BOSTON CAPITAL TAX CREDIT FUND IV L.P.
_______________________________________
CERTIFICATION AND AGREEMENT
for
DECRO XXXXXXXX, X.X.
CERTIFICATION AND AGREEMENT made as of September ___, 1996, by
DECRO XXXXXXXX, X.X., a California limited partnership (the "Operating
Partnership"); and DECRO CHI CORPORATION, INC., a California non-
profit public benefit corporation (the "General Partner"); 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 the Limited
Partners as the additional limited partners thereof pursuant to the
Amended and Restated Agreement of Limited Partnership of the Operating
Partnership dated as of September ___,1996 (the "Partnership
Agreement"), in accordance with which the Special Limited Partner will
make a capital contribution of $10 to the Operating Partnership and
the Investment 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, Xxx X. Xxxxxx, Esquire, as counsel for the Operating
Partnership and the General Partner, will rely on such information and
representations in connection with its delivery of certain opinions
with respect to this transaction.
NOW, THEREFORE, to induce the Limited Partners to enter into the
Partnership Agreement and become 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, the General Partner and the General Partner
hereby agree as follows for the benefit of the Limited Partners and
Xxxxxxxx, Xxxxx & Xxxxxx and certain other persons hereinafter
described.
1. Representations, Warranties and Covenants of the
Operating Partnership and the General Partner
The Operating Partnership, the General Partner and the General
Partner jointly and severally represent, warrant and certify to the
Limited Partners and Xxxxxxxx, Xxxxx & Xxxxxx and Xxx X. Xxxxxx, 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
Xxxxxxxx Apartments (the "Apartment Complex") and conduct its
business; the Operating Partnership, the General Partner and the
General Partner have the power and authority to enter into and perform
this Certification and Agreement; the execution and delivery of this
Certification and Agreement by the Operating Partnership, the General
Partner 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, the General Partner or
the General Partner is bound or any law, regulation, judgment, decree
or order applicable to the Operating Partnership, the General Partner
or the General Partner or any of their respective properties; this
Certification and Agreement constitutes the valid and binding
agreement of the Operating Partnership, the General Partner 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 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 General Partner previously delivered, there has
been no material adverse change in the financial position of either
General Partner. The estimates of occupancy rates, operating expenses
and tax credits set forth on Exhibit A are reasonable in light of the
knowledge and experience of the General Partner.
1.03 As of the date hereof, each of the representations
contained in Exhibit B attached hereto is true, accurate and complete
as to each of the Operating Partnership, the General Partner, the
General Partner and as to any of their affiliates, any of their
predecessors and their affiliates' predecessors, any of their
directors, officers, General Partner and/or beneficial owners of ten
per cent (10%) or more of any class of their equity securities
(beneficial ownership meaning the power to vote or direct the vote
and/or the power to dispose or direct the disposition of such
securities), as the case may be, and any promoters presently connected
with them in any capacity.
1.04 Each of the representations and warranties
contained in the Partnership Agreement is true and correct as of the
date hereof.
1.05 Each of the covenants and agreements of the
Operating Partnership, the General Partner and the General Partner
contained in the Partnership Agreement has been duly performed to the
extent that performance of any covenant or agreement is required on or
prior to the date hereof.
1.06 All conditions to admission of the Limited
Partners as limited partners of the Operating Partnership contained in
the Partnership Agreement have been satisfied.
1.07 No default has occurred and is continuing under
the Partnership Agreement or any of the Project Documents (as such
term is defined in the Partnership Agreement) for the Operating
Partnership.
1.08 The General Partner agrees to take all actions
necessary to claim the Projected Credit, including, without
limitation, receiving and satisfying the conditions to the Carryover
Allocation Agreement hereinafter referred to no later than December
31, 1996, 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 The General Partner is not related in any manner
to the Limited Partners, nor is the General Partner acting as an agent
of the Limited Partners.
1.14 To the best of the undersigned's current knowledge
after due inquiry, and except as set forth in those certain "Notices
of Building(s), Structure(s) or Premises Classified as Either
Hazardous, Substandard or a Nuisance-Abatement Proceedings" from the
City of Los Angeles Department of Building and Safety (the "Building
Department") recorded/filed with the Recorder's Office in Los Angeles
County, California (the "Recorder's Office") as file numbers 95
1187726, 95 1187797, 95 1279432, 95 1323927, 95 1396799 and that
certain Notice of Noncompliance from the Building Department
recorded/filed with the Recorder's Office as file number 96 27918
(collectively the "Noncompliance Notices"), 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. None of the
Operating Partnership or 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 The General Partner is currently in the process of
remedying all violations set forth in the Noncompliance Notices and
shall complete said remediation process by May 31, 1997.
1.16 To the best of the undersigned's current
knowledge, based on that certain real estate appraisal prepared by
Gold Coast Appraisals, Inc. dated September 18, 1995 and based upon
the level of permanent debt financing for the Project, it is expected
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.
1.17 The General Partner of the Operating Partnership
is a tax-exempt entity.
1.18 That the General Partner: (i) is a qualified
nonprofit organization pursuant to IRC Sec. 42(h)(5) which satisfies
all requirements set forth under IRC 501(c)(3) or IRC 501(c)(4); (ii)
has been established as a nonprofit corporation under California law;
(iii) has "housing" as one of its exempt purposes; (iv) shall
materially participate, within the meaning of IRC Sect. 469(h), in the
development, operation and ownership of the project throughout the
compliance period; and (v) is not, nor will be affiliated with, or
controlled by a for-profit corporation.
1.19 The interest of the General Partner in allocations
of partnership profits from operations and capital transactions
pursuant to the Partnership Agreement is set forth on Exhibit A and
shall not be increased without prior consent of the Limited Partners.
1.20 The General Partner is a 501(c)(3) corporation
(non-profit, public benefit corporation) for tax purposes. If any
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).
1.21 All representations made by the General Partner in
the Partnership Agreement are incorporated herein by reference and are
confirmed.
1.22 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).
1.23 An Extended Use Commitment (as defined in the
Partnership Agreement) within the meaning of Code Section 42(h)(6)
will be in effect with respect to the building(s) not later than the
end of the taxable year in which any credit is taken with respect to
any building and to which all Loan Documents will be subordinate.
1.24 The Apartment Complex is located in a qualified
census tract which qualifies the Apartment Complex for the 130% basis
boost pursuant to Code Section 42.
1.25 The amounts payable in development and property
management fees to Decro Chi Corporation and National Housing
Ministries, respectively, are fair in light of the value and
magnitude of the services rendered in consideration for such fees, and
the services performed in consideration for the development fees
relate solely to the acquisition or construction of the Apartment
Complex.
1.26 For any building(s) not placed in service prior to
December 31, 1996, (i) the Operating Partnership's basis in such
building as of the close of 1996 will be more than 10% of the
Operating Partnership's reasonably expected basis in such building as
of the close of calendar year 1996 and (ii) the Operating Partnership
shall enter into a Carryover Allocation agreement with the California
Tax Credit Allocation Committee no later than December 31, 1996. The
Company expects to incur basis - eligible expenses no later than
December 31, 1996 in the following categories, and it is reasonable to
project that those expenses will be incurred by the Company by
December 31, 1996:
Estimated
Percent of Total
Type of Cost Reasonably Expected
Project Basis
Acquisition
26%
Construction
57%
- Hard Costs (52%)
- Soft Costs (5%)
Developer's Fee (not more than 20%) 9%
Pre-Development 4%
Other
3%
1.27 Each of the representations made by the General
Partner in the Preliminary Reservation Letter between the Agency and
the Operating Partnership dated as of May 6, 1996 (the "Credit
Reservation Agreement") is true and correct as of the date hereof.
1.28 The General Partner shall enter into Carryover
Allocation Agreement not later than December 31, 1996 (the "Carryover
Agreement") which Carryover Agreement shall be true and correct as of
the date of execution thereof.
1.29 Each of the covenants, agreements, and conditions
contained in the Credit Reservation Agreement has been duly performed
or satisfied by the Operating Partnership or its General Partner, as
applicable, to the extent that performance of any such covenant or
agreement or satisfaction of any condition is required on or prior to
the date hereof, and the General Partner has no reason to believe that
the covenants, agreements, and conditions required to be performed or
satisfied after the date hereof will not be performed or satisfied in
a timely manner.
1.30 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.
1.31 At the time the Limited Partners are admitted into
the Partnership, the General Partner will have an aggregate net worth
calculated on a consolidated basis in accordance with generally
accepted accounting principals but not including the value of any
equity or debt interest such General Partner have in the Partnership,
equal to at least ten percent (10%) of the Capital Contributions to
the Partnership, or in the alternative the General Partner shall at
the time the Limited Partners are admitted into the Partnership,
satisfy at least one of the requirements set forth in the last
sentence of Section 4.07 of Internal Revenue Service Procedure 89-12,
as the same may be modified from time to time.
1.32 The General Partner will not reduce its aggregate
interest, as General Partner, in the Partnership below 1% of all
material items of the Partnership income, gain, loss, deduction, and
credit. The 1% interest will be calculated without regard to any
limited partner interest or interests in the Partnership that the
General Partner have or may obtain.
1.33 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 basis method of accounting for tax
purposes.
1.34 Decro Chi Corporation is the developer of the
Apartment Complex pursuant to the Development Agreement by and between
the Operating Partnership and Decro Chi Corporation dated as of the
date herewith (the "Development Agreement"), and is on a cash-basis
method of accounting for tax purposes.
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 any material
personal or recreational benefit for the partners of the Operating
Partnership.
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 Loans and all other debt financing of
the Apartment Complex requires the noncontingent repayment of
principal on or before a fixed maturity date, and will be considered
and treated as a loan by lender.
1.41 The Permanent Mortgage Loan shall be non-recourse
to the Partnership and all partners of the Partnership, subject to
standard exceptions to non-recourse status approved by tax counsel to
the Investment Partnership.
1.42 None of the Operating Partnership's lenders is a
party from whom the Operating Partnership acquired any portion of the
Apartment Complex, and none of the financing was issued in exchange
for any portion of the Apartment Complex. None of the Operating
Partnership's lenders will receive a fee with respect to the Operating
Partnership's investment in the Apartment.
1.43 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):
(a) $1,330,000 below market interest rate loan
from the City of Los Angeles Housing Department which funds are
available from CDBG Earthquake funds.
There are no other direct or indirect grant or
federal subsidy loans (as referred to above) being used to acquire or
rehabilitate the Apartment Complex.
1.44 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).
1.45 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.
1.46 All Units in the Apartment Complex are to be of
equal quality and all Apartment Complex amenities are to be made
available to all tenants on a comparable basis without separate fees.
2. Indemnification
2.01 The General Partner (for purposes of this Section
2.01, the "Indemnifying Party") agrees to indemnify and hold harmless
the Limited Partners (for purposes of this Section 2.01, the
"Indemnified Parties" or, individually, an "Indemnified Party") and
each officer, director, employee and person, if any, who controls any
Indemnified Party against and from any and all claims, suits, actions,
debts, damages, costs, charges, losses, obligations, judgments, and
expenses, of any nature whatsoever, suffered or incurred by the
Investment Partnership, under or on account of the Hazardous Waste
Laws or any similar laws or regulations, including the assertion of
any lien thereunder, except for claims, suits, actions, debts,
damages, costs, charges, losses, obligations, judgments, or expenses
arising from the Investment Partnership's own negligence, misconduct
or fraud. For purposes of this Certification and Agreement,
"Hazardous Substances" means oil, petroleum or chemical liquids or
solids, liquid or gaseous products or any hazardous wastes or
hazardous substances, as those terms are used in the Hazardous Waste
Laws; and "Hazardous Waste Laws" means the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, and any other
federal, state or local law governing Hazardous Substances, as such
laws may be amended from time to time.
This indemnity agreement shall remain in full force and effect
notwithstanding any investigation made by any party hereto, shall
survive the termination of any agreement which refers to this
indemnity and shall be in addition to any liability which the
Indemnifying Party may otherwise have.
2.02 No Indemnifying Party shall be liable under the
indemnity agreements contained in Section 2.01 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 General Partner,
Xxxxxxxx, Xxxxx & Xxxxxx and the Limited Partners (and, to the extent
provided in Section 2, the officers, directors, partners, employees
and controlling persons referred to therein), and their respective
successors and assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement.
3.02 This Certification and Agreement may be executed
in several counterparts, each of which shall be deemed to be an
original, all of which together shall constitute one and the same
instrument.
3.03 Terms defined in the Partnership Agreement but not
otherwise defined herein shall have the meanings given them in the
Partnership Agreement.
IN WITNESS WHEREOF, the undersigned have set their hands and
seals as of the date first above written.
OPERATING PARTNERSHIP:
DECRO XXXXXXXX, X.X. , a
California limited partnership
By: Decro Chi Corporation, a
California non-profit
public benefit
corporation, its general
partner
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Secretary-Treasurer
GENERAL PARTNER:
DECRO CHI CORPORATION, a California
non-profit public benefit corporation
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Secretary-Treasurer
EXHIBIT A
XXXXXXXX APARTMENTS LIMITED PARTNERSHIP
FACT SHEET
1. Projected Sources and Uses of Funds
Sources of Funds
Perm. Mort Loan - Home Savings of America 660,000.00
City of Los Angeles (CDBG) 1,330,000.00
Deferred Development Fee
18,160.00
Capital Contributions:
General Partner
100.00
Investment Partnership 1,807,787.00
3,816,047.00
Application of Funds
Total Construction Cost 1,636,960.00
Developer Fee
Architectural (Designer) &
324,900.00
Engineering Fees
76,000.00
Land and Building Cost or Value 924,800.00
Holding Costs/Security
38,851.00
Tax Credit & Application 29,121.00
Environmental & Appraisal 13,100.00
Title and Recording
10,608.00
Contingency
151,577.00
Other Soft Costs & Fees 169,851.00
Construction Loan Costs and Fees 34,761.00
Interest during Construction 80,000.00
Permanent Loan Fees
29,700.00
Construction Insurance
62,538.00
Soft Cost Contingency
15,479.00
Legal/Accounting Fees
80,000.00
Taxes during Construction 12,723.00
Syndication Legal/Consulting 73,078.00
Operating Reserve
52,000.00
$3,816,047.00
2. Construction Financing
A. Lender: Home Savings of America, FSB
B. Mortgage Amount: $1,243,382
C. Note Date: _____________________
D. Interest Rate: Variable at Four (4%) percent over
the Monthly Weighted Average
Cost of Funds for 11th District
Savings Institution
E. Term: 15 months
3. Permanent Financing
A. Lender: Home Savings of America, FSB
B. Mortgage Amount: 660,000
C. Note Date: ______________________
D. Interest Rate: Fixed at one and 95/100 percent
(1.95%) over Federal Home Loan Bank of
San Francisco Community Investment Program
rate or Variable at Two and 75/100 percent (2.75%)
over the Monthly Weighted Average Cost of Funds
for 11th District Savings Institution
E. Term: 300 months
4. Eligible Basis: $2,555,440
5. Qualified Basis: $3,322,072
6. General Partner Capital Contribution: $100
7. Type of Credit:
8. Rent-up Schedule:
100% by July 31, 1997 38 units
9. Projected Credit to the
Investment Partnership (99%):
A. $149,588 for 1997
B. $285,649 per annum for each
of the years 1998 through 2006
C. $136,061 for 2007
10. Tax Credit Approval:
A. Application:
1. Date: ___________________
2. Credit Amount Requested: $______________ (annual)
B. Credit Reservation (Conditional)
1. Date: May 1, 1996
2. Credit Amount Reserved: $287,214.00 (annual)
C. Carryover Allocation:
1. Date: October 1, 1996
2. Credit Amount Allocated: $ TO BE DETERMINED
D. Credit Rate Lock-in Agreement
1. Date: TO BE DETERMINED
2. Rate locked-in: TO BE DETERMINED
E. Form 8609
1. Date: POST CLOSING
2. Credit Amount Allocated: POST CLOSING
11. Apartment Complex:
A. Name: Xxxxxxxx Apartments
B. Address: 00000 Xxxxxxxx Xxxxxx
C. County: Los Angeles
D. Type of Project: Thirty-Eight (38) garden-style units
12. 1996 Area (Los Angeles County) Median Income: $51,300
(per four (4) person household)
13. Type of Apartments: Garden Style Units in Two (2) Two-Story
Buildings
Unit Basic Utility Total
Number Square Ft. Rent Allowance Rent
(2) 1-bedroom $281 $ 55
$336
(8) 2-bedroom $334 $ 70
$404
(2) 3-bedroom $380 $ 86
$466
(1) 4-bedroom $411 $109
$520
(3) 1-bedroom $425 $ 55
$480
(13) 3-bedroom $507 $ 70
$577
(6) 3-bedroom $580 $ 86
$666
(3) 4-bedroom $634 $109 $743
___
38 Total Units
14. Difference between rents allowed
by FMHA and rents allowed under
the Rent Restriction Test: N/A
15. Rental Assistance: None
16. Annual Operating Expenses: $136,829 (1998 first full year)
17. Replacement Reserve Account
A. Annual: $ 7,600.00
B. Total: ___________.__
18. Operating Reserve Account: $ 52,000.00
19. Amount of Annual Asset Management Fee
to Boston Capital Communications
Tax Membership: $ 5,000.00
20. Amount of Annual Company
Management Fee: $ 5,000.00
21. Amount of Total Depreciable
Basis Allocated to Personal
Property: $________.__
22. Completion Date: July 1997
23. Total Capital Contribution of
Investment Member: $1,807,787
24. Schedule of Capital Contributions:
A. $962,438 on latest to occur of:
(i) Admission Date;
(ii) Tax Credit Set Aside;
(iii) Closing of Construction Mortgage Loan; or
(iv) Permanent Mortgage Loan Commitment.
B. $599,663 on the latest to occur of:
(i) Completion Date;
(ii) Receipt of Carryover Allocation;
(iii) Receipt of updated title insurance policy;
(iv) Compliance with due diligence recommendations;
(v) Receipt of payoff letter from contractor;
(vi) Receipt of estoppel letter from lender; or
(vii) Satisfaction of all prior conditions.
C. $213,900 on the latest to occur of:
(i) Initial 100% Occupancy Date;
(ii) Permanent Mortgage Commencement;
(iii) Rental Achievement;
(iv) Cost Certification;
(v) State Designation;
(vi) Satisfaction of all prior conditions.
D. $31,786 on the latest to occur of:
(i) Receipt of tax return and audited financial,
statements for the year in which rental achievement
occurs, or
(ii) Satisfaction of all prior conditions.
25. Fees, Special Distributions and Other Items to be paid
from Capital Contributions
A. Development Fee: $324,900 (entire
Development Fee paid
from Capital
Contributions)
B. Special Return of Member-Manager Capital N/A
26. Consulting Fee to Boston Capital N/A
Partners, Inc.
27. General Partner: Decro Chi Corporation
Address:
Telephone Number: (000) 000-0000
28. Developer: Decro Chi Corporation
Address: 000 Xxxxx Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Telephone Number: (000) 000-0000
29. Ownership Interests
Operating
Tax Credit Capital
Cash
Allocations Transactions Flow
General Partner: 01.00% 75.00% 75.00%
Investment Member: 99.00% 25.00% 25.00%
Special Member: 0.00% 0.00% 0.00%
30. Management Agent: National Housing Ministries, Inc.
Contact Person: Xxxxxx Xxx
Address: Western Region
000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Telephone Number: (000) 000-0000
Amount of Fee: 6% of Gross Receipts
31. Builder: Xxxxxxxx Development Company, Inc.
Address: 00000 Xxxxxxx Xxxx, Xxxxx X
Xxx Xxxx, XX 00000
Amount of Compensation: Contract sum of $1,421,000.00
subject to additions and deductions as provided in the Contract
Documents
Builder's Profit and Overhead: $174,743
32. Architect: FMSY Architects
0000 Xxxxxx Xxxx., #000
Xxxxxxx, XX 00000
Amount of Fee: $76,000.00
33. Auditor: Xxxx, Xxxx & Xxx
Contact Person: Xxxxx Xxx
Address: 000 Xxxx Xxx Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Telephone Number: (000) 000-0000__________
34. Tax Return Preparer: Xxxx, Xxxx & Xxx
Contact Person: Xxxxx Xxx
Address: 000 Xxxx Xxx Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
35. Federal Taxpayer ID Number: 33-083302
36. State Housing Credit Agency: California Tax Credit Allocation
Committee ("TCAC")
37. State Housing Agency LIHTC Number: TCAC # CA-96-009
38. Operating Deficit Guaranty The General Partner shall
provide an limited operating deficit guarantee, which
provided that the General Partner make Subordinated
Loans to the Partnership. In the event that such loans
are not made, the Partnership shall utilize
amounts otherwise payable to the Developer as
installments of the Development Fee, as applicable.
39. Guarantor(s): Decro Corporation
cc: Boston Capital Communications Tax Membership Accounting
Department
Exhibit B
Certificate of Operating Partnership,
General Partner
Re: Lack of Disqualifications
The Operating Partnership and its General Partner (as identified
on the Amended and Restated Certification and Agreement to which this
Certificate is attached as Exhibit B) hereby represent to you that
none of (i) the Operating Partnership, (ii) any predecessor of the
Operating Partnership, (iii) any of the Operating Partnership's
affiliates ("affiliate" meaning a person that controls or is
controlled by, or is under common control with, the Operating
Partnership), (iv) any sponsor (meaning any person who (1) is directly
or indirectly instrumental in organizing the Operating Partnership or
(2) will directly or indirectly manage or participate in the
management of the Operating Partnership or (3) will regularly perform,
or select the person or entity who will regularly perform, the primary
activities of the Operating Partnership), (v) any officer, director,
principal or general partner of the Operating Partnership or of any
sponsor, (vi) the officer, director, principal, promoter or general
partner of any General Partner, (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 any refusal order
or stop order thereunder entered within five years prior to the date
hereof;
(2) Has been convicted of or pleaded nolo contender 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 California Securities Law of
1968, as amended (the "California Act") or for any broker-dealer or
issuer with knowledge that such broker- dealer or issuer had not or
has not complied with the California 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).
