12 zu Book 6095 Page 364 BK: RB 6095 PG: 364-376 RECORDED: 10-12-2017 01:15:06 PM 2017033260 NEW HANOVER COUNTY, NC BY: ANDREA CRESWELL ASSISTANT TAMMY THEUSCH BEASLEY REGISTER OF DEEDS Prepared by: Ronda G. Moore, a North Carolina Licensed Attorney Mail after recording to: NCHFA, Attn. Patti Cassel, P.O. Box 28066, Raleigh, NC 27611-8066 DECLARATION OF LAND USE RESTRICTIVE COVENANTS FOR LOW-INCOME HOUSING TAX CREDITS NC FEE $26.00 Oct. 1 THIS DECLARATION OF LAND USE RESTRICTIVE COVENANTS FOR LOW-INCOME HOUSING TAX CREDITS (the "Agreement”), dated as of 2017 by Cypress Cove of Wilmington, LLC, and its successors and assigns (the "Owner") is given as a condition to the allocation of low-income housing credits by the North Carolina Federal Tax Reform Allocation Committee, an instrumentality of the State of North Carolina (together with any successor to its rights, duties and obligations, the "NCTRAC”).
WITNESSETH: WHEREAS, the Owner is the owner of a rental housing development located in Wilmington, County of New Hanover, North Carolina, more particularly described in Exhibit A attached hereto and incorporated herein by reference, known as or to be known as Cypress Cove (the "Project"); and WHEREAS, the NCTRAC has been designated as the housing credit agency for the State of North Carolina for the allocation of low-income housing credits (the "Credit"); and WHEREAS, the Owner has applied to the NCTRAC for an award of Credit under the 2016 Qualified Allocation Plan ("QAP"); and WHEREAS, the Owner received an allocation of Credit as described in the carryover allocation agreement entered into between the NCTRAC and Owner ("Allocation"); and WHEREAS, the Owner recognizes that it must maintain certain rent and income restrictions under Section
the carryover allocation agreement entered into between the NCTRAC and Owner ("Allocation"); and WHEREAS, the Owner recognizes that it must maintain certain rent and income restrictions under Section 42 of the Code of the Internal Revenue Code of 1986, as amended or as may be amended from time to time, and applicable regulations ("Section 42 of the Code") for the Extended Use Period as defined herein and in the Code; and FTC/EUA/2016/Cypress Cove Agency Project Number: 9198738 1 Book 6095 Page 365 WHEREAS, the Owner understands that the representations made to the NCTRAC in its application for Credits ("Application") are conditions and requirements of the Allocation and that it is bound by these to the same extent as all other rules, regulations, restrictions and otherwise, including an agreement to not apply for relief under Section 42(h)(6)(E)(i)(II) of the Code during the Extended Use Period; and WHEREAS, the Owner, under this Agreement, intends, declares and covenants that the regulatory and restrictive covenants set forth herein governing the use, occupancy and transfer of the Project shall be and are covenants running with the Project for the term stated herein and binding upon all subsequent owners of the Project for such term, and are not merely personal covenants of the Owner.
NOW, THEREFORE, in consideration of the promises and covenants hereinafter set forth, and for other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Owner agrees as follows: SECTION 1 - DEFINITIONS All words and phrases defined in the QAP, Section 42 of the Code and all applicable rules, rulings, policies, proceedings, regulations, or other official statements promulgated or proposed by the United States
and phrases defined in the QAP, Section 42 of the Code and all applicable rules, rulings, policies, proceedings, regulations, or other official statements promulgated or proposed by the United States Department of the Treasury, or the Internal Revenue Service, or the United States Department of Housing and Urban Development or the United States Department of Agriculture pertaining thereto shall have the same meanings in this Agreement.
SECTION 2 - RECORDING AND FILING; COVENANTS TO RUN WITH THE LAND (a) The Owner will cause this Agreement to be recorded as provided hereunder no later than the end of the first taxable year in which Credits allocated to this Project are taken. Upon execution, acknowledgement, and delivery by the Owner, the Owner shall cause this Agreement and all amendments hereto to be recorded and filed in the office of the Register of Deeds of the county in which the Project is located, and shall pay all fees and charges incurred in connection therewith. The original recorded executed Agreement shall be transmitted to NCTRAC as soon as it is available from the Register of Deeds. The Owner agrees that the NCTRAC will not issue the Internal Revenue Service Form(s) 8609 constituting final allocation of the Credit unless and until the NCTRAC has received the recorded executed original of the Agreement.
(b) The Owner intends, declares and covenants, on behalf of itself and all future owners and operators of the Project during the term of this Agreement, that this Agreement and the covenants and restrictions set forth in this Agreement (i) shall be and are covenants running with the Project, encumbering the Project for the term of this Agreement, binding upon the Owner, the Owner's successors in title and all subsequent owners and operators of
e and are covenants running with the Project, encumbering the Project for the term of this Agreement, binding upon the Owner, the Owner's successors in title and all subsequent owners and operators of the Project, (ii) are not merely personal covenants of the Owner, and (iii) shall bind the Owner and its respective successors and assigns, and the benefits shall inure to the NCTRAC and any former, present or prospective tenant of the Project during the term of this Agreement. The Owner hereby agrees that any and all requirements of the laws of the State of North Carolina to be satisfied in order for the provisions of this Agreement to constitute deed restrictions and covenants running with the Project and which touch and concern the Project shall be deemed to be satisfied in full, that any requirements of privity of estate are intended to be satisfied, and that an equitable servitude in the form of a negative easement has been created to insure that these restrictions run with the land. For the longer of the period this Credit is claimed or the term of this Agreement, each and every contract, option, memorandum of option, deed or other instrument hereafter executed conveying the Project or portion thereof shall expressly provide that such conveyance is subject to this Agreement; provided, however, the covenants contained herein shall survive and be effective regardless of whether such contract, option, memorandum of option, deed or other instrument hereafter executed conveying the Project or portion thereof provides that such conveyance is subject to this Agreement.
(c) The Owner covenants to obtain the consent of any prior recorded lienholder on the Project to be bound by the
Project or portion thereof provides that such conveyance is subject to this Agreement.
(c) The Owner covenants to obtain the consent of any prior recorded lienholder on the Project to be bound by the terms of this Agreement, and such consent shall be a condition precedent to the issuance of Internal Revenue Service Form(s) 8609 constituting final allocation of the Credit.
FTC/EUA/2016/Cypress Cove Agency Project Number: 9198738 2 Book 6095 Page 366 SECTION 3 - REPRESENTATIONS, COVENANTS AND WARRANTIES OF THE OWNER The Owner hereby represents, covenants and warrants as follows: (a) The Owner (i) is validly existing and qualified to transact business under the laws of North Carolina, (ii) has the full power and authority to own its properties and assets and to carry on its business as now being conducted, and (iii) has the full legal right, power and authority to execute and deliver this Agreement.
(b) The execution and performance of this Agreement by the Owner (i) will not violate or, as applicable, have not violated any provision of law, rule or regulation, or any order of any court or other agency or governmental body, and (ii) will not violate or, as applicable, have not violated any provision of any indenture, agreement, mortgage, mortgage note, partnership agreement, operating agreement, corporate charter, corporate resolution, bylaws, or other instrument to which the Owner is a party or by which it or the Project is bound, and (iii) will not result in the creation or imposition of any prohibited encumbrance of any nature.
(c) The Owner will, at the time of execution, acknowledgement, and delivery of this Agreement, have good and marketable title to the Project free and clear of any lien or encumbrance other than: (i) the encumbrance created
the time of execution, acknowledgement, and delivery of this Agreement, have good and marketable title to the Project free and clear of any lien or encumbrance other than: (i) the encumbrance created pursuant to this Agreement, (ii) any loan documents relating to financing of the construction of the Project that by its terms will be cancelled within one year of the last building in the project being placed in service, and (iii) matters for which consent is obtained as provided under Section 2(c) above.
(d) There is no action, suit or proceeding at law or in equity or by or before any governmental instrumentality or other agency now pending, or, to the knowledge of the Owner, threatened against or affecting it, or any of its properties or rights, which, if adversely determined, would materially impair its right to carry on business substantially as now conducted (and as now contemplated by this Agreement) or would materially adversely affect its financial condition or which would impair the use of the Project as contemplated by this Agreement.
(e) The Project constitutes or will constitute a qualified low-income building(s) and qualified low-income project as defined in Section 42 of the Code.
(f) Each unit in the Project contains or will contain, upon completion of construction, complete facilities for living, sleeping, eating, cooking and sanitation (unless the Project qualifies as a single-room occupancy project or transitional housing for the homeless) which are to be used on other than a transient basis.
(g) During the term of this Agreement, the Owner covenants, agrees and warrants that (i) all units eligible for the Credit shall be leased and rented or made available to members of the general public who qualify as low-income
s Agreement, the Owner covenants, agrees and warrants that (i) all units eligible for the Credit shall be leased and rented or made available to members of the general public who qualify as low-income tenants (or otherwise qualify for occupancy of the low-income units) under the applicable election specified in Section 42(g)(1) of the Code ("Low-Income Tenants"), (ii) the Owner shall not refuse to lease any residential unit in the Project to a holder of a voucher or certificate of eligibility under section 8 of the United States Housing Act of 1937 because of the status of the prospective tenant as such a holder, (iii) each residential unit is and will remain suitable for occupancy as defined by the NCTRAC, and (iv) pursuant to Section 42(h)(6)(E)(ii)(I) and (II) of the Code, the Owner shall not evict or terminate the tenancy of an existing tenant of any low-income unit other than for good cause and shall not increase the gross rent above the maximum allowed under Section 42 of the Code with respect to such low-income unit.
(h) The Owner agrees to itself comply, and ensure the Project complies, with the requirements of federal, state and local laws and regulations (including the Fair Housing Act as it may from time to time be amended).
(i) The Owner will not substantially convert, alter, reduce or otherwise change any common areas used by the tenants or that are considered as part of the Project's eligible basis without the NCTRAC's prior written consent. This limitation includes conversion of any manager's unit(s) or office space.
(j) Subject to the requirements of Section 42 of the Code and this Agreement, except as a result of a condemnation action, the Owner may not sell, transfer or exchange the Project or any material portion at any time during the 3
nts of Section 42 of the Code and this Agreement, except as a result of a condemnation action, the Owner may not sell, transfer or exchange the Project or any material portion at any time during the 3 FTC/EUA/2016/Cypress Cove Agency Project Number: 9198738 Book 6095 Page 367 Extended Use Period without the prior written approval of NCTRAC. Such approval may be withheld at NCTRAC's reasonable discretion, and NCTRAC may require submission of any documentation related to the buyer, seller, Project or otherwise relating to the transaction. This provision shall not act to waive any other restriction on sale, transfer or exchange of the Project or any low-income portion of the Project, including, but not limited to, the restriction under Section 42(h)(6)(B)(iii) of the Code that no portion of any building in the Project may be sold, transferred or exchanged unless all of the building is sold, transferred or exchanged to the transferee. Within thirty (30) days of the closing of such sale, transfer or exchange, the Owner shall provide the NCTRAC a complete copy of all the closing documents.
(k) The Owner shall not demolish any part of the Project or substantially subtract from any real or personal property of the Project or permit the use of any residential rental unit for any purpose other than rental housing during the term of this Agreement unless required by law.
(1) The Owner represents, warrants and agrees that if the Project, or any part thereof, shall be damaged or destroyed or shall be condemned or acquired for public use, the Owner will use its best efforts to repair and restore the Project to substantially the same condition as existed prior to the event causing such damage,
ll be condemned or acquired for public use, the Owner will use its best efforts to repair and restore the Project to substantially the same condition as existed prior to the event causing such damage, destruction, or condemnation, and thereafter to operate the Project in accordance with the terms of this Agreement.
(m) The Owner warrants that it has not and will not execute any other agreement with provisions contradictory to, or in opposition to, the provisions hereof, and that in any event, the requirements of this Agreement are paramount and controlling as to the rights and obligations herein set forth and supersede any other requirements in conflict herewith.
(n) The Owner represents, warrants and agrees that all information, reports and exhibits furnished by it to the NCTRAC in connection with the Application is accurate and the Owner has not made any material misstatement of fact or omitted to state a material fact. Furthermore, the Owner understands that NCTRAC has relied on the truth and completeness of representations in the Application. Any subsequent discovery of material misstatements or omissions will entitle the NCTRAC to exercise every available remedy including, without limitation, revoking the Allocation.
(o) The Owner acknowledges that the following constitute conditions to the Allocation: (i) accuracy of the facts and compliance with representations contained in the Application and Allocation documentation, (ii) completion of construction as depicted on the site layout, floor plan and elevations submitted with the Application, (iii) adherence to the QAP, and (iv) provision and maintenance of those certain unit and project amenities for the benefit of the tenants described in the Application.
submitted with the Application, (iii) adherence to the QAP, and (iv) provision and maintenance of those certain unit and project amenities for the benefit of the tenants described in the Application.
The Owner's or Project's failure to comply with all such conditions without prior written authorization from the NCTRAC will entitle the NCTRAC, in its discretion, to deem the Allocation to be cancelled by mutual consent.
After · any such cancellation, Owner acknowledges that neither it nor the Project will have any right to claim Credits pursuant to the Allocation. The NCTRAC reserves the right, in its discretion, to modify and/or waive any such failed condition.
SECTION 4 - INCOME AND RENT RESTRICTIONS The Owner represents, warrants and covenants to the NCTRAC throughout the term of this Agreement and in order to satisfy the requirements of the occupancy restrictions of Section 42 of the Code ("Section 42 Restrictions") that: (a) Minimum Set-Aside: At least forty percent (40%) or more of the residential units in the Project are both rent-restricted and occupied (or if unoccupied, held for occupancy only) by individuals whose income is sixty percent (60%) or less of area median gross income (subject to any exceptions permitted under Section 42 of the Code for tenants whose income increases after initially meeting such restriction).
FTC/EUA/2016/Cypress Cove Agency Project Number: 9198738 4 Book 6095 Page 368 (b) Rental Production Program: no applicable requirements (c) Non-profit set-aside: no applicable requirements (d) The applicable fraction as defined in Section 42(c)(1)(B) of the Code for each taxable year of the Extended Use Period will be no less than one hundred percent (100%).
: no applicable requirements (d) The applicable fraction as defined in Section 42(c)(1)(B) of the Code for each taxable year of the Extended Use Period will be no less than one hundred percent (100%).
(e) Except as may be otherwise provided under Section 42 of the Code or by the Internal Revenue Service, the determination of whether a tenant meets the low-income requirement shall be made by the Owner at least annually on the basis of the current income of such Low-Income Tenant.
SECTION 5 - TERM OF AGREEMENT (a) For the purposes of this Agreement the term "Compliance Period” means, with respect to any building, the period of fifteen (15) taxable years beginning with the first taxable year of the credit period with respect thereto as defined in Section 42(f) of the Code.
(b) Except as hereinafter provided, this Agreement and the Section 42 Restrictions shall commence with the first day on which any building which is part of the Project is placed in service and shall end on the date which is fifteen (15) years after the end of the Compliance Period. The period from the beginning of the Compliance Period until fifteen (15) years after the end of the Compliance Period (or such earlier date as may be determined under subsection (c) below) is the extended use period (the "Extended Use Period”).
(c) The Extended Use Period for any building which is part of this Project shall terminate, if earlier than the end of the Extended Use Period, on the date the Project is acquired by foreclosure or instrument in lieu of foreclosure, unless the Internal Revenue Service determines that such acquisition is part of an arrangement with the Owner in which a purpose of such arrangement is the termination of the Extended Use Period. The Owner will not
ernal Revenue Service determines that such acquisition is part of an arrangement with the Owner in which a purpose of such arrangement is the termination of the Extended Use Period. The Owner will not apply for relief under Section 42(h)(6)(E)(i)(II) of the Code during the Extended Use Period.
(d) Notwithstanding subsection (c) above, for the purposes of the covenants made in Section 3(g) of this Agreement, the term of this Agreement shall continue for a period of three years following any termination of the Extended Use Period pursuant to the procedures specified in subsection (c) above. During such three-year period, the Owner shall not evict or terminate the tenancy of an existing tenant of any low-income unit other than for good cause and shall not increase the gross rent above the maximum allowed under Section 42 of the Code with respect to such low-income unit.
SECTION 6 - ENFORCEMENT (a) The Owner shall permit, during normal business hours and upon reasonable notice, any duly authorized representative of the NCTRAC to inspect any books and records of the Owner regarding the Project with respect to the incomes, rent levels, and housing costs of Low-Income Tenants which pertain to compliance with this Agreement.
(b) The Owner shall submit any other information, documents or certifications requested by the NCTRAC which the NCTRAC shall deem reasonably necessary to substantiate the Owner's continuing compliance with the provisions of this Agreement.
(c) The Owner covenants that it will not knowingly take or permit any action that would result in a violation of the requirements of Section 42 of the Code or this Agreement. Moreover, Owner covenants and agrees to take any
that it will not knowingly take or permit any action that would result in a violation of the requirements of Section 42 of the Code or this Agreement. Moreover, Owner covenants and agrees to take any lawful action (including amendment of this Agreement as may be necessary, in the opinion of the NCTRAC) to comply fully with Section 42 of the Code and with all applicable rules, rulings, policies, procedures, regulations or other official statements promulgated or proposed by the United States Department of the Treasury, or the Internal Revenue Service, or the United States Department of Housing and Urban Development or the United FTC/EUA/2016/Cypress Cove Agency Project Number: 9198738 C 5 Book 6095 Page 369 States Department of Agriculture from time to time pertaining to Owner's obligations under Section 42 of the Code and affecting the Project.
(d) The Owner and the NCTRAC acknowledge that the primary purpose for requiring compliance by the Owner with the restrictions provided in this Agreement is to assure compliance of the Project and the Owner with representations made in the Application, the applicable QAP and Section 42 of the Code, AND BY REASON THEREOF, THE OWNER IN CONSIDERATION FOR RECEIVING LOW-INCOME HOUSING CREDITS FOR THIS PROJECT HEREBY AGREES AND CONSENTS THAT THE NCTRAC AND ANY LOWINCOME TENANT OR INDIVIDUAL WHO MEETS THE INCOME LIMITATION APPLICABLE UNDER SECTION 42 OF THE CODE (WHETHER PROSPECTIVE, PRESENT OR FORMER OCCUPANT OF THE PROJECT) SHALL BE ENTITLED, FOR ANY BREACH OF THE PROVISIONS HEREOF, AND IN ADDITION TO ALL OTHER REMEDIES PROVIDED BY LAW OR IN EQUITY, TO OBTAIN SPECIFIC PERFORMANCE BY THE OWNER OF ITS OBLIGATIONS UNDER THIS AGREEMENT IN ANY COURT OF COMPETENT JURISDICTION HEREOF IN ADDITION TO ALL OTHER REMEDIES
MEDIES PROVIDED BY LAW OR IN EQUITY, TO OBTAIN SPECIFIC PERFORMANCE BY THE OWNER OF ITS OBLIGATIONS UNDER THIS AGREEMENT IN ANY COURT OF COMPETENT JURISDICTION HEREOF IN ADDITION TO ALL OTHER REMEDIES PROVIDED BY LAW OR IN EQUITY. The Owner hereby further specifically acknowledges that the beneficiaries of the Owner's obligations hereunder cannot be adequately compensated by monetary damages in the event of any default hereunder.
(e) The Owner hereby agrees that the representations and covenants set forth herein may be relied upon by the NCTRAC and all persons interested in Project compliance under Section 42 of the Code.
(f) The Owner acknowledges that Section 42 of the Code requires the NCTRAC (or an agent or other contractor of the NCTRAC) to monitor the Section 42 Restrictions, and the Owner hereby agrees to take any and all actions reasonably necessary and required by the NCTRAC (or any agent of, or other contractor hired by, the NCTRAC) to substantiate the Owner's compliance with the Section 42 Restrictions or the State Housing Policy Restrictions.
SECTION 7 - MISCELLANEOUS (a) Severability. The invalidity of any clause, part or provision of this Agreement shall not affect the validity of the remaining portions thereof.
(b) Notices. All notices to be given pursuant to this Agreement shall be in writing and shall be deemed given when mailed by certified or registered mail, return receipt requested, to the parties hereto at the addresses set forth below, or to such other place as a party may from time to time designate in writing.
To the North Carolina Federal Tax Reform Allocation Committee: To the Owner: c/o North Carolina Housing Finance Agency PO Box 28066 Raleigh, NC 27611-8066 Cypress Cove of Wilmington, LLC P.O. Box 2400 Beaufort, NC 28516
na Federal Tax Reform Allocation Committee: To the Owner: c/o North Carolina Housing Finance Agency PO Box 28066 Raleigh, NC 27611-8066 Cypress Cove of Wilmington, LLC P.O. Box 2400 Beaufort, NC 28516 The NCTRAC and the Owner, may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent.
(c) Amendment. The Owner agrees that it will take all actions necessary to effect amendment of this Agreement as may be necessary to comply with Section 42 of the Code (or any other applicable provisions of the Internal Revenue Code of 1986) and any and all applicable rules, regulations, policies, procedures, rulings or other official statements pertaining to the Credit. Upon proper recordation of this Agreement in the county registry, the Owner agrees that no amendment(s) to the terms or conditions of this Agreement shall apply or have effect 6 FTC/EUA/2016/Cypress Cove Agency Project Number: 9198738 Book 6095 Page 370 unless the written consent to or acknowledgement of such amendment(s) shall have been given on behalf of the NCTRAC.
(d) Governing Law. This Agreement shall be governed by the laws of the State of North Carolina and, where applicable, the laws of the United States of America.
(e) Survival of Obligations. The obligations of the Owner as set forth herein and in the Application shall survive the allocation of the Credit and shall not be deemed to terminate or merge with the awarding of the allocation.
(f) Recovery of Attorney's Fees. If the NCTRAC shall incur legal fees or other expenses in enforcing its rights and/or remedies, or the Owner's obligation, under this Agreement, the Owner shall reimburse the NCTRAC for
torney's Fees. If the NCTRAC shall incur legal fees or other expenses in enforcing its rights and/or remedies, or the Owner's obligation, under this Agreement, the Owner shall reimburse the NCTRAC for those fees and other expenses within a reasonable time after receipt of written demand therefore.
(g) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the NCTRAC and the successors and assigns of the Owner.
(h) Successor Statutes and Agencies. Any references in this Agreement to specific statutory provisions, specific regulatory provisions or specific governmental agencies or entities shall include any successor statutory provision, regulatory provision or governmental agency or entity, as the case may be.
IN WITNESS WHEREOF, the undersigned has executed this instrument as of the date and year first written above.
Cypress Cove of Wilmington, LLC, a North Carolina limited liability company By: Cypress Cove Housing of Wilmington, Inc., A North Carolina corporation, its Manager 山 By: Keith D. Walker, President NORTH CAROLINA CARTERET COUNTY I, the undersigned Notary Public of the County and State aforesaid, certify that Keith D. Walker personally appeared before me this day and acknowledged that he is the President of Cypress Cove Housing of Wilmington, Inc., a North Carolina corporation, Manager of Cypress Cove of Wilmington, LLC, a North Carolina limited liability company, and that by authority duly given and as the act of such entity, he signed the foregoing Declaration of Land Use Restrictive Covenants for Low-Income Housing Tax Credits in its name on its behalf as its act and deed.
Witness my hand and official stamp or seal, this the 10 My Commission Expires: 3-17-21 [NOTARIAL SEAL] PAMELAL KOSTELICH
r Low-Income Housing Tax Credits in its name on its behalf as its act and deed.
Witness my hand and official stamp or seal, this the 10 My Commission Expires: 3-17-21 [NOTARIAL SEAL] PAMELAL KOSTELICH th _day of OCTOBER, 2017.
Notary Public Atbil Print Notary Name: FAMELA L. KOSTELICH COUNTY, NC FTC/EUA/2016/Cypress Cove Agency Project Number: 9198738 NOTARY PUBLIC CARTERET Book 6095 Page 371 EXHIBIT A BEGINNING at an iron pipe set located North 73° 07' 37" West 391.09 feet from the intersection of the western most right-of-way of 30th Street with the northern most right-of-way of the Seaboard Coastline Railroad (130 foot right-of-way), said iron pipe set being the point and place of beginning, THENCE running from said point and place of beginning North 05° 38' 48" East 1,574.22 feet to an iron pipe set; THENCE running North 83° 23' 24" West 400.03 feet to a stone marker; THENCE running South 06° 30' 25" West 1,498.41 feet to an existing iron pipe located in the northern most boundary of the aforesaid railroad right-of-way; THENCE running along and with said right-of-way South 73° 16' 38” East 430.49 feet to an iron pipe set, being the point and place of beginning, said tract containing 14.51 acres, more or less, and being furthermore depicted on a November 7, 2016 survey entitled "East Carolina Community Development, Inc. Real Properties, LLC", such survey being incorporated herein by reference for a more full and accurate precise description of the aforesaid real property.
The aforesaid real property is further described in deed recorded in Book 4717, Page 513, New Hanover County Registry.
FTC/EUA/2016/Cypress Cove Agency Project Number: 9198738 8 Book 6095 Page 372 HUD Rider To Restrictive Covenants
further described in deed recorded in Book 4717, Page 513, New Hanover County Registry.
FTC/EUA/2016/Cypress Cove Agency Project Number: 9198738 8 Book 6095 Page 372 HUD Rider To Restrictive Covenants This RIDER TO RESTRICTIVE COVENANTS is made as of October 12, 2017, by Cypress Cove of Wilmington, LLC ("Borrower") and North Carolina Housing Finance Agency ("Agency”).
WHEREAS, Borrower has obtained financing from Churchill Mortgage Investments, LLC (“Lender") for the benefit of the project known as Cypress Cove Apartments, LLC ("Project"), which loan is secured by a deed of trust ("Security Instrument") dated as of October 12, 2017, and recorded in the office of the Register of Deeds of New Hanover County, North Carolina ("Records”) on 10-12-17 as Document Number Book 6095, and is insured by the United States Department of Housing and Urban Development ("HUD”); Page 236 WHEREAS, Borrower has received an allocation of Low Income Housing Tax Credits and tax-exempt bond financing from the Agency, which Agency is requiring certain restrictions be recorded against the Project; and 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 Rider.
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
ceipt 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 Rider, the provision contained in this Rider 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 Churchill Mortgage Investments, LLC, its successors and assigns.
"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.
FTC/EUA/2016/Cypress Cove Agency Project Number: 9198738 9 Book 6095 Page 373 "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
9 Book 6095 Page 373 "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.
d/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; 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. [or iv. A HUD-approved collateral assignment of any HAP contract.
(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
oss, 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 10 FTC/EUA/2016/Cypress Cove Agency Project Number: 9198738 Book 6095 Page 374 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. No action shall be taken in accordance with the rights granted herein to preserve the tax exemption of the interest on the notes or bonds, or prohibiting the owner from taking any action that
venants. No action shall be taken in accordance with the rights granted herein to preserve the tax exemption of the interest on the notes or bonds, or prohibiting the owner from taking any action that might jeopardize the tax-exemption, except in strict accord with Program Obligations.
BORROWER: Cypress Cove of Wilmington, LLC A North Carolina Limited Liability Company By: Cypress Cove Housing of Wilmington, Inc.
A North Carolina Corporation, Manager By: Keith D. Walker, President NORTH CAROLINA CARTERET COUNTY I, the undersigned Notary Public of the County and State aforesaid, certify that Keith D. Walker personally appeared before me this day and acknowledged that he is the President of Cypress Cove Housing of Wilmington, Inc., a North Carolina corporation, Manager of Cypress Cove of Wilmington, LLC, a North Carolina limited liability company, and that by authority duly given and as the act of such entity, he signed the foregoing HUD Rider to Restrictive Covenants in its name on its behalf as its act and deed.
th.
Witness my hand and official stamp or seal, this the 10 day of My Commission Expires: 3-17-21 [NOTARIAL SEAL] PAMELA!!
KOSTELICK NOTARY PUBLIC CARTERET COUNTY, NC Johna Notary Public CTOBER 2017.
Print Notary Name: FAMELA L. KOSTELICH : FTC/EUA/2016/Cypress Cove Agency Project Number: 9198738 11 Book 6095 Page 375 AGENCY North Carolina Housing Finance Agency, a public agency and instrumentality of the State of North Carolina By: Chin Austin Name: Chris Austin Title: Manager of Rental Development NORTH CAROLINA Franklin COUNTY I, the undersigned Notary Public of the County and State aforesaid, certify that Chris Austin personally appeared before me this day and acknowledged that he is the Manager of Rental Development of North Carolina
signed Notary Public of the County and State aforesaid, certify that Chris Austin personally appeared before me this day and acknowledged that he is the Manager of Rental Development of North Carolina Housing Finance Agency, a public agency and instrumentality of the State of North Carolina, and that by authority duly given and as the act of such entity, he signed the foregoing HUD Rider to Restrictive Covenants in its name on its behalf as its act and deed.
Witness my hand and official stamp or seal, this the loth day of October, 2017.
My Commission Expires: 3-2-2822 [NOTARIAL SEAL] and G. More Notary Public Print Notary Name: Ronda G. Moore RONDA G MOORE NOTARY PUBLIC Franklin County North Carolina My Commission Expires March 2, 2022 FTC/EUA/2016/Cypress Cove Agency Project Number: 9198738 12 HANOVER TAMMY THEUSCH BEASLEY Register of Deeds Book 6095 Page 376 New Hanover County Register of Deeds • 320 CHESTNUT ST SUITE 102 WILMINGTON, NORTH CAROLINA 28401 Telephone 910-798-4530 • Fax 910-798-7716 COUNTY HANOVER NEW NORTH CAROLINA ESTABLISHED 1779 State of North Carolina, County of NEW HANOVER Filed For Registration: 10/12/2017 01:15:06 PM Book: RB 6095 Page: 364-376 13 PGS $26.00 Real Property $26.00 Recorder: ANDREA CRESWELL 2017033260 Document No: DO NOT REMOVE!
COUNTY NORTH CAROLINA 60 ISTAKISHILD 179 This certification sheet is a vital part of your recorded document. Please retain with original document and submit when re-recording.