BOSTON CAPITAL CORPORATE TAX CREDIT FUND,
A LIMITED PARTNERSHIP
AND
BOSTON CAPITAL TAX CREDIT FUND IV L.P.
_______________________________________
CERTIFICATION AND AGREEMENT
for
ELM STREET ASSOCIATES, L.P.
_______________________________________
CERTIFICATION AND AGREEMENT made as of __________ ___, 1995, by
ELM STREET ASSOCIATES, L.P., a New York limited partnership (the
"Operating Partnership"); and PUNT CORPORATION, a New York corporation
(the "Operating General Partner"); for the benefit of BOSTON CAPITAL
CORPORATE TAX CREDIT FUND, A LIMITED PARTNERSHIP, a Massachusetts
limited partnership, BOSTON CAPITAL TAX CREDIT FUND IV L.P., a
Delaware limited partnership (collectively, the "Investment
Partnership"), BCCC, INC., a Massachusetts 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 _________, 1995 (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, Law Offices of Xxxxxx X. Xxxxxxxxx, 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
Partner hereby agree as follows for the benefit of the Limited
Partners and Xxxxxxxx, Xxxxx & Xxxxxx, Law Offices of Xxxxxx X.
Xxxxxxxxx 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 and Xxxxxxxx, Xxxxx & Xxxxxx and Law Offices of Xxxxxx X.
Xxxxxxxxx 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 Elm
Street 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 has 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 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 based
on environmental and hazardouse waste assessments of the Apartment
Complex completed on behalf of the Operating General Partner, 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 Lane Appraisals,
Inc., dated December 7, 1993, 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 The Operating General Partner is a taxable
corporation, the sole shareholder of which is Xxxxxxx X. Xxxxxxxx. 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 Commitment (as defined in the
Operating Partnership Agreement) within the meaning of Code Section
42(h)(6) 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 greater 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 Jobco Management Inc. and the Operating General
Partner 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.
1.23 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 will be 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
will enter into a Carryover Allocation agreement with the State of New
York, Division of Housing and Community Renewal no later than December
31, 1995.
1.24 Each of the representations made by the Operating
General Partner in the Carryover Allocation Agreement between the
Agency and the Operating Partnership dated as of April 28, 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 Carryover Allocation Agreement has been duly
performed or satisfied by the Operating Partnership or its Operating
General Partner, 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
Partner has 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 Carryover Allocation Agreement.
1.27 The Operating Partnership has not irrevocably
elect pursuant to Code Section 42 to lock in the applicable Tax Credit
rate prior to placement in service of each building.
1.28 At the time the Limited Partners are admitted into
the Partnership, the Operating General Partner will have an aggregate
net worth calculated in accordance with generally accepted accounting
principals but not including the value of any equity or debt interest
such Operating General Partner has in the Partnership, equal to at
least ten percent (10%) of the Capital Contributions to the
Partnership.
1.29 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 has or may obtain.
1.30 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.
1.31 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.
1.32 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.
1.33 The Operating Partnership will keep active records
and carry out the proposed activity in a manner consistent with
profitable businesses in the same activity.
1.34 The Operating Partnership will have an objective
to carry on businesses for profit and divide the gains therefrom.
1.35 The Operating Partnership may earn a profit,
including profit from appreciation in the value of the Apartment
Complex.
1.36 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 lender.
1.37 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.
1.38 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): 10 year deferred and forgiven loan in the amount of
$600,000 from Yonkers Community Development Administration (the "HOME
Grant").
1.39 The HOME Grant was allocated to the Partnership
for the purpose of providing the Partnership with financing to acquire
the land and buildings comprising the Project. The entire amount of
the HOME Grant was used solely for acquisition of the land and
buildings comprising the Project and certain other acquisition related
expenses.
1.39 The Project will not receive moderate rehabili-
tation 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).
1.40 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.
1.41 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.
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 his representations, warranties or
covenants to such Indemnified Party or any such of its officers,
directors, employees or controlling persons under this Amended and
Restated 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, Law Offices of Xxxxxx X. Xxxxxxxxx
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:
ELM STREET ASSOCIATES, L.P.
By: PUNT CORPORATION
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: President
OPERATING GENERAL PARTNER:
PUNT CORPORATION
By: /s/Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: President
EXHIBIT A
ELM STREET ASSOCIATES L.P.
FACT SHEET
1. Sources and Uses of Funds
Sources of Funds
1. Perm. Mort. Loan - The Community
Preservation Corporation $1,087,000
2. Perm. Junior Mort. Loan $ 400,000
3. Grant - Yonkers Community Development $ 600,000
4. General Partners Capital Contributions $ 100
5. Investment Partnership Capital Contribution $1,633,560
6. Deferred Development Fee Obligation $ 127,860
$3,848,520
Application of Funds
Total Construction Cost $2,039,500
Soft Costs $ 620,000
Land $ 727,500
Development Fee $ 461,520
$3,848,520
2. Construction and Permanent Senior Financing
A. Lender: The Community Preservation Corporation
B. Mortgage Amount: $1,400,000
C. Note Date: September 7, 1994
D. Interest Rate: Floating
E. Term: 18 months
3. Construction and Permanent Junior Financing
A. Lender: City of Yonkers, New York, acting through its
Bureau of Community Development
B. Mortgage Amount: $1,125,000
C. Note Date: December 30, 1993, amended December ___, 1995
D. Interest Rate: 1% originally, AFR interest following
conversion to permanent financing facility
E. Term: 30 years
4. Eligible Basis: $3,015,853
5. Qualified Basis: $3,920,609
6. GP Capital Contribution: $100
7. Type of Credit: Acquisition and Rehabilitation (9%)
8. Rent-up Schedule:
100% by December 1996
10. Projected Credit to the
Investment Partnership (99%):
A. $0 for 1995,
B. $259,531 for 1996
C. $297,011 per annum for each of the years 1997 through 2005,
and
D. $37,480 for 2006.
11. Total Projected Credit to the Operating Partnership
(100%):
A. $0 for 1995,
B. $262,152 for 1996,
C. $300,011 per annum for each of the years 1997 through 2005,
and
D. $37,859 for 2006.
12. Tax Credit Approval:
A. Application:
1. Date:
2. Credit Amount Requested:
B. Credit Reservation (Carryover Allocation Agreement):
1. Date: April 28, 1995
2. Credit Amount Reserved: $300,011
C. Carryover Allocation: N/A
1. Date:
2. Credit Amount Allocated: $300,011
D. Credit Rate Lock-in Agreement
1. Date: Placement in Service
2. Rate locked-in: To be determined
E. Form 8609
1. Date: To be Determined
2. Credit Amount Allocated: To be Determined
13. Apartment Complex:
A. Name: Elm Street Apartments
B. Address: 125, 129, 139, 140, 141 and 000 Xxx Xxxxxx,
Xxxxxxx, Xxx Xxxx
C. County:
D. Type of Project: Single Family/Rehab.
14. 1994 Area Median Income: $65,400
15. Type of Apartments:
Unit Basic Utilit
y
Number Square Ft. Rent Allowance
1-Bedroom 2 _____ $579
$20
2-Bedroom 5 _____ $700
$25
2-Bedroom 25 _____ $777 $25
3-Bedroom 3 _____ $943 $30
16. Difference between rents allowed
by FmHA and rents allowed under
the Rent Restriction Test: N/A
17. Rental Assistance: None
18. Annual Operating Expenses: $138,000 (Year 2)
19. Replacement Reserve Account
A. Annual: $ 8,960
B. Total: $50,000
20. Operating Reserve Account:$100,000
(from proceeds of Second Installment)
21. Amount of Annual Asset Management Fee
to Boston Capital Communications
Limited Partnership: $5,000
22. Amount of Annual Partnership
Management Fee: $5,000
23. Amount of Total Depreciable
Basis Allocated to Personal
Property: $70,000
24. Completion Date: January, 1996
25. Total Capital Contribution of
Investment Partnership: $1,633,560
26. Schedule of Capital Contributions:
A. $100 upon the latest to occur of:
(i) Admission Date,
(ii) Tax Credit Set Aside,
(iii) Initial Closing
(iv) Permanent Mortgage Loan Commitment
B. $1,225,070 (plus amount equal to all accrued interest on
Bridge Loan) upon the latest to occur of:
(i) Receipt of Satisfactory Title Policy
(ii) Substantial Completion,
(iii) Cost Certification, or
(iv) Satisfaction of conditions of First Installment
C. $383,390 upon the latest to occur of
(i) Initial 100% Occupancy Date,
(ii) Permanent Mortgage Commencement,
(iii) Rental Achievement,
(iv) State Designation, or
(v) Satisfaction of conditions of First and Second
Installments
D. $25,000 upon later of (i) receipt of Federal Tax Return 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: $408,468*
(*of which $191,715 is
deferred)
B. Special Return of GP Capital N/A
27. Consulting Fee to Boston Capital N/A
Partners, Inc.
28. Operating General Partner:Punt Corporation
Address: 000 Xxxxxxxx Xxxxxxxxx
Xxxxx Xxxx, XX 00000
Telephone Number: (000) 000-0000
29. Developer: Punt Corporation
Address: 000 Xxxxxxxx Xxxxxxxxx
Xxxxx Xxxx, XX 00000
Telephone Number: (000) 000-0000
30. Ownership Interests
Normal Capital Cash
Operations Transactions
Flow
Operating General
Partner: 1% 70.00% 75.00%
Investment Partnership: 99% 30.00% 25.00%
Special Limited Partner: 0% 0.00% 0.00%
31. Management Agent:Jobco Management Inc.
Contact Person: Xxxxxxx X. Xxxxxxxx
Address: 000 Xxxxxxxx Xxxxxxxxx
Xxxxx Xxxx, XX 00000
Telephone Number: (000) 000-0000
Amount of Fee: 6% of gross rental receipts
32. Builder: Jobco Realty & Construction Co., Inc.
Address: same as Management Agent
Amount of Compensation: 1,875,000, plus approved extras
Builder's Profit: 10%
33. Architect:Tast & Clemency
Address: 00 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Amount of Fee: $50,000
34. Auditor:Xxxxxxxxx, Xxxxxxx & Xxxxxxx
Contact Person: Xxx Sotorio
Address: 0 Xxxx Xxxxx
Xxx Xxxx, XX 00000
Telephone Number: (000) 000-0000
35. Tax Return Preparer: Same as Auditor
Contact Persons:
Address:
Telephone Number:
36. Federal Taxpayer ID Number: 00-0000000
37. State Housing Credit Agency: State of New York,
Division of Housing
and Community Rental
38. State Housing Agency LIHTC Number:93-N-01100/93001084
39. Operating Deficit Guaranty The General Partner
shall be obligated to
make Subordinated
Loans to the Partner-
ship to cover debt
service, operating
expenses and the
Replacement Reserve
Fund to the extent
these exceed available
operating income.
40. Guarantor(s): Xxxxxxx X. 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 Partner, (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 registration 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, com-
manded, 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 admini-
strator 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 New York Securities Act of
1972, as amended (the "New York Act") or for any broker-dealer or
issuer with knowledge that such broker- dealer or issuer had not or
has not complied with the New York 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).
