BOSTON CAPITAL TAX CREDIT FUND IV L.P.
_______________________________________
CERTIFICATION AND AGREEMENT
for
MOKAPOKE LIMITED PARTNERSHIP,
A MARYLAND LIMITED PARTNERSHIP
_______________________________________
CERTIFICATION AND AGREEMENT made as of __________ ___, 1996, by
MOKAPOKE LIMITED PARTNERSHIP, a Maryland Limited Partnership (the
"Operating Partnership") and R.T.M. LIMITED PARTNERSHIP, a Maryland
limited partnership, 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") and Xxxxxxxx, Xxxxx &
Xxxxxx 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 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 _________, 1996 (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, Xxxxxxx X. Xxxxxx, Xx., Esq., 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; and
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
Partners hereby agree as follows for the benefit of the Limited
Partners and Xxxxxxxx, Xxxxx & Xxxxxx, Xxxxxxx X. Xxxxxx, Xx., Esq.,
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 Partners
jointly and severally represent, warrant and certify to the Limited
Partners and Xxxxxxxx, Xxxxx & Xxxxxx and Xxxxxxx X. Xxxxxx, Xx.,
Esq., 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 with full power and authority to own the thirty (30) unit rental
housing project intended for rental to elderly and handicapped
individuals located in Pocomoke City, Maryland known as Xxxxxx Manor
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 have 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 their affiliates, any of their predecessors and their
affiliates' predecessors, any of their directors, officers, general
partners and/or beneficial owners of ten per cent (10%) or more of any
class of their 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 them in any capacity.
1.04 Each of the representations and warranties con-
tained 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 Part-
ners 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 Forms 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 responsi-
bility 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 Part-
nership has the right to any proceeds, after payment of all
indebtedness, from the sale, refinancing, or leasing of the Apartment
Complex.
1.13 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, 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 has 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 Xxxxxx'x Home
Administration dated January 6, 1995, 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 None of the partners of the Operating Partnership
is a tax-exempt entity.
1.17 If any shareholder or other affiliate of the
Operating General Partner is a tax-exempt entity and the 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 Agreement (as defined in the
Operating Partnership Agreement) within the meaning of Code Section
42(h)(6) is or shall be in effect and recorded in the appropriate land
evidence records with respect to the building(s) not later than the
end of the taxable year in which any credit is taken with respect to
any building. If not in effect as of the date hereof, the Operating
General Partner agrees 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.
1.21 The Operating Partnership expects to incur, within
a 24-month period, expenditures equal to at least the great of (i)
$3,000 per residential unit or (ii) 10% of the unadjusted basis of the
building(s).
1.22 The amounts payable in development and property
management fees to HAI Management, Inc. and R.T.M., Inc. 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 and rehabilitation of the Apartment Complex.
1.23 For any building(s) not placed in service prior to
December 31, 1995, (i) the Operating Partnership's basis in such
building as of the close of 1995 was more than 10% of the Operating
Partnership's reasonably expected basis in such building as of the
close of calender year 1995 and (ii) the Operating Partnership entered
into a Carryover Allocation agreement with the State of Maryland,
Department of Housing and Community Development, Community Development
Administration no later than December 31, 1995.
1.24 Each of the representations made by the Operating
Partnership in the Low-Income Housing Credit Application dated August
31, 1995 (the "Credit Application") in the Reservation of Federal Low-
Income Housing Tax Credit between the Authority and the Operating
Partnership dated November 21, 1995 (the "Credit Reservation
Agreement") and in the Carryover Allocation Contract between the
Authority and the Operating Partnership dated December 21, 1995 (the
"Carryover Allocation Agreement") is true and correct as of the date
hereof.
1.25 Each of the covenants, agreements, and conditions
contained in the Credit Reservation Contract and the Carryover
Allocation Agreement has been duly performed or satisfied by the
Operating Partnership or its Operating General Partners, as
applicable, to the extent that performance of any such covenant or
agreement or satisfaction of any condition is required on or prior to
the date hereof, and the Operating General Partners have no reason to
believe that covenants, agreements, and conditions required to be
performed or satisfied after the date hereof will not be performed or
satisfied in a timely manner.
1.26 The Operating General Partner has received from
the Agency no notice of default or of withdrawal or cancellation of
the Tax Credit reservation or allocation to the Operating Partnership
as described in the Credit Reservation Contract or the Carryover
Allocation Agreement.
1.27 The Operating Partnership has irrevocably elected
pursuant to Code Section 42 to lock in the applicable Tax Credit rate
prior to placement in service of each building pursuant to the Binding
Agreement and Election Statement dated December 21, 1995, between the
Agency and the Operating Partnership.
1.28 The Operating General Partner will not reduce its
aggregate interest, as Operating General Partners, 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 has or may obtain.
1.29 The Operating General Partner, is on the accrual
method of accounting for tax purposes. Any entity that is related to
the Operating General Partner or to the Operating Partnership, that
will receive a fee from the Operating Partnership, directly or
indirectly, is on the cash 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.
1.30 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.
1.31 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.
1.32 The Operating Partnership will keep active records
and carry out the proposed activity in a manner consistent with
profitable businesses in the same activity.
1.33 The Operating Partnership will have an objective
to carry on businesses for profit and divide the gains therefrom.
1.34 The Operating Partnership may earn a profit,
including profit from appreciation in the value of the Apartment
Complex.
1.35 The Permanent Loan 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 lender.
1.36 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.
1.37 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): Loan with FmHA having an original principal amount of
$1,232.276.50, bearing interest at 7.5% per annum, which rate,
pursuant to the Rental Assistance Agreement is subsidized to 1% per
annum.
1.38 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).
1.39 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.
1.40 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.
1.41 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
Permanent Loan from and after commencement of the Permanent Loan Term,
and the sole recourse of the Lender under the Permanent Loan from and
after commencement of the Permanent Loan Term, with respect to the
principal thereof and interest thereon, shall be to the property
securing the indebtedness.
1.42 In connection with the Operating Partnership's
acquisition of the Apartment Complex, the Operating Partnership
assumed an existing loan to the Permanent Lender in the principal
amount of $1,203,600 (the "Assumed Loan") which loan may constitute a
below market federal loan under Section 42 of the Code. None of the
proceeds of the Assumed Loan was used to fund any of the
rehabilitation expenditures of the Apartment Complex.
1.43 In addition, in order to help finance the
acquisition of the Apartment Complex, the Permanent Lender made a new
loan in the amount of $37,150 to the Operating Partnership (the "New
Loan"), which New Loan may constitute a below market federal loan
under Section 42 of the Code. Pursuant to the requirements of the
Loan Agreement with the Permanent Lender, the proceeds of the New Loan
were used to pay a portion of the purchase price for the Apartment
Complex. None of the proceeds of the New Loan was used to fund any of
the rehabilitation expenditures of the Apartment Complex.
2. Indemnification
2.01 The Operating General Partner (for purposes of
this Section 2.01, 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
Partners, Xxxxxxxx, Xxxxx & Xxxxxx, Xxxxxxx X. Xxxxxx, xx., Esq., and
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 defined in the Operating Partnership
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:
MOKAPOKE LIMITED PARTNERSHIP
By: R.T.M. Limited Partnership, its
General Partner
By: R.T.M., Inc., its General Partner
By: /s/Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: VP
OPERATING GENERAL PARTNER:
R.T.M. Limited Partnership
By: R.T.M., Inc., its General Partner
By: /s/Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: VP
EXHIBIT A
MOKAPOKE LIMITED PARTNERSHIP
FACT SHEET
1.Sources and Uses of Funds
Sources of Funds
1. Perm. Mort. Loan - FmHA $1,232,276
2. Perm. Junior Mort. Loan $ N/A
3. Grant $ N/A
4. General Partners Capital Contributions $69,904
5. Investment Partnership Capital
Contribution $461,322
6. Deferred Development Fee $139,488
$1,902,990
Application of Funds
Total Construction Cost $ 144,000
Soft Costs $1,404,731
Land $ 60,000
Development Fee $ 294,259
$1,902,990
0.Xxxxxxxxxxxx and Permanent Financing
A. Construction Financing: N/A
B. Permanent Financing
1. Lender: FmHA
2. Mortgage Amount: $1,232,276
3. Interest Rate: 7.5% Subsidized to 1%
4. Term: 50 years
3. Permanent Junior Financing: N/A
4. Eligible Basis: $1,894,426
5. Qualified Basis: $1,894,426
6. GP Capital Contribution: $69,904
7. Type of Credit: New Construction/Rehabilitation (9%)
Acquisition (3%)
8. Rent-up Schedule:
100% by April, 1996
9. Projected Credit to the
Investment Partnership (99%):
A. $58,643 for 1996,
B. $78,190 per annum for each of the years 1996 through 2005, and
C. $19,548 for 2006.
10. Total Projected Credit to
the Operating Partnership
(100%):
A. $59,235 for 1996,
B. $78,980 per annum for each of the years 1997 through 2005,
and
C. $19,745 for 2006.
11. Tax Credit Approval:
A. Application:
1. Date: August 31, 1995
2. Credit Amount Requested: $78,972
B. Credit Reservation:
1. Date: November 21, 1995
2. Credit Amount Reserved: $78,980
C. Carryover Allocation:
1. Date: December 21, 1995
2. Credit Amount Allocated: $78,980
D. Credit Rate Lock-in Agreement
1. Date:
2. Rate locked-in:
E. Form 8609
1. Date: To be Determined
2. Credit Amount Allocated: To be Determined
12. Apartment Complex:
A. Name: Xxxxxx Manor Apartments
B. Address: Linden Avenue, Pocomoke City, Maryland
C. County: Worcester
D. Type of Project: 5 Buildings containing 30 low-income
units (one of which is the on-site manager's unit)
13. 1994 Area Median Income: $38,200
14. Type of Units:
Unit Basic Utility
Number Square Ft. Rent Allowance
1-Bedroom 30 627 $375 $55
2-Bedroom 0 _____ $_____ $_____
3-Bedroom 0 _____ $_____ $_____
4-Bedroom 0 _____ $_____ $_____
15. Difference between rents allowed
by FmHA and rents allowed under
the Rent Restriction Test: N/A
16. Rental Assistance: 29 units
17. Annual Operating Expenses: $63,304 (1996)
18. Replacement Reserve Account
A. Annual: $124,075
B. Total: $ 12,408
19. Operating Reserve Account: N/A
(from proceeds of Second Installment)
20. Amount of Annual Reporting Fee
to Boston Capital Communications
Limited Partnership: $1,000
21. Amount of Annual Partnership
Management Fee: $1,000
22. Amount of Total Depreciable
Basis Allocated to Personal
Property: $48,262
23. Completion Date: April, 1996
24. Total Capital Contribution of
Investment Partnership: $
$461,322
25. Schedule of Capital Contributions:
A. $306,551 upon the latest to occur of:
(i) Admission Date,
(ii) Tax Credit Set Aside,
(iii) Receipt by Boston Capital of approval by Xxxxxxx,
Xxxxxx & Xxxxxxxxx of a compliance of a minimum
of 20% of the leases in the Apartment Complex,
(iv) Permanent Mortgage Loan Commitment, or
(v) Receipt of an estoppel certificate and consent to
Syndication from the Permanent Lender in a form
acceptable to BCTC 94
B. $43,793* upon the latest to occur of:
(i) Substantial Completion,
(ii) Cost Certification,
(iii) Receipt of Satisfactory Title Policy,
(iv) Compliance with due diligence requirements,
(v) Receipt of release of liens from the Contractor,
(vi) Satisfaction of conditions of First Installment
*less any interest due on the Boston Capital Loan
C. $78,828 upon the latest to occur of
(i) State Designation
(ii) Initial 100% Occupancy Date,
(iii) Final Closing,
(iv) Breakeven Point, or
(v) Satisfaction of conditions of First and Second
Installments
D. $32,150 upon later of (i) Breakeven Confirmation or (ii)
Satisfaction of conditions of First, Second and Third
Installments
26. Fees, Special Distributions and Other Items to be paid from
Capital Contributions
A. Development Fee: $294,259*
*of which app. $139,488 is
deferred
B. Special Return of GP Capital
27. Consulting Fee to Boston CapitalN/A
Partners, Inc.
28. Operating General Partner:
R.T.M. Limited Partnership
0000 Xxxx-Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
(000) 000-0000
29. Developer: R.T.M., Inc.
Address: See above
Telephone Number: ( )
30. Ownership Interests
Normal Capital Cash
Operations Transactions Flow
Operating General
Partner: 1% 49.00% 90.00%
Investment Partnership: 99% 51.00% 10.00%
Special Limited Partner: 0% 0.00% 0.00%
31. Management Agent:HAI Management, Inc.
Contact Person: Xxxxxx Xxxxx
Address: 1 0000 Xxx Xxxxxxxx Xxxx
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Telephone Number: (000) 000-0000
Amount of Fee: No more than 10% of base rent collected
32. Builder: Unit Services, Inc.
Address: 00000 Xxx Xxxxxxxx Xxxx
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Telephone Number: (000) 000-0000
Amount of Compensation: $144,000
Builder's Profit: $10,676
33. Subcontractor: N/A
Address:
34. Architect: N/A
Address:
Amount of Fee:
35. Auditor:Xxxxxxx, Xxxxxx & Xxxxxxxxx
Contact Person: Xxxxx Xxxxxxx
Address: 0000 Xxxx Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Telephone Number: (000)000-0000
36. Tax Return Preparer: Same as Number 36
Contact Persons:
Address:
Telephone Number:
37. Federal Taxpayer ID Number: 00-0000000
38. State Housing Credit Agency: State of Maryland, Department of
Housing and Community Development, Community Development
Administration
39. State Housing Agency LIHTC Number:192
40. Operating Deficit Guaranty The General Partner shall be
obligated to make Subordinated Loans to the Partnership to cover
debtservice, operating expenses and the Replacement Reserve Fund to
the extent these exceed available operating income.
41. Guarantor(s): Xxxxx Xxxxxxxx
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 Amended and Restated Certification and Agreement to
which this Certificate is attached as Exhibit B) hereby represent to you
that neither (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 Partners,
(vii) any beneficial owner of ten per cent 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 per cent or more of any class of securities of
the Operating Partnership or ten per cent 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 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 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 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 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 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 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 Xxxxx 00, Xxxxxx
Xxxxxx 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 admini-
strative order or judgment procured by a state securities administrator
within five 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 Maryland Securities Act of 1972, as
amended (the "Maryland Act") or for any broker-dealer or issuer with
knowledge that such broker-dealer or issuer had not or has not complied
with the Maryland Act.
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 12 calendar months preceding the date hereof (or for
such shorter period that the Operating Partnership was required to file
such reports).
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