Additional Requirements of the Issuer. In addition to the requirements set forth above and to the extent not prohibited thereby, the Owner hereby agrees to comply with each of the requirements of the Issuer set forth in this Section 5, as follows: (a) Notwithstanding any prepayment of the Loan and notwithstanding a discharge of the Loan Agreement, throughout the term of this Regulatory Agreement, the Owner shall continue to pay to the Issuer its administrative fee described in the second succeeding sentence, and to the Issuer and to the Trustee reasonable compensation for any services rendered by either of them hereunder and reimbursement for all expenses reasonably incurred by either of them in connection therewith. The Owner agrees to pay to the Issuer (i) on the Closing Date, the Issuer’s up-front administrative fee in the amount of $270,625, which amount is equal to 0.125% of the maximum aggregate principal amount of the Bonds ($216,500,000) and (ii) on each anniversary of the Closing Date and continuing throughout the Qualified Project Period, the Issuer’s annual fee in the amount of $75,000. In addition, the Owner agrees to pay, within 30 days after receipt of request for payment thereof, all reasonable out-of-pocket expenses of the Issuer (excluding salaries and wages of Issuer employees) related to the Bonds, the Project and the financing thereof, including, without limitation, legal fees and expenses incurred in connection with the interpretation, performance, enforcement or amendment of any documents relating to the Project or the Bonds. The fees of the Issuer referenced in this Section shall in no way limit amounts payable by the Owner under Section 7 hereof, or otherwise arising in connection with the Issuer’s or Trustee’s enforcement of the provisions of this Regulatory Agreement, but the Issuer does agree to compensate any third party Administrator appointed by it from its annual administrative fees for the ordinary duties of the Administrator hereunder. In addition to the foregoing, the Owner shall pay to the Issuer, promptly following a written demand from the Issuer to the Owner therefore, any out-of-pocket expenses of the Issuer incurred in connection with the administration of any of the Mortgage Loan Documents (as defined in the Indenture) or the Loan Agreement. In the event that the Bonds are prepaid in part or in full prior to the end of the term of this Regulatory Agreement other than (i) by means of refunding bonds issued by the Issuer to refund the Bonds, or (ii) in connection with a foreclosure or deed in lieu of foreclosure, and transfer of title to the Project other than to the Owner or any party related to the Owner; the Issuer’s annual fee for the remainder of the term of this Regulatory Agreement, at the option of the Issuer, shall be paid by the Owner at the time of the prepayment of the Bonds and shall be a lump sum amount equal to the present value (based on a discount rate equal to the yield on the Bonds, as determined by the Issuer at the time of prepayment) of the Issuer’s fee, calculated based on the principal amount of Bonds outstanding immediately preceding such prepayment, for the number of years remaining under this Regulatory Agreement. Notwithstanding the foregoing provisions of this Section 5, in no event shall the fees payable to the Issuer under this Section 5 exceed any applicable limitation imposed by the Code in respect of bonds issued under Section 148 of the Code. (b) All tenant lists, applications and waiting lists relating to the Affordable Rate Condominium shall at all times be kept separate and identifiable from any other business of the Affordable Owner and shall be maintained as required by the Administrator, the Issuer or the Trustee, in a reasonable condition for proper audit and subject to examination, upon reasonable notice, during business hours by representatives of the Administrator, the Issuer and the Trustee. (c) The Owner shall submit to the Administrator within fifteen (15) Business Days (as defined in the Indenture) after receipt of a written request, any information or completed forms requested by the Issuer in order to comply with reporting requirements of the Internal Revenue Service or the State. (d) The covenants and conditions of this Regulatory Agreement shall be binding upon successors in interest of the Owner. (e) The Owner acknowledges that the Issuer may act as Administrator itself or may appoint an Administrator other than the initial Administrator to administer this Regulatory Agreement and to monitor performance by the Owner of the terms, provisions and requirements hereof. In such event, the Owner shall comply with any request by the Issuer to deliver to any such Administrator, in addition to or instead of the Issuer, any reports, notices or other documents required to be delivered pursuant hereto, and to make the Project and the books and records with respect thereto available for inspection by the Administrator as an agent of the Issuer. The fees and charges of the Administrator, if any, shall be the responsibility of the Issuer and not the Owner. (f) The Very Low Income Units (i) shall have characteristics comparable to all other units in the Project with the same number of bedrooms, including with respect to floor area and amenities, (ii) shall be distributed throughout the Project, and (iii) shall have the same access to Project facilities as all other units in the Project. (g) In accordance with the Issuer’s Policy for Multifamily Mortgage Revenue Bond Program, notwithstanding the termination of the Qualified Project Period or the provisions of Section 2(m) hereof, the rent of “in-place” Very Low Income Tenants at the conclusion of the Qualified Project Period will continue to be governed by the applicable affordability restrictions in this Regulatory Agreement, so long as those tenants continue to live in the Project. (h) The Owner will comply with the following post issuance compliance procedures of the Issuer: (i) At the completion of the construction of the Project, the Owner shall provide to the Administrator a certification from the Owner’s architect (or other appropriate representative acceptable to the Issuer, such as a HERS Rater, GreenPoint Rater, energy consultant, etc.) for the Project to the effect that the Project includes all design elements that formed the basis for CDLAC adopting the CDLAC Resolution (including but not limited to sustainable building methods and/or energy efficiency elements). (ii) Subject to the provisions of the next paragraph, the Administrator shall have the right to approve any voluntary change in ownership (A) that results in a transfer of 50% or more of the total equity interests in the Owner, or (B) that results in a transfer of any general partner or managing member interest in the Owner. Such approval to transfer ownership shall be at the reasonable discretion of the Administrator, and shall be in addition to any applicable requirements set forth in this Regulatory Agreement, the Loan Agreement or the Security Instrument. The Administrator may review management practices of the proposed transferee’s current and previously owned properties, if any. Any proposed transferee (including individuals with an ownership interest) whose currently-owned properties have been found by the Administrator to have deficiencies that have not been resolved within the time frame prescribed by the City, the Issuer, the Administrator or other local government authority, may not assume ownership of the Project. The Administrator may initiate additional inspections, at the proposed transferee’s request, to verify findings. The Owner agrees that it will provide the Administrator with notice of any such transfer within thirty (30) days thereof. Notwithstanding the foregoing, any of the following shall not require the prior consent of the Issuer or the Administrator: (A) transfers of or in the limited partner interests of the Owner, (B) the removal and replacement of one or more general partners or managing members of the Owner in accordance with the terms of the Partnership Agreement or Operating Agreement, (C) foreclosure (or acceptance of a deed in lieu of foreclosure), or the first transfer of the Project following a foreclosure under the Security Instrument or acceptance of a deed in lieu of such foreclosure, and (D) any transfer referred to in the last sentence of Section 11 of this Regulatory Agreement. (iii) The Owner shall provide the Administrator’s staff with all documentation necessary, in the sole discretion of the Administrator’s staff, to confirm the Owner’s and the Project’s compliance with federal tax laws as set forth in the Tax Certificate, the Loan Agreement and this Regulatory Agreement, including the requirements of Section 5.1 of the Loan Agreement regarding rebate compliance. Any of the foregoing requirements of the Issuer may be expressly waived by the Issuer in writing, but (i) no waiver by the Issuer of any requirement of this Section 5 shall, or shall be deemed to, extend to or affect any other provision of this Regulatory Agreement except to the extent the Issuer has received an opinion of Tax Counsel that any such provision is not required by the Act and a Tax Counsel No Adverse Effect Opinion; and (ii) any requirement of this Section 5 shall be void and of no force and effect if the Issuer and the Owner receive a written opinion of Tax Counsel to the effect that compliance with any such requirement would cause interest on the Bonds to cease to be Tax-Exempt or to the effect that compliance with such requirement would be in conflict with the Act or any other State or federal law. Nothing contained in this Regulatory Agreement is intended to limit the restrictions, requirements or obligations in the DDA, or any recorded affordability restrictions pursuant thereto or otherwise in connection with the Project, and nothing contained in the DDA (or any such recorded affordability restrictions) is intended to limit the restrictions, requirements or obligations in this Regulatory Agreement. In the event of any conflict between this Regulatory Agreement and the DDA or any recorded affordability restrictions with respect to the Project, the most restrictive shall control.
Appears in 1 contract
Samples: Regulatory Agreement and Declaration of Restrictive Covenants
Additional Requirements of the Issuer. In addition to the requirements set forth above and to the extent not prohibited thereby, the Owner hereby agrees to comply with each of the requirements of the Issuer set forth in this Section 57, as follows:
(a) Notwithstanding any prepayment The Owner shall pay or cause to be paid to the Issuer on the Delivery Date, the “Governmental Lender’s Closing Fee” in an amount equal to $ (which represents an amount equal to one-half of one percent (0.5%) of the Loan and notwithstanding a discharge first $10,000,000 of aggregate principal amount of the Loan AgreementSenior Issuer Notes and Junior Bonds (the “Obligations”) and one-quarter of one percent (0.25%) of the portion of the principal of the Obligations in excess of $10,000,000). In addition, throughout without demand or notice, the term Owner shall pay or cause to be paid to the Issuer (or other Administrator designated in writing by the Issuer) an annual monitoring fee (the “Ongoing Governmental Lender Fee”). The Ongoing Governmental Lender Fee shall be in an annual amount equal to $ [Note: this will be 1/8 of 1 % of the initial principal amount of the tax-exempt borrowing, without reduction] and shall be payable, in advance, on the Delivery Date and on each [April 1] thereafter.
(b) Under no circumstances shall the Ongoing Governmental Lender Fee exceed any limitation under Section 148 of the Code. In the event that the Obligations are redeemed in full prior to the termination of this Regulatory Agreement, the Owner shall continue to pay to Issuer may, at its option, require the prepayment of the Ongoing Governmental Lender Fee (a “Fee Prepayment”) at such time as the Obligations are redeemed in full. The amount due upon a Fee Prepayment will be a lump sum amount calculated by the Issuer its administrative fee described in as the second succeeding sentence, and to the Issuer and to the Trustee reasonable compensation for any services rendered by either of them hereunder and reimbursement for all expenses reasonably incurred by either of them in connection therewith. The Owner agrees to pay to the Issuer (i) on the Closing Date, the Issuer’s up-front administrative fee in the amount of $270,625, which amount is equal to 0.125% present value of the maximum aggregate principal amount Ongoing Governmental Lender Fee due from the date of the Bonds ($216,500,000) and (ii) on each anniversary Fee Prepayment through the end of the Closing Date and continuing throughout the Qualified Project Period, the Issuer’s annual fee in the amount of $75,000. In addition, the Owner agrees to pay, within 30 days after receipt of request for payment thereof, all reasonable out-of-pocket expenses of the Issuer (excluding salaries and wages of Issuer employees) related to the Bonds, the Project and the financing thereof, including, without limitation, legal fees and expenses incurred in connection with the interpretation, performance, enforcement or amendment of any documents relating to the Project or the Bonds. The fees of the Issuer referenced in this Section shall in no way limit amounts payable by the Owner under Section 7 hereof, or otherwise arising in connection with the Issuer’s or Trustee’s enforcement of the provisions of this Regulatory Agreement, but the Issuer does agree to compensate any third party Administrator appointed by it from its annual administrative fees for the ordinary duties of the Administrator hereunder. In addition to the foregoing, the Owner shall pay to the Issuer, promptly following a written demand from the Issuer to the Owner therefore, any out-of-pocket expenses of the Issuer incurred in connection with the administration of any of the Mortgage Loan Documents (as defined in the Indenture) or the Loan Agreement. In the event that the Bonds are prepaid in part or in full prior to the end of the term of this Regulatory Agreement other than (i) by means of refunding bonds issued by the Issuer to refund the Bonds, or (ii) in connection with a foreclosure or deed in lieu of foreclosure, and transfer of title to the Project other than to the Owner or any party related to the Owner; the Issuer’s annual fee for the remainder of the term of this Regulatory Agreement, at the option of the Issuer, shall be paid by the Owner at the time of the prepayment of the Bonds and shall be a lump sum amount equal to the present value (based on using a discount rate equal to the yield then current rate on U.S. Treasuries with a maturity that most closely approximates the Bonds, as determined by the Issuer at the time of prepayment) remaining term of the Issuer’s fee, calculated based on the principal amount of Bonds outstanding immediately preceding such prepayment, for the number of years remaining under this Regulatory Agreement. Notwithstanding the foregoing provisions of this Section 5, in no event shall the fees payable to the Issuer under this Section 5 exceed any applicable limitation imposed by the Code in respect of bonds issued under Section 148 of the CodeQualified Project Period.
(bc) All tenant lists, applications and waiting lists relating to the Affordable Rate Condominium Project shall at all times be kept separate and identifiable from any other business of the Affordable Owner and shall be maintained as required by the Administrator, the Issuer or the TrusteeIssuer, in a reasonable condition for proper audit and subject to examination, upon reasonable notice, examination during business hours by representatives of the Issuer (including the Administrator, the Issuer and the Trustee).
(cd) The Owner shall submit to the Administrator Issuer, within fifteen (15) Business Days (as defined in the Indenture) days after receipt of a written requestrequest therefor, any information information, records or completed forms requested by the Issuer in order to comply with reporting requirements of the Internal Revenue Service or the State.
(de) The covenants and conditions Owner shall not discriminate on the basis of this Regulatory Agreement shall be binding upon successors race, creed, color, religion, sex, sexual orientation, marital status, national origin, ancestry or handicap in interest the lease, use or occupancy of the OwnerProject or in connection with the employment or application for employment of persons for the construction, operation or management of the Project, and will not discriminate on the basis of household size as long as the tenants meet the household size standards of Section 8 of the Housing Act. Further, the Owner shall not permit occupancy in any unit in the Project by more persons than is permissible under the Section 8 household size standards.
(ef) The Owner acknowledges that the Issuer may act as Administrator itself or may appoint an Administrator other than the initial Administrator Issuer to administer this Regulatory Agreement and to monitor performance by the Owner of the terms, provisions and requirements hereof. hereof. In such event, the Owner shall comply with any reasonable request by the Issuer to deliver to any such Administrator, in addition to or instead of the Issuer, any reports, notices or other documents required to be delivered pursuant hereto, and to make the Project and the books and records with respect thereto available for inspection by the Administrator as an agent of the Issuer. The fees and charges of the Administrator, if any, shall be the responsibility of the Issuer and not the Owner.
(f) The Very Low Income Units (i) shall have characteristics comparable to all other units in the Project with the same number of bedrooms, including with respect to floor area and amenities, (ii) shall be distributed throughout the Project, and (iii) shall have the same access to Project facilities as all other units in the Project.
(g) In accordance with To the Issuerextent permitted by law, the Owner will make the units reserved pursuant to Section 4(a) and Section 6(a) available on a priority basis to households comprised of persons whom (i) the Issuer has informed the Owner have been displaced by the Issuer or its political subdivisions from other developments located within the City of San Xxxx or (ii) are currently living or working in the City of San Xxxx or who can demonstrate they previously resided in the City of San Xxxx.The Owner shall not discriminate against tenant applicants on the basis of source of income (i.e., TANF or SSI), and the Owner shall consider a prospective tenant’s Policy previous rent history of at least one year as evidence of such tenant’s ability to pay the applicable rent for Multifamily Mortgage Revenue Bond Program, notwithstanding the termination unit to be occupied (ability to pay shall be demonstrated if the tenant can show that the tenant has paid on time the same percentage or more of the Qualified Project Period or tenant’s income for rent as the provisions of Section 2(m) hereof, tenant would be required to pay for the rent of “in-place” Very Low Income Tenants at applicable to the conclusion of the Qualified Project Period will continue unit to be governed by occupied); provided that such tenant paid the applicable affordability restrictions in this Regulatory Agreement, so long same percentage or more of such tenant’s income for rent as those tenants continue to live in such tenant will be paying under the Projectproposed lease. The Owner may consider such factors as it deems important when reviewing and approving a tenant’s application for occupancy and an existing tenant’s continued occupancy.
(h) The Owner will comply with the following post issuance compliance procedures If a Low Income Tenant’s Adjusted Income, as of the Issuer:most recent determination thereof, exceeds 140% of the of the applicable income limit for a Low Income Tenant of the same family size, the tenancy of such Low Income Tenant shall, to the extent permitted by law, be terminated as soon as legally possible and the available unit shall within a reasonable time be rented to (or held vacant and available for immediate occupancy by) a Low Income Tenant.
(i) At the completion Each of the construction requirements of the ProjectSections 3, the Owner shall provide to the Administrator 4 and 6 hereof is hereby incorporated as a certification from the Owner’s architect (or other appropriate representative acceptable to specific requirement of the Issuer, such as a HERS Rater, GreenPoint Rater, energy consultant, etc.) for the Project to the effect that the Project includes all design elements that formed the basis for CDLAC adopting the CDLAC Resolution (including but whether or not limited to sustainable building methods and/or energy efficiency elements).
(ii) Subject to the provisions of the next paragraph, the Administrator shall have the right to approve any voluntary change in ownership (A) that results in a transfer of 50% required by California or more of the total equity interests in the Owner, or (B) that results in a transfer of any general partner or managing member interest in the Owner. Such approval to transfer ownership shall be at the reasonable discretion of the Administratorfederal law, and shall be in addition to any applicable requirements set forth in this Regulatory Agreement, force for the Loan Agreement or the Security Instrument. The Administrator may review management practices of the proposed transferee’s current and previously owned properties, if any. Any proposed transferee (including individuals with an ownership interest) whose currently-owned properties have been found by the Administrator to have deficiencies that have not been resolved within the time frame prescribed by the City, the Issuer, the Administrator or other local government authority, may not assume ownership of the Project. The Administrator may initiate additional inspections, at the proposed transferee’s request, to verify findings. The Owner agrees that it will provide the Administrator with notice of any such transfer within thirty (30) days thereof. Notwithstanding the foregoing, any of the following shall not require the prior consent of the Issuer or the Administrator: (A) transfers of or in the limited partner interests of the Owner, (B) the removal and replacement of one or more general partners or managing members of the Owner in accordance with the terms of the Partnership Agreement or Operating Agreement, (C) foreclosure (or acceptance of a deed in lieu of foreclosure), or the first transfer of the Project following a foreclosure under the Security Instrument or acceptance of a deed in lieu of such foreclosure, and (D) any transfer referred to in the last sentence of Section 11 term of this Regulatory Agreement.
(iiij) In addition, the Owner shall comply with the conditions set forth in Exhibit A to CDLAC Resolution No. 01-174, adopted on August 22, 2001 and Exhibit A to CDLAC Resolution No. 16-184, adopted on December 14, 2016, (the “CDLAC Conditions”), as such conditions may be modified or amended from time to time, which conditions are incorporated herein by reference and made a part hereof.The Owner will prepare and submit to the Issuer on or before each February 1 until the end of the Qualified Project Period, or at such other times as required by the Issuer, a Certification of Compliance in substantially the form attached to the CDLAC Conditions, executed by an authorized representative of the Owner and the Issuer shall submit such report to CDLAC annually on or before March 1, or at such other times as required by CDLAC. The Issuer and the Administrator shall have no obligation to monitor the Owner’s compliance with the CDLAC Conditions.
(k) No later than January 31 of each calendar year (commencing January 31, 20 ), the Owner, on behalf of the Issuer, agrees to provide to the California Debt and Investment Advisory Commission, by any method approved by the California Debt and Investment Advisory Commission, with a copy to the Issuer, the annual report information required by Section 8855(k)(1) of the California Government Code. This covenant shall remain in effect until the later of the date (i) the Bonds are no longer Outstanding or (ii) the proceeds of the Bonds have been fully spent.
(l) The Owner agrees to maintain the Project, or cause the Project to be maintained, during the term of this Regulatory Agreement (i) in a safe condition and (ii) in good repair and good operating condition, ordinary wear and tear excepted, making from time to time all necessary repairs thereto and renewals and replacements thereof such that the Project shall provide be in substantially the Administrator’s staff with same condition at all documentation necessarytimes as it was on completion its rehabilitation using Loan proceeds.
(m) The Owner will pay the Issuer all of the amounts required by the Loan Agreement, and will indemnify the Issuer and the Fiscal Agent/Trustee as provided in the sole discretion Loan Agreement.
(n) The requirements of this Section 7 of this Regulatory Agreement shall be in effect for the Administrator’s staff, to confirm the Owner’s and the Project’s compliance with federal tax laws as set forth in the Tax Certificate, the Loan Agreement and term of this Regulatory Agreement, including the ; provided that any requirements of Section 5.1 7 of the Loan this Regulatory Agreement regarding rebate compliance. Any of the foregoing requirements of the Issuer may be expressly waived by the Issuer Issuer, at its sole discretion (except Section 7(i) above, which may be expressly waived by CDLAC), in writing, but (i) no waiver by the Issuer of any requirement of this Section 5 7 shall, or shall be deemed to, extend to or affect any other provision of this Regulatory Agreement except to the extent the Issuer has received an opinion of Tax Counsel to the effect that any such other provision is not required by the Act and a Tax Counsel No Adverse Effect Opinionmay be waived without adversely affecting the exclusion from gross income of interest on the Governmental Lender Tax-Exempt Note and the Junior Bonds for federal income tax purposes; and (ii) any requirement of this Section 5 7 shall be void and of no force and effect if the Issuer and the Owner receive a written opinion of Tax Counsel to the effect that compliance with any such requirement would cause interest on the Governmental Lender Tax-Exempt Note and the Junior Bonds to cease to be Tax-Exempt or to the effect that compliance with such requirement would be in conflict with the Act or any other applicable State or federal law. Nothing contained in this Regulatory Agreement is intended to limit the restrictions, requirements or obligations in the DDA, or any recorded affordability restrictions pursuant thereto or otherwise in connection with the Project, and nothing contained in the DDA (or any such recorded affordability restrictions) is intended to limit the restrictions, requirements or obligations in this Regulatory Agreement. In the event of any conflict between this Regulatory Agreement and the DDA or any recorded affordability restrictions with respect to the Project, the most restrictive shall control.
Appears in 1 contract
Samples: Regulatory Agreement and Declaration of Restrictive Covenants
Additional Requirements of the Issuer. In addition to the requirements set forth above and to the extent not prohibited thereby, the Owner hereby agrees to comply with each of the requirements of the Issuer set forth in this Section 57, as follows:
(a) Notwithstanding any prepayment of The Owner shall pay or cause to be paid to the Loan Issuer on the Delivery Date, the “Initial City Fee” in an amount equal to $ ; and notwithstanding a discharge of the Loan Agreementthereafter, throughout the term of this Regulatory Agreementwithout demand or notice, the Owner shall continue pay or cause to pay to the Issuer its administrative fee described in the second succeeding sentence, and to the Issuer and to the Trustee reasonable compensation for any services rendered by either of them hereunder and reimbursement for all expenses reasonably incurred by either of them in connection therewith. The Owner agrees to pay be paid to the Issuer (i) on the Closing Date, or other Administrator designated in writing by the Issuer’s up-front administrative ) an annual monitoring fee (the “Annual City Fee”). The Annual City Fee shall, to and including , be in the an amount of $270,625, which amount is equal to $ , representing 0.125% of the maximum aggregate principal amount of the Bonds ($216,500,000) and (ii) issued on each anniversary of the Closing Date and continuing throughout the Qualified Project Period, the Issuer’s annual fee in the amount of $75,000. In addition, the Owner agrees to pay, within 30 days after receipt of request for payment thereof, all reasonable out-of-pocket expenses of the Issuer (excluding salaries and wages of Issuer employees) related to the Bonds, the Project and the financing thereof, including, without limitation, legal fees and expenses incurred in connection with the interpretation, performance, enforcement or amendment of any documents relating to the Project or the Bonds. The fees of the Issuer referenced in this Section shall in no way limit amounts payable by the Owner under Section 7 hereof, or otherwise arising in connection with the Issuer’s or Trustee’s enforcement of the provisions of this Regulatory Agreement, but the Issuer does agree to compensate any third party Administrator appointed by it from its annual administrative fees for the ordinary duties of the Administrator hereunder. In addition to the foregoing, the Owner shall pay to the Issuer, promptly following a written demand from the Issuer to the Owner therefore, any out-of-pocket expenses of the Issuer incurred in connection with the administration of any of the Mortgage Loan Documents (as defined in the Indenture) or the Loan Agreement. In the event that the Bonds are prepaid in part or in full prior to the end of the term of this Regulatory Agreement other than (i) by means of refunding bonds issued by the Issuer to refund the Bonds, or (ii) in connection with a foreclosure or deed in lieu of foreclosureDelivery Date, and transfer of title to shall, from and after the Project other than to the Owner or any party related to the Owner; the Issuer’s annual fee for the remainder of the term of this Regulatory AgreementConversion Date, at the option of the Issuer, shall be paid by the Owner at the time of the prepayment of the Bonds and shall be a lump sum in an amount equal to the present value (based on a discount rate equal to the yield on the Bonds, as determined by the Issuer at the time of prepayment) of the Issuer’s fee, calculated based on the principal amount of Bonds outstanding immediately preceding such prepayment, for on 653546.doc 4/29/2010 the number of years remaining under this Regulatory AgreementBonds). Notwithstanding the foregoing provisions of this Section 5, in no event Such payment shall the fees payable be due to the Issuer under this Section 5 exceed any applicable limitation imposed by at such time as the Code Bonds are paid in respect of bonds issued under Section 148 of full and the CodeIndenture is discharged.
(b) All tenant lists, applications and waiting lists relating to the Affordable Rate Condominium Project shall at all times be kept separate and identifiable from any other business of the Affordable Owner and shall be maintained as required by the Administrator, the Issuer or the TrusteeIssuer, in a reasonable condition for proper audit and subject to examination, upon reasonable notice, examination during business hours by representatives of the Issuer (including the Administrator, the Issuer and the Trustee).
(c) The Owner shall submit to the Administrator Issuer, within fifteen (15) Business Days (as defined in the Indenture) days after receipt of a written requestrequest therefor, any information information, records or completed forms requested by the Issuer in order to comply with reporting requirements of the Internal Revenue Service or the State.
(d) The covenants and conditions Owner shall not discriminate on the basis of this Regulatory Agreement shall be binding upon successors race, creed, color, religion, sex, sexual orientation, marital status, national origin, ancestry or handicap in interest the lease, use or occupancy of the OwnerProject or in connection with the employment or application for employment of persons for the construction, operation or management of the Project, and will not discriminate on the basis of household size as long as the tenants meet the household size standards of Section 8 of the Housing Act. Further, the Owner shall not permit occupancy in any unit in the Project by more persons than is permissible under the Section 8 household size standards.
(e) The Owner acknowledges that the Issuer may act as Administrator itself or may appoint an Administrator other than the initial Administrator Issuer to administer this Regulatory Agreement and to monitor performance by the Owner of the terms, provisions and requirements hereof. In such event, the Owner shall comply with any reasonable request by the Issuer to deliver to any such Administrator, in addition to or instead of the Issuer, any reports, notices or other documents required to be delivered pursuant hereto, and to make the Project and the books and records with respect thereto available for inspection by the Administrator as an agent of the Issuer. The fees and charges of the Administrator, if any, shall be the responsibility of the Issuer and not the Owner.
(f) The Very Low Income Units To the extent permitted by law, the Owner will make the units reserved pursuant to Section 4(a) and Section 6(a) available on a priority basis to households comprised of persons whom (i) shall the Issuer has informed the Owner have characteristics comparable to all been displaced by the Issuer or its political subdivisions from other units in developments located within the Project with the same number City of bedrooms, including with respect to floor area and amenities, San Xxxx or (ii) are currently living or working in the City of San Xxxx or who can demonstrate they previously resided in the City of San Xxxx. The Owner shall not discriminate against tenant applicants on the basis of source of income (i.e., TANF or SSI), and the Owner shall consider a prospective tenant’s previous rent history of at least one year as evidence of such tenant’s ability to pay the applicable rent for the unit to be occupied (ability to pay shall be distributed throughout demonstrated if the Project, and (iii) shall have tenant can show that the tenant has paid on time the same access percentage or more of the tenant’s income for rent as the tenant would be required to Project facilities pay for the rent applicable to the unit to be occupied); provided that such tenant paid the same percentage or more of such tenant’s income for rent as all other units in such tenant will be paying under the Projectproposed lease. The Owner may consider such factors as it deems important when reviewing and approving a tenant’s application for occupancy and an existing tenant’s continued occupancy.
(g) In accordance with the Issuer’s Policy for Multifamily Mortgage Revenue Bond Program, notwithstanding the termination of the Qualified Project Period or the provisions of Section 2(m) hereof, the rent of “in-place” If a Very Low Income Tenants at the conclusion Tenant’s Adjusted Income, as of the Qualified Project Period will continue to be governed by most recent determination thereof, exceeds 140% of the of the applicable affordability restrictions in this Regulatory Agreementincome limit for a Very Low Income Tenant of the same family size, so long the tenancy of such Very Low Income Tenant shall, to the extent permitted by law, be terminated as those tenants continue soon as legally possible and the available unit shall within a reasonable time be rented to live in the Project.(or held vacant and available for immediate occupancy by) a Very Low Income Tenant. 653546.doc 4/29/2010
(h) The Owner will comply with Each of the following post issuance compliance procedures requirements of Sections 3, 4 and 6 hereof is hereby incorporated as a specific requirement of the Issuer:
(i) At the completion of the construction of the Project, the Owner shall provide to the Administrator a certification from the Owner’s architect (whether or other appropriate representative acceptable to the Issuer, such as a HERS Rater, GreenPoint Rater, energy consultant, etc.) for the Project to the effect that the Project includes all design elements that formed the basis for CDLAC adopting the CDLAC Resolution (including but not limited to sustainable building methods and/or energy efficiency elements).
(ii) Subject to the provisions of the next paragraph, the Administrator shall have the right to approve any voluntary change in ownership (A) that results in a transfer of 50% required by California or more of the total equity interests in the Owner, or (B) that results in a transfer of any general partner or managing member interest in the Owner. Such approval to transfer ownership shall be at the reasonable discretion of the Administratorfederal law, and shall be in addition to any applicable requirements set forth in this Regulatory Agreement, force for the Loan Agreement or the Security Instrument. The Administrator may review management practices of the proposed transferee’s current and previously owned properties, if any. Any proposed transferee (including individuals with an ownership interest) whose currently-owned properties have been found by the Administrator to have deficiencies that have not been resolved within the time frame prescribed by the City, the Issuer, the Administrator or other local government authority, may not assume ownership of the Project. The Administrator may initiate additional inspections, at the proposed transferee’s request, to verify findings. The Owner agrees that it will provide the Administrator with notice of any such transfer within thirty (30) days thereof. Notwithstanding the foregoing, any of the following shall not require the prior consent of the Issuer or the Administrator: (A) transfers of or in the limited partner interests of the Owner, (B) the removal and replacement of one or more general partners or managing members of the Owner in accordance with the terms of the Partnership Agreement or Operating Agreement, (C) foreclosure (or acceptance of a deed in lieu of foreclosure), or the first transfer of the Project following a foreclosure under the Security Instrument or acceptance of a deed in lieu of such foreclosure, and (D) any transfer referred to in the last sentence of Section 11 term of this Regulatory Agreement.
(iiii) In addition, the Owner shall comply with the conditions set forth in Exhibit A to CDLAC Resolution No. 09-77, adopted on September 23, 2009 (the “CDLAC Conditions”), as such conditions may be modified or amended from time to time, which conditions are incorporated herein by reference and made a part hereof. The Owner will prepare and submit to CDLAC, not later than each anniversary of the Delivery Date until the end of the Qualified Project Period, a Certification of Compliance, in substantially the form attached to the CDLAC Conditions, executed by an authorized representative of the Owner. The Issuer and the Administrator shall have no obligation to monitor the Owner’s compliance with the CDLAC Conditions.
(j) The restrictions set forth the Affordability Restriction between the Owner and the Issuer.
(k) The Owner shall provide will pay the Administrator’s staff with Issuer all documentation necessaryof the amounts required by Section 10.1 of the Loan Agreement, and will indemnify the Issuer and the Trustee as provided in the sole discretion Loan Agreement.
(l) The requirements of this Section 7 of this Regulatory Agreement shall be in effect for the Administrator’s staff, to confirm the Owner’s and the Project’s compliance with federal tax laws as set forth in the Tax Certificate, the Loan Agreement and term of this Regulatory Agreement, including the ; provided that any requirements of Section 5.1 7 of the Loan this Regulatory Agreement regarding rebate compliance. Any of the foregoing requirements of the Issuer may be expressly waived by the Issuer Issuer, at its sole discretion (except Section 7(i) above, which may be expressly waived by CDLAC), in writing, but (i) no waiver by the Issuer of any requirement of this Section 5 7 shall, or shall be deemed to, extend to or affect any other provision of this Regulatory Agreement except to the extent the Issuer has received an opinion of Tax Bond Counsel to the effect that any such other provision is not required by the Act and a Tax Counsel No Adverse Effect Opinionmay be waived without adversely affecting the exclusion from gross income of interest on the Bonds for federal income tax purposes; and (ii) any requirement of this Section 5 7 shall be void and of no force and effect if the Issuer and the Owner receive a written opinion of Tax Bond Counsel to the effect that compliance with any such requirement would cause interest on the Bonds to cease to be Tax-Exempt or to the effect that compliance with such requirement would be in conflict with the Act or any other applicable State or federal law. Nothing contained in this Regulatory Agreement is intended to limit the restrictions, requirements or obligations in the DDA, or any recorded affordability restrictions pursuant thereto or otherwise in connection with the Project, and nothing contained in the DDA (or any such recorded affordability restrictions) is intended to limit the restrictions, requirements or obligations in this Regulatory Agreement. In the event of any conflict between this Regulatory Agreement and the DDA or any recorded affordability restrictions with respect to the Project, the most restrictive shall control.
Appears in 1 contract
Samples: Regulatory Agreement and Declaration of Restrictive Covenants
Additional Requirements of the Issuer. In addition to the requirements set forth above and to the extent not prohibited thereby, the Owner Borrower hereby agrees with the Issuer and the Trustee to comply with each of the requirements of the Issuer set forth in this Section 57, as follows:
(a) Notwithstanding any prepayment of the Loan and notwithstanding a discharge of the Loan Agreement, throughout the term of this Regulatory Agreement, the Owner The Borrower shall continue pay or cause to pay be paid to the Issuer its administrative fee described in the second succeeding sentence, and to the Issuer and to the Trustee reasonable compensation for any services rendered by either of them hereunder and reimbursement for all expenses reasonably incurred by either of them in connection therewith. The Owner agrees to pay to the Issuer (i) on the Closing Date, the Issuer’s up-front administrative fee “Initial City Fee” in the an amount of $270,625, which amount is equal to 0.125$ ; and thereafter, without demand or notice, the Borrower shall pay to the Issuer (or other Administrator designated in writing by the Issuer) an annual monitoring fee (the “Annual City Fee”). The Annual City Fee shall be in an amount equal to $ , representing .125% of the maximum aggregate principal amount of the Bonds ($216,500,000) and (ii) issued on the Closing Date, payable in equal semiannual installments of $ , in advance, on each anniversary February 1 and August 1, commencing February 1, 2011. Under no circumstances shall the Annual City Fee exceed any limitation under Section 148 of the Closing Date and continuing throughout Code. The Annual City Fee shall be payable until the end of the Qualified Project Period, the Issuer’s annual fee in the amount of $75,000. In addition, the Owner agrees to pay, within 30 days after receipt event that the principal of request for payment thereof, all reasonable out-of-pocket expenses of and the Issuer (excluding salaries interest on the Bonds are paid in full and wages of Issuer employees) related the Senior Indenture and the Subordinate Indenture are discharged prior to the Bonds, the Project and the financing thereof, including, without limitation, legal fees and expenses incurred in connection with the interpretation, performance, enforcement or amendment of any documents relating to the Project or the Bonds. The fees of the Issuer referenced in this Section shall in no way limit amounts payable by the Owner under Section 7 hereof, or otherwise arising in connection with the Issuer’s or Trustee’s enforcement of the provisions termination of this Regulatory Agreement, but the Issuer does agree to compensate any third party Administrator appointed Agreement (other than by it from its annual administrative fees for the ordinary duties reason of the Administrator hereunder. In addition to the foregoingissuance of refunding bonds), the Owner Borrower shall pay to the Issuer, promptly following a written demand from the Issuer to the Owner therefore, any out-of-pocket expenses of the Issuer incurred in connection with the administration of any of the Mortgage Loan Documents (as defined in the Indenture) or the Loan Agreement. In the event that the Bonds are prepaid in part or in full prior to the end of the term of this Regulatory Agreement other than (i) if so requested by means of refunding bonds issued by the Issuer to refund the Bonds, or (ii) in connection with a foreclosure or deed in lieu of foreclosure, and transfer of title to the Project other than to the Owner or any party related to the Owner; the Issuer’s annual fee for the remainder of the term of this Regulatory Agreement, at the option of the Issuer, shall be paid by the Owner at the time of the prepayment of the Bonds and shall be a lump sum an amount equal to the remaining Annual City Fees, at a present value to the date of payment (based on using a discount rate equal to the yield on aggregate true interest cost of the Bonds, as determined by Bonds outstanding immediately before the Bonds are paid in full. Such payment shall be due to the Issuer at such time as the time of prepayment) of Bonds are paid in full and the Issuer’s fee, calculated based on Senior Indenture and the principal amount of Bonds outstanding immediately preceding such prepayment, for the number of years remaining under this Regulatory Agreement. Notwithstanding the foregoing provisions of this Section 5, in no event shall the fees payable to the Issuer under this Section 5 exceed any applicable limitation imposed by the Code in respect of bonds issued under Section 148 of the CodeSubordinate Indenture are discharged.
(b) All tenant lists, applications and waiting lists relating to the Affordable Rate Condominium Project shall at all times be kept separate and identifiable from any other business of the Affordable Owner Borrower and shall be maintained as required by the Administrator, the Issuer or the TrusteeIssuer, in a reasonable condition for proper audit and subject to examination, upon reasonable notice, examination during business hours by representatives of the Issuer (including the Administrator, the Issuer and the Trustee).
(c) The Owner Borrower shall submit to the Administrator Issuer, within fifteen (15) Business Days (as defined in the Indenture) days after receipt of a written requestrequest therefor, any information or completed forms requested by the Issuer in order to comply with reporting requirements of the Internal Revenue Service or the State.
(d) The covenants and conditions Borrower shall not discriminate on the basis of this Regulatory Agreement shall be binding upon successors race, creed, color, religion, sex, source of income, sexual orientation, marital status, national origin, ancestry or handicap in interest the lease, use or occupancy of the OwnerProject or in connection with the employment or application for employment of persons for the construction, operation or management of the Project, and will not discriminate on the basis of household size as long as the tenants meet the household size standards of Section 8 of the Housing Act. Further, the Borrower shall not permit occupancy in any unit in the Project by more persons than is permissible under the Section 8 household size standards.
(e) The Owner Borrower acknowledges that the Issuer may act as Administrator itself or may appoint an Administrator other than the initial Administrator Issuer to administer this Regulatory Agreement and to monitor performance by the Owner Borrower of the terms, provisions and requirements hereof. In such event, the Owner Borrower shall comply with any reasonable request by the Issuer to deliver to any such Administrator, in addition to or instead of the Issuer, any reports, notices or other documents required to be delivered pursuant hereto, and to make the Project and the books and records with respect thereto available for inspection by the Administrator as an agent of the Issuer. The fees and charges of the Administrator, if any, shall be the responsibility of the Issuer and not the Owner.
(f) The Very Low Income Units To the extent permitted by law, the Borrower will make the units reserved pursuant to Section 6(a) available on a priority basis to households comprised of persons whom (i) shall the Issuer has informed the Borrower have characteristics comparable to all been displaced by the Issuer or its political subdivisions from other units in the Project with the same number of bedrooms, including with respect to floor area and amenities, development located within San Xxxx or (ii) are currently living or working in San Xxxx or who can demonstrate they previously resided in San Xxxx. The Borrower shall not discriminate against tenant applicants on the basis of source of income (i.e., AFDC or SSI), and the Borrower shall consider a prospective tenant’s previous rent history of at least one year as evidence of such tenant’s ability to pay the applicable rent for the unit to be occupied (ability to pay shall be distributed throughout demonstrated if the Project, and (iii) shall have tenant can show that the tenant has paid on time the same access percentage or more of the tenant’s income for rent as the tenant would be required to Project facilities pay for the rent applicable to the unit to be occupied); provided that such tenant paid the same percentage or more of such tenant’s income for rent as all other units in such tenant will be paying under the Projectproposed lease. The Borrower may consider such factors as it deems important when reviewing and approving a tenant’s application for occupancy and an existing tenant’s continued occupancy.
(g) In accordance with the IssuerIf a Low Income Tenant’s Policy for Multifamily Mortgage Revenue Bond ProgramAdjusted Income, notwithstanding the termination as of the Qualified Project Period or most recent determination thereof, exceeds 140% of the provisions of Section 2(m) hereofthe applicable income limit for a Low Income Tenant of the same family size, the rent tenancy of “in-place” Very such Low Income Tenants at Tenant shall, to the conclusion of extent permitted by law, be terminated as soon as legally possible and the Qualified Project Period will continue available unit shall within a reasonable time be rented to be governed by the applicable affordability restrictions in this Regulatory Agreement, so long as those tenants continue to live in the Project(or held vacant and available for immediate occupancy by) a Low Income Tenant.
(h) The Owner will comply with Each of the following post issuance compliance procedures requirements of Sections 3, 4 and 6 hereof is hereby incorporated as a specific requirement of the Issuer:, whether or not required by California or federal law, and shall be in force for the term of this Regulatory Agreement.
(i) At In addition, the Borrower shall comply with the conditions set forth in Exhibit A to CDLAC Resolution No. , adopted on , 2010 (the “CDLAC Conditions”), as they may be modified or amended from time to time, which conditions are incorporated herein by reference and made a part hereof. The Borrower will prepare and submit to CDLAC, not later than each anniversary of the Closing Date until the end of the Qualified Project Period, a Certification of Compliance, in substantially the form attached to the CDLAC Conditions, executed by an authorized representative of the Borrower. The Issuer and the Administrator shall have no obligation to monitor the Borrower’s compliance with the CDLAC Conditions.
(j) In addition, the Borrower shall comply with the Affordability Restriction.
(k) The Borrower agrees to maintain the Project, or cause the Project to be maintained, during the term of this Regulatory Agreement (i) in a reasonably safe condition and (ii) in good repair and in good operating condition, ordinary wear and tear excepted, making from time to time all necessary repairs thereto and renewals and replacements thereof such that the Project shall be substantially the same condition at all times as the condition it is in at the time of the completion of the construction of the Project, Project with the Owner shall provide to proceeds of the Administrator a certification from the Owner’s architect (or other appropriate representative acceptable to the Issuer, such as a HERS Rater, GreenPoint Rater, energy consultant, etc.) for the Project to the effect that the Project includes all design elements that formed the basis for CDLAC adopting the CDLAC Resolution (including but not limited to sustainable building methods and/or energy efficiency elements)Bonds.
(iil) Subject to the provisions The requirements of the next paragraph, the Administrator shall have the right to approve any voluntary change in ownership (A) that results in a transfer of 50% or more of the total equity interests in the Owner, or (B) that results in a transfer of any general partner or managing member interest in the Owner. Such approval to transfer ownership shall be at the reasonable discretion of the Administrator, and this Section 7 shall be in addition to any applicable requirements set forth in this Regulatory Agreement, effect for the Loan Agreement or the Security Instrument. The Administrator may review management practices of the proposed transferee’s current and previously owned properties, if any. Any proposed transferee (including individuals with an ownership interest) whose currently-owned properties have been found by the Administrator to have deficiencies that have not been resolved within the time frame prescribed by the City, the Issuer, the Administrator or other local government authority, may not assume ownership of the Project. The Administrator may initiate additional inspections, at the proposed transferee’s request, to verify findings. The Owner agrees that it will provide the Administrator with notice of any such transfer within thirty (30) days thereof. Notwithstanding the foregoing, any of the following shall not require the prior consent of the Issuer or the Administrator: (A) transfers of or in the limited partner interests of the Owner, (B) the removal and replacement of one or more general partners or managing members of the Owner in accordance with the terms of the Partnership Agreement or Operating Agreement, (C) foreclosure (or acceptance of a deed in lieu of foreclosure), or the first transfer of the Project following a foreclosure under the Security Instrument or acceptance of a deed in lieu of such foreclosure, and (D) any transfer referred to in the last sentence of Section 11 term of this Regulatory Agreement.
(iii) The Owner shall provide the Administrator’s staff with all documentation necessary, in the sole discretion of the Administrator’s staff, to confirm the Owner’s and the Project’s compliance with federal tax laws as set forth in the Tax Certificate, the Loan Agreement and this Regulatory Agreement, including the requirements of Section 5.1 of the Loan Agreement regarding rebate compliance. Any ; provided that any of the foregoing requirements of the Issuer may be expressly waived by the Issuer Issuer, in its sole discretion (except (i) above, which may be expressly waived only by CDLAC), in writing, but (i) no waiver by the Issuer of any requirement of this Section 5 7 shall, or shall be deemed to, extend to or affect any other provision of this Regulatory Agreement except to the extent the Issuer has and the Borrower have received an opinion of Tax Bond Counsel (a copy of which shall be filed by the Borrower with the Trustee) that any such other provision is not required by the Act and a Tax Counsel No Adverse Effect Opinionmay be waived without adversely affecting the exclusion from gross income of interest on the Bonds for federal income tax purposes; and (ii) any requirement of this Section 5 7 shall be void and of no force and effect if the Issuer and the Owner Borrower receive a written opinion of Tax Bond Counsel (a copy of which shall be filed by the Borrower with the Trustee and the Bondowner Representative) to the effect that compliance with any such requirement would cause interest on the Bonds to cease to be Tax-Exempt or to the effect that compliance with such requirement would be in conflict with the Act or any other State state or federal law. Nothing contained in this Regulatory Agreement is intended to limit the restrictions, requirements or obligations in the DDA, or any recorded affordability restrictions pursuant thereto or otherwise in connection with the Project, and nothing contained in the DDA (or any such recorded affordability restrictions) is intended to limit the restrictions, requirements or obligations in this Regulatory Agreement. In the event of any conflict between this Regulatory Agreement and the DDA or any recorded affordability restrictions with respect to the Project, the most restrictive shall control.
Appears in 1 contract
Samples: Regulatory Agreement and Declaration of Restrictive Covenants
Additional Requirements of the Issuer. In addition to the requirements set forth above and to the extent not prohibited thereby, the Owner Borrower hereby agrees to comply with each of the requirements of the Issuer set forth in this Section 54A, as follows:
(a) Notwithstanding any prepayment of Except if waived in writing by CDLAC and the Loan and notwithstanding a discharge of the Loan Agreement, throughout the term of this Regulatory Agreement, the Owner shall continue to pay Issuer or otherwise to the Issuer its administrative fee described extent set forth in the second succeeding sentence, and to the Issuer and to the Trustee reasonable compensation for any services rendered by either paragraph of them hereunder and reimbursement for all expenses reasonably incurred by either of them in connection therewith. The Owner agrees to pay to the Issuer (i) on the Closing Date, the Issuer’s up-front administrative fee in the amount of $270,625, which amount is equal to 0.125% of the maximum aggregate principal amount of the Bonds ($216,500,000) and (ii) on each anniversary of the Closing Date and continuing throughout the Qualified Project Period, the Issuer’s annual fee in the amount of $75,000. In addition, the Owner agrees to pay, within 30 days after receipt of request for payment thereof, all reasonable out-of-pocket expenses of the Issuer (excluding salaries and wages of Issuer employees) related to the Bonds, the Project and the financing thereof, including, without limitation, legal fees and expenses incurred in connection with the interpretation, performance, enforcement or amendment of any documents relating to the Project or the Bonds. The fees of the Issuer referenced in this Section shall in no way limit amounts payable by the Owner under Section 7 hereof, or otherwise arising in connection with the Issuer’s or Trustee’s enforcement of the provisions of this Regulatory Agreement, but the Issuer does agree to compensate any third party Administrator appointed by it from its annual administrative fees for the ordinary duties of the Administrator hereunder. In addition to the foregoing, the Owner shall pay to the Issuer, promptly following a written demand from the Issuer to the Owner therefore, any out-of-pocket expenses of the Issuer incurred in connection with the administration of any of the Mortgage Loan Documents (as defined in the Indenture) or the Loan Agreement. In the event that the Bonds are prepaid in part or in full prior to the end of the term 12 of this Regulatory Agreement other than (i) by means of refunding bonds issued by the Issuer to refund the Bonds, or (ii) in connection with a foreclosure or deed in lieu of foreclosure, and transfer of title to the Project other than to the Owner or any party related to the Owner; the Issuer’s annual fee for the remainder of the term of this Regulatory Agreement, at the option of the Issuer, Agreement shall be paid by the Owner at the time of the prepayment of the Bonds and shall be a lump sum amount equal to the present value (based on a discount rate equal to the yield terminate on the Bonds, as determined by date fifty-five years after the Issuer at the time of prepayment) of the Issuer’s fee, calculated based on the principal amount of Bonds outstanding immediately preceding such prepayment, for the number of years remaining under this Regulatory Agreement. Notwithstanding the foregoing provisions of this Section 5, in no event shall the fees payable to the Issuer under this Section 5 exceed any applicable limitation imposed by the Code in respect of bonds issued under Section 148 of the CodeClosing Date.
(b) All tenant lists, applications and waiting lists relating to the Affordable Rate Condominium Project shall at all times be kept separate and identifiable from any other business of the Affordable Owner Borrower and shall be maintained as required by the Administrator, the Issuer or the TrusteeIssuer, in a reasonable condition for proper audit and subject to examination, upon reasonable notice, examination during business hours by representatives of the Administrator, Issuer upon reasonable advance notice to the Issuer and the TrusteeBorrower.
(c) The Owner shall submit to the Administrator within fifteen (15) Business Days (as defined in the Indenture) after receipt of a written request, any information or completed forms requested by the Issuer in order to comply with reporting requirements of the Internal Revenue Service or the State.
(d) The covenants and conditions of this Regulatory Agreement shall be binding upon successors in interest of the Owner.
(e) The Owner Borrower acknowledges that the Issuer may act as Administrator itself or may appoint an Administrator other than the initial Administrator to administer this Regulatory Agreement and to monitor performance by the Owner of the terms, provisions and requirements hereof. In such event, an event the Owner shall comply with any reasonable request made by the Administrator or the Issuer to deliver to any such Administrator, in addition to or instead of the Issuer, any reports, notices or other documents required to be delivered pursuant hereto, and to make the Project and the books and records with respect thereto available for inspection by the Administrator as an agent of the Issuer during regular business hours and upon reasonable advance notice. In the event the Issuer shall not appoint an Administrator other than the Issuer, all references to the Administrator in this Regulatory Agreement shall be deemed to refer to the Issuer. The reasonable fees and charges expenses of the Administrator, if any, Administrator shall be paid by the responsibility Borrower.
(d) For purposes of Section 6, the base rents shall be adjusted for household size, to the extent permitted by law, and in making such adjustments it shall be assumed that one person will occupy a studio unit, two persons will occupy a one bedroom unit, three persons will occupy a two bedroom unit, four persons will occupy a three bedroom unit and five persons will occupy a four bedroom unit.
(e) Each of the Issuer requirements of Section 3.4.6 and 7 hereof is hereby incorporated as a specific requirement of the Issuer, whether or not required by State or federal law, and shall be in force for the OwnerQualified Project Period or the period prescribed under subparagraph (a) hereof whichever is longer.
(f) The Very Low Income Units (i) Borrower shall have characteristics comparable to provide the Issuer copies of all other units in the Project with the same number of bedrooms, including disclosure reports with respect to floor area the Bonds and amenities, (ii) shall be distributed throughout the Project, and (iii) shall have the same access to Project facilities as all other units in the Project.
(g) In accordance with the Issuer’s Policy for Multifamily Mortgage Revenue Bond Program, notwithstanding the termination of the Qualified Project Period or the provisions of Section 2(m) hereof, the rent of “in-place” Very Low Income Tenants at the conclusion of the Qualified Project Period will continue rebate calculations required to be governed by the applicable affordability restrictions in this Regulatory Agreement, so long as those tenants continue to live in the Project.
(h) The Owner will comply with the following post issuance compliance procedures of the Issuer:
(i) At the completion of the construction of the Project, the Owner shall provide to the Administrator a certification from the Owner’s architect (or other appropriate representative acceptable to the Issuer, such as a HERS Rater, GreenPoint Rater, energy consultant, etc.) for the Project to the effect that the Project includes all design elements that formed the basis for CDLAC adopting the CDLAC Resolution (including but not limited to sustainable building methods and/or energy efficiency elements).
(ii) Subject to the provisions of the next paragraph, the Administrator shall have the right to approve any voluntary change in ownership (A) that results in a transfer of 50% or more of the total equity interests in the Owner, or (B) that results in a transfer of any general partner or managing member interest in the Owner. Such approval to transfer ownership shall be at the reasonable discretion of the Administrator, and shall be in addition to any applicable requirements set forth in this Regulatory Agreement, made under the Loan Agreement or the Security Instrument. The Administrator may review management practices of the proposed transferee’s current and previously owned properties, if any. Any proposed transferee (including individuals with an ownership interest) whose currently-owned properties have been found by the Administrator to have deficiencies that have not been resolved within the time frame prescribed by the City, the Issuer, the Administrator or other local government authority, may not assume ownership of the Project. The Administrator may initiate additional inspections, at the proposed transferee’s request, to verify findings. The Owner agrees that it will provide the Administrator with notice of any such transfer within thirty (30) days thereof. Notwithstanding the foregoing, any of the following shall not require the prior consent of the Issuer or the Administrator: (A) transfers of or in the limited partner interests of the Owner, (B) the removal and replacement of one or more general partners or managing members of the Owner in accordance with the terms of the Partnership Agreement or Operating Funding Loan Agreement, (C) foreclosure (or acceptance of a deed in lieu of foreclosure), or the first transfer of the Project following a foreclosure under the Security Instrument or acceptance of a deed in lieu of such foreclosure, and (D) any transfer referred to in the last sentence of Section 11 of this Regulatory Agreement.
(iii) The Owner shall provide the Administrator’s staff with all documentation necessary, in the sole discretion of the Administrator’s staff, to confirm the Owner’s and the Project’s compliance with federal tax laws as set forth in the Tax Certificate, the Loan Agreement and this Regulatory Agreement, including the requirements of Section 5.1 of the Loan Agreement regarding rebate compliance. Any of the foregoing requirements of the Issuer may be expressly waived by the Issuer in writing, but (i) no waiver by the Issuer of any requirement of this Section 5 4A shall, or shall be deemed to, extend to or affect any other provision of this Regulatory Agreement except to the extent the Issuer has received an opinion of Tax Counsel that any such provision is not required by the Housing Act and a Tax Counsel No Adverse Effect Opinionmay be waived without adversely affecting the exclusion from gross income of interest on the Note for federal income tax purposes; and (ii) any requirement of this Section 5 4A shall be void and of no force and effect if the Issuer and the Owner Borrower receive a written opinion of Tax Note Counsel to the effect that compliance with any such requirement would cause interest on the Bonds Note to cease to be Tax-Exempt or to the effect that compliance with such requirement would be in conflict with the Housing Act or any other State or federal law. Nothing contained in this Regulatory Agreement is intended to limit the restrictions, requirements or obligations in the DDA, or any recorded affordability restrictions pursuant thereto or otherwise in connection with the Project, and nothing contained in the DDA (or any such recorded affordability restrictions) is intended to limit the restrictions, requirements or obligations in this Regulatory Agreement. In the event of any conflict between this Regulatory Agreement and the DDA or any recorded affordability restrictions with respect to the Project, the most restrictive shall control.
Appears in 1 contract
Samples: Regulatory Agreement and Declaration of Restrictive Covenants
Additional Requirements of the Issuer. In addition to the requirements set forth above elsewhere in this Regulatory Agreement and to the extent not prohibited therebyby the requirements set forth in Sections 4, 5 and 6 hereof, the Owner Borrower hereby agrees to comply with each of the requirements of the Issuer set forth in this Section 54A, as follows:
(a) Notwithstanding any prepayment of the Loan and notwithstanding a discharge of the Loan Agreement, throughout the term of this Regulatory Agreement, the Owner shall continue to pay to the Issuer its administrative fee described in the second succeeding sentence, and to the Issuer and to the Trustee reasonable compensation for any services rendered by either of them hereunder and reimbursement for all expenses reasonably incurred by either of them in connection therewith. The Owner agrees to pay to the Issuer (i) on the Closing Date, the Issuer’s up-front administrative fee in the amount of $270,625, which amount is equal to 0.125% of the maximum aggregate principal amount of the Bonds ($216,500,000) and (ii) on each anniversary of the Closing Date and continuing throughout the Qualified Project Period, the Issuer’s annual fee in the amount of $75,000. In addition, the Owner agrees to pay, within 30 days after receipt of request for payment thereof, all reasonable out-of-pocket expenses of the Issuer (excluding salaries and wages of Issuer employees) related to the Bonds, the Project and the financing thereof, including, without limitation, legal fees and expenses incurred in connection with the interpretation, performance, enforcement or amendment of any documents relating to the Project or the Bonds. The fees of the Issuer referenced in this Section shall in no way limit amounts payable by the Owner under Section 7 hereof, or otherwise arising in connection with the Issuer’s or Trustee’s enforcement of the provisions of this Regulatory Agreement, but the Issuer does agree to compensate any third party Administrator appointed by it from its annual administrative fees for the ordinary duties of the Administrator hereunder. In addition to the foregoing, the Owner shall pay to the Issuer, promptly following a written demand from the Issuer to the Owner therefore, any out-of-pocket expenses of the Issuer incurred in connection with the administration of any of the Mortgage Loan Documents (as defined in the Indenture) or the Loan Agreement. In the event that the Bonds are prepaid in part or in full prior to the end of the term of this Regulatory Agreement other than (i) by means of refunding bonds issued by the Issuer to refund the Bonds, or (ii) in connection with a foreclosure or deed in lieu of foreclosure, and transfer of title to the Project other than to the Owner or any party related to the Owner; the Issuer’s annual fee for the remainder of the term of this Regulatory Agreement, at the option of the Issuer, shall be paid by the Owner at the time of the prepayment of the Bonds and shall be a lump sum amount equal to the present value (based on a discount rate equal to the yield on the Bonds, as determined by the Issuer at the time of prepayment) of the Issuer’s fee, calculated based on the principal amount of Bonds outstanding immediately preceding such prepayment, for the number of years remaining under this Regulatory Agreement. Notwithstanding the foregoing provisions of this Section 5, in no event shall the fees payable to the Issuer under this Section 5 exceed any applicable limitation imposed by the Code in respect of bonds issued under Section 148 of the Code.
(b) All tenant lists, applications and waiting lists relating to the Affordable Rate Condominium Development shall at all times be kept separate and identifiable from any other business of the Affordable Owner Borrower and shall be maintained as required by the Administrator, the Issuer or the TrusteeIssuer, in a reasonable condition for proper audit and subject to examination, examination upon reasonable noticenotice (which need not be in excess of three Business Days, as defined in the Loan Agreement) and during business hours by representatives of the AdministratorIssuer.
(b) The Borrower shall not discriminate on the basis of race, creed, color, religion, sex, sexual orientation, marital status, national origin, source of income (e.g. AFDC and SSI), ancestry or handicap in the Issuer and lease, use or occupancy of the TrusteeDevelopment (except as required to comply with Section 3(e)(iii) or (iv)), or in connection with the employment or application for employment of persons for the construction, operation, or management of the Development.
(c) The Owner Borrower shall not permit occupancy in any unit in the Development by more than (i) two persons per bedroom in the unit, plus (ii) one person; and the Borrower shall at all times offer for rent the largest unit then available for the applicable household size (being one bedroom units for 2-3 person households, and two bedroom units for 4-5 person households).
(d) The Borrower shall pay directly to the Issuer (i) on the Closing Date the Issuer Issuance Fee and the first Issuer Annual Fee, and (ii) on each anniversary of the Closing Date, the Issuer Annual Fee; without in either case any requirement for notice or billing of the amount due. In addition, the Borrower shall pay to the Issuer promptly following receipt of an invoice that reasonably identifies the relevant expenses and the amounts thereof, any out of pocket expenses incurred by the Issuer in connection with the Bonds, the Indenture, this Regulatory Agreement or the Loan Agreement, including but not limited to any costs related to the Focus Program.
(e) The rent limits set forth in Sections 6(b) and 6(f) shall apply to all Low Income Units. In addition, the rental payments paid by Lower Income Tenants for the Low Income Units shall not exceed Affordable Rents.
(f) The Borrower will accept as tenants, on the same basis as all other prospective tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing program under Section 8 of the Housing Act, or its successor. The Borrower shall not apply selection criteria to Section 8 certificate or voucher holders that is more burdensome than criteria applied to all other prospective tenants, nor shall the Borrower apply or permit the application of management policies or lease provisions with respect to the Development which have the effect of precluding occupancy of units by such prospective tenants.
(g) The Borrower shall submit to the Administrator Issuer: (i) rent rolls and other information required by the Focus Program on a quarterly basis as specified in Section 4(e), and (ii) within fifteen (15) Business Days (as defined in the Indenture) days after receipt of a written request, any other information or completed forms requested by the Issuer in order to comply with reporting requirements of the Internal Revenue Service or the State.
(dh) The covenants and conditions of this Regulatory Borrower shall pay to the Issuer, to the extent not paid pursuant to the Loan Agreement shall be binding upon successors in interest or the Indenture, all of the Owneramounts required by Sections 3.3(h), 3.4(a) and (b)(i), and 3.16 of the Loan Agreement and shall indemnify the Issuer as provided in Section 9 hereof and Sections 11.38 and 15.1 of the Loan Agreement.
(ei) The Owner acknowledges that the Issuer may act as Administrator itself or may may, at its option and at its expense, at any time appoint an Administrator other than the initial Administrator to administer this Regulatory Agreement or any provision hereof and to monitor performance by the Owner Borrower of all or of any of the terms, provisions and requirements hereof. In Following any such eventappointment, the Owner Borrower shall comply with any request by the Issuer to deliver to any such Administrator, in addition to or instead of the Issuer, any reports, notices or other documents required to be delivered pursuant hereto, and to make the Project Development and the books and records with respect thereto available for inspection by the Administrator such administrator as an agent of the Issuer. .
(j) The fees and charges of Borrower shall submit its written management policies with respect to the AdministratorDevelopment, if any, to the Issuer for its review, and shall be amend such policies in any way necessary to insure that such policies comply with the responsibility provisions of this Agreement and the requirements of the Issuer existing program under Section 8 of the Housing Act, or its successors. The Borrower shall not promulgate management policies which conflict with the provisions of the addendum to the form of lease for the Development prepared by the Housing Authority of Contra Costa County, and not the Ownershall attach such addendum to leases for tenants which are holders of Section 8 certificates.
(fk) The Very Borrower shall screen and select tenants for desirability and creditworthiness at its discretion; provided, however, that the Borrower shall consider a prospective tenant’s rent history for at least the one year period prior to application as evidence of the tenant’s ability to pay the applicable rent.
(l) At least six months prior to the expiration of the Qualified Development Period the Borrower shall provide by first-class mail, postage prepaid, a notice to all tenants in the Low Income Units containing (i) shall have characteristics comparable to all other units in the Project with anticipated date of the same number expiration of bedrooms, including with respect to floor area and amenitiesthe Qualified Development Period, (ii) shall be distributed throughout any anticipated rent increase upon the Projectexpiration of the Qualified Development Period, and (iii) shall have the same access to Project facilities as all other units in the Project.
(g) In accordance with the Issuer’s Policy for Multifamily Mortgage Revenue Bond Program, notwithstanding the termination a statement that a copy of the Qualified Project Period or the provisions of Section 2(m) hereof, the rent of “in-place” Very Low Income Tenants at the conclusion of the Qualified Project Period such notice will continue to be governed by the applicable affordability restrictions in this Regulatory Agreement, so long as those tenants continue to live in the Project.
(h) The Owner will comply with the following post issuance compliance procedures of the Issuer:
(i) At the completion of the construction of the Project, the Owner shall provide to the Administrator a certification from the Owner’s architect (or other appropriate representative acceptable sent to the Issuer, such as and (iv) a HERS Rater, GreenPoint Rater, energy consultant, etc.) for statement that a public hearing may be held by the Project to Issuer on the effect issue and that the Project includes all design elements that formed tenant will receive notice of the basis for CDLAC adopting hearing at least fifteen (15) days in advance of any such hearing. The Borrower shall also file a copy of the CDLAC Resolution (including but not limited to sustainable building methods and/or energy efficiency elements)above-described notice with the Affordable Housing Program Manager of the Issuer.
(iim) Subject to Notwithstanding Section 1461 of the Civil Code, the provisions of this Section shall run with land and may be enforced either in law or in equity by any resident, local agency, entity, or by any other person adversely affected by the next paragraph, Borrower’s failure to comply with the Administrator provisions of this Section.
(n) The Borrower shall have the right to approve not participate in any voluntary change in ownership (A) that results in a transfer of 50% or more refunding of the total equity interests in the Owner, or (B) that results in a transfer of any general partner or managing member interest in the Owner. Such approval to transfer ownership shall be at the reasonable discretion Bonds by means of the Administratorissuance of bonds or other obligations by any governmental body other than the Issuer.
(o) Each of the requirements of Sections 3, 4, 6 and 7 hereof is hereby incorporated as a specific requirement of the Issuer, whether or not required by California or federal law.
(p) The requirements of Section 6 and this Section 4A shall be in addition to any applicable requirements set forth in this Regulatory Agreement, effect for the Loan Agreement or the Security Instrument. The Administrator may review management practices of the proposed transferee’s current and previously owned properties, if any. Any proposed transferee (including individuals with an ownership interest) whose currently-owned properties have been found by the Administrator to have deficiencies that have not been resolved within the time frame prescribed by the City, the Issuer, the Administrator or other local government authority, may not assume ownership of the Project. The Administrator may initiate additional inspections, at the proposed transferee’s request, to verify findings. The Owner agrees that it will provide the Administrator with notice of any such transfer within thirty (30) days thereof. Notwithstanding the foregoing, any of the following shall not require the prior consent of the Issuer or the Administrator: (A) transfers of or in the limited partner interests of the Owner, (B) the removal and replacement of one or more general partners or managing members of the Owner in accordance with the terms of the Partnership Agreement or Operating Agreement, (C) foreclosure (or acceptance of a deed in lieu of foreclosure), or the first transfer of the Project following a foreclosure under the Security Instrument or acceptance of a deed in lieu of such foreclosure, and (D) any transfer referred to in the last sentence of Section 11 of this Regulatory Agreement.
(iii) The Owner shall provide the Administrator’s staff with all documentation necessary, in the sole discretion of the Administrator’s staff, to confirm the Owner’s and the Project’s compliance with federal tax laws as set forth in the Tax Certificate, the Loan Agreement and this Regulatory Agreement, including the requirements of Section 5.1 of the Loan Agreement regarding rebate complianceQualified Development Period. Any of the foregoing requirements of the Issuer contained in this Section 4A may be expressly waived by the Issuer in writing, but (i) no waiver by the Issuer of any requirement of this Section 5 4A shall, or shall be deemed to, extend to or affect any other provision of this Regulatory Agreement except to the extent the Issuer has received an opinion of Tax Bond Counsel that any such provision is not required by the Housing Act and a Tax Counsel No Adverse Effect Opinionmay be waived without adversely affecting the exclusion from gross income of interest on the Bonds for federal income tax purposes; and (ii) any requirement of this Section 5 4A shall be void and of no force and effect if the Issuer and the Owner Borrower receive a written opinion of Tax Bond Counsel to the effect that compliance with any such requirement would cause interest on the Bonds to cease to be Tax-Tax- Exempt or to the effect that compliance with such requirement would be in conflict with the Housing Act or any other State or federal law. Nothing contained in this Regulatory Agreement is intended to limit the restrictions, requirements or obligations in the DDA, or any recorded affordability restrictions pursuant thereto or otherwise in connection with the Project, and nothing contained in the DDA (or any such recorded affordability restrictions) is intended to limit the restrictions, requirements or obligations in this Regulatory Agreement. In the event of any conflict between this Regulatory Agreement and the DDA or any recorded affordability restrictions with respect to the Project, the most restrictive shall control.
Appears in 1 contract
Samples: Regulatory Agreement and Declaration of Restrictive Covenants
Additional Requirements of the Issuer. In addition to the requirements set forth above and to the extent not prohibited thereby, the Owner Borrower hereby agrees to comply with each of the requirements of the Issuer set forth in this Section 57, as follows:
(a) Notwithstanding any prepayment of the Loan and notwithstanding a discharge of the Loan Agreement, throughout the term of this Regulatory Agreement, the Owner shall continue to pay to the Issuer its administrative fee described in the second succeeding sentence, and to the Issuer and to the Trustee reasonable compensation for any services rendered by either of them hereunder and reimbursement for all expenses reasonably incurred by either of them in connection therewith. The Owner agrees to pay to the Issuer Not less than six (i) on the Closing Date, the Issuer’s up-front administrative fee in the amount of $270,625, which amount is equal to 0.125% of the maximum aggregate principal amount of the Bonds ($216,500,000) and (ii) on each anniversary of the Closing Date and continuing throughout the Qualified Project Period, the Issuer’s annual fee in the amount of $75,000. In addition, the Owner agrees to pay, within 30 days after receipt of request for payment thereof, all reasonable out-of-pocket expenses of the Issuer (excluding salaries and wages of Issuer employees) related to the Bonds, the Project and the financing thereof, including, without limitation, legal fees and expenses incurred in connection with the interpretation, performance, enforcement or amendment of any documents relating to the Project or the Bonds. The fees of the Issuer referenced in this Section shall in no way limit amounts payable by the Owner under Section 7 hereof, or otherwise arising in connection with the Issuer’s or Trustee’s enforcement of the provisions of this Regulatory Agreement, but the Issuer does agree to compensate any third party Administrator appointed by it from its annual administrative fees for the ordinary duties of the Administrator hereunder. In addition to the foregoing, the Owner shall pay to the Issuer, promptly following a written demand from the Issuer to the Owner therefore, any out-of-pocket expenses of the Issuer incurred in connection with the administration of any of the Mortgage Loan Documents (as defined in the Indenture) or the Loan Agreement. In the event that the Bonds are prepaid in part or in full prior to the end of the term of this Regulatory Agreement other than (i) by means of refunding bonds issued by the Issuer to refund the Bonds, or (ii) in connection with a foreclosure or deed in lieu of foreclosure, and transfer of title to the Project other than to the Owner or any party related to the Owner; the Issuer’s annual fee for the remainder of the term of this Regulatory Agreement, at the option of the Issuer, shall be paid by the Owner at the time of the prepayment of the Bonds and shall be a lump sum amount equal to the present value (based on a discount rate equal to the yield on the Bonds, as determined by the Issuer at the time of prepayment6) of the Issuer’s feeunits in the Project shall be available on a priority basis for occupancy by Twenty-Five Percent Income Tenants paying rents not to exceed Twenty- Five Percent Rents. Not less than twenty-nine (29) of the units in the Project shall be available on a priority basis for occupancy by Forty-Five Percent Income Tenants paying rents not to exceed Forty-Five Percent Rents. Additionally, calculated based the remaining units in the Project shall be available on the principal amount of Bonds outstanding immediately preceding such prepayment, a priority basis for the number of years remaining under this Regulatory Agreementoccupancy by Very Low Income Tenants paying rents not to exceed Affordable Rents. Notwithstanding the foregoing provisions The requirements of this Section 5and Sections 4(a) and 6(a) are not cumulative, in no event shall the fees payable to the Issuer under this Section 5 exceed any applicable limitation imposed by the Code in respect of bonds issued under Section 148 of the Codebut each must be satisfied.
(b) The Borrower will indemnify the Issuer and the Bondowner Representative as provided in Section 5.19 of the Loan Agreement and Section 9 hereof.
(c) All tenant lists, applications and waiting lists relating to the Affordable Rate Condominium Project shall at all times be kept separate and identifiable from any other business of the Affordable Owner Borrower and shall be maintained as required by the Administrator, the Issuer or the TrusteeIssuer, in a reasonable condition for proper audit and subject to examination, upon reasonable notice, examination during business hours by representatives of the Administrator, the Issuer and the TrusteeIssuer.
(cd) The Owner Borrower shall submit to the Administrator Issuer, (i) not later than the thirtieth (30th) day after the close of each calendar year, a statistical report in the form set forth as Exhibit D hereto, or such other form as may be prescribed by the Issuer, setting forth the information called for therein, and (ii) within fifteen (15) Business Days (as defined in the Indenture) days after receipt of a written request, any other information or completed forms requested by the Issuer in order to comply with reporting requirements of the Internal Revenue Service or the StateState of California.
(de) The covenants and conditions of this Regulatory Agreement shall be binding upon successors in interest of the OwnerBorrower.
(ef) Each of the requirements of Sections 3, 4 and 6 hereof is hereby incorporated as a specific requirement of the Issuer, whether or not required by California or federal law, and shall be in force for the Qualified Project Period.
(g) The Owner Borrower acknowledges that the Issuer may act as Administrator itself or may appoint an Administrator a Program Monitor other than the initial Administrator Issuer (at no additional cost to the Borrower) to administer this Regulatory Agreement and to monitor performance by the Owner Borrower of the terms, provisions and requirements hereof. In such event, the Owner Borrower shall comply with any request by the Issuer to deliver to any such AdministratorProgram Monitor, in addition to or instead of the Issuer, any reports, notices or other documents required to be delivered pursuant hereto, and to make the Project and the books and records with respect thereto available for inspection by the Administrator Program Monitor as an agent of the Issuer. The fees and charges of the Administrator, if any, shall be the responsibility of the Issuer and not the Owner.
(f) The Very Low Income Units (i) shall have characteristics comparable to all other units in the Project with the same number of bedrooms, including with respect to floor area and amenities, (ii) shall be distributed throughout the Project, and (iii) shall have the same access to Project facilities as all other units in the Project.
(g) In accordance with the Issuer’s Policy for Multifamily Mortgage Revenue Bond Program, notwithstanding the termination of the Qualified Project Period or the provisions of Section 2(m) hereof, the rent of “in-place” Very Low Income Tenants at the conclusion of the Qualified Project Period will continue to be governed by the applicable affordability restrictions in this Regulatory Agreement, so long as those tenants continue to live in the Project.
(h) The Owner will Borrower shall comply with the following post issuance compliance procedures of the Issuer:
(i) At the completion of the construction of the Project, the Owner shall provide to the Administrator a certification from the Owner’s architect (or other appropriate representative acceptable to the Issuer, such as a HERS Rater, GreenPoint Rater, energy consultant, etc.) for the Project to the effect that the Project includes all design elements that formed the basis for CDLAC adopting the CDLAC Resolution (including but not limited to sustainable building methods and/or energy efficiency elements).
(ii) Subject to the provisions of the next paragraph, the Administrator shall have the right to approve any voluntary change in ownership (A) that results in a transfer of 50% or more of the total equity interests in the Owner, or (B) that results in a transfer of any general partner or managing member interest in the Owner. Such approval to transfer ownership shall be at the reasonable discretion of the Administrator, and shall be in addition to any applicable requirements conditions set forth in this Regulatory AgreementExhibit A of that certain CDLAC Resolution No. [09- ] relating to the Project and adopted on [December 16, 2009] (the Loan Agreement “CDLAC Conditions”), as they may be modified or the Security Instrumentamended from time to time, which conditions are incorporated herein by reference and made a part hereof. The Administrator may review management practices Borrower will prepare and submit to CDLAC, not later than each anniversary of the proposed transferee’s current and previously owned propertiesClosing Date, if any. Any proposed transferee (including individuals with an ownership interest) whose currently-owned properties have been found by until the Administrator to have deficiencies that have not been resolved within the time frame prescribed by the City, the Issuer, the Administrator or other local government authority, may not assume ownership end of the ProjectQualified Project Period, a Certificate of Continuing Program Compliance, in substantially the form attached hereto as Exhibit E, executed by an authorized representative of the Borrower. The Administrator may initiate additional inspectionsIssuer and the Program Monitor shall have no obligation, but may, at their sole discretion, choose to monitor the proposed transferee’s request, to verify findings. The Owner agrees that it will provide the Administrator with notice of any such transfer within thirty (30) days thereof. Notwithstanding the foregoing, any of the following shall not require the prior consent of the Issuer or the Administrator: (A) transfers of or in the limited partner interests of the Owner, (B) the removal and replacement of one or more general partners or managing members of the Owner in accordance with the terms of the Partnership Agreement or Operating Agreement, (C) foreclosure (or acceptance of a deed in lieu of foreclosure), or the first transfer of the Project following a foreclosure under the Security Instrument or acceptance of a deed in lieu of such foreclosure, and (D) any transfer referred to in the last sentence of Section 11 of this Regulatory Agreement.
(iii) The Owner shall provide the Administrator’s staff with all documentation necessary, in the sole discretion of the Administrator’s staff, to confirm the Owner’s and the ProjectBorrower’s compliance with federal tax laws as set forth in the Tax Certificate, the Loan Agreement and this Regulatory Agreement, including the requirements of Section 5.1 of the Loan Agreement regarding rebate compliance. CDLAC Conditions Any of the foregoing requirements of the Issuer (except subsection (h) above which may be expressly waived by CDLAC) may be expressly waived by the Issuer in writing, but (i) no waiver by the Issuer of any requirement of this Section 5 7 shall, or shall be deemed to, extend to or affect any other provision of this Regulatory Agreement except to the extent the Issuer has received an opinion of Tax Bond Counsel that any such provision is not required by the Act and a Tax Counsel No Adverse Effect Opinionmay be waived without adversely affecting the exclusion from gross income of interest on the Bonds for federal income tax purposes; and (ii) any requirement of this Section 5 7 shall be void and of no force and effect if the Issuer and the Owner Borrower receive a written opinion of Tax Bond Counsel to the effect that compliance with any such requirement would cause interest on the Bonds to cease to be Tax-Exempt or to the effect that compliance with such requirement would be in conflict with cause a violation of the Act or any other State state or federal law. Nothing contained in this Regulatory Agreement is intended to limit the restrictions, requirements or obligations in the DDA, or any recorded affordability restrictions pursuant thereto or otherwise in connection with the Project, and nothing contained in the DDA (or any such recorded affordability restrictions) is intended to limit the restrictions, requirements or obligations in this Regulatory Agreement. In the event of any conflict between this Regulatory Agreement and the DDA or any recorded affordability restrictions with respect to the Project, the most restrictive shall control.
Appears in 1 contract
Samples: Bond Issuance and Pledge Agreement
Additional Requirements of the Issuer. In addition to the requirements set forth above elsewhere in this Regulatory Agreement and to the extent not prohibited therebyby the requirements set forth in Sections 4, 5 and 6 hereof, the Owner Borrower hereby agrees to comply with each of the requirements of the Issuer set forth in this Section 54A, as follows:
(a) Notwithstanding any prepayment of the Loan and notwithstanding a discharge of the Loan Agreement, throughout the term of this Regulatory Agreement, the Owner shall continue to pay to the Issuer its administrative fee described in the second succeeding sentence, and to the Issuer and to the Trustee reasonable compensation for any services rendered by either of them hereunder and reimbursement for all expenses reasonably incurred by either of them in connection therewith. The Owner agrees to pay to the Issuer (i) on the Closing Date, the Issuer’s up-front administrative fee in the amount of $270,625, which amount is equal to 0.125% of the maximum aggregate principal amount of the Bonds ($216,500,000) and (ii) on each anniversary of the Closing Date and continuing throughout the Qualified Project Period, the Issuer’s annual fee in the amount of $75,000. In addition, the Owner agrees to pay, within 30 days after receipt of request for payment thereof, all reasonable out-of-pocket expenses of the Issuer (excluding salaries and wages of Issuer employees) related to the Bonds, the Project and the financing thereof, including, without limitation, legal fees and expenses incurred in connection with the interpretation, performance, enforcement or amendment of any documents relating to the Project or the Bonds. The fees of the Issuer referenced in this Section shall in no way limit amounts payable by the Owner under Section 7 hereof, or otherwise arising in connection with the Issuer’s or Trustee’s enforcement of the provisions of this Regulatory Agreement, but the Issuer does agree to compensate any third party Administrator appointed by it from its annual administrative fees for the ordinary duties of the Administrator hereunder. In addition to the foregoing, the Owner shall pay to the Issuer, promptly following a written demand from the Issuer to the Owner therefore, any out-of-pocket expenses of the Issuer incurred in connection with the administration of any of the Mortgage Loan Documents (as defined in the Indenture) or the Loan Agreement. In the event that the Bonds are prepaid in part or in full prior to the end of the term of this Regulatory Agreement other than (i) by means of refunding bonds issued by the Issuer to refund the Bonds, or (ii) in connection with a foreclosure or deed in lieu of foreclosure, and transfer of title to the Project other than to the Owner or any party related to the Owner; the Issuer’s annual fee for the remainder of the term of this Regulatory Agreement, at the option of the Issuer, shall be paid by the Owner at the time of the prepayment of the Bonds and shall be a lump sum amount equal to the present value (based on a discount rate equal to the yield on the Bonds, as determined by the Issuer at the time of prepayment) of the Issuer’s fee, calculated based on the principal amount of Bonds outstanding immediately preceding such prepayment, for the number of years remaining under this Regulatory Agreement. Notwithstanding the foregoing provisions of this Section 5, in no event shall the fees payable to the Issuer under this Section 5 exceed any applicable limitation imposed by the Code in respect of bonds issued under Section 148 of the Code.
(b) All tenant lists, applications and waiting lists relating to the Affordable Rate Condominium Project shall at all times be kept separate and identifiable from any other business of the Affordable Owner Borrower and shall be maintained as required by the Administrator, the Issuer or the TrusteeIssuer, in a reasonable condition for proper audit and subject to examination, examination upon reasonable noticenotice (which need not be in excess of three Business Days, as defined in the Loan Agreement) and during business hours by representatives of the AdministratorIssuer.
(b) The Borrower shall not discriminate on the basis of race, creed, color, religion, sex, sexual orientation, marital status, national origin, source of income (e.g. AFDC and SSI), ancestry or handicap in the Issuer and lease, use or occupancy of the TrusteeProject (except as required to comply with Section 3(e)(iii) or (iv)), or in connection with the employment or application for employment of persons for the construction, operation, or management of the Project.
(c) The Owner Borrower shall not permit occupancy in any unit in the Project by more than (i) two persons per bedroom in the unit, plus (ii) one person; and the Borrower shall at all times offer for rent the largest unit then available for the applicable household size (being one bedroom units for 2-3 person households, and two bedroom units for 4-5 person households).
(d) The Borrower shall pay directly to the Issuer (i) on the Closing Date the Issuer Issuance Fee and the Issuer Annual Fee for the period from the Closing Date to but not including August 1, 2014, and (ii) on each August 1, on and after August 1, 2014, the Issuer Annual Fee; without in either case any requirement for notice or billing of the amount due. In addition, the Borrower shall pay to the Issuer promptly following receipt of an invoice that reasonably identifies the relevant expenses and the amounts thereof, any out of pocket expenses incurred by the Issuer in connection with the Bonds, the Indenture, this Regulatory Agreement or the Loan Agreement, including but not limited to any costs related to the Focus Program.
(e) The rent limits set forth in Sections 6(b) and 6(f) shall apply to all Low Income Units. In addition, the rental payments paid by Low Income Tenants for the Low Income Units shall not exceed Affordable Rents.
(f) The Borrower will accept as tenants, on the same basis as all other prospective tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing program under Section 8 of the Act, or its successor. The Borrower shall not apply selection criteria to Section 8 certificate or voucher holders that is more burdensome than criteria applied to all other prospective tenants, nor shall the Borrower apply or permit the application of management policies or lease provisions with respect to the Project which have the effect of precluding occupancy of units by such prospective tenants.
(g) The Borrower shall submit to the Administrator Issuer: (i) rent rolls and other information required by the Focus Program on a quarterly basis as specified in Section 4(e), and (ii) within fifteen (15) Business Days (as defined in the Indenture) days after receipt of a written request, any other information or completed forms requested by the Issuer in order to comply with reporting requirements of the Internal Revenue Service or the State.
(dh) The covenants and conditions of this Regulatory Borrower shall pay to the Issuer, to the extent not paid pursuant to the Loan Agreement shall be binding upon successors in interest or the Indenture, all of the Owneramounts required by Section 3.2 of (and otherwise under) the Loan Agreement and shall indemnify the Issuer as provided in Section 9 hereof and Section 5.19 of the Loan Agreement.
(ei) The Owner acknowledges that the Issuer may act as Administrator itself or may may, at its option and at its expense, at any time appoint an Administrator other than the initial Administrator to administer this Regulatory Agreement or any provision hereof and to monitor performance by the Owner Borrower of all or of any of the terms, provisions and requirements hereof. In Following any such eventappointment, the Owner Borrower shall comply with any request by the Issuer to deliver to any such Administrator, in addition to or instead of the Issuer, any reports, notices or other documents required to be delivered pursuant hereto, and to make the Project and the books and records with respect thereto available for inspection by the Administrator such administrator as an agent of the Issuer. The fees and charges of the Administrator, if any, shall be the responsibility of the Issuer and not the Owner.
(fj) The Very Low Income Units (i) Borrower shall have characteristics comparable to all other units in the Project with the same number of bedrooms, including with respect to floor area and amenities, (ii) shall be distributed throughout the Project, and (iii) shall have the same access to Project facilities as all other units in the Project.
(g) In accordance with the Issuer’s Policy for Multifamily Mortgage Revenue Bond Program, notwithstanding the termination of the Qualified Project Period or the provisions of Section 2(m) hereof, the rent of “in-place” Very Low Income Tenants at the conclusion of the Qualified Project Period will continue to be governed by the applicable affordability restrictions in this Regulatory Agreement, so long as those tenants continue to live in the Project.
(h) The Owner will comply with the following post issuance compliance procedures of the Issuer:
(i) At the completion of the construction of the Project, the Owner shall provide to the Administrator a certification from the Owner’s architect (or other appropriate representative acceptable to the Issuer, such as a HERS Rater, GreenPoint Rater, energy consultant, etc.) for the Project to the effect that the Project includes all design elements that formed the basis for CDLAC adopting the CDLAC Resolution (including but not limited to sustainable building methods and/or energy efficiency elements).
(ii) Subject to the provisions of the next paragraph, the Administrator shall have the right to approve any voluntary change in ownership (A) that results in a transfer of 50% or more of the total equity interests in the Owner, or (B) that results in a transfer of any general partner or managing member interest in the Owner. Such approval to transfer ownership shall be at the reasonable discretion of the Administrator, and shall be in addition to any applicable requirements set forth in this Regulatory Agreement, the Loan Agreement or the Security Instrument. The Administrator may review submit its written management practices of the proposed transferee’s current and previously owned properties, if any. Any proposed transferee (including individuals with an ownership interest) whose currently-owned properties have been found by the Administrator to have deficiencies that have not been resolved within the time frame prescribed by the City, the Issuer, the Administrator or other local government authority, may not assume ownership of the Project. The Administrator may initiate additional inspections, at the proposed transferee’s request, to verify findings. The Owner agrees that it will provide the Administrator with notice of any such transfer within thirty (30) days thereof. Notwithstanding the foregoing, any of the following shall not require the prior consent of the Issuer or the Administrator: (A) transfers of or in the limited partner interests of the Owner, (B) the removal and replacement of one or more general partners or managing members of the Owner in accordance with the terms of the Partnership Agreement or Operating Agreement, (C) foreclosure (or acceptance of a deed in lieu of foreclosure), or the first transfer of the Project following a foreclosure under the Security Instrument or acceptance of a deed in lieu of such foreclosure, and (D) any transfer referred to in the last sentence of Section 11 of this Regulatory Agreement.
(iii) The Owner shall provide the Administrator’s staff with all documentation necessary, in the sole discretion of the Administrator’s staff, to confirm the Owner’s and the Project’s compliance with federal tax laws as set forth in the Tax Certificate, the Loan Agreement and this Regulatory Agreement, including the requirements of Section 5.1 of the Loan Agreement regarding rebate compliance. Any of the foregoing requirements of the Issuer may be expressly waived by the Issuer in writing, but (i) no waiver by the Issuer of any requirement of this Section 5 shall, or shall be deemed to, extend to or affect any other provision of this Regulatory Agreement except to the extent the Issuer has received an opinion of Tax Counsel that any such provision is not required by the Act and a Tax Counsel No Adverse Effect Opinion; and (ii) any requirement of this Section 5 shall be void and of no force and effect if the Issuer and the Owner receive a written opinion of Tax Counsel to the effect that compliance with any such requirement would cause interest on the Bonds to cease to be Tax-Exempt or to the effect that compliance with such requirement would be in conflict with the Act or any other State or federal law. Nothing contained in this Regulatory Agreement is intended to limit the restrictions, requirements or obligations in the DDA, or any recorded affordability restrictions pursuant thereto or otherwise in connection with the Project, and nothing contained in the DDA (or any such recorded affordability restrictions) is intended to limit the restrictions, requirements or obligations in this Regulatory Agreement. In the event of any conflict between this Regulatory Agreement and the DDA or any recorded affordability restrictions policies with respect to the Project, if any, to the most restrictive Issuer for its review, and shall controlamend such policies in any way necessary to insure that such policies comply with the provisions of this Agreement and the requirements of the existing program under Section 8 of the Act, or its successors. The Borrower shall not promulgate management policies which conflict with the provisions of the addendum to the form of lease for the Project prepared by the Housing Authority of Contra Costa County, and shall attach such addendum to leases for tenants which are holders of Section 8 certificates.
(k) The Borrower shall screen and select tenants for desirability and creditworthiness at its discretion; provided, however, that the Borrower shall consider a prospective tenant’s rent history for at least the one year period prior to application as evidence of the tenant’s ability to pay the applicable rent.
(l) At least six months prior to the expiration of the Qualified Project Period the Borrower shall provide by first-class mail, postage prepaid, a notice to all tenants in the Low Income Units containing (i) the anticipated date of the expiration of the Qualified Project Period, (ii) any anticipated rent increase upon the expiration of the Qualified Project Period, (iii) a statement that a copy of such notice will be sent to the Issuer, and
Appears in 1 contract
Samples: Regulatory Agreement and Declaration of Restrictive Covenants
Additional Requirements of the Issuer. In addition to the requirements set forth above elsewhere in this Regulatory Agreement and to the extent not prohibited therebyby the requirements set forth in Sections 4, 5 and 6 hereof, the Owner Borrower hereby agrees to comply with each of the requirements of the Issuer set forth in this Section 54A, as follows:
(a) Notwithstanding any prepayment of the Loan and notwithstanding a discharge of the Loan Agreement, throughout the term of this Regulatory Agreement, the Owner shall continue to pay to the Issuer its administrative fee described in the second succeeding sentence, and to the Issuer and to the Trustee reasonable compensation for any services rendered by either of them hereunder and reimbursement for all expenses reasonably incurred by either of them in connection therewith. The Owner agrees to pay to the Issuer (i) on the Closing Date, the Issuer’s up-front administrative fee in the amount of $270,625, which amount is equal to 0.125% of the maximum aggregate principal amount of the Bonds ($216,500,000) and (ii) on each anniversary of the Closing Date and continuing throughout the Qualified Project Period, the Issuer’s annual fee in the amount of $75,000. In addition, the Owner agrees to pay, within 30 days after receipt of request for payment thereof, all reasonable out-of-pocket expenses of the Issuer (excluding salaries and wages of Issuer employees) related to the Bonds, the Project and the financing thereof, including, without limitation, legal fees and expenses incurred in connection with the interpretation, performance, enforcement or amendment of any documents relating to the Project or the Bonds. The fees of the Issuer referenced in this Section shall in no way limit amounts payable by the Owner under Section 7 hereof, or otherwise arising in connection with the Issuer’s or Trustee’s enforcement of the provisions of this Regulatory Agreement, but the Issuer does agree to compensate any third party Administrator appointed by it from its annual administrative fees for the ordinary duties of the Administrator hereunder. In addition to the foregoing, the Owner shall pay to the Issuer, promptly following a written demand from the Issuer to the Owner therefore, any out-of-pocket expenses of the Issuer incurred in connection with the administration of any of the Mortgage Loan Documents (as defined in the Indenture) or the Loan Agreement. In the event that the Bonds are prepaid in part or in full prior to the end of the term of this Regulatory Agreement other than (i) by means of refunding bonds issued by the Issuer to refund the Bonds, or (ii) in connection with a foreclosure or deed in lieu of foreclosure, and transfer of title to the Project other than to the Owner or any party related to the Owner; the Issuer’s annual fee for the remainder of the term of this Regulatory Agreement, at the option of the Issuer, shall be paid by the Owner at the time of the prepayment of the Bonds and shall be a lump sum amount equal to the present value (based on a discount rate equal to the yield on the Bonds, as determined by the Issuer at the time of prepayment) of the Issuer’s fee, calculated based on the principal amount of Bonds outstanding immediately preceding such prepayment, for the number of years remaining under this Regulatory Agreement. Notwithstanding the foregoing provisions of this Section 5, in no event shall the fees payable to the Issuer under this Section 5 exceed any applicable limitation imposed by the Code in respect of bonds issued under Section 148 of the Code.
(b) All tenant lists, applications and waiting lists relating to the Affordable Rate Condominium Project shall at all times be kept separate and identifiable from any other business of the Affordable Owner Borrower and shall be maintained as required by the Administrator, the Issuer or the TrusteeIssuer, in a reasonable condition for proper audit and subject to examination, examination upon reasonable noticenotice (which need not be in excess of three Business Days, as defined in the Indenture) and during business hours by representatives of the AdministratorIssuer.
(b) The Borrower shall not discriminate on the basis of race, creed, color, religion, sex, sexual orientation, marital status, national origin, source of income (e.g. AFDC and SSI), ancestry or handicap in the Issuer and lease, use or occupancy of the TrusteeProject (except as required to comply with Section 3(e)(iii)), or in connection with the employment or application for employment of persons for the construction, operation, or management of the Project.
(c) The Owner Borrower shall not, at initial occupancy, permit occupancy in any unit in the Project by more than (i) two persons per bedroom in the unit, plus (ii) one person; and the Borrower shall at all times offer for rent the largest unit then available for the applicable household size (being one bedroom units for 2-3 person households, and two bedroom units for 4-5 person households). The foregoing, however, shall not apply to one unit in the Project occupied by a resident manager or managers.
(d) The Borrower shall pay directly to the Issuer (i) on the Closing Date the Issuer Issuance Fee and the Issuer Annual Fee for the period from the Closing Date to but not including December 1, 2017, and (ii) on each December 1, on and after December 1, 2017, the Issuer Annual Fee; without in either case any requirement for notice or billing of the amount due. In addition, the Borrower shall pay to the Issuer promptly following receipt of an invoice that reasonably identifies the relevant expenses and the amounts thereof, any out of pocket expenses incurred by the Issuer in connection with the Bonds, the Indenture, this Regulatory Agreement or the Loan Agreement, including but not limited to any costs related to the FOCUS Program.
(e) The rent limits set forth in Sections 6(b) and 6(f) shall apply to all Low Income Units. In addition, the rental payments paid by Low Income Tenants for the Low Income Units shall not exceed Affordable Rents.
(f) The Borrower will accept as tenants, on the same basis as all other prospective tenants, persons who are recipients of federal certificates for rent subsidies pursuant to the existing program under Section 8 of the Act, or its successor. The Borrower shall not apply selection criteria to Section 8 certificate or voucher holders that is more burdensome than criteria applied to all other prospective tenants, nor shall the Borrower apply or permit the application of management policies or lease provisions with respect to the Project which have the effect of precluding occupancy of units by such prospective tenants.
(g) The Borrower shall submit to the Administrator Issuer: (i) rent rolls and other information required by the FOCUS Program on a quarterly basis as specified in Section 4(e), and (ii) within fifteen (15) Business Days (as defined in the Indenture) days after receipt of a written request, any other information or completed forms requested by the Issuer in order to comply with reporting requirements of the Internal Revenue Service or the State.
(dh) The covenants Borrower shall indemnify the Issuer as provided in Section 9 hereof and conditions of this Regulatory Agreement shall be binding upon successors in interest Sections 9.5, 11.38 and 11.41 of the OwnerLoan Agreement.
(ei) The Owner acknowledges that the Issuer may act as Administrator itself or may may, at its option and at its expense, at any time appoint an Administrator other than the initial Administrator to administer this Regulatory Agreement or any provision hereof and to monitor performance by the Owner Borrower of all or of any of the terms, provisions and requirements hereof. In Following any such eventappointment, the Owner Borrower shall comply with any request by the Issuer to deliver to any such Administrator, in addition to or instead of the Issuer, any reports, notices or other documents required to be delivered pursuant hereto, and to make the Project and the books and records with respect thereto available for inspection by the Administrator such administrator as an agent of the Issuer. The fees and charges of the Administrator, if any, shall be the responsibility of the Issuer and not the Owner.
(fj) The Very Low Income Units (i) Borrower shall have characteristics comparable to all other units in the Project with the same number of bedrooms, including with respect to floor area and amenities, (ii) shall be distributed throughout the Project, and (iii) shall have the same access to Project facilities as all other units in the Project.
(g) In accordance with the Issuer’s Policy for Multifamily Mortgage Revenue Bond Program, notwithstanding the termination of the Qualified Project Period or the provisions of Section 2(m) hereof, the rent of “in-place” Very Low Income Tenants at the conclusion of the Qualified Project Period will continue to be governed by the applicable affordability restrictions in this Regulatory Agreement, so long as those tenants continue to live in the Project.
(h) The Owner will comply with the following post issuance compliance procedures of the Issuer:
(i) At the completion of the construction of the Project, the Owner shall provide to the Administrator a certification from the Owner’s architect (or other appropriate representative acceptable to the Issuer, such as a HERS Rater, GreenPoint Rater, energy consultant, etc.) for the Project to the effect that the Project includes all design elements that formed the basis for CDLAC adopting the CDLAC Resolution (including but not limited to sustainable building methods and/or energy efficiency elements).
(ii) Subject to the provisions of the next paragraph, the Administrator shall have the right to approve any voluntary change in ownership (A) that results in a transfer of 50% or more of the total equity interests in the Owner, or (B) that results in a transfer of any general partner or managing member interest in the Owner. Such approval to transfer ownership shall be at the reasonable discretion of the Administrator, and shall be in addition to any applicable requirements set forth in this Regulatory Agreement, the Loan Agreement or the Security Instrument. The Administrator may review submit its written management practices of the proposed transferee’s current and previously owned properties, if any. Any proposed transferee (including individuals with an ownership interest) whose currently-owned properties have been found by the Administrator to have deficiencies that have not been resolved within the time frame prescribed by the City, the Issuer, the Administrator or other local government authority, may not assume ownership of the Project. The Administrator may initiate additional inspections, at the proposed transferee’s request, to verify findings. The Owner agrees that it will provide the Administrator with notice of any such transfer within thirty (30) days thereof. Notwithstanding the foregoing, any of the following shall not require the prior consent of the Issuer or the Administrator: (A) transfers of or in the limited partner interests of the Owner, (B) the removal and replacement of one or more general partners or managing members of the Owner in accordance with the terms of the Partnership Agreement or Operating Agreement, (C) foreclosure (or acceptance of a deed in lieu of foreclosure), or the first transfer of the Project following a foreclosure under the Security Instrument or acceptance of a deed in lieu of such foreclosure, and (D) any transfer referred to in the last sentence of Section 11 of this Regulatory Agreement.
(iii) The Owner shall provide the Administrator’s staff with all documentation necessary, in the sole discretion of the Administrator’s staff, to confirm the Owner’s and the Project’s compliance with federal tax laws as set forth in the Tax Certificate, the Loan Agreement and this Regulatory Agreement, including the requirements of Section 5.1 of the Loan Agreement regarding rebate compliance. Any of the foregoing requirements of the Issuer may be expressly waived by the Issuer in writing, but (i) no waiver by the Issuer of any requirement of this Section 5 shall, or shall be deemed to, extend to or affect any other provision of this Regulatory Agreement except to the extent the Issuer has received an opinion of Tax Counsel that any such provision is not required by the Act and a Tax Counsel No Adverse Effect Opinion; and (ii) any requirement of this Section 5 shall be void and of no force and effect if the Issuer and the Owner receive a written opinion of Tax Counsel to the effect that compliance with any such requirement would cause interest on the Bonds to cease to be Tax-Exempt or to the effect that compliance with such requirement would be in conflict with the Act or any other State or federal law. Nothing contained in this Regulatory Agreement is intended to limit the restrictions, requirements or obligations in the DDA, or any recorded affordability restrictions pursuant thereto or otherwise in connection with the Project, and nothing contained in the DDA (or any such recorded affordability restrictions) is intended to limit the restrictions, requirements or obligations in this Regulatory Agreement. In the event of any conflict between this Regulatory Agreement and the DDA or any recorded affordability restrictions policies with respect to the Project, if any, to the most restrictive Issuer for its review, and shall controlamend such policies in any way necessary to insure that such policies comply with the provisions of this Regulatory Agreement and the requirements of the existing program under Section 8 of the Housing Law, or its successors. The Borrower shall not promulgate management policies which conflict with the provisions of the addendum to the form of lease for the Project prepared by the Housing Authority of Contra Costa County, and shall attach such addendum to leases for tenants which are holders of Section 8 certificates.
(k) The Borrower shall screen and select tenants for desirability and creditworthiness at its discretion; provided, however, that the Borrower shall consider a prospective tenant’s rent history for at least the one year period prior to application as evidence of the tenant’s ability to pay the applicable rent.
(l) At least six months prior to the expiration of the Qualified Project Period the Borrower shall provide by first-class mail, postage prepaid, a notice to all tenants in the Low Income Units containing (i) the anticipated date of the expiration of the Qualified Project Period, (ii) any anticipated rent increase upon the expiration of the Qualified Project Period, (iii) a statement that a copy of such notice will be sent to the Issuer, and
Appears in 1 contract
Samples: Regulatory Agreement and Declaration of Restrictive Covenants
Additional Requirements of the Issuer. In addition to the requirements set forth above and to the extent not prohibited thereby, the Owner hereby agrees to comply with each of the requirements of the Issuer set forth in this Section 57, as follows:
(a) Notwithstanding any prepayment of the Loan and notwithstanding a discharge of the Loan Agreement, throughout the term of this Regulatory Agreement, the The Owner shall continue pay or cause to pay be paid to the Issuer its administrative fee described in the second succeeding sentence, and to the Issuer and to the Trustee reasonable compensation for any services rendered by either of them hereunder and reimbursement for all expenses reasonably incurred by either of them in connection therewith. The Owner agrees to pay to the Issuer (i) on the Closing Delivery Date, the “Issuer’s up-front administrative fee Issuance Fee” in the an amount of $270,625, which amount is equal to 0.125% $ (which represents an amount equal to one- half of one percent (0.5%) of the maximum first $10,000,000 of aggregate principal amount of the Bonds and one- quarter of one percent ($216,500,0000.25%) and (ii) on each anniversary of the Closing Date and continuing throughout portion of the Qualified Project Period, principal of the Issuer’s annual fee Bonds in the amount excess of $75,00010,000,000). In addition, without demand or notice, the Owner agrees shall pay or cause to pay, within 30 days after receipt of request for payment thereof, all reasonable out-of-pocket expenses of be paid to the Issuer (excluding salaries or other Administrator designated in writing by the Issuer) an annual monitoring fee (the “Issuer’s Annual Fee”). The Issuer’s Annual Fee shall be in an annual amount equal to $ and wages of Issuer employees) related shall be payable, in advance, on the Delivery Date and on December 1, 2016, for the period from the Delivery Date to the Bonds, the Project and the financing thereof, including, without limitation, legal fees and expenses incurred in connection with the interpretation, performance, enforcement or amendment maturity date of any documents relating to the Project or the Bonds. The fees of the Issuer referenced in this Section shall in no way limit amounts payable by the Owner under Section 7 hereof, or otherwise arising in connection with the Issuer’s or Trustee’s enforcement of the provisions of this Regulatory Agreement, but the Issuer does agree to compensate any third party Administrator appointed by it from its annual administrative fees for the ordinary duties of the Administrator hereunder. In addition to the foregoingaddition, the Owner shall pay to the Issuer, promptly following a written demand from Issuer on the Issuer to the Owner therefore, any out-of-pocket expenses earlier of the Issuer incurred in connection with the administration of any date of the Mortgage Loan Documents redemption in full, or maturity date, of the Bonds a final Issuer Fee (as defined the “Issuer’s Final Fee”) in the Indenture) or amount of $ , representing the Loan Agreement. In present value of the event that the Bonds are prepaid in part or in full prior to the end of remaining Issuer Annual Fee for the term of this Regulatory Agreement other than (i) by means of refunding bonds issued by the Issuer to refund the Bonds, or (ii) in connection with a foreclosure or deed in lieu of foreclosure, and transfer of title to the Project other than to the Owner or any party related to the Owner; the Issuer’s annual fee for the remainder of the term of this Regulatory Agreement, at the option of the Issuer, shall be paid as restricted by the Owner at the time of the prepayment of the Bonds and shall be a lump sum amount equal to the present value (based on a discount rate equal to the yield on the Bonds, as determined by the Issuer at the time of prepayment) of the Issuer’s fee, calculated based on the principal amount of Bonds outstanding immediately preceding such prepayment, for the number of years remaining under this Regulatory Agreement. Notwithstanding the foregoing provisions of this Section 5, in no event shall the fees payable to the Issuer under this Section 5 exceed any applicable limitation imposed by the Code in respect of bonds issued under Section 148 of the Code.
(b) All tenant lists, applications and waiting lists relating to the Affordable Rate Condominium Project shall at all times be kept separate and identifiable from any other business of the Affordable Owner and shall be maintained as required by the Administrator, the Issuer or the TrusteeIssuer, in a reasonable condition for proper audit and subject to examination, upon reasonable notice, examination during business hours by representatives of the Issuer (including the Administrator, the Issuer and the Trustee).
(c) The Owner shall submit to the Administrator Issuer, within fifteen (15) Business Days (as defined in the Indenture) days after receipt of a written requestrequest therefor, any information information, records or completed forms requested by the Issuer in order to comply with reporting requirements of the Internal Revenue Service or the State.
(d) The covenants and conditions Owner shall not discriminate on the basis of this Regulatory Agreement shall be binding upon successors race, creed, color, religion, sex, sexual orientation, marital status, national origin, ancestry or handicap in interest the lease, use or occupancy of the OwnerProject or in connection with the employment or application for employment of persons for the construction, operation or management of the Project, and will not discriminate on the basis of household size as long as the tenants meet the household size standards of Section 8 of the Housing Act. Further, the Owner shall not permit occupancy in any unit in the Project by more persons than is permissible under the Section 8 household size standards.
(e) The Owner acknowledges that the Issuer may act as Administrator itself or may appoint an Administrator other than the initial Administrator Issuer to administer this Regulatory Agreement and to monitor performance by the Owner of the terms, provisions and requirements hereof. In such event, the Owner shall comply with any reasonable request by the Issuer to deliver to any such Administrator, in addition to or instead of the Issuer, any reports, notices or other documents required to be delivered pursuant hereto, and to make the Project and the books and records with respect thereto available for inspection by the Administrator as an agent of the Issuer. The fees and charges of the Administrator, if any, shall be the responsibility of the Issuer and not the Owner.OHSUSA:763122734.5
(f) The Very Low Income Units To the extent permitted by law, the Owner will make the units reserved pursuant to Section 4(a) and Section 6(a) available on a priority basis to households comprised of persons whom (i) shall the Issuer has informed the Owner have characteristics comparable to all been displaced by the Issuer or its political subdivisions from other units in developments located within the Project with the same number City of bedrooms, including with respect to floor area and amenities, San Xxxx or (ii) are currently living or working in the City of San Xxxx or who can demonstrate they previously resided in the City of San Xxxx.The Owner shall not discriminate against tenant applicants on the basis of source of income (i.e., TANF or SSI), and the Owner shall consider a prospective tenant’s previous rent history of at least one year as evidence of such tenant’s ability to pay the applicable rent for the unit to be occupied (ability to pay shall be distributed throughout demonstrated if the Project, and (iii) shall have tenant can show that the tenant has paid on time the same access percentage or more of the tenant’s income for rent as the tenant would be required to Project facilities pay for the rent applicable to the unit to be occupied); provided that such tenant paid the same percentage or more of such tenant’s income for rent as all other units in such tenant will be paying under the Projectproposed lease. The Owner may consider such factors as it deems important when reviewing and approving a tenant’s application for occupancy and an existing tenant’s continued occupancy.
(g) In accordance with the IssuerIf a Low Income Tenant’s Policy for Multifamily Mortgage Revenue Bond ProgramAdjusted Income, notwithstanding the termination as of the Qualified Project Period or most recent determination thereof, exceeds 140% of the provisions of Section 2(m) hereofthe applicable income limit for a Low Income Tenant of the same family size, the rent tenancy of “in-place” Very such Low Income Tenants at Tenant shall, to the conclusion of extent permitted by law, be terminated as soon as legally possible and the Qualified Project Period will continue available unit shall within a reasonable time be rented to be governed by the applicable affordability restrictions in this Regulatory Agreement, so long as those tenants continue to live in the Project.(or held vacant and available for immediate occupancy by) a Low Income Tenant.
(h) The Owner will comply with Each of the following post issuance compliance procedures requirements of Sections 3, 4 and 6 hereof is hereby incorporated as a specific requirement of the Issuer:
(i) At the completion of the construction of the Project, the Owner shall provide to the Administrator a certification from the Owner’s architect (whether or other appropriate representative acceptable to the Issuer, such as a HERS Rater, GreenPoint Rater, energy consultant, etc.) for the Project to the effect that the Project includes all design elements that formed the basis for CDLAC adopting the CDLAC Resolution (including but not limited to sustainable building methods and/or energy efficiency elements).
(ii) Subject to the provisions of the next paragraph, the Administrator shall have the right to approve any voluntary change in ownership (A) that results in a transfer of 50% required by California or more of the total equity interests in the Owner, or (B) that results in a transfer of any general partner or managing member interest in the Owner. Such approval to transfer ownership shall be at the reasonable discretion of the Administratorfederal law, and shall be in addition to any applicable requirements set forth in this Regulatory Agreement, force for the Loan Agreement or the Security Instrument. The Administrator may review management practices of the proposed transferee’s current and previously owned properties, if any. Any proposed transferee (including individuals with an ownership interest) whose currently-owned properties have been found by the Administrator to have deficiencies that have not been resolved within the time frame prescribed by the City, the Issuer, the Administrator or other local government authority, may not assume ownership of the Project. The Administrator may initiate additional inspections, at the proposed transferee’s request, to verify findings. The Owner agrees that it will provide the Administrator with notice of any such transfer within thirty (30) days thereof. Notwithstanding the foregoing, any of the following shall not require the prior consent of the Issuer or the Administrator: (A) transfers of or in the limited partner interests of the Owner, (B) the removal and replacement of one or more general partners or managing members of the Owner in accordance with the terms of the Partnership Agreement or Operating Agreement, (C) foreclosure (or acceptance of a deed in lieu of foreclosure), or the first transfer of the Project following a foreclosure under the Security Instrument or acceptance of a deed in lieu of such foreclosure, and (D) any transfer referred to in the last sentence of Section 11 term of this Regulatory Agreement.
(iiii) In addition, the Owner shall comply with the conditions set forth in Exhibit A to CDLAC Resolution No. 15-114, adopted on September 16, 2015, (the “CDLAC Conditions”), as such conditions may be modified or amended from time to time, which conditions are incorporated herein by reference and made a part hereof. The Owner will prepare and submit to the Issuer on or before each February 1 until the end of the Qualified Project Period, or at such other times as required by the Issuer, a Certification of Compliance in substantially the form attached to the CDLAC Conditions, executed by an authorized representative of the Owner and the Issuer shall submit such report to CDLAC annually on or before March 1, or at such other times as required by CDLAC. The Issuer and the Administrator shall have no obligation to monitor the Owner’s compliance with the CDLAC Conditions.
(j) The Owner agrees to maintain the Project, or cause the Project to be maintained, during the term of this Regulatory Agreement (i) in a safe condition and (ii) in good repair and good operating condition, ordinary wear and tear excepted, making from time to time all necessary repairs thereto and renewals and replacements thereof such that the Project shall provide be in substantially the Administrator’s staff with same condition at all documentation necessarytimes as it was on completion its rehabilitation using Loan proceeds.
(k) The Owner will pay the Issuer all of the amounts required by the Loan Agreement, and will indemnify the Issuer and the Trustee as provided in the sole discretion Loan Agreement.
(l) The requirements of this Section 7 of this Regulatory Agreement shall be in effect for the Administrator’s staff, to confirm the Owner’s and the Project’s compliance with federal tax laws as set forth in the Tax Certificate, the Loan Agreement and term of this Regulatory Agreement, including the ; provided that any requirements of Section 5.1 7 of the Loan this Regulatory Agreement regarding rebate compliance. Any of the foregoing requirements of the Issuer may be expressly waived by the Issuer Issuer, at its sole discretion (except Section 7(i) above, which may be expressly waived by CDLAC), in writing, but (i) no waiver by the Issuer of any requirement of this Section 5 7 shall, or shall be deemed to, extend to or affect any other provision of this Regulatory Agreement except to the extent the Issuer has received an opinion of Tax Bond Counsel to the effect that any such other provision is not required by the Act and a Tax Counsel No Adverse Effect Opinionmay be waived without adversely affecting the OHSUSA:763122734.5 exclusion from gross income of interest on the Bonds for federal income tax purposes; and (ii) any requirement of this Section 5 7 shall be void and of no force and effect if the Issuer and the Owner receive a written opinion of Tax Bond Counsel to the effect that compliance with any such requirement would cause interest on the Bonds to cease to be Tax-Exempt or to the effect that compliance with such requirement would be in conflict with the Act or any other applicable State or federal law. Nothing contained in this Regulatory Agreement is intended to limit the restrictions, requirements or obligations in the DDA, or any recorded affordability restrictions pursuant thereto or otherwise in connection with the Project, and nothing contained in the DDA (or any such recorded affordability restrictions) is intended to limit the restrictions, requirements or obligations in this Regulatory Agreement. In the event of any conflict between this Regulatory Agreement and the DDA or any recorded affordability restrictions with respect to the Project, the most restrictive shall control.
Appears in 1 contract
Samples: Regulatory Agreement and Declaration of Restrictive Covenants
