Preview
FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022
EXHIBIT "2"
Senior Housing Demonstration Program
Supplemental Regulatory Agreement
dated as of February 14, 2008 that was recorded
in the Office of the Putnam County Clerk as
Document No.: 1500486 in Liber 1797 of Deeds at Page 428
FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022
-LIBER 797 PAGE 428
.1111111111111111111.1111111111111111111111. 1111-
PUTN~ _COONTY DOCUMENT~ 1500486
lU:CORDING PAGE RECORDING-DEED
PAGE 1 OF :RECOB,DED DOCUMENT 02.12s/200a
RECEIPT• 3294
11•35:os
FEE= $.00
A.n.
DEHHIS J. SANT
PUTHAM COUNTY CLERK
LIBER= 1797 PAGE: 428
ION
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Oil PEUNT
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/J rules, regulations and any applicable
agreements relating to the Project executed by the Project .Recipient, including but not limited to:
(a) the Statute;
(b) Exln"bits to this Agreement; and
(c) policies and procedures of the Division.including without limitation those set
forth in the Audit and Accounting Manual, as amended from time to time (the
"Policies and Procedures of the Division").
3. Reserve Accounts
(a) Project Recipient shall establish an Operating Reserve Account and a
~eplacement Reserve Account in accordance with the Policies and Procedmes of the Division.
Withdrawals from these and other accounts may only be made with the approval of the Division,
which approval shall not be unreasonably withheld. delayed or conditioned.
(b) Project Recipient.shall annually deposit into the Replacement Reserve Account an
amoW1t equal to $13,725. Such deposits shall be made monthly in amounts equal to one-twelfth
the annual amount
( c) Project Recipient shall annually budget and deposit into the Operating Reserve
Account an amount not less than $6,999 plus any Excess Income (as defined below) remaining
after payments are made pursuant to Paragraph 4. Such deposits shall be made monthly in
amounts equal to one-twelfth the annual amount. Monthly deposits may be reduced or
suspended any month the balance of the Operating Reserve Account equals 50 percent ofthe
annually budgeted gross rent
(d) If deposits to the Operating Reserve Account or the Replacement Reserve
Account are reduced or suspended in any month, Project Recipient shall utilize such funds in
accordance with the Policies and Procedures of the Division.
(e) Borrower shall capitalize the Operating Reserve Account in an amount not less
than $65,020 no later than the date ofthis Agreement unless a later date is agreed to by the
FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022
LIBER 1797 PAGE 432
Supplemental Regulatory Agreement Page3
Division in writing.
4. Limitation of Profits and Return on Equity
The following provisions shall apply to all Projects, except homeownership Projects:
{a) Project Recipient agrees that all income received from the operation of the Project for
each fiscal year shall be used to (i) pay the operating expenses of the Project including debt
service on authorized mortgages in an annual amount not to exceed $67,200 without the prior
written approval of the Division and (ii) make all scheduled reserve account payments in
amounts required to maintain such reserve funds at the required l_evels. Any incon:ie for such
year in excess of the amounts required to make the payments described in (i) and (ii) ("Excess
Income") shall be utilized in accordance with the Polices and Procedures of the Division.
5. Eligible Occupants · _,
Project Recipient shall adhere, throughout the Tenn, to the requirements ofthe Statute
and the following requirements in selecting occupaµts for units in the Project:
(a) Project Recipient shall adhere to the marketing plan which has been approved by
the D~vision (the "Marketing Plan") and is annexed hereto as Exhibit B. The Marketing Plan
shall include the procedure for the selection of occupants who qualify as members of special
populations as may be defined by governmental agencies end the minimum number of units that
will be available for those occupants.
(b) The Project will contain twenty-five (25) dwelling units.
6. Unit Rent and Resale Restrictions.
{a) Project Recipient shall establish initial rents in accordance with the Rent Plan
attached as Exhibit C and the Affordability Plan attached as Exhibit D.
(b) Project Recipient shall submit to the Division en annual schedule of ren~ in such
form as required by·the Division, at least three months before the start of each of the Project's
fiscal years for the Division's review and approval, which approval shall not be unreasonably
withheld, delayed or conditioned.
( c) Project Recipient shall provide in each lease that the protection afforded by the
terms of this Agreement wiU terminate upon the expiration of the Term and shall specify the date
of such expiration.
,..
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LIBER 1797 PAGE 433
Supplemental Regulatory Agreement Page4
(d) Notwithstanding the above, the Project Recipient agrees that persons who are
sixty (60) years and older or subject to a disability as defined by law, who reside in rental units in
the Project at the end of the Term and who are in compliance with the terms of their lease, shall
be permitted to renew said lease for the remainder of their tenancy at rents that will be affordable
to them, except that Project Recipient may evict said persons for good cause. All leases s}).all
contain a provision that a tenant shall not be evicted except in accordance with all applicable
laws and rules. Each lease shall provide that the tenant shall not assign, sublet or otherwise
. permit the occupancy of such unit without the prior written consent of Project Recipient which
may only be granted in accordance with the Policies and Procedures of the Division.
7. Management and Operating Budget
(a) Project Recipient shall manage the Project in accordance with the management
plan approved by the Division.
(b) Proje<;t Recipient shall use its best efforts to adhere to the projected budget for
operation of the Project approved by the Division (the "Operating Budget"). Project Recipient
shall submit to the Division an updated operating budget at least three months before the start of
each of the Project's fiscal years for the Division's review and approval.
8. Assignment
Project Recipient may not assign any right granted to it under this Agreement or delegate
any obligation imposed on Project Recipient herein without the prior written consent of the
Division which consent shall not be unreasonably withheld. delayed or conditioned and any
purported assignment or delegation without the Division's prior written consent shall be void.
Project Recipient will not transfer the controlling interest of the Project Recipient without the
prior approval ofthe Di_vision which approval shall not be unreasonably withheld, delayed or
conditioned. For the purpose of this section, a transfer of more thari ten (10%) percent ownership
interest or a transfer of stock in Project Recipient, in whole or in part, by a party holding ten
(10%) percent or more of the stock of Project Recipient, or a transfer by more than one
stockholder of the Project Recipient of ten (10%) percent or more of the stock of the Project
Recipient, or any other similarly·significant change in the ownership of such stock or in the
relative distribution thereof, or with respect to the parties in control of_the Project Recipient,
whether by increased capitalization, merger with another corporation, issuance of new or
FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022
-. --
LIBER 1797 PAGE ~34
Supplemental Regulatory Agreement Page5
additional stock or by any other methods, shall be deemed a transfer of ownership with respect to
this Agreement or the Property.
9. Agreement to Run With the Land: Recording
This Agreement shall apply to the Property, the Project and any successor projects
thereto. This Agreement is intended to benefit the Division and the State of New York as set
forth in the Statute. This Agreement and all of the promises, agreements and covenants herein
contained shall be deemed real covenants and shall run with the land and expire and/or terminate
as provided in Section I, S~bsection 3 herein, and be binding upon the respective heirs,
executors, administrators, successors and assigns of Project Recipient Project Recipient.shall
record this Agreement against the Property at such time, in such manner and in such places as
may be required by the Division and by any present or future law in order to publish notice of
and to fully protect the priority of this Agreement and the interest of the Division in the Property.
Upon the expiration and/or tennination of this Agr~ent as provided in Section I, Subsection 3,
and upon the request ofthe Project Recipient, the Division shall take all steps and execute all
docwnents as shall be necessary to remove, satisfy, release, and/or terminate this Agreement of
record.
Indemnification
To the fullest extent permitted by law, the Project Recipient shall defend, indemnify and ·
hold harmless the Division and its agents and employees from and against claims, damages,
losses and expenses, including, but not limited to attorneys' fees, arising out of or resulting from
performance of this Agreement or the work to be perfonned pursuant hereto.
11. Non-Liability
Nothing in this Agreement or arising out of the development or operation of the Project
shall impose any liability or duty whatsoever on the Division, the State ofNew York or any of its
agencies or subdivisions.
12. Equal Opportunity
Projec~ Recipient agrees that it will, and will use best efforts to cause aJl its contractors
and subcontractors engaged upon the Project to comply-with the equal opportunity requirements
attached as Appendix 1 (the "Equal Opportunity Requirements").
13. Covenants of Project Recipient
FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022
LIBER 1797 PAGE 435
Supplemental Regulatory Agreement Page6
Project Recipient covenants as follows:
(a) If a lien for the performance of work or the furnishing of labor or materials is filed
. against the Property, Project Recipient shall cause it to be satisfied, discharged or bonded at the
earlier of the time of any request for disbursement or within a period of s~ty (60) days after the
date of filing of such lien The diligent prosecution for the removal, satisfaction, discharge or
bonding of such lien within said sixty (60) day period shall not constitute a breach of the
preceding sentence;
(b) Project Recipient shall comply with ell of the tenns of any mortgage, deed of
trust, security agreement, loan agreement, credit agreement or other instrument executed in favor
of any other party as those documents and agreements relate to the Property; and
(c) Project Recipient shall comply with the conflict of interest restrictions of federal
and state laws.
14. Records and Reports; Inspections
The Project Recipient shall maintain records, submit reports and cooperate with audits
rutd inspections as stated in this Agreement and the Policies and Procedures ofthe Division and
sufficient to provide the Division with any information necessary to file such reports as the
Division may reasonably require.
15. Conttacts
All contracts entered into by the Project Recipient for legal, accounting, architectural,
engineering, technical, professional, consulting or other services which are to be paid for, in
whole or in part, from the Award shall be arms-length transactions and shall, if required by the
Division, be entered into only after an appropriate evaluation by the Division of the experience
and qualification of the contracting firm or individual and submission of the contract to the
Division for approval.
16. Modification
This Agreement may not be amended, modified or rescinded unless such amendment,
modification or rescission is in writing, and signed by the Division and the Project Recipient
17. No Waiver
FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022
LIBER 1797 PAGE 436
Supplemental Regulatory Agreement Page?
No term, provision or condition of this Agreement shall be deemed waived by the
Division's actions or inaction unless the waiver is in writing, signed by the Division and
delivered to the Project Recipient.
18. Notice of Investigation or Default
(a) The Project Recipient certifies to the best of its knowledge, for the period beginning
ten years prior to the date of this Agreement, the Project Recipient has not: (i) been the subject
of any governmental agency's investigation or audit;·(ii) materially defaulted under any mortgage,
deed of trust, security agreement, loan agreement or credit instrument executed in connection
with any governmental agency's project; (iii) materially breached any agreement, credit ·
agreement, lease or other instrument executed in connection with any governmental agency's
project; (iv) been suspended, debarred or otherwise restricted by any governmental agency from
doing business with such agency; (v) been convicted
. .
of, or. been the subject of a complaint or
indictment charging a felony; or (vi) defaulted on an obligation covered by a surety or
performance bond or been the subject of a claim under an employee fidelity bond.
(b) The Project Recipient shall notify the Division within five days after obtaining
knowledge of: (i) the commencement of any investigation or audit of its activities by any
governmental agency; (ii) the alleged material default by the Project Recipient under any
mortgage, deed o~ trust, security agreement, loan agreement or credit instrument, executed in
connection with the Project; or (iii) any alleged material breach by the Project Recipient of any
agreement. credit agreement. lease or other instrument executed in connection with the Project.
The Project Recipient shall provide that, in the event of any alleged material default under any of
such instruments, the mortgagee, secured party, lender or lessor, as the case may be, shall
simultaneously send to the Division a copy of any notice of such alleged material default sent to
the Project Recipient, and shall give the Division a reasonable opportunity to cure such alleged
material default; if such mortgagee, secured party, lender or lessor fails to send such
simultaneous notice, then the Project Recipient itself shall immediately upon receipt send such
notice to the Division. For the pmposes of this paragraph, the tenn "Project Recipient" shall
include all officers, board members, general partners or other principals, uicluding any person
holding a controJiing interest in the Project Recipient.
19. Default
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'LIBER 1797 PAGE 437
Supplemental Regulatory Agreement Page8
(a) The following shall constitute Events of Default hereunder:
(i) if Project Recipient fails to comply with or perform any of the conditions
or covenants contained in this Agreement andthe Policies and Procedures of the Division;
(ii) if at any time the Division becomes aware that a representation or warranty
made by the Project Recipient with regard to i~ application or the Project is or was false or
materially misleading;
(iii)if a lien for the performance of work or the furnishing or labor or materials is
filed against the Property and remains unsatisfied, undischarged or unbonded for a period of sixty
(60) days after the date of filing of such lien. The diligent prosecution for the removalt
satisfaction, discharge, or bonding of such liens within said sixty (60) day period shall not
constitute a breach of the preceding sentence;
(iv) if the Project Recipient shall fail to comply with any of the material terms
of any mortgage, deed of trustt security agreement, loan agreement, credit agreement or other
instrument executed in favor of any other party, as those documents and agreements relate to the
Property;
(b) Upon the occurrence of an Event of Default, and same shall have contin~ed for a
period of thirty (30) days (unless a shorter cure period is provided for therein), after written
notice specifying the Event of Default and demanding that the same be remedied shall have been
given by the Division to the Project Recipient (or if the Event of Default cannot with due
diligence be cured within such thirty (30) period, the Project Recipient shall have failed to
commence to cure within such period, or having commenced, shall thereafter fail to prosecute
and complete such cure with due diligence), the Division shall have the right to pursue ~y
remedies available at law or in equity for any breach of this Agreementt including the right to
terminate this Agreement, the right to injunctive relief, the right to enforce the provisions of this
Agreement, and the right to recover damages suffered by the Division as a result of any breach of
this Agreement by the Project Recipient.
(c) · The Division shall have the right, but not the obligation, upon the happening of
any uncured Event of Default, as provided in (b), above, in addition to any other rights or
remedies available to it, to enter into possession of the Property and perfonn or cause the
performance of any and all work and labor necessary or desirable to complete the Project, protect
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NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022
LIBER 1797 PAGE 438
Supplemental Regulatory Agreement Page9
the Property and the Project or to make repairs to the Project; provided, however, that the
foregoing shall not be deemed to impose on the Division the obligation to prosecute to
completion any action taken pursuant hereto and the Division shall have no liability to the Project
Recipient ~sing out of the failure to complete any work commenced p ~ t to this Section.
All sums expended by the Division for such purposes shall be deemed to have·been paid to the
Project Recipient. F?r this purpose, Project Recipient hereby constitutes and appoints the
Division its true and lawful attorney-in-fact with full power of substitution to complete the
Project or make repairs in the name of the Project Recipient, and hereby empowers said attorney
or attorneys as follows: to employ or continue to employ such general contractor, subcontractors,
material suppliers, laborers, agents, architects and inspectors as shall be required or may be
reasonably desirable for said purposes; to pay, settle or compromise all existing bills and claims
which are or may be liens against the Property, or may be necessary or.desirable for the
completion of any work or the clearance of title; to procure such insurance as may in its judgment
be desirable; to execute all applications and certificates in the name of the Project Recipient
which .¢ay be required by any contract or subcontract; and to do any and every act with respect to
work on the Project whi«h the Project Recipient may do in its own behalf. It is understood and
agreed that this power of attorney shall be deemed to be a power coupled with a secured interest
which cannot be revoked. Said attorney-in-fact shall also have power to prosecute and defend all
actions or proceedings in connection with work performed on the Project _and to take such action
and require such performance as is deemed necessary. Project Recipient hereby conditionally
assigns and quitclaims to the Division all sums disbursed or to be disbursed hereunder and all
retained sums subject to the condition that said sums, if any, be used for work performed on the
Project and payment of related expenses as set forth herein.
(d) For the purposes of Section 19(c) above, and in connection with (i) any and all
contracts and subcontracts for the provision of labor and the furnishing of materials, fixtures and
articles in connection with the rehabilitation, construction, conversion, repairs to or maintenance
of the Project which are now in existence or which may exist at any time or times in the future,
together with any extensions or renewals thereof (collectively the ''.Contracts"), and (ii) all
licenses, approvals, authorizations, consents, certificates and permits in connection with the
rehabilitation, construction, conversion, repairs to or maintenance of and operation of the Project
FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022
LIBER 1797 PAGE 439
Supplemental Regulatory Agreement Page 10
which are now in existence or which may exist at any time or times in the future, together with
any extensions or renewals thereof(collectively, the "Licenses"), Project Recipient hereby
assigns the Contracts and Licenses to the Division, provided, however, Project Recipient shall
enjoy and perform all _of its rights and obligations under the Contracts and Licenses until the
happening of an Event of Default and such Event of Default has not-been cured within the
applicable cure period. In addition, Project Recipient shall submit to the Division a letter signed
by the contractor under a Contract to the effect that, upon receipt of notice from the Division, the
contractor will reCQgnize the Division as Project Recipient's duly appointed successor and assign
under such Contract and will perform its obligations under such Contract as if the Division were
~he party with which it had contracted.
20. Dissolution, Liquidation or Termination
In the event of dissolution, liquidation or termination of the Project Recipient (whether
voluntary, involuntary or by operation of law), this Agreement may be terminated. Such
termination shall not relieve the Project Recipient from liability to the Division pursuant to this
Agreement unless this Agreement has expired or terminated pursuant to its tenns. Whether
voluntary, involuntary or by operation oflaw , the Project Recipient shall obtain the prior
approval of the Division of its plan of dissolution and distribution of assets unless this
Agreement has expired or terminated pursuant to its tenns ..
21. Exhibits
The following exhibits and appendices are hereby incorporated into this Agreement and
the Project Recipient, to the ex.tent applicable, shall adhere to the provisions contained therein.
Schedule A Description of Property
Exhibit A Project Description
Exhibit B Marketing Plan
Exhibit C Rent Plan
Exhibit D Affordability Plan
Appendix 1 Equal Opportunity Requirements
22. Miscellaneous
{a) All notices or other communications with respect to the subject matter of this
Agreement shall be in writing and shall be deemed to have been given when sent_by certified
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NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022
LIBER 1797 PAGE 440
Supplemental Regulatory Agreement Page 11
mail, return receipt requested, to Project Recipient and to the Division at the addresses first set
out herein or at such other address of which party to receive such notice shall have notified the
party giving such notice in writing, except that notice of such change of address shall be deemed
to have been given when it is received.
(b) No action shall lie or be maintained against the State or the Division upon any
claim based upon or arising out of this Agreement or the work performed hereunder or anything
done in conn~on herewith unless such action shall be commenced within six (6) months after
the termination ofthis Agreement or one year from the accrual of the cause of action, whichever
is earlier.
(SIONATIJRE PAGE FOLLOWS)
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NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022
LIBER 1797 PAGE f41
Supplemental Regulatory Agreement Page 12
IN WITNESS WHEREOF, the parties have each duly executed this Agreement as of the
day and year first above written.
NEW YORK STATE DMSION OF HOUSING
AND C0,,...1..1.....u_.,a ..TY
Title: Assistant Commissioner of the Office of
Community Development
~C ~N
~zhDivestea
Title: President
STATE OF NEW YORK)
) ss.:
COUNTY OF ALBANY )
On February~ 2008,_before me, the undersigned, personally appeared Sean
Fi~gerald, personally known to me or proved to me on the basis of satisfactory evidence to be
the individual whose name is subscribed to the within instrument and acknowledged to me that
he executed the same in his capacity, and that by bis signature on the instrument, the individual,
or the person upon behalf of which the im;lividual ed, executed the instrumept.
~ .
DANI HUFFMIRE
Public\ ~tate of New York
STATE OF NEW YORK) No. 01 t1U5026256 ·
COUNTY OF l,N'L~
I JI.I '--l))
ss.:
aUfted In Schenectady County
lsaion Expires April 1e,26.lO
On February _rt-, 2008, before me, the und
Divestea, personally known to me or proved to on the b s of satisfactory evidence to be the
individual whose name is subscribed to the with· nt and acknowledged to me that he
executed the same in his capacity, and that by e on the instrument, the individual, or
the person upon behalf of which the individual a uted the instrument.
Preview
FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022 EXHIBIT "2" Senior Housing Demonstration Program Supplemental Regulatory Agreement dated as of February 14, 2008 that was recorded in the Office of the Putnam County Clerk as Document No.: 1500486 in Liber 1797 of Deeds at Page 428 FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022 -LIBER 797 PAGE 428 .1111111111111111111.1111111111111111111111. 1111- PUTN~ _COONTY DOCUMENT~ 1500486 lU:CORDING PAGE RECORDING-DEED PAGE 1 OF :RECOB,DED DOCUMENT 02.12s/200a RECEIPT• 3294 11•35:os FEE= $.00 A.n. DEHHIS J. SANT PUTHAM COUNTY CLERK LIBER= 1797 PAGE: 428 ION uco:im & Rl!:l'tl~To: !l'l'PE Oil PEUNT ~oF~'1b~ G!Um1'0R/MO:UGAGOR J}J\Jl$JotJ oFUow,r1fJ&fl:.~M.1.tAILPf "'P+£-Pur-rJ/Jrrt'\ uMf1wf'Jli"7 /l.f:,.Je,.w,tl... ~~ . 3g-...cw ~mrE er. . Folli.ND;tn.0/\J ih-Uw'1, tJ,Lf,I ~~o7 N€i,,J . 5 ' ~ (}, VI .S10N ',o('t.-K. 0 F H<)l.(.S1N 6,q COM /vi V.t\Jl'f"'1 /J rules, regulations and any applicable agreements relating to the Project executed by the Project .Recipient, including but not limited to: (a) the Statute; (b) Exln"bits to this Agreement; and (c) policies and procedures of the Division.including without limitation those set forth in the Audit and Accounting Manual, as amended from time to time (the "Policies and Procedures of the Division"). 3. Reserve Accounts (a) Project Recipient shall establish an Operating Reserve Account and a ~eplacement Reserve Account in accordance with the Policies and Procedmes of the Division. Withdrawals from these and other accounts may only be made with the approval of the Division, which approval shall not be unreasonably withheld. delayed or conditioned. (b) Project Recipient.shall annually deposit into the Replacement Reserve Account an amoW1t equal to $13,725. Such deposits shall be made monthly in amounts equal to one-twelfth the annual amount ( c) Project Recipient shall annually budget and deposit into the Operating Reserve Account an amount not less than $6,999 plus any Excess Income (as defined below) remaining after payments are made pursuant to Paragraph 4. Such deposits shall be made monthly in amounts equal to one-twelfth the annual amount. Monthly deposits may be reduced or suspended any month the balance of the Operating Reserve Account equals 50 percent ofthe annually budgeted gross rent (d) If deposits to the Operating Reserve Account or the Replacement Reserve Account are reduced or suspended in any month, Project Recipient shall utilize such funds in accordance with the Policies and Procedures of the Division. (e) Borrower shall capitalize the Operating Reserve Account in an amount not less than $65,020 no later than the date ofthis Agreement unless a later date is agreed to by the FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022 LIBER 1797 PAGE 432 Supplemental Regulatory Agreement Page3 Division in writing. 4. Limitation of Profits and Return on Equity The following provisions shall apply to all Projects, except homeownership Projects: {a) Project Recipient agrees that all income received from the operation of the Project for each fiscal year shall be used to (i) pay the operating expenses of the Project including debt service on authorized mortgages in an annual amount not to exceed $67,200 without the prior written approval of the Division and (ii) make all scheduled reserve account payments in amounts required to maintain such reserve funds at the required l_evels. Any incon:ie for such year in excess of the amounts required to make the payments described in (i) and (ii) ("Excess Income") shall be utilized in accordance with the Polices and Procedures of the Division. 5. Eligible Occupants · _, Project Recipient shall adhere, throughout the Tenn, to the requirements ofthe Statute and the following requirements in selecting occupaµts for units in the Project: (a) Project Recipient shall adhere to the marketing plan which has been approved by the D~vision (the "Marketing Plan") and is annexed hereto as Exhibit B. The Marketing Plan shall include the procedure for the selection of occupants who qualify as members of special populations as may be defined by governmental agencies end the minimum number of units that will be available for those occupants. (b) The Project will contain twenty-five (25) dwelling units. 6. Unit Rent and Resale Restrictions. {a) Project Recipient shall establish initial rents in accordance with the Rent Plan attached as Exhibit C and the Affordability Plan attached as Exhibit D. (b) Project Recipient shall submit to the Division en annual schedule of ren~ in such form as required by·the Division, at least three months before the start of each of the Project's fiscal years for the Division's review and approval, which approval shall not be unreasonably withheld, delayed or conditioned. ( c) Project Recipient shall provide in each lease that the protection afforded by the terms of this Agreement wiU terminate upon the expiration of the Term and shall specify the date of such expiration. ,.. FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022 LIBER 1797 PAGE 433 Supplemental Regulatory Agreement Page4 (d) Notwithstanding the above, the Project Recipient agrees that persons who are sixty (60) years and older or subject to a disability as defined by law, who reside in rental units in the Project at the end of the Term and who are in compliance with the terms of their lease, shall be permitted to renew said lease for the remainder of their tenancy at rents that will be affordable to them, except that Project Recipient may evict said persons for good cause. All leases s}).all contain a provision that a tenant shall not be evicted except in accordance with all applicable laws and rules. Each lease shall provide that the tenant shall not assign, sublet or otherwise . permit the occupancy of such unit without the prior written consent of Project Recipient which may only be granted in accordance with the Policies and Procedures of the Division. 7. Management and Operating Budget (a) Project Recipient shall manage the Project in accordance with the management plan approved by the Division. (b) Proje<;t Recipient shall use its best efforts to adhere to the projected budget for operation of the Project approved by the Division (the "Operating Budget"). Project Recipient shall submit to the Division an updated operating budget at least three months before the start of each of the Project's fiscal years for the Division's review and approval. 8. Assignment Project Recipient may not assign any right granted to it under this Agreement or delegate any obligation imposed on Project Recipient herein without the prior written consent of the Division which consent shall not be unreasonably withheld. delayed or conditioned and any purported assignment or delegation without the Division's prior written consent shall be void. Project Recipient will not transfer the controlling interest of the Project Recipient without the prior approval ofthe Di_vision which approval shall not be unreasonably withheld, delayed or conditioned. For the purpose of this section, a transfer of more thari ten (10%) percent ownership interest or a transfer of stock in Project Recipient, in whole or in part, by a party holding ten (10%) percent or more of the stock of Project Recipient, or a transfer by more than one stockholder of the Project Recipient of ten (10%) percent or more of the stock of the Project Recipient, or any other similarly·significant change in the ownership of such stock or in the relative distribution thereof, or with respect to the parties in control of_the Project Recipient, whether by increased capitalization, merger with another corporation, issuance of new or FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022 -. -- LIBER 1797 PAGE ~34 Supplemental Regulatory Agreement Page5 additional stock or by any other methods, shall be deemed a transfer of ownership with respect to this Agreement or the Property. 9. Agreement to Run With the Land: Recording This Agreement shall apply to the Property, the Project and any successor projects thereto. This Agreement is intended to benefit the Division and the State of New York as set forth in the Statute. This Agreement and all of the promises, agreements and covenants herein contained shall be deemed real covenants and shall run with the land and expire and/or terminate as provided in Section I, S~bsection 3 herein, and be binding upon the respective heirs, executors, administrators, successors and assigns of Project Recipient Project Recipient.shall record this Agreement against the Property at such time, in such manner and in such places as may be required by the Division and by any present or future law in order to publish notice of and to fully protect the priority of this Agreement and the interest of the Division in the Property. Upon the expiration and/or tennination of this Agr~ent as provided in Section I, Subsection 3, and upon the request ofthe Project Recipient, the Division shall take all steps and execute all docwnents as shall be necessary to remove, satisfy, release, and/or terminate this Agreement of record. Indemnification To the fullest extent permitted by law, the Project Recipient shall defend, indemnify and · hold harmless the Division and its agents and employees from and against claims, damages, losses and expenses, including, but not limited to attorneys' fees, arising out of or resulting from performance of this Agreement or the work to be perfonned pursuant hereto. 11. Non-Liability Nothing in this Agreement or arising out of the development or operation of the Project shall impose any liability or duty whatsoever on the Division, the State ofNew York or any of its agencies or subdivisions. 12. Equal Opportunity Projec~ Recipient agrees that it will, and will use best efforts to cause aJl its contractors and subcontractors engaged upon the Project to comply-with the equal opportunity requirements attached as Appendix 1 (the "Equal Opportunity Requirements"). 13. Covenants of Project Recipient FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022 LIBER 1797 PAGE 435 Supplemental Regulatory Agreement Page6 Project Recipient covenants as follows: (a) If a lien for the performance of work or the furnishing of labor or materials is filed . against the Property, Project Recipient shall cause it to be satisfied, discharged or bonded at the earlier of the time of any request for disbursement or within a period of s~ty (60) days after the date of filing of such lien The diligent prosecution for the removal, satisfaction, discharge or bonding of such lien within said sixty (60) day period shall not constitute a breach of the preceding sentence; (b) Project Recipient shall comply with ell of the tenns of any mortgage, deed of trust, security agreement, loan agreement, credit agreement or other instrument executed in favor of any other party as those documents and agreements relate to the Property; and (c) Project Recipient shall comply with the conflict of interest restrictions of federal and state laws. 14. Records and Reports; Inspections The Project Recipient shall maintain records, submit reports and cooperate with audits rutd inspections as stated in this Agreement and the Policies and Procedures ofthe Division and sufficient to provide the Division with any information necessary to file such reports as the Division may reasonably require. 15. Conttacts All contracts entered into by the Project Recipient for legal, accounting, architectural, engineering, technical, professional, consulting or other services which are to be paid for, in whole or in part, from the Award shall be arms-length transactions and shall, if required by the Division, be entered into only after an appropriate evaluation by the Division of the experience and qualification of the contracting firm or individual and submission of the contract to the Division for approval. 16. Modification This Agreement may not be amended, modified or rescinded unless such amendment, modification or rescission is in writing, and signed by the Division and the Project Recipient 17. No Waiver FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022 LIBER 1797 PAGE 436 Supplemental Regulatory Agreement Page? No term, provision or condition of this Agreement shall be deemed waived by the Division's actions or inaction unless the waiver is in writing, signed by the Division and delivered to the Project Recipient. 18. Notice of Investigation or Default (a) The Project Recipient certifies to the best of its knowledge, for the period beginning ten years prior to the date of this Agreement, the Project Recipient has not: (i) been the subject of any governmental agency's investigation or audit;·(ii) materially defaulted under any mortgage, deed of trust, security agreement, loan agreement or credit instrument executed in connection with any governmental agency's project; (iii) materially breached any agreement, credit · agreement, lease or other instrument executed in connection with any governmental agency's project; (iv) been suspended, debarred or otherwise restricted by any governmental agency from doing business with such agency; (v) been convicted . . of, or. been the subject of a complaint or indictment charging a felony; or (vi) defaulted on an obligation covered by a surety or performance bond or been the subject of a claim under an employee fidelity bond. (b) The Project Recipient shall notify the Division within five days after obtaining knowledge of: (i) the commencement of any investigation or audit of its activities by any governmental agency; (ii) the alleged material default by the Project Recipient under any mortgage, deed o~ trust, security agreement, loan agreement or credit instrument, executed in connection with the Project; or (iii) any alleged material breach by the Project Recipient of any agreement. credit agreement. lease or other instrument executed in connection with the Project. The Project Recipient shall provide that, in the event of any alleged material default under any of such instruments, the mortgagee, secured party, lender or lessor, as the case may be, shall simultaneously send to the Division a copy of any notice of such alleged material default sent to the Project Recipient, and shall give the Division a reasonable opportunity to cure such alleged material default; if such mortgagee, secured party, lender or lessor fails to send such simultaneous notice, then the Project Recipient itself shall immediately upon receipt send such notice to the Division. For the pmposes of this paragraph, the tenn "Project Recipient" shall include all officers, board members, general partners or other principals, uicluding any person holding a controJiing interest in the Project Recipient. 19. Default FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022 'LIBER 1797 PAGE 437 Supplemental Regulatory Agreement Page8 (a) The following shall constitute Events of Default hereunder: (i) if Project Recipient fails to comply with or perform any of the conditions or covenants contained in this Agreement andthe Policies and Procedures of the Division; (ii) if at any time the Division becomes aware that a representation or warranty made by the Project Recipient with regard to i~ application or the Project is or was false or materially misleading; (iii)if a lien for the performance of work or the furnishing or labor or materials is filed against the Property and remains unsatisfied, undischarged or unbonded for a period of sixty (60) days after the date of filing of such lien. The diligent prosecution for the removalt satisfaction, discharge, or bonding of such liens within said sixty (60) day period shall not constitute a breach of the preceding sentence; (iv) if the Project Recipient shall fail to comply with any of the material terms of any mortgage, deed of trustt security agreement, loan agreement, credit agreement or other instrument executed in favor of any other party, as those documents and agreements relate to the Property; (b) Upon the occurrence of an Event of Default, and same shall have contin~ed for a period of thirty (30) days (unless a shorter cure period is provided for therein), after written notice specifying the Event of Default and demanding that the same be remedied shall have been given by the Division to the Project Recipient (or if the Event of Default cannot with due diligence be cured within such thirty (30) period, the Project Recipient shall have failed to commence to cure within such period, or having commenced, shall thereafter fail to prosecute and complete such cure with due diligence), the Division shall have the right to pursue ~y remedies available at law or in equity for any breach of this Agreementt including the right to terminate this Agreement, the right to injunctive relief, the right to enforce the provisions of this Agreement, and the right to recover damages suffered by the Division as a result of any breach of this Agreement by the Project Recipient. (c) · The Division shall have the right, but not the obligation, upon the happening of any uncured Event of Default, as provided in (b), above, in addition to any other rights or remedies available to it, to enter into possession of the Property and perfonn or cause the performance of any and all work and labor necessary or desirable to complete the Project, protect FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022 LIBER 1797 PAGE 438 Supplemental Regulatory Agreement Page9 the Property and the Project or to make repairs to the Project; provided, however, that the foregoing shall not be deemed to impose on the Division the obligation to prosecute to completion any action taken pursuant hereto and the Division shall have no liability to the Project Recipient ~sing out of the failure to complete any work commenced p ~ t to this Section. All sums expended by the Division for such purposes shall be deemed to have·been paid to the Project Recipient. F?r this purpose, Project Recipient hereby constitutes and appoints the Division its true and lawful attorney-in-fact with full power of substitution to complete the Project or make repairs in the name of the Project Recipient, and hereby empowers said attorney or attorneys as follows: to employ or continue to employ such general contractor, subcontractors, material suppliers, laborers, agents, architects and inspectors as shall be required or may be reasonably desirable for said purposes; to pay, settle or compromise all existing bills and claims which are or may be liens against the Property, or may be necessary or.desirable for the completion of any work or the clearance of title; to procure such insurance as may in its judgment be desirable; to execute all applications and certificates in the name of the Project Recipient which .¢ay be required by any contract or subcontract; and to do any and every act with respect to work on the Project whi«h the Project Recipient may do in its own behalf. It is understood and agreed that this power of attorney shall be deemed to be a power coupled with a secured interest which cannot be revoked. Said attorney-in-fact shall also have power to prosecute and defend all actions or proceedings in connection with work performed on the Project _and to take such action and require such performance as is deemed necessary. Project Recipient hereby conditionally assigns and quitclaims to the Division all sums disbursed or to be disbursed hereunder and all retained sums subject to the condition that said sums, if any, be used for work performed on the Project and payment of related expenses as set forth herein. (d) For the purposes of Section 19(c) above, and in connection with (i) any and all contracts and subcontracts for the provision of labor and the furnishing of materials, fixtures and articles in connection with the rehabilitation, construction, conversion, repairs to or maintenance of the Project which are now in existence or which may exist at any time or times in the future, together with any extensions or renewals thereof (collectively the ''.Contracts"), and (ii) all licenses, approvals, authorizations, consents, certificates and permits in connection with the rehabilitation, construction, conversion, repairs to or maintenance of and operation of the Project FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022 LIBER 1797 PAGE 439 Supplemental Regulatory Agreement Page 10 which are now in existence or which may exist at any time or times in the future, together with any extensions or renewals thereof(collectively, the "Licenses"), Project Recipient hereby assigns the Contracts and Licenses to the Division, provided, however, Project Recipient shall enjoy and perform all _of its rights and obligations under the Contracts and Licenses until the happening of an Event of Default and such Event of Default has not-been cured within the applicable cure period. In addition, Project Recipient shall submit to the Division a letter signed by the contractor under a Contract to the effect that, upon receipt of notice from the Division, the contractor will reCQgnize the Division as Project Recipient's duly appointed successor and assign under such Contract and will perform its obligations under such Contract as if the Division were ~he party with which it had contracted. 20. Dissolution, Liquidation or Termination In the event of dissolution, liquidation or termination of the Project Recipient (whether voluntary, involuntary or by operation of law), this Agreement may be terminated. Such termination shall not relieve the Project Recipient from liability to the Division pursuant to this Agreement unless this Agreement has expired or terminated pursuant to its tenns. Whether voluntary, involuntary or by operation oflaw , the Project Recipient shall obtain the prior approval of the Division of its plan of dissolution and distribution of assets unless this Agreement has expired or terminated pursuant to its tenns .. 21. Exhibits The following exhibits and appendices are hereby incorporated into this Agreement and the Project Recipient, to the ex.tent applicable, shall adhere to the provisions contained therein. Schedule A Description of Property Exhibit A Project Description Exhibit B Marketing Plan Exhibit C Rent Plan Exhibit D Affordability Plan Appendix 1 Equal Opportunity Requirements 22. Miscellaneous {a) All notices or other communications with respect to the subject matter of this Agreement shall be in writing and shall be deemed to have been given when sent_by certified FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022 LIBER 1797 PAGE 440 Supplemental Regulatory Agreement Page 11 mail, return receipt requested, to Project Recipient and to the Division at the addresses first set out herein or at such other address of which party to receive such notice shall have notified the party giving such notice in writing, except that notice of such change of address shall be deemed to have been given when it is received. (b) No action shall lie or be maintained against the State or the Division upon any claim based upon or arising out of this Agreement or the work performed hereunder or anything done in conn~on herewith unless such action shall be commenced within six (6) months after the termination ofthis Agreement or one year from the accrual of the cause of action, whichever is earlier. (SIONATIJRE PAGE FOLLOWS) FILED: PUTNAM COUNTY CLERK 10/07/2022 01:11 PM INDEX NO. 501123/2022 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 10/07/2022 LIBER 1797 PAGE f41 Supplemental Regulatory Agreement Page 12 IN WITNESS WHEREOF, the parties have each duly executed this Agreement as of the day and year first above written. NEW YORK STATE DMSION OF HOUSING AND C0,,...1..1.....u_.,a ..TY Title: Assistant Commissioner of the Office of Community Development ~C ~N ~zhDivestea Title: President STATE OF NEW YORK) ) ss.: COUNTY OF ALBANY ) On February~ 2008,_before me, the undersigned, personally appeared Sean Fi~gerald, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by bis signature on the instrument, the individual, or the person upon behalf of which the im;lividual ed, executed the instrumept. ~ . DANI HUFFMIRE Public\ ~tate of New York STATE OF NEW YORK) No. 01 t1U5026256 · COUNTY OF l,N'L~ I JI.I '--l)) ss.: aUfted In Schenectady County lsaion Expires April 1e,26.lO On February _rt-, 2008, before me, the und Divestea, personally known to me or proved to on the b s of satisfactory evidence to be the individual whose name is subscribed to the with· nt and acknowledged to me that he executed the same in his capacity, and that by e on the instrument, the individual, or the person upon behalf of which the individual a uted the instrument.