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Capital
Area Housing Finance Corporation
Interlocal
Agreement
This Interlocal Agreement
(this “Agreement”) is made and
entered into as of _____________, 20__ (the “Effective
Date”), by and between the Capital
Area Housing Finance Corporation (the “Capital Area HFC”), a public, non-profit housing finance
corporation duly organized and existing under the laws of the State of Texas,
and _________________________________ (the “Governing
Body”).
W i t n e s s e t h
Whereas, the Capital Area HFC
is authorized by the provisions of the Texas Housing Finance Corporations Act,
Chapter 394, Texas Local Government Code, as amended (the “Act”), to (a) lend money for its corporate purposes and invest and
reinvest its funds; (b) borrow money at rates determined by the Capital Area
HFC; and (c) pledge all or any part of the revenues, receipts or resources of
the Capital Area HFC from or in connection with such loans, and to mortgage,
pledge or grant security interests in such loans or other property of the
Capital Area HFC in order to secure the payment of the Capital Area HFC’s
obligations; and
Whereas, pursuant to the Act,
the Capital Area HFC has established a 2011 Multifamily Developer Loan Program
(the “Program”) under which the
Capital Area HFC is authorized to make loans to eligible borrowers to help
finance the acquisition, construction or rehabilitation of multifamily housing
developments located within the jurisdiction of the Capital Area HFC and in
other jurisdictions with the authorization of the applicable local housing
authority; and
Whereas, the Capital Area HFC
intends to loan funds to __________________ (the “Borrower”), to help finance the [acquisition, construction,
rehabilitation] of certain property (the “Loan”)
located in the jurisdiction of the Governing Body; and
Whereas, the Governing Body hereby
authorizes and consents to the Loan on the terms specified in this Agreement;
Now, Therefore, in
consideration of the mutual covenants and agreements herein contained, the
receipt and sufficiency of which are herby acknowledged, the parties agree as follows:
Section
1. Recitals.
The recitals set
forth above are incorporated herein for all purposes and are found by the
parties hereto to be true and correct.
It is further found and determined that the parties hereto have
authorized and approved this Agreement by resolution or order adopted by their
respective bodies, and that this Agreement will be in full force and effect
when executed by both parties.
Section 2. Development Funding.
The Governing Body hereby
agrees that the Capital Area HFC may provide the Loan to the Borrower in
connection with the [acquisition, construction, rehabilitation] of an
approximately ___ unit apartment project located in the Governing Body’s jurisdiction
in accordance with the terms set forth in a Term Loan Agreement (the “Loan Agreement”) to be entered into
between the Capital Area HFC and the Borrower.
The parties hereto
acknowledge and agree that neither the full faith and credit of the Governing
Body or the State of Texas, nor the taxing power of the Governing Body, if any,
or the State of Texas or any other political subdivision of the State of Texas
is pledged in support of the Loan.
Section 3. Termination.
This Agreement shall terminate upon the occurrence of any
of the following events:
(a) The Borrower withdraws its request for the
Loan;
(b) The Loan is not closed on or before the
date for such closing specified in the Loan
Agreement; or
(c) The mutual written agreement of the parties
hereto.
Section 4. Termination upon Legal Prohibition of
Relationship.
Notwithstanding the foregoing, the parties hereto may
terminate this Agreement immediately by delivering written notice to the other party:
(a) If, in the opinion of an independent
attorney, it is determined that there is applicable legislation, regulations,
rules or procedures (collectively referred to herein as a “Law”) in effect or to become effective as of a date certain, which
Law, if or when implemented, would have the effect of subjecting a party hereto
to civil or criminal prosecution under the state and/or federal laws, or
endangering or jeopardizing the status of a party hereto or any of its
affiliates, because of the party’s participation herein;
(b) If a party receives notice (the “Notice”) of an actual or threatened
decision, finding or action by any governmental or private agency or court
(collectively referred to herein as an
“Action”), which Action, if or when implemented, would have the effect of
subjecting the party to civil or criminal prosecution under the state and/or
federal laws, or endangering or jeopardizing the status of the party or any of its
affiliates, because of the party’s participation herein; or
(c) If a party hereto receives any order (the “Order”) by a governmental agency or
court that the terms of this Agreement are in violation of any Law.
Section 5. Effect of Termination.
Upon the expiration or termination of this Agreement, the parties
hereto shall thereafter be automatically relieved and released from all further
liabilities and obligations hereunder, except for liabilities and obligations
contained herein which are expressly made to extend beyond the term of his Agreement,
all of which shall survive the expiration or termination of this Agreement.
Section 6. Miscellaneous.
Section 6.1.
Prior Written Agreements. This Agreement
is without regard to any and all prior written contracts or agreements between
the parties hereto regarding any other subject matter and does not modify,
amend, ratify, confirm or renew any such other prior contract or agreement
between the Parties.
Section 6.2. Other
Services and Exclusion. Nothing in
this Agreement shall be deemed to create, by implication or otherwise, any duty
or responsibility of any of the parties hereto to undertake or not to undertake
any other service, or to provide or not to provide any service, except as
specifically set forth in this Agreement or in a separate written instrument
executed by the parties hereto.
Section 6.3. Governmental
Immunity. Nothing in this Agreement
shall be deemed to waive, modify or amend any legal defense available at law or
in equity to any of the parties hereto nor to create any legal rights or claim
on behalf of any additional party. None
of the parties hereto waives, modifies, or alters to any extent whatsoever the
availability of the defense of governmental immunity under the laws of the
State of Texas and of the United States.
Section 6.4. Amendments and Modifications. This Agreement may not be amended or modified
except in a writing executed by the parties hereto and authorized by their
respective governing bodies.
Section 6.5. Severability. If any provision of this Agreement shall be
held invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision
hereof, but rather this entire Agreement will be construed as if not containing
the particular invalid or unenforceable provision(s), and the rights and
obligations of the parties hereto shall be construed and enforced in accordance
therewith. The parties acknowledge that
if any provision of this Agreement is determined to be invalid or
unenforceable, it is their desire and intention that such provision be reformed
and construed in such a manner that it will, to the maximum extent practicable,
give effect to the intent of this Agreement and be deemed to be validated and
enforceable.
Section 6.6. Execution in Counterparts.
This Agreement may be simultaneously
executed in several counterparts, each of which shall be an original and all of
which shall be considered fully executed as of the date first written above,
when all parties hereto have executed an identical counterpart, notwithstanding
that all signatures may not appear on the same counterpart.
Section 6.7. No Third Party
Beneficiaries. The provisions of
this Agreement are and will be for the benefit of the parties hereto only and
are not for the benefit of any third party.
No third party shall have the right to enforce the provisions hereof.
Section 6.8. Notice. All communications provided for herein shall
be in writing and shall be deemed to have been given or made when served
personally or when deposited in the United States mail. The following are the addresses for all
purposes in connection herewith.
Capital
Area HFC: Capital Area Housing
Finance Corporation
4101 Parkstone Heights Drive
Suite 280
Austin, Texas 78746
Attention: James E. Shaw
Governing Body: _________________________
_________________________
__________________________
__________________________
__________________________
The parties hereto shall have the right from time to time
to change their respective addresses and each shall have the right to specify as
its address any other address by giving to the other parties hereto written
notice at least ten (10) days prior such change.
Section 6.9. Governing Law. This
Agreement and the rights and duties of the parties hereto shall be construed
and determined in accordance with the laws of the State of Texas. This Agreement constitutes the entire
understanding of the parties with respect to the subject matter hereof and any
prior agreements, whether written or oral, with respect thereto are superseded
hereby.
Section 6.10. Headings. Section headings used in this Agreement are
for convenience of reference only and are not a part of this Agreement for any
other purpose.
In Witness Whereof,
the parties hereto have executed this Agreement as of the Effective Date by
their officers thereunto duly authorized.
Capital Area Housing
Finance Corporation
By:_____________________________
Name: James E. Shaw
Title: Executive Director
___________________________________
By:______________________________
Name:_________________________
Title:___________________________
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