BOSTON CAPITAL TAX CREDIT FUND IV L.P.
_______________________________________
CERTIFICATION AND AGREEMENT
for
PAHRUMP VALLEY INVESTORS,
A WYOMING LIMITED PARTNERSHIP
_______________________________________
CERTIFICATION AND AGREEMENT made as of July 1, 1996, by PAHRUMP VALLEY
INVESTORS, a Wyoming Limited Partnership (the "Operating Partnership") and
XXXXX X. XXXX, an individual resident of the State of California, XXXX X.
XXXXXXX, an individual resident of the State of California, and XXXX X.
XXXXXXXXX, an individual resident of the State of Wyoming (collectively, the
"Operating General Partners") 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 and Certificate of Limited Partnership of the Operating Partnership
dated of even date herewith (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, Hirst & Applegate, as counsel for the Operating Partnership and
the Operating General Partners, 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,
Xxxxx & Xxxxxxxxx, and certain other persons hereinafter described.
1. Representations, Warranties and Covenants of the Operating Partnership
and the Operating GeneralPartner
The Operating Partnership and the Operating General Partners jointly and
severally represent, warrant and certify to the Limited Partners and Xxxxxxxx,
Xxxxx & Xxxxxx and Xxxxx & 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 and is qualified to do business and in good standing in the State of
Nevada with full power and authority to own the thirty-two (32) unit senior
rental housing project located in Pahrump, Nevada known as Pahrump Valley
Apartments (the "Apartment Complex") and conduct its business; the Operating
Partnership and the Operating General Partners 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 Partners 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 Partners is bound or any law, regulation, judgment, decree or order
applicable to the Operating Partnership or the Operating General Partners or
any of their respective properties; this Certification and Agreement
constitutes the valid and binding agreement of the Operating Partnership and
the Operating General Partners, 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 Partners have 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 Partners previously delivered, there has
been no material adverse change in the financial position of either of the
Operating General Partners. 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 Partners.
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 Partners 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 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 Partners contained in the Operating
Partnership Agreement has been duly performed to the extent that performance
of any covenant or agreement is required on or prior to the date hereof.
1.06 All conditions to admission of the Limited Partners as
limited partners of the Operating Partnership contained in the Operating
Partnership Agreement have been satisfied.
1.07 No default has occurred and is continuing under the
Operating Partnership Agreement or any of the Project Documents (as such term
is defined in the Operating Partnership Agreement) for the Operating
Partnership.
1.08 The Operating General Partners agree 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 responsibility to
pay all maintenance and operating costs, including all taxes levied and all
insurance costs, attributable to the Apartment Complex.
1.11 The Operating Partnership, except to the extent it is
protected by insurance and excluding any risk borne by lenders, bears the sole
risk of loss if the Apartment Complex is destroyed or condemned or there is a
diminution in the value of the Apartment Complex.
1.12 No person or entity except the Operating Partnership has
the right to any proceeds, after payment of all indebtedness, from the sale,
refinancing, or leasing of the Apartment Complex.
1.13 None of the Operating General Partners is related in any
manner to either of the Limited Partners, nor is any 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 any of the Operating General Partners 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 Xxxxx Xxxxxxxx dated August 1, 1994,
and based upon the level of permanent debt financing for the Apartment
Complex, 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 any of the
Operating General Partners is a tax-exempt entity and any of such Operating
General Partners 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
Partners 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) 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 Partners agree 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 amounts payable in development and property
management fees to Professional Apartment Management, Inc. and the General
Partners are fair in light of the value and magnitude of the services rendered
in consideration for such fees, and the services performed in consideration
for the development fees relate solely to the acquisition or construction of
the Apartment Complex.
1.22 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 Nevada, Department of business and Industry,
Housing Division Housing and Finance Authority no later than December 31,
1995.
1.23 Each of the representations made by the Operating
Partnership in the Low-Income Housing Credit Application dated March 23, 1995
(the "Credit Application"), in the notice of Reservation between the Authority
and the Operating Partnership dated July 21, 1995 (the "Credit Reservation
Agreement") and in the Carryover Allocation Contract between the Authority and
the Operating Partnership dated December 8, 1995 (the "Carryover Allocation
Agreement") is true and correct as of the date hereof.
1.24 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.
1.25 The Operating General Partners have received from the
Authority 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.
1.26 The Operating General Partners will not reduce their
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
Partners have or may obtain.
1.27 Any entity that is related to the Operating General
Partners 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 by the General Partners. If any fee received is
treated as guaranteed payment under Section 707(c) of the Internal Revenue
Code, the Operating General Partners will recognize such fee as income at the
time such fee is accrued by the Operating Partnership.
1.28 The Operating General Partners 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.
1.29 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.
1.30 The Operating Partnership will keep active records and
carry out the proposed activity in a manner consistent with profitable
businesses in the same activity.
1.31 The Operating Partnership will have an objective to carry
on businesses for profit and divide the gains therefrom.
1.32 The Operating Partnership may earn a profit, including
profit from appreciation in the value of the Apartment Complex.
1.33 Each Mortgage 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.
1.34 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 Complex.
1.35 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 $1,406,000, bearing an interest
rate which shall be locked in at the time of the closing of the Permanent
Mortgage, which rate, pursuant to the Rental Assistance Agreement is
subsidized to 1% per annum.
1.36 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).
1.37 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.
1.38 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.
1.39 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 Mortgage from and after
commencement of the term of the Permanent Mortgage, and the sole recourse of
FmHA under the Permanent Mortgage from and after commencement of the term of
the Permanent Mortgage, with respect to the principal thereof and interest
thereon, shall be to the property securing the indebtedness.
2. Indemnification
2.01 Each Operating General Partner (for purposes of this
Section 2.01, the "Indemnifying Parties" or, individually, an "Indemnifying
Party") agrees to indemnify and hold harmless the Limited Partners (for
purposes of this Section 2.01, the "Indemnified Parties" or, individually, an
"Indemnified Party") and each officer, director, employee and person, if any,
who controls any Indemnified Party against any losses, claims, damages or
liabilities (collectively, "Liabilities"), joint or several, to which any
Indemnified Party or such officer, director, employee or controlling person
may become subject, insofar as such Liabilities or actions in respect thereof
arise out of or are based upon (i) a breach by such Indemnifying Party of any
of its representations, warranties or covenants to such Indemnified Party or
any such of its officers, directors, employees or controlling persons under
this Certification and Agreement or (ii) liability in connection with the Land
and/or the Apartment Complex, as each term is defined in the Operating
Partnership Agreement, under any statute, regulation, ordinance, or other
provision of federal, state, or local law or any civil action pertaining to
the protection of the environment or otherwise pertaining to public health or
employee health and safety, including, without limitation, protection from
hazardous waste, lead-based paint, methane gas, urea formaldehyde insulation,
oil, toxic substance, underground storage tanks, polychlorinated biphenals
(PCBs), and radon; and to reimburse each such Indemnified Party and each such
officer, director, employee or controlling person for any legal or other
expenses reasonably incurred by it or them in connection with defending
against any such Liability or action; provided, however, that the Indemnifying
Party shall not be required to indemnify any Indemnified Party or any such
officer, director, employee or controlling person for any payment made to any
claimant in settlement of any Liability or action unless such payment is
approved by the Indemnifying Party or by a court having jurisdiction of the
controversy. This indemnity agreement shall remain in full force and effect
notwithstanding any investigation made by any party hereto, shall survive the
termination of any agreement which refers to this indemnity and shall be in
addition to any liability which the Indemnifying Party may otherwise have.
2.02 No Indemnifying Party shall be liable under the indemnity
agreements contained in Section 2.01 unless the Indemnified Party shall have
notified the Indemnifying Party in writing within forty-five (45) business
days after the summons or other first legal process giving information of the
nature of the claim shall have been served upon the Indemnified Party or any
such of its officers, directors, employees or controlling persons, but failure
to notify an Indemnifying Party of any such claim shall not relieve it from
any liability which it may have to the Indemnified Party or any such of its
officers, directors, employees or controlling persons against whom action is
brought otherwise than on account of its indemnity agreement contained in
Section 2.01. In case any action is brought against any Indemnified Party or
any such of its officers, directors, employees or controlling persons upon any
such claim, and it notifies the Indemnifying Party of the commencement thereof
as aforesaid, the Indemnifying Party shall be entitled to participate at its
own expense in the defense, or, if it so elects, in accordance with
arrangements satisfactory to any other Indemnifying Party or parties similarly
notified, to assume the defense thereof, with counsel who shall be reasonably
satisfactory to such Indemnified Party or any such of its officers, directors,
employees or controlling persons and any other Indemnified Parties who are
defendants in such action; and after notice from the Indemnifying Party to
such Indemnified Party or any such of its officers, directors, employees or
controlling persons of its election so to assume the defense thereof and the
retaining of such counsel by the Indemnifying Party, the Indemnifying Party
shall not be liable to such Indemnified Party or any such of its officers,
directors, employees or controlling persons for any legal or other expenses
subsequently incurred by such Indemnified Party or any such of its officers,
directors, employees or controlling persons in connection with the defense
thereof.
3. Miscellaneous
3.01 This Certification and Agreement is made solely for the
benefit of the Operating Partnership, the Operating General Partners,
Xxxxxxxx, Xxxxx & Xxxxxx, Xxxxx & 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:
PAHRUMP VALLEY INVESTORS, A
WYOMING LIMITED PARTNERSHIP
/s Xxxxx X. Xxxx
Xxxxx X. Xxxx, a general partner
/s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, a general partner
/s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx, a general partner
OPERATING GENERAL PARTNERS:
/s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
/s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
EXHIBIT A
PAHRUMP VALLEY INVESTORS, A WYOMING LIMITED PARTNERSHIP
FACT SHEET
1.Sources and Uses of Funds
Sources of Funds
1. Perm. Mort. Loan - FmHA $1,406,000
2. Perm. Junior Mort. Loan $ N/A
3. Grant $ N/A
4. General Partners Advance ($74,000)
Capital Contributions ($100) $ 74,100
5. Investment Partnership Capital Contribution $339,599
$1,819,699
Application of Funds
Total Construction Cost $1,203,914
Soft Costs $ 266,074
Land $ 63,000
Development Fee $ 212,711
$1,745,699
0.Xxxxxxxxxxxx and Permanent Financing
A. Construction Financing
1. Lender: Mortgage Investors Group, Ltd.
2. Mortgage Amount: $1,406,000
3. Note Date: February 3, 1996
4. Interest Rate: 9.25%
5. Term: 10 months
B. Permanent Financing
1. Lender: FmHA
2. Mortgage Amount: $1,406,000
3. Interest Rate: To be locked in; Subsidized to 1%
4. Term: 50 years
3.Permanent Junior Financing: N/A
4.Eligible Basis: $1,630,811
5.Qualified Basis: $1,630,811
0.XX Capital Contribution: $74,000
7.Type of Credit: New Construction (4%)
8.Rent-up Schedule:
100% by April, 1996
9.Projected Credit to the
Investment Partnership (99%):
A. $33,144 for 1996,
B. $61,189 per annum for each of the years 1996 through 2005, and
C. $28,045 for 2006.
00.Xxxxx Projected Credit to
the Operating Partnership
(100%):
A. $33,479 for 1996,
B. $61,807 per annum for each of the years 1997 through 2005, and
C. $28,328 for 2006.
00.Xxx Credit Approval:
A. Application:
1. Date: March 23, 1995
2. Credit Amount Requested: $61,807
B. Credit Reservation:
1. Date: July 21, 1995
2. Credit Amount Reserved: $61,807
C. Carryover Allocation:
1. Date: December 8, 1995
2. Credit Amount Allocated: $61,807
D. Credit Rate Lock-in Agreement
1. Date: To be determined
2. Rate locked-in:
E. Form 8609
1. Date: To be Determined
2. Credit Amount Allocated: To be Determined
12.Apartment Complex:
A. Name: Pahrump Valley Apartments
B. Address: Pahrump Valley Boulevard, Pahrump, Nevada
C. County: Xxx
D. Type of Project: 9 Buildings containing 32 low-income
units
13.1995 Area Median Income: $41,100
14.Type of Units:
Unit Basic Utility
Number Square Ft. Rent Allowance
1-Bedroom 0 _____ $_____
$_____
2-Bedroom 32 _____ $381 $40
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: 32 units
17.Annual Operating Expenses: $45,687 (1996)
18.Replacement Reserve Account
A. Annual: $14,060
B. Total: $14,600
19.Operating Reserve Account:N/A
(from proceeds of ________ Installment)
20.Amount of Annual Reporting Fee
to Boston Capital Communications
Limited Partnership: $1,600
21.Amount of Annual Partnership
Management Fee: $1,600
22.Amount of Total Depreciable
Basis Allocated to Personal
Property: $52,731
23.Completion Date: April, 1996
00.Xxxxx Capital Contribution of
Investment Partnership: $339,599
25.Schedule of Capital Contributions:
A. $162,830 upon the latest to occur of:
(i) Admission Date,
(ii) Tax Credit Set Aside,
(iii) Construction Mortgage Closing,
(iv) Permanent Mortgage commitment, or
(v) Carryover Certification
B. $79,885 upon the latest to occur of:
(i) State Designation,
(ii) the Completion Date,
(iii) Cost Certification,
(iv) Receipt of Satisfactory Title Policy,
(v) Compliance with due diligence requirements,
(vi) Receipt of release of liens from the Contractor,
(vii) Receipt of an estoppel letter and consent to
syndication from FmHA, or
(viii) Satisfaction of conditions of First Installment
C. $79,884 upon the latest to occur of
(i) Initial 90% Occupancy Date,
(ii) Permanent Mortgage Closing,
(iii) Breakeven Point, or
(iv) Satisfaction of conditions of First and Second
Installments
D. $17,000 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: $212,711
B. Return of Advance to General Partners $ 74,000
C. Direct Development Costs $ 5,400
D. Developer's Overhead $ 17,888
00.Xxxxxxxxxx Fee to Boston CapitalN/A
Partners, Inc.
28.Operating General Partners:
(a) Xxxx X. Xxxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
(000) 000-0000
(b) Xxxxx X. Xxxx
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxx, XX 00000
(c) Xxxx X. Xxxxxxx
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
29.Developer: General Partners
Address: See above
Telephone Number: ( )
30.Ownership Interests
Normal Capital Cash
Operations Transactions Flow
Operating General
Partner: 1% 50.00% 65.00%
Investment Partnership: 99% 50.00% 35.00%
Special Limited Partner: 0% 0.00% 0.00%
00.Xxxxxxxxxx Agent:Professional Apartment Management, Inc.
Contact Person:
Address: Xxx 0000
Xxxx, XX
Telephone Number: (000) 000-0000
Amount of Fee: No more than 5% of Gross Receipts
32.Builder: Sequoia Pacific Builders, Inc.
Address: 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000
Amount of Compensation: $1,208,860
Builder's Profit: $18,096
33.Subcontractor: N/A
Address:
34.Architect: Lane X. Xxxxxx
Address: 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Amount of Fee: $50,000
35.Auditor:Xxxxxx Xxx
Contact Person:
Address: 00 X. Xxxxx Xxxx, Xxx 0
Xxxxxxxx, XX 00000
Telephone Number: (000) 000-0000
00.Xxx Return Preparer:Xxxxxx Xxx
Contact Persons:
Address: 00 X. Xxxxx Xxxx, Xx. 0
Xxxxxxxx, XX 00000
Telephone Number: (000) 000-0000
37.Federal Taxpayer ID Number: 00-0000000
38.State Housing Credit Agency:State of Nevada,
Department of Business
and Industry, Housing
Division
39.State Housing Agency LIHTC Number:
40.Operating Deficit Guaranty: The General Partners
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.
41.Guarantor(s): N/A
cc: Boston Capital Communications Limited Partnership Accounting Department
Exhibit B
Certificate of Operating Partnership and
Operating General Partners Re: Lack of Disqualifications
The Operating Partnership and its Operating General Partners (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 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, 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 Nevada Securities Act of 1972, as amended (the "Nevada
Act") or for any broker-dealer or issuer with knowledge that such broker-
dealer or issuer had not or has not complied with the Nevada 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).
