BOSTON CAPITAL TAX CREDIT FUND IV L.P.
_______________________________________
CERTIFICATION AND AGREEMENT
for
ROXBURY VETERANS HOUSING LIMITED PARTNERSHIP
_______________________________________
CERTIFICATION AND AGREEMENT made as of December31,1996, by
ROXBURY VETERANS HOUSING LIMITED PARTNERSHIP, a Massachusetts limited
partnership (the "Operating Partnership"); Roxbury Veterans
Enterprise, Inc., as General Partner (the "General Partner") for the
benefit of BOSTON CAPITAL TAX CREDIT FUND IV L.P., a Delaware limited
partnership (the "Investment Partner"), BCTC 94, INC., a Delaware
corporation (the "Special Limited Partner") and Xxxxxxxx, Xxxxx &
Xxxxxx and certain other persons or entities described herein. The
Investment Partner 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 members thereof pursuant to the Amended and
Restated Partnership Agreement of Limited Partnership of the Operating
Partnership dated as of December31, 1996 (the "Partnership
Agreement"), in accordance with which the Special Limited Partner will
make a capital contribution of $10 to the Operating Partnership and
the Investment Partner 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, XxXxxxxx & Xxxxxxx, P.C., as counsel for
the Operating Partnership and the General Partner, will rely on 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 Partnership Agreement and become members 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 General Partner hereby agree as follows
for the benefit of the Limited Partners and Xxxxxxxx, Xxxxx & Xxxxxx
and certain other persons hereinafter described.
1. Representations, Warranties and Covenants of the
Operating Partnership and the General Partners.
The Operating Partnership and the General Partner jointly
and severally represent, warrant and certify to the Limited Partners
and Xxxxxxxx, Xxxxx & Xxxxxx 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 Highland
House (the "Project") and conduct its business; the Operating
Partnership and the 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 or the 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 General Partner
is bound or any law, regulation, judgment, decree or order applicable
to the Operating Partnership, the General Partner any of their
respective properties; this Certification and Agreement constitutes
the valid and binding agreement of the Operating Partnership and the
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 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 General Partner previously delivered, there has
been no material adverse change in the financial position of said
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 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 each of the Operating Partnership, the 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 contained
in the 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 General Partner contained in the
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 members of the Operating Partnership contained in the Partnership
Agreement have been satisfied.
1.07 No default has occurred and is continuing under the
Partnership Agreement or any of the Project Documents (as such term is
defined in the Partnership Agreement) for the Operating Partnership.
1.08 The General Partner agrees to take all actions
necessary to claim the Projected Credit, including, without
limitation, satisfying the conditions to the Carryover Allocation
Agreement with the Agency dated as of December 30, 1994 (the
"Carryover Allocation Agreement"), placing the Project in service no
later than December 31, 1996, filing of Forms 8609 with the Internal
Revenue Service, incurring the requisite threshold amount of
rehabilitation expenses consisting of the greater of (i) $3,000 per
unit or (ii) 10% of the adjusted basis in the project as of the first
day of the twenty-four month period and providing to Boston Capital an
accountant"s certification as to items (i) and (ii) herein.
1.09 No person or entity other than the Operating
Partnership holds any equity interest in the Project.
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 Project.
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 Project is destroyed or condemned
or there is a diminution in the value of the Project.
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 Project.
1.13 The General Partner is not related in any manner to
the Limited Partners, nor is the General Partner acting as an agent of
the Limited Partners.
1.14 To the best of the undersigned's current knowledge
after due inquiry, and except as expressly disclosed to the Limited
Partners of which the Limited Partners have actual knowledge, the
Project 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 Project is not
affected by the presence of oil, toxic substances, or other pollutants
that could be a detriment to the Project except for those conditions
expressly disclosed to the Limited Partners and of which the Limited
Partners have actual knowledge 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 General
Partner has received any notice from any source whatsoever of the
existence of any such hazardous condition relating to the Project or
of any violation of any local, state or federal law or regulation with
respect to the Project except for those notices expressly disclosed to
the Limited Partners of which the Limited Partners have actual
knowledge.
1.15 At the time of completion of rehabilitation of the
Project, the Project will 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 Project is not affected by the presence of oil, toxic
substances, or other pollutants that could be a detriment to the
Project nor will 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 shall be present or continuing. Neither the
Operating Partnership nor the General Partner shall be in receipt of
any notice from any source whatsoever of the existence of any such
hazardous condition relating to the Project or of any violation of any
local, state or federal law or regulation with respect to the Project
which such hazardous condition or violation has not been cured.
1.16 To the best of the undersigned's current knowledge
of property values in the area where the Project is located, and based
upon the level of permanent debt financing for the Project reflect in
Exhibit A, and that certain operating Pro-Forma dated as of December
31, 1996, attached as Exhibit A-1 (the "Pro-Forma"), it is expected
that the fair market value of the Operating Partnership's building(s)
at the end of each year taking into account value attributable to a
reservation of low income housing tax credits and/or below market
financing, as well as the use restrictions imposed on the Project,
will be greater than the total amount of the Operating Partnership's
liabilities, including accrued interest on such liabilities.
1.17 The General Partner of the Operating Partnership is
not a tax-exempt entity.
1.18 If any shareholder or other affiliate of the General
Partner is a tax-exempt entity and the 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 Project will be treated as "tax exempt use property" as
defined in Code Section 168(h).
1.19 All representations made by the General Partner in
the Partnership Agreement are incorporated herein by reference and are
confirmed.
1.20 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) and the
projection of income and expenses reflected in the pro-forma attached as
Exhibit A-1.
1.21 An Extended Use Commitment (as defined in the
Partnership Agreement) within the meaning of Code Section 42(h)(6)
will be in effect 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.
1.22 The Project is located in a qualified census tract
which qualifies the Project for the 130% basis boost pursuant to Code
Section 42. The Project meets all other requirements for satisfying
the 130% basis boost, and any HOME funding being loaned to the
Partnership bears interest at no less than the "applicable federal
rate" so that it does not meet the definition of a "below market
federal loan" under Code Section 42 and will therefore not prohibit
the Partnership from taking advantage of the 130% basis boost.
1.23 The amounts payable in development and property
management fees to Veterans Benefits Clearinghouse Development
Corporation and Gibraltar Associates, respectively, 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 Project.
1.24 For any building(s) not placed in service prior to
December 31, 1994, (i) the Operating Partnership's basis in such
building (including its respective lot) as of the close of 1994 was at
least 10% of the Operating Partnership's reasonably expected basis in
such building as of the close of calendar year 1996 and (ii) the
Operating Partnership entered into a Carryover Allocation Agreement
with the Agency dated as of December 30, 1994.
1.25 The Operating Partnership shall elect to defer the
start of the Credit Period pursuant to Code Section 42(f) until 1997
and include in eligible basis those additional rehabilitation expenses
incurred in the first year of the Credit Period.
1.26 Each of the representations made by the General
Partner in the Conditional Reservation of Low Income Housing Tax
Credits between the Agency and the Operating Partnership dated as of
November 9, 1996 (the "Credit Reservation Agreement") is true and
correct as of the date hereof.
1.27 Each of the covenants, agreements, and conditions
contained in the Credit Reservation Agreement has been duly performed
or satisfied by the Operating Partnership or its 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 General Partner has no reason to believe that
the covenants, agreements, and conditions of such Credit Reservation
Agreement and the Carryover Agreement required to be performed or
satisfied after the date hereof will not be performed or satisfied in
a timely manner.
1.28 The General Partner has not received from the Agency
any 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 Agreement.
1.29 At the time the Limited Partners are admitted into
the Operating Partnership, the 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 General Partner as in the Operating Partnership, equal to at
least ten percent (10%) of the Capital Contributions to the Operating
Partnership, or in the alternative the General Partner shall at the
time the Limited Partners are admitted into the Operating Partnership,
satisfy at least one of the requirements set forth in the last
sentence of Section 4.07 of Internal Revenue Service Procedure 89-12,
as the same may be modified from time to time.
1.30 The General Partner will not reduce its aggregate
interest, as General Partner, in the Operating Partnership below 1% of
all material items of the Operating Partnership income, gain, loss,
deduction, and credit.
1.31 The General Partner and any entity that is related
to such 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.
1.32 Veterans Benefits Clearinghouse Development
Corporation is the developer of the Project pursuant to the
Development Agreement by and between the Operating Partnership and
Veterans Benefits Clearinghouse Development Corporation dated as of
December 31, 1996 (the "Development Agreement"), and is on a cash-
basis method of accounting for tax purposes.
1.33 The 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.
1.34 The development and leasing activity in which the
Operating Partnership will engage will not contain any material
personal or recreational benefit for the members of the Operating
Partnership.
1.35 The Operating Partnership will keep active records
and carry out the proposed activity in a manner consistent with
profitable businesses in the same activity.
1.36 The Operating Partnership will have an objective to
carry on business for profit and divide the gains therefrom.
1.37 The Operating Partnership may earn a profit,
including profit from appreciation in the value of the Project.
1.38 The Mortgage Loans and all other debt financing of
the Project requires the noncontingent repayment of principal on or
before a fixed maturity date, and will be considered and treated as a
loans by Lenders.
1.39 None of the Operating Partnership's Lenders is a
party from whom the Operating Partnership acquired any portion of the
Project, and none of the financing was issued in exchange for any
portion of the Project. None of the Operating Partnership's Lenders
will receive a fee with respect to the Operating Partnership's
investment in the Apartment.
1.40 Following is a description of any and all existing
or proposed financing of the Project that involves any direct or
indirect grant or federal subsidy (including without limitation
federal grants, below-market interest rate loans, and tax-exempt
bonds):
$600,000 Loan from Fleet National Bank, as agent for the
city of Boston acting by and through its Public Facilities Commission
by the Director of the Public Facilities Department ("PFD") and
allocated as follows:
a) $300,000 from PFD"s Community Development Block
Grant funds at one percent (1%) per annum interest
rate; and
b) $300,000 from Commonwealth of Massachusetts
Department of Housing and Community Development"s
HOME funds at seven and one-half (7-1/2%) per annum
interest rate.
1.41 The Project will not receive moderate rehabilitation
assistance under Section 8(e)(2) of the United States Housing Act of
1937 other than that pursuant to the Xxxxxxx X. XxXxxxxx Homeless
Assistance Act of 1988.
1.42 If the Project is a scattered site project within
the meaning of Code Section 42, 100% of the rental units in the
Project will be rent-restricted within the meaning of Code Section 42.
1.43 All Units in the Project are to be of equal quality
and all Project amenities are to be made available to all tenants on a
comparable basis without separate fees.
2. Indemnification
2.01 The 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 and from any and all claims, suits, actions,
debts, damages, costs, charges, losses, obligations, judgments, and
expenses, of any nature whatsoever, suffered or incurred by the
Investment Partner, under or on
account of the Hazardous Waste Laws or any similar laws or
regulations, including the assertion of any lien thereunder, except
for claims, suits, actions, debts, damages, costs, charges, losses,
obligations, judgments, or expenses arising from the Investment
Partner's own negligence, misconduct or fraud. For purposes of this
Certification and Agreement, "Hazardous Substances" means oil,
petroleum or chemical liquids or solids, liquid or gaseous products or
any hazardous wastes or hazardous substances, as those terms are used
in the Hazardous Waste Laws; and "Hazardous Waste Laws" means the
Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, and any other federal, state or local law governing Hazardous
Substances, as such laws may be amended from time to time.
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 herein 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 herein. 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 General Partner,
Xxxxxxxx, Xxxxx & Xxxxxx 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 Partnership Agreement but not
otherwise defined herein shall have the meanings given them in the
Partnership Agreement.
IN WITNESS WHEREOF, the undersigned have set their hands
and seals as of the date first above written.
Operating Partnership:
ROXBURY VETERANS HOUSING LIMITED
PARTNERSHIP
By: Roxbury Veterans Enterprise,
Inc.,
its general partner
By:/s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Treasurer
EXHIBIT A
ROXBURY VETERANS HOUSING LIMITED PARTNERSHIP
FACT SHEET
1. Projected Sources and Uses of Funds
Sources of Funds
Perm. First Mort. Loan - BBOC 115,700.00
Perm. Second Mort. Loan
CDBBG 300,000.00
HOME 300,000.00
Deferred Development Fee
Obligation 1,408.00
Capital Contributions:
General Partner 100.00
Investment Partner 586,492.00
$1,303,700.00
Application of Funds
Total Construction Cost 675,000.00
Architectural Fees 60,000.00
Survey & Permits/Engineering 10,250.00
Land Cost or Value 27,500.00
Acquisition/Building 247,500.00
Profit Overhead & Expenses 36,156.00
Interest During construction 500.00
Contribution Loan Fees & Title 3,027.00
Legal/Accounting 60,142.00
Marketing/Rent Up 5,000.00
Construction and Soft Costs Contingency 42,500.00
Constr. Insurance 10,000.00
Taxes During Construction 5,000.00
Perm. Loan Fees & Title 6,597.00
Performance Bond Premium 7,910.00
Environmental & Appraisal 5,000.00
Operating Reserve 52,118.00
Development Fee 50,000.00
$1,303,700.00
2. Construction/Permanent Financing
(i) First Mortgage
A. Lender: The Boston Bank of Commerce ("BBOC")
B. Mortgage Amount $115,700.00
C. Note Date: December 31, 1996
D. Interest Rate: Prime Rate Plus two (2%) percent per annum
E. Term: 180 months
(ii) Second Mortgage
A. Lender: Fleet National Bank as agent for the City of Boston
acting by and through its Public Facilities Commission by the
Director of the Public Facilities Department
B. Mortgage Amount: $300,000.00 from HOME Funds, $300,000.00 from
CDBBG Funds
C. Note Date: December 31, 1996
D. Interest Rate: 1% on the CDBBG Funds; 7.5% on the Home Funds
E. Term: 360 months
3 Eligible Basis: $914,985.00
4. Qualified Basis: $1,204,481.00
5. General Partner Capital Contribution: $100
6. Type of Credit:
7. Rent-up Schedule:
50% by March 31, 1997 7 units
50% by April 30, 1997 7 units
8. Projected Credit to the Investment Partner (99%):
A. $80,875.00 for 1997
B. $98,736.00 per annum for each of the years 1998 through 2006
C. $17,044.00 for 2007
9. Tax Credit Approval:
A. Application:
1. Date: September , 1994
2. Credit Amount Requested: $572,670 (annual)
B. Credit Reservation (Conditional)
1. Date: November 1, 1994
2. Credit Amount Reserved: $98,736.00 (annual)
C. Carryover Allocation:
1. Date: December 31, 1994
2. Credit Amount Allocated: $98,736.00
D. Credit Rate Lock-in Agreement
1. Date: December __, 1994
2. Rate locked-in: _____% (list the Rate)
E. Form 8609
1. Date: Post Construction
2. Credit Amount Allocated:
10. Project:
A. Name: Highland House
B. Address: 250 and 000 Xxxxxx Xxxxxx, Xxxxxx (Roxbury),
Massachusetts
C. County: Suffolk
D. Type of Project: Fourteen (14) efficiency-type single-room-
occupancy (SRO) units
11. 1994 Boston Metropolitan Area (Suffolk County) Median Income:
$51,300
12. Type of Apartments: Singe Room Occupancy
Unit Basic Utility Total Monthly
Number Square Ft. Rent Allowance Rent
Single Room 14 Approx. 259 535.00
$53
5.00
13. Difference between rents allowed
by FMHA and rents allowed under
the Rent Restriction Test: ____________________
14. Rental Assistance: Xxxxxxx X. XxXxxxxx Homeless Assistance Act
of 1988
15. Annual Operating Expenses: $71,990.00 (1998 first full year)
16. Replacement Reserve Account: $300/unit = $4,200.00
17. Operating Reserve Account: $ 52,118.00
18. Amount of Annual Asset Management Fee to Boston Capital
Communications Limited Partnership: $1,500.00
19. Amount of Annual Incentive Partnership Management Fee:
$1,500.00
20. Amount of Total Depreciable Basis Allocated to Personal
Property: $23,900.00
21. Completion Date: April 30, 1997
22. Total Capital Contribution of Investment Partner: $586,492.00
23. Schedule of Capital Contributions:
A. $351,895.00 on latest to occur of:
(i) Tax Credit Set Aside,
(ii) Initial Closing,
(iii) Closing of Construction Mortgage Loan,
(iv) Permanent Mortgage Loan Commitment,
(v) Admission Date, or
(vi) Receipt of Accountant Certification re: Preservation
of Tax Credits and Tax Credit Carryover Allocation
B. $58,649.00 on the latest to occur of:
(i) 50% Completion Date,
(ii) Receipt of updated title insurance policy,
(v) Compliance with due diligence recommendations,
(vi) Receipt of payoff letter from contractor,
(vii) Receipt of estoppel letter from lender, or
(viii) Satisfaction of all prior conditions.
C. $79,176.00 on latest to occur of:
(i) Substantial Completion,
(ii) Satisfaction of all prior conditions.
D. $82,109.00 on the latest to occur of:
(i) Initial 95% Occupancy Date,
(ii) Permanent Mortgage Commencement,
(iii) Rental Achievement,
(iv) Cost Certification,
(v) State Designation,
(vi) Satisfaction of all prior conditions.
E. $14,663.00 on the latest to occur of:
(i) Receipt of tax return and audited financial,
statements for the year in which rental achievement
occurs, or
(ii) Satisfaction of all prior conditions.
24. Fees, Special Distributions and Other Items to be paid from
Capital Contributions
A. Development Fee: $50,000 ($1,408.00 of which is a
Deferred Development Fee)
B. Special Return of General Partner Capital N/A
25. Consulting Fee to Boston Capital Partners, Inc. N/A
26. General Partner: Roxbury Veterans Enterprise, Inc.
Address: 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone Number: (000) 000-0000
27. Developer: Veterans Benefits Clearinghouse Development
Corporation
Contact Person: Xxxxxx Xxxxxx
Address: 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone Number: (000) 000-0000
28. Ownership Interests
Operating
Tax Credit Capital
Cash
Allocations
Transactions Flow
General Partner: 10.00% 50.00% 50.00%
Investment Partner: 99.00% 50.00% 50.00%
Special Limited Partner: 0.00% 0.00% 0.00%
29. Management Agent: Gibraltar Associates, Inc.
Contact Person: Xxxxxxx Xxxxxx
Address: 00X Xxxxxxx Xxxxxx
Xxxxxxx, XX
Telephone Number: (000) 000-0000
Amount of Fee: Maximum of 6% of Gross Receipts
30. Builder: CWC Builders, Inc.
Contact Person: Xxxxx Xxxxxxxxx
Address: 0 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone Number: (000) 000-0000
Amount of Compensation: Contract sum of $675,000.00 a subject
to additions and deductions as provided in the Contract
Documents
Builder's Profit: $0.00
Builder's Overhead: $36,156.00
31. Architect: Chisolm Washington Architect, Inc.
Contact Person: Xxxxxxx Xxxxxxxxxx, AIA
Address: 000 Xxxxxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX
Telephone Number: (000) 000-0000
Amount of Fee: $60,000.00
32. Auditor: Xxxxx & Company, Inc.
Contact Person: Xxxx Xxxxxx
Address: 0 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone Number: (000) 000-0000
33. Tax Return Preparer: Xxxxx & Company, Inc.
Contact Person: Xxxx Xxxxxx
Address: 0 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone Number: (000) 000-0000
34. Federal Taxpayer ID Number for Roxbury Veterans Housing Limited
Partnership: 00-0000000
Federal Taxpayer ID Number for Roxbury Veterans Enterprise,
Inc.: 04-84987
35. State Housing Credit Agency: Department of Housing and
Community Development
36. State Housing Agency LIHTC Number: 000-000-000
37. Operating Deficit Guaranty The General Partner shall have an
unlimited operating deficit guarantee; additionally the General
Partner shall provide funds as necessary to pay Operating Deficits;
but in the event that such loans are not made, the Operating Partnership
shall utilize amounts otherwise payable to the Developer as installments
of the Development Fee, as applicable.
38. Guarantor(s): Veterans Benefit Clearinghouse Development
Corporation guarantees all obligations and duties of the General
Partner
cc: Boston Capital Communications Limited Partnership Accounting
Department
Exhibit B
Certificate of Operating Partnership
and General Partner
Re: Lack of Disqualifications
The Operating Partnership and its 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
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 General
Partner, manager, 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 General
Partner or Manager, (vii) any beneficial owner of ten percent 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 or more of any class of securities of the Operating
Partnership or ten percent 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 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 Operating
Partnership 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 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 Massachusetts Securities Law, as amended
(the "Massachusetts Act") or for any broker-dealer or issuer with
knowledge that such broker- dealer or issuer had not or has not
complied with the Massachusetts 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).
