BOSTON CAPITAL TAX CREDIT FUND IV, L.P.
_______________________________________
CERTIFICATION AND AGREEMENT
for
LEVEL CREEK PARTNERS, L.P.
This CERTIFICATION AND AGREEMENT is made as of May 6, 1998
by Level Creek Partners, L.P., a Georgia limited partnership (the
"Operating Partnership"); and Sugar Hill Plantation Partners,
Inc., a Georgia corporation, as General Partner of the Operating
Partnership; for the benefit of Boston Capital Tax Credit Fund
IV, L.P., a Delaware limited partnership (the "Investment
Partnership"); BCTC 94, Inc., a Delaware corporation, (the
"Special Limited Partner"); Xxxxxxxx, Xxxxx & Xxxxxx; Hendrick,
Phillips, Xxxxxx & Xxxxxxx, and certain other persons or entities
described herein. The Investment Partnership and the Special
Limited Partner shall hereinafter be referred to collectively as
the "Limited Partners". The General Partners, if more than one,
shall hereinafter be referred to collectively, jointly and
severally, as the General Partner.
WHEREAS, the Operating Partnership proposes to admit the
Limited Partners as the limited partners thereof pursuant to the
Amended and Restated Agreement of Limited Partnership of the
Operating Partnership dated as of May 6, 1998 (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, simultaneous with the admission of the Limited
Partners to the Operating Partnership, Xxxxx X. Xxxxx shall
withdraw from the Operating Partnership as its initial limited
partner;
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 representa-
tions in connection with its delivery of certain opinions with
respect to this transaction; and
WHEREAS, Hendrick, Phillips, Xxxxxx & Xxxxxxx, as counsel
for the Operating Partnership and the General Partner, will rely
upon such information and representations in connection with its
delivery of certain opinions with respect to this transaction.
NOW, THEREFORE, to induce the Limited Partners to enter into
the Operating Partnership Agreement and become the limited part-
ners 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, Xxxxxxxx, Xxxxx & Snyder, Hendrick, Xxxxxxxx, Xxxxxx &
Xxxxxxx and certain other persons hereinafter described. Terms
defined in the Operating Partnership Agreement but not otherwise
defined herein shall have the meanings given them in the
Operating Partnership Agreement.
1. Representations, Warranties and Covenants of the Operating
Partnership, and the General Partner
The Operating Partnership and the General Partner jointly
and severally represent, warrant and certify to the Limited
Partners, Xxxxxxxx, Xxxxx & Xxxxxx and Hendrick, Phillips, Xxxxxx
& Xxxxxxx, 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 218-unit rental housing project located in Sugar Hill,
Georgia known as Level Creek Apartments (the "Apartment Complex")
and conduct its business; each of the Operating Partnership and
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 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 General Partner is bound or any law,
regulation, judgment, decree or order applicable to the Operating
Partnership, or the General Partner or any of their respective
properties; and 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
the General Partner. The estimates of occupancy rates, rental
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 the Operating Partnership, and 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 percent (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 General Partner contained in the
Operating Partnership Agreement has been duly performed to the
extent that performance of any covenant or agreement is required
on or prior to the date hereof.
1.06 All conditions to admission of the Limited Partners as
limited partners of the Operating Partnership contained
in the Operating Partnership Agreement have been satisfied.
1.07 No default by the Operating Partnership or the
General Partner 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).
1.08 The General Partner agrees to take all actions
necessary to claim the Projected Credit, including, without
limitation, the filing of Form 8609 with the Internal Revenue
Service in a timely manner.
1.09 No person or entity other than the Operating
Partnership holds any legal or equity interest in the Apartment
Complex, except for the Lender's security interest as set forth
in the Loan Documents.
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, other than the Management Agent's management
fee, which is based on a percentage of rental income, under the
Management Agreement.
1.13 The General Partner is not related in any manner
to either of 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 knowledge after
due inquiry the Apartment Complex does not contain in a level
above that deemed safe by all applicable governmental agencies,
any substance known to be hazardous, such as hazardous waste,
lead-based paint, asbestos, methane gas, urea formaldehyde
insulation, oil, toxic substances, underground storage tanks,
polychlorinated biphenals (PCBs), and radon; the Apartment
Complex is not affected by the presence of oil, toxic substances,
or other pollutants that could be a detriment to the Apartment
Complex nor is the Operating Partnership in violation of any
local, state, or federal law or regulation; and no violation of
the Clean Air Act, Clean Water Act, Resource Conservation and
Recovery Act, Toxic Substance Control Act, Safe Drinking Water
Control Act, Comprehensive Environmental Resource Compensation
and Liability Act, or Occupational Safety and Health Act has
occurred or is continuing. Neither the Operating Partnership nor
the 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 Based on that certain real estate appraisal
prepared for the Partnership by CB Commercial Real Estate Group,
Inc. Appraisal Services dated October 29, 1997 and the
undersigned's knowledge of property values in the area where the
Apartment Complex is located, 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
Apartment Complex, taking into account value attributable to the
Low Income Housing Tax Credits and/or below market financing, as
well as the use restrictions imposed on the Apartment Complex,
will be greater than the total amount of the Operating
Partnership's liabilities at the date of closing.
1.16 None of the partners of the Operating Partnership
or of the General Partner is a tax-exempt entity.
117. The General Partner is a Georgia corporation, the
sole shareholders of which are Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx
and Xxxxx X. Xxxxxx. The General Partner has only one class of
capital stock of which 100,000 shares are authorized and 1,000
shares are issued and outstanding. The shareholders' ownership
interests in the General Partner are as follows:
Shareholder Shares of Stock Percent of Issued and
Outstanding Stock
Xxxxxxx X. Xxxxx 395 39.5%
Xxxxxxx X. Xxxxx 395 39.5%
Xxxxx X. Xxxxxx 210 21.0%
1.18 No person or entity who has economic risk of loss
with respect to the Loan, including, without limitation the
guarantors under that certain Letter of Credit and Reimbursement
Agreement by and among the Operating Partnership, the Letter of
Credit Issuer, and the Lender, owns or will at any time in the
future own, individually or in the aggregate, more than 79% of
the aggregate issued and outstanding stock of the General
Partner.
1.19 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 Apartment Complex will be treated as "tax
exempt use property" as defined in Code Section 168(h).
1.20 All representations made by the General Partner in
the Operating Partnership Agreement are incorporated herein by
reference and are confirmed.
1.21 It is reasonable to expect that the Operating
Partnership will be able to repay, as and when 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 rental income and
expense from operations set forth in Exhibit A, assuming a rate
of inflation of operating income and expense during the term of
the Loans that is reasonable for the area in which the Apartment
Complex is located.
1.22 An Extended Use Commitment (as defined in the
Operating Partnership Agreement) within the meaning of Code
Section 42(h)(6) will be in effect and recorded in the appropriate
land evidence records with respect to the building(s) in the
Apartment Complex not later than the end of the first taxable
year in which any Tax Credit is taken with respect to any
building. If not in effect as of the date hereof, the General
Partner agrees (i) to deliver a valid and binding Extended Use
Agreement and evidence that it has been recorded no later than
the end of the first taxable year in which any Tax Credit is
taken with regard to any building and (ii) to ensure that all
Partnership lenders subordinate their mortgage liens on the
Apartment Complex to the Extended Use Agreement at or prior to
the time it is recorded.
1.23 The amounts payable in development and property
management fees to the General Partner, initial Management Agent
and the Developer 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, construction or renovation of
the Apartment Complex.
1.24 To the best of the General Partner's knowledge,
the Low-Income Housing Tax Credits allocated to the Apartment
Complex will not exceed the amount the Agency determines is
necessary for the financial feasibility of the Apartment Complex
and its viability as a qualified low-income housing project
throughout the credit period.
1.25 To the best of the General Partner's knowledge,
the proposed operations of the Apartment Complex and the
Partnership satisfy the requirements of the State's Qualified
Allocation Plan, including any specific targeting, set-asides or
other factors upon which the Georgia Department of Community
Affairs based its determination that the proposed operations of
the Apartment Complex and the Partnership satisfy the Qualified
Allocation Plan.
1.26 The Operating Partnership has not elected pursuant
to Code Section 42 to lock in the applicable Tax Credit rate
prior to placement in service of each building.
1.27 Each of the representations and disclosures made
by the Operating Partnership to the Georgia Department of
Community Affairs (the "Agency") in the Low Income Housing Tax
Credit Allocation Application (the "Credit Application") upon
which the letter from the Georgia Department of Community Affairs
dated November 19, 1997 determining that the project meets the
requirements of Georgia's 1997 Qualified Allocation Plan (the
"Credit Reservation Agreement") was based, is true and correct in
all material respects as of the date hereof.
1.28 Each of the covenants, agreements, and conditions
contained in the Credit Application and Credit Reservation
Agreement entered into by and between the Agency and the
Operating Partnership, has been duly performed or satisfied by
the Operating Partnership or the General Partner, as applicable,
to the extent that performance of any such covenant or agreement
or satisfaction of any conditions is required on or prior to the
date hereof, and the General Partner has no reason to believe
that the covenants, agreements, and conditions required to be
performed or satisfied after the date hereof will not be
performed or satisfied in a timely manner.
1.29 The General Partner has not received from the
Agency any notice of default or of withdrawal or cancellation of
the Tax Credit [Reservation] the Operating Partnership as
described in the [Credit Reservation Agreement].
1.30 The General Partner and any entity that is related
to the General Partner or to the Operating Partnership and that
receives a fee from the Operating Partnership, directly or
indirectly, is on the cash method of accounting for tax purposes.
If any fee received by the General Partner is treated as a
guaranteed payment under Section 707(c) of the Code, the General
Partner will recognize such fee as income at the time such fee is
accrued by the Operating Partnership.
1.31 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.
1.32 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 Loan and all other debt financing of the
Apartment Complex require the noncontingent repayment of
principal on or before a fixed maturity date, and will be
considered and treated as a loan by the 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
Complex, except for fees payable to the Lender and Letter of
Credit Issuer under the Loan Documents.
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):
The $12,790,000 Loan is funded with the proceeds of tax-
exempt bonds.
1.39 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).
1.40 All Units in the Apartment Complex are to be of
comparable quality for similarly sized units and all Apartment
Complex amenities are to be made available to all tenants on a
comparable basis without separate fees except for one unit in
which the on-site manager shall reside.
1.41 There will be no direct or indirect personal
liability of the Operating Partnership or of any of the Partners
for the repayment of the principal of and payment of interest on
the Loan, and the sole recourse of the Lender under the Loan,
with respect to the principal thereof and interest thereon, will
be to the property securing the indebtedness.
1.42 If necessary to insure that 100% of the Projected
Credit is available to the Project, the Partnership will elect to
defer the commencement of the tax credit period in accordance
with Section 42(f)(1)(b).
1.43 At least 50% of the aggregate basis of the Land
and buildings comprising the Apartment Complex will be financed
by the Loan.
1.44 The Loan will be funded by tax exempt bonds, the
interest on which is exempt from tax under Code Section103; such
bonds are subject to the volume cap imposed by Code Section 146;
and principal payments on the Loan are to be applied within a
reasonable period to redeem such bonds.
2. Indemnification
2.01 The General Partner (for purposes of this Section
2.01, jointly and severally, 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 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 Indem-
nified 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 Limited Partners, Xxxxxxxx, Xxxxx &
Xxxxxx, and Hendrick, Phillips, Xxxxxx & Xxxxxxx, (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.
IN WITNESS WHEREOF, the undersigned have set their hands and
seals as of the date first above written.
OPERATING PARTNERSHIP
Level Creek Partners, L.P.
By Sugar Hill Plantation
Partners, Inc., Its General
Partner
By:______________________
Its duly authorized
Sugar Hill Plantation
Partners, Inc.
By:_______________________
Its duly authorized
Exhibit A
Level Creek Partners, L.P. Fact Sheet
Project Development Costs & Sources
Sources of Funds:
X. Xxxx Proceeds 12,790,000
B. G.P. Capital Contributions 211
C. I.P. Capital Contributions 2,154,802
D. Deferred Development Fee 861,148
Note 15,806,161
Total Sources
Application of Funds:
Acquisition Costs:
Land 1,112,726
Building 1,112,726
Construction Costs:
Building Costs 6,566,954
Furnishings & Equipment 675,879
Site Work 1,651,014
General Conditions/Overhead 1,036,322
Profit 82,331
Performance Bond 10,012,500
Subtotal General 400,000
Contractor 238,372
Construction Contingency 84,136
Tap Fees & Bldg. Permits
Direct Construction Costs By 10,735,008
Partnership
Legal/Organizational:
Legal - Bond Issuance 151,548
Legal - Real Estate 10,000
Legal - Corporate 39,500
Title & Recording 20,000
Audit Tax 25,000
246,048
Construction Financing:
LOC Origination Fee 226,309
LOC Annual Fees During 355,628
Construction 767,400
Bond Interest During (300,000)
Construction
Less Interest Income on 1,049,337
Investments
Soft Costs:
Architectural & Engineering 142,500
Construction Period Taxes & 18,500
Insurance 28,000
3rd Party Fees For Professional 181,675
Services 83,867
Issuance Costs
Tax Credit Fees 454,542
Interim Operating Costs:
Advertising 30,000
Lease Up Reserve 348,500
378,500
Development Fees:
Overhead 300,000
Developer Fee 1,530,000
1,830,000
Total Application Of Funds 15,806,161
2. Construction and Permanent Financing:
A. Lender: The Housing Authority of the City of Sugar
Hill, Xxxxxxx
X. Mortgage Amount: $12,790,000
C. Note Date: May 7, 1998
D. Interest Rate: ____________
E. Term: May 15, 2003
3. Junior Financing: N/A
4. Eligible Basis: $13,412,974
5. Qualified Basis: $ 7,998,156
6. GP Capital Contribution: $ 211
7. Type of Credit: Tax Exempt Bond Financed
New Construction - May Rate is 3.58% (not locked)
8. Rent-up Schedule: 100% by November, 1999
9. Projected Credit to the Investment Partnership (99.99%):
$2,992,781
A. $175,723 for year 1
B. $299,278 for years 2 through 10
C. $123,555 for year 11
10. Total Projected Credit to the Operating Partnership (100%):
$2,993,080
A. $175,740 for year 1
B. $299,308 for years 2 through 10
C. $123,568 for year 11
11. Tax Credit Approval:
A. Application:
1. Date: 10-14-97
2. Credit Amount Requested: $To Be Determined
($292,817)
B. Credit Reservation:
1. Date: 11-19-97
2. Credit Amount Reserved: $To Be Determined
C. Carryover Allocation: N/A
1. Date: ____________
2. Credit Amount Allocated: $__________
D. Credit Rate Lock-in Agreement
1. Date: N/A
2. Rate locked-in: N/A
E. Form 8609
1. Date: At placement in service N/A
2. Credit Amount Allocated: N/A
12. Apartment Complex:
A. Name: Level Creek Apartments
B. Address: 0000 Xxxxx Xxxxx Xxxx, Xxxxx Xxxx, Xxxxxxx
X. County: Gwinnett
D. Type of Project: Low Income Housing
13. 1998 Area Median Income: $54,700
14. Type of Units:
Square Basic* Utility*
Number Type Unit Feet Rent Allowance
20 1 bedroom 801 536 61
20 1 bedroom 801 650 _____
60 2 bedroom 1,002 637 80
40 2 bedroom 1,002 730 _____
50 3 bedroom 1,200 729 99
28 3 bedroom 1,200 875 _____
*Note: Rents and Utility Allowances Based on 1997 Limits
15. Difference between rents allowed
by FmHA and rents allowed under
the Rent Restriction Test, if applicable: N/A
16. Rental Assistance: N/A
17. (Projected) Annual Operating Expenses: $614,659 (year 2)
18. Replacement Reserve Account
A. Annual: $ 43,600 ($3,633/month)
19. Operating Reserve Account: $348,500
20. Amount of Annual Asset Management Fee
to Boston Capital Communications
Limited Partnership: $ 15,000
21. Amount of Annual Incentive Partnership
Management Fee: $ 30,000
22. Amount of Total Depreciable
Basis Allocated to Personal
Property: $675,879
23. Completion Date: March, 1999
24. Total Capital Contribution of
Investment Partnership: $2,154,802
25. Schedule of Capital Contributions:
A. $1,508,362 (70%) upon the latest to occur of:
(i) Tax Credit Set Aside (Receipt of Documents Confirming
Issuance of Section 42 Qualifying Bonds),
(ii) Initial Closing,
(iii)Receipt of Estoppel Letter,
(iv) Admission Date,
(v) Execution of Escrow Agreement Between ILP and Letter
of Credit Issuer, or
(vi) Receipt of Commitment for Sale of Bonds from
Underwriter
B. $215,480 (10%) upon the latest to occur of:
(i) Substantial Completion
(ii) Cost Certification,
(iii) State Designation
(iv) Title and Insurance Updates
(v) Contractor's Payoff Letter
(vi) Lender Estoppel Certificate
(vii) Recording of Extended Use, or
(viii)Satisfaction of Outstanding Due Diligence; or
(ix) Satisfaction of Condition of First Installment
C. $215,480 (10%) upon the latest to occur of:
(i) Initial 100% Occupancy Date,
(ii) Final Closing,
(iii) Rental Achievement, or
(iv) Satisfaction of conditions of First and Second
Installments
D. $215,480 (10%) upon the 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: $1,830,000 (*of which $861,148 is estimated to be deferred)
B. Special Return of GP Capital, if applicable N/A
27. Consulting Fee to Boston Capital N/A
Partners, Inc., if applicable
28. Operating General Partner: SUGAR HILL PLANTATION PARTNERS,
INC.
Attn: Xxxxxxx X. Xxxxx
Address: 0000 Xxxxxxx Xxxxxx Xxxx
Address: Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Telephone Number: 000-000-0000
29. Managing General Partner: N/A
Attn:
Address:
Telephone Number:
30. Developer: SPRING HILL PARTNERS,INC.
Attn: Xxxxxxx X. Xxxxx
Address: 0000 Xxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Telephone Number: 000-000-0000
31. Ownership Interests
Normal Capital Cash
Operations Transactions Flow
Operating General Partner .01% 70% 70%
Investment Partnership 99.99% 30% 30%
Special Limited Partner 0% 0% 0%
32. Management Agent: SIGNATURE MANAGEMENT CORP.
Attn: Xxxxxxx X. Xxxxx
Address:3850 Xxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Telephone Number: 000-000-0000
Amount of Fee: 6% of
gross rental receipts
33. Builder: Universal Constructors, Inc.
Attn:
Address: X.X. Xxx 00
XxXxxxxxxxx, XX 00000
Telephone Number: 000-000-0000
Amount of Compensation: $10,012,500.00
Builder's Profit: $472,865.00
34. Subcontractor: (N/A)
Attn:
Address:
Telephone Number:
35. Architect: Lamas Architects, Inc.
Attn:
Address: 0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000
Telephone Number: 000-000-0000
Amount of Fee: $80,000.00
36. Auditor: Habif, Arogeti & Xxxxx
Attn: Xxxxxx X. Deck, C.P.A.
Address: 0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone Number: 000-000-0000
37. Tax Return Preparer: Habif, Arogeti & Xxxxx
Attn: Xxxxxx X. Deck, C.P.A.
Address: 0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telephone Number: 000-000-0000
38. Federal Taxpayer ID Number: 00-0000000
39. State Housing Credit Agency: Georgia Department of
Community Affairs
40. State Housing Agency LIHTC Number: Application No. 97-518
41. Operating Deficit Guaranty
The General Partner shall be obligated to make Subordinated Loans
to the Partnership to cover debt service, operating expenses and
the Replacement Reserve Fund to the extent these exceed
availableoperating income for a period of (i) 60 months from
Rental Achievement or (ii) until the extension of the Letter of
Credit for an additional five years, whichever is later. From
and after the later of (i) Rental Achievement and (ii) Extension
of the Letter of Credit for an additional five years, the GP's
Operating Deficit guaranty is limited to $1,000,000.
42. Guaranty of Development Cost Overruns/ The Guarantors are
Excess Development Costs responsible for Development Cost
Overruns/Excess Development Cost pursuant to the Guaranty.
43. Guarantor: Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
44. Post-Closing Follow-Up Required:
cc: Boston Capital Communications Limited Partnership Accounting
Department
Exhibit B
Certificate of Operating Partnership and
Operating General Partner Re: Lack of
Disqualifications
The Operating Partnership and its Operating General Partner
(as identified on the Certification and Agreement to which this
Certificate is attached as Exhibit B) hereby represent to you that
none of (i) the Operating Partnership, (ii) any predecessor of the
Operating Partnership, (iii) any of the Operating Partnership's
affiliates ("affiliate" meaning a person that controls or is
controlled by, or is under common control with, the Operating
Partnership), (iv) any sponsor (meaning any person who (1) is
directly or indirectly instrumental in organizing the Operating
Partnership or (2) will directly or indirectly manage or
participate in the management of the Operating Partnership or (3)
will regularly perform, or select the person or entity who will
regularly perform, the primary activities of the Operating
Partnership), (v) any officer, director, principal or general
partner of the Operating Partnership or of any sponsor, (vi) the
officer, director, principal, promoter or general partner of
Operating General Partner, (vii) any beneficial owner of ten
percent (10%) or more of any class of the equity securities of the
Operating Partnership or of any sponsor (beneficial ownership
meaning the power to vote or direct the vote and/or the power to
dispose or direct the disposition of such securities), (viii) any
promoter of the Operating Partnership (meaning any person who,
acting alone or in conjunction with one or more other persons,
directly or indirectly has taken, is taking or will take the
initiative in founding and organizing the business of the Operating
Partnership or any person who, in connection with the founding and
organizing of the business or enterprise of the Operating
Partnership, directly or indirectly receives in consideration of
services or property, or both services and property, ten percent
(10%) or more of any class of securities of the Operating
Partnership or ten percent (10%) or more of the proceeds from the
sale of any class of such securities; provided, however, a person
who receives such securities or proceeds either solely as
underwriting commissions or solely in consideration of property
shall not be deemed a promoter if such person does not otherwise
take part in founding and organizing the enterprise) presently
connected with the Operating Partnership in any capacity:
(1) Has filed a registration statement which is the
subject of any pending proceeding or examination under the secur-
ities laws of any jurisdiction, or which is the subject of a any
refusal order or stop order thereunder entered within five (5)
years prior to the date hereof;
(2) Has been convicted of or pleaded nolo contendere to
a misdemeanor or felony or, within the last ten (10) years, been
held liable in a civil action by final judgment of a court based
upon conduct showing moral turpitude in connection with the offer,
purchase or sale of any security, franchise or commodity (which
term, for the purposes of this Certificate shall hereinafter
include commodity futures contracts) or any other aspect of the
securities or commodities business, or involving racketeering, the
making of a false filing or a violation of Sections 1341, 1342 or
1343 of Title 18 of the United States Code or arising out of the
conduct of the business of an issuer, underwriter, broker, dealer,
municipal securities dealer, or investment adviser, or involving
theft, conversion, misappropriation, fraud, breach of fiduciary
duty, deceit or intentional wrongdoing including, but not limited
to, forgery, embezzlement, obtaining money under false pretenses,
larceny fraudulent conversion or misappropriation of property or
conspiracy to defraud, or which is a crime involving moral
turpitude, or within the last five (5) years of a misdemeanor or
felony which is a criminal violation of statutes designed to
protect consumers against unlawful practices involving insurance,
securities, commodities, real estate, franchises, business
opportunities, consumer goods or other goods and services;
(3) Is subject to (a) any administrative order, judgment
or decree entered within five (5) years prior to the date hereof
entered or issued by or procured from a state securities commission
or administrator, the Securities and Exchange Commission ("SEC"),
the Commodities Futures Trading Commission or the U.S. Postal
Service, or to (b) any administrative order or judgment, arising
out of the conduct of the business of an underwriter, broker,
dealer, municipal securities dealer, or investment adviser, or
involving deceit, theft, fraud or fraudulent conduct, or breach of
fiduciary duty, or which is based upon a state banking, insurance,
real estate or securities law or (c) has been the subject of any
administrative order, judgment or decree in any state in which
fraud, deceit, or intentional wrongdoing, including, but not
limited to, making untrue statements of material fact or omitting
to state material facts, was found;
(4) Is subject to any pending proceeding in any
jurisdiction relating to the exemption from registration of any
security or offering, or to any order, judgment or decree in which
registration violations were found or which prohibits, denies or
revokes the use of any exemption from registration in connection
with the offer, purchase or sale of securities, or to an SEC
censure or other order based on a finding of false filing;
(5) Is subject to any order, judgment or decree of any
court or regulatory authority of competent jurisdiction entered
within five (5) years prior to the date hereof, temporarily,
preliminarily or permanently restraining or enjoining such persons
from engaging in or continuing any conduct or practice in
connection with any aspect of the securities or commodities
business or involving the making of any false filing or arising out
of the conduct of the business of an underwriter, broker, dealer,
municipal securities dealer, or investment adviser, or which
restrains or en joins such person from activities subject to
federal or state statutes designed to protect consumers against
unlawful or deceptive practices involving insurance, banking,
commodities, real estate, franchises, business opportunities,
consumer goods and services, or is subject to a United States
Postal Service false representation order entered within five (5)
years prior to the date hereof, or is subject to a temporary
restraining order or preliminary injunction with respect to conduct
alleged to have violated Section 3005 of Title 39 of the United
States Code;
(6) Is suspended or expelled from membership in, or
suspended or barred from association with a member of, an exchange
registered as a national securities exchange, an association
registered as a national securities association, or any self-
regulatory organization registered pursuant to the Securities
Exchange Act of 1934, or a Canadian securities exchange, or
association or self-regulatory organization operating under the
authority of the Commodity Futures Trading Commission, or is
subject to any currently effective order or order entered within
the past five years of the SEC, the Commodity Futures Trading
Commission or any state securities administrator denying regis-
tration to, or revoking or suspending the registration of, such
person as a broker-dealer, agent, futures commission merchant,
commodity pool operator, commodity trading adviser or investment
adviser or associated person of any of the foregoing, or prohib-
iting the transaction of business as a broker-dealer or agent;
(7) Has, in any application for registration or in any
report required to be filed with, or in any proceeding before the
SEC or any state securities commission or any regulatory authority
willfully made or caused to be made any statement which was at the
time and in the light of the circumstances under which it was made
false or misleading with respect to any material fact, or has
willfully omitted to state in any such application, report or
proceeding any material fact which is required to be stated therein
or necessary in order to make the statements made, in the light of
the circumstances under which they are made, not misleading, or has
willfully failed to make any required amendment to or supplement to
such an application, report or statement in a timely manner;
(8) Has willfully violated any provision of the
Securities Act of 1933, the Securities Exchange Act of 1934, the
Trust Indenture Act of 1939, the Investment Advisers Act of 1940,
the Investment Company Act of 1940, the Commodity Exchange Act of
1974 or the securities laws of any state, or any predecessor law,
or of any rule or regulation under any of such statutes;
(9) Has willfully aided, abetted, counseled, commanded,
induced or procured the violation by any other person of any of the
statutes or rules or regulations referred to in subsection (8)
hereof;
(10) Has failed reasonably to supervise his agents, if he
is a broker-dealer, or his employees, if he is an investment
adviser, but no person shall be deemed to have failed in such
supervision if there have been established procedures, and a system
for applying such procedures, which would reasonably be expected to
prevent and detect, insofar as practicable, any violation of
statutes, rules or orders described in subsection (8) and if such
person has reasonably discharged the duties and obligations
incumbent upon him by reason of such procedures and system without
reasonable cause to believe that such procedures and system were
not being complied with;
(11) Is subject to a currently effective state admini-
strative order or judgment procured by a state securities admini-
strator within five (5) years prior to the date hereof or is
subject to a currently effective United States Postal Service fraud
order or has engaged in dishonest or unethical practices in the
securities business or has taken unfair advantage of a customer or
is the subject of sanctions imposed by any state or federal
securities agency or self-regulatory agency;
(12) Is insolvent, either in the sense that his
liabilities exceed his assets or in the sense that he cannot meet
his obligations as they mature, or is in such financial condition
that he cannot continue his business with safety to his customers,
or has not sufficient financial responsibility to carry out the
obligations incident to his operations or has been adjudged a
bankrupt or made a general assignment for the benefit of creditors;
or
(13) Is selling or has sold, or is offering or has
offered for sale, in any state securities through any unregistered
agent required to be registered under the securities laws of any
state or for any broker-dealer or issuer with knowledge that such
broker-dealer or issuer had not or has not complied with the
securities laws of the applicable state.
If the Operating Partnership is subject to the requirements of
Section 12, 14 or 15(d) of the Securities Exchange Act of 1934,
then the Operating Partnership has filed all reports required by
those Sections to be filed during the twelve (12) calendar months
preceding the date hereof (or for such shorter period that the
Operating Partnership was required to file such reports).
