BOSTON CAPITAL TAX CREDIT FUND IV, X.X.
XXXXXXXXX PLACE APARTMENTS, L.P.
CERTIFICATION AND AGREEMENT
CERTIFICATION AND AGREEMENT made as of January 1, 1996, by, XXXXXXXXX
PLACE APARTMENTS, L.P. a Georgia limited partnership (the "Operating
Partnership"); REA DEVELOPMENT COMPANY, INC. (the "Operating General Partner)
and XXXXXXX X. XXX, XX. AND XXXXXXX X. XXX (the "Original Limited Partners")
for the benefit of BOSTON CAPITAL TAX CREDIT FUND IV, L.P. a Delaware limited
partnership (the "Investment Partnership"), BOSTON CAPITAL ASSOCIATES IV, L.P.
a Delaware limited partnership ("Boston Capital"), XXXXX & XXXXX, P.C. and
certain other persons or entities described herein.
WHEREAS, the Operating Partnership proposes to admit the Investment
Partnership as a limited partner thereof pursuant to the Second Amended and
Restated Agreement and Certificate of Limited Partnership of the Operating
Partnership dated as of January 1, 1996 (the "Operating Partnership
Agreement"), in accordance with which the Investment Partnership will make
substantial capital contributions to the Operating Partnership;
WHEREAS, the Investment Partnership and Boston Capital have relied upon
certain information and representations described herein in evaluating the
merits of investment by the Investment Partnership in the Operating
Partnership; and
WHEREAS, Xxxxx & Xxxxx, P.C., as counsel for the Investment Partnership,
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 Investment Partnership to enter into the
Operating Partnership Agreement and become a limited partner 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 Operating General Partner and the Original Limited Partner
hereby agree as follows for the benefit of the Investment Partnership, Boston
Capital, Xxxxx & Xxxxx, P.C. and certain other persons hereinafter described.
1. Representations, Warranties and Covenants of the
Operating Partnership, the Operating General
Partner and the Limited Partner
The Operating Partnership, the Operating General Partner and the Original
Limited Partner jointly and severally represent, warrant and certify to the
Investment Partnership, Boston Capital, and Xxxxx & Xxxxx, P.C. 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 its apartment complex (the
"Apartment Complex") and conduct its business; the Operating Partnership, the
Operating General Partner and the Original Limited 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 Operating General Partner and the Original Limited 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 any Operating General Partner or Original Limited Partner is bound or any
law, regulation, judgment, decree or order applicable to the Operating
Partnership or any Operating General Partner or the Original Limited Partner or
any of their respective properties; this Certification and Agreement
constitutes the valid and binding agreement of the Operating Partnership, the
Operating General Partner and the Original Limited Partner, enforceable against
each of them in accordance with its terms.
1.02 The Operating General Partner has delivered to the
Investment Partnership, Boston Capital or their affiliates all documents and
information which would be material to a prudent investor in deciding whether
to invest in the Operating Partnership. All factual information, including
without limitation the information set forth in Exhibit A hereto, provided to
the Investment Partnership, Boston Capital 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.
Since the date of the financial statements for the Operating General Partner
previously delivered, there has been no material adverse change in the
financial position of the Operating General Partner. The estimates of
occupancy rates, operating expenses, depreciation and tax credits set forth on
Exhibit A are reasonable in light of the knowledge and experience of the
Operating 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 Operating General Partner and the
Original Limited Partner and as to any of their affiliates, any of their
predecessors and their affiliates' predecessors, any of their directors,
officers, general partners and/or beneficial owners of ten per cent (10%) or
more of any class of their equity securities (beneficial ownership meaning the
power to vote or direct the vote and/or the power to dispose or direct the
disposition of such securities), as the case may be, and any promoters
presently connected with them in any capacity.
1.04 Each of the representations and warranties contained in
the Operating Partnership Agreement is true and correct as of the date hereof.
1.05 Each of the covenants and agreements of the Operating
Partnership and the Operating General 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 Investment
Partnership as the investment limited partner of the Operating Partnership
contained in the Operating Partnership Agreement have been satisfied.
1.07 No default has occurred and is continuing under the
Operating Partnership Agreement or any of the Project Documents (as said term
is defined in the Operating Partnership Agreement) for the Operating
Partnership.
1.08 The Operating General Partner agrees to take all
actions necessary to claim the Projected Credit, including, without limitation,
the filing of Form(s) 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 No Operating General Partner is related in any manner
to the Investment Partnership, nor is the Operating General Partner acting as
an agent of the Investment Partnership.
1.14 The Apartment Complex contains no 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 biphenyls (PCBs), and radon; the Apartment Complex is not
affected by the presence of oil, toxic substances, or other pollutants that
could be a detriment to the Apartment Complex nor is the Operating Partnership
in violation of any local, state, or federal law or regulation; and no
violation of the Clean Air Act, Clean Water Act, Resource Conservation and
Recovery Act, Toxic Substance Control Act, Safe Drinking Water Control Act,
Comprehensive Environmental Resource Compensation and Liability Act, or
Occupational Safety and Health Act has occurred or is continuing. Neither the
Operating Partnership nor any Operating General Partner or Original Limited
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 fair market value of the Apartment Complex exceeds
the total amount of indebtedness encumbering the Apartment Complex and is
expected to continue to do so throughout the term of such indebtedness.
2. Indemnification
2.01 The Operating General Partner (for purposes of this
Section 2.01, the "Indemnifying Parties" or, individually, an "Indemnifying
Party") agree to indemnify and hold harmless the Investment Partnership and
Boston Capital (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 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 his
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 under any statute, regulation,
ordinance, or other provision of federal, state, or local law or any civil
action pertaining to the protection of the environment or otherwise pertaining
to public health or employee health and safety, including, without limitation,
protection from hazardous waste, leadbased paint, asbestos, methane gas, urea
formaldehyde insulation, oil, toxic substance, underground storage tanks,
polychlorinated biphenyls (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 investigating or defending against any such Liability or
action; provided, however, that the Indemnifying Party shall not be required to
indemnify any Indemnified Party or any such officer, director, employee or
controlling person for any payment made to any claimant in settlement of any
Liability or action unless such payment is approved by the Indemnifying Party
or by a court having jurisdiction of the controversy. This indemnity agreement
shall remain in full force and effect notwithstanding any investigation made by
any party hereto, shall survive the termination of any agreement which refers
to this indemnity and shall be in addition to any liability which the
Indemnifying Party may otherwise have.
2.02 No Indemnifying Party shall be liable under the
indemnity agreements contained in Section 2.01 unless the Indemnified Party
shall have notified the Indemnifying Party in writing within forty-five (45)
business days after the summons or other first legal process giving information
of the nature of the claim shall have been served upon the Indemnified Party or
any such of its officers, directors, employees or controlling persons, but
failure to notify an Indemnifying Party of any such claim shall not relieve it
from any liability which it may have to the Indemnified Party or any such of
its officers, directors, employees or controlling persons against whom action
is brought otherwise than on account of its indemnity agreement contained in
Section 2.01. In case any action is brought against any Indemnified Party or
any such of its officers, directors, employees or controlling persons upon any
such claim, and it notifies the Indemnifying Party of the commencement thereof
as aforesaid, the Indemnifying Party shall be entitled to participate at its
own expense in the defense, or, if it so elects, in accordance with
arrangements satisfactory to the other Indemnifying Party or parties similarly
notified, to assume the defense thereof, with counsel who shall be 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, other than the
reasonable costs of investigation.
3. Miscellaneous
3.01 This Certification and Agreement is made solely for the
benefit of the Operating Partnership, the Operating General Partner, the
Original Limited Partner, Boston Capital, Xxxxx & Xxxxx, P.C., and the
Investment Partnership (and, to the extent provided in Section 2, the officers,
directors, partners, employees and controlling persons referred to therein),
and their respective successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Agreement.
3.02 This Certification and Agreement may be executed in
several counterparts, each of which shall be deemed to be an original, all of
which together shall constitute one and the same instrument.
3.03 Terms defined in the Operating Partnership Agreement
and used but not otherwise defined herein shall have the meanings given to them
in the Operating Partnership Agreement.
IN WITNESS WHEREOF, the undersigned have set their hands and seals as of
the date first above written.
OPERATING PARTNERSHIP:
XXXXXXXXX PLACE APARTMENTS, L.P.
By: AREA DEVELOPMENT COMPANY,
its General Partner
By: /s/xxxxxxx X. Xxx, Xx.
Xxxxxxx X. Xxx, Xx.,
its President
OPERATING GENERAL PARTNERS:
REA DEVELOPMENT COMPANY,
its General Partner
By: /s/Xxxxxxx X. Xxx, Xx.
Xxxxxxx X. Xxx, Xx.,
its President
ORIGINAL LIMITED PARTNERS:
/s/Xxxxxxx X. Xxx, Xx.
Xxxxxxx X. Xxx, Xx.
/s/Xxxxxxx X. Xxx
Xxxxxxx X. Xxx
11593_1
Exhibit A
XXXXXXXXX PLACE APARTMENTS, L.P.
FACT SHEET
1. Construction Financing
A. Lender First State Bank & Trust Company B.
Mortgage Amount: $362,910
C. Note Date:
D. Interest Rate: Wall Street Bank Prime + .5%
E. Term:
2. Permanent Financing - Part 1 (Assumption)
A. Lender FmHA
B. Mortgage Amount: $963,949.17
C. Note Date: September 14, 1995
D. Interest Rate: 7.5%
E. Term: June 12, 2030
F. Amortization:
2A. Permanent Financing - Part 2 (Rehabilitation)
A. Lender FmHA
B. Mortgage Amount: $362,910
C. Note Date:
D. Obligation Date: June 8, 1995
E. Interest Rate: 8%
F. Term: 35 Years
G. Amortization:
3. Eligible Basis (Acquisition): $1,051,138
Eligible Basis (Rehab.): $ 589,041
4. Qualified Basis (Acquisition): $1,051,138
Qualified Basis (Rehab.): $ 589,041
5. Operating General Partner
Capital Contribution: $43,090
6. Working Capital Loan
Amount: $20,220
7. Type of Credit: 3.67%
8. Rent-up Schedule:
13% occupancy by May 31, 1996
26% occupancy by June 30, 1996
39% occupancy by July 31, 1996
52% occupancy by August 31, 1996
83% occupancy by September 30, 1996
96% occupancy by October 31, 1996
100% occupancy by November 30, 1996
9. Projected Credit to the
Investment Partnership (99%) $596,108
A. $22,354 for 1996
B. $59,611 per annum for each of the years 1997 through 2005
C. $37,257 for 2006 (provided, however, that the projected credit
for 2006 shall be reduced by the amount, if any, by which the Actual
Credit for 1996 exceeds $22,354).
10. Total Projected Credit to the
Operating Partnership (100%) $602,129
A. $22,580 for 1996
B. $60,213 per annum for each of the
years 1997 through 2005
C. $37,633 for 2006.
11. Tax Credit Approval:
A. Application
1. Date: April 5, 1995
2. Amount requested: $ 63,080
B. Reservation
1. Date: August 7, 1995
2. Amount Reserved: $ 62,521
12. Apartment Complex:
A. Name: Xxxxxxxxx Apartments
B. Address: Xxxxxxxxx Xxxx
Xxxxxx, XX 00000
C. County: Xxxxxxx
D. Type of Project: Family/Elderly
13. Area Median Income: $ 25,600
14. Type of Apartments:
Unit Basic Utility
Number Sq. Ft. Rent Allowance
1-Bedroom 16 705 $225 $53
2-Bedroom 32 860 $236 $67
15. Annual Operating Expenses
(beginning 1997): $76,779
16. Reserve Account
A. Annual: $ 12,312
B. Total: $123,120
17. Amount of Annual Asset Management
Fee to Boston Capital $1,670
(beginning 1997):
18. Amount of Annual Partnership
Management Fee: $1,670
19. Amount of Total Depreciable
Base Allocated to Personal
Property: $47,900 (3.03%)
20. Completion Date: March 1996
21. Total Capital Contribution of
Investment Partnership: $333,821
22. Schedule of Capital Contributions
A. $200,292 on the latest to occur of (i) Admission Date, (ii) Tax
Credit Set Aside, (iii) Construction Loan Closing or (iv) receipt of
Permanent Mortgage Commitment acceptable to the Investment Limited
Partner.
B. $83,455 on the latest to occur of (i) Completion Date, (ii)
Cost Certification, (iii) State Designation, (iv) receipt of an
updated title insurance policy satisfactory to the Investment Limited
Partner and its counsel, (v) compliance with Due Diligence
recommendations , (vi) 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 or (vii) receipt of Estoppel letter from each lender;
C. $40,074 on the latest to occur of (i) the Initial 95%
Occupancy Date, (ii) Permanent Mortgage Commencement or (iii)
Breakeven Point; and
D. $10,000 on the to occurrence of (i) receipt of a tax return
and an audited financial statement for the year in which the Breakeven
Point occurred.
23. Fees and Other Items to be paid from Capital Contributions
Construction and Development Fee: $165,809
24. Operating General Partners: Rea Development Company
Address: 000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Telephone:
25. Ownership Interests
Normal Capital Cash
Operations Transactions Flow
Operating General Partner: 1% 60% 50%
Investment Partnership: 99% 39.99% 50%
Special Limited Partner: 0% 0.001% 0%
26. Management Agent: X.X. Xxxx Investments
Contact Person: Xxxxxxxx Xxxxx
Address: 000 Xxxxxxx Xxxxxx
Xxxxx, XX 00000
Telephone Number: (000) 000-0000
Amount of Fees: $24 per occupied unit
27. Builder: Rea Construction Company
Address: X.X. Xxx 000
Xxxxxxx, XX 00000
Amount of Compensation: $356,204
Builder's Profit: $33,285
28. Auditor and Tax Return Preparer:
Contact Person:
Address:
Telephone Number:
Fax Number:
29. Federal Taxpayer ID Number: 00-0000000
30. Building Breakdown:
A. # of Xxxxx 00
X. # xx Xxxxxxxx
X. XXX #
xx: Boston Capital Communications Limited Partnership
Accounting Departmen
Exhibit B
Certificate of Operating Partnership,
Operating General Partner and Original Limited
Partner Re: Lack of Disqualifications
The Operating Partnership, its Operating General Partner and its
Original Limited Partner (as identified on the Certification and
Agreement to which this Certificate is attached as Exhibit B) hereby
represent to you that neither (i) the Operating Partnership, (ii) any
predecessor of the Operating Partnership, (iii) any of the Operating
Partnership's affiliates ("affiliate" meaning a person that controls
or is controlled by, or is under common control with, the Operating
Partnership), (iv) any sponsor (meaning any person who (1) is directly
or indirectly instrumental in organizing the Operating Partnership or
(2) will directly or indirectly manage or participate in the
management of the Operating Partnership or (3) will regularly perform,
or select the person or entity who will regularly perform, the primary
activities of the Operating Partnership), (v) any officer, director,
principal or general partner of the Operating Partnership or of any
sponsor, (vi) any officer, director, principal, promoter or general
partner of the Operating 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 contendere to a
misdemeanor or felony or, within the last ten years, been held liable
in a civil action by final judgment of a court based upon conduct
showing moral turpitude in connection with the offer, purchase or sale
of any security, franchise or commodity (which term, for the purposes
of this Certificate shall hereinafter include commodity futures
contracts) or any other aspect of the securities or commodities
business, or involving racketeering, the making of a false filing or a
violation of Sections 1341, 1342 or 1343 of Title 18 of the United
States Code or arising out of the conduct of the business of an
issuer, underwriter, broker, dealer, municipal securities dealer, or
investment adviser, or involving theft, conversion, misappropriation,
fraud, breach of fiduciary duty, deceit or intentional wrongdoing
including, but not limited to, forgery, embezzlement, obtaining money
under false pretenses, larceny fraudulent conversion or
misappropriation of property or conspiracy to defraud, or which is a
crime involving moral turpitude, or within the last five years of a
misdemeanor or felony which is a criminal violation of statutes
designed to protect consumers against unlawful practices involving
insurance, securities, commodities, real estate, franchises, business
opportunities, consumer goods or other goods and services;
(3) Is subject to (a) any administrative order, judgment or
decree entered within five years prior to the date hereof entered or
issued by or procured from a state securities commission or
administrator, the Securities and Exchange Commission ("SEC"), the
Commodities Futures Trading Commission or the U.S. Postal Service, or
to (b) any administrative order or judgment, arising out of the
conduct of the business of an underwriter, broker, dealer, municipal
securities dealer, or investment adviser, or involving deceit, theft,
fraud or fraudulent conduct, or breach of fiduciary duty, or which is
based upon a state banking, insurance, real estate or securities law
or (c) has been the subject of any administrative order, judgment or
decree in any state in which fraud, deceit, or intentional wrongdoing,
including, but not limited to, making untrue statements of material
fact or omitting to state material facts, was found;
(4) Is subject to any pending proceeding in any jurisdiction
relating to the exemption from registration of any security or
offering, or to any order, judgment or decree in which registration
violations were found or which prohibits, denies or revokes the use of
any exemption from registration in connection with the offer, purchase
or sale of securities, or to an SEC censure or other order based on a
finding of false filing;
(5) Is subject to any order, judgment or decree of any court or
regulatory authority of competent jurisdiction entered within five
years prior to the date hereof, temporarily, preliminarily or
permanently restraining or enjoining such persons from engaging in or
continuing any conduct or practice in connection with any aspect of
the securities or commodities business or involving the making of any
false filing or arising out of the conduct of the business of an
underwriter, broker, dealer, municipal securities dealer, or
investment adviser, or which restrains or enjoins 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 any State Securities
Act or for any broker-dealer or issuer with knowledge that such
broker-dealer or issuer had not or has not complied with any such 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).
11593_1
