LOMBARD PARTNERS, L.P.
_______________________________________
CERTIFICATION AND AGREEMENT
for
LOMBARD PARTNERS, L.P.
_______________________________________
This CERTIFICATION AND AGREEMENT is made as of October 23,
1998 by Lombard Partners, L.P., a Missouri limited partnership
(the "Operating Partnership"); ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties,
L.L.C., a Kansas limited liability company, as General Partner of
the Operating Partnership; for the benefit of Boston Capital Tax
Credit Fund IV, L.P., a Massachusetts limited partnership (the
"Investment Partnership"); BCTC 94, Inc., a Massachusetts
corporation (the "Special Limited Partner"); ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
and certain other persons, counsel 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
Lombard Partners, L.P. Amended and Restated Agreement of Limited
Partnership of the Operating Partnership dated as of October 20,
1998 (the "Operating Partnership Agreement"), in accordance with
which the Special Limited Partner will make a capital
contribution 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, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 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, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., 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
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
General Partner hereby agree as follows for the benefit of the
Limited Partners, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇ ▇▇▇▇▇▇, Esq. 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, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇ ▇▇▇▇▇▇, Esq., that, with
respect to the Operating Partnership, as of the date hereof:
1.01 The Operating Partnership is duly organized and in
good standing as a limited partnership pursuant to the laws of
the state of its formation with full power and authority to own
the 24-unit rental housing project located in Springfield,
Missouri known as Lombard Heights 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 Part-
ners 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.
1.10 The Operating Partnership has the sole responsi-
bility to pay all maintenance and operating costs, including all
taxes levied and all insurance costs, attributable to the
Apartment Complex.
1.11 The Operating Partnership, except to the extent it
is protected by insurance and excluding any risk borne by
lenders, bears the sole risk of loss if the Apartment Complex is
destroyed or condemned or there is a diminution in the value of
the Apartment Complex.
1.12 No person or entity except the Operating Part-
nership has the right to any proceeds, after payment of all
indebtedness, from the sale, refinancing, or leasing of the
Apartment Complex.
1.13 The 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 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.
1.17 ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties, L.L.C. is a Kansas
limited liability company, the sole members of which are ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇ and G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
1.18 If any member 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).
1.19 All representations made by the General Partner in
the Operating Partnership Agreement are incorporated herein by
reference and are confirmed.
1.20 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.
1.21 An Extended Use Commitment (as defined in the
Operating Partnership Agreement) within the meaning of Code Sec-
tion 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 regarding 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.
1.25 The amounts payable in development and property
management fees to the General Partner, 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.
1.26 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.
1.27 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 Missouri Housing Development
Commission based its determination that the proposed operations
of the Apartment Complex and the Partnership satisfy the
Qualified Allocation Plan.
1.28 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.
1.29 Each of the representations and disclosures made
by the Operating Partnership to the Missouri Housing Development
Commission (the "Agency") in the Low Income Housing Tax Credit
Allocation Application (the "Credit Application") upon which the
Lombard Heights Apartments Reservation (LIHTC No. 97-122) dated
October 22, 1997 between the Agency and the Operating Partnership
(the "Credit Reservation Agreement") was based, is true and
correct as of the date hereof.
1.30 Each of the covenants, agreements, and conditions
contained in the Credit Application and Credit Reservation
Agreement, 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.
1.31 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.
1.32 [*Reserved*]
1.33 At the time the Limited Partners are admitted into
the 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 has in the Partnership, equal to at
least ten percent (10%) of the Capital Contributions to the
Partnership.
1.34 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 accrual 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.
1.35 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.
1.36 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 Part-
nership.
1.37 The Operating Partnership will keep active records
and carry out the proposed activity in a manner consistent with
profitable businesses in the same activity.
1.38 The Operating Partnership will have an objective
to carry on businesses for profit and divide the gains therefrom.
1.39 The Operating Partnership may earn a profit,
including profit from appreciation in the value of the Apartment
Complex.
1.40 The Mortgage 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 consid-
ered and treated as a loan by the Lender.
1.41 The Operating Partnership's Lender is not 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. The Operating
Partnership's Lender will not receive a fee with respect to the
Operating Partnership's investment in the Apartment Complex.
1.42 Aside from the Permanent Loan, the 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): None
other than the Permanent Loan.
1.43 The Project will not receive moderate rehabili-
tation assistance under Section 8(e)(2) of the United States
Housing Act of 1937 (unless pursuant to the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Homeless Assistance Act of 1988).
1.44 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.
1.45 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.
1.46 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 Mortgage Loans, and the sole recourse of the Lender under the
Mortgage Loans, with respect to the principal thereof and
interest thereon, will be to the property securing the
indebtedness.
1.47 The Apartment Complex is not located in a
qualified census tract ("QCT") or a HUD-designated difficult to
develop area ("DDA"), which qualifies the Apartment Complex for
the 130% basis boost pursuant to Code Section 42.
1.48 [Reserved]
1.49 If the Apartment Complex's eligible basis
includes rehabilitation expenditures that are expected to
generate Projected Credit under Section 42(e) of the Code (the
"Rehabilitation Credit"), the Operating Partnership expects to
incur within a 24-month period expenditures equal to at least the
greater of (i) $3,000 per residential unit or (ii) 10% of the
unadjusted basis of the buildings in the Apartment Complex.
1.50 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).
1.51 At least 50% of the aggregate basis of the Land
and buildings comprising the Apartment Complex will be financed
by the Permanent Loan. If the bond financing is limited to the
Permanent Loan, the proceeds of the Permanent Loan will be used
to pay off the Construction Loan upon completion of the Apartment
Complex before the expiration of the first year in the Tax Credit
period.
1.52 The Permanent Loan will be funded by tax exempt
bonds, the interest on which is exempt from tax under Code
Section 103; such bonds are subject to the volume cap imposed by
Code Section 146; and principal payments on the Permanent 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 per-
sons, 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 Indemni-
fied 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, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
and ▇▇▇▇▇ ▇ ▇▇▇▇▇▇, Esq., (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:
LOMBARD PARTNERS, ▇.▇.
▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties,
L.L.C.
as General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Manager
Exhibit A
Lombard Partners Fact Sheet
1. Sources and Uses of Funds:
Sources of Funds:
A. Senior Mortgage Loan (T-Exempt Bonds) $ 800,000
B. Junior Mortgage Loan $ 0
▇. ▇▇▇▇▇ $ 0
D. General Partner Capital Contributions $ 164,217
E. Investment Partnership Capital
Contribution $ 359,958
F. Deferred Development Fee Obligation $ 198,626
$1,522,801
Application of Funds:
A. Total Construction Cost $ 972,395
B. Soft Costs $ 326,780
C. Land Costs $ 25,000
D. Development Fee $ 198,626
$ 1,522,801
2. Eligible Basis: $ 1,327,025
3. Qualified Basis: $ 1,335,025
4. Type of Credit: New Construction - 4%
5. Rent-up Schedule: 100% by December 1, 1998
6. Projected Credit to the Investment Partnership
Years 1999 - 2008 (99.99%): $ 47,994
7. Total Projected Credit to the Operating
Partnership (100%): $ 47,999
8. Tax Credit Approval:
A. Application:
1. Date: October 22, 1997
2. Credit Amount Requested: $49,317
B. Credit Reservation:
1. Date: January 16, 1998
2. Credit Amount Reserved: $49,317
C. Carryover Allocation: N.A.
1. Date:
2. Credit Amount Allocated:
D. Credit Rate Lock-in Agreement
1. Date: April, 1998
2. Rate locked-in: 3.59%
E. Form 8609
1. Date: _____________
2. Credit Amount Allocated: ___________
9. Apartment Complex:
A. Name: Lombard Heights Apartments
B. Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
C. County: Springfield, Missouri
D. Type of Project: Low Income Housing
10. 1999 Area Median Income: $ 41,100
11. Type of Units:
Square Feet Basic Utility
Number Type Unit Rent Allowance
1 1 bedroom 699 $409 $53
2 2 bedroom 862 $489 $66
3 3 bedroom 1,008 $556 $85
12. Difference between rents allowed
by FmHA and rents allowed under
the Rent Restriction Test, if applicable: N.A.
13. Rental Assistance: N.A.
14. (Projected) Annual Operating Expenses: $ 48,246 (year 2)
15. Replacement Reserve Account
A. Annual: $ 4,800
16. Operating Reserve Account: $ 36,000
17. Amount of Annual Asset Management Fee
Limited Partnership: $ 1,800
18. Amount of Annual Incentive Partnership
Management Fee: $ 1,800
[annual]
19. Amount of Total Depreciable
Basis Allocated to Personal
Property: $1,025,673
20. Completion Date: July, 1998
21. Total Capital Contribution of
Investment Partnership: $ 359,958
22. Schedule of Capital Contributions:
A. $233,973 consisting of $158,973 in cash contributions plus the
bridge Loan Note in the amount of $75,000 upon admission.
B. $89,990 on the latest to occur of (A) Cost Certification, (B) receipt
of an updated title insurance policy satisfactory to the Special
Limited Partner, (C) Initial 100% Occupancy Date, (D) State Designation,
(E) receipt of a payoff letter from the Contractor stating that all
amounts payable to the Contractor have been paid in full and that the
Partnership is not in violation of the Construction Contract,
(F) Substantial Completion, (G) receipt of a valid and recorded
Extended Use Commitment and receipt of a subordination agreement
subordinating the Mortage Loan to the extended Use Commitment,
(H) receipt of updated insurance certificates relating to the
Apartment Complex satisfactory to the Special Limited Partnership or
(I) satisfaction of all of the conditions to the payment of the First
Installment.
C. $30,995 on the latest to occur of (A) Rental Achievement or
(B) satisfaction of all of the conditions to the payment of the
First and Second Installment (the "Third Installment"); and
D. $5,000 on the latest to occur of (A) the receipt by the Investment
Partnership of the Partnership's federal income tax return and an
audited financial statement for the year in which Rental Achievement
occurred or (B) satisfaction of all of the conditions to the payment
of the First, Second and Third Installments (the "Fourth Installment").
23. Fees, Special Distributions and Other Items to be paid from Capital
Contributions
A. Development Fee: $198,626
(All Deferred)
24. Consulting Fee to Boston Capital 0
Partners, Inc., if applicable
25. Operating General Partner: ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties,
LLC
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
26. Managing General Partner: ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties,
LLC
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
27. Developer: ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties,
LLC
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
28. Ownership Interests
Normal Capital Cash
Operations Transactions Flow
Operating General Partner 0.01% 75% 85%
Investment Partnership 99.8% 25% 15%
Special Limited Partner 0.01% 0% 0%
29. Management Agent: ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties,
LLC
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Amount of Fee: Five percent (5%) of Gross Income
30. Management Construction Agent: ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties,
LLC
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Amount of Compensation: 18% of contract price
Builder's Profit: $ 147,951
31. Architect: ▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc.
Attn: G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Amount of Fee: $68,000
32. Auditor: _____________________
Attn: _____________________
Address: _____________________
_____________________
Telephone Number: _____________________
33. Tax Return Preparer: _____________________
Attn: _____________________
Address: _____________________
________________
Telephone Number: _______________
34. Federal Taxpayer ID Number: ________________
35. State Housing Credit Agency: Missouri Housing Development
Commission
36. State Housing Agency LIHTC Number: (▇▇▇) ▇▇▇-▇▇▇▇
37. Operating Deficit Guaranty
The General Partner
shall be obligated to
make Subordinated
Loans to the Partner-
ship to cover debt
service, operating
expenses and the
Replacement Reserve
Fund to the extent
these exceed available
operating income subject
to a $250,000 limit for
the five year period
following Rental Achievement.
38. Guaranty of Development Lost Overruns/
Excess Development Costs G.P. is obligated to
pay all Excess Development Costs
39. Guarantors: ▇▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Properties, L.L.C.
G. Windsor ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
G. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as trustee u/d/t
dated July 19, 1991 (the "Trust")
40. Post-Closing Follow-Up Required Extended Use-form in file from agency
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 any securities laws of
Missouri or for any broker-dealer or issuer with knowledge that
such broker-dealer or issuer had not or has not complied with such
securities laws.
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).