AFFORDABLE HOUSING RESTRICTION - CONGRESS STREE RESIDENCES LIMITED PARTNERSHIP - 32 PERKINS STREET, 61 CONGRESS STREET, 71 PALMER STREET, 6 WARD STREET, 40 WARD STREET, 52-56-60 DOW STREET, 105-109 CONGRESS STREET I
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AFFORDABLE ROUSING RESTRICTION
DATE: As of June 10, 2016
GRANTOR: Congress Street Residences Limited Partnership
PROPERTY NAME: Congress Street Residences
TOTAL NUMBER OF UNITS: 64
TOTAL NUMBER OF RESTRICTED UNITS. 64
NUMBER OF HIGH MODERATE INCOME UNITS (110% AMI):' 0
NUMBER OF MODERATE INCOME UNITS (80% AMI): 0
NUMBER OF LOW INCOME UNITS (60% AMI): 48
NUMBER OF VERY LOW INCOME UNITS (50%u AMI): 0
NUMBER OF EXTREMELY LOW INCOME UNITS (30% AMI): 16
NUMBER OF HOME ASSISTED UNITS: 11
PROPERTY ADDRESS: 32 Perkins Street, 61 Congress Street, 71 Palmer Street, 6 Ward Street,40 Ward Street, 52-
Salem, Massachusetts
AFFORDABILITY TERM: Perpetual
This Affordable Housing Restriction (this "Restriction") is granted by the undersigned Grantor, a
Massachusetts limited partnership having a mailing address of c/o North Shore CDC, 102 Lafayette
Street, Salem, Massachusetts 01970, for the benefit of The Commonwealth of Massachusetts acting
by and through the Department of Housing and Community Development having a mailing address of
100 Cambridge Street, Suite 300, Boston, Massachusetts 02114-2524 ("DHCD"); The Commonwealth
of Massachusetts, acting by and through the Department of Housing and Community Development
under the Affordable Housing Trust Fund Statute, M.G.L. c. 121D, by the Massachusetts Housing
Finance Agency ("MHFA"), as Administrator, having an address at One Beacon Street, Boston,
Massachusetts 02108 ("AHT"); Community Economic Development Assistance Corporation, a body
'Numbers in parentheses are the percentage of median income for the Area (AMI, as defined below), adjusted
for family size, as determined from time to time by HUD (as defined below) pursuant to Section 8 of the
United States Housing Act, as amended.
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AFFORDABLE HOUSING RISTRIOTIRN
politic and corporate, duly organized and existing in accordance with Chapter 40H of the
Massachusetts General Laws ("HIFff); Massachusetts Housing Partnership Fund Board, having a
mailing address of 160 Federal Street, Boston, Massachusetts 02110, as agent for The Commonwealth
of Massachusetts, acting by and through the Department of Housing and Community Development
under the Housing Stabilization and Investment Trust Fund Statute, M.G.L. c. 121F ("HSITF"); the
North Shore HOME Consortium, acting by and through the City of Salem, Massachusetts, having an
address at 120 Washington Street, 3rd Floor, Salem, Massachusetts 01970 (the "City"); and the City of
Salem,under both a Community Development Block Grant loan to Congress&Dow LLC and a grant by
and through its Community Preservation Act Committee to Congress&Dow LLC (the"City Lender'J.
BACKGROUND
A. The Grantor holds or will acquire legal title to the Property and intends to rehabilitate a
64-unit rental housing development, consisting of eight residential buildings, at the
Property (the "Project").
B. As a condition of the Loan, the Grantor has agreed that this Restriction be imposed upon
the Property as a covenant running with the land and binding upon any successor to the
Grantor, as owner thereof.
RESTRICTIONS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Grantor hereby covenants as follows:
1. Definitions. Capitalized terms used herein are defined herein and in Exhibit D attached
hereto.
2. Use Restrictions. The Property shall be reserved and used for the Permitted Uses and for
no other purpose. The Restricted Units shall include at least 1 Studio Unit, 1 one-bedroom Unit,
20 two-bedroom Units, 39 three-bedroom Units and 3 four-bedroom Units. Eleven of the
Restricted Units shall be deemed to be assisted under the HOME Program ("HOME Assisted Units")
provided that certain of the provisions of the HOME Program may cease to be effective 15 years after
the completion of the Project (the "HOME Term") as more fully set forth in Section 5.2 of the Loan
Agreement between Grantor as Borrower and The Commonwealth of Massachusetts acting by and
through the Department of Housing and Community Development for itself and as agent for certain
other lenders. Such HOME Assisted Units may also constitute Restricted Units with respect to
other programs hereunder. As of the date hereof, the Property has or is expected to have the
benefit of a contract for 8 project-based vouchers under the Massachusetts Rental Voucher
Program (the "MRVP Contract") and 8 project-based Section 8 vouchers (the "Section 8
Contract"). If during the HOME Term both the MRVP Contract and the Section 8 Contract are not
renewed at the end of their respective terms or are terminated or otherwise are no longer in full
force and effect, the number of HOME Assisted Units required to be Very Low Income Units (as set
forth on Exhibit C) shall be reduced to 3 Units of the types shown on Exhibit C-1 and the number
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AFFORDABLE ROUSING RESTRICTION
of HOME Assisted Units required to be Low Income Units (as set forth on Exhibit C) shall be
increased to 6 Units of the types shown on Exhibit C-1. In such event, references in this
Restriction to Exhibit C shall thereafter be deemed to refer to Exhibit C-1. Furthermore, If during
the Term the MRVP Contract or the Section 8 Contract is not renewed at the end of its term or is
terminated or otherwise is no longer In full force and effect, the Holders will consider a request by the
Grantor to modify the mix of Restricted Units by converting Extremely Low Income Units to Very Low
Income Units or Low Income Units. A decision by the Holders on such a request shall take into
consideration the financial viability of the Property and shall be made in the sole reasonable discretion
of the Participating Lenders who have required such Extremely Low Income Units, as shown on Exhibit
C. The Property also shall include at least four (4) Units accessible to individuals with mobility
impairments and at least four (4) additional Units accessible to individuals with sensory
impairments. Each Unit shall contain complete facilities for living, sleeping, eating, cooking and
sanitation that are to be used on other than a transient basis. Each Unit shall meet the housing
quality standards set forth in the regulations of HUD at 24 C.F.R. §982.401 or any successor
thereto, the accessibility requirements at 24 C.F.R. Part 8 or any successor thereto (which
implement Section 504 of the Rehabilitation Act of 1973) and, if applicable, the design and
construction requirements of 24 C.F.R. §100.205 or any successor thereto (which implement the
Fair Housing Act). The Restricted Units shall be of comparable quality to the other Units at the
Property. The Restricted Units shall be dispersed evenly throughout the buildings comprising the
Improvements. Throughout the term hereof, the Grantor shall maintain the Property and the
Improvements in good, safe and habitable condition in all respects and in full compliance with all
applicable laws, by-laws, rules and regulations of any governmental (or quasi-governmental) body
with jurisdiction over matters concerning the condition of the Property.
3. Occupancy Restrictions.
A. The following restrictions shall apply during the period commencing with
the first date on which any Units are occupied and continuing for the balance of the 50-year
affordability period required by the HSF Program, subject always to any applicable rent
restrictions of the federal low-income housing tax credit program under Section 42 of the Internal
Revenue Code of 1986, as amended, and any provision herein that conflicts with the requirements
of the federal low-income housing tax credit program shall be suspended so long as the
restrictions under the federal low income housing tax credit program are in effect.
(i) Low Income Units. At least 48 of the Units of the types shown on Exhibit C
attached hereto shall be ]eased exclusively to Low Income Families ("Low
Income Units"). The monthly rent charged to a Family occupying a Low
Income Unit shall not exceed the lesser of Fair Market Rent or an amount
equal to (x) one-twelfth of thirty percent (30%) of sixty percent(60%) of the
Bedroom Adjusted AMI, minus (y) if applicable, an allowance established by
the Holders for any utilities and services (excluding telephone) to be paid by
the occupying Family. A Family who resides in a Restricted Unit, who qualified
as a Low Income Family at the time of such Family's initial occupancy at the
i Property and whose Household Income exceeds sixty percent (60%), but does
not exceed eighty percent(80%) of the Family-size Adjusted AMI, shall
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AFFORDABLE ROUSING RESTRICTION
continue to be treated as a Low Income Family and the foregoing maximum
rent shall continue to apply to such Family. A Family who resides in a
Restricted Unit, who qualified as a Low Income Family at the time of such
Family's initial occupancy at the Property and whose Household Income
exceeds eighty percent(80%) of the Family-size Adjusted AMI, shall,from and
after the expiration of the then-current term of such Family's lease, no longer
be treated as an income-qualified Family and (1) until such time as the
Property again has the required number of income-qualified Families at all
income levels hereunder must pay as monthly rent the Over-income Rent
and (if) once the Property again has the required number of income-
qualified Families at all income levels hereunder, such Family's Unit shall,
from and after the expiration of the then-current term of such Family's
lease, no longer be deemed a Restricted Unit hereunder.
Extremely Low Income Units. At least 16 of the Units of the types shown
on Exhibit C attached hereto shall be leased exclusively to Extremely Low
Income Families ("Extremely Low Income Units"). The monthly rent
charged to a Family occupying an Extremely Low Income Unit shall not
exceed the lesser of Fair Market Rent or (x) one-twelfth of thirty percent
(30%) of thirty percent (30%) of the Bedroom Adjusted AMI, minus (y) if
applicable, an allowance established by the Holders for any utilities and
services (excluding telephone) to be paid by the occupying Family. A
Family who resides In a Restricted Unit, who qualified as an Extremely Low
Income Family at the time of such Family's initial occupancy at the
Property and whose Household Income exceeds thirty percent (30%), but
does not exceed fifty percent (50%) of the Family-size Adjusted AMI, shall
continue to be treated as an Extremely Low Income Family but, from and
after the expiration of the then-current term of such Family's lease, must
pay as monthly rent the Over-income Rent. A Family who resides in a
Restricted Unit, who qualified as an Extremely Low Income Family at the
time of such Family's initial occupancy at the Property and whose
Household Income exceeds fifty percent (50%), but does not exceed eighty
percent (80%), of the Family-size Adjusted AMI, shall, from and after the
expiration of the then-current term of such Family's lease, be treated as a
Low Income Family and must pay as monthly rent the lesser of(x) the
maximum amount payable by the Family under the laws of the municipality
in which the Property is located or of The Commonwealth of Massachusetts,
(y) one-twelfth of thirty percent (30%) of sixty percent (60%) of the
Bedroom Adjusted AMI (minus, if applicable, an allowance established by
the Holders for any utilities and services [excluding telephone] to be paid
by the occupying Family) or (z) the comparable market rent for the
Family's Unit. A Family who resides in a Restricted Unit, who qualified as
an Extremely Low Income Family at the time of such Family's initial
occupancy at the Property and whose Household Income exceeds eighty
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percent (80%) of the Family-size Adjusted AMI, shall, from and after the
expiration of the then-current term of such Family's lease, no longer be
treated as an income-qualified Family and (i) until such time as the
Property again has the required number of income-qualified Families at all
income levels hereunder must pay as monthly rent the Over-income Rent
and (ii) once the Property again has the required number of income-
qualified Families at all income levels hereunder, such Family's Unit shall,
from and after the expiration of the then-current term of such Family's
lease, no longer be deemed a Restricted Unit hereunder.
B. The following restrictions shall apply during the period commencing with
the first date after the end of the 50-year affordability period required by the HSF Program and
continuing in perpetuity, subject always to any applicable rent restrictions of the federal low-
income housing tax credit program under Section 42 of the Internal Revenue Code of 1986, as
amended, and any provision herein that conflicts with the requirements of the federal low-income
housing tax credit program shall be suspended so long as the restrictions under the federal low
income housing tax credit program are in effect.
(1) Moderate Income Units. At least 64 of the Units of the types shown on
Exhibit C attached hereto shall be leased exclusively to Moderate Income
Families ("Moderate Income Units"). The monthly rent charged to a Family
occupying a Moderate Income Unit shall not exceed the lesser of Fair Market
Rent or an amount equal to (x) one-twelfth of thirty percent (30%) of eighty
percent(80%) of the Bedroom Adjusted AMI, minus (y) if applicable,an
allowance established by the Holders for any utilities and services(excluding
telephone) to be paid by the occupying Family. A Family who resides in a
Restricted Unit, who qualified as a Low Income Family at the time of such
Family's initial occupancy at the Property and whose Household Income
exceeds sixty percent (80%), but does not exceed one hundred percent
(10011/o) of the Family-size Adjusted AMI, shall continue to be treated as a
Moderate Income Family and the foregoing maximum rent shall continue to
apply to such Family. A Family who resides in a Restricted Unit, who qualified
as a Moderate Income Family at the time of such Family's initial occupancy at
the Property and whose Household Income exceeds eighty percent(100%) of
the Family-size Adjusted AMI, shall,from and after the expiration of the then-
current term of such Family's lease, no longer be treated as an income-
qualified Family and (i) until such time as the Property again has the
required number of income-qualified Families at all income levels
hereunder must pay as monthly rent the Over-income Rent and (ii) once
the Property again has the required number of income-qualified Families at
all income levels hereunder, such Family's Unit shall, from and after the
expiration of the then-current term of such Family's lease, no longer be
deemed a Restricted Unit hereunder.
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C. Applicable Lease Term, Change of Status. References in the foregoing provisions of the
"then-current term of such Family's lease" shall refer to the term of the lease or
occupancy agreement in effect on the date of the required delivery of the income
certification that reflects (or that, if duly delivered, would have reflected) the applicable
increase in such Family's Income or, as applicable, the term of the lease or occupancy
agreement in effect at the time the Property regains the required number of income-
qualified Families. If, with the Holders' consent, the Grantor does not require that a lease
be signed for a Restricted Unit (e.g., a property providing short-term transitional housing),
the provisions set forth above shall apply, except that the applicable date on which a
Family's income-qualified status and/or applicable rent restriction is modified shall be the
first day of the month that is at least thirty (30) days following the date of the required
delivery of the income certification that reflects (or that, if duly delivered, would have
reflected) the applicable increase in such Family's Income and the applicable date on which
a Restricted Unit's status is modified shall be the first day of the month that is at least
thirty (30) days following the date on which the Property regains the required number of
income-qualified Families.
D. Federal or State Rental Subsidy. Except with respect to HOME Assisted Units, if a
Restricted Unit or the Family occupying such Unit receives federal or state rental subsidy,
then the Family's contribution towards rent shall be the contribution allowable under the
federal or state rental subsidy program and the maximum rent (i.e., tenant contribution
plus rental subsidy) shall be the rent allowable under the federal or state rental subsidy
program. In the case of HOME Assisted Units, if a Restricted Unit receives federal or state
project-based rental subsidy and the occupying Family qualifies as a Very Low Income
Family and pays as a contribution towards rent not more than thirty percent (30%) of
one-twelfth of the Family's Household Income, then the maximum rent (i.e., tenant
contribution plus rental subsidy) shall be the rent allowable under the federal or state
rental subsidy program.
E. Next Available Unit Rule. If at any time fewer than the required number of Units are
leased, rented or occupied by Extremely Low Income Families, the next available Units
shall all be leased, rented or otherwise made available to Extremely Low Income Families
until the required number of Units occupied by Extremely Low Income Families is again
obtained. Subject to the foregoing, if at any time fewer than the required number of Units
are leased, rented or occupied by Low Income Families, the next available Units shall all
be leased, rented or otherwise made available to Low Income Families until the required
number of Units occupied by Low Income Families is again obtained. The foregoing
provisions shall be applied so as to maintain a mix of Restricted Units that is comparable
in size, features and number of bedrooms to the originally designated Restricted Units
(i.e., a Unit will not be considered an available Unit for purposes of this Paragraph if
classification of such Unit as a Restricted Unit would cause the then current mix of
Restricted Units to no longer be comparable to the original mix of Restricted Units
' described in Section 2 above and as shown on Exhibit C).
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4. Rent Schedule. Except as is set forth in Section 3D, projected initial monthly maximum
rents including utilities for all Restricted Units shall be as set forth In Exhibit B attached hereto. If
permitted maximum rents and utility allowances as reflected in the annual schedule of rents and
utility allowances issued by DHCD increase prior to Initial occupancy of the Project, the initial
monthly maximum rents and utility allowances shall be as set forth in the latest schedule issued
by DHCD. Notwithstanding the rent restrictions set forth in Section 3 above, the maximum
monthly rent permitted to be charged for a Restricted Unit at any particular income level is not
required to be lower than the maximum rent applicable at such income level pursuant to Exhibit B
or such higher initial maximum rent applicable at such Income level pursuant to the immediately
preceding sentence, regardless of changes in fair market rents or in median income over time
(subject only to the restrictions applicable in the event of any federal or state subsidy, as set
forth in Section 3 above). Rents for Restricted Units shall not be Increased above applicable
maximums without all Holders' prior written approval of a specific request by the Grantor for a
rent increase, except for Increases implemented in accordance with an annual schedule of
maximum rents and allowances issued by DHCD. Notwithstanding the foregoing, rent increases
shall be subject to the provisions of outstanding leases and shall not be implemented without at
least thirty (30) days' prior written notice by the Grantor to all affected Residents and
notwithstanding any provision in a lease or occupancy agreement to the contrary, in the event of
any increase in the rent payable by such Residents in connection with an Increase in the Income of
such Residents, consistent with the terms hereof, the Residents shall have the right to terminate
their lease or occupancy agreement by written notice to the Grantor delivered within such thirty-
day period.
5. Resident Selection.
A. Nondiscrimination. The Grantor shall not discriminate on the basis of race, religious
creed, color, sex, age, marital status, sexual orientation (which shall not Include persons
whose sexual orientation involves minor children as the sex object), gender identity, genetic
information, veteran status, membership in the armed forces, ancestry, national origin,
handicap, blindness, hearing impairment, or because a person possesses a trained guide dog
as a consequence of blindness, hearing impairment or other handicap of such person or any
other basis prohibited by law in the lease, use and occupancy of the Units or in connection
with the employment or application for employment of persons for the operation and
management of the Units. The Grantor shall not discriminate against, or refuse to lease,
rent or otherwise make available the Units to, a holder of a certificate or voucher under
the Federal Rental Certificate Program or the Federal Rental Voucher Program or a holder
of a comparable document evidencing participation in a HOME Program tenant-based
assistance program because of the status of the prospective tenant as a holder of such
certificate, voucher or comparable HOME Program tenant-based assistance document.
B. Selection Policies. The Grantor shall adopt and submit to the Holders for approval
resident selection policies and criteria for the Restricted Units that:
(I) Are consistent with the purpose of providing housing for a Low Income Family or an
Extremely Low Income Family, as defined below and required herein;
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(ii) Are reasonably related to eligibility of prospective tenants under the Programs and
to the prospective tenants' ability to perform the obligations of the Grantor's form
lease; and
(ill) Provide for (x) the selection of Residents from a written waiting list in the
chronological order of their application, insofar as practicable, and (y) the prompt
written notification to any rejected applicant of the grounds for any rejection.
The Grantor shall also provide the Holders with an affirmative marketing plan
acceptable to all Holders. The affirmative marketing plan must comply with all applicable
statutes, regulations and executive orders, with all Holders' affirmative marketing
requirements and with DHCD's directives reflecting the agreement between DHCD and HUD in
the case of NAACP, Boston Chapter v. Kemp. The approved marketing plan and the approved
resident selection policies and criteria shall be adhered to in every respect and any changes
thereto shall be subject to the prior written approval of the Holders. The Grantor shall list
vacancies in Restricted Units in the MassAccess Housing Registry at
http://www.massaccesshousingregistry.org.
6. Lease Form. The Grantor shall not include in any lease for a Restricted Unit any of the
following provisions:
A. Agreement by the tenant to be sued, to admit guilt or to a judgment in favor of the
Grantor in a lawsuit brought in connection with the lease.
B. Agreement by the tenant that the Grantor may take, hold, or sell personal property of
household members without notice to the tenant and a court decision on the rights of the
parties. This prohibition, however, does not apply to an agreement by the tenant
concerning. disposition of personal property remaining in the Unit after the tenant has
moved out of the Unit. The Grantor may dispose of such personal property in accordance
with state law.
C. Agreement by the tenant not to hold the Grantor or the Grantor's agents legally
responsible for any action or failure to act, whether intentional or negligent.
D. Agreement of the tenant that the Grantor may institute a lawsuit without notice to the
tenant.
E. Agreement by the tenant that the Grantor may evict the tenant or household members
without instituting a civil court proceeding in which the tenant has the opportunity to
present a defense, or before a court decision on the rights of the parties.
F. Agreement by the tenant to waive any right to a trial by jury.
G. Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge
in court, a court decision in connection with the lease.
H. Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins
in a court proceeding by the Grantor against the tenant. The tenant, however, may be
obligated to pay costs if the tenant loses.
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All leases for Restricted Units shall be consistent with the requirements set forth herein, shall be
on a form reasonably approved by the Holders, shall be for terms of not less than one (1) year
(unless a shorter term is specified by mutual agreement between the Resident and the Grantor,
subject to the Holders' program requirements) and shall require tenants to provide information
required for the Grantor to meet its reporting requirements hereunder. The Grantor may not
terminate the tenancy or refuse to renew the lease of an occupant of a Restricted Unit except (i)
for serious or repeated violation of the terms and conditions of the lease; (ii) for violations of
applicable federal, state or local law; (iii) for completion of the tenancy period for transitional
housing; or (Iv) for other good cause. Any termination or refusal to renew must be preceded by
not less than thirty (30) days by the Grantor's service on the tenant of a written notice specifying
the grounds for the action.
7. Transfer Restrictions. The Grantor shall not sell, transfer, convey, rent (except for
leases or occupancy agreements made in connection with the Permitted Uses that are
substantially in the form approved by the Holders), encumber as security for financing, or In any
other way exchange all or any portion of the Property nor shall the Grantor permit the sale,
transfer or pledge of any direct or indirect interests in the Grantor, without the express written
permission of the Holders, which consent shall not be unreasonably withheld or delayed with
respect to any transfer to the Sponsor or any entity wholly owned and controlled by the Sponsor
pursuant to the Right of First Refusal dated of even date herewith granted to the Sponsor by the
Grantor, provided that at the time of exercise of such Right of First Refusal (1) no Event of
Default, or event or condition which with the giving of notice or passage of time or both would
constitute an Event of Default, is then outstanding hereunder or under any of the Loans; (ii) the
Sponsor or such other entity designated as transferee is an eligible borrower under all applicable
Statutes, Regulations and Guidelines as then in effect; (III) the Sponsor or such other entity is in
good standing with all Holders and in each Holder's reasonable discretion has sufficient financial
capability and experience with affordable housing similar to the Property to perform the
obligations of the Grantor; (iv) the Sponsor or such transferee agrees in writing to be bound by
and perform all of the terms and conditions hereof; (v) such transfer is permitted by the holder of
all loans secured by the Property and (vi) the Grantor gives to all Holders no less than thirty (30)
days' prior written notice of any such proposed transfer. Without limiting the generality of the
foregoing, the Permitted Encumbrances are hereby approved by the Holders. Any sale, transfer
or other disposition (each, a "transfer") of all or any part of the Property shall further be subject
to the Purchase Option and the First Refusal Right described below, and to such further terms and
conditions with respect thereto as may be set forth in the HIF Statute, the HIF Regulations, the
HIF Guidelines, the HSF Statute, the HSF Regulations, and the HSF Guidelines. Upon request by
the Grantor, DHCD shall sign a certificate, in form and substance reasonably acceptable to DHCD,
stating whether, as of a specified date, any Purchase Option or First Refusal Right in favor of
DHCD remains in effect, or has been exercised, terminated, waived or assigned, and otherwise
conforming with the certification requirements described below. No transfer of all or any part of
the Property to any party other than DHCD or its assignee shall be consummated unless and until
(i) the period for the exercise of all Purchase Options and/or First Refusal Rights, as applicable,
shall have expired without DHCD's exercise of rights thereunder or (11) DHCD shall have
unconditionally waived its rights thereunder in writing. Notwithstanding the foregoing: (I) the
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limited partner interest of Grantor held by Wincopin Circle LLLP (the "Investor") may be
transferred to an entity in which the Investor or an affiliate of the Investor is the general partner
or managing member, provided that the Holders receive notice of such transfer and (ii) the
Grantor's limited partner may remove and replace the general partner of the Grantor in
accordance with the provisions of the Grantor's partnership agreement upon the consent of the
Holders, which consent will not be unreasonably withheld, conditioned or delayed.
a. HIF/HSF Purchase Option.
A. After the fifty-first anniversary of the date hereof, DHCD shall have the right to purchase
the Grantor's interest in the Property from the Grantor, at a price equal to the then-
current appraised value of the Property, less the total outstanding balance, at the time of
such purchase, of all principal, interest and any other charges payable under the HIF Loan
and HSF Loan, and any and all other outstanding obligations of the Grantor with respect
thereto (the "Purchase Option"), by delivering written notice to the Grantor of its election
to exercise the Purchase Option by or before the date that is one hundred twenty (120)
days after the expiration of the fiftieth anniversary of the date hereof (the "Option
Exercise Deadline"). If DHCD shall have failed to deliver such written notice of its election
to exercise the Purchase Option to the Grantor by the Option Exercise Deadline, DHCD
shall be deemed to have unconditionally waived the Purchase Option, and the Purchase
Option shall automatically terminate, and shall have no further force or effect.
B. DHCD shall have the right at any time to assign its rights under this Purchase Option to a
qualified developer selected by DHCD in accordance with the HIF Statute and HIF
Regulations and the HSF Statute and HSF Regulations, and effective as of any such
assignment, all rights and obligations of DHCD with respect to such Purchase Option shall
automatically be deemed to apply to such assignee, and all references to "DHCD" in this
Section shall automatically be deemed to refer to such assignee (except to the extent a
provision explicitly provides otherwise). So long as the Grantor is not in default under the
HIF Loan, HSF Loan or hereunder, the Sponsor shall have the right to match the best offer
received by DHCD from a qualified developer to become DHCD's assignee.
C. Promptly upon request by DHCD at any time or from time to time, either before the Option
Exercise Deadline or after DHCD's exercise of the Purchase Option, the Grantor shall
provide DHCD with a copy of, or otherwise make available for DHCD's review at a mutually
convenient time and location, any and all material owned by or readily available to the
Grantor that an unrelated third-party potential buyer would reasonably request in
connection with its due diligence for the acquisition of the Property, including, by way of
example but not of limitation, deeds, title insurance policies, appraisals, studies, reports,
and other materials relating to the Property and/or any encumbrance(s) subject to which
the Property is to be conveyed, or otherwise reasonably necessary or appropriate for
DHCD to review in connection with its exercise of the Purchase Option.
D. The appraised value of the Property shall be determined at DHCD's request by the method
specified in the HIF Statute and HSF Statute (as may be more fully described in the HIF
Regulations and HSF Regulations) and in accordance with DHCD policies, and the costs of
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the appraisers shall be shared equally by DHCD and the Grantor (unless the HIF
Regulations or HSF Regulations provide otherwise). Notwithstanding anything to the
contrary contained in this Restriction, the Grantor shall not be required to use its own
funds to repay any debt secured by the Property in the event the appraised value of the
Property is less than the aggregate of all permitted debt secured by the Property.
E. The closing for the sale of the Property to DHCD shall take place in accordance with
applicable provisions of the HIF Regulations or HSF Regulations, by or before the date that
is one hundred twenty (120) days after the Option Exercise Deadline (i.e., on or before
the date that is two hundred forty (240) days after the fifty-first anniversary of the date
hereof, by the close of the business day, at the Registry of Deeds; provided, however, that
If DHCD reasonably determines additional time is necessary to effect the closing due to
delays of the Grantor in providing DHCD with the due diligence material described above
or any other failure by the Grantor fully to cooperate with preparations for the sale, the
closing date may be extended to a date reasonably determined by DHCD as necessary to
redress the delays caused by the Grantor, which shall be specified in a written notice from
DHCD setting forth the reasons for such extension, delivered to the Grantor by or before
the date originally scheduled for the closing. The parties may also mutually agree to
extend the date of the closing by written Instrument.
F. The transfer to DHCD pursuant to the Purchase Option shall be subject to such other
requirements as may be more fully described in the HIF Regulations or HSF Regulations
consistent with the HIF Statute and HSF Statute. Adjustments in the purchase price for
recording fees, deed stamps and other charges shall be made, and any other issues
associated with the transfer shall be resolved, In accordance with standard conveyancing
practice in The Commonwealth of Massachusetts. If either party so desires, the parties
shall enter into a purchase and sale agreement memorializing the terms of the sale,
consistent with the terms hereof and of the HIF Statute and HSF Statute; provided,
however, that the Purchase Option shall be binding regardless of whether the parties
execute a purchase and sale agreement. Notwithstanding any other provision hereof to
the contrary, if, after delivering notice of its intention to exercise the Purchase Option,
DHCD determines, in its sole discretion, that It Is not In the best interests of DHCD to
effect the purchase, DHCD may terminate the Purchase Option at any time, upon written
notice to the Grantor recorded with the Registry of Deeds; provided, however, that such
termination right shall apply to DHCD only and not to any assignee.
G. Concurrently with its acquisition of the Property, DHCD shall cause to be recorded with the
Registry of Deeds an affordable housing restriction, in compliance with the HIF Statute,
HSF Statute and any other applicable statutory requirements for the same (and, in the
case of an assignee, in form acceptable to DHCD, in its discretion), which shall require
that the Property shall be used only for the purposes of preserving or providing affordable
jhousing thereon, which housing shall remain affordable for a period of not less than fifty
(50) years.
9. HIF/HSF First Refusal Right.
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A. If the Grantor intends at any time or from time to time prior to DHCD's exercise (or
unconditional waiver) of the Purchase Option, as described in Section 8 above, to transfer
all or any part of its interest in the Property, and the Grantor receives a bona fide offer for
such transfer that the Grantor desires to accept (each, an "Offer"), the Grantor shall
promptly deliver to DHCD written notice of the same (which shall not be deemed to have
been duly delivered to DHCD unless it contains a copy of clause C. below), together with a
copy of such Offer (the "Offer Notice"). The Grantor shall provide DHCD with such
reasonable evidence as DHCD may require to satisfy DHCD as to the bona fide nature of
the Offer. For purposes of this Section, a purchase by the Sponsor shall not be
considered an Offer that triggers DHCD's First Refusal Right. A transfer of a limited
partner interest in the Grantor shall be considered an Offer that triggers the DHCD First
Refusal Right if (x) such limited partner interest is all or substantially all of the limited
partner interests In the Grantor (except for transfers to affiliates of the limited
partner) and (y) such transfer takes place within one year of a transfer of a general
partner Interest in the Grantor or of a controlling Interest in a general partner of the
Grantor to the transferee of the limited partner interest or an affiliate of such transferee,
provided that a removal of a general partner by a limited partner pursuant to a removal
provision in the partnership agreement of the Grantor and the substitution of a new
general partner that is an affiliate of such limited partner shall not constitute a transfer of
a general partner interest for purposes of this clause.
B. DHCD shall have the right to purchase the Grantor's interest in the Property (or the
portion(s) thereof to which the Offer relates), at the same price and on the same terms
set forth in such Offer (the "First Refusal Right"), by delivering to the Grantor and
recording with the Registry of Deeds written notice of Its election to exercise such First
Refusal Right, in accordance with the terms set forth below (the "Exercise Notice"), by or
before the date that is one hundred twenty (120) days after DHCD's receipt of such Offer
Notice (such 120-day period, the "First Refusal Period"). If DHCD does not intend to
exercise the First Refusal Right, DHCD may, but shall have no obligation to, notify the
Grantor in writing that the First Refusal Right will not be exercised (a "Waiver Notice").
C. If, by the expiration of the First Refusal Period with respect to an Offer, DHCD shall have
failed to deliver to the Grantor an Exercise Notice or a Waiver Notice, DHCD shall be
deemed to have waived its First Refusal Right with respect to such Offer, subject to any
revived First Refusal Right with respect to a modified Offer, as described below. However,
DHCD shall retain a First Refusal Right for subsequent Offers and the Purchase Option as
described above, notwithstanding any prior actual or deemed waiver of the First Refusal
Right, or any intervening transfer of the Property or any portion(s) thereof. The First
Refusal Right shall automatically expire upon the waiver, expiration or exercise of the
Purchase Option.
D. If any of the terms of an Offer shall be revised from the terms reflected in the Offer Notice
in such a manner as to be materially more favorable to the buyer or if a closing pursuant
to the Offer has not occurred on or before the date six months after the date of the Offer
Notice but the Grantor desires to continue pursuing a sale pursuant to such Offer, the
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Grantor shall promptly deliver to DHCD an Offer Notice with respect to such revised or
continued Offer (which shall not be deemed to have been duly delivered to DHCD unless It
contains a copy of clause C. above), and DHCD shall have a new First Refusal Right with
respect to such modified or continued Offer. The First Refusal Period for such new First
Refusal Right shall run for a period of one hundred twenty (120) days from the date of
DHCD's receipt of the Offer Notice with respect to such revised or continued Offer.
E. DHCD shall have the right at any time to assign its rights under the First Refusal Right to a
qualified developer selected by DHCD in accordance with the HIF Statute and HIF
Regulations and the HSF Statute and HSF Regulations and, effective as of any such
assignment, the rights and obligations of DHCD with respect to such First Refusal Right
shall automatically be deemed to apply to such assignee, and all references to "DHCD" in
this Section shall automatically be deemed to refer to such assignee (except to the extent
a provision explicitly provides otherwise). DHCD shall provide written notice of any such
assignment to the Grantor.
F. In accordance with the provisions of the HIF Statute and HSF Statute:
(1) An Offer Notice containing the required language as described above shall be deemed
to have been duly delivered if sent by regular and certified mail, return receipt
requested (or by such other method as may be authorized under the HIF Statute and
HIF Regulations and the HSF Statute and HSF Regulations), addressed to DHCD (or to
any assignee of DHCD, If DHCD has previously given the Grantor notice of such
assignment, including the name and notice address of such assignee, in accordance
with the notice provisions set forth herein) in the care of the keeper of records for
DHCD, which for purposes hereof shall be deemed to be the General or Chief Counsel
of DHCD (or in care of the keeper of records for such assignee of DHCD, as
applicable).
(11) The Exercise Notice or Waiver Notice shall be duly signed by a designated
representative of DHCD or of the assignee of DHCD, as the case may be, and (x)
mailed to the Grantor by certified mail (or such other method as may be authorized
under the HIF Statute or HSF Statute) at the notice address set forth in the Offer
Notice and (y) recorded with the Registry of Deeds by the expiration of the First
Refusal Period. If DHCD shall have assigned the First Refusal Right to a qualified
developer prior to delivery of the Exercise Notice, the Exercise Notice shall include the
name and address of such assignee and the terms and conditions of such assignment.
(iii)An affidavit acknowledged by a notary public that DHCD or its designated
representative has mailed an Exercise Notice or a Waiver Notice (the "Affidavit") shall
conclusively establish the manner and time of the giving of such notice. Any Affidavit
may be recorded with the Registry of Deeds by either party. Each Affidavit shall have
attached to it a copy of the Offer Notice to which it relates.
(iv)Each Offer Notice, Exercise Notice and Waiver Notice shall contain the name of the
record owner of the Property and a description of the premises to be transferred, in
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form adequate to identify the same. Each Affidavit shall have attached to it a copy of
the Offer Notice to which relates.
G. The closing for the sale of the Property (or, if applicable, the part thereof that is the
subject of the Offer) to DHCD shall take place in accordance with applicable provisions of
the HIF Regulations and HSF Regulations, by or before the date that is one hundred
twenty (120) days after the expiration of the First Refusal Period (i.e., on or before the
date that is two hundred forty (240) days after DHCD's receipt of the relevant Offer
Notice), by the close of the business day, at the Registry of Deeds (such date, the "Closing
Deadline"); provided, however, that if DHCD reasonably determines additional time is
necessary to effect the closing, due to delays of the Grantor in providing DHCD with the
due diligence material described below or any other failure by the Grantor fully to
cooperate with preparations for the sale, the Closing Deadline may be extended to a date
reasonably determined by DHCD as necessary to redress the delays caused by the
Grantor, which shall be specified in a written notice from DHCD setting forth the reasons
for such extension, delivered to the Grantor and recorded with the Registry of Deeds, by
or before the date originally scheduled for the closing. The parties may also mutually
agree to extend the Closing Deadline, by written Instrument; provided, however, that In
such event, the parties shall execute an instrument reflecting such extension, which shall
be recorded with the Registry of Deeds by or before the date originally scheduled for the
closing.
H. Concurrently with the delivery of the Offer Notice, the Grantor shall provide DHCD with a
copy of, or otherwise make available for DHCD's review at a mutually convenient time and
location, all material relating to the Property (or the part thereof that is the subject of the
Offer) and/or the proposed sale, transfer, or other disposition thereof that has been made
available to the party making the Offer, and shall thereafter promptly make available to
DHCD any additional material made available to such party. Promptly upon any request
therefor by DHCD, the Grantor shall provide DHCD with a copy of, or otherwise make
available for DHCD's review at a mutually convenient time and location, any and all other
material owned by or readily available to the Grantor that an unrelated third-party buyer
would reasonably request in connection with its due diligence for an acquisition of such
Property, including, by way of example but not of limitation, deeds, title insurance
policies, appraisals, studies, reports, or other materials relating to such Property and/or
any encumbrance(s) subject to which the Property is to be conveyed, or otherwise
reasonably necessary or appropriate for DHCD to review in connection with its exercise of
the First Refusal Right.
I. The transfer to DHCD pursuant to the First Refusal Right shall be subject to such other
requirements as may be more fully described in the HIF Regulations or HSF Regulations
consistent with the HIF Statute and HSF Statute. Adjustments in the purchase price for
recording fees, deed excise stamp taxes and other charges shall be made, and any other
issues associated with the transfer shall be resolved, in accordance with standard
conveyancing practice in The Commonwealth of Massachusetts. If either party so desires,
the parties shall enter into a purchase and sale agreement memorializing the terms of the
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AFFOBOABIE HOUSING HESTBICT10N
sale, consistent with the terms hereof and of the HIF Statute and HSF Statute; provided,
however, that the First Refusal Right shall be binding regardless of whether the parties
execute a purchase and sale agreement. Notwithstanding any other provision hereof to
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the contrary, if, after delivering notice of its intention t o exercise the First Refusal g ht,
DHCD determines, in its sole discretion, that It is not In the best Interests of DHCD to
effect the purchase, DHCD may terminate the First Refusal Right at any time, upon written
notice delivered to the Grantor and recorded with the Registry of Deeds; provided,
however, that such termination right shall apply to DHCD only, and not to any assignee.
If DHCD exercises such termination right or if either DHCD or its assignee (other than the
Sponsor) fails to perform hereunder on or before the Closing Deadline through no fault of
the Grantor, then the First Refusal Right shall lapse and be of no further force or effect.
J. Concurrently with its acquisition of the Property, DHCD shall cause to be recorded with the
Registry of Deeds an affordable housing restriction, in compliance with the HIF Statute,
HSF Statute and any other applicable statutory requirements for the same (and, in the
case of an assignee, in form acceptable to DHCD, in its discretion), which shall require
that such Property shall be used only for the purposes of preserving or providing
affordable housing thereon, which housing shall remain affordable for a period of not less
than fifty (50) years.
10. Term of Restrictions; Covenants to Run with Land. The term of this Restriction shall be
perpetual. The "Option Term" shall be the period from the fifty-first anniversary of the date hereof
through the Option Exercise Deadline (as defined in Section 8 above) plus any additional period
necessary for the consummation of a purchase of the Property under either the Purchase Option
or the First Refusal Right described above, If applicable. Notwithstanding any provision to the
contrary herein or in any of the other Loan Documents, this Restriction shall remain in full force
for the full term set forth herein including any extension, notwithstanding any prepayment of the
Loan. The restrictions contained herein shall run with the land, shall bind the successors and
assigns of the Grantor, and shall inure to the benefit of the Holders and their successors and
assigns as permitted herein. Notwithstanding the foregoing, at the end of the term of affordability
for a particular program, as set forth on Exhibit C, as it may have been extended, provided that
all obligations under the loan provided by such Program have been satisfied in full at that time, as
determined by the appropriate Holder, the Grantor may request that the Holders modify this
Restriction to eliminate the requirements imposed by or otherwise relating to such Program set
forth in this Restriction. The parties shall cooperate to prepare an appropriate amendment to this
Restriction, which amendment shall be duly recorded with the Registry of Deeds by the Grantor at
its cost and expense. Upon satisfaction in full of all of the obligations under any of the loans of
the Participating Lenders, the City Lender shall assume all rights, interests, and responsibilities of
the Holders of this Restriction.
11. Subsequent Conveyances. Each and every contract, deed or other instrument hereafter
executed conveying the Property or portion thereof shall expressly provide that such conveyance
Is subject to this Restriction, provided, however, that the covenants contained herein shall survive
and be effective regardless of whether such contract, deed or other instrument hereafter executed
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conveying the Property or portion thereof provides that such conveyance is subject to this
Restriction.
12. Income Verification. The Grantor represents, warrants and covenants that the
determination of whether a Family occupying a Restricted Unit meets the income requirements set
forth herein shall be made by the Grantor at the time of leasing of a Restricted Unit and thereafter
at least annually on the basis of the current income of such Family. In initially verifying a
Family's income, the Grantor shall examine the source documents evidencing annual income (e.g.,
wage statements, interest statements, unemployment compensation statements) for the Family.
13. Reporting Requirements.
A. DHCD Web-Based Report. Annually, no later than September 30, Grantor shall submit to
DHCD, via the web-based annual reporting system located at
https://hedhsgdevannualreport.azurewebsites.net, or as otherwise Instructed, an annual
report consisting of all data required by DHCD regulations at 760 CMR 61.00 promulgated
pursuant to Chapter 334 of the Acts of 2006 and all applicable DHCD directives, guidelines
and forms as may be amended from time to time. The Grantor shall collect said data for
the express purpose of reporting to DHCD, and the collection and reporting of said data
shall comply with said regulations, directives, guidelines and forms.
S. Annual Report. Annually, no later than September 30, Grantor shall submit to each Holder
an annual report consisting of the following:
(1) Annual adjusted Income of each Family occupying a Restricted Unit.
(II) Monthly gross rents (rents plus utility allowances, if applicable) for all Restricted Units,
such rents to be consistent with the schedule of maximum rents published annually by
DHCD. The rent schedule shall include the maximum rents applicable to Restricted
Units under Section 3 as well as the actual rents to be charged to over-income
Families under Section 3.
(iii)The Grantor's certification, made to the best knowledge and belief of the officer or
individual signing such certification, that:
(a) The Property continues to be used for the Permitted Uses.
(b) The Property continues to contain the required number of Low Income Units and
Extremely Low Income Units and to comply with the rent and other restrictions
applicable to such Restricted Units.
(c) Grantor has not transferred, pledged or encumbered any interest in the Property,
except as specifically provided in, and in accordance and compliance with the
terms of, this Restriction.
(d) Grantor has caused the Property to be maintained in a manner consistent with the
Statute, Regulations and Guidelines and no children under six years old reside in or
occupy the Property within the meaning of the Lead Paint Law or, if such children
do reside in or occupy the Property, that the Property is in compliance with the
Lead Paint Law.
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(e) The information submitted pursuant to this Paragraph B is true and accurate.
C. Confidentiality. The Holders and the Grantor shall treat as confidential any of the
foregoing Information relating to a specific Resident or Unit in compliance with all
applicable state and federal statutes and regulations, including M.G.L. c. 66A, and shall
implement adequate systems and procedures for maintaining the confidentiality of such
information (but the Holders and the Grantor may release general statistical and other
information about the Property, so long as the privacy rights and interests of the individual
Residents are protected). The Holders and the Grantor shall not use any of the foregoing
information in Paragraph A.(iii) for any purpose described in Section 603(d)(1) of the
federal Fair Credit Reporting Act (15 U.S.C. § 1681a(d)(1)) or in any manner that would
cause a Holder or Grantor to be considered a "consumer reporting agency" under Section
603(f) of the federal Fair Credit Reporting Act (15 U.S.C. § 168la(f)).
D. Additional Reports. Grantor shall prepare and submit to the Holders such additional
reports as any Holder may deem necessary to ensure compliance with the requirements of
this Restriction and of the Programs.
E. Records. The Grantor shall maintain as part of its records (i) copies of all leases of
Restricted Units; (if) all Initial and annual income certifications by Residents of Restricted
Units and (III) such additional records as any Holder may deem necessary to ensure
compliance with the requirements of this Restriction and of the Programs.
F. Additional Reporting Requirements. Additional reporting requirements are stipulated in
the Loan Agreement.
14. No Demolition. The Grantor shall not demolish any part of the Improvements or
substantially subtract from any real or personal property included within the Property except in
conjunction with renovation or rehabilitation of the Units or construction of a new project on the
Property, in either case subject to the prior written consent of all Holders, which consent may be
granted or withheld in a Holder's sole judgment.
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15. Casualty. The Grantor represents, warrants and agrees that if the Property, or any part
thereof, shall be damaged or destroyed, the Grantor (subject to the approval of the lender(s)
providing financing) will use its best efforts to repair and restore the Units to substantially the
same condition as existed prior to the event causing such damage or destruction, and the Grantor
represents, warrants and agrees that the Units shall thereafter continue to operate in accordance
with the terms of this Restriction.
16. Inspection. The Grantor hereby grants to each Holder and its duly authorized
representatives the right to enter the Property (a) at reasonable times and in a reasonable
manner for the purpose of inspecting the Property to determine compliance with this Restriction or
any other agreement between the Grantor and such Holder and (b) after thirty (30) days' prior
written notice, to take any reasonable and appropriate action under the circumstances to cure any
violation of the provisions of this Restriction. The notice referred to in clause (b) shall include a
clear description of the course and approximate cost of the proposed cure.
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17. Enforcement. Upon violation by the Grantor of any of the provisions of this Restriction
that remains uncured for more than thirty (30) days after notice thereof from any Holder (or for
such longer period not to exceed thirty (30) days as shall be reasonably required under the
circumstances to cure such violation, provided that the Grantor has commenced the cure of such
violation within the Initial thirty (30) day period and is thereafter diligently pursuing the cure to
completion), any Holder, at its option (without liability to any party for failure to do so), may
apply to any court, state or federal, for specific performance of this Restriction or an injunction
against any violation of this Restriction, or for such other relief as may be appropriate, since the
injury arising from the default under any of the terms of this Restriction would be irreparable and
the amount of damage would be difficult to ascertain and may not be compensable by money
alone. In each such default notice, the Holder giving such notice shall specify the violation in
question and the actions such Holder believes are necessary and feasible to remedy such
violation. No waiver by a Holder of any breach of this Restriction shall be deemed a waiver of
such breach by any other Holder or a waiver of any other or subsequent breach. No act or
omission by any Holder, other than a writing signed by It waiving a breach by the Grantor in
accordance with the next Section hereof, shall constitute a waiver thereof. Any Holder shall be
entitled to recover from the Grantor all of such Holder's reasonable costs of an action for
enforcement of this Restriction, including reasonable attorneys'fees (including the time of any in-
house counsel of a Holder charged at the same rate as comparable outside attorneys). By its
acceptance of this Restriction, no Holder undertakes any liability or obligation relating to the
condition of the Property. Without limiting any other rights or remedies available to a Holder, any
transfer of all or any other portion of the Property in violation of the provisions hereof, in the
absence of a certification from all Holders approving, or waiving any restrictions with respect to,
the same, all as set forth above, shall, to the maximum extent permitted by law, be voidable by
any Holder, by suit in equity to enforce the restrictions hereof.
'18. Compliance Certification. Upon written request therefor, a Holder shall provide a
statement in form acceptable for recording certifying that the Grantor is in full compliance with
the provisions hereof as relate to that Holder, provided such Holder believes that the Grantor is so
in compliance. Upon receipt of a written request therefor, If a Holder shall believe that the
Grantor is not so in compliance, such Holder shall provide such a recordable certification
specifying In detail the section or sections hereof with which such Holder believes the Grantor not
to be In compliance. Any third party dealing with the Grantor may rely for all purposes on the
truth and completeness of such a certification of a Holder.
19. Senior Lender Foreclosure.
A. Notwithstanding anything herein to the contrary, but subject to the provisions of this
Section, if the holder of record of a first mortgage granted to a state or national bank,
state or federal savings and loan association, cooperative bank, mortgage company, trust
company, insurance company or other institutional or governmental lender shall acquire
the Property by reason of foreclosure or similar remedial action under the provisions of
such mortgage or upon conveyance of the Property in lieu of foreclosure, and provided
that the holder of such mortgage has given the Holders not less than sixty (60) days' prior
written notice of its intention to foreclose upon its mortgage or to accept a conveyance of
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the Property in lieu of foreclosure to attempt to structure a workout or other arrangement
to avoid such foreclosure, conveyance in lieu of foreclosure, or similar remedial action,
then except as provided below, the rights and restrictions herein contained shall not apply
to such mortgage holder upon such acquisition of the Property or to any purchaser of the
Property from such mortgage holder, and such Property shall, subject to Paragraph B.
below, thereafter be free from all such rights and restrictions. Notwithstanding the
foregoing, the rights and restrictions contained herein shall terminate only to the extent it
is financially infeasible to maintain the level of affordability required by this Restriction or
some lesser level of affordability (i.e., fewer Restricted Units or Restricted Units affordable
to Families with higher Household Incomes than those required by this Restriction).
"Financially infeasible" shall mean (i) with respect to the operation of the Property, that
the rent and other income from the Property is, or is reasonably projected to be, less than
the reasonable expenses required (or reasonably projected to be required) to maintain and
operate the Property and (I!) with respect to a sale of the Property, that the restrictions
would prevent (or be reasonably projected to prevent) the senior mortgage holder from
recovering all amounts due and owing with respect to its financing of the Property,
including without limitation, principal, Interest, charges, costs, expenses, late fees and
prepayment premiums. Financial infeasibility shall be determined by the senior mortgage
holder In its sole discretion after consultation with the Holders. The senior mortgage
holder shall notify the Holders of the extent to which the rights and restrictions contained
herein shall be terminated and the Grantor agrees to execute any documents required to
modify this Restriction to conform to the senior mortgage holder's determination. The
Grantor hereby irrevocably appoints any senior mortgage holder and each of the Holders,
its true and lawful attorney-in-fact, with full power of substitution, to execute,
acknowledge and deliver any such documents on behalf of the Grantor should the Grantor
fail or refuse to do so.
B. The rights and restrictions contained herein shall not lapse if the Property is acquired
through foreclosure or deed in lieu of foreclosure by (i) the Grantor, (ii) any person with a
direct or indirect financial Interest In the Grantor, (III) any person related to a person
described in clause (ii) by blood, adoption or marriage, (iv) any person who is or at any
time was a business associate of a person described in clause (11), and (v) any entity In
which any of the foregoing have a direct or indirect financial interest (each a "Related
Party"). Furthermore, if the Property is subsequently acquired by a Related Party during
the period in which this Restriction would have remained in effect but for the provisions of
this Section, this Restriction shall be revived and shall apply to the Property as though it
had never lapsed.
C. in the event such mortgage holder conducts a foreclosure or other proceeding enforcing
Its rights under such mortgage and the Property is sold for a price in excess of the sum of
the outstanding principal balances of all notes secured by mortgages of the Property plus
all future advances, accrued interest and all reasonable costs and expenses which the
holders thereof are entitled to recover pursuant to the terms of such mortgages, such
excess shall be paid to the Holders in consideration of the loss of the value and benefit of
the rights and restrictions herein contained and released by the Holders pursuant to this
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Section In connection with such proceeding, provided that in the event that such excess
shall be so paid to the Holders by such mortgage holder, the Holders shall thereafter
Indemnify such mortgage holder against'loss or damage to such mortgage holder resulting
from any claim made by the mortgagor of such mortgage to the extent that such claim is
based upon payment of such excess by such mortgage holder to the Holders in accordance
herewith, provided that such mortgage holder shall give the prompt notice of any such
claim and shall not object to intervention by the Holders in any proceeding relating
thereto. The Holders shall share any such excess pro rata In proportion to the respective
amounts of principal and interest (if any) then outstanding on their portions of the Loan
and the liability of a Holder under the foregoing indemnity shall be limited to the amount
of such excess received by it. To the extent the Grantor possesses any interest in any
amount which would otherwise be payable to the Holders under this Paragraph, to the full
extent permissible by law, the Grantor hereby assigns Its interest in such amount to said
mortgage holder for payment to the Holders.
20. Notices. Any notice, request or other communication which any party hereto may be
required or may desire to give hereunder shall be made in writing, and shall be deemed to have
been properly given if hand delivered, if sent by recognized national overnight courier, receipt
confirmed, or if mailed by United States registered or certified mail, postage prepaid, return
receipt requested, addressed, in the case of the Grantor, to the Grantor's address set forth above
and, in the case of one or more Holders, to the address(es) of such Holder(s) as set forth above.
Any party may change its notice address by furnishing in writing to all other parties hereto a
notice of such new notice address. A notice sent by certified or registered mall shall be deemed
given three days after mailing; a notice sent by overnight courier shall be deemed given one day
after deposit with such courier; and a notice delivered by hand shall be deemed given upon
receipt. The Holders shall use reasonable efforts to send courtesy copies of all notices sent to the
Grantor to the Grantor's investor at the address set forth below, provided that any failure to send
such a courtesy copy shall not affect the validity of any notice: Wincopin Circle LLLP, c/o
Enterprise Community Asset Management, Inc., 70 Corporate Center, 11000 Broken Land
Parkway, Suite 700, Columbia, Maryland 21044, Attn: General Counsel.
21. Successors and Assigns; No Third-Party Beneficiaries. This Restriction shall be binding
upon the Grantor and its successors and assigns, and shall burden the Property as specified
herein. This Restriction shall also be binding upon the Holders, and shall inure to the benefit of
their successors and assigns, provided that a Holder shall not voluntarily assign its rights
hereunder unless (a) such Holder believes in good faith that it is no longer reasonably capable of
performing its duties hereunder, and (b) such assignment shall be to a governmental body or an
entity of a similar character and purposes to such Holder which is reasonably capable of
performing such duties hereunder (except that DHCD's rights with respect to the Purchase Option
and First Refusal Right are assignable, as set forth herein).
22. Severability; Construction. All rights, powers and remedies provided herein may be
exercised only to the extent that exercise thereof does not violate any applicable law, and are
intended to be limited to the extent necessary so that they will not render this Restriction invalid,
unenforceable or not entitled to be recorded, registered or filed under applicable law. If any
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provision or part hereof shall be affected by such holding, the validity of other provisions of this
Restriction and of the balance of any provision held to be invalid, illegal or unenforceable, In part
only, shall in no way be affected thereby, and this Restriction shall be construed as if such invalid,
illegal, or unenforceable provision or part hereof had not been contained herein. In the event of
any actual or potential inconsistency between the terms of this Restriction and any of the Statutes
and/or the Regulations, such terms shall be interpreted, to the extent reasonably possible, so as
to reconcile any such inconsistencies. If such provisions cannot reasonably be reconciled, the
provisions of the Statutes, the Regulations and this Restriction, in the foregoing order of priority,
shall control.
23. Governing Law. This Restriction shall be governed by the laws of The Commonwealth of
Massachusetts. Inasmuch as the restrictions contained herein have been imposed upon the
Property in part to satisfy requirements of various governmental bodies referred to herein,
including, without limitation, DHCD, the restrictions contained herein are intended to be construed
as a restriction held by a governmental body with the benefit of Section 26 of Chapter 184 of the
Massachusetts General Laws as existing as of the date hereof, such that the restrictions contained
y herein shall not be limited in duration by any rule or operation of law, but rather shall run for the
full term thereof.
24. Recording. The Grantor, at its cost and expense, shall cause this Restriction and any
amendment hereto to be duly recorded with the Registry of Deeds (and if necessary or
appropriate, re-recorded), shall pay or cause to be paid all recording, filing, or other taxes, fees
and charges and shall comply with all such statutes and regulations as may be required by law in
order to establish, preserve and protect the ability of the Holders and their successors and assigns
to enforce this Restriction.
25. Further Assurances. Each Holder is authorized to record or file any notices or
instruments appropriate to assuring the enforceability of this Restriction; and the Grantor on
behalf of itself and its successors and assigns appoints each Holder its attorney-in-fact to execute,
acknowledge and deliver any such instruments on its behalf. Without limiting the foregoing, the
Grantor and its successors and assigns agrees to execute any such Instruments upon request.
The benefits of this Restriction shall be in gross and shall be assignable by any Holder. The
Grantor and the Holders intend that the restrictions arising hereunder take effect upon the date
hereof, and to the extent enforceability by any person ever depends upon the approval of
governmental officials, such approval when given shall relate back to the date hereof regardless
of the date of actual approval or the date of filing or recording of any instrument evidencing such
approval.
26. Counterparts. This Restriction may be executed in several counterparts, each of which
when executed and delivered shall be an original, but all of which together shall constitute one
instrument. In making proof of this Restriction, it shall not be necessary to produce or account
for more than one such counterpart executed by the party against whom enforcement of this
Restriction is sought.
I
M assD�t.
APFOSBABLE 11OO6III6 HESi111O711111
27. Incorporation of ESchibits and Riders. Any and all exhibits and riders attached hereto or
otherwise referenced herein are hereby incorporated by reference, the same as if each were fully
set forth herein.
28. Amendment; Waiver. This Restriction may not be amended, nor may any obligation
hereunder be waived or released, without first obtaining the written consent of all Holders.
No documentary stamps are required as this Restriction is not being purchased by the Holders.
Executed under seal as of the date set forth above.
CONGRESS STREET RESIDENCES LIMITED
PARTNERSHIP, a Massachusetts limited partnership
By: CONGRESS STREET RESIDENCES GP, LLC, a
Massachusetts limited liability company, its
general partner
By: NORTH SHORE COMMUNITY
DEVELOPMENT COALITION, INC., a
Massachusetts non-profit corporation,
its ma agin ember
By:
Name: Mickey Northcutt
Title: Chief Executive Officer
EXHIBITA Property Description
EXHIBIT B Projected Initial Rent Schedule
EXHIBIT C Initial Affordability Matrix
EXHIBIT C-1 Post-HAP Affordability Matrix
EXHIBIT D Additional Definitions
i
ILasaDocs'„l/�
AFFORDABLE NOOSING RESTRICTION
COMMONWEALTH OF MASSACHUSETTS
Suffolk Coun , SS-
On this ay of May, 2016, before me, the undersigned notary public, personally appeared
Mickey Northcutt, Chief Executive Officer of North Shore Community Housing Development
Coalition, Inc., proved to me through satisfactory evidence of Identification, which was (a current
driver's license) (a current U.S. passport) (my personal knowledge of the identity of the
principal), to be the person whose name is signed on t e preceding or attached document, and
aced d to m th t he/she s ned it voluntarily, in such capacity, for its stated purpose.
Notary Public �.L: . ._,s�
My commission expires: kli BERLY L. MARTIN-EPSTEIN
Notary Public
C06MY WEALTHCommission
lion EX
HUSETTS
My Commisslore Expires
April 30, 2021
EXHIBIT A
LEGAL DESCRIPTION
PARCEL I-32 Perkins Street:
The land together with the buildings thereon known and numbered as 32 Perkins Street, Salem, MA
bounded and described as follows:
EASTERLY by Perkins Street,forty-two(42)feet;thence running
SOUTHERLY by land now or formerly of Bouchard, ninety-five(95)feet;thence running
WESTERLY by land now or formerly of Sprague,forty-two(42)feet;thence running
NORTHERLY by land now or formerly of Duggan,ninety-five(95)feet.
PARCEL II.61 Congress Street:
The land together with the buildings thereon known and numbered as 61 Congress Street, Salem, Essex
County, Massachusetts, more particularly described as follows:
Commencing on Congress Street at the northerly comer thereof by Lynch Street;thence running
SOUTHERLY by Congress Street,thirty(30)feet;thence running
EASTERLY by land formerly of Pickering and Hayes, now or formerly of Chaput and barley,ninety-five
(95)feet;thence running
NORTHERLY by land formerly of Pingree and Leavitt, now or formerly of the Naumkeag Steam Cotton
Company,thirty(30)feet;and thence running
WESTERLY by land fonnerly of White and Collins, now Lynch Street, ninety-five (95)feet to the point
of beginning.
Except so much of the above described land as may have been taken by the City of Salem for the laying
out of Lynch Street.
PARCEL III-71 Palmer Street:
The land together with the buildings thereon known and numbered as 71 Palmer Street, Salem, Essex
County, Massachusetts, as more particularly described as follows:
SOUTHERLY by Palmer Street,seventy-nine(79)feet, nine(9) inches;
WESTERLY by Perkins Street,forty(40)feet,six(6)inches;
NORTHERLY by land formerly of Myers,now or late of Jodoin,about seventy-nine(79)feet;and thence
running
EASTERLY by land formerly of Sheehan now or late of Gauthier,forty(40)feet,six(6)Inches.
PACEL IV-6 Ward Street:
A certain parcel of land together with the buildings thereon situated at 6 Ward Street in Salem, Essex
County, Massachusetts, being bounded and described as follows:
WESTERLY by Ward Street,twenty-three(23)feet and three(3)inches;thence,
SOUTHERLY by land now or formerly of J.Sullivan Pond,sixty(60)feet and three(3)inches;thence,
EASTERLY by land now or formerly of Daniel F. Fitz,twenty-three(23)feet and two(2)inches;thence,
NORTHERLY by land now or formerly of Lawrence Brown,sixty(60)feet and three(3)inches to the point
begun at.
PARCEL V-40 Ward Street:
A certain parcel of land together with the buildings thereon situated on Ward Street in Salem, Essex
County, Massachusetts, being bounded and described as follows:
NORTHERLY by Ward Street,42 feet,three inches;
EASTERLY by land now or formerly of Barry, now or late of Turlo,80 feet;
SOUTHERLY by land formerly of Hanson and Smith, now or late of Roulier and Levesque,42 feet,six
inches;
WESTERLY by land formerly of Parshley, now or late of Bartlett,80 feet.
PARCEL VI-52-56-60 Dow Street,Salem
A certain parcel of land with the buildings and improvements thereon, now known and numbered 52-56-60
Dow Street, Salem, Essex County, Massachusetts, and more particularly bounded and described as
follows:
Beginning at a point on the Southerly line of Dow Street ninety(90)feet Westerly from Congress Street,
and thence running
SOUTHERLY by land now or formerly of Naumkeag Steam Cotton Company on a line parallel with
Congress Street ninety-nine and 40/100 (99.40) feet to land now or formerly of said
Naumkeag Steam Cotton Company;thence running
WESTERLY by land now or formerly of said Naumkeag Steam Cotton Company, as the fence stands,
one hundred fifty-five and 64/100(155.64)feet to Prince Street;thence running
NORTHERLY by Prince Street ninety-nine and 49/100(99.49)feet to Dow Street;thence running
EASTERLY by Dow Street one hundred sixty-two and 10/100(162.10)feet to the point of the beginning.
Being shown on two plans entitled "Land of Naumkeag Steam Cotton Co.,Salem, Mass.,July 1941,Thom
as A.Appleton,C.E."both recorded in Essex South District Registry of Deeds,Book 3263, Page 287.
PARCEL VII:
105-109 Congress Street,Salem MA
NORTHERLY by Palmer Street, eighty-nine(89)feet;
WESTERLY by Congress Street,ninety-nine(99)feet;
SOUTHERLY by Lot 85 on Plan recorded with Essex South District Registry of Deeds. Book 842, Page
300,twenty-eight(28)feet;and by Lot No.84 on said plan,fifty(50)feet;
EASTERLY by Lot No.87 on said plan, ninety-four(94)feet.
111 Congress Street, Salem, AAA
WESTERLY by a way now Congress Street,forty(40)feet;
NORTHERLY by land formerly of Pickering and of Murphy and of Cote,et al., seventy-eight and one-half
(78.5)feet;
EASTERLY by land formerly of Riley;thirty-nine and three-fourths (39.75)feet;and
SOUTHERLY by land formerly of Pickering and Chouinard,seventy(70)feet.
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AFFORDABLE HOUSING BESMOTION
EXHIBIT D: ADDITIONAL DEFINITIONS
Following are additional definitions used in this Affordable Housing Restriction:
"AHT Guidelines" shall mean the guidelines issued by DHCD regarding the AHT Program, as the
same may be amended, supplemented, replaced or otherwise modified from time to time.
"AHT Proaram" shall mean the Affordable Housing Trust Fund loan program established under the
AHT Statute under which AHT makes loans available to sponsors of affordable housing for Low
Income and Extremely Low Income Families.
"AHT Statute" shall mean the Massachusetts Affordable Trust Fund Statute, M.G.L. c.121D.
"Alternative Form of Ho in " shall mean housing that involves an unusual or specialized level of
management or social services, an innovative financing or ownership structure or other innovative
features, including, without limitation, any of the various types of housing defined and described
in 760 CMR 23.02 of the HIF Regulations (as defined below) or as otherwise described in the HIF
Statute.
"Area" shall mean Boston-Cambridge-Quincy, MA-NH HMFA.
"Bedroom Adjusted AMI" applicable to a Unit shall mean the median income for the Area, with
adjustments for the number of bedrooms in such Unit, as determined from time to time by HUD
pursuant to Section 8 of the United States Housing Act of 1937, as amended. For purposes of
adjustments for the number of bedrooms in a Unit, a Unit that does not have a separate bedroom
is assumed to be occupied by one individual and a Unit with one or more separate bedrooms is
deemed assumed to be occupied by 1.5 individuals for each bedroom (with the total number of
Individuals rounded up).
"Extremely Low Income Family" shall mean a Family whose Household Income is less than or
equal to thirty percent (30%) of the Family-size Adjusted AMI.
"Fair Market Rent" shall mean the fair market rent in the Area for a comparably-sized dwelling as
established by HUD under regulations promulgated at 24 C.F.R. §888.11 (or successor
regulations), minus a monthly allowance established by the Holders for any utilities and services
(excluding telephone) to be paid by the occupying Family.
"Family" shall have the meaning set forth in 24 C.F.R. §5.403 (or any successor regulation).
Notwithstanding the foregoing, a household comprised of a full-time student or students shall not
qualify as a Family except as permitted under the federal low-income housing tax credit program
pursuant to Section 42(i)(3)(D) of the Internal Revenue Code of 1986, as amended.
"Family-size Adjusted AMI" shall mean the median income for the Area, adjusted for family size,
as determined from time to time by HUD pursuant to Section 8 of the United States Housing Act
of 1937, as amended.
"Grantor" shall mean the Grantor named on the first page hereof or any successor or assign
thereof permitted under Section 8 of this Restriction, including any party holding ownership
interests in or with respect to the Property.
i
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AFFORDABLE HOUSING RESTRICTION
"Guidelines" shall mean the HOME Guidelines, the AHT Guidelines, the HIF Guidelines and the HSF
Guidelines.
"HIF Guidelines" shall mean the guidelines issued by DHCD regarding the HIF Program, as the
same may be amended, supplemented, replaced or otherwise modified from time to time.
"HIF Program" shall mean the phase of the Housing Innovations Fund loan program established
under the HIF Statute for the purpose of facilitating the creation and retention of alternative
forms of housing, under which DHCD contracts to make funds available through CEDAC and other
financial intermediaries, for such financial intermediaries to loan to sponsors of Alternative Forms
of Housing for Low Income Families, subject to and In accordance with the provisions of the HIF
Statute.
"HIF Regulations" shall mean the regulations relating to the HIF Program promulgated by DHCD at
760 Code of Massachusetts Regulations, Section 23.00 et seq., as the same may be amended,
supplemented, replaced or otherwise modified from time to time.
"HIF Statute" shall mean the Massachusetts Housing Innovations Trust Fund Statute, M.G.L. c.
121E, as affected by Chapter 129 of the Acts of 2013 (budget line item 7004-0046), as the same
may be amended, supplemented, replaced or otherwise modified from time to time.
ki-ilgh Moderate Income Family" shall mean a Family whose Household Income is less than or
equal to one-hundred-ten percent (110%) of the Family-size Adjusted AMI.
"Holder" shall mean each of DHCD, AHT, the City, and HSITF, or, as applicable, each successor or
assign of the foregoing and "Holders" shall mean all of the foregoing parties, collectively.
"HOME Guidelines" shall mean the guidelines issued by DHCD regarding the HOME Program, as
the same may be amended, supplemented, replaced or otherwise modified from time to time.
"HOME Proaram" shall mean the federal HOME Investment Partnerships Program under which
DHCD and the City make loans available to sponsors of certain types of affordable housing.
"HOME Regulations" shall mean 24 C.F.R. Part 92.
"Household Income" shall mean a Family's adjusted annual income determined in the manner set
forth in 24 C.F.R. §5.609 (or any successor regulations).
"HSF Guidelines" shall mean the guidelines issued by DHCD regarding the HSF Program, as the
same may be amended, supplemented, replaced, or otherwise modified from time to time.
"HSF_Program" shall mean Housing Stabilization Fund loan program, established for the purpose
of facilitating the creation and preservation of affordable housing, under which DHCD contracts to
make funds available through MHP and other financial intermediaries, for such financial
intermediaries to loan to sponsors of affordable housing for Low Income and Extremely Low
Income Families, subject to and in accordance with the provisions of the HSF Statute.
"HSF Regulations" shall mean the regulations relating to the HSF Program promulgated by DHCD
at 760 Code of Massachusetts Regulations, Section 24.00 et. seq., as the same may be amended,
supplemented, replaced or otherwise modified from time to time.
i
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MassDaas...l�' '
AFFOROAI3LE RO0918C REST910O111 i
"HSF Statute" shall mean the Massachusetts Housing Stabilization and Investment Trust Fund
Statute, M.G.L. c. 121F, as affected by and by Chapter 129 of the Acts of 2013 (budget line item
7004-0043), as the same may be amended, supplemented, replaced or otherwise modified from
time to time.
"HUD" shall mean the United States Department of Housing and Urban Development.
"Improvements" shall mean the building or buildings on the Property presently containing, or after
completion of the planned construction to contain, the number of Units indicated on the first page
hereof, and all other authorized buildings, structures and improvements located on the Property
from time to time, all equipment and fixtures therein, and any authorized repair, improvement,
reconstruction, restoration, renovation, or replacement of a capital nature thereto or otherwise on
the Property.
"Loan" shall mean collectively, the loans for the Project being provided to the Grantor under the
Programs.
"Low Income Family" shall mean a Family whose Household Income is less than or equal to sixty
percent (60%) of the Family-size Adjusted AMI.
"Moderate Income Family" shall mean a Family whose Household Income is less than or equal to
eighty percent (80%) of the Family-size Adjusted AMI.
"Over-income Rent" shall mean, for a particular over-Income Family, a monthly rent equal to the
lesser of (x) the maximum amount payable by the Family under the laws of the municipality in
which the Property is located or of The Commonwealth of Massachusetts, (y) one-twelfth of thirty
percent (30%) of the Family's Household Income as recertified annually or (z) the comparable
market rent for the Family's Unit, but In no event lower than the rent such Family was paying
prior to becoming an over-income Family.
"Permitted Encumbrances" shall mean those encumbrances on the Property identified In the
mortgage granted to the Holders of even or near date herewith.
"Permitted Uses" shall mean use of the Improvements for the number of rental Units indicated on
the first page hereof comprising an Alternative Form of Housing, consistent with the HIF Statute,
HIF Regulations and HIF Guidelines, Including the number of Restricted Units indicated on the first
i page hereof. Such Permitted Uses shall include activities and/or services of a nature to benefit
the Residents of the Restricted Units and/or to benefit the use of the Improvements as an
Alternative Form of Housing.
"Programs" shall mean the HOME Program, the AHT Program, the HIF Program and the HSF
Program.
"Property" shall mean that certain parcel or parcels of land located at the Property Address
indicated on the first page hereof and more particularly described in Exhibit A attached hereto,
together with all Improvements thereon.
"Registry of Deeds" shall mean the Essex South Registry of Deeds.
"Regulations" shall mean the HOME Regulations, the HIF Regulations and the HSF Regulations.
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F1ass
AFFORDABLE HOUSING RESTO19TION
i
"Residents" shall mean the lawful occupants of the Units.
"Restricted Unit" shall mean a Unit required by the terms hereof to be rented to a Low Income
Family or an Extremely Low Income Family.
"Sponsor" shall mean North Shore Community Development Coalition, Inc.
"SRO Unit" shall mean a single-room (zero bedroom) Unit intended for occupancy by a single
eligible Resident and that may contain partial food preparation and/or sanitary facilities.
"Statutes" shall mean the AHT Statute, the HIF Statute and the HSF Statute.
"Studio Unit" shall mean a single-room (zero bedroom) Unit that contains a complete kitchen and
bathroom.
"Unit" shall mean any residential unit located on the Property.
"Very Low Income Family" shall mean a Family whose Household Income is less than or equal to
fifty percent (509%) of the Family-size Adjusted AMI.
'Very Low Income Unit"shall mean a unit intended for occupancy by a Very Low Income Family.
i
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If�lf 11�1111�11�Ilill�lll Ill[
SQ.ESSEX #182 607656 Pg;46
07/11/2019 11:20 AMD P9 1113
[1�
—�— AMENDMENT TO AFFORDABLE HOUSING RESTRICTION
h
This Amendment to Affordable Housing Restriction(this"Amendment")is made
as of the 28th day of June,2019 by and between(i)Congress Street Residences Limited
Partnership,a Massachusetts limited partnership with a mailing address at c/o North
Shore CDC, 96 Lafayette Street, Salem,Massachusetts 01970(the"Grantor'),(ii)The
6T Commonwealth of Massachusetts acting by and through the Department of Housing and
4. Community Development having a mailing address of 100 Cambridge Street, Suite 300,
Boston,Massachusetts 02114-2524("DHCD");The Commonwealth of Massachusetts,
acting by and through the Department of Housing and Community Development under
°'- the Affordable Housing Trust Fund Statute,M.G.L. c. 121D,by the Massachusetts
c Housing Finance Agency("MHFA"), as Administrator,having an address at One Beacon
Street,Boston,Massachusetts 02108 ("AHT");Community Economic Development
` Assistance Corporation, a body politic and corporate,duly organized and existing in
accordance with Chapter 40H of the Massachusetts General Laws("HIF");North Shore
HOME Consortium,acting by and through the City of Salem,Massachusetts,having an
address at 120 Washington Street,3rd Floor, Salem,Massachusetts 01970(the"City");
_ and the City of Salem,under both a Community Development Block Grant loan to
Congress&Dow LLC and a grant by and through the Community Preservation
Committee and its City Council to Congress&Dow LLC(the"City Lender"). Each of
DHCD,HIF,AHT,the City Lender and the City is referred to herein as a"Holder"and
collectively as the"Holders".
h BACKGROUND
r
C
A. Grantor granted an Affordable Housing Restriction for the benefit of
Holders dated as of June 10,2016,which Affordable Housing Restriction was recorded
with the Essex South Registry of Deeds(the"Re i ")in Book 34994,Page 457 (the
F^ "Restriction").
B. Massachusetts Housing Partnership Fund Board was formerly a holder of
the Restriction,but assigned its rights under the Restriction to DHCD pursuant to an
I
004-0611 Congress Street-AHR Amendment v3
Assignment of Security Documents dated as of June 4,2018 and recorded with the
Registry in Book 36809,Page 181.
C. Grantor and Holders have agreed to revise the description of the Property
in the Restriction to reflect additional units reserved for tenants with sensory impairment,
and to reflect certain changes to the mix of affordable units described in the Restriction.
AGREEMENTS
FOR VALUABLE CONSIDERATION,the receipt and sufficiency of which are
hereby acknowledged,the parties hereto agree as follows:
1. In order to change the units required for tenants with sensory impairment,
Section 2 of the Restriction is hereby amended by deleting such section its entirety and
substituting the following new Section 2 in its place.
442. Use Restrictions. The Property shall be reserved and used for the
Permitted Uses and for no other purpose. The Restricted Units shall include at least 1
Studio Unit, 1 one-bedroom Unit, 20 two-bedroom Units, 39 three-bedroom Units and
3 four-bedroom Units. Eleven of the Restricted Units shall be deemed to be assisted
under the HOME Program ("HOME Assisted Units') provided that certain of the _
provisions of the HOME Program may cease to be effective 15 years after the completion
of the Project(the"HOME Term")as more fully set forth in Section 5.2 of the Loan
Agreement between Grantor as Borrower and The Commonwealth of Massachusetts
acting by and through the Department of Housing and Community Development for itself
and as agent for certain other lenders. Such HOME Assisted Units may also constitute
Restricted Units with respect to other programs hereunder. As of the date hereof, the
Property has or is expected to have the benefit of a contract for 8 project-based
vouchers under the Massachusetts Rental Voucher Program (the"MRVP Contract")
and 8 project-based Section 8 vouchers (the "Section 8 Contract"). If during the
HOME Term both the MRVP Contract and the Section 8 Contract are not renewed at
the end of their respective terms or are terminated or otherwise are no longer in full
force and effect,the number of HOME Assisted Units required to be Very Low
Income Units(as set forth on Exhibit C) shall be reduced to 3 Units of the types
shown on Exhibit C-1 and the number of HOME Assisted Units required to be Low
Income Units(as set forth on Exhibit C) shall be increased to 8 Units of the types
shown on Exhibit C-1. In such event,references in this Restriction to Exhibit C shall
thereafter be deemed to refer to Exhibit C-1.Furthermore, if during the Term the
MR VP Contract or the Section 8 Contract is not renewed at the end of its term or is
terminated or otherwise is no longer in full force and effect, the Holders will consider
a request by the Grantor to modify the mix of Restricted Units by converting
Extremely Low Income Units to Very Low Income Units or Low Income Units. A
decision by the Holders on such a request shall take into consideration the financial
viability of the Property and shall be made in the sole reasonable discretion of the
Participating Lenders who have required such Extremely Low Income Units, as
004-0611 Congress Street-AHRAmendmentO 2
shown on Exhibit C. The Property also shall include at'least four(4) Units accessible
to individuals with mobility impairments and at least two (2) additional Units
accessible to individuals with sensory impairments. Each Unit shall contain complete
facilities for living, sleeping, eating, cooking and sanitation that are to be used on
other than a transient basis. Each Unit shall meet the housing quality standards set
forth in the regulations of HUD at 24 C.F.R. §982.401 or any successor thereto, the
accessibility requirements at 24 C.F.R. Part 8 or any successor thereto (which
implement Section 504 of the Rehabilitation Act of 1973) and, if applicable, the
design and construction requirements of 24 C.F.R. §100.205 or any successor thereto
(which implement the Fair Housing Act). The Restricted Units shall be of
comparable quality to the other Units at the Property. The Restricted Units shall be
dispersed evenly throughout the buildings comprising the Improvements. Throughout
the term hereof,the Grantor shall maintain the Property and the Improvements in
good, safe and habitable condition in all respects and in full compliance with all
applicable laws by-laws,rules and regulations of an governmental or quasi-
governmental) Y � � Y g ( q
governmental)body with jurisdiction over matters concerning the condition of the
Property."
2. The Restriction is hereby amended by deleting Exhibits C and C-1.
attached to the Restriction and substituting therefor Exhibits C and C-1 attached hereto.
'3. Except as explicitly modified herein,the Restriction remains unmodified
and in full force and effect,and the provisions thereof are hereby ratified and confirmed.
4. DHCD is executing this Amendment in its own right and under the
Housing Stabilization And Investment Trust Fund Statute, M.G.L. C. 121F.
5. This Amendment may be executed in any number of counterparts,each of
which shall be deemed an original,but all of which together shall constitute one and the
same instrument.
[Signature Pages to Follow]
004-0611 Congress Street-AHR Amendment 0 3
Executed as a sealed Massachusetts instrument as of the date first written above.
CONGRESS STREET RESIDENCES
LIMITED PARTNERSHIP
By:CONGRESS STREET RESIDENCES
GP, LLC, a Massachusetts limited
liability company, its general partner
By: NORTH SHORE COMMUNITY
DEVELOPMENT COALITION,
INC., a Massachusetts non-profit
corporate ,it anaging
m ber
By:
Mickey NorthcL,,ehief
Executive Officer
COMMONWEALTH OF MASSACHUSETTS
SL County,ss. 1
On this 34 day of June 2019,before me,the undersigned notary public,personally
appeared Mickey Northcutt, Chief Executive Officer of North Shore Community
Housing Development Coalition, Inc.,managing member of Congress Street Residences
GP,LLC,general partner of Congress Street Residences Limited Partnership,proved to
me through satisfactory evidence of identification,which was(a current driver's license)
(a current U.S.passport)(my personal knowledge of the identity of the principal),to be
the person whose name is signed on the preceding or attached document, and
acknowledged to me that he/she signed it voluntarily,in such capacity,for its stated
purpose and that it constitutes the voluntary act of C gr ss Street Residences Limited
Partnership.
"o ON C.P144 0 e��'
'� �� + • ary Pub ' �3CL SOA C. Tf.,�..
My commission expires.�—� a�
004-0611 Congress Stream+ rent 0 4
THE COMMONWEALTH OF
MASSACHUSETTS,acting by and through the
DEPARTMENT OF HOUSING AND
COMMUNITY DEV PMENT
By.
Name. alPl
Title: Oe/ Dl�e �
COMMONWEALTH OF MASSACHUSETTS
County of Suffolk,ss.,
On this R day o une 2019,Kore me,the undersigned notary public,
per onally appe ed .
�S�oGla. ` of the Department of Housing and
Community Development,proved to me through satisfactory evidence of identification,
which was [a current driver's license] [a current U.S.passportlLtmy personal knowledge},
to be the person whose name is signed on the preceding or attached document,and
acknowledged to me that he/she signed-it voluntarily for its stated purpose and that it
constitutes the voluntary act of the Department of Housing and Community
Development. -
Notary Public r -
My commission ex
BEATj4A BQR1N- 7.
`Notaiyr:�'ubfic -
COMMOMNEAUFI•OF MASSAMUSEM
My Comrimission ExP Cr S
March 11 2022
004-0611 Congress Street-AHR Amendment v3 5
THE COMMONWEALTH OF
MASSACHUSETTS, acting by and through the
DEPARTMENT OF HOUSING AND
COMMUNITY DEVELOPMENT under M.G.L. c.
121 D, as Lender
By: MASSACHUSETTS HOUSING FINANCE
AGENCY,as Ad . 'strator
By:
Name:
Title: C611,:,f�.Nk� Lt&
COMMONWEALTH OF MASSACHUSETTS
County of Suffolk,ss.,
On thisaei day of June 2019,before me,the underpigiied notary public,
personally appeared 1611 of the Massachusetts Housing
Finance Agency,proved to me through satisfactory evidence of identification,which was
[a current driver's license] [a current U.S.passport] [my personal knQKkdge],to be the
person whose name is signed on the preceding or attached document,and acknowledged
to me that she/he signed it voluntarily for its stated purpose and that it constitutes the
voluntary act of Massachusetts Housing Finance Agency.
Not y Public
My commission expires a7, a0c�0
EC MAUREEN A. BURKE
Notary Public
COMMONWEALTH OF MASSACHUSETTS
My Commission Expires
December 25, 2020
004-0611 Congress Street-AHR Amendment v3 6
CITY OF SALEM
By: '
Name:Kimberley L. Driscoll
Title:Mayor
COMMONWEALTH OF MASSACHUSETTS
County of Essex 'SS.'
On this_19th _day of June 2019,before me,the undersigned notary public,
personally appeared Kimberley L.Driscoll" ,
Mayor of the City of Salem,proved to me
through satisfactory evidence of identification,which was my personal knowledge,to be
the person whose name is signed on the preceding or attached document,and
acknowledged to me that he/she signed it voluntarily for its stated purpose and that it
constitutes the voluntary act of the City of Salem.
Notary Public
My commission expires:
ADA M. ROBERTS
Notary Public
COMMONWEALTH SSAC S
Ulf My Commission
MA MAion Expires
July 4, 2025
004-0611 Congress Street-AHR Amendment v3 7
COMMUNITY ECONOMIC
DEVELOPMENT ASSISTANCE
CORPORATION
B WA
Y•
Name:
Title: ger Herzog.
Executive Director
COMMONWEALTH OF MASSACHUSETTS
County of � �� ,ss.,
On this day of June 2019,before me,the undersigned notary public,
personally appeared r
Emt x,ne- +11 of Community Economic Development
Assistance Corporation,proved to me through satisfactory evidence of identification,
which was [a current driver's license] [a current U.S.passport] [my personal knowledge],
to be the person whose name is signed on the preceding or attached document,an
acknowledged to me that he/she signed it voluntarily for its stated purpose and that it
constitutes the voluntary act of Community Economic Development Assistance
Corporation.
— 6� OAX-1--
Notary Public
My commission expires: 1�a f a d S•`
sc�, ERIN ABBERTON
Notary Public
COMMONWEALTH OF MASSACHUSETTS
My Commission Expires On
September 19.2025
004.0611 Congress Street-AHR Amendmentv3 8
NORTH SHORE HOME CONSORTIUM
acting by and through the CITY OF SALEM
By: K-" )W� -
Name:Kimberley L. Driscoll
Title: Mayor
COMMONWEALTH OF MASSACHUSETTS
County of Essex , ss.,
On this 19th day of June 2019,before me,the undersigned notary public,
personally appeared Kimberley L. Driscoll ,
Mayor of the City of Salem as agent for the North
Shore HOME Consortium,proved to me through satisfactory evidence of identification,
which was my personal knowledge,to be the person whose name is signed on the
preceding or attached document,and acknowledged to me that he/she signed it
voluntarily for its stated purpose and that it constitutes the voluntary act of the City of
Salem. -
Notary Public
My commission expires: Q-)A-;�' 14 aoa5_
Q ADA M. ROBERTS
ti Notary Public
COMMONWEALTH OF MASSACHUSMS
My commission Expires
July 4. 2025
004-0611 Congress Street-AHR Amendment 0 9
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