Loading...
HomeMy WebLinkAboutAgenda - 06-19-2001-8qORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: June 19, 2001 Action Agenda Item No. SUBJECT: Impact Fee Reimbursement Ac,~reement DEPARTMENT: Housing/Community Dev. PUBLIC HEARING: (Y/N) No ATTACHMENT(S): INFORMATION CONTACT: Agreement and Deed of Trust Tara L. Fikes, ext 2490 TELEPHONE NUMBERS: Hillsborough 732-8181 Chapel Hill 968-4501 Durham 688-7331 _ „-, ,,.... Mebane 336-227-2031 PURPOSE: To approve the form and content of a standardized Agreement for Impact Fee Reimbursement document and authorize the Manager to execute this document for approved impact fee reimbursements. BACKGROUND: On November 1, 1995, the BOCC approved a policy for impact fee reimbursement to local non-profit organizations that met the eligibility criteria. The policy was last revised on March 4, 1998. The policy provides for impact fee reimbursements to non-profit organizations developing owner-occupied for families with incomes at or below 80% of the area median income and rental housing far families with incomes at or below 60% of the area median income. Further, the policy requires that the sponsoring organization must certify in writing that the property will remain affordable for 99 years. During the last few months, the fallowing organizations have paid impact fees associated with various housing development projects and submitted documentation for reimbursement of these fees: 1. Habitat for Humanity (Homeownership) -Seven (7) houses @ $750 - $6,000 Two (2) houses -Cain Drive; Efland Five (5) houses -Chestnut Oaks; Orange Co. 2. Orange Community Housing Corporation (Homeownership) - 14 @ $3,000 = $42,000 14 townhomes -Legion Road; Chapel Hill 3. First Baptist Church and Manley Estates (Rental Housing) - 41 @ $3,000 = $123,000 41 apartments for elderly and disabled families Total requests: $171,000 County staff is proposing that the long-term affordability requirement be secured by an Agreement and Deed of Trust that has been developed by the County Attorney. This document z will require full repayment of the impact fee reimbursement should the property not remain affordable for the 99 year period. FINANCIAL IMPACT: The approved 2000-01 budget included a total of $127,500 for reimbursement ofi impact fees. This amount includes funds for reimbursements to Habitat for Humanity ($6,000), Orange Community Housing Corporation ($42,000), and First Baptist Church ($63,000). The amount for First Baptist will be combined with funds appropriated by the Board in fiscal year 1999-00 for a total of $123,000. Thus, the total reimbursement expenditure for this fiscal year is estimated to be $171,000. RECOMMENDATION(S): The Manager recommends that the Board approve an Agreement for Impact Fee Reimbursement document and authorize the Manager to execute this document for approved impact fee reimbursements. Return After Recording to: Tara Fikes, Housing Director, P.O. Box 8181, Hillsborough, North Carolina 27278 AGREEMENT AND DEED OF TRUST STATE OF NORTH CAROLINA ORANGE COUNTY THIS AGREEMENT AND DEED OF TRUST (this "Agreement") is dated as of and is granted by , a North Carolina non profit corporation or unincorporated association (the "affordable housing owner"), to Geoffrey E. Gledhill, a citizen and resident of Orange County, North Carolina (the "Deed of Trust Trustee"), for the benefit of Orange County, North Carolina ("the County"). RECITALS: The affordable housing owner has the power to enter into this Agreement and to secure its obligations under such contracts by security interests in all or a portion of the property it owns. This Agreement provides for the County to reimburse the affordable housing owner for public school capital impact fees paid by the affordable housing owner related to the construction of affordable housing, and provides for securing the affordable housing owner's obligations under this Agreement by creating certain security interests in favor of the County. This Agreement secures reimbursement of for final repayment is on or about The current scheduled date (99 years after the date of this Agreement) NOW, THEREFORE, (1) in consideration of the execution and delivery of this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged; (2) to secure the affordable housing owner's performance of all its covenants under this Agreement, including the repayment of amounts advanced and to be advanced, together with interest on all such advances as provided in this Agreement or any amendments hereto, and all charges and expenses of collection (including court costs and reasonable attorneys' fees and expenses); and (3) to charge the Mortgaged Property, as defined below, with such payment and performance, the affordable housing owner hereby sells, grants and conveys to the Deed of Trust Trustee, his heirs and assigns forever, in trust, with power of sale, the following (collectively, the "Mortgaged 4 Property"): (a) the property described in Exhibit A, together with all easements, rights, liberties, rights-af--way and appurtenances belonging to any such property (collectively, the "Site") and (b) the improvements described in Exhibit B and all other improvements and fixtures now or hereafter attached or appurtenant to or used in or an those improvements ar the Site, including (i) all renewals and replacements thereof and all additions thereto, (ii) all articles in substitution thereof, (iii) all building materials for construction or repair of such improvements upon their delivery to the Site, and (iv) all proceeds of all the foregoing in whatever form resulting from the loss or disposition of the foregoing, including all proceeds of and unearned premiums for any insurance policies covering the, Site and such improvements,' proceeds of title insurance and payments related to the exercise of condemnation or eminent domain authority, and all judgments or settlements in lieu of any of the foregoing (collectively, the "Facilities"). TO HAVE AND TO HOLD the Mortgaged Property with all privileges and appurtenances thereunto belonging, to the Deed of Trust Trustee, his heirs and assigns ,forever, upon the trusts, terms and conditions and for the purposes set out below, in fee simple in trust; SUBJECT, HOWEVER, to the encumbrances described in Exhibit C (the "Existing Encumbrances"); BUT THIS CONVEYANCE IS MADE UPON THIS SPECIAL TRUST: if the Required Payments (as defined below) are paid in full in accordance with this Agreement, and the affordable housing owner shall comply with all of the terms, covenants and conditions of this Agreement, this conveyance shall be null and void and shall be canceled of record at the affordable housing owner's request and cost, and title shall revest as provided by law. BUT IF, HOWEVER, THERE SHALL OCCUR AN EVENT OF DEFAULT UNDER THIS AGREEMENT, then the County shall have the remedies provided for in this Agreement, including directing the Deed of Trust Trustee to sell the Mortgaged Property under power of sale. THE AFFORDABLE HOUSING OWNER COVENANTS AND AGREES with the Deed of Trust Trustee and the County (and their respective heirs, successors and assigns), in consideration of the foregoing, as follows: 4 ARTICLE I DEFINITIONS: INTERPRETATION Unless. the context clearly requires otherwise, capitalized terms used in this Agreement and not otherwise defined shall have the following meanings: "Additional Payments" means any of the County's reasonable and customary fees and expenses related to the transactions contemplated by this Agreement, and of the County's expenses (including attorneys' fees) in prosecuting or defending any action or proceedings in connection with this Agreement, any required license or permit fees, state and local sales and use or ownership taxes or property taxes which the County is required to pay as a result of this agreement, inspection and re-inspection fees, and any other amounts payable by the affordable housing owner (or paid by the County on the affordable housing owner's behalf) as a result of its covenants under this Agreement (together with interest that may accrue on any of the above if the affordable housing owner shall fail to pay the same, as set forth in this Agreement). "Affordable Housing Owner Representative" means the affordable housing owner's executive director or such other person or persons at the time designated, by a written certificate furnished to the County and signed on the affordable housing owner's behalf by the presiding officer of the affordable housing owner's Governing Board, to act on the affordable housing owner's behalf for any purpose (or any specified purpose) under this Agreement. "Amount Reimbursed" has the meaning assigned in Section 2.02. "Business Day" means any day on which banks in the State are not by law authorized or required to remain closed. "Closing Date" means the date on which this Agreement is first executed and delivered by the parties. "County" means Orange County, North Carolina. "Event of Default" means one or more events of default as defined in Section 7.01. "Existing Encumbrances" means the encumbrances described in Exhibit "Governing Boazd" means the affordable housing owner's governing boazd as from time to time constituted. "Mortgaged Property" means the Mortgaged Property, as defined above. "Payment" means the payment payable by the affordable housing owner pursuant to Section 3.01. "Payment Dates" means the date indicated in Exhibit D. 5 "Permitted Encumbrances" means, as of any particular time, (a) the Existing Encumbrances, (b) liens for taxes and assessments not then delinquent, (c) this Agreement, (d) easements, rights-of way and other such minor defects or restrictions as normally exist with respect to property of the same general character as the Mortgaged Property which will not impair the affordable housing owner's intended use of the Mortgaged Property, (e) a Declaration of Covenants ensuring that the Mortgaged Property will be used far a minimum of ninety-nine years far housing for families earning up to $0% of HCTD area median income as described in Section 4.14 of this Agreement, (f) a deed of trust(s) securing financing for the initial construction of the Facilities, and (g) a deed of trust securing a first mortgage.... "Required Payments" means the Payment and Additional Payments. "State" means the State of North Carolina. All references in this Agreement to designated "Sections" and other subdivisions are to the designated sections and other subdivisions of this Agreement. The words "hereof' and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision unless the context indicates otherwise. Words imparting the singular number shall include the plural number and vice versa. ARTICLE II SECLTRiTY PROVIDED SY THIS AGREEMENT; ADVANCE 2.01 Securi for Pa meat 'and Performance. This Agreement secures the affordable housing owner's payment, as and when the same shall become due and payable, of all Required Payments and the affordable housing owner's timely compliance with all terms, covenants and conditions of this Agreement. 2.02 Amount Reimbursed. The County reimburses $ (the "Amount Reimbursed") to the affordable housing owner on the Closing Date, and the affordable, housing owner hereby accepts the reimbursement. The County is paying the full amount of the Amount Reimbursed to the affordable housing owner simultaneously with the execution and delivery of this Agreement. 2.03 Affordable Housin Owner's Continuin Obli ations. The affordable housing owner shall remain liable for full performance of all its covenants under this Agreement, including payment of all Required Payments, notwithstanding the occurrence of any event or circumstances whatsoever, including any of the following: (a) The County's waiver of any right granted or remedy available to it; (b) The forbearance or extension of time for payment or performance of any obligation under this Agreement, whether granted to the affordable housing owner, a subsequent owner of the Facilities or the Site or of both the Facilities and the Site, or any other person; (c) The release of all or part of the Mortgaged Property or the release of any party who assumes all or any part of such performance; (d) Any act or omission by the County (but this provision does not relieve the County of any of its obligations under this Agreement); (e) The sale of all or any part of the Mortgaged Property; or (f) Another party's assumption of the affordable housing owner's obligations under this Agreement. ARTICLE III AFFORDABLE HOUSING OWNER'S PAYMENT OBLIGATION AND RELATED MATTERS 3.01 P~ ent. The affordable housing owner shall repay the Amount Reimbursed by making Payment to the County in lawful money of the United States at the times and in the amounts set forth in Exhibit D, except as otherwise provided in this Agreement. As indicated in Exhibit D, the Payment reflects the repayment of the Amount Reimbursed and includes the designated interest component. 3.02 Additional Payments. The affordable housing owner shall pay all Additional Payments on a timely basis directly to the person or entity to which such Additional Payments are owed in lawful money of the United States. 3.03 Late Pa, ments. If the affordable housing owner fails to pay any Payment when due, the affordable housing owner shall pay additional interest on the principal component of the late Payment (as permitted by law) at an annual rate equal to 10% from the original due date. 3.04 No Abatement. There shall be no abatement or reduction of the Required Payment, for any reason, including, but not limited to, any defense, recoupment, setoff, counterclaim, or any claim (real or imaginary) arising out of or related to the Site or of the Facilities, except as expressly provided in this Agreement. The affordable housing owner assumes and shall bear the entire risk of completion, 1055 and damage to the Site and the Facilities from any cause whatsoever. The Payment shall be made in all events unless the affordable housing owner's obligation to make Payment is terminated as otherwise provided in this Agreement. ARTICLE IV AFFORDABLE HOUSING OWNER'S COVENANTS, REPRESENTATIONS AND WARRANTIES 4.01 Warranties of Title. The affordable housing owner covenants with the Deed of Trust Trustee and the County that the affordable housing owner is seized of and has the right to convey the Mortgaged Property in fee simple, that the Mortgaged Property is free and clear of all liens and encumbrances other than the Existing Encumbrances, that title to the Mortgaged Property is marketable, and that the affordable hausing owner will forever warrant and defend title to the Martgaged Praperty against the claims of all persons. 4.02 Indemnification. To the extent permitted by law, the affordable housing owner shall indemnify, protect and save the Deed of Trust Trustee, the County and its officials and employees harmless from all liability, obligations, losses, claims, damages, actions, suits, proceedings, costs and expenses, including attorneys' fees, arising out of, connected with, or resulting directly or indirectly from the Mortgaged Property or the transactions contemplated by this Agreement, including without limitation the possession, condition, construction or use of the Facilities. The indemnification arising under this Section shall survive the Agreement's termination. 4.03 Validity of Organization and Acts. The affordable housing owner is validly organized and existing under State law, has full power to enter into this Agreement and has duly authorized and has obtained all required approvals and all other necessary acts required prior to the execution and delivery of this Agreement. This Agreement is a valid, legal and binding obligation of the affordable housing owner. 4.04 Maintenance of Existence. The affordable housing owner ,shall maintain its existence and shall not consolidate with or merge into another entity ar permit one or more other non profit corporations or associations to consolidate with or merge into it, unless the corporation or association thereby resulting assumes the affordable housing owner's obligations under this Agreement. 4.OS Acauisition of Permits and Approvals. All permits, consents, approvals or authorizations of all governmental entities and regulatory bodies, and all filings and notices required on the affordable housing owner's part to have been obtained or completed as of today in connection with the authorization, execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and the acquisition of the Facilities have been obtained and are in full force and effect, and there is no reason why any future required permits, consents, approvals, authorizations or orders cannot be obtained as needed. 4.06 No Breach of Law_ or_ Contract. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, nor the fulfillment of ar compliance with the terms and conditions of this Agreement, (a) to the best of the affordable housing owner's knowledge, constitutes a violation of any provision of law governing the affordable housing owner or (b) results in a breach of the terms, conditions or provisions of any contract, agreement or instrument or order, rule or regulation to which the affordable housing owner, is a party or by which the affordable housing owner is bound. 4.07 No Litigation. There is no litigation or any governmental administrative 8 9 proceeding to which the affordable pausing owner (or any official thereof in an official capacity) is a party that is pending or, to the best of the affordable housing owner's knowledge after reasonable investigation, threatened with respect to (a) the affordable housing owner's organization or existence, (b) its authority to execute and deliver this Agreement or to comply with the terms of this Agreement, (c) the validity or enforceability of this Agreement or the transactions contemplated hereby, (d) the title to office of any Board member or any other affordable housing owner officer, (e) any authority or proceedings relating to the affordable housing owner's execution or delivery of this Agreement, or (f) the undertaking of the transactions contemplated by this Agreement. 4.08 Na Current Default or Violation. (a) The affordable housing owner is not in violation of any existing law, rule or regulation applicable to it, (b) the affordable housing owner is not in default under any contract, other agreement, order, judgment, decree or other instrument or restriction of any kind to which the affordable housing owner is a party or by which it is bound or to which any of its assets are subject, including this Agreement, and (c) no event or condition has happened or existed, or is happening or existing, under the provisions of any such instrument, including this Agreement, which constitutes or which, with notice or lapse of time, or both, would constitute an event of default hereunder or thereunder. 4.09 No Misrepresentation. Na representation, covenant or warranty by the affordable housing owner in this Agreement is false or misleading in any material respect. 4.10 Environmental Warranties and Indemnification. (a) The Mortgaged Property is in compliance with all federal, State and local environmental laws and regulations, including but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), Public Law No. 96-510, 94 Stat. 2767, 42 USC 9601 et seq., and the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Public Law 99-499, 100 Stat. 1613. (b) To the extent permitted by law, the affordable housing owner shall indemnify and hold the County and the Deed of Trust Trustee harmless from and against (i) any and all damages, penalties, fines, claims, liens, suits, liabilities, costs (including clean-up costs), judgments and expenses (including attorneys', consultants' or experts' fees and expenses) of every kind and nature suffered by or asserted against the Deed of Trust Trustee or the County as a direct or indirect result of any requirement under any law, regulation or ordinance, local, State or federal, which requires the elimination ar removal of any hazazdous materials, substances, wastes or other environmentally regulated substances by the Deed of Trust Trustee, the County or the affordable housing owner or any transferee or assignee of the Deed of Trust Trustee, the County or the affordable housing owner. (c) The affordable housing owner's obligations under this Section shall continue in full effect notwithstanding full payment of the Required Payments ar foreclosure under this Agreement or delivery of a deed in lieu of foreclosure. 4.11 Further Instruments. Upon the County's request, the affordable hauling owner 9 10 shall execute, acknowledge and deliver such further instruments reasonably necessary or desired by the County to carry out mare effectively the purposes of this Agreement or any other document related to the transactions contemplated hereby, and to subject to the liens and security interests hereof and thereof all or any part of the Mortgaged Property intended to be given or conveyed hereunder or thereunder, whether now given or conveyed or acquired and conveyed subsequent to the date of this Agreement. 4.12 The Caunty's Advances for Performance of the Affordable Housing Owner's Obligations. If the affordable housing owner fails to perform any of its obligations under this Agreement, the County is hereby authorized, but nvt obligated, to perform such obligation or cause it to be performed. All expenditures incurred by the County (including any advancement of funds for payment of taxes, insurance premiums or other costs of maintaining the Mortgaged Property, and any associated legal or other expenses), together with interest thereon at an annual rate equal to 10%, shall be secured as Additional Payments under this Agreement. The affordable housing owner promises to pay all such amounts to the County immediately upon demand. 4.13 Taxes and Other Governmental Charges. The affordable housing owner shall pay, as Additional Payments, the full amount of all taxes, assessments and other governmental charges lawfully made by any governmental body during the term of this Agreement. With respect to special assessments or other governmental charges which may be lawfully paid in installments over a period of years, the affordable housing owner shall be obligated to provide for Additional Payments only for such installments as are required to be paid during the Agreement term. The affordable housing owner shall not allow any liens for taxes, assessments or governmental charges with respect to the Mortgaged Property or any portion thereof to become delinquent (including, without limitation, any taxes levied upon the Mortgaged Property or any portion thereof which, if not paid, will become a charge on any interest in the Mortgaged Property, including the County's interest; or the rentals and revenues derived therefrom or hereunder). 4.14 Other Covenants. (a) The affordable housing owner will use the Mortgaged Property for housing for families earning up to 80% of HUD area median income for a period of ninety-nine years after the date of this Agreement. (b) The affordable housing owner may sell, transfer or exchange the Mortgaged Property to a non-profit fund, foundation or corporation of like purpose which is organized and operating exclusively for charitable and educational purposes and which has established its tax exempt status under Section 501 (c)(3) of the Internal Revenue Code, or to the County; provided, however, the affordable housing owner shall obtain the written agreement, in form satisfactory to the County, of any buyer or successor or other person acquiring the Mortgaged Property or any interest therein, that such acquisition is subject to the requirements of this Agreement. The affordable housing owner agrees that the County .may void any sale, transfer or exchange of the Mortgaged Property or any portion thereof if the buyer or successor or other person fails to assume in writing the requirements of this Agreement. 10 11 (c) Any assignment, sale, transfer, conveyance or other disposition of the Mortgaged Property or any part of the Mortgaged Property other than as described in this Agreement, whether voluntary or involuntary or by operation of law shall be an Event of Default. ARTICLE V OTHER ENCUMBRANCES S.OI No Encumbancee Mort a e or Pled a of Site or Facilities. (a) The affordable housing owner shall not directly or indirectly create, incur, assume or suffer to exist any mortgage, pledge, lien (including mechanics' and materialmen's liens), charge, encumbrance or other claim in the nature of a lien on or with respect to the Mortgaged Property, except Permitted Encumbrances. The affordable housing owner shall promptly, at its own expense, take such action as may be duly necessary to discharge any such mortgage, pledge, lien, charge, encumbrance or claim not excepted above which it shall have created, incurred or suffered to exist. (b) The affordable housing owner shall reimburse the County for any expense incurred by the County to discharge or remove any such mortgage, pledge, lien, security interest, encumbrance or claim with interest thereon at an annual rate equal to 10%. ARTICLE VI THE DEED OF TRUST TRUSTEE 6.01 Deed of -Trust Trustee's Liability. The Deed of Trust Trustee shall suffer na liability by virtue of his acceptance of this trust except such as may be incurred as a result of the Deed of Trust Trustee's failure to account for the proceeds of any sale under this Agreement. 6.02 Substitute Trustees. if the Deed of Trust Trustee, or any successor, shall die, become incapable of acting or renounce his trust, or if for any reason the County desires to replace the Deed of Trust Trustee, then the County shall have the unqualified right to appoint one or more substitute or successor Deed of Trust Trustees by instruments filed for registration in the office of the Register of Deeds where this Agreement is recorded. Any such removal or appointment maybe made at any time without notice, without specifying any reason therefor and without any court approval. Any such appointee shall become vested with title to the Mortgaged Property and with all rights, powers and duties conferred upon the Deed of Trust Trustee by this Agreement in the same manner and to the same effect as though such Deed of Trust Trustee were named as the original Deed of Trust Trustee. ARTICLE VII DEFAULTS AND REMEDIES; FORECLOSURE 7.01 Events of Default. An "Event of Default" is any of the fallowing: 11 12 (a) The affordable housing owner's failing to make any Required Payment when due. (b) The affordable housing owner's breaching or failing to perform or observe any term, condition or covenant of this Agreement on its part to be observed or performed, other than as provided in subsection (a) above, including payment of any Additional Payment, for a period of 15 days after written notice specifying such failure and requesting that it be remedied shall have been given to the affordable housing. owner by the County, unless the County shall agree in writing to an extension of such time prior to its expiration. (c) ,The institution of proceedings under any bankruptcy, insolvency, reorganization or similar law by or against the affordable housing owner as a debtor, or the appointment of a receiver, custodian or similar officer for the affordable housing owner or any of its property, and the failure of such proceedings or appointments to be vacated or fully stayed within 30 days after the institution or occurrence thereof. (d) Any warranty, representation or statement made by the affordable housing owner in this Agreement is found to be incorrect or muisleading in any material respect on the Closing Date (or, if later, on the date made). (e) Any lien, charge or encumbrance (other than Permitted Encumbrances) prior to or affecting the validity of the Agreement is found to exist, or proceedings are instituted against the affordable housing owner to enforce any lien, charge or encumbrance against the Mortgaged Property and such lien, charge or encumbrance would be prior to the lien of this Agreement. 7.02 Remedies on Default. Upon the continuation of any Event of Default, the County may, without any further demand or notice, exercise any one or more of the following remedies: (a) Declare the Required Payment immediately due and payable; (b) Proceed by appropriate court action to enforce the affordable housing ,owner's performance of the applicable covenants of this Agreement or to recover for the breach thereof; (c) Avail itself of all available remedies under this Agreement, including foreclosure as provided in Sections 7.03, and recovery of attorneys' fees and other expenses. ,7.03 Foreclosure; Sale under Power of Sale. a Ri ht to foreclosure or sale. Upon the occurrence and continuation of an Event of Default, at the County's request, the Deed of Trust Trustee shall foreclose Mortgaged Property by judicial proceedings or, at the County's option, the Deed of Trust Trustee shall sell (and is hereby empowered to sell) all or any part of the Mortgaged Property (and if in part, any such sale shall in no way adversely affect the lien created hereby against the remainder) at public sale to the last and highest bidder far cash (free of any equity of redemption, homestead, dower, curtesy ar other exemption, all of which the affordable housing owner expressly waives to the extent permitted by law) after compliance with applicable State laws relating to foreclosure sales under power of sale. The Deed of Trust Trustee shall, at the County's request, execute a proper deed or deeds to the successful purchaser at such sale. 12 13 (b~ County's bid. The County may bid and become the purchaser at any sale under this Agreement, and in lieu of paying cash therefor may make settlement for the purchase price by crediting against the Required Payments the proceeds of sale net of sale expenses, including the Deed of Trust Trustee's commission, and after payment of such taxes and assessments as may be a lien on the Mortgaged Property superior to the lien of this Agreement (unless the Mortgaged Property is sold subject to such liens and assessments, as provided by State law). (c)_ Successful bidder's_deposit. At any such sale the Deed of Trust Trustee may, at its option, require any successful bidder (other than the County) immediately to deposit with the Deed of Trust Trustee cash or a certified check in an amount equal to all or any part of the successful bid, and notice of any such requirement need not be included in the advertisement of the notice of such sale. d A lication o sale roceeds. The proceeds of any foreclosure sale shall be applied in the manner and in the order prescribed by State law, it being agreed that the expenses of any such sale shall include a commission to the Deed of Trust Trustee of five percent of the gross sales price for making such sale and for all services performed under this Agreement. Any proceeds of any such sale remaining after the payment of all Required Payments and the prior application thereof in accordance with State law shall be paid to the affordable housing owner. 7.04 Possession of Mortgaged Property. After a foreclosure sale, the affordable housing owner shall immediately lose the right to possess, use and enjoy the Mortgaged Property (but may remain in possession of the Mortgaged Property as a tenant at will of the County), and thereupon the affordable housing owner (a) shall pay monthly in advance to the County a fair and reasonable rental value far the use and occupation of the Mortgaged Property (in an amount the County shall determine in its reasonable judgment), and (b) upon the County's demand, shall deliver possession of the Mortgaged Property to the County or, at the County's direction, to the purchaser of the Mortgaged Property at any judicial or foreclosure sale under this Agreement. In addition, upon the continuation of any Event of Default, the County, to the extent permitted by law, is hereby authorized to (i) take possession of the Mortgaged Property, with ar without legal action, (ii) lease the Mortgaged Property, (iii) collect all rents and profits therefrom, with or without taking possession of the Mortgaged Property, and (iv) after deducting all costs of collection and administration expenses, apply the net rents and profits first to the payment of necessary maintenance and insurance costs, and then to the affordable housing owner's account and in reduction of the affordable housing owner's corresponding Required Payment in such fashion as the County shall reasonably deem appropriate. The County shall be liable to account only for rents and profits it actually receives. 7.05 No Remed Exclusive• Dela Not Waiver. All remedies under this Agreement are cumulative and maybe exercised concurrently or separately. The exercise of any one remedy shall not be deemed an election of such remedy or preclude the exercise of any other remedy. If any Event of Default shall occur and thereafter be waived by the other parties, such waiver shall be limited to the particular breach so waived and shall not be deemed a waiver of any other breach under this Agreement. 13 14 7.06 Pavment of Costs and Attorney's Fees. Tf the County employs an attorney to assist in the enforcement or collection of Required Payments, or if the Deed of Trust Trustee or the County voluntarily or otherwise shall become a party or parties to any suit ar legal proceeding (including a proceeding conducted under any state or federal bankruptcy or insolvency statute) to protect the Mortgaged Property, to protect the lien of this Agreement, to enforce collection of the Required Payments or to enforce compliance by the affordable housing owner with any of the provisions of this Agreement, the affordable housing owner agrees to pay reasonable attorneys' fees and all of the costs that may reasonably be incurred (whether or not any suit or proceeding is commenced), and such fees and costs (together with interest at an annual rate equal to 10%) shall be secured as Required Payments. ARTICLE VIII MISCELLANEOUS 8.01 otices. (a) Any communication required or permitted by this Agreement must be in writing. (b) Any communication under this Agreement shall be sufficiently given and deemed given when delivered by hand or five days after being mailed by first-class mail, postage prepaid, addressed as follows: (i) if to the County, to Post Office Box 8181, Hillsborough, NC 27278, Attention: Finance Director; (ii) if to the Deed of Trust Trustee, to P.O. Drawer 1529, Hillsborough, North Carolina 27278; or (iii) if to the affordable housing owner, to (c) Any communication to the Deed of Trust Trustee shall also be sent to the County. (d) Any addressee may designate additional or different addresses for communications by notice given under this Section to each of the others. 8.02 No Assi nments b Affordable Housin Owner. The affardable housing owner shall not sell or assign any interest in this Agreement. 8.03 Assignments b,, C~oun_Ly. The County may, at any time and from time to time, assign all or any part of its interest in the Site, the Facilities or this Agreement, including, without limitation, the County's rights to receive the Required Payments. Any assignment made by the County or any subsequent assignee shall not purport to convey any greater interest or rights than those held by the County pursuant to this Agreement. No assignment or reassignment of the County's interest in the Mortgaged Property or this Agreement shall be effective unless and until 14 15 the affordable housing owner shall receive a duplicate original counterpart of the document by which such assignment or reassignment is made disclosing the name and address of each such assignee. 8.04 Amendments. No term ar provision of this Agreement may be amended, modified or waived without the prior written consent of the affordable housing owner and the County. 8.05 No Marshalling. The affordable housing owner hereby waives any and all rights to require marshalling of assets in connection with the exercise of any remedies provided in this Agreement or as permitted by law. 8.06 Governing Law. The affordable housing owner, the County and the Deed of Trust Trustee intend that State law shall govern this Agreement. 8.07 Liability of Officers,,and Agents. No officer, agent ar employee of the affordable housing owner shall be subject to any personal liability or accountability by reason of the execution of this Agreement or any other documents related to the transactions contemplated hereby. Such officers or agents shall be deemed to execute such documents in their official capacities only, and not in their individual capacities. This Section shall not relieve an officer, agent or employee of the affordable housing owner from the per#'armance of any official duty provided by law. $.08 Covenants Running with,,., the Land. All covenants contained in this Agreement shall run with the real estate encumbered by this Agreement. 8.09 Severability. If any provision of this Agreement shall be determined to be unenforceable, that shall not affect any other provision of this Agreement. 8.10 Non-Business ,Davs. If the date for making any payment or the last day for performance of any act or the exercising of any right shall not be a Business Day, such payment shall be made or act performed or right exercised on or before the next preceding Business Day. 8.11 Entire Agreement. This Agreement constitutes the affordable housing owner's entire agreement with respect to the general subject matter covered hereby. 8.12 Bindin Effect. Subject to the specific provisions of this Agreement, and in particular Section 8.03, this Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties and their respective successors and assigns. IN WITNESS WHEREOF, Borrower has caused this instrument to be executed as of the day and year first above written by duly authorized officers. (SEAL) is 16 President ATTEST: Secretary NORTH CAROLINA ORANGE COUNTY I, ,Notary Public in and for the above named County and State, do hereby certify that on this day personally appeared before me with whom I am personally acquainted, who, being by me duly sworn, says that he/she is Secretary and that is President of , a North Carolina corporation, and that by authority duly given and as the act of the corporation, the foregoing instrument was signed in its Warne by its President, sealed with its corporate seal and attested to by its Secretary. WITNESS my hand and off vial stamp or seal, this day of , 2001. [SEAL] My commission expires: Notary Public 16 17 EXHIBIT A -SITE DESCRIPTION 17 18 EXHIBIT B -FACILITIES DESCRIPTION 18 19 EXHIBIT C -- EXISTING ENCUMBRANCES 19 Zo EXHIBIT D -- PAYMENT SCHEDULE Payment Schedule To Agreement and Deed of Trust dated as of , 2001 (the "Agreement"), granted by , to Geoffrey E. Gledhill, Deed of Trust Trustee, for the benefit of Orange County, North Carolina. The amount of the payment required to repay the reimbursement made pursuant to the Agreement is the Amount Reimbursed plus interest at an annual rate equal to 10% from the event that prompts payment as defined herein and in the Agreement. Payment is due if and when the Mortgaged Property ceases being used at any time during the ninety-nine year period from the Closing Date, for housing for families earning up to 80% of HUD area median income as described in Section 4.14 of the Agreement. Isg:orangecounty~affordablehousingdeedof'trust.doc 20