08-22-2013 Buffalo Ridge Affordable Housing ProjectAfter Recording Return To:
Downs Law Firm LLC
230015 th Street, Suite 325
Denver, CO 80202
Attn: Chris Downs
AMENDED AND RESTATED
BUFFALO RIDGE AFFORDABLE HOUSING PROJECT
PROJECT AGREEMENT
THIS AMENDED AND RESTATED PROJECT AGREEMENT (the "Agreement ") is
made as of August _, 2013, by and among BUFFALO RIDGE AFFORDABLE HOUSING
CORPORATION, a Colorado nonprofit corporation (together with any successor corporation,
the "Corporation "), the TOWN OF AVON, COLORADO (the "Town "), and CBRE HMF, INC.
(together with its successors and assigns as holder of the indebtedness evidenced by the New
Mortgage Loan (as defined herein), the "Mortgage Loan Lender ").
RECITALS:
A. WHEREAS, the Corporation was organized under the Colorado Revised
Nonprofit Corporations Act to acquire property in order to provide affordable housing facilities
for the benefit and on behalf of the Town and its inhabitants; and
B. WHEREAS, the Corporation is the owner of a residential housing project known
as "Buffalo Ridge I Apartments," located within the boundaries of the Town on the property
described in Exhibit A attached hereto, and further identified as FHA Project No. 101 -35723
(formerly FHA Project No. 101- 35548 -NP) (the "Project "). The Project provides dwelling
accommodations at rentals within the means of individuals or families of low or moderate
income, as determined by the Board of Directors of the Corporation from time to time; and
C. WHEREAS, the acquisition and construction of the Project was initially funded in
part from issuance of Buffalo Ridge Affordable Housing Corporation Multifamily Housing
Project Revenue Bonds (GNMA Mortgage — Backed Securities Program — Buffalo Ridge I
Apartments Project), Series 2002 (the "Bonds "), issued pursuant to a Trust Indenture (the
"Indenture "), dated May 1, 2002, between the Corporation and Wells Fargo, N.A., fonnerly
known as Wells Fargo Bank West, National Association, as Trustee (the "Trustee "), as amended
by that certain First Supplemental Indenture dated March 8, 2011 (the "Supplemental
Indenture "); and
D. WHEREAS, in connection with the issuance of the Bonds, the Corporation and
the Town entered into that certain Buffalo Ridge Affordable Housing Project — Project
Agreement, dated May 1, 2002 (the "Original Project Agreement "), recorded May 30, 2002 in
the Clerk and Recorder's Office of Eagle County, Colorado at Reception No. 797052, which was
subsequently amended by that certain First Amendment to Buffalo Ridge Affordable Housing
Project — Project Agreement (the "First Amendment ") dated March 8, 2011, recorded April 1,
2011 in the Clerk and Recorder's Office of Eagle County, Colorado at Reception No. 201106224
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(the Original Project Agreement and First Amendment shall be referred to collectively herein as
the "Project Agreement "); and
E. WHEREAS, as of the date of this Agreement, the Bonds have been redeemed in
whole and are no longer Outstanding; and
F. WHEREAS, the Corporation previously obtained mortgage loan financing from
AMI Capital pursuant to a Deed of Trust Note and Deed of Trust for the use of AMI Capital in
the amount of $10,315,400.00, dated May 1, 2002, and recorded May 30, 2002 as Reception No.
797050, currently held by Midland Holdings (the "Midland Loan "); and
G. WHEREAS, the Midland Loan has not been retired; and
H. WHEREAS, the Corporation proposes to refinance and pay in full the Midland
Loan, to pay off certain other existing indebtedness, and to finance certain costs of issuance and
closing costs, with a new HUD - insured mortgage loan for the Project from the Mortgage Loan
Lender, to be secured by a Multifamily Deed of Trust, Assignment of Leases and Rents and
Security Instrument (the "Security Instrument "), dated as of August _, 2013, and recorded in
the Clerk and Recorder's Office of Eagle County, Colorado, on August _, 2013, as Reception
No. , and insured by HUD under Section 221(d)(4) pursuant to Section 223(a)(7) of
the National Housing Act (the "New Mortgage Loan "); and
I. WHEREAS, HUD requires the covenants terms and conditions of this Agreement
to be subordinated to the lien, covenants and enforcement of the Security Instrument and the
HUD Regulatory Agreement for Multifamily Projects incorporated into said Security Instrument,
and the Town has agreed to subordinate the Agreement to the lien of the Security Instrument and
Regulatory Agreement in accordance with the terms of this Agreement; and
J. WHEREAS, the parties have found it necessary and desirable to amend the
Project Agreement as set forth herein; and
K. All capitalized terms used herein, unless otherwise defined herein, shall have the
meanings ascribed thereto in Mortgage Loan Documents as hereinafter defined.
TERMS
For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Town and the Corporation, on behalf of themselves and their respective
successors and assigns, agree as follows:
Section 1. Project Operation. The Corporation hereby covenants and agrees to
operate the Project at standards required to provide decent, safe, and sanitary housing facilities
at reasonable rental rates, in a sound and economical manner. In leasing units of the Project, the
Corporation shall give priority to natural persons meeting the requirements of "Qualified
Renters" as hereinafter defined, and may allow a mark -up in rental rates charged to subtenants
by master lessees to permit the recovery of actual administrative costs. Nothing herein or in any
resolutions of the Town shall be interpreted to require the Town to undertake responsibility for
operation, maintenance or repair of the Project.
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"Qualified Renter" means a natural person or persons meeting certain qualifications
established by the Corporation from time to time, needing to occupy dwelling accommodations
in the Project at such rentals within such persons' financial reach that enable such persons to live
in safe and sanitary or uncongested dwelling accommodations and otherwise consistent with the
public purposes of the Housing Authorities Law, CRS §§ 29 -4 -201 et seq., executing a rental
agreement with the Corporation obligating such natural person or persons to occupy a dwelling
accommodation included in the Project as their sole place of residence and under which such
natural person or persons represent that he or she shall not sublease all or any part of such
dwelling accommodation or engage in any other business activity on or in such dwelling
accommodation; provided that by resolution of the Corporation, units in the Project may be
rented to other than natural persons, including employers in the Town, under such terms and
conditions as are substantially equivalent to those in leases to natural persons who are members
of the general public, in which the corporate or other entity covenants to sublet such unit or units
only to natural persons who meet the current qualifications established by the Corporation.
The Corporation previously obtained a Phase I Environmental Inspection Report prepared
by Waste Engineering, Inc. (the "Phase I Report ") and, to the best of the Corporation's
knowledge based on such Phase I Report, there are, with respect to the land on which the Project
is located (the "Land "), no violations of any Environmental Requirements as defined below. The
Corporation has and shall comply with all Environmental Requirements in connection with the
operation and use of the Project. No Regulated Chemicals as defined below have been or will be
discharged from the Project, directly or indirectly, except as authorized by any applicable
governmental laws.
The Corporation hereby agrees to pay, defend, indemnify and save the Town, the
members of the City Council, its mayor, officers, attorneys, employees, agents, accountants and
staff, and the Trustee (collectively, the "Indemnified Persons ") harmless from and against all
past, present or future liabilities, losses, damages, costs, expenses (including attorneys' fees),
causes of action (whether in contract, tort or otherwise), suits, claims, demands and judgments of
every kind, character and nature whatsoever arising out of or related to the Corporation's
construction, equipping, renovation, improving and installation of the Project and during such
period as the Corporation shall utilize the Project (collectively referred to herein as the
"Liabilities "), including, without limitation, (1) Environmental Damages; (2) any injury to or
death of any person or damage to property in or upon the Project or growing out of or connected
with the use, nonuse, condition or occupancy of the Project or any part thereof, or (3) violation
by the Corporation of any law, ordinance or regulation affecting the Project or any part thereof or
the utilization, occupancy or use thereof. The provisions of this paragraph shall not be available
to any Indemnified Person who personally causes or contributes to any such Liabilities by reason
of his or her own gross negligence or willful misconduct.
"Environmental Damages" means all claims, judgments, damages, losses, penalties,
fines, liabilities (including strict liability), encumbrances, liens, privileges, costs and expenses of
investigation and defense of any claim, whether or not such claim is ultimately defeated, and of
any good -faith settlement or judgment, of whatever kind or nature, contingent or otherwise,
matured or unmatured, foreseeable or unforeseeable, including, without limitation, reasonable
attorneys' fees and expert consultants' fees and disbursements, any of which are incurred at any
time as a result of the existence of Regulated Chemicals upon, about, beneath or migrating, or
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threatening to migrate, onto or from the Project or the Land, or the existence of a violation of
Environmental Requirements pertaining to the Project or the Land, regardless of whether or not
such Environmental Damages were caused by or within the control of the Corporation.
"Environmental Requirements" means all applicable federal, state, regional or local laws,
statutes, rules, regulations or ordinances concerning public health, safety or the environment,
including, but not limited to, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C. § 9601 et seq., the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976, as amended by the Solid and Hazardous Waste
Amendments of 1984, 42 U.S.C. § 9601 et seq., the Federal Water Pollution Control Act, as
amended by the Clean Water Act of 1977, 33 U.S.C. § 1251 et seq., the Toxic Substances
Control Act of 176, 15 U.S.C. § 2601 et seq., the Emergency Planning and Community
Right -To -Know Act of 1986, 42 U.S.C. § 11001 et seq., the Clean Air Act of 1966, as amended,
42 U.S.C. § 7401 et seq., the National Environmental Policy Act of 1975, 42 U.S.C. § 4321, the
Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq., the Endangered Species Act of 1973, as
amended, 16 U.S.C. § 1531 et seq., the Occupational Safety and Health Act of 1970, as
amended, 29 U.S.C. § 651 et seq., the Safe Drinking Water Act of 1974, as amended, 42 U.S.C.
§ 300(f) et seq., and all rules, regulations, policies and guidance documents promulgated or
published thereunder and any state, regional, county or local statute, law, rule, regulation or
ordinance relating to public health, safety or the environment, including, without limitation,
those relating to:
(a) releases, discharges, emissions or disposals to air, water, land or
groundwater;
(b) the withdrawal or use of groundwater;
(c) the use, handling or disposal of polychlorinated biphenyls ( "PCB "),
asbestos or urea formaldehyde;
(d) the transportation, treatment, storage, disposal, release or management of
hazardous substances or materials (including, without limitation, petroleum, its
derivatives, by- products or other hydrocarbons), and any other solid, liquid or gaseous
substance, exposure to which is prohibited, limited or regulated or may or could pose a
hazard to the health and safety of the occupants of the Project or any property adjacent to
or surrounding the Project;
(e) the exposure of persons to toxic, hazardous or other controlled, prohibited
or regulated substances; and
(f) any Regulated Chemical.
"Regulated Chemicals" means any substance
investigation, permitting, control or remediation under
regulation, ordinance or order, including, without limitation:
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the presence of which requires
any federal, state or local statute,
(a) any substance defined as "hazardous waste" under the Resource
Conservation and Recovery Act, as amended (42 U.S.C. § 6901 et seq.);
(b) any substance defined as "hazardous waste" under the Comprehensive
Environmental Response, Compensation and Liability Act, as amended (42 U.S.C.
§ 9601 et seq.);
(c) any substance defined as a "hazardous material" under the Hazardous
Materials Transportation Act (49 U.S.C. § 1800 et seq.);
(d) any substance defined under any Colorado statute analogous to (a), (b) or
(c), to the extent that said statute defines any term more expansively;
(e) asbestos;
(f) urea formaldehyde;
(g) PCBs;
(h) petroleum, or any distillate or fraction thereof,
(i) any hazardous or toxic substance designated pursuant to the laws of the
State; and
0) any other chemical, material or substance exposure to which is prohibited,
limited or regulated by any governmental authority.
Notwithstanding anything to the contrary in the foregoing, during such period of time as
the New Mortgage Loan is insured or held by the Secretary of HUD (the "Secretary ") or his
successors and assigns, no real or personal property of the Corporation, including the Project,
and all rents thereof, shall be encumbered, used or disposed of as a source of funds for
indemnification set forth in this Section 1. Said indemnifications, if any, may be made by the
Corporation solely from the proceeds of liability insurance policies and /or Surplus Cash of the
Project, as such Surplus Cash is defined in the HUD Regulatory Agreement.
Section 2. Town Benefit and 63 -20 Covenants. The Corporation covenants and
agrees that all activities of the Corporation shall be undertaken for the benefit of the Town.
Upon the occurrence of certain events as provided herein, the Town shall be entitled to acquire
the Project without cost. In addition, the Corporation represents that it has not breached any of
its covenants or representations given in connection Bonds or otherwise with respect to the 63-
20 requirements related thereto ( "63 -20 Requirements "), and will continue to comply with such
63 -20 Requirements, even if the documents to which they are made are terminated, to the extent
necessary to ensure that no adverse tax consequence occurs with respect to the tax - exempt
status of interest paid on the Bonds, and will not take any action which may negatively affect
such status.
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Section 3. Town's Rights.
(a) In furtherance of this Project Agreement, the Town is hereby granted the
right to obtain, at any time, fee title and exclusive possession of all of the Project
financed by the Bonds, which as of the date hereof have been fully redeemed and
discharged, the New Mortgage Loan, and the Subordinate Notes, free from liens and
encumbrances created by the Corporation (but subject to encumbrances approved by the
Town which would not violate any 63 -20 requirements ( "Permitted Encumbrances ")),
and any additions to such property, once the New Mortgage Loan and Subordinate Notes
have been paid off in full, subject to any prepayment provisions set forth in the Mortgage
Loan Documents. In connection therewith, the Corporation agrees to pay off the New
Mortgage Loan and Subordinate Notes in full upon the request of the Town if the Town
makes funds available to the Corporation for such purpose, subject to any prepayment
provisions set forth in the Mortgage Loan Documents.
(b) The Town, at any time prior to payment in full of the New Mortgage Loan
and the Subordinate Notes as described in subsection (a) above, shall not agree or
otherwise be obligated to convey any interest in the Project to any person (including the
United States of America or it agencies or instrumentalities) for any period extending
beyond or beginning after the New Mortgage Loan and Subordinate Notes have been
paid in full.
(c) The Town shall not agree or otherwise be obligated to convey a fee
interest in the Project to any person who was a user thereof (or a related person) before
payment in full of the New Mortgage Loan and Subordinate Notes for a period of ninety
(90) days after payment in full of such obligations.
(d) The Corporation shall provide in each agreement it enters into in
connection with the leasing and management of the Project that such agreement shall
terminate in the event that the Town exercises its purchase option right hereunder;
provided however that with respect to leases to natural persons entered into in the
ordinary course of business for a period of 12 months or less, such termination shall not
take effect unless the Town determines to use such Project for other than residential
housing. If the Town exercises its option under subsection (a) hereof, the Corporation
shall immediately cancel all encumbrances on such property, including all leases and
management agreements (subject to Permitted Encumbrances as aforesaid); provided,
however, that the Corporation shall not be required to cancel leases to natural persons
entered into in the ordinary course of business for a period of not greater than 12 months
unless the Town has determined to use the Project for other than residential housing. Any
lease, management contract, or similar encumbrance on such property will be considered
immediately canceled if the lessee, management company, or other user vacates such
property within a reasonable time, not to exceed 90 days, after the date the Town exercises its
rights under subsection (a) above.
(e) In addition to the foregoing, if the Mortgage Loan Lender declares the
principal of the New Mortgage Loan indebtedness to be due and payable and any action
is commenced under the Mortgage Loan Documents which could lead to the sale or other
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disposition of the property pledged thereunder or there is a payment default on the New
Mortgage Loan giving the Mortgage Loan Lender a right to foreclose on the New
Mortgage Loan, the Town is hereby granted an exclusive option to purchase all such
property (including the Project) for the amount of the New Mortgage Loan and
Subordinate Notes and accrued interest to the date of default, together with any
prepayment penalties and other fees accrued in connection with a default of the New
Mortgage Loan. The Corporation shall provide notice to the Town of the commencement
of any such action within 10 days of the occurrence thereof. The Town shall have not
less than 90 days from the date it is notified by the Corporation, the Mortgage Loan
Lender, or HUD, of such action in which to exercise the option (which shall be exercised
by giving written notice of such exercise to the Corporation, the holders of the New
Mortgage Loan indebtedness and Subordinate Notes) and not less than 90 days from the
date it exercises such option to purchase the property. The Mortgage Loan Lender shall
be required to take any action necessary, including submission of requests for
continuance of foreclosure to the Public Trustee of Eagle County, Colorado, in order to
ensure that the foreclosure sale does not occur prior to the expiration of the period
referred to herein to exercise such option and purchase the property. Other than the
foregoing requirement, the provisions of this Section 3 are not intended and shall not be
interpreted so as to limit the holder of the New Mortgage Loan indebtedness rights to
pursue their remedies under the Mortgage Loan Documents and the Mortgage Loan
Lender's right to process a HUD mortgage loan insurance claim.
(f) Unencumbered fee title (subject to certain Permitted Encumbrances
approved by the Town as aforesaid) to the Project and any additions thereto and exclusive
possession and use thereof will vest in the Town without demand or further action on its
part when the New Mortgage Loan and Subordinate Notes, if any, are paid in full and
discharged. All leases, management contracts and similar encumbrances on the Project
shall terminate upon payment and discharge of said obligations, except as otherwise
provided in this Agreement. Encumbrances that do not significantly interfere with the
enjoyment of such property, such as most easements granted to utility companies or such
other encumbrances as may be agreed to by the Town are not considered encumbrances
for purposes of this Section.
(g) The Corporation shall promptly notify the Town in writing of any default
under the Mortgage Loan Documents or under the Subordinate Notes, and the Town shall
have all rights with respect to curing defaults, application of insurance proceeds, or
paying off the such obligations as may be deemed required by bond counsel to ensure
that the Corporation is in compliance with Rev. Rul. 63 -20, including the provisions of
Rev. Proc. 82 -26, such rights being subject to the HUD requirements set forth in the
Mortgage Loan Documents.
In connection therewith, the Town shall have the option to cure any default under
the Mortgage Loan Documents within 90 days after receipt of notice thereof; provided
that the New Mortgage Loan may still be declared due and payable prior to the expiration
of such 90 day period, but such declaration shall be immediately annulled in the event the
Town cures the default within the 90 -day period. Amounts advanced by the Town as a
result of the exercise of this option to cure monetary defaults hereunder and reasonable,
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direct expenses of the Town advanced to cure non - monetary defaults hereunder shall be
deemed to be indebtedness of the Corporation to the Town to be evidenced by a surplus
cash note in a form approved by HUD. In order to allow for the exercise of the rights of
the Town under this Section, (i) the Corporation hereby agrees that it will immediately
notify the Town in writing of any failure by the Corporation to make a payment, when
due, under the Mortgage Loan Documents or any other default thereunder (which notice
may be given by the Mortgage Loan Lender on the Corporation's behalf to the extent that
the Mortgage Loan Lender elects to do so); and (ii) the Mortgage Loan Lender agrees not
to take action to foreclose on the New Mortgage Loan (except for delivery of required
written notices to HUD), and will not assign the New Mortgage (except to HUD in
connection with a claim for insurance proceeds), prior to 90 days after such notice has
been made to the Town.
Notwithstanding the foregoing, the Mortgage Loan Lender maintains all rights it
has pursuant to the Mortgage Loan Documents to preserve its rights with HUD under the
Contract of Insurance evidenced by HUD's endorsement of the Note as defined in the
Security Instrument (the "Mortgage Note ").
(h) No assignment or transfer of the title to the Project shall be made by the
Corporation unless the Town consents or approves to such assignment or transfer.
(i) The Corporation agrees with the Town that it will not consent to any
amendments to the Mortgage Loan Documents or the Subordinate Notes without the
Town's prior review and consent.
Section 4. Subordinate Surplus Cash Notes. The Corporation has previously incurred
the following debt obligations (together with interest thereon as applicable, hereinafter the "Pre -
Existing Debt Obligations "): (i) Deferred development fees owed to Corum Real Estate Group,
Inc. with principal and interest outstanding thereon, as of July 31, 2013, in the principal amount
of $757,518, and (ii) amounts owed to Corum Real Estate Group, Inc. relating to a letter of credit
draw with principal amount thereof, as of July 31, 2013, in the principal amount of $69,000,
maturing December 31, 2043.
At the time of the New Mortgage Loan closing, the Corporation shall have received a
new Surplus Cash loan advance from Eaglebend Affordable Housing Corporation in the amount
of $221,500 (the " Eaglebend Surplus Cash Note "), the proceeds of which shall retire in part the
Pre - Existing Debt Obligations, resulting in a single Surplus Cash debt of $605,018 in favor of
Corum Real Estate Group, Inc. (the "Corum Surplus Cash Note ").
In addition, upon receiving prior written consent from HUD and the Town and a no
adverse effect on tax - exemption opinion from bond counsel, the Corporation may issue one or
more subordinate surplus cash flow notes, which notes, subject to the rights of the Town set forth
in such notes to refund or defease such notes, shall be payable solely from "Surplus Cash" as
such term is defined, and in accordance with the conditions prescribed, in that certain Regulatory
Agreement for Multifamily Housing Projects between the maker and U.S. Department of
Housing and Urban Development dated August _, 2013, as amended, restated and /or
supplemented from time to time, or sources other than project income or assets (collectively,
N.
together with the Eaglebend Surplus Cash Note and Corum Surplus Cash Note, the "Subordinate
Surplus Cash Notes "). Unless bond counsel delivers an opinion that interest on a Subordinate
Surplus Cash Note is excludable from gross income for federal income tax purposes, no such
opinion shall be deemed inferred.
Section 5. Default Rights. In the event that the New Mortgage Loan is foreclosed,
either through public trustee's sale or judicial foreclosure, or in the event that HUD takes an
assignment of the New Mortgage Loan following a declaration of default and completion of a
mortgagee insurance claim, then upon expiration of all cure and redemption periods provided
for under this Agreement or by statute, (i) this Agreement shall terminate and be of no further
force or effect; (ii) neither the Town nor the Corporation shall have any right, title or interest in
and to the Project arising out of this Agreement; (iii) any provisions of this Agreement
permitting the Town to acquire title to the Project, including, without limitation, the provisions
of Section 3, shall be void and of no force or effect; and (iv) the purchaser of title to the Project
shall take title free and clear of this Agreement.
Section 6. Consolidation or Merger. The Corporation hereby covenants and agrees
that during the term of this Agreement it will maintain its corporate existence, will continue to
be a nonprofit corporation duly qualified to do business in the State of Colorado, will not merge
or consolidate with any person unless it first obtains the written consent of the Town.
Section 7. Prohibition on Transfer. The Corporation hereby covenants and agrees
that during the term of this Agreement it shall not sell, transfer, assign or lease (other than
leases in the ordinary course of business for a period not greater than 12 months) all or any
portion of the Project without the prior written consent of the Town.
Section 8. Performance of Covenants. The Corporation hereby agrees to execute,
acknowledge and deliver such documents as are reasonably requested by the Town to evidence
transfer of ownership of the Project from the Corporation to the Town pursuant to and in
furtherance of the terms of this Agreement and to execute, acknowledge and deliver or cause to
be done, executed, acknowledged and delivered such instruments, and transfers as the Town
may reasonably require for the better assuring, transferring, pledging and hypothecating unto
the Town all its rights and benefits hereunder.
Section 9. Superseding Provisions Related to Mortgage Loan Documents.
(a) In the event of any conflict between any provision contained elsewhere in
this Agreement and any provision contained in this Section 9 entitled "Superseding
Provisions Related to Mortgage Loan Documents," the provision contained in this
Section 9 shall govern and be controlling in all respects.
(b) The following terms shall have the following definitions:
(i) "HUD" means the United States Department of Housing and
Urban Development.
(ii) "HUD Regulatory Agreement" means the Regulatory Agreement
between the Corporation and HUD with respect to the Project, as the same may be
supplemented, amended or modified from time to time.
(iii) [reserved].
(iv) [reserved].
(v) "Mortgage Loan Documents" means the Security Instrument, the
HUD Regulatory Agreement, the Mortgage Note and all other documents
required by HUD or Mortgage Loan Lender in connection with the New
Mortgage Loan.
(vi) "National Housing Act" means the National Housing Act of 1934,
as amended.
(vii) "Program Obligations" has the meaning set forth in the Security
Instrument.
(viii) "Security Instrument" means the mortgage or deed of trust from
the Corporation in favor of the Mortgage Loan Lender, as the same may be
supplemented, amended or modified.
(ix) "Surplus Cash" has the meaning specified in the HUD Regulatory
Agreement.
(x) "Residual Receipts" has the meaning specified in the HUD
Regulatory Agreement.
(c) Notwithstanding anything in this Agreement to the contrary, the
provisions hereof are expressly subordinate to (i) the Security Instrument, (ii) the HUD
Regulatory Agreement and (iii) Program Obligations. In the event of any conflict
between the provisions of this Agreement and the provisions of the Security Instrument,
HUD Regulatory Agreement, or Program Obligations, the provisions of the Mortgage
Loan Documents and Program Obligations shall control and supersede the enforcement
of the Agreement.
(d) In the event of foreclosure, this Agreement (including without limitation,
any and all land use covenants and /or restrictions contained herein) shall automatically
terminate, unless otherwise approved by HUD.
(e) The Corporation and the Town acknowledge that the Corporation's failure
to comply with the covenants provided in this Agreement does not and shall not serve as
a basis for default under the terms of the Security Instrument, the HUD Regulatory
Agreement, or any other document relating to the New Mortgage Loan to the Corporation
for the Project; provided that, nothing herein limits the Town's ability to enforce the
terms of this Agreement to the extent not in conflict with the Mortgage Loan Documents
or Program Obligations.
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(f) Except for the Town's reporting requirement, in enforcing this Agreement
the Town will not file any claim against the Project or 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 Corporation is a for - profit entity;
(ii) Available distributions and residual receipts authorized for release
by HUD, if the Corporation is a limited distribution entity; or
(iii) Available residual receipts authorized by HUD, if the Corporation
is a non - profit entity.
(g) For so long as the New Mortgage Loan is outstanding, the Corporation
and the Town shall not further amend this Agreement without HUD's prior written
consent.
(h) Subject to the HUD Regulatory Agreement, the Town may require the
Corporation to indemnify and hold the Town harmless from all loss, cost, damage and
expense arising from any claim or proceeding instituted against Town relating to the
subordination and covenants set forth in the Agreement, provided, however, that the
Corporation's obligation to indemnify and hold the Town harmless shall be limited to
available Surplus Cash and /or residual receipts of the Corporation.
(i) 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.
Section 10. Term. This Agreement shall terminate upon the vesting of title to the
Project in the Town as herein provided.
Section 11. Burden on Property. This Agreement is a burden upon and runs with the
property described in Exhibit A hereto and is binding upon the Corporation and upon all
persons or entities with any right, title or interest to such property or any part thereof. This
Agreement may be released therefrom in the same manner as the release of property under the
Mortgage.
IN WITNESS WHEREOF, the undersigned have hereunto set their hand as of the day
and year first mentioned above.
[Signature and Acknowledgment Pages Follow]
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BUFFALO RIDGE AFFORDABLE HOUSING CORPORATION
By_
Name
Title
[SEAL]
ATTEST:
Secretary
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this `h day of August, 2013 by
Gerald E. Flynn, as President, on behalf of BUFFALO RIDGE AFFORDABLE HOUSING
CORPORATION, a Colorado nonprofit corporation.
[SEAL]
WITNESS my hand and official seal.
Notary Public
[Amended and Restated Buffalo Ridge Affordable Housing Project — Project Agreement
Corporation Signature and Acknowledgment Page]
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CBRE HMF, INC.,
By
Name
Title
ATTEST:
By
Name
Title
STATE OF COLORADO
ss.
COUNTY OF
The foregoing instrument was acknowledged before me this th day of August, 2013
by , as , on behalf of CBRE HMF, INC.
WITNESS my hand and official seal.
[SEAL]
Notary Public
[Amended and Restated Buffalo Ridge Affordable Housing Project — Project Agreement
Mortgage Loan Lender Signature and Acknowledgment Page]
14
TOWN OF AVON, COLORADO
By
Mayor
(�; ?, � �K"
own le \d'
STATE OF COLORADO
ss.
COUNTY OF EAGLE
The foregoing instrument was acknowledged before me this
2� day of August, 2013
by Rich Carroll, as Mayor, on behalf of the TOWN OF AVON, COLORADO.
WITNESS my hand and official seal.
TA D JA+ ILLO
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 99994018882
MY COMMISSION EXPIRES 07129!2015
[Amended and Restated Buffalo
Town Sizt
c
7�404
Affordable Housing roj ct —Project Agreement
and Acknowledgment Page]
13
EXHIBIT A
Parcel A:
Lots 2 and 4
THE VILLAGE (AT AVON) FILING 2
According to the plat recorded May 28, 2002 as Reception No. 796831.
Parcel B:
Easements contained in Paragraph 3 of Easements with Covenants and Restrictions
affecting Land (" BCR ") recorded May 30, 2002 as Reception No. 797038.
and
A non - exclusive easement and right -of -way over and across Lot 3 (24 foot access
easement) for the purpose of motor vehicle and pedestrian ingress and egress to and from Swift
Gulch Road as described in and depicted on Exhibit C -1 and a non - exclusive easement and right -
of -way over and across Lot 3 for the purpose of motor vehicle and pedestrian ingress and egress
to and from Swift Gulch Road as described in and depicted on Exhibit C -2 of Reciprocal Access
Easement Agreement recorded May 30, 2002 as Reception No. 797045.
[Amended and Restated Buffalo Ridge Affordable Housing Project — Project Agreement
Exhibit A —Legal Description]
15
TOWN OF AVON, COLORADO
By
Mayor
Pw
. c �' -
Tow Cl k
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me thi ay of August, 2013
by Rich Carroll, as Mayor, on behalf of the TOWN OF AVON, COLORADO.
WITNESS my hand and official seal.
KRISTA •
NOTARY
! ! `+ T!
1
STATE ! AR ! 19994018882 j
COMMISSION MY I
07129/201
[Amended and Restated Buffalo Ridge
Town Signature and Acknowledgment Page]
13