BOSTON CAPITAL TAX CREDIT FUND IV L.P.
_____________________________________
CERTIFICATION AND AGREEMENT
for
M.R.H., L.P.
____________________________________
CERTIFICATION AND AGREEMENT made as January 31, 1997, by M.R.H., L.P., a
Missouri limited partnership (the "Operating Partnership"); XXXX XXXXX HOME, a
Missouri not for profit corporation (the "Operating General Partner"); and THE
INSIGHT GROUP, INC., a Missouri corporation (the "Consultant") 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"), BOSTON CAPITAL ASSOCIATES IV L.P., a Delaware
limited partnership (the "Investment General Partner"), MIDWEST CAPITAL
CORPORATION, a Missouri corporation (the "Missouri Limited Partner"),
PEABODY & XXXXX, XXXXX X. XXX XXXXX, P.C. ("Xxx Xxxxx"), XXXXXX X. XXXXXX,
III, Attorney At Law ("Xxxxxx") and certain other persons or entities
described herein. The Investment Partnership, the Special Limited Partner and
the Missouri Limited Partner shall hereinafter be sometimes referred to
collectively as the "Limited Partners".
WHEREAS, the Operating Partnership proposes to admit the Limited
Partners as limited partners thereof pursuant to an Amended and Restated
Agreement of Limited Partnership of the Operating Partnership dated as of
January 1, 1997 (the "Operating Partnership Agreement") in accordance with
which the Investment Partnership will make a substantial capital contribution
to the Operating Partnership, the Special Limited Partner will make a $10
capital contribution to the Operating Partnership and the Missouri Limited
Partner will make a $277,327 capital contribution to the Operating
Partnership;
WHEREAS, the Limited Partners and the Investment General Partner have
relied upon certain information and representations described herein in
evaluating the merits of investment by the Limited Partners in the Operating
Partnership;
WHEREAS, Peabody & Xxxxx, as counsel for the Investment Partnership, the
Special Limited Partner and the Investment General Partner, will rely upon
such information and representations in connection with its delivery of
certain opinions with respect to this transaction;
WHEREAS, Xxx Xxxxx, as counsel for the Missouri Limited Partner, will
rely upon such information and representations in connection with its delivery
of certain opinions with respect to this transaction; and
WHEREAS, Xxxxxx, as counsel for the Operating Partnership and the
Operating 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
Operating Partnership Agreement, 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 Consultant hereby
agree as follows for the benefit of the Limited Partners, the Investment
General Partner, Peabody & Xxxxx, Xxx Xxxxx, Xxxxxx and certain other persons
hereinafter described.
1. Representations, Warranties and Covenants of the
Operating Partnership, the Operating General
Partner and the Consultant
The Operating Partnership, the Operating General Partner and the
Consultant jointly and severally represent, warrant and certify to the Limited
Partners, the Investment General Partner, Peabody & Xxxxx, Xxx Xxxxx and
Xxxxxx 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 Consultant 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 Consultant 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
Operating General Partner or the Consultant is bound or any law, regulation,
judgment, decree or order applicable to the Operating Partnership, the
Operating General Partner or the Consultant 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
Consultant, 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,
the Investment General Partner or their affiliates either in writing or
orally, did not, at the time given, and does not, on the date hereof, contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they are made. The
Operating General Partner has also delivered to the Limited Partners, the
Investment General Partner or their affiliates all documents and other
information which has been requested by such parties. Since the date of the
financial statements for the Operating General 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 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 Consultant 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, the Operating General Partner and the Original Limited Partner
contained in the Operating Partnership Agreement has been duly performed to
the extent that performance of any covenant or agreement is required on or
prior to the date hereof.
1.06 All conditions to admission of the
Limited Partners as limited partners of the Operating Partnership contained in
the Operating Partnership Agreement have been satisfied.
1.07 No default has occurred and is
continuing under the Operating Partnership Agreement or any of the Project
Documents (as such term is defined in the Operating Partnership Agreement) for
the Operating Partnership.
1.08 The Operating General Partner agrees to take all actions
necessary to claim the Projected Credit, including, without limitation, the
filing of Forms 8609 with the Internal Revenue Service.
1.09 No person or entity other than the Operating Partnership
holds any equity interest in the Apartment Complex.
1.10 The Operating Partnership has the sole responsibility to pay
all maintenance and operating costs, including all taxes levied and all
insurance costs, attributable to the Apartment Complex.
1.11 The Operating Partnership, except to the extent it is
protected by insurance and excluding any risk borne by lenders, bears the sole
risk of loss if the Apartment Complex is destroyed or condemned or there is a
diminution in the value of the Apartment Complex.
1.12 No person or entity except the Operating Partnership has the
right to any proceeds, after payment of all indebtedness, from the sale,
refinancing, or leasing of the Apartment Complex.
1.13 The Operating General Partner is not related in any manner
to the Limited Partners, nor is the Operating General Partner acting as an
agent of the Limited Partners.
1.14 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, the Operating General Partner nor the 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.
1.16 The Apartment Complex is not in violation of any State or
local health or building code or regulation.
1.17 As of December 31, 1996, the Operating Partnership had a
basis in the Apartment Complex equal to at least 10% of its anticipated basis
in the Apartment Complex as of December 31, 1998, and, all buildings in the
Apartment Complex will be placed in service for purposes of Section 42 of the
Code not later than December 31, 1998.
1.18 The Apartment Complex does not receive assistance under the
HUD Section 8 Moderate Rehabilitation Program other than under the Xxxxxxx X.
XxXxxxxx Homeless Assistance Act of 1988.
1.19 The Apartment Complex is located in a qualified census tract
for purposes of Section 42(d)(5)(C) of the Code.
1.20 A "qualified non-profit organization" as defined in Section
42(h)(5)(C) of the Code will own an interest in and materially participate in
the development and operation of the Apartment Complex throughout the
Compliance Period for purposes of Section 42(h)(5) of the Code.
1.21 The Operating General Partner is the general partner of the
Operating Partnership and will continue to remain as such at all times the
Operating Partnership is in existence.
1.22 The Operating General Partner is a qualified non-profit
organization as defined in Section 42(h)(5)(C) of the Code.
1.23 The Apartment Complex is currently licensed and operates as
a "Residential Care Facility II" under the laws of the State and will continue
to be so licensed and operate as such at all times. The services available to
tenants of the Apartment Complex under the Contract For Dining Services and
the Contract For Personal Services are strictly optional services to which
tenants do not have to avail themselves as a condition of occupancy for an
apartment unit in the Apartment Complex. For tenants not electing to utilize
the services provided under the Contract For Dining Services, practical
alternatives and facilities (including separate kitchen facilities) exist for
tenants to obtain and prepare meals within the Apartment Complex. All bathing
and dressing services are offered at no additional costs to the tenants.
1.24 The Apartment Complex does not employ any skilled nursing
personnel and tenants cannot receive skilled nursing care at the Apartment
Complex.
1.25 Each of the forty-eight (48) apartment units in the
Apartment Complex has a lock on its door.
2. Indemnification
2.01 The Operating General Partner (for purposes of this
Section 2.01, the "Indemnifying Party") agrees to indemnify and hold harmless
the Limited Partners and the Investment General Partner (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, lead-based paint, asbestos, 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
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 The 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 arrange-
ments satisfactory to any other Indemnifying Party or parties similarly noti-
fied, 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
Consultant, the Investment General Partner, Peabody & Xxxxx, Xxx 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 Operating Partnership Agreement but not
otherwise defined herein shall have the meanings given them in the Operating
Partnership Agreement.
IN WITNESS WHEREOF, the undersigned have set their hands and seals as of
the date first above written.
OPERATING PARTNERSHIP: CONSULTANT:
M.R.H., L.P. THE INSIGHT GROUP, INC.
By: Xxxx Xxxxx Home, By:/s/Xxxxxxx X. Xxxxxx
its general partner Xxxxxxx X. Xxxxxx, President
By:/s/Xxxxxxxxx X. Xxxxx
Xxxxxxxxx X. Xxxxx
Assistant Director
OPERATING GENERAL PARTNER:
XXXX XXXXX HOME
By:/s/Xxxxxxxxx X. Xxxxx
Xxxxxxxxx X. Xxxxx,
Assistant Director
Exhibit A
M.R.H., L.P.
FACT SHEET
1. Sources and Uses of Funds
A. Sources of Funds
(i) First Mortgage Loan: $1,817,466
(ii) Second Mortgage Loan: 989,629
(iii) Capital Contribution (Operating
General Partner): 1,622,647
(iv) Capital Contribution (Investment
Partnership): 1,601,573
(v) Capital Contribution (Missouri
Limited Partner): 277,327
Total Sources of Funds: $6,308,642
B. Uses of Funds
To Be Paid
Total At Closing
(i) Construction Costs (Paric Corp.): $1,896,564 $
0
(ii) Construction Costs (BSI Constructors, Inc.): 262,655 0
(iii) Bid Consulting: 3,000
0
(iv) Alarms, Blinds, Etc. 10,745
0
(v) Demolition: 13,280
0
(vi) Builder's Bond: 18,567
0
(vii) Furniture and Fixtures: 62,760
0
(viii) Architectural Fees (Xxxxx): 113,793 15,750
(ix) Architectural Fees (Xxxxxxxx): 18,828
0
(x) Architectural Fees (Xxxxxxx & Axon): 20,396
0
(xi) Tax Credit Fees: 19,200
0
(xii) Legal Fees (Insight Group): 100,000
100,000
(xiii) Construction Interest: 118,428
0
(xiv) Construction Insurance: 8,807
0
(xv) Pre-Construction Interest: 13,551
0
(xvi) Environmental Study: 14,838
0
(xvii) Survey & Engineering: 6,780
0
(xviii) Title and Recording and Disbursing: 11,650
2,500
(xix) Cost Certification: 2,500
0
(xx) Consulting Fee (Insight Group): 87,250
50,000
(xxi) Land: 92,446
0
(xxii) Legal Fees (Xxxxxxx): 8,500
0
(xxiii) Other Legal Fees: 3,248
0
(xxiv) Development Fee: 546,019
546,019
(xxv) Development Fee Int.: 20,572
20,572
(xxvi) Tax Abatement: 1,190
0
(xxvii) Working Capital Reserve: 36,000
36,000
(xxviii) Construction Period Real Estate Taxes: 8,397 0
(xxix) Relocation Costs: 7,810
0
(xxx) Construction Loan Fee (Boatmen's): 9,119
0
(xxxi) Permanent Financing Fee (Equitable): 29,000 0
(xxxii) Permanent Financing Fee (Boatmen's): 4,543
0
(xxxiii) Paydown of First Mortgage 1,495,000
610,550
(xxxiv) Operating Reserve: 100,000
100,000
(xxxv) Repayment of Second Mortgage: 989,629
989,629
(xxxvi) Second Mortgage Interest: 66,427
66,42
7
(xxxvii) Property Appraisal: 7,500 0
(xxxviii) Return of Operating General Partner
Capital Contribution: 59,999
0
(xxxix) Contingency: 19,651
19,651
Total Uses of Funds: $6,308,642
$2,55
7,098
2. Construction Mortgage Financing
A. Lender: The Boatmen's
National Bank of St. Xxxxx
X. Mortgage Amount: $1,850,000
C. Note Date: November 28, 1995
D. Interest Rate: Variable (Corporate Base Rate Plus 1/4%)
E. Term: Repaid January 30, 1997
3. First Mortgage Financing
A. Lender: The Boatmen's National Bank of St. Xxxxx
X. Mortgage Amount: $1,817,465.92
C. Note Date: January 29, 1997
D. Interest Rate: 8.75%
E. Term: 7 years
4. Second Mortgage Financing
A. Lender: Xxxx Xxxxx Home
B. Mortgage Amount: $989,629
C. Note Date: May 29, 1996
D. Interest Rate: 10%
E. Repaid: January 30, 1997
5. Grant
A. Grantor: City of St. Louis (CDBG Program)
X. Xxxxx Amount: $225,000
6. Eligible Basis: $2,957,611
7. Qualified Basis: $3,364,283
8. Capital Contribution (Operating
General Partner): $1,622,647
9. Type of Credit: 9% low income housing
(with 130% increase in basis due to
location in Qualified Census Tract
10. Rent-up Schedule by Units:
75% occupancy as of January 1, 1997
88% occupancy by February 28, 1997
100% occupancy by March 31, 1997
11. Projected Credit to the
Investment Partnership (99%) $2,859,952
A. $277,058 for 1997,
B. $285,995 per annum for each of the years 1998 through 2006,
and
C. $8,937 for 2007.
12. Total Projected Credit to the Operating Partnership
(100%): $2,888,840
A. $279,856 for 1997,
B. $288,884 per annum for each of the years 1998 through 2006,
and
C. $9,028 for 2007.
13. Projected Missouri Credit
to the Missouri Limited Partner (100%) $1,155,530
A. $111,942 for 1997;
B. $115,553 per annum for each of the years 1998 through 2006;
and
B. $3,611 for 2007.
14. Tax Credit Approval:
A. Initial Tax Credit Application
1. Date: January 29, 1996
2. Credit Amount Requested: $333,390
B. Firm Tax Credit Reservation
1. Date: September 19, 1996
2. Credit Amount Reserved: $288,884
C. Form 8609 Allocation
1. Date: December 31, 1996
2. Credit Amount Allocated: $288,884
3. Credit Percentage: 8.60%
15. Apartment Complex:
A. Name: The Xxxx Xxxxx Home
B. Address: 0000 Xxxxx Xxxxxx
Xx. Xxxxx, XX
C. County: St. Xxxxx
X. Type of Project: Residential Care Facility II
16. Area Median Income: $46,900
17. Type of Apartments:
Approximate
Unit
Number Square Ft. Rent
Private Bedrooms 16 192.5 $474
Semi-Private
Bedroom 32 220 $474
18. Annual Operating Expenses (beginning in 1998): $141,203
19. Operating and Working Capital Reserves: $136,000
20. Annual Deposit to Replacement Reserve Account: $8,707
21. Amount of Annual Asset Management Fee to Boston Capital Asset
Management Limited Partnership: $3,500
22. Amount of Annual Missouri Asset Management Fee to Missouri
Limited Partner: $1,500
23. Amount of Annual Partnership Management Fee to Operating
General Partner: $5,000
24. Amount of Annual Management Incentive Fee to Operating
General Partner: 60% of remaining Cash Flow after certain priority
distributions as set forth in Article X of Operating Partne
rship
Agreement
25. Amount of Total Depreciable Base Allocated to Personal Property: $78,57
1
26. Completion Date: June 5, 1996
27. Total Capital Contribution of Investment Partnership and Missouri
Limited Partner: $1,878,900
28. Schedule of Capital Contribution:
A. $934,451 (the "First Installment") will be made $795,787 by
the Investment Partnership and $138,664 by the Missouri
Limited Partner upon the latest of (i) State Designation,
(ii) Construction Mortgage Closing, (iii) Permanent Mortgage
Commitment or (iv) the Admission Date;
B. $934,449 (the "Second Installment") will be made $795,786 by
the Investment Partnership and $138,663 by the Missouri
Limited Partner upon the latest of (i) Completion Date,
(ii) Cost Certification, (iii) receipt by the Limited
Partners of the Updated Title Policy, (iv) Contractor's
Release Date, (v) December 31,1997, (vi) the Initial 100%
Occupancy Date, (vii) Permanent Mortgage Commencement,
(viii) Rental Achievement, or (ix) satisfaction of all
conditions to the payment of the First Installment; and
C. $10,000 (the "Third Installment") will be made by the
Investment Partnership upon the later to occur of (i) Rental
Achievement Confirmation, (ii) release of all UCC Financing
Statements executed by the Limited Partners or
(iii) satisfaction of all conditions to the payment of the
First and Second Installments;
29. Fees, Special Distributions, Return of Capital and Other Items to
be paid from Capital Contributions of Limited Partners:
A. Repayment of First Mortgage Debt: $1,495,000
X. Xxxxx Partnership: $ 15,750
C. Reserve Funding: $ 136,000
D. Other Direct Development Costs: $ 172,151
E. Return of Operating General Partner
Capital Contribution: $ 59,999
30. Operating General Partner: Xxxx Xxxxx Home
Address: 0000 Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Telephone Number: (000)000-0000
Contact Persons: Xx. Xxxxxxxxx X. Xxxxx
31. Ownership Interests
Normal Capital
Cash
Operations Transactions
Flow
Operating General
Partner: 1% 74.99% 80%
Investment Partnership: 99% 24.99% 20%
Special Limited Partner: 0% 0.01% 0%
Missouri Limited Partner: 0% 0.01% 0%
32. Management Agent: Xxxx Xxxxx Home
Contact Persons: Xx. Xxxxxxxxx X. Xxxxx
Address: 0000 Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Telephone Number: (000)000-0000
Amount of Fee: 8% of gross monthly collected rents
33. Builder: Paric Corporation
Address: 000 Xxxxx Xxxx
Xx. Xxxxx, XX 00000
Amount of Compensation: $1,896,564
34. Builder: BSI Constructors, Inc.
Address: 0000 Xxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Amount of Compensation: $262,655
35. Architect: Xxxxx Partnership, Inc.
Address: 000 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Amount of Fee: $113,793
36. Auditor: Xxxx, Xxxxx & Xxxxxxxx LLP
Contact Person: Xxxx Xxxxx
Address: 00000 Xxxxx Xxxxxx
Xxxxx 00
Xx. Xxxxx, XX 00000
Telephone Number: (000)000-0000
37. Tax Return Preparer: Xxxx, Xxxxx & Xxxxxxxx LLP
Contact Persons: Xxxx Xxxxx
Address: 00000 Xxxxx Xxxxxx Xxxxx 00
Xx. Xxxxx, XX 00000
Telephone Number: (000)000-0000
38. Federal Taxpayer ID Number: 00-0000000
39. Building Breakdown: Xxxxxxxx Xx. Xx. xx Xxxxx XXX #
0 00 MO-96-00282
40. MHDC 1996 LIHTC Case Number: 96-031
cc: Boston Capital Communications Limited Partnership
Accounting Department
Exhibit B
Certificate of Operating Partnership,
Operating General Partner and Consultant
Re: Lack of Disqualifications
The Operating Partnership, its Operating General Partner and the
Consultant (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) any
officer, director, principal, promoter or general partner of any
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 a any refusal order
or stop order thereunder entered within five years prior to the date
hereof;
(2) Has been convicted of or pleaded nolo contendere to a
misdemeanor or felony or, within the last ten years, been held liable in
a civil action by final judgment of a court based upon conduct showing
moral turpitude in connection with the offer, purchase or sale of any
security, franchise or commodity (which term, for the purposes of this
Certificate shall hereinafter include commodity futures contracts) or
any other aspect of the securities or commodities business, or involving
racketeering, the making of a false filing or a violation of Sections
1341, 1342 or 1343 of Title 18 of the United States Code or arising out
of the conduct of the business of an issuer, underwriter, broker,
dealer, municipal securities dealer, or investment adviser, or involving
theft, conversion, misappropriation, fraud, breach of fiduciary duty,
deceit or intentional wrongdoing including, but not limited to, forgery,
embezzlement, obtaining money under false pretenses, larceny fraudulent
conversion or misappropriation of property or conspiracy to defraud, or
which is a crime involving moral turpitude, or within the last five
years of a misdemeanor or felony which is a criminal violation of
statutes designed to protect consumers against unlawful practices
involving insurance, securities, commodities, real estate, franchises,
business opportunities, consumer goods or other goods and services;
(3) Is subject to (a) any administrative order, judgment
or decree entered within five years prior to the date hereof entered or
issued by or procured from a state securities commission or
administrator, the Securities and Exchange Commission ("SEC"), the
Commodities Futures Trading Commission or the U.S. Postal Service, or to
(b) any administrative order or judgment, arising out of the conduct of
the business of an underwriter, broker, dealer, municipal securities
dealer, or investment adviser, or involving deceit, theft, fraud or
fraudulent conduct, or breach of fiduciary duty, or which is based upon
a state banking, insurance, real estate or securities law or (c) has
been the subject of any administrative order, judgment or decree in any
state in which fraud, deceit, or intentional wrongdoing, including, but
not limited to, making untrue statements of material fact or omitting to
state material facts, was found;
(4) Is subject to any pending proceeding in any
jurisdiction relating to the exemption from registration of any security
or offering, or to any order, judgment or decree in which registration
violations were found or which prohibits, denies or revokes the use of
any exemption from registration in connection with the offer, purchase
or sale of securities, or to an SEC censure or other order based on a
finding of false filing;
(5) Is subject to any order, judgment or decree of any
court or regulatory authority of competent jurisdiction entered within
five years prior to the date hereof, temporarily, preliminarily or
permanently restraining or enjoining such persons from engaging in or
continuing any conduct or practice in connection with any aspect of the
securities or commodities business or involving the making of any false
filing or arising out of the conduct of the business of an underwriter,
broker, dealer, municipal securities dealer, or investment adviser, or
which restrains or 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 the Pennsylvania Securities Act of 1972,
as amended (the "Pennsylvania Act") or for any broker-dealer or issuer
with knowledge that such broker- dealer or issuer had not or has not
complied with the Pennsylvania 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).
