BOSTON CAPITAL TAX CREDIT FUND IV L.P.
_______________________________________
CERTIFICATION AND AGREEMENT
for
XXXXXXX PHASE I LIMITED PARTNERSHIP
_______________________________________
CERTIFICATION AND AGREEMENT made as of February 25, 1997, by Xxxxxxx
Phase I Limited Partnership, a Connecticut limited partnership (the "Operating
Partnership"); Xxxxxxx Phase I of Massachusetts LLC, a Connecticut limited
liability company (the "Operating General Partner"); for the benefit of BOSTON
CAPITAL TAX CREDIT FUND IV L.P., a Delaware limited partnership (the
"Investment Partnership"), BCTC 94, Inc., a Delaware corporation (the "Special
Limited Partner"), Xxxxxxxx, Xxxxx & Xxxxxx, Xxxxxxx & Xxxxx, Tobin, Carberry,
X'Xxxxxx, Xxxxx & Xxxxxxxx, PC and certain other persons or entities described
herein. The Investment Partnership and the Special Limited Partner shall
hereinafter be referred to as the "Limited Partners";
WHEREAS, the Operating Partnership proposes to admit the Limited
Partners as the additional limited partners thereof pursuant to the Amended
and Restated Agreement of Limited Partnership of the Operating Partnership
dated as of February __, 1997 (the "Operating Partnership Agreement"), in
accordance with which the Special Limited Partner will make a capital
contribution of $10 to the Operating Partnership and the Investment
Partnership will make certain capital contributions to the Operating
Partnership;
WHEREAS, the Limited Partners have relied upon certain information and
representations described herein in evaluating the merits of investment by the
Limited Partners in the Operating Partnership;
WHEREAS, Xxxxxxxx, Xxxxx & Xxxxxx, as counsel for the Limited Partners,
will rely upon such information and representations in connection with its
delivery of certain opinions with respect to this transaction; and
WHEREAS, Peabody & Xxxxx and Tobin, Carberry, X'Xxxxxx, Xxxxx &
Xxxxxxxx, PC, as counsel for the Operating Partnership and the Operating
General Partner, will rely upon such information and representations in
connection with its delivery of certain opinions with respect to this
transaction.
NOW, THEREFORE, to induce the Limited Partners to enter into the
Operating Partnership Agreement and become the limited partners of the
Operating Partnership, and for $1.00 and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Operating Partnership and the Operating General Partner hereby agree as
follows for the benefit of the Limited Partners, Xxxxxxxx, Xxxxx & Xxxxxx,
Xxxxxxx & Xxxxx, Tobin, Carberry, X'Xxxxxx, Xxxxx & Xxxxxxxx, PC and certain
other persons hereinafter described.
1. Representations, Warranties and Covenants of the Operating Partnership
and the Operating General Partner
The Operating Partnership and the Operating General Partner jointly and
severally represent, warrant and certify to the Limited Partners, Xxxxxxxx,
Xxxxx & Xxxxxx, Xxxxxxx & Xxxxx and Tobin, Carberry, X'Xxxxxx, Xxxxx &
Xxxxxxxx, PC, that, with respect to the Operating Partnership, as of the date
hereof:
1.01 The Operating Partnership is duly organized and in good
standing as a limited partnership pursuant to the laws of the state of its
formation with full power and authority to own the 74-unit rental housing
project located in Meriden, Connecticut known as Xxxxxxx Estates Phase I
Apartments (the "Apartment Complex") and conduct its business; the Operating
Partnership and the Operating General Partner have the power and authority to
enter into and perform this Certification and Agreement; the execution and
delivery of this Certification and Agreement by the Operating Partnership and
the Operating General Partner has been duly and validly authorized by all
necessary action; the execution and delivery of this Certification and
Agreement, the fulfillment of its terms and consummation of the transactions
contemplated hereunder do not and will not conflict with or result in a
violation, breach or termination of or constitute a default under (or would
not result in such a conflict, violation, breach, termination or default with
the giving of notice or passage of time or both) any other agreement,
indenture or instrument by which the Operating Partnership or the Operating
General Partner is bound or any law, regulation, judgment, decree or order
applicable to the Operating Partnership or the Operating General Partner or
any of their respective properties; this Certification and Agreement
constitutes the valid and binding agreement of the Operating Partnership and
the Operating General Partner, enforceable against each of them in accordance
with its terms.
1.02 All factual information, including without limitation the
information set forth in Exhibit A hereto, provided to the Limited Partners or
their affiliates either in writing or orally, did not, at the time given, and
does not, on the date hereof, contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances under
which they are made. The Operating General Partner has also delivered to the
Limited Partners or their affiliates all documents and other information which
has been requested by such parties. Since the date of the financial
statements for the Operating General Partner previously delivered, there has
been no material adverse change in the financial position of the Operating
General Partner. The estimates of occupancy rates, operating expenses and tax
credits set forth on Exhibit A are reasonable in light of the knowledge and
experience of the Operating General Partner.
1.03 As of the date hereof, each of the representations
contained in Exhibit B attached hereto is true, accurate and complete as to
both the Operating Partnership and the Operating General Partner and as to any
of its affiliates, any of its predecessors and its affiliates' predecessors,
any of its directors, officers, general partners and/or beneficial owners of
ten percent (10%) or more of any class of its equity securities (beneficial
ownership meaning the power to vote or direct the vote and/or the power to
dispose or direct the disposition of such securities), as the case may be, and
any promoters presently connected with it in any capacity.
1.04 Each of the representations and warranties contained in
the Operating Partnership Agreement is true and correct as of the date hereof.
1.05 Each of the covenants and agreements of the Operating
Partnership and the Operating General Partner contained in the Operating
Partnership Agreement has been duly performed to the extent that performance
of any covenant or agreement is required on or prior to the date hereof.
1.06 All conditions to admission of the Limited Partners as
limited partners of the Operating Partnership contained in the Operating
Partnership Agreement have been satisfied.
1.07 No default has occurred and is continuing under the
Operating Partnership Agreement or any of the Project Documents (as such term
is defined in the Operating Partnership Agreement) for the Operating
Partnership.
1.08 The Operating General Partner agrees to take all actions
necessary to claim the Projected Credit, including, without limitation, the
filing of Form 8609 with the Internal Revenue Service.
1.09 No person or entity other than the Operating Partnership
holds any equity interest in the Apartment Complex.
1.10 The Operating Partnership has the sole responsibility to
pay all maintenance and operating costs, including all taxes levied and all
insurance costs, attributable to the Apartment Complex.
1.11 The Operating Partnership, except to the extent it is
protected by insurance and excluding any risk borne by lenders, bears the sole
risk of loss if the Apartment Complex is destroyed or condemned or there is a
diminution in the value of the Apartment Complex.
1.12 No person or entity except the Operating Partnership has
the right to any proceeds, after payment of all indebtedness, from the sale,
refinancing, or leasing of the Apartment Complex.
1.13 Except as previously disclosed to the Special Limited
Partner, the Operating General Partner is not related in any manner to either
of the Limited Partners, nor is the Operating General Partner acting as an
agent of the Limited Partners.
1.14 To the best of the undersigned's knowledge after due
inquiry, and execpt as may be disclosed in that certain report entitled
"Environmental Site Assessment and Limited Compliance Review" by GZA
GeoEnvironmental, Inc. of Vernon, Connecticut, dated February, 1997, the
Apartment Complex does not contain in a level above that deemed safe by all
applicable governmental agencies, any substance known to be hazardous, such as
hazardous waste, lead-based paint, asbestos, methane gas, urea formaldehyde
insulation, oil, toxic substances, underground storage tanks, polychlorinated
biphenals (PCBs), and radon; the Apartment Complex is not affected by the
presence of oil, toxic substances, or other pollutants that could be a
detriment to the Apartment Complex nor is the Operating Partnership in
violation of any local, state, or federal law or regulation; and no violation
of the Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act,
Toxic Substance Control Act, Safe Drinking Water Control Act, Comprehensive
Environmental Resource Compensation and Liability Act, or Occupational Safety
and Health Act has occurred or is continuing. Neither the Operating
Partnership, nor the Operating General Partner have received any notice from
any source whatsoever of the existence of any such hazardous condition
relating to the Apartment Complex or of any violation of any local, state or
federal law or regulation with respect to the Apartment Complex.
1.15 To the best of the undersigned's knowledge, based on that
certain real estate appraisal prepared by Italia & Xxxx, Inc. dated May 7,
1997 and based upon the level of permanent debt financing for the Project,
there is a reasonable expectation that the fair market value of the Operating
Partnership's building(s) at the end of each year will be greater than the
total amount of the Operating Partnership's liabilities, including accrued
interest on such liabilities.
1.16 [Intentionally Omitted].
1.17 First Atlantic Housing, Inc., a Massachusetts
corporation, BCP Connecticut Limited Partnership, a Massachusetts limited
partnership and American Housing Preservation Corporation, a Maine corporation
are the sole members of the Operating General Partner. If any member or other
affiliate of the Operating General Partner is a tax-exempt entity and either
of such Operating General Partner is a "controlled entity" in relation to such
tax-exempt entity, a timely election will be made under Code Section
168(h)(6)(F) so that no portion of the Apartment Complex will be treated as
"tax exempt use property" as defined in Code Section 168(h).
1.18 All representations made by the Operating General Partner
in the Operating Partnership Agreement are incorporated herein by reference
and are confirmed.
1.19 There is a reasonable expectation that the Operating
Partnership will be able to repay, as due, the principal and interest on the
projected loans to the Operating Partnership based on the projected value of
the Operating Partnership's property and building(s).
1.20 An Extended Use Commitment (as defined in the Operating
Partnership Agreement) within the meaning of Code Section 42(h)(6) will be in
effect and recorded in the appropriate land evidence records with respect to
the building(s) in the Apartment Complex not later than the end of the taxable
year in which any Tax Credit is taken with respect to any building. If not in
effect as of the date hereof, the Operating General Partner agree (i) to
deliver a valid and binding Extended Use Agreement and evidence that it has
been recorded no later than the end of the first taxable year in which any Tax
Credit is taken with regarding to any building and (ii) to ensure that all
Partnership lenders subordinate their mortgage liens on the Apartment Complex
to the Extended Use Agreement at the time it is recorded.
1.21 The amounts payable in development and property
management fees to the Operating General Partner and its affiliates are fair
in light of the value and magnitude of the services rendered in consideration
for such fees, and the services performed in consideration for the development
fees relate solely to the acquisition or construction of the Apartment
Complex.
1.22 The Mortgage Loans (other than the Preservation Loan) are
being financed through the issuance of tax-exempt bonds, the interest on which
is exempt under Section 103 of the Code; the bonds are taken into account
under Section 146 of the Code; and the principal payments on the Mortgage
Loans (other than the Preservation Loan) will be applied within a reasonable
period to redeem the bonds, the proceeds of which were used to provide the
Mortgage Loans (other than the Preservation Loan).
1.23 The Low-Income Housing Tax Credits allocated to the
Apartment Complex will not exceed the amount the Agency determines is
necessary for the financial feasibility of the Apartment Complex and its
viability as a qualified low-income housing project throughout the credit
period.
1.24 To the best of the Operating General Partner's knowledge,
the proposed operations of the Apartment Complex and the Partnership satisfy
the requirements of Connecticut's Qualified Allocation Plan, including any
specific targeting, set-asides or other factors upon which the Connecticut
Housing Finance Authority based its determination that the proposed operations
of the Apartment Complex and the Partnership satisfy the Qualified Allocation
Plan.
1.25 The Operating Partnership has elected pursuant to Code
Section 42 to lock in the applicable Tax Credit rate prior to placement in
service of each building.
1.26 [Intentionally Omitted].
1.27 The Operating General Partner will not reduce its
aggregate interest, as Operating General Partner, in the Partnership below 1%
of all material items of the Partnership income, gain, loss, deduction, and
credit. The 1% interest will be calculated without regard to any limited
partner interest or interests in the Partnership that the Operating General
Partner have or may obtain.
1.28 The Operating General Partner and any entity that is
related to the Operating General Partner or to the Operating Partnership and
that receives a fee from the Operating Partnership, directly or indirectly, is
on the accrual method of accounting for tax purposes. If any fee received by
the Operating General Partner is treated as a guaranteed payment under Section
707(c) of the Code, the Operating General Partner will recognize such fee as
income at the time such fee is accrued by the Operating Partnership.
1.29 The Operating General Partner will be actively involved
in the management and operation of the Operating Partnership, will devote
substantial and continuing attention to the activities of the Operating
Partnership, and will provide substantial services to the Operating
Partnership.
1.30 The development and leasing activity in which the
Operating Partnership will engage will not contain personal or recreational
benefit for the partners of the Operating Partnership.
1.31 The Operating Partnership will keep active records and
carry out the proposed activity in a manner consistent with profitable
businesses in the same activity.
1.32 The Operating Partnership will have an objective to carry
on businesses for profit and divide the gains therefrom.
1.33 The Operating Partnership may earn a profit, including
profit from appreciation in the value of the Apartment Complex.
1.34 The Mortgage Loans and all other debt financing of the
Apartment Complex require the noncontingent repayment of principal on or
before a fixed maturity date, and will be considered and treated as a loan by
the Lenders.
1.35 None of the Operating Partnership's Lenders is a party
from whom the Operating Partnership acquired any portion of the Apartment
Complex, and none of the financing was issued in exchange for any portion of
the Apartment Complex. None of the Operating Partnership's Lenders will
receive a fee with respect to the Operating Partnership's investment in the
Apartment.
1.36 Following is a description of any and all existing or
proposed financing of the Apartment Complex that involves any direct or
indirect grant or federal subsidy (including, without limitation, federal
grants, below-market interest rate loans, and tax-exempt bonds): the
Connecticut Housing Finance Authority is making the Mortgage Loans, which are
being funded by the issuance of Connecticut's 1996 Multi-Family Housing
Revenue Bonds.
1.37 The Project will not receive moderate rehabilitation
assistance under Section 8(e)(2) of the United States Housing Act of 1937
(unless pursuant to the Xxxxxxx X. XxXxxxxx Homeless Assistance Act of 1988).
1.38 If the Apartment Complex is a scattered site project
within the meaning of Code Section 42, 100% of the rental units in the
Apartment Complex will be rent-restricted within the meaning of Code Section
42.
1.39 All Units in the Apartment Complex are to be of equal
quality and all Apartment Complex amenities are to be made available to all
tenants on a comparable basis without separate fees except for one unit in
which the on-site manager shall reside.
1.40 There will be no direct or indirect personal liability of
the Operating Partnership or of any of the Partners for the repayment of the
principal of and payment of interest on the Mortgage Loans, and the sole
recourse of the Lender under the Mortgage Loans, with respect to the principal
thereof and interest thereon, shall be to the property securing the
indebtedness.
1.41 All representations and disclosures made by the Operating
General Partner to the Agency with respect to the Project and the Partnership
in connection with the Low Income Housing Tax Credit Allocation Application
remain true and correct on the date hereof and the Partnership has complied
with all conditions to the allocation of Tax Credits imposed by the Agency.
1.42 At least 50% of the aggregate basis of the Land and
buildings comprising the Apartment Complex will be financed by the Mortgage
Loans.
2. Indemnification
2.01 The Operating General Partner (for purposes of this
Section 2.01, the "Indemnifying Parties" or, individually, an "Indemnifying
Party") agrees to indemnify and hold harmless the Limited Partners (for
purposes of this Section 2.01, the "Indemnified Parties" or, individually, an
"Indemnified Party") and each officer, director, employee and person, if any,
who controls any Indemnified Party against any losses, claims, damages or
liabilities (collectively, "Liabilities"), joint or several, to which any
Indemnified Party or such officer, director, employee or controlling person
may become subject, insofar as such Liabilities or actions in respect thereof
arise out of or are based upon (i) a breach by such Indemnifying Party of any
of its representations, warranties or covenants to such Indemnified Party or
any such of its officers, directors, employees or controlling persons under
this Certification and Agreement or (ii) liability in connection with the Land
and/or the Apartment Complex, as each term is defined in the Operating
Partnership Agreement, under any statute, regulation, ordinance, or other
provision of federal, state, or local law or any civil action pertaining to
the protection of the environment or otherwise pertaining to public health or
employee health and safety, including, without limitation, protection from
hazardous waste, lead-based paint, methane gas, urea formaldehyde insulation,
oil, toxic substance, underground storage tanks, polychlorinated biphenals
(PCBs), and radon; and to reimburse each such Indemnified Party and each such
officer, director, employee or controlling person for any legal or other
expenses reasonably incurred by it or them in connection with defending
against any such Liability or action; provided, however, that the Indemnifying
Party shall not be required to indemnify any Indemnified Party or any such
officer, director, employee or controlling person for any payment made to any
claimant in settlement of any Liability or action unless such payment is
approved by the Indemnifying Party or by a court having jurisdiction of the
controversy. This indemnity agreement shall remain in full force and effect
notwithstanding any investigation made by any party hereto, shall survive the
termination of any agreement which refers to this indemnity and shall be in
addition to any liability which the Indemnifying Party may otherwise have.
2.02 No Indemnifying Party shall be liable under the indemnity
agreements contained in Section 2.01 unless the Indemnified Party shall have
notified the Indemnifying Party in writing within forty-five (45) business
days after the summons or other first legal process giving information of the
nature of the claim shall have been served upon the Indemnified Party or any
such of its officers, directors, employees or controlling persons, but failure
to notify an Indemnifying Party of any such claim shall not relieve it from
any liability which it may have to the Indemnified Party or any such of its
officers, directors, employees or controlling persons against whom action is
brought otherwise than on account of its indemnity agreement contained in
Section 2.01. In case any action is brought against any Indemnified Party or
any such of its officers, directors, employees or controlling persons upon any
such claim, and it notifies the Indemnifying Party of the commencement thereof
as aforesaid, the Indemnifying Party shall be entitled to participate at its
own expense in the defense, or, if it so elects, in accordance with
arrangements satisfactory to any other Indemnifying Party or parties similarly
notified, to assume the defense thereof, with counsel who shall be reasonably
satisfactory to such Indemnified Party or any such of its officers, directors,
employees or controlling persons and any other Indemnified Parties who are
defendants in such action; and after notice from the Indemnifying Party to
such Indemnified Party or any such of its officers, directors, employees or
controlling persons of its election so to assume the defense thereof and the
retaining of such counsel by the Indemnifying Party, the Indemnifying Party
shall not be liable to such Indemnified Party or any such of its officers,
directors, employees or controlling persons for any legal or other expenses
subsequently incurred by such Indemnified Party or any such of its officers,
directors, employees or controlling persons in connection with the defense
thereof.
3. Miscellaneous
3.01 This Certification and Agreement is made solely for the
benefit of the Operating Partnership, the Operating General Partner, Xxxxxxxx,
Xxxxx & Xxxxxx, Xxxxxxx & Xxxxx and Tobin, Carberry, X'Xxxxxx, Xxxxx &
Xxxxxxxx, PC, the Limited Partners (and, to the extent provided in Section 2,
the officers, directors, partners, employees and controlling persons referred
to therein), and their respective successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement.
3.02 This Certification and Agreement may be executed in
several counterparts, each of which shall be deemed to be an original, all of
which together shall constitute one and the same instrument.
3.03 Terms used in this Certification and Agreement but not
otherwise defined herein shall have the meanings given them in the Operating
Partnership Agreement.
IN WITNESS WHEREOF, the undersigned have set their hands and seals as of
the date first above written.
OPERATING PARTNERSHIP:
XXXXXXX PHASE I LIMITED PARTNERSHIP
By: XXXXXXX PHASE I OF MASSACHUSETTS
LLC, its General Partner
By: FIRST ATLANTIC HOUSING, INC., its Manager
By: /s/ Xxxxxxxxx X. Xxxxxxx
Xxxxxxxxx X. Xxxxxxx, Vice President
OPERATING GENERAL PARTNER:
XXXXXXX PHASE I OF MASSACHUSETTS LLC
By: FIRST ATLANTIC HOUSING, INC., its Manager
By: /s/ Xxxxxxxxx X. Xxxxxxx
Xxxxxxxxx X. Xxxxxxx, Vice President
Exhibit A
Xxxxxxx Phase I Limited Partnership Fact Sheet
1. Sources and Uses of Funds
Sources of Funds
First Mortgage Loan $2,635,000
Second Mortgage Loan $ 353,696
General Partner Equity $ 398,477
Limited Partner Equity $ 671,336
Application of Funds
Total Construction Cost $ 438,801
Soft Costs $3,115,404
Land $ 290,000
Development Fee $ 241,999
2. Financing
A. Lender: Connecticut Housing Finance Authority
(i) Mortgage Amount: $1,430,000
(ii) Interest Rate: 6.75%
(iii) Term: 7 years
B. Lender: Connecticut Housing Finance Authority
(i) Mortgage Amount: $1,205,000
(ii) Interest Rate: 7.5%
(iii) Term: 30 years
C. Lender: Connecticut Housing Finance Authority
Preservation Loan
(i) Mortgage Amount: $353,696
(ii) Interest Rate: 6% (accrual 30 years)
(iii) Term: 60 years
3. Construction and Permanent Junior Financing: N/A
4. Eligible Basis:
Acquisition Rehabilitation
$2,114,254 $780,716
5. Qualified Basis:
Acquisition Rehabilitation
$2,114,254 $780,716
6. GP Capital Contribution: $398,477
8. Rent-up Schedule: 100% July, 1997
9. Projected Credit to the
Investment Partnership (99%):
A. for year 1 $38,304 (1997)
B. for years 2 through 10 $104,896
C. for year 11 $66,592
10. Total Projected Credit to the
Operating Partnership (100%):
A. for year 1 $38,690 (1997)
B. for years 2 through 10 $105,955
C. for year 11 $67,264
11. Tax Credit Approval:
A. Application:
1. Date: October 1996
2. Credit Amount Requested: $106,814 Annually
B. Credit Reservation: N/A (Tax Exempt Bonds)
1. Date: N/A
2. Estimated Credit Amount Reserved:
C. Carryover Allocation: N/A
1. Date: N/A
2. Credit Amount Allocated: N/A
D. Credit Rate Lock-in Agreement
1. Date: 1/2/97
2. Rate locked-in: 3.66%
E. Form 8609
1. Date: To be Determined
2. Credit Amount Allocated: To be Determined
12. Apartment Complex:
A. Name: Xxxxxxx Estates Phase I
B. Address: 000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000
C. County: New Haven
D. Type of Project: Family
13. 1996 Area Median Income: 3 person very low income $24,450
14. Type of Units:
Unit Basic Utility
Number Square Ft. Rent Allowance
1-Bedroom 36 540-570 $500 $24
2-Bedroom 30 810 $575 $26
3-Bedroom 8 1,110 $625 $29
15. Difference between rents allowed
by FmHA and rents allowed under
the Rent Restriction Test: N/A
16. Rental Assistance: Section 8
17. (Projected) Annual Operating Expenses: $338,435 (includes Replacement
Reserve Funding and Supplemental
Replacement Reserve Accounts)
18. Replacement Reserve Account
A. Initial: $37,000
B. Annual: $16,650
19. Supplemental Replacement Reserve:
A. Annual commencing in 1998: $5,500
20. Tenant Transition Fund:
(from proceeds of Installments)
A. Initial: $232,000
B. Annual: $10,000 (Last year of funding: 2002)
21. Amount of Annual Asset Management Fee
to Boston Capital Communications
Limited Partnership: $3,700
A. Guaranteed Portion of Asset Management Fee: $1,000
22. Amount of Annual Incentive Partnership
Management Fee: $3,700
23. Amount of Total Depreciable
Basis Allocated to Personal
Property: to be determined
24. Completion Date: December 1997
25. Total Capital Contribution of
Investment Partnership: $671,336
26. Schedule of Capital Contributions
First Installment: $550,000
Second Installment: $61,000
Third Installment: $50,000
Fourth Installment: $10,336
27. Fees, Special Distributions and Other Items to be paid from Capital
Contributions
A. Development Fee: $241,999 (total fee)
$27,694 (deferred portion)
B. Special Return of GP Capital N/A
28. Consulting Fee to Boston Capital N/A
Partners, Inc.
29. A. General Partner: Xxxxxxx Estates Phase I of Massachusetts LLC
Attn: Xxxxxxxxxxx Xxxxxxx
Xxxxxxxxx X. Xxxxxxx
Address: Xxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, XX 00000
Telephone Number: (000) 000-0000
30. Developer: (Joint)
A. First Atlantic Housing, Inc.
Attn: Xxxxxxxxxxx X. Xxxxxxx and Xxxxxxxxx X. Xxxxxxx
Address: Xxx Xxxxxx Xxxxx, Xxxxxx, XX 00000
Telephone Number: (000) 000-0000
B. American Housing Preservation, Inc.
000 Xxxxxx Xxxxxx, Xxxxx X, Xxxxxxxx, XX 00000
Telephone Number: (000) 000-0000
31 Ownership Interests Contribution Percentage
Interest
General Partner $398,447 1.0%
Investment Partnership $671,336 98.99%
Special Limited Partner 0.01%
32. Management Agent: Xxxxxxxxx Management Co.
Attn:
Address: 000 Xxxxx Xxxxxx, Xxxxxxx, XX
Telephone Number: (000) 000-0000
Amount of Fee: 5%
33. Builder: Equity Builders, Inc.
Attn: Xxxx Xxxxxx
Address: 000 Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000
Telephone Number: (000) 000-0000
Amount of Compensation: to be determined
Builder's Profit: to be determined
34. Subcontractor: N/A
Attn:
Address:
Telephone Number:
35. Architect: Latrobe/Archimage Architects
Attn: Xxxxxxx Xxxxxx
Address: 00 Xxxxxx Xxxxx, Xxxx, XX 00000
Telephone Number: (000) 000-0000
Amount of Fee:
36. Auditor: Xxxxxxx, Xxxxxx & Xxxxxxxxx
Attn:
Address:
Telephone Number:
37. Tax Return Preparer: Xxxxxxx, Xxxxxx & Xxxxxxxxx
Attn:
Address:
Telephone Number:
38. Federal Taxpayer ID Number: applied for
39. State Housing Credit Agency: Connecticut Housing Finance Authority
40. State Housing Agency LIHTC Project Number: to be determined
41. Operating Deficit Guaranty 3 years--$100,000 cap
42. Guarantor: First Atlantic Housing, Inc., American Housing Preservation
Corp. & Xxxxxxx X. Liberty
cc: Boston Capital Communications Limited Partnership Accounting Department
Exhibit B
Certificate of Operating Partnership and
Operating General Partner Re: Lack of Disqualifications
The Operating Partnership and its Operating General Partner (as
identified
on the Certification and Agreement to which this Certificate is attached as
Exhibit B) hereby represent to you that none of (i) the Operating Partnership,
(ii) any predecessor of the Operating Partnership, (iii) any of the Operating
Partnership's affiliates ("affiliate" meaning a person that controls or is
controlled by, or is under common control with, the Operating Partnership),
(iv)
any sponsor (meaning any person who (1) is directly or indirectly instrumental
in organizing the Operating Partnership or (2) will directly or indirectly
manage or participate in the management of the Operating Partnership or (3)
will
regularly perform, or select the person or entity who will regularly perform,
the primary activities of the Operating Partnership), (v) any officer,
director,
principal or general partner of the Operating Partnership or of any sponsor,
(vi) the officer, director, principal, promoter or general partner of any
Operating General Partner, (vii) any beneficial owner of ten percent (10%) or
more of any class of the equity securities of the Operating Partnership or of
any sponsor (beneficial ownership meaning the power to vote or direct the vote
and/or the power to dispose or direct the disposition of such securities),
(viii) any promoter of the Operating Partnership (meaning any person who,
acting
alone or in conjunction with one or more other persons, directly or indirectly
has taken, is taking or will take the initiative in founding and organizing
the
business of the Operating Partnership or any person who, in connection with
the
founding and organizing of the business or enterprise of the Operating
Partnership, directly or indirectly receives in consideration of services or
property, or both services and property, ten percent (10%) or more of any
class
of securities of the Operating Partnership or ten percent (10%) or more of the
proceeds from the sale of any class of such securities; provided, however, a
person who receives such securities or proceeds either solely as underwriting
commissions or solely in consideration of property shall not be deemed a
promoter if such person does not otherwise take part in founding and
organizing
the enterprise) presently connected with the Operating Partnership in any
capacity:
(1) Has filed a registration statement which is the subject of
any pending proceeding or examination under the securities laws of any
jurisdiction, or which is the subject of a any refusal order or stop order
thereunder entered within five (5) years prior to the date hereof;
(2) Has been convicted of or pleaded nolo contendere to a
misdemeanor or felony or, within the last ten (10) years, been held liable in
a
civil action by final judgment of a court based upon conduct showing moral
turpitude in connection with the offer, purchase or sale of any security,
franchise or commodity (which term, for the purposes of this Certificate shall
hereinafter include commodity futures contracts) or any other aspect of the
securities or commodities business, or involving racketeering, the making of a
false filing or a violation of Sections 1341, 1342 or 1343 of Title 18 of the
United States Code or arising out of the conduct of the business of an issuer,
underwriter, broker, dealer, municipal securities dealer, or investment
adviser,
or involving theft, conversion, misappropriation, fraud, breach of fiduciary
duty, deceit or intentional wrongdoing including, but not limited to, forgery,
embezzlement, obtaining money under false pretenses, larceny fraudulent
conversion or misappropriation of property or conspiracy to defraud, or which
is
a crime involving moral turpitude, or within the last five (5) years of a
misdemeanor or felony which is a criminal violation of statutes designed to
protect consumers against unlawful practices involving insurance, securities,
commodities, real estate, franchises, business opportunities, consumer goods
or
other goods and services;
(3) Is subject to (a) any administrative order, judgment or
decree entered within five (5) years prior to the date hereof entered or
issued
by or procured from a state securities commission or administrator, the
Securities and Exchange Commission ("SEC"), the Commodities Futures Trading
Commission or the U.S. Postal Service, or to (b) any administrative order or
judgment, arising out of the conduct of the business of an underwriter,
broker,
dealer, municipal securities dealer, or investment adviser, or involving
deceit,
theft, fraud or fraudulent conduct, or breach of fiduciary duty, or which is
based upon a state banking, insurance, real estate or securities law or (c)
has
been the subject of any administrative order, judgment or decree in any state
in
which fraud, deceit, or intentional wrongdoing, including, but not limited to,
making untrue statements of material fact or omitting to state material facts,
was found;
(4) Is subject to any pending proceeding in any jurisdiction
relating to the exemption from registration of any security or offering, or to
any order, judgment or decree in which registration violations were found or
which prohibits, denies or revokes the use of any exemption from registration
in
connection with the offer, purchase or sale of securities, or to an SEC
censure
or other order based on a finding of false filing;
(5) Is subject to any order, judgment or decree of any court or
regulatory authority of competent jurisdiction entered within five (5) years
prior to the date hereof, temporarily, preliminarily or permanently
restraining
or enjoining such persons from engaging in or continuing any conduct or
practice
in connection with any aspect of the securities or commodities business or
involving the making of any false filing or arising out of the conduct of the
business of an underwriter, broker, dealer, municipal securities dealer, or
investment adviser, or which restrains or en joins such person from activities
subject to federal or state statutes designed to protect consumers against
unlawful or deceptive practices involving insurance, banking, commodities,
real
estate, franchises, business opportunities, consumer goods and services, or is
subject to a United States Postal Service false representation order entered
within five (5) years prior to the date hereof, or is subject to a temporary
restraining order or preliminary injunction with respect to conduct alleged to
have violated Section 3005 of Title 39 of the United States Code;
(6) Is suspended or expelled from membership in, or suspended or
barred from association with a member of, an exchange registered as a national
securities exchange, an association registered as a national securities
association, or any self-regulatory organization registered pursuant to the
Securities Exchange Act of 1934, or a Canadian securities exchange, or
association or self-regulatory organization operating under the authority of
the
Commodity Futures Trading Commission, or is subject to any currently effective
order or order entered within the past five years of the SEC, the Commodity
Futures Trading Commission or any state securities administrator denying
regis-
tration to, or revoking or suspending the registration of, such person as a
broker-dealer, agent, futures commission merchant, commodity pool operator,
commodity trading adviser or investment adviser or associated person of any of
the foregoing, or prohibiting the transaction of business as a broker-dealer
or
agent;
(7) Has, in any application for registration or in any report
required to be filed with, or in any proceeding before the SEC or any state
securities commission or any regulatory authority willfully made or caused to
be
made any statement which was at the time and in the light of the circumstances
under which it was made false or misleading with respect to any material fact,
or has willfully omitted to state in any such application, report or
proceeding
any material fact which is required to be stated therein or necessary in order
to make the statements made, in the light of the circumstances under which
they
are made, not misleading, or has willfully failed to make any required
amendment
to or supplement to such an application, report or statement in a timely
manner;
(8) Has willfully violated any provision of the Securities Act
of 1933, the Securities Exchange Act of 1934, the Trust Indenture Act of 1939,
the Investment Advisers Act of 1940, the Investment Company Act of 1940, the
Commodity Exchange Act of 1974 or the securities laws of any state, or any
predecessor law, or of any rule or regulation under any of such statutes;
(9) Has willfully aided, abetted, counseled, commanded, induced
or procured the violation by any other person of any of the statutes or rules
or
regulations referred to in subsection (8) hereof;
(10) Has failed reasonably to supervise his agents, if he is a
broker-dealer, or his employees, if he is an investment adviser, but no person
shall be deemed to have failed in such supervision if there have been
established procedures, and a system for applying such procedures, which would
reasonably be expected to prevent and detect, insofar as practicable, any
violation of statutes, rules or orders described in subsection (8) and if such
person has reasonably discharged the duties and obligations incumbent upon him
by reason of such procedures and system without reasonable cause to believe
that
such procedures and system were not being complied with;
(11) Is subject to a currently effective state administrative
order or judgment procured by a state securities administrator within five (5)
years prior to the date hereof or is subject to a currently effective United
States Postal Service fraud order or has engaged in dishonest or unethical
practices in the securities business or has taken unfair advantage of a
customer
or is the subject of sanctions imposed by any state or federal securities
agency
or self-regulatory agency;
(12) Is insolvent, either in the sense that his liabilities
exceed his assets or in the sense that he cannot meet his obligations as they
mature, or is in such financial condition that he cannot continue his business
with safety to his customers, or has not sufficient financial responsibility
to
carry out the obligations incident to his operations or has been adjudged a
bankrupt or made a general assignment for the benefit of creditors; or
(13) Is selling or has sold, or is offering or has offered for
sale, in any state securities through any unregistered agent required to be
registered under the Securities Act of the State or for any broker-dealer or
issuer with knowledge that such broker-dealer or issuer had not or has not
complied with the Securities Act of the State.
If the Operating Partnership is subject to the requirements of Section
12,
14 or 15(d) of the Securities Exchange Act of 1934, then the Operating
Partnership has filed all reports required by those Sections to be filed
during
the twelve (12) calendar months preceding the date hereof (or for such shorter
period that the Operating Partnership was required to file such reports).
