Common use of Representations, Warranties and Covenants of Sellers Clause in Contracts

Representations, Warranties and Covenants of Sellers. (a) The General Partner hereby represents, warrants and covenants to and with Purchaser as follows: (i) The General Partner is validly existing and in good standing under the laws of the state of its formation and, subject to Section 8(b)(iii), and any approvals required from Lender for the Loan Continuation and Release, has or at the Closing shall have the entity power and authority to sell and convey the GP Interest and to execute the documents to be executed by the General Partner and prior to the Closing will have taken as applicable, all corporate, partnership, limited liability company or equivalent entity actions required for the execution and delivery of this Contract, and the consummation of the transactions contemplated by this Contract. The compliance with or fulfillment of the terms and conditions hereof will not conflict with, or result in a breach of, the terms, conditions or provisions of, or constitute a default under, any contract to which the General Partner is a party or by which the General Partner is otherwise bound, which conflict, breach or default would have a material adverse affect on the General Partner's ability to consummate the transaction contemplated by this Contract or on the Property. (ii) The Partnership is a limited partnership validly existing and in good standing under the laws governing limited partnerships, as adopted in the state of its formation. The Partnership has taken all requisite action in order to conduct lawfully its business in the state in which the Property is situated. The Partnership has the full power and authority to carry on its business, including without limitation, to own, lease and operate the Property. (iii) Subject to the approvals and consents required from the limited partners of the Limited Partner, this Contract is a valid and binding agreement against the General Partner in accordance with its terms. (iv) The GP Interest is not subject to any lien, pledge or encumbrance of any nature whatsoever and Purchaser shall acquire the same free of any rights or claims thereto by any other party. (v) Except for (I) any actions by the Partnership to evict Tenants under the Leases, or (II) any matter covered by the Partnership's current insurance policy(ies), to the General Partner's knowledge, there are no material actions, proceedings, litigation or governmental investigations or condemnation actions either pending or threatened against the Property which will adversely impact the General Partner's ability to convey the GP Interest; (vi) To the General Partner's knowledge, the Partnership has not received any written notice from a governmental agency of any uncured material violations of any federal, state, county or municipal law, ordinance, order, regulation or requirement affecting the Property, other than normal regulatory correspondence from Lender; (vii) To the General Partner's knowledge, the Partnership has not received any written notice of any material default by the Partnership under any of the Property Contracts; (b) The Limited Partner hereby represents, warrants and covenants to and with Purchaser as follows: (i) The Limited Partner is validly existing and in good standing under the laws of the state of its formation and, subject to Section 8(b)(iii), and any approvals required from Lender for the Loan Continuation and Release, has or at the Closing shall have the entity power and authority to sell and convey the LP Interest and to execute the documents to be executed by the Limited General Partner. (ii) The execution and delivery of this Contract and the closing of the transaction contemplated herein shall not and do not constitute a violation or breach by the Limited Partner of any provision of any agreement or other instrument to which the Limited Partner is a party or to which the Limited Partner may be subject although not a party, nor result in or constitute a violation or breach of any judgment, order, writ, injunction or decree issued against the Limited Partner, or by which the Limited Partner is bound or subject (iii) The Limited Partner has the full right, power and authority to enter into and deliver this Contract and to consummate the purchase and sale of the Interests in accordance herewith and to perform all covenants and agreements of Sellers hereunder subject to approval of the Limited Partner’s limited partners. (iv) The person or persons executing this Contract on behalf of the Limited Partner are fully and duly authorized to do so by the Limited Partner, and any and all actions required to make this Contract and the performance thereof legally binding obligations of the Limited Partner, have been duly and legally taken. No further consent, authorization or approval of any person or entity is required for the Limited Partner to enter into or perform this transaction, other than the approval of the Limited Partner’s limited partners, which shall occur on or before the Closing Date. (v) The LP Interest is not subject to any lien, pledge or encumbrance of any nature whatsoever and Purchaser shall acquire the same free of any rights or claims thereto by any other party. (c) Purchaser agrees that neither Seller shall be responsible or liable to Purchaser for any defects, errors or omissions, or on account of any conditions affecting the Property. Purchaser, its successors and assigns, and anyone claiming by, through or under Purchaser, hereby fully releases Sellers’ Indemnified Parties from, and irrevocably waives its right to maintain, any and all claims and causes of action that it or they may now have or hereafter acquire against Sellers’ Indemnified Parties with respect to any and all Losses arising from or related to any defects, errors, omissions or other conditions affecting the Property. Purchaser represents and warrants that, as of the date hereof and as of the Closing Date, it has and shall have reviewed and conducted such independent analyses, studies (including, without limitation, environmental studies and analyses concerning the presence of lead, asbestos, water intrusion and/or fungal growth and any resulting damage, PCBs and radon in and about the Property), reports, investigations and inspections as it deems appropriate in connection with the Property. (d) Sellers and Purchaser agree that the foregoing representations and warranties of Sellers (collectively, "Sellers’ Representations") shall survive Closing for a period of six months (the "Survival Period"). Sellers shall have no liability after the Survival Period with respect to their respective Sellers’ Representations contained herein except to the extent that Purchaser has requested arbitration against Sellers during the Survival Period for breach of any of Sellers’ Representations. Under no circumstances shall Sellers be liable to Purchaser for more than $20,000 in any individual instance or in the aggregate for all breaches of Sellers’ Representations, nor shall Purchaser be entitled to bring any claim for a breach of Sellers’ Representations unless the claim for damages (either in the aggregate or as to any individual claim) by Purchaser exceeds $5,000. In the event that either Seller breaches any representation contained in Section 8(a) or 8(b) and Purchaser had knowledge of such breach prior to the Closing Date, and elected to close regardless, Purchaser shall be deemed to have waived any right of recovery, and Sellers shall not have any liability in connection therewith. (e) Any representations and warranties made "to the knowledge of the General Partner" shall not be deemed to imply any duty of inquiry. For purposes of this Contract, the term the General Partner's "knowledge" shall mean and refer only to actual knowledge of the "Asset Manager" (as hereinafter defined) and shall not be construed to refer to the knowledge of any other partner, officer, director, agent, employee or representative of the General Partner, or any affiliate of the General Partner, or to impose upon such Asset Manager any duty to investigate the matter to which such actual knowledge or the absence thereof pertains, or to impose upon such Asset Manager any individual personal liability. As used herein, the term Asset Manager shall refer to Xxxxxxx Xxxxx, who is the Asset Manager handling this Property (the "Asset Manager"). (f) Except for Sellers’ Representations, Purchaser agrees that the Property, as assets of the Partnership, will be accepted by Purchaser at Closing "AS IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase Price and the terms and conditions set forth herein are the result of arm's-length bargaining between entities familiar with transactions of this kind, and said price, terms and conditions reflect the fact that Purchaser shall have the benefit of, and is not relying upon, any information provided by either Seller or Broker or statements, representations or warranties, express or implied, made by or enforceable directly against Sellers or Broker, including, without limitation, any relating to the value of the Property, the physical or environmental condition of the Property, any state, federal, county or local law, ordinance, order or permit; or the suitability, compliance or lack of compliance of the Property with any regulation, or any other attribute or matter of or relating to the Property (other than Sellers’ Representations). Purchaser agrees that neither Seller shall be responsible or liable to Purchaser for any defects, errors or omissions, or on account of any conditions affecting the Property. Purchaser, its successors and assigns, and anyone claiming by, through or under Purchaser, hereby fully releases Sellers’ Indemnified Parties from, and irrevocably waives its right to maintain, any and all claims and causes of action that it or they may now have or hereafter acquire against Sellers’ Indemnified Parties with respect to any and all Losses arising from or related to any defects, errors, omissions or other conditions affecting the Property. Purchaser represents and warrants that, as of the date hereof and as of the Closing Date, it has and shall have reviewed and conducted such independent analyses, studies (including, without limitation, environmental studies and analyses concerning the presence of lead, asbestos, water intrusion and/or fungal growth and any resulting damage, PCBs and radon in and about the Property), reports, investigations and inspections as it deems appropriate in connection with the Property. If Sellers provide or have provided any documents, summaries, opinions or work product of consultants, surveyors, architects, engineers, title companies, governmental authorities or any other person or entity with respect to the Property, including, without limitation, the offering prepared by Broker, Purchaser and Sellers agree that Sellers have done so or shall do so only for the convenience of both parties, Purchaser shall not rely thereon and the reliance by Purchaser upon any such documents, summaries, opinions or work product shall not create or give rise to any liability of or against “Sellers’ Indemnified Parties” (as that term is hereinafter defined). Purchaser acknowledges and agrees that no representation has been made and no responsibility is assumed by Sellers with respect to current and future applicable zoning or building code requirements or the compliance of the Property with any other laws, rules, ordinances or regulations, the financial earning capacity or expense history of the Property, the continuation of contracts, continued occupancy levels of the Property, or any part thereof, or the continued occupancy by tenants of any Leases or, without limiting any of the foregoing, occupancy at Closing. Prior to Closing, the Partnership shall have the right, but not the obligation, to enforce its rights against any and all Property occupants, guests or tenants. Purchaser agrees that the departure or removal, prior to Closing, of any of such occupants or tenants shall not be the basis for, nor shall it give rise to, any claim on the part of Purchaser, nor shall it affect the obligations of Purchaser under this Contract in any manner whatsoever; and Purchaser shall close title and accept delivery of the Deed with or without such tenants in possession and without any allowance or reduction in the Purchase Price under this Contract. Purchaser hereby releases Sellers, and each of them, from any and all claims and liabilities relating to the foregoing matters. (g) The General Partner agrees that it shall cause the Partnership to maintain the Property as it now is until Closing, ordinary wear and tear and damage as provided in Section 12(c) excepted, and that the General Partner will cause the Partnership to refrain from any use of the Property for any purpose or in any manner which would adversely affect the Partnership’s continued use of the Property as a multifamily development. In the event of such actions, Purchaser may, without liability, refuse to accept the assignment and transfer of the Interests, in which event the consideration paid under this Contract shall be refunded.