been met.
(e) The Apartment Housing is being operated in accordance with standards and procedures which are prudent and customary for the operation of properties similar to the Apartment Housing.
(e) All conditions to the funding of the Construction and Renovation Loan have been met.
(f) Except as to any non-recourse carveouts which maybe contained in the Mortgage Loan, the General No Partner does not has or will have any personal liability with respect to and or has not or will have personally guaranteed the payment of the Mortgage.
(g) The Partnership is or will be after completion of rehabilitation in compliance with all construction and use codes applicable to the Apartment Housing and is not in violation of any zoning, environmental or similar regulations applicable to the Apartment Housing.
(h) All appropriate public utilities, including sanitary and storm sewers, water, gas and electricity, are currently available and will be operating properly for all units in the Apartment Housing at the time of first occupancy and throughout the term of the Partnership.
(i) All roads necessary for the full utilization of the Improvements have either been completed or and the necessary rights of way therefore have been acquired and will be maintained by the appropriate governmental authority or have been dedicated to public use and accepted by said governmental authorityPartnership.
(j) The Partnership has obtained Insurance written by an Insurance Company.
(k) The Partnership owns the fee simple interest in the Apartment Housing.
(l) The Construction and Renovation Contract has been entered into between the Partnership and the Contractor; no other consideration or fee shall be paid to the Contractor other than amounts set forth in the Construction and Renovation Contract, unless authorized in writing by the Special Limited Partner.
(m) The Partnership General Partner will require the Accountant to depreciate the Improvements over a 27 1/2-year term. Site work shall be broken out separately from Improvements Partnership items in accordance with Exhibit "G" attached hereto and depreciated over 15 years using the cost recovery system, mid-year 200% declining balance depreciation method. Landscaping and personal property (cabinets, appliances, carpet and window coverings) shall be depreciated over 5 years for regular tax or 9 years for alternative minimum taxincorporated herein by this reference.
(n) To the best of the General Partner's knowledge: (1) no Hazardous Substance has been disposed of, or released to or from, or otherwise now exists in, on, under or around, the Apartment Housing and (2) no aboveground or underground storage tanks are now or have ever been located on or under the Apartment Housing. The General Partner will not install or allow to be installed any aboveground or underground storage tanks on the Apartment Housing. The General Partner will use its best efforts to keep covenants that the Apartment Housing shall be kept free of Hazardous Substances Substance and shall not use or be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process Hazardous Substance, and shall immediately take all remedial action as required by any governmental agency or as required by law which is necessary to remove such Hazardous Substance, except in connection with the normal maintenance and operation of any portion of the Apartment Housing. The General Partner shall comply, and use its best efforts to or cause there to be compliance, with all applicable Federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substance and shall keep, or cause to be kept, the Apartment Housing free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. The General Partner must promptly notify the Limited Partner and the Special Limited Partner in writing (3) if it knows, or suspects or believes there may be any Hazardous Substance in or around any part of the Apartment Housing, any Improvements constructed on the Apartment Housing, or the soil, groundwater or soil vapor, (4) if the General Partner or the Partnership may be subject to any threatened or pending investigation by any governmental agency under any law, regulation or ordinance pertaining to any Hazardous Substance, and (5) of any claim made or threatened by any Person, other than a governmental agency, against the Partnership or General Partner arising out of or resulting from any Hazardous Substance being present or released in, on or around any part of the Apartment Housing.
(o) The General Partner has not executed and will not execute any agreements with provisions contradictory to, or in opposition to, the provisions of this Agreement, except as may be required by the project's HAP Contract.
(p) The Partnership will allocate to the Limited Partner the Projected Annual Tax Credits, or the Revised Projected Tax Credits, if applicable.
(q) No charges, liens or encumbrances exist with respect to the Apartment Housing other than those which are created or permitted by the Project Documents Documents, HAP Contract or Mortgage or are noted or excepted in the Title Policy.
(r) The buildings on the Apartment Housing site constitute or shall constitute a "qualified low-income housing project" as defined in Section 42(g) of the Code, and as amplified by the Treasury Regulations thereunder. In this connection, not later than December 31 of the first year in which the Partners elect the LIHTC to commence in accordance with the Code, the Apartment Housing will satisfy the Minimum Set-Aside Test.
(s) All accounts of the Partnership required to be maintained under the terms of the Project Documents, subject to the terms of the HAP Contract including, without limitation, any reserves in accordance with Article VIII hereof, are currently funded to required levels, including levels required by any authority.
(t) The General Partner has not lent or otherwise advanced any funds to the Partnership other than its Capital Contribution, or Operating Deficit Loan, if applicable, and the Partnership has no unsatisfied obligation to make any payments of any kind to the General Partner or any Affiliate thereof.
(u) No event has occurred which constitutes a default under any of the Project Documents.
(v) No event has occurred which has caused, and the General Partner has not acted in any manner which will cause (1) the Partnership to be treated for federal income tax purposes as an association taxable as a corporation, (2) the Partnership to fail to qualify as a limited partnership under the Act, or (3) the Limited Partner to be liable for Partnership obligations; provided however, the General Partner shall not be in breach of this representation if all or a portion of a Limited Partner's agreed upon Capital Contributions are used to satisfy the Partnership's obligations to creditors of the Partnership and such action by the General Partner is otherwise authorized under this Agreement and; provided further, however, the General Partner shall not be in breach of this representation if the action causing the Limited Partner to be liable for the Partnership obligations is undertaken by the Limited Partner.
(w) No event or proceeding, including, but not limited to, any legal actions or proceedings before any court, commission, administrative body or other governmental authority, and acts of any governmental authority having jurisdiction over the zoning or land use laws applicable to the Apartment Housing, has occurred the continuing effect of which has: (1) materially or adversely affected the operation of the Partnership or the Apartment Housing; (2) materially or adversely affected the ability of the General Partner to perform its obligations hereunder or under any other agreement with respect to the Apartment Housing; or (3) prevented the completion of construction and renovation of the Improvements in substantial conformity with the Project Documents, other than legal proceedings which have been bonded against (or as to which other adequate financial security has been issued) in a manner as to indemnify the Partnership against loss; provided, however, the foregoing does not apply to matters of general applicability which would adversely affect the Partnership, the General Partner, Affiliates of the General Partner or the Apartment Housing only insofar as they or any of them are part of the general public.
(x) Neither the Partnership nor the General Partner has any liabilities, contingent or otherwise, which have not been disclosed in writing to the Limited Partner and the Special Limited Partner and which in the aggregate affect the ability of the Limited Partner to obtain the anticipated benefits of its investment in the Partnership.
(y) Upon signing of the Mortgage Loan and receipt of the Lender's written start order, the General Partner will cause construction and renovation of the Improvements to commence and thereafter will cause the Contractor to diligently proceed with construction and renovation of the Improvements according to the Plans and Specifications so that the Improvements can be completed by the Completion Date.
(z) The General Partner will or Guarantor has and shall use its their best efforts to ensure that any architect retained maintain a net worth equal to at least $1,000,000 computed in accordance with generally accepted accounting principles. This Section is not applicable to the General Partner, Sioux Falls Environmental Access, Inc.
(aa) The General Partner agrees to Refinance the Mortgage by the Partnership or General Partner will have a policy sooner of professional liability insurance in an amount not less than five hundred thousand dollars, which policy should remain in force for a period the following:
(1) the fourth anniversary of at least two years after the closing and funding of the Mortgage; or
(2) within 120 days after the five year treasury note ("Five Year Treasury Note") as published in the Wall Street Journal ("WSJ") is equal to or exceeds 8%.
(bb) Notwithstanding the foregoing, if the Five Year Treasury Note is equal to or less than 7% at any time prior to a Refinance of the Mortgage, the General Partner has the authority to Refinance the Mortgage without the consent of the Special Limited Partner, provided the subsequent mortgage ("Refinanced Mortgage") has a fixed rate of interest and maintains a Debt Service Coverage of 1.15 as defined in Section 1.24 of this Agreement. The General Partner shall be liable to the Limited Partner for any costs, damages, loss of profits, diminution in the value of its investment in the Partnership, or other losses, of every nature and kind whatsoever, direct or indirect, realized or incurred by the Limited Partner as a result of any material breach of the representations and warranties set forth in this Section 9.12.
Appears in 1 contract
Samples: Limited Partnership Agreement (WNC Housing Tax Credit Fund Vi Lp Series 8)
