HomeMy WebLinkAboutC2015-296 - 9/22/2015 - NA HUD AMENDMENT TO RESTRICTIVE COVENANTS
This AMENDMENT TO RESTRICTIVE COVENANTS is made as of li;t0 ,,,,
.9,1„ 2015,2015, by C.C.T. Navigation-Cameron, LP, Texas limited partnership ("Borrower") and
Corpus Christi Community Improvement Corporation("Agency").
WHEREAS, Borrower has obtained financing from Dougherty Mortgage LLC, a
Delaware limited liability company ("Lender") for the benefit of the project known as
Navigation Pointe Apartments ("Project"), which loan is secured by a Multifamily Deed of
Trust,Assignment of Leases and Rents and Security Agreement("Security Instrument")dated as
of,ge,it;,,,Jo,,„U 2015, and recorded in the Real Property Records of Nueces County, Texas
("Records") simultaneously herewith, and is insured by the United States Department of Housing
and Urban Development("HUD");
WHEREAS, Borrower has received HOME funds from the Agency, which Agency is
requiring certain restrictions be recorded against the Project;and
Whereas Borrower entered into that certain Declaration of Restrictive Covenant of
Affordability ("Restrictive Covenants") with respect to the Project, as more particularly
described in Exhibit A attached hereto,dated as of October 1,2006 and recorded in the Records;
WHEREAS, HUD requires as a condition of its insuring Lender's financing to the
Project, that the lien and covenants of the Restrictive Covenants be subordinated to the lien,
covenants,and enforcement of the Security Instrument;and
WHEREAS, the Agency has agreed to subordinate the Restrictive Covenants to the lien
of the Mortgage Loan in accordance with the terms of this Amendment.
NOW, THEREFORE, in consideration of the foregoing and for other consideration the
receipt and sufficiency of which are hereby acknowledged,the parties hereby agree as follows:
(a) In the event of any conflict between any provision contained elsewhere in the
Restrictive Covenants and any provision contained in this Amendment, the provision contained
in this Amendment shall govern and be controlling in all respects as set forth more fully herein.
(b) The following terms shall have the following definitions:
"Code"means the Internal Revenue Code of 1986,as amended.
"HUD"means the United States Department of Housing and Urban Development.
"HUD Regulatory Agreement" means the Regulatory Agreement between Borrower and HUD
with respect to the Project,as the same may be supplemented,amended or modified from time to
time.
"Lender"means Dougherty Mortgage LLC, a Delaware limited liability company, its successors
and assigns.
2015-296
9/22/15
C.C.T.Navigation-Cameron LP INDEXED
"Mortgage Loan" means the mortgage loan made by Lender to the Borrower pursuant to the
Mortgage Loan Documents with respect to the Project.
"Mortgage Loan Documents" means the Security Instrument, the HUD Regulatory Agreement
and all other documents required by HUD or Lender in connection with the Mortgage Loan.
"National Housing Act"means the National Housing Act of 1934, as amended.
"Program Obligations"has the meaning set forth in the Security Instrument.
"Residual Receipts"has the meaning specified in the HUD Regulatory Agreement.
"Security Instrument"means the mortgage or deed of trust from Borrower in favor of Lender, as
the same may be supplemented,amended or modified.
"Surplus Cash"has the meaning specified in the HUD Regulatory Agreement.
(c) Notwithstanding anything in the Restrictive Covenants to the contrary,except the
requirements in 26 U.S.C. 42(h)(6)(E)(ii), to the extent applicable, the provisions hereof are
expressly subordinate to (i) the Mortgage Loan Documents, including without limitation, the
Security Instrument, and (ii) Program Obligations (the Mortgage Loan Documents and Program
Obligations are collectively referred to herein as the "HUD Requirements"). Borrower
covenants that it will not take or permit any action that would result in a violation of the Code,
HUD Requirements or Restrictive Covenants. In the event of any conflict between the
provisions of the Restrictive Covenants and the provisions of the HUD Requirements,HUD shall
be and remains entitled to enforce the HUD Requirements. Notwithstanding the foregoing,
nothing herein limits the Agency's ability to enforce the terms of the Restrictive Covenants,
provided such terms do not conflict with statutory provisions of the National Housing Act or the
regulations related thereto. The Borrower represents and warrants that to the best of Borrower's
knowledge the Restrictive Covenants impose no terms or requirements that conflict with the
National Housing Act and related regulations.
(d) In accordance with 26 U.S.C. 42(h)(6)(E)(i)(1), in the event of foreclosure (or
deed in lieu of foreclosure), the Restrictive Covenants (including without limitation, any and all
land use covenants and/or restrictions contained herein) shall automatically terminate, with the
exception of the requirements of 26 U.S.C. 42(h)(6)(E)(ii) above, to the extent applicable, or as
otherwise approved by HUD.
(e) Borrower and the Agency acknowledge that Borrower's failure to comply with
the covenants provided in the Restrictive Covenants does not and shall not serve as a basis for
default under the HUD Requirements,unless a default also arises under the HUD Requirements.
(f) Except for the Agency's reporting requirement, in enforcing the Restrictive
Covenants the Agency will not file any claim against the Project, the Mortgage Loan proceeds,
any reserve or deposit required by HUD in connection with the Security Instrument or HUD
Regulatory Agreement,or the rents or other income from the property other than a claim against:
i. Available surplus cash,if the Borrower is a for-profit entity;
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ii. Available distributions of surplus cash and residual receipts authorized for release
by HUD,if the Borrower is a limited distribution entity;or
iii. Available residual receipts authorized by HUD, if the Borrower is a non-profit
entity.
(g) For so long as the Mortgage Loan is outstanding,Borrower and Agency shall not
further amend the Restrictive Covenants, with the exception of clerical errors or administrative
correction of non-substantive matters,without HUD's prior written consent.
(h) Subject to the HUD Regulatory Agreement,the Agency may require the Borrower
to indemnify and hold the Agency harmless from all loss,cost,damage and expense arising from
any claim or proceeding instituted against Agency relating to the subordination and covenants set
forth in the Restrictive Covenants, provided, however, that Borrower's obligation to indemnify
and hold the Agency harmless shall be limited to available surplus cash and/or residual receipts
of the Borrower.
(i) Notwithstanding anything to the contrary contained herein, it is not the intent of
any of the parties hereto to cause a recapture of the Low Income Housing Tax Credits or any
portion thereof related to any potential conflicts between the HUD Requirements and the
Restrictive Covenants. Borrower represents and warrants that to the best of Borrower's
knowledge the HUD Requirements impose no requirements which may be inconsistent with full
compliance with the Restrictive Covenants. The acknowledged purpose of the HUD
Requirements is to articulate requirements imposed by HUD, consistent with its governing
statutes, and the acknowledged purpose of the Restrictive Covenants is to articulate requirements
imposed by Section 42 of the Code. In the event an apparent conflict between the HUD
Requirements and the Restrictive Covenant arises, the parties and HUD will work in good faith
to determine which federally imposed requirement is controlling. It is the primary responsibility
of the Borrower, with advice of counsel, to determine that it will be able to comply with the
HUD Requirements and its obligations under the Restrictive Covenants.
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BORROWER:
C.C.T.NAVIGATION-CAMERON, LP,
a Texas limited partnership
By: Merced-Navigation,LLC,
a Texas limited liability company,
its general partner
By: Merced Housing Texas,
a Texas non-profit corporation,
its sole member
By: 2.
Name: Susan R. Sheeran
Title: President
STATE OF TEAS §
COUNTY OF }?)CFS I2, §
This instrument was acknowledged before me on this off` day of 2015,
by Susan R. Sheeran, President of Merced Housing Texas, a Texas non-pro t corporation, sole
member of Merced-Navigation, LLC, a Texas limited liability company, general partner of
C.C.T. Navigation-Cameron, LP, a Texas limited partnership, on behalf of said limited
partnership.
ØARP ,SSiCNEXP1RES
MISTN L DAVILA
' lily 8,2017
J
o ; Public, tate of Texas
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AGENCY:
CORPUS CHRISTI COMMUNITY IMPROVEMENT CORPORATION, qq / vii•-'
�a1
a Texas non-p fit corporation App oval as to fs
By: 4,110d .
Oh
Name: S 0.0
Title: 7(-,�},� A4 sta • y 6.rney
For City Attorney
STATE OF TEXAS §
COUNTY OF 1•1(keee-S §
_This instrument was acknowledged before me on this �' day of t�C'E-0 , 2015,
by ts,S . Th cepa,, duly authorized representative of the Corpus Christi
Community Improvement Corporation, a ex as non-profit corporation, on behalf of said
corporation. A
SEAL 41_�
Notary P •lic,State of Texas
(.4o
`. I.',,(.) OLIVER KENT MEEK
' Notary Public.State of Texas
My Commission Expires
v':;1,,;.rr Match 09.2019
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Exhibit A
Legal Description
Lot 1, Block 1, Navigation Pointe, a Subdivision of the City of Corpus Christi, Nueces County,
Texas, as shown on the map or plat thereof recorded in Volume 66, Page 36, Map Records,
Nueces County,Texas.
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