HUD 4350.1 Chapter 11

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4350.1 REV-1
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CHAPTER 13. CHANGE IN OWNERSHIP: TRANSFER OF PHYSICAL ASSETS

INTRODUCTION

The sale and conveyance by deed of title to a property covered by
an insured mortgage necessitates a substitution of mortgagors.
HUD approval of the substitution is required in every case where
HUD exercises control over the mortgagor either as preferred
stockholder, by regulatory agreement, or by certificate of
beneficial interest. This chapter has a broader application than
above, and the instructions, requirements and procedures outlined
within cover not only transactions which result in the
substitution of a mortgagor, but in any change in the control of
a mortgagor.

SECTION 1. DELEGATIONS OF AUTHORITY AND EXCEPTIONS

13-1. Field Office Delegations

Field Offices are authorized to grant Preliminary and
Final approval to all transfer proposals. However,
there are two sets of exceptions, as noted in Section
1, Paragraph 13-3 and Paragraph 13-2 where Regional
Office or Headquarters approval must be sought prior to
Field Office granting preliminary approval of TPAs.

13-2. Requirement for Regional Office Prior Approval

The Regional Office must approve, prior to the Field
Office granting preliminary approval, any proposal
exhibiting the following characteristics:

A. The project's physical and/or financial needs will
not be met within 36 months from the date of the
transfer. (This is expected to be a rare
occurrence.);

B. The transfer provides for secondary financing
secured by the project and not meeting the
requirements of Section 3, Paragraph 13-15 of this
Notice. In any case involving secondary
financing, all secondary financing secured by a
lien against the project must be approved in
writing by the first mortgagee. HUD will not
approve any transfer including a lien against the
project without written mortgagee approval;

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C. The transfer provides for secondary financing
which is either unsecured or secured by collateral
other than the project (e.g., partnership
interests), and does not meet the requirements of
Section 3, Paragraph 13-15 of this Notice;

D. The transfer provides for a land contract which
does not satisfy the requirements of Section 3,
Paragraph 13-15 of this Notice;

E. The transfer requires approval of a workout
designed to meet the physical and financial needs
of the project which is not in compliance with all
outstanding workout instructions;

F. The transaction involves a transfer from nonprofit
to profit motivated or limited distribution
ownership and calls for remuneration to the
seller; or

G. The transfer documents include a plan which
contemplates repayment of a flexible subsidy loan
over a period of more than 24 months, in the case
of a transfer from a nonprofit to a profit
motivated or limited dividend owner.

13-3. Requirement for Headquarters Prior Approval
Headquarters must approve, prior to the Field Office
granting preliminary approval of the application, any
transfer involving any of the following circumstances:

A. Use of the Low Income Housing Tax Credit (LIHTC)
when combined with other forms of HUD assistance
such as flexible subsidy loans, additional Section
8 assistance, 241 supplemental loans, etc.; or

B. TPAs requiring a regulatory agreement waiver or
exception of any type, if the authority to approve
the waiver or exception has not been delegated to
the Region or Field Office.

13-4. Documentation Required for Regional and Headquarters
Reviews
In every case where Regional Office or Headquarters
approval must be obtained prior to Field Office
preliminary approval of a TPA, the Field Office must:

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A. Ensure the TPA meets all criteria for approval
under outstanding instructions and will be
approved if authorization to proceed is obtained;

B. Provide a summary of the transaction;

C. Provide form HUD-9575 and the parts of the TPA
which are required to ensure an informed review,
and;

D. Provide a recommendation.

13-5. Preliminary and Final Approval Actions
In every case, Preliminary and Final Approval authority
rests with the Field Office. However, the Field Office
is not authorized to issue either of these approvals
until the Regional and/or Headquarters have approved
the particular aspects of the TPA for which they have
retained authority, as described in Section 1,
Paragraph 13-2 and Section 1, Paragraph 13-3 above.
Field Offices may not grant preliminary approval if the
TPA is dependent on other commitments or approvals that
have not occurred. For example, the Field Office may
not grant preliminary approval if the TPA depends on
some other type of assistance (e.g., flexible subsidy
loan, 241 supplemental loan, additional Section 8
assistance, etc.) from HUD and the Department has not
issued the appropriate approval letter or firm
commitment to insure. Similarly, the Field Office may
not grant preliminary approval if the TPA depends on:

o assistance from some other unit of government
(Federal, state or local);
o an allocation of LIHTC; or
o the proceeds of a tax credit syndication, until
the appropriate commitment has been issued by the
responsible unit of government or company.

Field Offices may not grant preliminary approvals that
are conditioned upon other commitments being issued,
but may provide an applicant with a letter stating that
all other TPA requirements have been satisfied, if the
unit of government/company responsible for issuing the
other commitment(s) requests such a letter.

After the preliminary approval letter is issued, the
real estate transaction can close and all of the
documents approved by HUD can be executed and recorded.
The full review TPA transaction may be completed based
upon a certification by the applicant's attorney that

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the documents to be executed and recorded are exactly
as approved by HUD. The Form of the required
certification is in Appendix A, Procedures for
Processing Full Review TPAs.

The Field Office may grant final approval of a full
review TPA after it has reviewed and approved the
executed and recorded documents.

SECTION 2. TRANSACTIONS REQUIRING REVIEW (CATEGORIES OF REVIEW)

Transactions involving the transfer of all or a controlling
interest in the ownership of a HUD-insured or HUD-held project
from one individual, group of individuals or entity to another
individual, group of individuals or entity constitute a Transfer
of Physical Assets (TPA). This definition is broad enough to
incorporate modified TPAs within the purview of this discussion.
For certain of these transactions, as described below, the
Department requires a Full Review. For certain other
transactions only a Modified Review is required.

The review procedures do not apply to corporate restructuring
mergers if there is no change in control, or first user
syndications prior to final endorsement.

13-6. Transactions Not Requiring an Application Fee:

A. Substitution of individual general partners of a
partnership/mortgagor; or

B. Assignment of 100 percent of the beneficial
interest in a passive land trust that holds title
to the project, if the assignment does not result
in a change in the control of the project.

Certain complex transactions involve multiple transfers
and may be subject to more than one TPA fee, such as
transactions involving two transfers of title by deed.
In such cases, the Field Office manager will determine
whether a second fee is required after consulting with
Field Counsel. If the Field Office manager determines
that a transaction or series of transactions have been
structured to avoid paying the application fee, the TPA
application will be rejected and new application(s)
will not be accepted until the required application
fee(s) have been paid.

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13-7. Full Review

Transactions requiring HUD's Full Review include, but
are not limited to properties encumbered by HUD-insured
or HUD-held mortgages demonstrating the following
characteristics:

A. Transfer of title from the mortgagor/seller to the
buyer including conveyance by installment sales
contract, land contract and wrap-around mortgage;

B. Transfer of any interest in a partnership
mortgagor which causes a dissolution of the
partnership/mortgagor under applicable state law;
or

C. Transfer of 100 percent of the beneficial interest
in a passive trust, which results in a change in
control of the asset.

The procedures for processing a Full Review TPA
are set forth in Appendix A. Transactions subject
to Full Review will be evaluated under the
Department's Determinative Criteria set forth in
Section 3. below.

13-8. Modified Review

The Department requires a Modified Review, which is a
limited review, of certain transactions involving
transfers of interests in entities owning properties
encumbered by HUD-insured, or HUD-held mortgages.
Transactions subject to HUD Modified Review include,
but are not limited to the following:

A. A single transfer of in excess of 50 percent of
the interest of a partnership/mortgagor which does
not cause a dissolution of the existing
partnership/mortgagor under state law, as
certified by an attorney who has no identity of
interest with the partnership/mortgagor and is
licensed to practice in that state;

B. Substitution of one or more of the general
partners;

C. A single transfer of an amount in excess of 50
percent of the corporate stock of the corporate
mortgagor or a single transfer of an amount less
than 50 percent of the total corporate stock of

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the corporate mortgagor where such transfer
results in a change in control of the corporate
mortgagor;

D. An assignment/transfer of a portion of or all of
the beneficial interest in a passive trust when
there is no change in control of the project; or

E. A single transfer of an amount in excess of 50
percent of the corporate stock of a corporate
General Partner or a single transfer of an amount
less than 50 percent of the corporate stock of a
corporate General Partner where such transfer
results in a change in control of the corporate
General Partner.

F. Any transaction which does not fall within any of
the other categories but which, nevertheless,
results in a change of control of the mortgagor.

Certain transactions subject to a Modified Review will
be evaluated under the Department's Determinative
Criteria set forth in Section 3. below. For example,
transactions in which a significant change in control
will occur or in which a large sum of money will change
hands, not only through a single transfer but also a
series of transfers which have the same result, may
trigger review under the Determinative Criteria. In
addition, where there is an indication of subsidy
layering in a TPA, a complete evaluation under the
Determinative Criteria is required. See discussion
under questionable transactions and subsidy layering.

Transactions subject to Modified Review will be
reviewed pursuant to the procedures set forth in
Appendix B.

13-9. Questionable Transactions

The Department periodically receives proposals
involving novel transactions. These transactions
should be brought to the attention of the Regional
Office. Whenever a Field Office is in doubt as to
whether a transaction requires a full or modified TPA
review, the Regional Office may be contacted for
guidance.

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When faced with a transaction which does not fall
clearly into the full or modified review category, but
which the Field Office believes may warrant HUD review,
the following questions should be asked: Will there be
a significant change in the control of the project?
Will a significant sum of money change hands in
conjunction with the transaction? If either of these
inquiries are answered affirmatively, a Transfer of
Physical Assets Application, either Full or Modified,
depending upon the nature of the transaction, should be
required by the Field Office.

SECTION 3. DETERMINATIVE CRITERIA FOR REVIEW OF TPAs

The following are criteria employed by HUD to evaluate Full
Review and certain Modified Review proposals:

13-10. Requirement that a Proposed Owner/Managing General
Partner Obtain Previous Participation Clearance.

The proposed principal(s) must obtain previous
participation clearance:

A. Proposed principal(s) must file form HUD-2530,
Previous Participation Certificate; and

B. Prospective owner/managing general partner must
also satisfy the Field Office that he/she has
sufficient experience to operate the particular
project which he/she intends to purchase. A
troubled project may require an owner/managing
general partner who has demonstrated the ability
to successfully own and manage troubled
multifamily projects.

13-11. Field Office Requirement for Management Review and
Physical Inspection and a Requirement For Proposed
Management Agent Previous Participation Clearance.

Management Reviews, Physical Inspections and approvals
of existing or new management agents are interrelated
determinations required prior to Field Office
preliminary approval of a TPA.

A. Existing Management Agent

The TPA process provides the Field Office with an
opportunity to influence the selection of a
management agent. Field Offices should use the

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flexibility provided by Handbook 4381.5 to impose
necessary performance standards on a new
management agent, particularly when troubled
projects are involved. This requirement is
directly related to ratings on management review
and physical inspection reports. Management
Reviews and Physical Inspections are to be
conducted in a schedule required in the following
sections.

B. Management Review

If the Field Office has not completed a management
review of the project within one year of the date
of the TPA application, it must do so prior to
granting preliminary approval of a TPA, whether or
not a change in management agent is proposed. The
level (comprehensive or limited) and intensity of
the management review is based on factors
identified in this Handbook in Chapter 6, entitled
Project Monitoring, and the Field Office must
exercise discretion in making this determination.

If the TPA proposes to retain the existing
management agent, the Field Office must review the
past performance of the agent and determine
whether or not the agent is performing at a
satisfactory level.

C. Physical Inspection

If the Field Office has not performed a physical
inspection of the project within the past year, it
must do so prior to granting preliminary approval
of a TPA, whether or not the mortgagee has
performed an acceptable inspection.

D. A proposed new management agent must obtain
previous participation clearance and must abide by
other requirements:

1. Proposed management agents must file form
HUD-2530, Previous Participation Certificate,

2. Proposed management agent must satisfy the
Field Office that he/she has sufficient
experience to enable him/her to successfully

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manage the project. The type and length of
experience required will vary depending upon
the degree of difficulty of managing the
particular project;

3. A new or replacement agent is required to
abide by the instructions contained in
Handbook 4381.5, Management Agents, Documents
and Fees. This includes the filing of a
Management Certification and an Agent
Profile.

13-12. Determination by Field Office that a Project's Physical
Repair/Replacement Needs Will Be Met.

In order to approve the proposed transfer, the Director
of Housing Management must determine that the project
will be restored to sound physical condition within 24
months from the date of transfer. Additionally, he/she
must be satisfied that requisite energy-related
alterations will be completed within an acceptable time
frame. (See Handbook 4350.1, Chapter 12, for a
discussion of energy-related items.)

A. Extension of Time Requirements

Under certain well documented circumstances, the
Field Office Manager may extend this period for up
to an additional 12 months. The decision to allow
additional time must be documented in the project
file. The time period cannot be extended, if the
sources and uses statement shows one of the
following:

o remuneration to the seller; or
o fees to participants having priority over the
needs of the project.

B. Determination of Project Physical Condition

The physical condition of the project may be
determined in one of two ways:

1. If the project is ranked as a troubled or
potentially troubled project, the Field
Office must perform its own inspection if
such an inspection had not been performed
within the past year; or

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2. The transfer applicant may submit to HUD at
the time of application a physical inspection
report and cost analysis of needed repairs
for the project, prepared by an architect or
engineer who is professionally designated and
licensed in the jurisdiction where the
project is located.

The inspector will provide a certification as to
his/her qualifications and as to the accuracy of
the report and cost estimates based on his/her
professional opinion.

The Chief of Loan Management will decide which
approach is appropriate. In certain situations,
the Field Office may also elect to do an
inspection, the results of which will suggest the
need for a follow-up inspection by an expert in a
particular functional area, such as a structural
or HVAC engineer. This follow-up inspection will
clearly be the responsibility of the applicant.

C. Requirements for Acceptable Physical Inspection.

The following are minimum requirements for an
acceptable physical inspection:

1. The inspection report must be in sufficient
detail to list all required repairs and
provide line item cost estimates for repairs;

2. The report should mandate all those repairs
that are necessary to ensure that the project
is structurally sound and that dwelling units
and living conditions are decent, safe and
sanitary. The repair listing must be
complete and deal with 100 percent of the
units;

3. The report should specify that the project is
energy efficient, or that repairs will make
it so;

4. The report must describe how the inspection
was performed and any assumptions that were
made by the engineer. For example, if all

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the units were not inspected, what units were
inspected and how were those units selected?
How did the engineer go about making the
final repair list?; and

5. The engineers and architects should also
provide comments on the remaining useful life
of major equipment and fixtures at the
project (this analysis will be important in
judging the appropriateness of Reserve for
Replacement funding).

The goal of a quality physical inspection and
subsequent repair/replacement recommendations is
not to return the project to the original
condition when initially insured, but rather to
ensure the long-term viability of the project.

The Field Office will have the responsibility for
reviewing the applicant's inspection report and
affirmatively judging its adequacy. This will
require a Field Office inspector verifying the
applicant's report with an on-site visit.

D. Availability of Physical Repair/Replacement Funds

Because the financial viability of the project is
a critical determination in approving a TPA, the
following criteria for use and availability of
repair/replacement funds must be met:

1. The Field Office must be satisfied that
adequate funds will be available to complete
needed physical improvements/repairs. The
purchaser should accomplish the repairs
pursuant to a repair schedule (e.g., a MIO
plan) approved by the Field Office. The
repair schedule should be specific as to
objectives and timing so that the progress of
the repairs can be judged by the Field
Office.

The Field Office may require the purchaser to
obtain a letter of credit, a bond, or place
in an escrow account acceptable to the Field
Office, the funds needed to complete the
proposed improvements/repairs.

2. If a project is transferred within the first
twelve months from the date of final

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endorsement and if there are latent
construction defects, HUD's first remedy for
correction of these defects is to use the
bond that was posted for this purpose during
the construction period. Only if the bond
cannot be used or will not cover all of the
latent defects should correction of these
defects be addressed as part of the transfer
proposal.

13-13. Determination by Field Office that a Project's
Operating Financial Needs Will Be Met.

A. HUD-Insured Projects

An application for transfer of a HUD-insured
project will be accepted only if the project
mortgage is current or the Field Office determines
it will be brought fully current as a result of
the TPA at preliminary approval.

B. HUD-Held Projects

In order to approve a proposed transfer of a
HUD-held project, the Field Office must establish that
either the mortgage will be brought current at the
time of transfer or that an acceptable workout
will be executed. Any workout, in conjunction
with a transfer, must be executed upon preliminary
approval of the transfer. Workouts that exist
prior to the TPA approval must be reviewed and
modified as necessary. For example, if repairs
are required as part of the TPA, the repair
schedule will be included in a modified or new
workout.

C. All Projects

For all projects, Field Offices must assess the
financial situation and make certain
determinations and require certain actions be
taken, as follows:

1. All accounts payable will be cleared at the
time of the transfer or shortly thereafter.
If deemed necessary by the Field Office, a
satisfactory escrow or letter of credit may
be required to ensure that this requirement
is met;

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2. Make a determination that the Reserve for
Replacement Account is adequately funded, and
will continue to be adequately funded in the
foreseeable future. To determine the level
of funding for the Reserve for Replacement
Account, the Field Office must consider the
project's present and anticipated needs. It
should review the remaining useful life of
major equipment and structural components and
make a determination that the Reserve for
Replacement is funded at a level to meet the
most immediate project needs;

3. The Field Office may require lump sum
contributions as part of the TPA or a plan to
increase deposits to the Reserve until it is
funded to an appropriate level. For both
full and modified TPAs, if escrowed funds
remain after completion of the required
repair program, these remaining monies should
be used to fund the Reserve for Replacement
Account at an appropriate level. Although
there are no hard and fast rules, the Field
Office should follow common sense rules of
thumb. For example, a 15 year old project,
which has not replaced stoves, refrigerators,
air conditioning, roofs, kitchen cabinets,
common area and apartment amenities, such as
carpeting, etc., should have a Reserve for
Replacement Account balance of $1,200 to
$1,500 a unit. The above yardstick is meant
for reference only, and naturally
jurisdictions may determine what funding
level of Replacement Reserves per unit is
considered appropriate and adequate for
projects within their localities based on
local environment, custom and practice.

4. The Field Office should review the other
mortgagee controlled accounts (real estate
and property insurance escrow), to make sure
present balances together with monthly
deposits will be sufficient to pay near term
billings. Frequently, TPAs lead to
reassessments that result in property tax
increases the property cannot easily manage.
The Field Office may decide to require an

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increased deposit to these escrows, if it has
reason to believe the property will be facing
a substantial increase in its property tax or
property insurance bills; and

5. Field Offices should review the source and
use statement provided by the applicant as a
possible source of additional funds, if there
is a cash shortfall in meeting the project's
financial needs.

13-14. Field Office Determination Concerning HUD Legislative,
Regulatory and Administrative Requirements.

The transfer of physical assets proposal must comply
with HUD regulations, handbooks, administrative and
legal requirements as of the date of this Notice.
Relevant HUD documents include but are not limited to
the following:

HUD HANDBOOKS TITLE/CHAPTER

HUD Handbook 4350.1 REV-1 Chapter 4, Section 11
Chapter 6
Chapter 12
HUD Handbook 4065.1 Previous Participation
HUD Handbook 4355.1 REV-1 Flexible Subsidy
HUD Handbook 4370.1 REV-2 Reviewing Annual and Monthly
Financial Reports
HUD Handbook 4370.2 REV-1 Financial Operations and
Accounting Procedures for
Insured Multifamily Projects

HUD Handbook 4370.4 REV-1 Basic Accounting Desk
Reference for Loan Servicers
HUD Handbook IG 2000.4 Consolidated Audit Guide for
Audits of HUD Programs
HUD Handbook 4381.5 REV-1 Management Documents, Agents
and Fees

HUD REGULATIONS/SECTION TITLE/CHAPTER
24 CFR 265 Transfer from Nonprofit to
Profit-Motivated Ownership
for Multifamily
Housing Projects
24 CFR 207.1(h) Transfer Fee

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MULTIFAMILY NOTICES TITLE/CHAPTER

Notice 84-34 Revised Policy for Projects with
HUD-Held Mortgages
Notice 89-1 Reinstating Defaulted Mortgages
Notice 90-17 Combining Low Income Housing Tax
Credits (LIHTC) with HUD Programs
Notice 90-18 New Restrictions on Funding Actions
Notice 91-22 Comprehensive Multifamily Servicing
Program

Notice 84-37 Appendix G: Memorandum from
Charles J. Bartlett, Legal Review
of Transfer of Physical Assets
Proposals

13-15. Special Circumstance Determination: Secondary Financing

Any portion of the purchase price which is not paid in
cash at the time of purchase is understood to be
secondary financing. Secondary financing includes all
deferred financing: financing secured by the project,
financing secured by collateral other than the project,
or unsecured financing.

Field Offices must make certain specific determinations
when secondary financing is an element. The legal and
administrative requirements for approval of a TPA with
secondary financing include the following:

A. HUD policy permits the use of secondary financing
in connection with transfers of projects only in
those situations in which the Field Office
determines that the proposal does not jeopardize
HUD's security, conflict with HUD's legal or
programmatic interests, or unduly burden the
project with financial debt.

B. If HUD-insured secondary financing is proposed as
part of the TPA, it must meet the underwriting
criteria of the applicable section of the Act (241
supplemental loan, operating loss loan, etc.).

C. The legal requirements controlling the use of
secondary financing are set forth in the opinion
of the Assistant General Counsel for Multifamily
Mortgage Insurance in Appendix G of this Chapter.

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Area Counsel must review all secondary financing
in connection with a TPA and determine that it
meets the requirements of Appendix G prior to the
Field Office granting preliminary TPA approval.

D. Field Office will approve the use of secondary
financing in a TPA only when the following
conditions are met:

1. When the first mortgagee approves in writing
any secondary financing secured by a lien
against the project. Field Offices must not
approve any transfer that includes a lien
against the project without this written
mortgagee approval;

2. When approval of the secondary financing will
not increase HUD's exposure to financial risk
or loss; and

3. When approval of the proposal would not
violate the Department's obligation to
provide housing at the least cost to the
Federal government.

E. Where the consent of the first mortgagee to allow
secondary financing is obtained, the original
signed document must be transmitted immediately to
the Office of Multifamily Housing Management at
HUD Headquarters for inclusion in the project's
safe instruments file.

13-16. Special Circumstance Determination:
Condominium/Cooperative Conversions

Every proposal involving conversion to the cooperative
form of ownership must include either the express
consent of the mortgagee to the conversion or an
indemnity agreement acceptable to HUD. The HUD Office
of General Counsel has developed a master
Indemnification Agreement, Guaranty Agreement and
Letter of Credit for use in conversions to cooperative
ownership without mortgagee consent. In the case of a
transfer transaction involving conversion, Field
Offices are referred to OGC's Multifamily Mortgage
Division "at Headquarters" for relevant forms and
consultation. The Housing Management Division retains
responsibility for the programmatic and policy review
of proposed conversions to condominiums and

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cooperatives but may not grant preliminary approval
without Field Counsel's legal opinion as to the
legality of the proposed conversion. When conversion
to condominium or cooperative ownership is an element
of the transfer, Field Counsel must review the proposed
transaction.

SECTION 4. TPA INVOLVING NONPROFIT TRANSFER TO LIMITED
DIVIDEND ENTITY

13-17. Field Office Statement of Necessity for TPA.
The Regulations at 24 CFR Section 265.7, entitled
Director's analysis and findings on the need for a
transfer, require that the Field Office, before
accepting an application for a transfer of physical
assets, make a finding that a transfer of ownership to
a profit-motivated owner is necessary to resolve the
problems of the project based on one or both of the
following factors:

A. The nonprofit (NP) owner is no longer capable or
willing to own or operate the project
successfully; or

B. There is a need for additional cash contributions
to satisfy the present physical and financial
needs of the project as determined by the review
conducted pursuant to Section 265.6 because
assistance for the project from HUD, considering
other uses of this assistance, is not available in
amounts necessary to satisfy these needs.

13-18. Field Office Analysis of TPA.

A. First Criterion

In making the determination in 4.I.A. that the NP
owner is no longer capable or willing to own or
operate the project successfully, the Field Office
may use information such as, for example, the
troubled or potentially troubled ranking of the
project (4350.1, Chapter 6) or a signed statement
by the NP owner that they are unwilling to
continue to operate the project. Such
determinations are the responsibility of the
Housing Management Director.

If the sole basis for a proposed transfer is lack
of capability or willingness of the existing
nonprofit sponsor to own and operate the project

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successfully, the Field Office must determine that
there is no capable, nonprofit sponsor in the area
which is interested in assuming ownership of the
project. This may be accomplished by obtaining
from the nonprofit seller a certification that the
seller has offered the project to other nonprofit
entities presently operating in close proximity to
the project, and has not received an offer to
purchase the project.

B. Second Criterion

To determine whether there is a need for
additional cash contribution the Field Office must
schedule the reviews required prior to preliminary
approval of any TPA in order to identify the
present physical, financial, management and tenant
needs, including energy-related needs of the
project. Also, the Field Office must take into
consideration information provided by the
seller/purchaser when making this determination.
This means that a Field Office may accept and
review, for the purpose of making the above
decision, a transfer application.

In developing the required findings for these
criteria, Field Offices must make certain
determinations. For the first criterion, if
another nonprofit owner is found, the Field Office
must determine whether this applicant has the
skills and financial capacity to properly manage
the project. If a nonprofit entity is willing to
accept a TPA, they must be found qualified. In
order to be considered qualified, an NP owner
must:

o Have the proven ability to operate a
multifamily housing project;

o Be in a position to make a contribution to
the project equal to the present physical and
financial needs of the project without
utilizing any of the present resources of the
project, i.e., reserve for replacement or
operating accounts; and

o Have the financial capacity and willingness
to execute a written pledge for an amount
equal to 10 percent of the outstanding

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mortgage balance. The applicant may not rely
upon the receipt of federal subsidies in
making this pledge.

For Field Offices to make a determination on the
second criterion, they must analyze the long-term
needs of the project and consider whether the
project will require costly repairs and
replacements that can only be funded through
increased tenant rents, government rent subsidies,
government grants or loans, or contributions from
the nonprofit owner, all in the near future. If
the investigation discloses that the project
revenues will be insufficient to meet project
needs, and that these needs can only be met with
the foregoing funds, the second criterion set
forth above will be satisfied.

The Field Office must have demonstrated that there
is need for additional cash contributions to
satisfy the physical and financial needs of the
project. The Field Office must provide the
nonprofit owner with the results of the review in
writing, including a complete physical inspection
report and management review report, indicating
HUD's recommended corrective actions. The Field
Office should augment, but not duplicate, the
material generated to meet the requirements of the
Paragraph 13-20.

13-19. Remuneration to Nonprofit Sellers.

A nonprofit owner/seller will be permitted to receive
remuneration in connection with the transfer of a
property only upon Headquarters consideration of
circumstances. Section 106 of the HUD Reform Act of 1989
supersedes any previous authority granted to a Field
Office/Regional Administrator regarding waiver of
regulations under 24 CFR 265.4. Requests for waiver of
regulations must be forwarded with good cause
documentation to Headquarters, Office of Multifamily
Housing Management, Director, Operations Division, for
final disposition.

A nonprofit owner/seller may be allowed to receive
monies associated with a TPA provided that:

A. Upon transfer, the purchaser contributes to the
project an amount equal to the greater of 10
percent of the unpaid mortgage principal balance,

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or an amount sufficient to meet the present
physical and financial needs of the project, in
addition to any assistance provided by HUD;

B. All funds required by subparagraph A, above, have
been paid to the project;

C. Any remuneration accruing to the nonprofit seller
must be placed in trust with a third party
trustee. The trust funds must be disbursed in
accordance with the terms of a trust agreement
which has been approved by the HUD Field Office,
for a public purpose approved by the HUD Field
Office that promotes the expansion of the supply
of low and moderate income housing; and

D. No remuneration may pass to any individuals
connected with the nonprofit seller. This
requirement applies even where the remuneration
flowing to the nonprofit seller will be paid
several years after the transfer.

If payments are made to a nonprofit under the terms of
an installment sales contract solely for purpose of
making payment on the first mortgage, these payments
are not considered remuneration to the seller. This
situation does not require a waiver of 24 CFR 265.13.

If it is unclear how much will be paid to the nonprofit
seller, how these future payments will be disbursed,
and/or for what purposes the funds will be used, HUD
will approve a Trust Agreement under Paragraph 13-19C
above only if the Department has the right under the
Trust Agreement to approve all distributions from the
Trust.

13-20. Recruited Minimum Cash Contributions.

A purchasing profit-motivated or limited distribution
mortgagor must agree to minimum funding levels. The
minimum contribution of the acquiring owner is the
greater of 10 percent of the unpaid principal mortgage
balance, or an amount sufficient to meet the present
physical and financial needs of the project, in
addition to any assistance provided by HUD.

13-21. Transfer Prior to Final Endorsement.

If a request is received to approve a nonprofit to

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limited dividend transfer prior to final endorsement of
the mortgage, the mortgage should be reprocessed, if
possible, using a limited dividend mortgagor. If this
is not possible or appropriate, Loan Management staff
must conduct a transfer review in accordance with this
Handbook Chapter. Prior to endorsing the mortgage, the
field office must make certain that all statutory and
regulatory requirements relating to limited dividend
mortgagors have been satisfied.

13-22. Prepayment Restrictions.

Transfers from nonprofit to limited dividend mortgagor
entities do not remove the 40 year prepayment
restrictions in the original mortgages.

13-23. Distributions/Rent Formula.

The transfer to a limited dividend or profit-motivated
mortgagor does not change the formula used in
processing rents for the project. The original
nonprofit rent formula is used, without including a
return on equity. This does not preclude the owner
from receiving a distribution as permitted by the new
regulatory agreement but it is limited in any one year
to six percent of the actual cash contribution.

SECTION 5. DISPOSITION OF FLEXIBLE SUBSIDY UPON TRANSFER

The following guidelines must be applied to determine the
disposition of Flexible Subsidy in conjunction with the transfer
of a project:

13-24. Nonprofit to Nonprofit Transfer.

The Flexible Subsidy, whether in the form of a grant or
a loan, does not have to be repaid. However, an
assignment of the Flexible Subsidy loan to the new
nonprofit purchaser must be required in conjunction
with preliminary approval. Even though the loan does
not have to be repaid, the Field Office should
carefully review all Sources and Uses of funds and
assure that there are no funds available to repay or
reduce the Flexible Subsidy loan. If the Field Office
determines funds are available, a portion or all of a
loan should be repaid.

13-25. Limited Dividend/Profit Motivated to Limited
Dividend/Profit Motivated Transfer.

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The Flexible Subsidy loan must be repaid in full at the
time of transfer of the beneficial interest in the
project. However, if the limited dividend entity
originally received a Flexible Subsidy grant, HUD
cannot require prepayment of that grant as a condition
of TPA approval. Field staff should discuss the
conversion of the grant to a loan as part of the TPA
negotiation process or as a condition for any
additional assistance from HUD. A guiding principle to
aid Field staff in the negotiation process is that
conversion is required unless the purchaser can
demonstrate, to the satisfaction of the Field Office,
that circumstances exist which would make such a
conversion infeasible.

13-26. Nonprofit to Limited Dividend Transfer.

The Flexible Subsidy must be repaid in full at the time
of transfer. Where the physical and financial
condition of the property makes it impossible for the
purchaser to repay the Flexible Subsidy at the time of
transfer, HUD may approve repayment of the Flexible
Subsidy assistance over a specific period, provided a
minimum of one-third of the Flexible Subsidy is repaid
at the time of transfer. The remaining Flexible
Subsidy must be repaid according to a plan negotiated
with the Field Office, and approved by the Regional
Office.

The Field Office may approve Flexible Subsidy loan
repayment plans which contemplate repayment of the
remaining Flexible Subsidy within 24 months of
preliminary approval of the transfer. Any repayment
plan for a term of more than 24 months must be
thoroughly documented and referred to the Regional
Office for review prior to granting approval. This
does not require review by the Regional Office of the
full TPA application, only the Flexible Subsidy
repayment plan. Any referral to the Regional Office
must be accompanied by an analysis of the proposal and
the Field Office's recommendation.

When reviewing transfer proposals, it should be
understood that repayment of the Flexible Subsidy does
not remove the low and moderate income use restrictions
in the Use Agreement recorded against the project when
the Flexible Subsidy assistance was originally awarded.
The Use Agreement should be reviewed by Field Counsel
to ensure the use restrictions are enforceable.

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SECTION 6. SUBSIDY LAYERING AND EXCESS COMPENSATION

A TPA, full or modified, may involve subsidy layering, which
results from combining various forms of relief or assistance
within the jurisdiction of the Department with assistance from
other governmental sources. Subsidy layering may result in
excess compensation to some or all of the parties to a TPA. The
presence of subsidy layering is not, by itself, a problem; it may
reflect a wise and efficient use of scarce resources. However,
subsidy layering, when combined with the Low-Income Housing Tax
Credit (LIHTC) can result in excess compensation. If there is
excess compensation, the Department is obligated by law to reduce
the amount of assistance it will provide.

The Department has published policies and procedures governing
the relationship of subsidy layering to excess compensation in
the utilization of the LIHTC. All applicants are urged to read
and understand these policies and how they may impact a TPA.
(See Notice H-90-17 and 56 Fed. Reg. 14436, Administrative
Guidelines; Limitations on Combining Other Assistance with HUD
Housing Assistance.)

Generally, if the TPA involves the LIHTC but does not require any
additional assistance within the jurisdiction of the Department
(e.g., 241 supplemental loan, additional Section 8 units, etc.),
the issues associated with excess compensation will not be
present.

On the other hand, if the TPA contemplates the use of the LIHTC
in conjunction with other additional assistance from HUD, the
Department will address excess compensation as part of the TPA
review process. If HUD determines excess compensation is
present, the Department will provide a lower level of assistance.

Applicants should meet with appropriate Field Office staff prior
to submitting a TPA application if the transfer involves the
layering of federal subsidies and the use of the LIHTC.

SECTION 7. RELATIONSHIP TO OTHER COMMITMENTS

13-27. HUD Commitments

If the requirements HUD imposes as part of the TPA
review process cannot be met without the resources
produced by other independent commitments, the Field
Office may not issue a preliminary approval letter
until the other commitments have been made. For
example, if the project's financial and physical needs
cannot be met without a Flexible Subsidy loan, 241
supplemental loan, additional Section 8 assistance,

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etc., the Field Office may not grant preliminary
approval until the other necessary commitments have
been made. In the case of a HUD-insured loan, this
requirement will be satisfied with the issuance of a
firm commitment; in the case of a Flexible Subsidy loan
or additional Section 8 assistance, the requirement
will be met at the time the Field Office receives the
signed 185.1.

13-28. Other Governmental Commitments

If the requirements HUD is imposing will be satisfied
from assistance provided by another governmental agency
(Federal, state or local), a letter from that agency
indicating its decision to provide that assistance is
required, prior to the Field Office issuing preliminary
approval. This includes the agency allocating the tax
credits.

13-29. Low Income Housing Tax Credits (LIHTC)

If the TPA relies on the use of the proceeds of a LIHTC
syndication to meet HUD imposed requirements, a letter
of commitment from the syndicating group is required
prior to the Field Office issuing a preliminary
approval letter.

SECTION 8. RELATIONSHIP TO PRESERVATION OF LOW INCOME-HOUSING

13-30. Prepayment Restrictions

Title II of the Housing and Community Development Act
of 1987 ("Title II" or "ELIHPA") and Title VI of the
Cranston-Gonzalez National Affordable Housing Act
("Title VI" or "LIHPRHA") impose restrictions on the
prepayment of subsidized mortgages that could otherwise
be prepaid without HUD's consent. The primary
categories of projects subject to Title II and Title VI
are (1) section 221(d)(3) market rate projects with
Section 8 project-based assistance; (2) Section
221(d)(3) BMIR projects; and (3) Section 236
projects. Title II or Title VI is applicable only if,
under applicable contract or program regulations in
effect prior to February 5, 1988, the mortgage is or
will within 12 months or 24 months respectively become
eligible for prepayment without HUD's consent. An
owner who is prevented by Title II or Title VI from
prepaying the mortgage may apply for "incentives" in
exchange for agreeing to restrictions designed to

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preserve the low-income use of the project. Such
incentives are negotiated as part of a Plan of Action.
Transfers of Physical Assets that are contemplated as
part of a Plan of Action must be reviewed for
compliance with Title II or Title VI, as applicable.
Owners of such properties should consult with the
Regional Director of Housing or the field office's
Director of Housing Management concerning applicable
Plan of Action requirements.

13-31. TPA Restrictions Applicable to Certain Subsidized
Projects

Section 203(h) of the Housing and Community Development
Amendments of 1978, as amended by Section 181(g) of the
Housing and Community Development Act of 1987, provides
that the Secretary may not approve the sale of any
subsidized project that is subject to a mortgage held
by the Secretary or if the TPA involves the provision
of any additional subsidy funds by the Secretary or the
recasting of the mortgage unless the transaction will
ensure that such project will continue to operate at
least until the maturity date of the mortgage in a
manner that will provide rental housing on terms at
least as advantageous to existing and future tenants as
the terms required by the program under which the
mortgage was made. A "subsidized" project includes a
project receiving any of the following forms of
assistance:

Section 221(d)(3) BMIR loan
Section 236 interest reduction payments
rent supplement assistance
Section 202 or 312 programs
project-based assistance under Section 23 or Section
8 regardless of the number of units assisted

Whenever a project falls into the defined category, the
purchaser must agree either to execute a use agreement to
maintain the project in accordance with the tenant-related
provisions of the applicable mortgage program until the
maturity date, or to extend the prepayment prohibition to
the maturity date.

SECTION 9. MONITORING AND REPORTING

The Field Office manager/supervisor must ensure that each project
is monitored after preliminary approval, or where applicable,
final approval, to ensure that the conditions of approval are
satisfied.

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13-32. Monitoring Schedule

Monitoring should begin at the point at which
preliminary approval is issued, and continue until such
time as all of the terms and conditions of the transfer
have been satisfied, or for a period of at least three
years following preliminary approval, whichever is
longer. During this period, the physical and financial
condition of the project should be monitored. It is
suggested that transfers be reviewed, at a minimum,
every six months during the monitoring period. The
Field Office manager/supervisor is charged with
responsibility for monitoring each transfer of physical
assets, as well as determining the frequency of such
monitoring. He/she may delegate to a subordinate the
task of tracking the actions of the owner to determine
whether the conditions of the transfer have been
fulfilled. However, the ultimate responsibility for
ascertaining whether the purchaser has satisfied the
conditions of the transfer rests with the
manager/supervisor.

Each transfer remains in a monitored posture until such
time as the manager/supervisor certifies in writing:

o That all of the terms and conditions agreed to at
the time of preliminary approval and final
approval have been satisfied, and;

o That the project is in sound physical and
financial condition.

13-33. Monitoring Procedures for Completed TPAs

A. Establish Monitoring File.
A monitoring file should be developed for each
project at the time of preliminary approval of the
transfer. The monitoring file should contain a
copy of the preliminary approval letter and a
working copy of the MIO plan or repair program.
All actions taken by the Field Office to assure
compliance with the TPA approval will be filed in
the monitoring file. A copy of the reports or
site visits, etc. should also be filed with the
regular project file.

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B. Areas to be Monitored

1. Cash contributions
2. Physical improvements/repairs
3. Management improvements or changes
4. Disposition of Flexible Subsidy assistance
5. All other changes to be implemented at the
project.

13-34. Location and Maintenance of Monitoring File.
The monitoring files should be located in one central
place in the Field Office. A tickler system should be
established to ensure that each project is reviewed
during the month in which a contribution, change, or
improvement is scheduled. Periodic site visits are
necessary to determine the acceptability of physical
repairs. Management changes, cash contributions, etc.,
can be reviewed remotely through required reports.

13-35. Non-Compliance with Transfer.
If a scheduled payment or repair, etc., is not made as
agreed under the terms of the transfer, the servicer
assigned to monitor the transfer must provide the owner
with written notice of non-compliance, and direct that
appropriate corrective action be taken within the
reasonable period of time specified in the written
notice of non-compliance.

If the deficiency is not corrected within the period of
time specified in the written notice of non-compliance,
the situation should be reported to the Director of the
Office of Participation and Compliance and the Director
of the Office of Regional Housing. The Field Office
should immediately consider all options available to it
to enforce compliance. Field and Regional Counsel may
be consulted and, if necessary, the office of General
Counsel may be requested to participate in developing a
plan of enforcement. The available remedies include
Administrative Sanctions such as the use of Form
HUD-2530 previous participation procedures, LDP,
suspensions, etc., and affirmative litigation to
enforce the conditions of the TPA.

13-36. Operational Difficulties Unrelated to Transfer
Conditions. Where HUD review reveals no specific
violations of the conditions for transfer, but does
disclose that the project is experiencing operational
difficulty, the servicer must negotiate with the
project owner a plan for restoring the project to sound
condition.

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APPENDIX A

PROCEDURES FOR PROCESSING A FULL REVIEW TRANSFER

CONTENTS OF APPENDIX A

I. TRANSFERS REQUIRING FULL REVIEW

II. FULL REVIEW-OVERVIEW

A. Preliminary Approval

B. Final Approval

III. FULL REVIEW PROCESSING - DETAILS

A. Preliminary Approval

1. Step (1): Submission of TPA Application/Required
Documentation

2. Step (2): Review of Application for Completeness

3. Step (3): Review of Application and HUD required
Reports to Determine Acceptability of
Transfer

4. Step (4): Issuance of Preliminary Approval OR
Denial of TPA

B. Final Approval

1. Step (1): Certification of Changes

2. Step (2): Submission and Review of Executed and
Recorded Documents

3. Step (3): Issue Final Approval

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I. TRANSFERS REQUIRING FULL REVIEW: The following types of
transfers require a Full Review and payment of a transfer
fee. The Department imposes a fee of $0.50 per $1,000 of
the original face amount of the mortgage to cover the
costs of administrative, legal, and fiscal actions that a
review entails. Applications received for Full Review,
which are not accompanied by the proper fee will be
returned unreviewed. For applications which are reviewed
by HUD and subsequently withdrawn, the fee paid to HUD
will be considered earned and nonrefundable.

A. Transfer of title from the mortgagor-seller to buyer
including conveyance by installment sales contract,
land contract and wrap-around mortgage.

B. Transfer of any interest in a partnership which causes
a dissolution of the partnership under applicable
state law.

C. Transfer of 100 percent of the beneficial interest in
a passive trust, if the assignment results in a change
in control of the project.

D. Transfers requiring Full Review will be examined in
accordance with HUD's established Determinative
Criteria.

II. Full Review-Overview. A Full Review of a transfer
proposal is conducted in two phases:

A. Application for Preliminary Approval: The Field
Office will review the Application for Transfer of
Physical Assets, form HUD-92266, and all accompanying
documentation as set forth in Section III below. At
the end of the review process, if the transfer
proposal is acceptable, HUD issues a letter granting
Preliminary Approval of the application. It is at
this point that the parties to the transaction are
authorized to transfer possession of and beneficial
interest in the project. THE PURCHASER IS NOT
AUTHORIZED TO TRANSFER ANY INTEREST IN, TAKE
POSSESSION OF, OR ASSUME THE BURDENS AND BENEFITS OF
OWNERSHIP OF THE SUBJECT PROJECT WITHOUT THE PRIOR
WRITTEN APPROVAL OF HUD. If this requirement is
violated, the Department will pursue all
administrative, legal, civil and criminal remedies.

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APPENDIX A
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B. Final Approval: Processing: Review documents approved
at Preliminary Approval to make sure that they have
been executed and changed.

III. FULL REVIEW PROCESSING - DETAILS

Upon learning that a TPA is being considered, the Field
Office should schedule a meeting with the proposed
purchaser. At this meeting the requirements for TPAs may
be briefly reviewed.

HUD recommends that a purchaser contact the Field Office
early, before submitting the TPA application to discuss
the Field Office's requirements for submission. Delays
due to incomplete packages or inadequate number of
application packages may be avoided.

The purchaser should use the meeting to explain the TPA
transaction and the Field Office should take advantage of
the opportunity to explain the review process and any
expectations it may have.

A. Preliminary Approval

1. Step 1: Submission of TPA Application/Required
Documentation - commences with the submission of a
minimum of two copies of the - TPA Application
(form HUD-92266) and the required documentation,
as applicable and described more fully below. The
Field Office may require additional copies of the
entire application. At least one set of documents
must show original signatures.

The application must also be accompanied by the
information required by Housing Notice H 90-17,
Combining Low Income Housing Tax Credits (LIHTC)
with Other HUD Programs, or any modification or
substitute Notice.

The contents of the Application for Preliminary
Approval are listed below:

1. TPA Application (form HUD-92266)
2. Purchaser's Letter
3. Purchaser's Certificate of Previous
Participation (form HUD-2530)
4. Purchaser's Resume

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5. Source and Application of Funds
6. Executed but unrecorded Sale Contract, Option
Contract or Land Contract
7. Executed Seller/Purchaser Affidavit
8. Executed But Unrecorded Regulatory Agreement
9. Executed But Unrecorded Modification Agreement
10. Executed But Unrecorded Secondary Financing
Documents
11. Interim Financial Statement
12. Pro-forma Balance Sheet
13. Mortgagee's Statement of Escrow and Reserve
Account
14. MIO Plan
15. Proposed But Unrecorded Deed
16. Proposed Bill of Sale and Assignment
17. Proposed Management Certification, and Entity
Profile, if applicable, and form HUD-2530 for
Management Agent
18. Title Report
19. Mortgagor's Oath
20. Proposed Rental Schedule (form HUD-92458)
21. Executed Organizational Documents of Purchaser
22. Attorney's Certification
23. Byrd Amendment Certification
24. Purchaser's Personal Financial Statement (FHA
Form 2417)

A discussion of each of these items follows:

1. TPA Application consists of a properly
executed form HUD-92266. Note that if a lien
is being created, the mortgagee must sign the
application.

2. Purchaser's Letter - "Purchaser" is defined to
include all individuals purchasing as
individuals or as principals in a joint
venture, all general partners in a purchasing
partnership, or a corporation. The letter
must be signed by an authorized principal of
the purchasing entity.

The Purchaser's letter must describe in detail
all financial consideration flowing to the
project and the mortgagor/seller as a result
of the transfer. This letter must detail all
funds allocated to project operations as well

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APPENDIX A
________________________________________________________________________

as those funds designated for use in
correcting the physical needs of the project.

The letter should describe the entire
transaction, including but not limited to:

o how the transaction complies with the
Determinative Criteria;
o an explanation of the organization and
structure of the purchasing entity;
o an explanation of the business
transaction reflected in the Source and
Use of Funds Statement;
o the Purchaser's motivation for acquiring
the project;
o an explanation of its relationship to
the management agent and whether it
expects to make changes in the
management of the project, particularly
within the first year following
preliminary approval;
o an explanation of why it believes the
proposed repair program and/or deposit
to the reserve for replacement account
will be adequate to maintain the project
in safe, decent and sanitary condition;
and
o an explanation of how it will correct
any financial deficiencies reflected in
the interim financial statement,
including eliminating payables at
closing and making sure the various
escrows (property tax, insurance) and
trust accounts (tenant security deposit)
will be properly funded as a result of
the TPA.

The letter must state that if the project is
HUD-insured the project mortgage is current or
will be brought current as a result of the
transfer approval. If the mortgage is held by
HUD, the letter must state that the mortgage
is either current or it must describe a plan
for bringing the mortgage current.

All workout plans must comply with HUD workout
policies in effect at the time the TPA application
is submitted for Preliminary Approval.

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APPENDIX A
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3. Purchaser's Certificate of Previous
Participation (HUD Form 2530) - A Certificate
of Previous Participation (HUD Form 2530) must
be filed for all general partners and all
individuals and/or entities who own an
interest in the project of 25 percent or more
or who own 10 percent or more of the corporate
stock of the corporation purchasing the
project.

4. Purchaser's Resume - This is to be submitted
where the purchaser has no previous
participation with the HUD Field Office where
the application for transfer is submitted.
The Resumes for each principal of the
purchaser should be submitted and should be in
sufficient detail for HUD to understand the
nature of their real estate experience.

5. Sources and Uses of Funds - This shows ALL
expected sources of funds and ALL expected
uses of these funds. A suggested format is in
Appendix F. The applicant may modify this
format to suit the particular transaction, but
the modification may not be less detailed or
combine items to avoid specificity.

ALL PURCHASERS ARE REQUIRED TO INCLUDE A
SOURCES AND APPLICATION OF FUNDS. THERE ARE
NO EXCEPTIONS.

6. Executed but Unrecorded Sale Contract, Option
Contract or Land Contract - Submit the
applicable sale document in its entirety.

7. Executed Seller/Purchaser Affidavit - The
parties must submit with the sale contract a
sworn statement to the effect that the sale
contract recites all of the consideration
moving to the seller or any person identified
therewith.

8. Executed but Unrecorded Regulatory Agreement
Proposed Regulatory Agreement executed by the
Purchaser, as appropriate.

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9. Executed but Unrecorded Modification Agreement
or Release and Assumption Agreement - Proposed
Modification Agreement, Proposed Release and
Assumption Agreement, as appropriate.

10. Unexecuted Secondary Financing Documents - If
the proposed secondary financing involved
creates a lien against the project or
personalty thereof a consent statement from
the holder of the first mortgage must be
submitted. See Appendix H, Legal Review of
Transfer of Physical Assets Proposals.

11. Interim Financial Statement - Unaudited
interim financial statement (prepared period
from the date of the last audited financial
statement to the date of application.

12. Pro Forma Balance Sheet - Pro forma balance
sheet (prepared according to Handbook 4370.2).
This Balance Sheet will show how the project
accounts are expected to appear the day after
the expected date of closing.

13. Mortgagee's Statement of Escrow and Reserve
Account. The mortgagee should provide an
opinion as to the adequacy of the present
escrow balances (taxes, property insurance)
and present monthly deposits to meet the next
anticipated tax and insurance bills.

14. Management Improvement and Operating (MIO)
Plan - Where the project will have physical,
management, or financial needs or changes at
the time of the transfer, a MIO plan or
another plan acceptable to HUD must be
submitted, which describes the timing and
extent of planned repairs and financial
contribution and the timing for all management
or procedural changes.

15. Proposed but Unrecorded Deed

16. Proposed Bill of Sale and Assignment - See
form HUD-92266a, Instructions for Preparation
of the Application for Transfer of Physical
Assets, for fuller explanation.

________________________________________________________________________

9/92 13-34

_____________________________________________________________________
4350.1 REV-1

APPENDIX A
________________________________________________________________________

17. Proposed Management Certification and Form
HUD-2530 - Where a change of management is
contemplated by the transfer, a copy of the
proposed new management certification must be
included. This certification must be
completed in conformity with HUD Handbook
4381.5 REV-1. If not already on file with the
Field Office, a Management Agent Profile must
also be submitted. If the proposed agent has
not previously managed properties in the
jurisdiction where the project is located, a
brief summary or resume of the agency and its
principals should be included. Also, the new
management company must receive previous
participation clearance by filing Form HUD
2530.

18. Title Report - See FHA Form 2226 or equivalent

19. Mortgagor's Oath - See FHA Form 2478 or
equivalent

20. Proposed Rental Schedule (Form HUD-92458)
- original and completed form. NOTE: The
approval of this rental schedule in
conjunction with a TPA is not an approval to
raise the rents at the project. All rent
increases must be processed under existing
procedures.

21. Executed Organizational Documents of Purchaser
- See form HUD-92266a, Instructions for
Preparation of the Application for Transfer of
Physical Assets, for fuller explanation.

22. Attorney's Certification - The Purchaser's
attorney must certify that, following HUD's
preliminary approval, all documents requiring
execution and/or recordation will be executed
and, as required, recorded in the form
reviewed and approved by HUD. The attorney
must use the form entitled Attorney's
Certification, (Appendix A-12).

23. Byrd Amendment Certification - Regarding
disclosure to report lobbying. HUD will
provide statement and accompanying form, if
necessary, to be completed for this purpose.

________________________________________________________________________

13-35 9/92

_____________________________________________________________________
4350.1 REV-1

APPENDIX A
________________________________________________________________________

24. Purchaser's Personal Financial Statement
HUD will provide the form to be completed for
this purpose (FHA Form 2417).

The above documentation must be complete and
accurate. The documentation must be submitted
directly to the appropriate Field Office.
Upon receipt of this initial package, the
Field Office immediately provides the
applicant with a letter acknowledging receipt
of the application (See Handbook 4350.1,
Chapter 13). This acknowledgement does not
indicate acceptance of the application as to
form or content.

2. Step (2): Review of Application for Completeness
a. The Field Office logs in the application and
reviews the submission for completeness.
Following the initial review a deficient
application may be returned to the applicant.
(The sample found at Appendix A-2 entitled,
Return of Deficient Submission, should be used
for this task.) Alternatively, if the
deficiencies are not serious, the Field Office
should alert the applicant as to the missing
documents (see Appendix A-3 Request for
Correction of Deficient Submission). The
Field Office has the responsibility to
determine if a TPA application should be
returned or if the missing pieces should be
requested and processing delayed.

b. When a complete application is obtained, the
Field Office:

(1) Dates the application. (The date a
complete package is received by the
Field Office.)

(2) Forwards the application to the
appropriate servicer for review.

(3) Forwards one copy to the Field Counsel
or other division or branch having been
designated as part of the review
process. Use the sample in Appendix A-4
to request the other office's review.

________________________________________________________________________

9/92 13-36

_____________________________________________________________________
4350.1 REV-1

APPENDIX A
________________________________________________________________________

c. Processes Form 2530 pursuant to Handbook
4065.1.

d. Request necessary inspections and reports
(e.g., physical inspection, management
review).

e. Initiate other inquiries needed.

f. Complete form HUD-9575, entitled Transfer of
Physical Assets Information Sheet (Appendix
E).

3. Step (3): Review of Application and HUD Reports
to Determine Acceptability of Transfer

a. During this step the Field Office servicer,
field counsel, or other division/branch
simultaneously review the application, the
results of all HUD inspections and reports,
the physical inspection and cost analysis, if
applicable, submitted by the applicant.
Meetings and negotiations are held, if
necessary, among HUD and the purchaser and
seller.

The Field Office may seek guidance from
regional housing at any point during Step 3.
However, the Field Office is urged to contact
regional housing as soon as it determines that
guidance is necessary. All requests for
guidance or review by the regional office
(except requests from field counsel) should be
made to the Regional Director of Housing. The
Field Office should use the sample entitled
Request for Guidance from Regional Housing,
Appendix A-6 in transmitting this request.
The servicer should provide all attachments
required for ease of review.

If field counsel desires regional counsel to
review an aspect of the transaction requiring
legal review, it should request this review
using the sample at Appendix A-7. Copies of
the request should be provided to the Chief,
Loan Management Branch.

________________________________________________________________________

13-37 9/92

_____________________________________________________________________
4350.1 REV-1

APPENDIX A
________________________________________________________________________

b. During Step 3, the reviews not delegated to
the Field Office or the aspects of the
transaction requiring regional and
Headquarters approval take place. The Field
Office cannot proceed to Step 4 until it has
received these approvals.

4. Step (4): Issuance of Preliminary Approval, OR
Denial of TPA

a. The office prepares the preliminary approval
letter. Use the sample entitled, Preliminary
Approval at Appendix A-8. The letter should state
all terms and conditions of the approval,
including the requirements imposed by the Regional
Office or Headquarters, and, where applicable,
should include as a requirement, receipt of the
applicant's attorney's additional certification
(see paragraph B, 1 below and Appendix A-13). The
letter should also include a disclaimer stating
that
"This approval should in no way be
construed as evidence that HUD has
approved or reviewed the entire contents
of the Preliminary Prospectus of
_________________________, dated
_________. Said Prospectus is
considered merely a selling aid and is
not a required TPA document subject to
HUD approval".

b. If the office denies the transfer proposal,
use the sample letter entitled, Letter
Transmitting Decision to Deny TPA Proposal at
Appendix A-9.

B. Final Approval

1. Step (1): Certification of Change in Documents
Prior to Final Execution and Recordation - if HUD
required any changes to the documents submitted
during the Preliminary Approval review, the
applicant's attorney must certify to HUD that the
required changes have been made. (See Appendix A-13).

________________________________________________________________________

9/92 13-38

_____________________________________________________________________
4350.1 REV-1

APPENDIX A
________________________________________________________________________

2. Step (2): Submission and Review of Executed and
Recorded Documents and other Phase II Documents
- The applicant has 45 working days from the date of
preliminary approval to submit all executed and
recorded documentation to the Field Office. The
preliminary approval shall be the date on the
letter. Where the applicant finds that he/she is
unable to submit the appropriate documentation
within the required time period, he/she should
submit a written request for an extension of time
to the Field Office. Such extension must explain
the reason for the delay.

Phase II documentation consists of the following:

(1) All recorded documents; (2) unrecorded
executed documents; (3) audited interim financial
statement; (4) purchaser's balance sheet; (5)
mortgage statement; (6) title policy; (7) original
regulatory agreement; (8) attorney's opinion; (9)
rental schedule. These documents are discussed
below:

a. All Executed Recorded Documents - One
certified (by the recording officer) and one
conformed copy of all recorded documents
-- except the recorded Regulatory Agreement,
which is dealt with below.

b. All Unrecorded Executed Documents - Copies,
certified by the purchaser, trustee or other
responsible person to be true copies, of all
unrecorded executed documents used in
connection with the transfer.

c. Original Regulatory Agreement - Where
applicable, the original executed and recorded
Regulatory Agreement and one copy.

d. Audited Interim Financial Statement - Audited
Interim Financial Statements must cover the
period from the date of the last audited
report furnished to HUD to date of transfer.

________________________________________________________________________

13-39 9/92

_____________________________________________________________________
4350.1 REV-1

APPENDIX A
________________________________________________________________________

e. Purchaser's Balance Sheet - Actual Condition
Purchaser's Balance Sheet, as of the date of
the transfer of title to the purchaser, along
with copies of any deferred payment notes
approved by the Secretary and certified to be
true copies by the holder thereof.

f. Mortgagee's Statement - Mortgagee Statement
of all trust and escrow accounts as of date of
transfer of title to the purchaser.

g. Title Policy - Title Policy or endorsement, as
appropriate. If the mortgagor-seller is to be
released, a proposed title binder or letter
from the company issuing the original
mortgagee's policy shall show that after the
transfer the mortgage will remain a first lien
on the property and the mortgagee will still
be protected by a mortgagee's title policy.

h. Attorney's Opinion - Attorney's Opinion
stating that the transaction has been legally
consummated and that the purchaser is legally
authorized to operate the project and is
obligated to abide by the terms of the
Regulatory Agreement. The opinion must also
state that the documents that were executed
and/or recorded are the same, in form and
content, as those approved by HUD in the
preliminary review process. The attorney
shall not have an identity of interest with
the purchaser or seller.

i. Rental Schedule -Rental Schedule and or Budget
Worksheet if Applicable (form HUD-92458)
dated after the date of transfer of the
project. The Rental Schedule must show the
names of all principals for which HUD approved
a 2530 in connection with the TPA. The rental
schedule may not exceed the current rents most
recently approved by the Field Office, if the
rents have not been deregulated.

3. Step (3) - Field Office Review of Final Approval
Submission:

If the documentation is acceptable, final approval
of the transfer is issued and the sample letter

________________________________________________________________________

9/92 13-40

_____________________________________________________________________
4350.1 REV-1

APPENDIX A
________________________________________________________________________

entitled Final Approval is forwarded to the
applicant (Handbook 4350.1, Chapter 13).

When recording or other deficiencies are
discovered during Phase II, the purchaser will be
notified to immediately correct the deficiencies
and resubmit the corrected documents for review.

________________________________________________________________________

13-41 9/92

_____________________________________________________________________
4350.1 REV-1

APPENDIX A-1
________________________________________________________________________

Acknowledgement of Receipt of Submission

ADDRESSEE

Dear: __________________________

Subject: Project Name: _________________________
Project No: ________________________

We have received your application for a transfer of physical
assets on the subject project. Your application will be
processed pursuant to our standardized procedures for the review
of such transactions.

During the course of the review, HUD staff may find it
necessary to contact you for further information or for an
explanation of information you have already provided as part of
your application. Your cooperation and immediate attention to
our inquiries will help assure expeditious processing of your
application.

Please be advised that you are not authorized to transfer, take
possession of, or assume the burdens or benefits of ownership of
the subject property until such time as you receive a letter
signed by (Manager or Supervisor or Deputy Manager) authorizing
you to do so. Such letter will constitute preliminary approval
of the transfer. Verbal authorization to transfer or written
authorization signed by other than (the Office Manager,
Supervisor or Deputy Manager) is NOT sufficient.

I look forward to working with you in this matter and assure
you that every effort will be made by my staff to provide you
with prompt and courteous service. Inquiries which you may have
concerning your submission should be directed (name of loan
servicer) at (phone number).

Sincerely,

NAME
Chief,
Loan Management Branch

________________________________________________________________________

9/92 13-42

_____________________________________________________________________
4350.1 REV-1

APPENDIX A-2
________________________________________________________________________

Return of Seriously Deficient Submission

ADDRESSEE

Dear: _________________

Subject: Project Name: _____________________________
Project No: ______________________________

The transfer of physical assets proposal involving the subject
property which you submitted to our office on
_____________________ is being returned to you inasmuch as the
submission is seriously deficient. No further review of your
proposal will be conducted by our staff at this time. The
deficiencies found in your submission are as follows:

List all missing, incomplete or improperly prepared
documentation. Indicate the deficiency.

1.
2.
3.
4.
5.

Should you wish to resubmit your application in complete and
properly prepared form, my staff and I will be pleased to accept
and review your application. Please submit the application in
its entirety; do not submit only the missing or improperly
prepared exhibits.

All inquiries concerning this matter should be directed to
(name of loan servicer) at (phone number).

Sincerely,

NAME
Director,
Housing Management Division

________________________________________________________________________

13-43 9/92

_____________________________________________________________________
4350.1 REV-1

APPENDIX A-3
________________________________________________________________________

Request for Correction of Deficient Submission

ADDRESSEE

Dear: _______________________

Subject: Project Name: _____________________________
Project No: ______________________________

The transfer of physical assets proposal involving the subject
project, which you submitted to our office on
________________________is found to be deficient in the following
manner:

1.
2.
3.
4.

Due to the nature of the deficiencies HUD is retaining your
original submission at our office. If we do not receive the
above documentation within the next 30 calendar days, we will
assume you do not wish to pursue this proposal and shall return
your documentation to you.

If there are any questions concerning this matter, please
contact (name of loan servicer) at (Telephone number).

Sincerely,

NAME
Director,
Housing management Division

________________________________________________________________________

9/92 13-44

_____________________________________________________________________
4350.1 REV-1

APPENDIX A-4
________________________________________________________________________

Request for Legal or Other Review

MEMORANDUM FOR: (Chief Counsel, Valuation Chief, etc.)

FROM: NAME, Director, Housing Management Division,

SUBJECT: Transfer of Physical Assets
Project Name: ______________________
Project No: ____________________

Attached please find one copy of the (identify contents of the
attachment; e.g. one copy of the transfer proposal, etc.)
submitted to our office for review. Preliminary review of the
proposal indicates that the submission is complete.

Please review the enclosed pursuant to outstanding instructions
relating to the processing of transfers of physical assets.
Questions regarding this matter should be addressed to (name of
loan servicer).

________________________________________________________________________

13-45 9/92

_____________________________________________________________________
4350.1 REV-1

APPENDIX A-5
________________________________________________________________________

Request for Guidance from Regional Office

MEMORANDUM FOR: Name, Regional Director of Housing

FROM: Name, Director, Housing Management Division

SUBJECT: Transfer of Physical Assets
Project Name:_________________________
Project No:_____________________

An application for the transfer of the subject property has
been received by our office. A copy of the proposal is attached
to this memorandum.

____ While our office is reviewing the proposal, we request
your assistance in resolving the following issue(s)
pertaining to the proposal.

Describe in full the issue(s) and provide the Field
office analysis and recommendations.

____ The entire proposal should be reviewed by your office
because of the following:

Provide the reasons why Regional Office review is
required and the Field Office recommendation for action
and analysis.

Attached is copy of form HUD-9575, which provides basic
information about the project and the proposal. If there are
questions regarding this matter, please contact (name of loan
servicer) at (phone number).

Attachments

________________________________________________________________________

9/92 13-46

_____________________________________________________________________
4350.1 REV-1
APPENDIX A-6
________________________________________________________________________

Form Memo to Regional Counsel

MEMORANDUM FOR: Name, Regional Counsel

FROM: Name, Chief Counsel

SUBJECT: Transfer of Physical Assets
Project Name: ______________________
Project No: __________________

This is to request your review of the transfer of physical
assets for the subject property. Our review of the transfer
proposal indicates the following:

____ The proposal, except to the extent it involves standard
documents or pertains to local law should be reviewed by
your office because the transfer involves the following
matters:

Describe in full all areas which need Regional Counsel
review and provide recommendations and analysis

____ While our office is reviewing the proposal, we request
your assistance in resolving the following issue(s), which
have been previously discussed with your office.

Summarize the issue(s) and provide analysis and
recommendations

If you have questions, please call (attorney adviser) at
(phone).

________________________________________________________________________

13-47 9/92

_____________________________________________________________________
4350.1 REV-1

APPENDIX A-7
________________________________________________________________________

Preliminary Approval
ADDRESSEE

Dear: ____________________

Subject: Project Name: ___________________
Project No: _____________________

Please be advised that the transfer of physical assets proposal
which you submitted to our office on _________________ is hereby
granted preliminary approval subject to the following terms and
conditions:

Specify all requirements, actions, changes, etc. that are
conditions to the approval. REMEMBER, include the requirement
for an attorney's opinion in the event changes to the documents
are a condition of approval.

This approval should in no way be construed as evidence that
HUD has approved or reviewed the entire contents of the
Preliminary Prospectus of _____________________________, dated
_________. Said Prospectus is considered merely a selling aid
and is not a required TPA document subject to HUD approval.

You have 45 working days from the date of this letter in which
to conform all relevant documentation and activity to the terms
and conditions recited above, to execute and record that
documentation, and to submit such documentation and/or evidence
of required activity to our office. Preliminary approval
authorizes you to take possession of and assume the burdens and
benefits of ownership of the project, provided you comply with
all the conditions set forth in this approval letter.

I look forward to receipt of your Final approval submission
within 45 days. If you find that you are unable to provide the
required documentation to our office within the prescribed
period, a request for extension of this period must be made, in
writing, prior to the expiration of the 45 day period, but as
soon as possible after you learn of a delay. Provide specific
reasons for the delay and a target date for completion.

If there are questions, please call (loan servicer) at (phone).

Sincerely,

NAME
Manager

________________________________________________________________________

9/92 13-48
_____________________________________________________________________
4350.1 REV-1

APPENDIX A-8
________________________________________________________________________

Rejection of Proposed TPA

ADDRESSEE

Dear: _____________________

Subject: Project Name: _______________________
Project No: ______________________

Please be advised that the transfer of physical assets
application which you submitted to our office on (date) is denied
for the following reasons:

List the reasons for rejection.

If there are questions, please call (loan servicer) at (phone).

Sincerely,

NAME
Manager

________________________________________________________________________

13-49 9/92

_____________________________________________________________________
4350.1 REV-1

APPENDIX A-9
________________________________________________________________________

Request for Full Regional or Headquarters Review

MEMORANDUM FOR: Name, Director, Office of Regional Housing

FROM: Name, Director, Housing Management Division

SUBJECT: Transfer of Physical Assets
Project Name: ______________________
Project No: __________________

A proposal for the transfer of the subject property was
received on (date) by our office. We have attached a copy of the
proposal to this memorandum.

The entire proposal needs review by your office for the reasons
discussed below:

Our recommendations regarding this transaction are discussed
below:

Attachment

________________________________________________________________________

9/92 13-50

_____________________________________________________________________
4350.1 REV-1

APPENDIX A-10
________________________________________________________________________

Final Approval

ADDRESSEE

Dear: ____________________

Subject: Project Name ______________________
Project No. _____________________

Final Approval of your proposal for the transfer of the subject
property, which was submitted to our office on (date) is herewith
granted by HUD inasmuch as the terms and conditions of the
transaction and the documentation supporting such terms and
conditions are found to be acceptable to HUD. This approval is
conditioned upon strict compliance with the terms and conditions
of this transfer as agreed by HUD.

Sincerely,

NAME
Manager

________________________________________________________________________

13-51 9/92

_____________________________________________________________________
4350.1 REV-1

APPENDIX A-11
________________________________________________________________________

Attorney's Certification on Execution and Recordation

U. S. Department of Housing and Urban Development

Subject: Project Name
Project Number
Project Location

Dear: (insert name of Field Office manager)

This firm represents the purchaser of the above referenced
project. This letter is submitted in connection with an
application for transfer of physical assets of the project.

I hereby certify that the following documents submitted for
review (list all documents) are in the form in which they will be
executed and, if appropriate, recorded. I certify that these
documents will not be changed in any way following HUD review and
prior to execution and/or recordation without HUD's prior
specific approval. As to any document changes required by HUD
following its review, I agree to submit an additional letter
within ten working days of receipt of preliminary approval by HUD
in which I will certify that: (1) the documents have been changed
precisely as required by HUD, (2) no additional changes will be
made prior to execution and/or recordation of the revised
documents.

I further certify that I have advised my client that the
following events will cause HUD to seek a reconveyance to the
seller and to seek administrative sanctions for an unauthorized
transfer of physical assets: (1) execution and/or recordation
(without HUD's prior approval) of documents which vary in any
degree from the documents submitted for HUD review with this
letter, and (2) execution and/or recordation of the documents
submitted for HUD review prior to HUD approval of the transfer of
physical assets application.

Sincerely,

Attachments

________________________________________________________________________

9/92 13-52

_____________________________________________________________________
4350.1 REV-1

APPENDIX A-12
________________________________________________________________________

Attorney's Certification of Changes

U. S. Department of Housing and Urban Development

Subject: Project Name:
Project Number:
Project Location:

Dear: ___________________________

This firm represents the purchaser of the above referenced
project. This letter is submitted in connection with the
application for transfer of physical assets of the project.

During HUD's review of the TPA application, HUD required
changes to the following transfer documents (list all documents).
Regarding those changes, I certify that: (1) the documents have
been changed precisely as required by HUD and (2) no additional
changes will be made prior to execution and/or recording of the
revised documents.

Sincerely,

________________________________________________________________________

13-53 9/92

_____________________________________________________________________
4350.1 REV-1

APPENDIX B
________________________________________________________________________

PROCEDURES FOR PROCESSING A MODIFIED REVIEW TRANSFER

CONTENTS OF APPENDIX B

I. TYPES OF TRANSFERS REQUIRING A MODIFIED REVIEW

II. DOCUMENTATION REQUIRED FOR A MODIFIED REVIEW

III. PROCESSING A MODIFIED REVIEW

________________________________________________________________________

9/92 13-54

_____________________________________________________________________
4350.1 REV-1

APPENDIX B
________________________________________________________________________

I. Types of Transfers Recruiting a Modified Review:
The following types of transfers require a limited review.
A transfer fee of $0.50 per $1,000 of the face amount of
the original mortgage is charged for transactions covered
by A or C below, as required by 24 CFR 207.1(h). TPA
applications that do not include the fee will be returned
unprocessed.

A. A single transfer of in excess of 50 percent of the
interests of a partnership/mortgagor which does not
cause a dissolution of the partnership under
applicable state law.

B. Substitution of one or more general partners of a
partnership/mortgagor.

C. A single transfer of an amount in excess of 50 percent
of the corporate stock of a corporate mortgagor or a
single transfer of an amount less than 50 percent of
the total corporate stock of a corporate mortgagor
where such transfer results in a change in control of
the corporate mortgagor.

D. A single transfer of an amount in excess of 50 percent
of the corporate stock of a corporate General Partner
or a single transfer of an amount less than 50 percent
of the corporate stock of a corporate General Partner
where such transfer results in a change of control of
the corporate General Partner.

E. Any transaction which does not fall within any of the
other categories but which, nevertheless, results in a
change of control of the mortgagor.

These categories include not only a single transfer, but a
series of transfers which have the same result.

II. Documentation recruited for a modified review:
The following documentation must be submitted by the
purchaser to the HUD Field Office when a Modified Review
is required.

A. Documentation required for ALL transfers subject to
modified review:

________________________________________________________________________

13-55 9/92

_____________________________________________________________________
4350.1 REV-1

APPENDIX B
________________________________________________________________________

1. The mortgagor must notify the Field Office in
writing that the transaction is imminent. A
synopsis of the transaction must be provided;

2. Previous Participation (form HUD-2530) application
must be submitted for individuals and/or legal
entities who will own 25 percent or more of the
partnership interests, or 10 percent or more of
the corporate stock and for all incoming general
partners;

3. A completed form HUD-92458, Rental Schedule and
Information on Rental Project must be submitted.
The rents may not exceed those last approved by
the Field Office, unless the rents have been
deregulated;

4. The certification and information required by
Notice H 90-17, Combining Low Income Housing Tax
Credits (LIHTC) with HUD Programs, as modified by
any subsequent HUD notices or requirements; and

5. Sources and Uses of Funds Statement showing ALL
funds and ALL expected uses of funds (See Appendix
F for a sample format).

The purchaser must submit a letter addressing the
Determinative Criteria of the Notice for all
modified TPA's where a significant amount of money
will change hands.

6. A copy of the amended partnership agreement for
all transactions involving transfers of interests
in the owning entity, including the substitution
of one or more general partners.

B. Additional Documentation required only for a transfer
of 50 percent or more of the corporate entity,
corporate General Partner, Partnership or Beneficial
trust.

1. The applicant must provide a letter addressing the
determinative criteria.

________________________________________________________________________

9/92 13-56

_____________________________________________________________________
4350.1 REV-1

APPENDIX B
________________________________________________________________________

2. The applicant must provide copies of any proposed
amendments to the existing partnership agreement
and/or additional financing documents.

3. A partnership applicant must submit an attorney's
opinion that the transfer does not cause a
dissolution of the partnership under applicable
state law.

C. Documentation required only for the substitution or
addition of one or more general partners.

- A resume of the incoming general partner(s) must
be provided.

D. Additional documentation required only for the
transfer of less than 50 percent of the corporate
stock, which results in a change in control of the
corporate mortgagor or corporate general partner.

1. A meeting between the stock purchaser(s) and the
HUD staff in which the following is discussed.

a. The projects physical and financial condition.
If the project is suffering physical,
management or financial deficiencies, a plan
for remedying the
deficiencies will be discussed. A target date
for delivery of a written plan for correcting
all physical and financial problems will be
agreed to by all parties.

b. The duties of the owner (stockholders) under
the Regulatory Agreement and the mortgage
documents.

III. Processing a Modified Review. If the Field Office
determines that the applicant opted for a modified review
to avoid the more stringent requirements of the full
review process, the Field Office should impose the
appropriate full review requirements, including the
preliminary and final approval processing sequences. The
Field Office may wish to require interim financial
statements, a detailed purchaser's letter, satisfaction of
the determinative criteria, (including meeting the
project's physical and financial needs) etc. in such
cases.

________________________________________________________________________

13-57 9/92

_____________________________________________________________________
4350.1 REV-1

APPENDIX C
________________________________________________________________________

INSTRUCTIONS FOR PREPARATION OF THE APPLICATION
OF TRANSFER OF PHYSICAL ASSETS

These instructions are for the preparation of the application for
the transfer of physical assets. The application and
instructions have been developed to facilitate the expeditious
processing of proposals to transfer projects encumbered by
HUD-held and HUD-insured mortgages. Parties are cautioned against
introducing amendments or deviating from the instructions unless
such measures are absolutely necessary to make the entire
transaction effective. Nonconforming documents and deficient
information will, at best, result in delays and added expense.
The final paragraph of this application must be signed by the
mortgagee in every instance where the transfer will result in the
creation of a lien against the project.

A formal application must be executed by the purchaser, the
seller, and normally by the mortgagee. If the mortgagee refuses
to execute the application, the reason for such refusal must be
known to HUD in writing. Copies of any correspondence to or from
the mortgagee must be attached to the application. If the
mortgage has not been finally endorsed for insurance, the
application will not be accepted without the mortgagee's
execution. In instances in which the proposal to transfer
involves the creation of a lien against the property, the
mortgagee must consent to the transfer.

The Department of Housing and Urban Development, under 24 CFR
207.1(h), imposes a fee of $0.50 per $1,000 of the original face
amount of the mortgage to cover the cost of legal,
administrative, and fiscal actions which such a transfer entails.
The fee is to be paid with the filing of the application. For
applications reviewed by HUD and subsequently withdrawn, the fee
paid to HUD will be considered earned and nonrefundable.

The Application of Transfer of Physical assets must be used in
connection with transfers of properties encumbered by mortgages
insured by HUD as well as by mortgages owned by the Secretary of
HUD.

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4350.1 REV-1

APPENDIX C
________________________________________________________________________

Instructions for Preparation of Required Instruments for
Application for Preliminary Approval.

Below is a brief description of the more routine requirements of
the TPA application. Please see Appendix A for a more complete
description of these and other TPA requirements.

1. Purchaser's Letter Describing Financial Considerations
Flowing to Project and to HUD -- This must be a letter
from the purchaser describing in full detail all of the
financial considerations to flow to the project and to HUD
as a result of the transfer. This letter must detail all
funds allocated to project operations as well as those
funds designated for use in correcting the physical needs
of the project. See Appendix A, Purchaser's Letter, for
the complete list of items the letter must address.

2. Form HUD-2530 for All Appropriate Parties -- This form
must be filed for all general partners, proposed
management agents, and individuals and/or entities who own
an interest in the project of 25% or more or who own 10%
or more of the corporate stock of the corporation owning
the project. It must also be filed for new management
agents and certain categories of consultants (see HUD
Handbook 4065.1).

3. Purchaser's Resume -- This is a self-styled resume which
describes the purchaser's background and qualifications to
own the project. It should at a minimum, reference all of
the purchaser's previous experience in the multifamily
housing industry.

4. Purchaser's Personal Financial Statement -- HUD will
provide the form to be completed for this purpose (FHA
Form 2417).

5. Sources and Application of Funds -- This is to be provided
in all cases. See Appendix F for a suggested format.

6. Executed but UNRECORDED Sale Contract, Option Contract, or
Land Contract -- All consideration moving to the seller
must be recited.

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4350.1 REV-1

APPENDIX C
________________________________________________________________________

7. Executed Seller/Purchaser Affidavit -- This is a sworn
statement to the effect that the sale contract recites all
of the consideration moving to the seller or any person
identified therewith.

8. Proposed Release and Assumption, and Modification
Agreements -- These are to be provided only when the
purchaser is assuming the existing Note and Mortgage.
These forms are provided by HUD. They are to be completed
and signed by the mortgagor and mortgagee and submitted to
HUD for execution in preparation for preliminary approval.
If the transaction requires the execution of a new
Regulatory Agreement, e.g., NP-LD transfer, the purchaser
must submit a proposed New Regulatory Agreement.
Furthermore, the Modification Agreement, the instrument
that incorporates the regulatory agreement into the
existing mortgage, should be used in any case where there
is a new regulatory agreement. If the transaction does
not require the execution of a new Regulatory Agreement,
the purchaser must submit a proposed Release and
Assumption Agreement.

9. New Proposed Regulatory Agreement -- This is to be
provided where the parties are taking subject to the
existing Note and Mortgage or as explained at 8 above.
The appropriate agreement will be provided by HUD. It
must be executed by the Purchaser.

10. Unexecuted Secondary Financing Documents -- These include
all notes, deeds of trust, mortgages, financing
statements, agreements creating interests in personalty
and/or all other agreements evidencing deferred financing
except Land Contracts. These documents must conform with
outstanding administrative and legal requirements and must
be UNEXECUTED.

11. Interim Financial Statement -- The statement of the seller
is to be prepared in accordance with HUD Handbook 4370.2
and cover the period from the date of the last annual
report furnished to HUD to the date of the application.

12. Pro forma Balance Sheet -- The pro forma balance sheet
must reflect the proposed financial structure of the
purchaser immediately following the transfer, including
all current and fixed assets and liabilities, and all
classes of capital stock or shares in the mortgagor
entity. The balance sheet must show that the expected

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APPENDIX C
________________________________________________________________________

cash on hand will equal or exceed current liabilities and
prepaid income. Cash representing security deposits shall
be shown in a separate fund as required by the Regulatory
Agreement. The balance sheet shall be substantially as
prescribed in HUD Handbook 4370.2 and reflect the
financial structure as it relates to this property only.

13. Mortgagee Statement of Escrow and Reserve Accounts -- This
must be a statement certified by the mortgagee which
reflects the balance in the escrow and reserve accounts at
the time of application. This is not required where the
mortgage is held by HUD.

14. MIO Plan -- This is to be submitted in every instance in
which the project to be transferred has physical or
financial needs. The purchaser can either use the HUD
forms developed for evidencing an improvement plan (Forms
HUD-9835, -9835A, -9835B) or the purchaser can develop a
form of its own which clearly indicates the improvements
and/or contributions to be made and the dates such
improvements and/or contributions are to be made.

15. Proposed Management Certification -- This is to be
provided where a change of management is proposed.

Preliminary Approval

If upon examination the application and the attached instruments
are found in order, preliminary approval will be given to the
transaction by the appropriate official at the Area or
Multifamily Service Office responsible for processing the
application. This approval will be conditioned upon necessary
changes in the submitted documents and will authorize the
execution of all remaining instruments required.

The mortgagor-seller and purchaser have agreed by the terms of
the application to take any steps necessary to reconvey the
property to the mortgagor-seller if the terms of the preliminary
approval are not met within 45 working days from the date of the
issuance of preliminary approval, unless further time is granted
by the Commissioner in writing. Until HUD give preliminary
approval of the TPA in writing, the transaction may not take
place. HUD will prosecute to the fullest extent possible, any
unauthorized TPAs.

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4350-1 REV-1

APPENDIX C
________________________________________________________________________

Application for Final Approval

1. Executed HUD Approved Sale Contract -- This contract must
reflect the amendments required at preliminary approval.
This contract must be resubmitted with the application for
final approval.

2. Executed Secondary Financing Documents -- These documents
must reflect the amendments required at preliminary
approval.

3. Executed Deed -- Self-explanatory.

4. Executed Bill of Sale and Assignment -- Proposed Bill of
Sale and Assignment shall describe all personal property
conveyed and should be on the form provided by HUD.

5. Executed Release and Assumption Agreement -- This must be
submitted where the mortgagee has consented to the transfer
and the purchaser is assuming the mortgage. This must
reflect all amendments required at preliminary approval.

6. Executed Modification Agreement -- This must reflect the
amendments required at preliminary approval.

7. Title Policy -- If the mortgagor-seller is to be released,
a proposed title binder or letter from the company issuing
the original mortgagee's policy shall show that after the
transfer the mortgage will remain a first lien on the
property and the mortgagee will still be protected by a
mortgagee's title policy.

8. Mortgagor's Oath - (Use Form FHA-2478.) Not required for
projects insured under Sections 231 or 232 of the National
Housing Act.

9. Proposed Rental Schedule (Form HUD-92458) -- A copy of the
proposed Rental Schedule and information on Rental Project
shall be submitted by purchaser. It shall show the names
of all owners, including beneficiaries, stockholders, or
general partners. If stock is held by a purchasing
corporation, principal stockholders of that corporation
shall be shown. The Rental Schedule shall not exceed the

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4350.1 REV-1

APPENDIX C
________________________________________________________________________

maximum allowable rents approved for the project by the
service office director for projects subject to rent
regulation. In nursing home and elderly housing cases,
use Form HUD-92458-A, appropriately adapted, giving the
same information and, in addition, an operating budget.

10. Organizational Documents of Purchaser -- Unless the
purchaser is an individual, full details on the entity
acquiring the project shall be provided. If the purchaser
is a corporation, trust, or partnership, two certified
copies of the charter, trust, or partnership agreement
should be furnished. In all such cases, the charter or
agreement shall show that the corporation, partnership, or
trust is authorized to operate the project and execute and
be bound by the Regulatory Agreement. The charter,
agreement, or other proper document or minutes of meetings
should establish clearly the authority of persons
executing the Regulatory Agreement and other papers for
the purchaser.

11. Regulatory Agreement Executed by Purchaser -- This is to
be submitted again with the Application for final
approval.

12. Executed Management Certification -- This is to be
submitted where a change of management is proposed.

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4350.1 REV-1

APPENDIX D
________________________________________________________________________

APPLICATION FOR TRANSFER OF PHYSICAL ASSETS

Project Number:____________________________________ Date:_______

Project Name:____________________________________________________

Mortgagor-Seller:________________________________________________

Project Purchaser (includes Form of Ownership, e.g.,
Individual, Partnership, Corporation, Trust:_____________________
_________________________________________________________________

Mortgagee of Record:_____________________________________________
Address:________________________________________________________

Servicing Agent:_________________________________________________
Address:________________________________________________________

Mortgage Recorded:______________ State:________ County:_________
Date:_________________ Book:________________ Page:____________

To the Secretary, Department of Housing and Urban Development:

The above-named mortgagor-seller and the project purchaser submit
herewith the required fee of $________ and apply to the
Department of Housing and Urban Development for permission to
transfer the project from the mortgagor to purchaser and, in
support of said request represent to the Secretary as follows:

I. All real and personal property of the mortgagor-seller
will be conveyed to the purchaser.

II. After the transfer purchaser will own said real and
personal property free and clear of all liens,
encumbrances or project obligations except the insured
mortgagor and those expressly approved by you in writing
as to form, content, terms and amount.

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4350.1 REV-1

APPENDIX D
________________________________________________________________________

In further support of this request there are attached:

Application for Preliminary Approval
1. Purchaser's Letter (See Appendix A for requirements).
2. Form HUD-2530 for all appropriate parties (Certificate of
Previous Participation).
3. Purchaser's Resume.
4. Purchaser's Personal Financial Statement.
5. Sources and Application of Funds.
6. Executed but Unrecorded Sale Contract, Option Contract, or
Land Contract.
7. Executed Seller's/Purchaser's Affidavit.
8. If Parties Assume Existing Notes and Mortgage:
Where change in the Regulator Agreement is required,
Proposed New Regulatory Agreement
Proposed Modification Agreement
Where no change in the Regulatory Agreement is required,
Release and Assumption Agreement
9. If Parties Take Subject to Existing Note and Mortgage:
New Proposed Regulatory Agreement
10. Where Secondary Financing is Involved:
All unexecuted secondary financing documents (notes, deeds
of trust, mortgages)
11. Interim Financial Statements.
12. Pro forma Balance Sheet.
13. Mortgagee Statement of Escrow and Reserve Accounts.
14. MIO Plan, as Appropriate.
15. Proposed Management Certification and 2530 for Management
Agent (and Entity Profile, if appropriate).
16. Proposed but Unrecorded Deed.
17. Proposed Bill of Sale and Assignment.
18. Title Report.
19. Proposed Mortgagor's Oath.
20. Proposed Rental Schedule.
21. Executed Organizational Documents of Purchaser.
22. Attorney's Certification.
23. Byrd Amendment Certification

It is understood and agreed that within 45 working days of the
issuance of preliminary approval the following attachments will,
with such changes as you may require and no others, be delivered
to you. Unless said documentation is delivered to HUD within the
specified (45 working days) or unless further time for completing
the transaction is granted in writing by you. HUD may require
that the TPA be unwound and any interest already conveyed in the
property be reconveyed to the above-named mortgagor.

________________________________________________________________________

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4350.1 REV-1

APPENDIX D
________________________________________________________________________

Application for Final Approval

1. The following executed, or executed and recorded,
documents must be submitted as previously approved by HUD
for execution and recordation:

(1) Executed HUD-approved Sale Contract.
(2) Executed secondary financing documents (e.g. notes, deeds
of trust, security instruments, etc.).
(3) Executed Deed.
(4) Executed Bill of Sale and Assignment.
(5) Executed Release and Assumptions Agreement.
(6) Executed Modification Agreement.
(7) Title Policy.
(8) Mortgagor's Oath.
(9) Executed Rental Schedule.
(10) Organizational Documents of Purchaser (executed
partnership agreement, recorded certificate of limited
partnership, etc.)
(11) Regulatory Agreement as executed by purchaser (amended or
new), as approved by HUD.
(12) Executed Management Agent Certification.

2. One certified (by the recording officer) and one conformed
copy of all recorded documents except recorded Regulatory
Agreement. The original and one copy of recorded
Regulatory Agreements, if applicable.

3. A copy, certified by the Purchaser, trustee, or other
responsible person, to be a true copy of all unrecorded,
executed documents used in connection with the transfer.

4. An audited interim Financial Statement of the seller
covering the period between the date of the Application
and the date of the actual transfer of the project to the
owner.

5. An actual balance sheet of the purchaser as of the date of
the transfer of title to the purchaser, along with copies
of any deferred payment notes approved by the Secretary
and certified to be true copies by the holder thereof.

6. Mortgagee's statement of all trust and escrow accounts as
of the date of transfer of title to the purchaser.

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APPENDIX D
________________________________________________________________________

7. If the mortgagor-seller is to be released from the note
obligation, a new title policy or a letter from the title
company issuing the original title policy showing that
after the transfer the insured mortgage will remain a
valid first lien on the property and that the existing
title policy is still in full force and effect.

8. Attorney's comprehensive opinion showing that the
transaction has been fully consummated and that the
purchaser is legally authorized to operate the project and
abide by the terms of the Regulatory Agreement.

9. Form HUD-92458, Rental Schedule and information of Rental
Project or Form HUD-92458a, dated after date of transfer
of project to Purchaser.

Mortgagee's Statement

If the above transfer is approved by the Secretary, Department of
Housing and Urban Development, the mortgagee agrees to execute a
Release and Assumption Agreement or a Mortgage Modification
Agreement incorporating the Regulatory Agreement in the mortgage.
It is understood that the mortgagee's consent to this transfer
will in no way prejudice its rights under its contract of
insurance with HUD.

Executed this ______ day of _____________, 19___.

______________________________________________________ Mortgagee

By ______________________________________________________________
Name/Title

In the event the consent of the mortgagee to the transfer is not
evidenced by endorsement of this application, please provide the
following information:

Date Consent Requested: _______________________________________

Party to whom Request Directed: _______________________________

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4350.1 REV-1

APPENDIX D
________________________________________________________________________

Reason for Refusal to Consent: ________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________

Mortgagee's Consent to the Creation of a Lien Against the Project

Mortgagee hereby consents to the creation of a lien(s) against
the real property known as (project no.) ______________________,
(project name) ______________________________________________ in
connection with this transfer. Mortgagee waives its right to
assign the mortgage and claim insurance benefits by the reason of
the creation of such lien(s).

Executed this _________ day of _________________, 19___.

______________________________________________________ Mortgagee

By ______________________________________________________________
Name/Title

_________________________________________
Mortgagor-Seller Date

_________________________________________
By

_________________________________________
Purchaser Date

_________________________________________
By

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4350.1 REV-1

APPENDIX E
________________________________________________________________________

TPA SUBMISSION CHECKLIST
PRELIMINARY REVIEW

YES NO NA

1. TPA Application (form HUD-92266)

filled out completely _____ _____ _____
signed by purchaser _____ _____ _____
signed by seller _____ _____ _____
signed by mortgagee _____ _____ _____

2. Consent by Mortgagee _____ _____ _____
(required only where the proposal involves conversion to
condominium or cooperative or where a lien against the
property is created in connection with the transfer
--- FORWARD ORIGINAL DOCUMENT TO HUD, WASHINGTON HQ-- OFFICE
OF MULTIFAMILY HOUSING MANAGEMENT)

3. Fee submitted _____ _____ _____
correct amount _____ _____ _____

4. Purchasers letter describing
financial considerations flowing
to project and to HUD. (See
Appendix A, Purchaser's Letter
for additional checklist items.)

Shows: Funds to project operations_____ _____ _____
Funds for repairs _____ _____ _____

mortgage status
_____ current ___ workout ___ restoration plan

5. Completed HUD 2530 for:
all general partners _____ _____ _____
limited partners > 24% _____ _____ _____
holders of common stock
with an interest 10% _____ _____ _____
new management agent
all principals as defined
in 2530 instructions _____ _____ _____
all consultants and/or
packagers for profit _____ _____ _____

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4350.1 REV-1

APPENDIX E
________________________________________________________________________

YES NO NA

6. Purchaser's resume _____ _____ _____

7. Purchaser's personal financials_____ _____ _____

8. Purchaser's credit information _____ _____ _____

9. Sources and uses of funds _____ _____ _____

10. Executed sale or land contract _____ _____ _____

11. Executed seller's/purchaser's
affidavit _____ _____ _____

12. If parties assume existing note
and mortgage - Proposed Release
and Assumption Agreement _____ _____ _____

Proposed Modif'n Agreement _____ _____ _____

13. If parties take subject to the
existing note and mortgage
New proposed Regulatory Agrmt_____ _____ _____

14. Where secondary financing is
involved:
A. all unexecuted secondary
financing documents (notes,
deeds of trust, mortgages) _____ _____ _____

B. written consent of mortgagee
(where a lien against the
property is created) _____ _____ _____
FORWARD ORIGINAL WRITTEN CONSENT TO OFFICE OF MULTIFAMILY
HOUSING MANAGEMENT IN HEADQUARTERS
15. Interim financial statements _____ _____ _____

16. Pro forma balance sheet _____ _____ _____

17. Mortgagee statement of escrow
and reserve accounts _____ _____ _____

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4350.1 REV-1

APPENDIX E
________________________________________________________________________

YES NO NA

18. MIO plan, as appropriate _____ _____ _____

19. Management certification and
profile _____ _____ _____

20. Proposed unrecorded deed _____ _____ _____

21. Proposed bill of sale and
assignment _____ _____ _____

22. Title report _____ _____ _____

23. Mortgagor's oath _____ _____ _____

24. New rental schedule
(form HUD-92458) _____ _____ _____

25. Organizational documents of the
purchaser _____ _____ _____

26. Attorneys certification of
execution and recording _____ _____ _____

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4350.1 REV-1

APPENDIX E
___________________________________________________________________________

FINAL REVIEW

YES NO NA

1. Copies of all executed and recorded documents
Deed _____ _____ _____
Assumption agreement _____ _____ _____
Modification agreement _____ _____ _____
Release agreement _____ _____ _____
Secondary financing documents _____ _____ _____

2. Original Regulatory Agreement
Executed and Recorded _____ _____ _____

3. Interim audited financial
statements _____ _____ _____

4. Purchasers balance sheet _____ _____ _____

5. Mortgagee's statement of escrows
and reserves _____ _____ _____

6. Title Policy _____ _____ _____

7. Attorney's opinion _____ _____ _____

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_____________________________________________________________________

4350.1 REV 1

APPENDIX F

___________________________________________________________________________

SOURCES AND USES OF FUNDS STATEMENT

Click Here to Download/Open Appendix F (PDF File)

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4350.1 REV 1

APPENDIX F

__________________________________________________________________________

__________________________________________________________________________

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4350.1 REV 1

APPENDIX F

__________________________________________________________________________

__________________________________________________________________________

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4350.1 REV-1
APPENDIX G U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
WASHINGTON D.C. 20410

OFFICE OF THE GENERAL COUNSEL

MEMORANDUM FOR: All Regional Counsel
All Chief Counsel
All Chief Attorneys

FROM: Charles J. Bartlett, Assistant General Counsel
Multifamily Mortgage Division, GHM

SUBJECT: Legal Review of Transfer of Physical Assets Proposals

This memorandum is intended to be the new primary source of
guidelines for field counsel on the legal review of transfer of
physical assets proposals. In this memorandum, we have revised
and updated our legal requirements to adapt to the most recent
administrative procedures (to be issued in a separate
memorandum.) This Division's prior memorandum dated December 6,
1982 entitled "Review of Transfer of Physical Assets Proposals" is
cancelled.

In revising our legal requirements, we have taken into
account new developments in the sales of multifamily projects
subject to HUD-insured or HUD-held mortgages. Furthermore, we
have adopted new legal requirements designed to assist field
counsel in the review of the new "expedited" TPA's such as
transfers in escrow. (Therefore, this memorandum should be read
in conjunction with the forthcoming memorandum on administrative
requirements for TPA's.) Although we have made some changes in
the arrangement of required language in secondary financing
documents, this memorandum adopts the format used in our
December 6, 1982 memorandum and contains three Sections: (I)
Transfer of Physical Assets Review; (II) Secondary Financing; and
(III) Other Transfer Related Issues.

I. REVIEW OF TRANSFER OF PHYSICAL ASSETS

A. Definition. A transfer of physical assets is a change in
the ownership of a project upon which there is a mortgage
loan insured or held by HUD. Although a conveyance of
title from the mortgagor-seller to the buyer is a transfer
of physical assets, the Department also treats the sale of
a project by means of a land contract as a transfer of
physical assets even though legal title remains in the
mortgagor-seller. Similarly, where a passive trust holds
title to a project, an assignment of 100 percent of the
beneficial interest in that trust, resulting in a
significant change in the control and management of the

9/92 13-76

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4350.1 REV-1
APPENDIX G

project, is subject to transfer of physical assets review
although legal title remains in the trustee. Moreover,
the transfer of 50 percent or more of the interests in a
partnership to a separate entity constitutes a transfer of
physical assets whether or not the assignment causes the
dissolution of the partnership. Once a particular
proposal is determined to be a transfer of physical
assets, applicable requirements set forth in Form
HUD-92266, Application for Transfer of Physical Assets
hereinafter Application , and Form HUD-92266A,
Instructions for Preparation of HUD-92266-Application for
Transfer of Physical Assets, hereinafter Instructions ,
will be utilized in processing the proposal. (We
anticipate that the Application and instructions will be
revised and supplemented with checklists, worksheets,
etc.) Background information regarding transfer
procedures is found in Chapter 4, Section 11 of HUD
Handbook 4350.1. Insured Project Servicing, and Chapter 3
of HUD Handbook 4360.1 Supp 1, HUD-Held Project
Servicing. (The HUD Handbook procedures for TPA's are in
the process of being revised to reflect changes in
Departmental policy.)

In addition, significant changes in a mortgagor which
are less than a full transfer of physical assets may
require administrative review by Housing. Housing has
developed a "modified review" for the transfer at any one
time of an amount in excess of 50 percent and up to 100
percent of the interest of the partnership mortgagor
provided such transfer does not constitute a dissolution
of the partnership under state law. (Dissolution of the
partnership would be subject to a full review.) The issue
of whether such 100 percent transfer would cause a
dissolution under state law should be resolved by field
counsel. Other transfers which require modified review
procedures include: Substitution of one or more of the
general partners; transfer at any one time of an amount in
excess of 50 percent of the corporate stock of the
corporate mortgagor and transfer of an amount less than 50
percent of the total corporate stock of the corporate
mortgagor where such transfer results in a change in the
control of the corporate mortgagor. Field counsel should
be aware of the current administrative requirements with
respect to "modified review", procedures.

Finally, a transfer of physical assets is possible
prior to final endorsement. A transfer of the project
during this period would necessitate the execution of both
HUD transfer and development forms. In general, all
transfer of physical assets requirements established in
the Application should be followed. However, a
reprocessing of the application for mortgage loan

13-77 9/92

_____________________________________________________________________
4350.1 REV-1
APPENDIX G

insurance using revised information set forth by the buyer
in FHA Form No. 2013, Application for Project mortgage
insurance, may be required in lieu of a transfer. Because
a reprocessing usually results in a change in the mortgage
amount, certain development documents (e.g., Building Loan
Agreement, Construction Contract) also must be revised to
reflect the change. Other development documents executed
by the mortgagor may also require an assignment or
reexecution if the transfer occurs during the construction
period.

The transfer of physical assets procedure is not
applicable to first user syndications (i.e. the sale of
interest units in an existing limited dividend
partnership mortgagor which occurs at or prior to final
endorsement.) First user syndications should be reviewed
in accordance with the administrative requirements for
substitution of partners. Furthermore, some transactions
which involve changes in the mortgagor entity are not
transfers of physical assets. Field counsel should
contact this Division with questions concerning whether
certain changes in a mortgagor entity constitutes a
transfer of physical assets. (Note, that 24 C.F.R.
5207.1(h) requires payment of a transfer fee in all cases
involving substitution of mortgagors.)

B. Review of Field Counsel. All proposals should first be
substantively reviewed by field counsel regardless of
whether legal review by this Division is required.

This Division will review all transfers which are
forwarded to Central Office under outstanding
administrative criteria or which present legal issues
which this Division should examine. For example,
transfers involving conversions to the cooperative form of
ownership; long-term leases with options to purchase; and
conversions from the cooperative form of ownership to
operation as a rental project each require review by this
Division.

Generally, multiple transfers and transfers involving
land contracts no longer require review by this
Division. However, if necessary, field counsel should
contact this Division for assistance in reviewing these
proposals.

Occasionally, this Division approves standard TPA
documents in connection with a particular purchaser. Any
substantive changes to these previously approved documents
should be discussed via telephone with a Division attorney
in order to expedite field office review.

9/92 13-78

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4350.1 REV-1
APPENDIX G

C. Review of Application. The following legal issues
frequently arise during the review of the TPA application:

1. Regulatory Agreements. A new Regulatory Agreement
should be executed whenever the transfer is "subject
to" the existing note and mortgage. In Cases where
the purchaser is assuming the existing note and
mortgage, the purchaser may also assume the existing
Regulatory Agreement. A new Regulatory Agreement must
be executed in connection with any transaction which
involves a change in the type of a mortgagor entity
(i.e. a NP-LD transfer or cooperative or rental
conversion) or in cases where the existing Regulatory
Agreement has been superseded by a more recent
version. Where the project subsidy is converted to
Section 8, a new type of Regulatory Agreement may be
required which combines parts of the original
Regulatory Agreement with the Section 8 Regulatory
Agreement. Please contact this Division for
assistance in formulating such a "hybrid" Regulatory
Agreement.

Regulatory Agreements executed in connection with
a transfer by land contract should be executed by both
the seller and the purchaser. Additionally, the
Regulatory Agreement should contain "Rider A" to the
Regulatory Agreement.

2. Mortgagee Consent. Mortgagee consent to the TPA is
required whenever the purchaser is assuming the
existing note and mortgage. This consent is evidenced
by the mortgagee's execution of the TPA application.
In such cases the mortgagee must also execute an
Assumption Agreement and a Modification Agreement. A
"subject to" transfer does not require mortgagee
consent. However, present administrative procedures
require evidence of the mortgagee's failure to consent
to the transfer. (See TPA application instruction
form.) Where a "subject to" transfer involves any of
the following, mortgagee consent is required:
Secondary financing secured by a lien against the
project, land contracts, and long-term leases with
options to purchase. (Mortgagee consent is discussed
in greater detail in Part II of this memorandum.)

3. Secondary Financing. If the transfer involves
financing creating a lien against the project and the
mortgagee consents to the creation of this lien, the
phrase in clause II of the Application which states

13-79 9/92

_____________________________________________________________________
4350.1 REV-1
APPENDIX G

that the buyer will "own said real and personal
property free and clear of all liens or encumbrances
except the insured mortgagee . . ." should be deleted.

4. Organizational Documents. Field counsel review of the
buyer's organizational documents submitted with the
Application should be similar to the review of the
mortgagor's documents submitted in connection with an
FHA initial closing.

In general, the organizational documents should
expressly indicate that the duration of the acquiring
entity is at least coextensive with the remaining
term of the mortgage. Furthermore, the documents must
include a provision stating that the terms of the
Regulatory Agreement take precedence in the event of
any conflict with the terms of the organizational
documents. In addition, it should be clear from the
documents that the buyer has authority to enter into
the transaction.

With respect to the review of a limited
partnership agreement, it has come to our attention
that the form language required by the Regulatory
Agreement Instructions may have to be modified in
jurisdictions adopting the Uniform Limited Partnership
Act or Revised Uniform Limited Partnership Act. The
Regulatory Agreement instructions currently provide
that " a ny incoming partner shall as a condition of
receiving an interest in the partnership property
agree to be bound by the note, mortgage, and
Regulatory Agreement . . . ." The Uniform Acts
provide that a partner does not own an interest in the
property of the partnership, but in the partnership
itself.

FIELD COUNSEL SHOULD REVIEW THE ORGANIZATIONAL DOCUMENTS OF ANY
ACQUIRING PARTNERSHIP TO MAKE CERTAIN THAT THEY CONTAIN THE
REQUIRED LANGUAGE SET OUT AT SECTION II, SUBSECTION G. infra
("Secondary Financing Secured by Assets of the Acquiring
Partnership") AND DO NOT OTHERWISE CONFLICT WITH ANY HUD
REQUIREMENTS.

5. Deed. The form of deed shall be reviewed by field
counsel for compliance with local law. The form of
deed must be a special warranty deed or its equivalent
(i.e. a deed which includes a covenant against the
acts of the grantor.)

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435D.1 REV-1
APPENDIX G
II. SECONDARY FINANCING

Secondary Financing is used when the mortgagor-seller does
not receive the full purchase price at the time of the transfer
and agrees to its payment over a period of time. The method of
securing payment of the deferred purchase price may create a lien
against the project. HUD reviews all financing in connection with
the transfer although HUD requirements differ between secondary
financing which creates a lien against the project and that which
does not. The following legal requirements controlling the use of
secondary financing must be satisfied before approval of the use
of secondary financing may be permitted for subsidized and
unsubsidized projects:

A. Deferred Cash Payments Many transfers which involve
syndication of the project provide for mandatory deferred
cash payments to the mortgagor-seller of the project to be
made within the first five years of the transfer. This
arrangement is legally acceptable provided that the sales
agreement or other documents expressly states that these
payments are to be derived from the capital contributions
of the syndicating limited partnership and not from
project income.

B. Mortgagee Consent -- Secured Secondary Financing. The
holder of the first mortgage must consent in writing to
all financing secured by the project (i.e., where a lien
is created against the project by the secondary
financing.)

C. Mortgagee Consent -- Unsecured Secondary Financing. If the
secondary financing is not secured by the project, the
purchaser should try to obtain consent to the financing
from the holder of the first mortgage. Failure to obtain
mortgagee consent when the secondary financing is not
secured by the project, however, does not mean that HUD
will not consent to the transfer. If the mortgagee does
not respond to the request for consent, the purchaser or
purchaser's attorney must certify that an attempt was made
to obtain mortgagee consent. The purchaser is not
required to produce a letter from the mortgagee.

D. Subordination of Secondary Financing. The second mortgage
or security agreement must be subordinate to the HUD-held
or HUD-insured mortgage. The following language, as
appropriate, must be included:

Security Agreement: Secured Party, for
itself and its successors and assigns,
covenants and agrees that all of its rights
and powers under this security agreement
are subordinate and subject to the rights

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4350.1 REV-1
APPENDIX G

of (identify mortgagee) under that certain
mortgage (deed of trust) dated __________
and recorded (date, office of recordation)
and under that certain Security Agreement
dated ______________, and the rights of the
Secretary of Housing and Urban Development
under that certain Regulatory Agreement
dated ________________ and incorporated by
reference in the above described mortgage.

Second or Wrap-Around Mortgages:
Mortgagee, for itself and its successors
and assigns, covenants and agrees that all
of its rights and powers under this
mortgage are subordinate and subject to the
rights of (identify first mortgagee) under
that certain mortgage (deed of trust)
dated _____________ and recorded (date,
office of recordation) and under that
certain Security Agreement dated ___________,
and the rights of the Secretary of Housing
and Urban Development under that certain
Regulatory Agreement dated _________________
and incorporated by reference in the above
described mortgage.

E. Prohibition Against Attaching or Assigning Rents and Other
Income. Assignment of rents or other income of the
project subject to a HUD-insured or HUD-held mortgage to
any party other than the HUD mortgagee is prohibited by
the terms of the first mortgage unless there is written
mortgagee consent to the assignment. Furthermore, the
attachment of rents or other project income in the event
of foreclosure of a second or wrap-around mortgage also is
prohibited. The following language must be included in
the second or wrap-around mortgage;

Mortgagee, for itself and its successors
and assigns, further covenants and agrees
that in the event of the appointment of a
receiver or of the appointment of the
mortgagee as mortgagee-in-possession, in
any action by the mortgagee, its successors
or assigns, to foreclose the mortgage, no
rents, revenue or other income of the
project collected by the receiver or by the
mortgagee-in-possession shall be utilized
for the payment of interest, principal or
any other charges due and payable under
this mortgage, except from surplus cash
available for distribution, if any, as the
term is defined in the Regulatory

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APPENDIX G

Agreement; and further, the receiver or
mortgagee-in-possession shall operate the
project in accordance with all the
provisions of the first mortgage and the
Regulatory Agreement.

F. Payment Only from Surplus Cash. Notes evidencing
secondary (deferred) financing must provide that any
payments from project income can only be made from surplus
cash (if the project has a profit-motivated mortgagor) and
permissible distributions from surplus cash - - e.g., 6, 8
or 10% (if the project has a limited distribution
mortgagor.) The following language must be in the Note or
Wrap-Around Note:

1. Note Secured by a Lien Against the
Project: As long as the Secretary of
Housing and Urban Development, or his
success or assigns, is the insurer or
holder of the mortgage on (insert project
name and FHA Project No.), any payments due
from project income under this Note shall
be payable only from permissible
distributions from (omit "permissible
distributions from" if a profit-motivated
mortgagor) surplus cash of the said
project, as that term is defined in the
Regulatory Agreement dated
____________________ between the Secretary of
Housing and Urban Development and (insert
name of mortgagor-seller). The restriction
on payment imposed by this paragraph shall
not excuse any default caused by the
failure of the maker to pay the
indebtedness evidenced by this Note.

2. Note Not Secured by a Lien Against the
Project: As long as the Secretary of
Housing and Urban Development, or his
successor or assigns, is the insurer or
holder of the mortgage on (insert project
name and FHA Project No.), any payments due
from project income under this Note shall
be payable only from permissible distributions
from (omit "permissible distributions
from" if a profit-motivated mortgagor)
surplus cash of the said project, as that
term is defined in the Regulatory Agreement
dated ________________ between the Secretary
of Housing and Urban Development and
(insert name of mortgagor-seller). The
restriction on payment imposed by this

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4350.1 REV-1
APPENDIX G

paragraph shall not excuse any default
caused by the failure of the maker to pay
the indebtedness evidenced by this Note.
Holder has no claim, and will not later
assert any claim for payment against the
mortgaged property, the mortgage proceeds,
any reserve or deposit made with the
mortgagee or another required by the
Secretary in connection with the mortgage
transaction, or against the rents or other
income from the mortgaged property.

3. Wrap-Around Note Secured by a Lien Against
The Project: As long as the Secretary of
Housing and Urban Development, or his
successor or assigns, is the insurer or
holder of the mortgage on (insert project
name and FHA Project No), any payments
under this Wrap-Around Note will be made in
the following manner. First, the maker of
this Note (insert name of buyer) will
segregate all project income as required
under the Regulatory Agreement dated
________________ between the Secretary of
Housing and Urban Development and (insert
name of mortgagor-seller). Second, the
maker of this Note will deliver to the
holder of this Note all sums due or
currently required to be paid under the
terms of any mortgage or note insured or
held by the Secretary of Housing and Urban
Development and all amounts required to be
deposited in the Reserve Fund for
Replacements. Holder, in turn, will apply
these funds as required under the aforesaid
first mortgage and Regulatory Agreement.
Third, in the event of surplus cash as that
term is defined in the aforesaid Regulatory
Agreement, the maker will deliver to the
holder of this Note permissible distributions
from (omit "Permissible distributions
from" if a profit-motivated mortgagor)
surplus cash to the extent available to
satisfy any current or deferred amounts to
be paid under this Note. The restriction
on payment imposed by this paragraph shall
not excuse any default caused by the
failure of the maker to pay the
indebtedness evidenced by this Note.

4. Wrap-Around Note Not Secured by a Lien
Against the Project. As long as the

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4350.1 REV-1
APPENDIX G

Secretary of Housing and Urban Development,
or his successor or assigns, is the insurer
or holder of the mortgage on (insert
project name and FHA Project No.), any
payments under this Wrap-Around Note will
be made in the following manner. First,
the maker of this Note (insert name of
buyer) will segregate all project income as
required under the Regulatory Agreement
dated _________________ between the
secretary of Housing and Urban Development
and (insert name of mortgagor-seller).
Second, the maker of this Note will deliver
to the holder of this Note all sums due or
currently required to be paid under the
terms of any mortgage or note insured or
held by the Secretary of Housing and Urban
Development and all amounts required to be
deposited in the Reserve Fund for
Replacements. Holder, in turn, will apply
these funds as required under the aforesaid
first mortgage and Regulatory Agreement.
Third, in the event of surplus cash as that
term is defined in the aforesaid Regulatory
Agreement, the maker will deliver to the
holder of this Note permissible
distributions from (omit "permissible
distributions from" if a profit-motivated
mortgagor) surplus cash, to the extent
available to satisfy any current or
deferred amounts to be paid under this
Note. The restriction on payment imposed
by this paragraph shall not excuse any
default caused by the failure of the maker
to pay the indebtedness evidenced by this
Note. Holder has no claim for payment and
will not later assert any claim against the
mortgaged property, the mortgage proceeds,
any reserve or deposits made with the
mortgagee or another requited by the
Secretary in connection with mortgage
transactions, or against the rents or other
income from the mortgaged property.

G. Secondary Financing Secured by Assets of the Acquiring
Partnership. Proposals involving secondary financing
secured by pledges of the assets of the acquiring
partnership should include the following language in the
partnership's organizational documents:

1. If the partnership will assume the HUD note and
mortgage:

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4350.1 REV-1
APPENDIX G

The partnership is bound, to the same
extent as the original executing party,
by the mortgage note, mortgage,
Regulatory Agreement and other
documents that have been executed in
connection with the HUD insured
mortgage loan affecting the partnership
property. Upon any dissolution, no
title or right to possession and
control of the partnership property
financed under such HUD-insured
mortgage loan, and no right to collect
the rents therefrom, shall pass to any
person who is not so bound in a manner
satisfactory to the Secretary of
Housing and Urban Development.

2. If the partnership will not assume the HUD note and
Mortgage:

The Partnership, and any incoming
General Partners or Limited Partners,
shall, as a condition of receiving an
interest in the Partnership or its
property, agree to be bound to the same
extent as the original executing party
(except as to obligations for payments)
by the terms of the HUD mortgage and
Regulatory Agreement and any other
documents that have been executed in
connection with the HUD-insured
mortgage loan on the project. Upon any
dissolution, no title or right to
possession and control of the
partnership property financed under
such HUD-insured mortgage loan, and no
right to collect the rents therefrom,
shall pass to any person who is not
bound in a manner satisfactory to the
Secretary of Housing and Urban
Development.

3. The organizational documents of the partnership should
provide for HUD approval of an amendment thereto:

As long as the Secretary of Housing and
Urban Development, or his successors or
assigns, is the insurer or holder of
the mortgage on (insert project name
and FHA Project No.), no amendment to
this (name of the document) which

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4350.1 REV-1
APPENDIX G

results in any of the following shall
be of force or effect without the prior
written consent of HUD: (1) any
amendment which modifies the duration
of the (partnership agreement)
(corporate charter); (2) any amendment
which results in the requirement that a
HUD prior participation certification
be obtained for any additional party;
and (3) any amendment which in any way
impacts or affects the HUD mortgage or
Regulatory Agreement.

H. Acquisition by Deed-in-Lieu of Foreclosure. In the event
the Secretary acquires title by deed-in-lieu of foreclosure,
the second lien created by a second or wrap-around
mortgage will terminate. The following language must be
included in the second or wrap-around mortgage:

"In the event the Secretary acquires title
to the project by a deed-in-lieu of
foreclosure, the lien of the second
wrap-around mortgage will automatically
terminate subject to the conditions
hereinafter described. The holder of the
second wrap-around mortgage may cure a
default under the first mortgage prior to a
conveyance by deed-in-lieu of
foreclosure. The Secretary shall give
written notice to the holder of the
second wrap-around mortgage of a
proposed tender of title in the event (1)
the Secretary decides to accept a deed-in-lieu
of foreclosure or (2) the Secretary
receives notice from the holder of the
HUD-insured mortgage of its election to accept
a deed-in-lieu of foreclosure. The
Secretary will give such written notice if,
at the time of the placing of the
subordinate lien against the project, the
Secretary receives a copy of an endorsement
to the title policy of the mortgagor or
holder of the HUD mortgage which indicates
that (1) the second wrap-around
mortgage has been recorded; and (2) the
Secretary is required to give notice of any
proposed election to or tender of a
deed-in-lieu of foreclosure. Such notice shall
be given at the address stated herein or
such other address as may subsequently,
upon written notice to the Secretary, be
designated by the holder of the second

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4350.1 REV-1
APPENDIX G

wrap-around mortgage as its legal
business address. The second mortgage
holder shall have thirty (30) days to cure
the default after the notice of intent to
accept a deed-in-lieu of foreclosure is
mailed."

I. Secondary Financing with Balloon Payments Provisions In
all TPA's, field counsel may approve unsecured notes
evidencing secondary financing which contain balloon
payment provisions. This policy is limited by the
following: (1) The balloon second note shall not result
in the creation of an earlier maturity date for the HUD
note and mortgage. (Under the National Housing Act, an
insured multifamily mortgage must provide for full
amortization. See e.g., 12 U.S.C. 1713(c)(3). Thus, a
balloon mortgage which wrapped an existing HUD-insured
mortgage and which became due prior to prepayment or
maturity of the HUD mortgage or the termination of
mortgage insurance would not be permissible because it
would have the effect of decreasing the term of the HUD
mortgage. Under Section 446 of of the Housing and
Urban-Rural Recovery Act of 1983 (HURRA), however, the National
Housing Act was amended to authorize the Secretary to
insure mortgages that do not provide for full
amortization. Regulations implementing this statutory
provision presently are being drafted by the Office of
Regulations for publication in 24 C.F.R. Parts 207,220 and
231. Until the "Insurance of Partially Amortizing
Mortgages and Mortgages with Call Provisions" regulations
become effective, however, the Department will continue to
implement its present policy.) (2) The balloon payment
second note shall not create an equitable lien against the
project which could result in the mortgagee's assignment
of the mortgage. Field Counsel shall review the default
remedies of the note to determine if such equitable lien
is created under state law and shall advise the purchaser
to obtain the mortgagee's consent if necessary. THIS IS
OF UTMOST IMPORTANCE. If field counsel cannot ascertain
that a lien is not created, this office should be
contacted immediately. (3) The standard language that the
Department utilizes in protecting its interest when
approving secondary financing in connection with a
transfer of physical assets must be used. (See Section
II. F. supra).

J. Conflict with Mortgage and Regulatory Agreement. The
proposed documents must not conflict with the HUD-held or
HUD insured first mortgage or the Regulatory Agreement.

K. Requirements for Sales Involving Land Contracts.
Proposals involving a Land Contract (i.e., Installment
Sale Contract or Contract for Deed) must comply with the
following requirements:

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4350.1 REV-1
APPENDIX G

1. The insured mortgagee must consent in writing.

2. The purchaser must sign a new Regulatory Agreement.

3. The seller must remain on the existing Regulatory
Agreement and agree to be bound by the new Regulatory
Agreement to the extent it differs from the existing
Regulatory Agreement.

4. The Land Contract must be subordinate to the
mortgage. The following language must be included in
the Land Contract:

Buyer and Mortgagor-Seller agree
that the land contract is subordinate
to the HUD-held or HUD-insured
mortgage.

5. The seller must agree not to attach project
income for failure of the purchaser to make
payments under the contract. The following
language must be included in the Land
Contract:

Mortgagor-Seller agrees not to file a
lien against the project income for the
failure of Buyer to make the required
payments under the land contract.

6. The mortgagor-seller must remain bound to its
obligations under the mortgage, mortgage note, and
Regulatory Agreement until such time as there is a
release executed, as well as an assumption of these
obligations by the purchaser, with the necessary
acquiescence of all principals. The following
language must be included in the Land Contract:

Buyer and Mortgagor-Seller agree
that in the event of a monetary default
by Mortgagor-Seller under the
HUD-held or HUD-insured mortgage, Buyer
may cure such default and elect to take
title to the project. In the event of
such an election by Buyer ,
Mortgagor-Seller will execute a
release and deed to the project and
Buyer will concurrently execute an
assumption of the HUD mortgage, note,
and the Regulatory Agreement.

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4350.1 REV-1
APPENDIX G

7. The Land Contract must clearly reflect that the
mortgagor's obligation to continue making payments on
the underlying mortgage is not contingent on the
receipt of the installment payments from the purchaser
under the Land Contract. The following language must
be included in the Land Contract:

The obligation of Mortgagor-Seller to
continue to make payments and comply
with all covenants under the HUD-held
or HUD-insured mortgage is not
contingent on the receipt of the
installment payments from Buyer under
this land contract.

8. The Land Contract along with the new Regulatory
Agreement must be recorded. (Any alternative
arrangement must be approved by HUD.)

9. The Land Contract must contain a provision that
forbids the purchaser's assigning, mortgaging, or in
any other way encumbering its interest without the
prior written approval of the Secretary. The
following language must be included in the Land
Contract:

Buyer must not assign, mortgage, or
in any way encumber its interest
without the prior written approval of
the Secretary of Housing and Urban
Development.

10. There must be a provision in the Land Contract that
obligates the purchaser to operate and maintain the
transferred property in accordance with the
Department's regulations and procedures while the
property remains subject to a HUD-held or HUD-insured
mortgage. The following language must be included in
the Land Contract:

Buyer and Mortgagor-Seller agree
that the project will be operated
strictly in accordance with the
Regulatory Agreement, the HUD-held or
HUD-insured mortgage, the National
Housing Act, and the regulations
promulgated thereunder while HUD is the
insurer or holder of the mortgage. In
the event of any conflict between the
land contract and the HUD-insured
mortgage documents and HUD regulations,
such HUD documents and regulations

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4350.1 REV-1
APPENDIX G
shall control as long as HUD holds the
mortgage or as long as the HUD contract
of mortgage insurance remains in
effect.

11. There must be a provision in the contract whereby the
parties agree to inform the Secretary in advance of
any action they propose to take against the property;
of any adverse action taken by any party of which they
have knowledge; or of any other event that affects the
property or that may affect the Secretary's interest
therein. The following language must be included in
the Land Contract:

Buyer and Mortgagor-Seller agree to
inform the Secretary in advance of any
action they propose to take against the
property, or of any adverse action of
which they have knowledge taken by any
party, or of a default, or of any other
event that affects the property or that
may affect the Secretary's interest
therein.

12. The following payment provision must be included in
the Land Contract:

While the Secretary of Housing and
Urban Development, or his successor or
assigns, is the insurer or holder of
the first mortgage on (insert project
name and FHA Project No.) payments
under this land contract will be made
in the following manner. First,
Buyer will segregate all project
income as required under the Regulatory
Agreement dated______________________
between the Secretary of Housing and
Urban Development and Mortgagor-Seller .
Second, Buyer will deliver
to Mortgagor-Seller all the sums due
or currently required to be paid under
the terms of any mortgage or note
insured or held by the Secretary of
Housing and Urban Development and all
amounts required to be deposited in the
Reserve Fund for Replacements.
Mortgagor-Seller , in turn, will apply
these funds as required under the
aforesaid first mortgage and Regulatory
Agreement. Third, in the event of
surplus cash, as that term is defined

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4350.1 REV-1
APPENDIX G

in the aforesaid Regulatory Agreement,
Buyer will deliver to the Mortgagor-Seller
permissible distributions (omit
"permissible distributions from" with
profit-motivated mortgagor) from
surplus cash to the extent available to
satisfy any current or deferred amounts
to be paid under this land contract.

III. OTHER LEGAL ISSUES RELATING TO TRANSFER OF PHYSICAL ASSETS

The following issues frequently arise in connection with
an application for approval of a transfer of physical assets:

A. Conversion from Non-Profits to Profit-Motivated
Ownership. Many proposed transfers involve the transfer
of ownership from non-profit owners to such profit-motivated
owners as limited dividend mortgagors. A common
arrangement, which is acceptable to the Department,
involves the non-profit mortgagor retaining an ownership
interest in the project as a managing general partner in
the partnership purchasing the project.

The review of non-profit to profit-motivated
transfers will involve the application of 24 C.F.R. Part
265 if the project is assisted under Sections 236 or
221(d) (3) of the National Housing Act, Section 101 of the
Housing and Urban Development Act of 1965, or Section 8 of
the United States Housing Act of 1937. See 24 C.F.R.
265.2 (1982). If 24 C.F.R. Part 265 is applicable, it is
our understanding that Housing will consider waiving the
current 24 C.F.R. 265.13 prohibition against remuneration
to the non-profit seller. For example, Housing has allowed
remuneration in the form of secondary financing to the
non-profit owner provided that a trust agreement in a form
acceptable to the Department is used. Inasmuch as a
waiver of the Part 265 regulations requires an administrative
determination of acceptability from Central Office,
field counsel should advise that any recommendation with
respect to a requested regulatory waiver should be
thoroughly documented in writing.

B. Cooperative Conversion. Present HUD administrative
procedure requires Central Office approval of all projects
converting to ownership by a cooperative corporation.
Such TPA's are approved on a project-by-project basis.
HUD does not consider a TPA to a cooperative mortgagor as
a "change of use," as that term is used in the HUD form
mortgage or deed of trust. Therefore, mortgagee approval
for cooperative conversions is not a prerequisite to TPA
approval by HUD. However, this issue is currently being
litigated. (Note, however, that on October 26, 1984 the

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4350.1 REV-1
APPENDIX G

United States District Court in Massachusetts granted
summary judgment in favor of HUD in Boston Five Cents
Savings Bank v. Samuel J. Pierce, Jr. et al. and agreed
with HUD's defense on several issues including that a
change in the form of ownership of a project is not a
"change in use." We do not now know whether or not an
appeal will be taken. In the event that the Department's
policy regarding cooperative conversions is changed, we
will notify field counsel immediately.) In view of this
litigation, in cases where mortgagee consent to the TPA is
not obtained, HUD requires a letter of credit under an
indemnification agreement in a form acceptable to HUD to
protect HUD from any loss because of its approval of this
conversion. A copy of the current approved form of
indemnification agreement is available from this
Division. This Division's review of cooperative
conversion TPA's is limited to review of the
indemnification agreement and to review of any unusual
legal issues which are raised in field counsel review.

Central Office administrative policy also requires
review of cooperative projects which are converting to
rentals. Such TPA applications should be forwarded to
Central Office for approval. The TPA package must include
a substantive legal review by field counsel.

Some field offices are approving rental conversions
where the project will continue to operate as a
cooperative and the tenants will be required to execute
occupancy agreements and become Members of the
cooperative. Such "rental/cooperative" conversions
require written administrative approval from the Office of
Multifamily Housing Management. Field counsel review of
such "hybrid" conversions should also include an opinion
concerning whether such an arrangement is permissible
under state law. Additionally, field counsel should
analyze the flow of project funds under such a hybrid
conversion.

C. Assignment or Transfer of Subsidy Contracts. Certain
legal problems are presented by assignments of rent
supplement or rental assistance payments (RAP) contracts
to purchasers that do not assume the HUD mortgage and take
the property under a deed conveyance. The "project owner"
of a project with a RAP subsidy and a "housing owner" of a
project with rent supplement subsidy are the mortgagors of
the project for purposes of eligibility for such
subsidies. Therefore, "subject to" TPA's and TPA's
involving land contracts can not include an assignment of
the rent supplement contract or RAP contract because the
new owners are not mortgagors and consequently, are not
eligible to execute or assume rent supplement or RAP

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4350.1 REV-1
APPENDIX G

contracts. Field counsel should contact this Division in
order to resolve legal issues raised by the assignment of
such subsidy contracts.

In "subject to" TPA's or TPA's involving land
contracts, it is legally permissible for the mortgagor-seller
of a rent supplement or RAP project to designate a
financial institution as trustee and the mortgagor's agent
for receipt of such subsidy payments. The trustee would
then credit such payments to the account of the buyer.
Any questions concerning the form of the trustee agreement
should be referred to this Division.

Unlike the rent supplement and RAP contracts, a
Section 8 housing assistance payments contract may be
legally transferred from the original owner to a buyer
even though the buyer has taken the project subject to,
rather than assuming, the HUD mortgage. However, if the
housing assistance payments contract was assigned to the
mortgagee to secure the financing, the consent of the
mortgagee to the transfer must be obtained.

Field Counsel also should review the transfer to
assure that all rights and obligations under the housing
assistance payments contract have been effectively
transferred to the buyer and that all requirements of
state and local law have been met. (Questions arising in
connection with the transfer of the housing assistance
payments contract to a buyer should be addressed to the
Assistant General Counsel for Assisted Housing.)

Transfers involving conversions of RAP or Rent
Supplement subsidies to Section 8 should follow the
instructions in Section I.C.1. of this memorandum
concerning the need for a new "hybrid" Regulatory
Agreement to be executed by the Purchaser.

D. Waiver of Sole Asset Mortgagor Requirement. Frequently, a
prospective buyer of a project requests a waiver of the
sole asset mortgagor requirement found in Section 6(f) of
FHA Form 2466, Regulatory Agreement. Such waiver request
should be forwarded to Central Office for administrative
review and approval.

E. Transfer in Escrow. The Department has changed its policy
and will now permit escrow closings on projects prior to
full or modified review by HUD of an application for a
TPA. (Note, however, that escrow closings will not be
permitted for transfers from nonprofit to limited
distribution owners.) The following legal requirements
apply to transfers in escrow:

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1. The deed may not be recorded.

2. For projects subject to a HUD-insured mortgage:

(a) The purchaser or the seller must
provide HUD with a title policy :

(i) which declares that no lien has
been created by the transfer in
escrow, and

(ii) which insures HUD directly against
any loss HUD might suffer by paying
mortgage insurance proceeds due to
the creation of any unauthorized
lien resulting from the escrow
closing.

(b) The purchaser or the seller must provide HUD with
an opinion of counsel which states that the
transfer in escrow does not create a lien inferior
or superior to the lien of the HUD) mortgage.

3. The escrow agreement must provide that the escrow can
be broken only with written approval by HUD (after
review and preliminary approval by HUD of the TPA.)

4. The escrow agreement must provide that HUD may
instruct the escrow agent in writing to cancel the
escrowed deed of conveyance from seller to buyer and
to take all other actions necessary to "unwind" the
transaction in the event the TPA does not comply with
all of HUD's requirements.

5. All funds held in escrow for payment of mortgage
delinquencies, repairs, or prepayment of Flexible
Subsidy, must be either in cash or in a letter of
credit naming HUD as payee. (Note, that Use
Agreements executed in connection with Flexible
Subsidy loans or grants must remain in effect until
the date on which the HUD mortgage would mature.)

6. The escrow agent is prohibited from having any
interest in the transfer other than as escrow agent.

7. The Sale Agreement for a transfer in escrow must
contain the following language:

Transfer of ownership of the property
which is the subject of this Agreement
is subject to an escrow agreement
requiring preliminary approval by HUD
of the sale prior to the release of any

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documents or any other action by the
escrow agent. In the event that
preliminary approval is not obtained
from HUD, buyer and seller agree that
the escrow agent shall cancel the deed
and buyer agrees to reconvey to seller
all of buyer's other interest in and to
the property immediately upon
notification of disapproval by HUD of
the transfer of the project. In the
event that preliminary approval is not
obtained from HUD, buyer and seller
hereby waive any other action or
defenses they may have against the
cancellation of the deed, termination
of the escrow, and the "unwinding" of
the sale.

F. Multiple Transfers. Parties frequently structure their
proposals as multiple project transfers. A series of
simultaneous project transfers is legally acceptable
provided the parties have submitted all relevant documents
with respect to each transfer. A separate review of each
transfer must be performed to determine the acceptability
of the entire proposal. Unless there is a specific
amendment to 24 C.F.R. 207.1(h) to provide for separate
fees for each transfer, only one transfer fee need be paid
for an application involving a multiple transfer. In some
situations, however, more than one transfer fee may be in
order. For example, we have recently analyzed several
proposals involving corporate mergers and acquisitions
(between parents and subsidiaries) prior to the transfer
to the purchaser. Because two transfers of title by deed
are involved, two fees are required. However, the two
transactions can be combined in one application with
minimal review required of the first (2530 clearance, for
example) in order to expedite the HUD review process.
This same rationale is also applicable to any other
interim "status" transfers by deed. To expedite the
review of particularly complex multiple transfers, field
counsel should contact this Division with questions. In
particular, questions often arise with respect to the
amount of time between transfers.

G. Unauthorized Transfers. In the past, several projects
have been transferred without HUD approval. An
unauthorized transfer of physical assets violates Section
6(a) of the Regulatory Agreement, which provides that
" o wners shall not without the prior written approval of
the Commissioner ... c onvey, transfer or encumber any of
the mortgaged property, or permit the conveyance, transfer
or encumbrance of such property.. ." This broad
prohibition includes the transfer of the beneficial or

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equitable interest in the project to the buyer prior to
HUD approval except in a transfer in escrow. If field
counsel learn of any unauthorized transfer of physical
assets, the Office of Multifamily Housing Management
should be advised. This office will then make a
determination whether to approve such transfer.
Furthermore, field offices must follow the procedures for
dealing with unauthorized TPA's set forth in the May 4,
1983 joint memorandum "Enforcement Remedies for
Unauthorized Transfers of Physical Assets" by the
Associate General Counsel for Program Enforcement, John P.
Kennedy, and by then-Deputy Assistant Secretary for
Multifamily Housing Programs, Maurice L. Barksdale. All
unauthorized TPA's which are submitted to Central Office
must include the results of a substantive review by field
counsel, as well as the results of field counsel review
for compliance with the joint memorandum on unauthorized
TPA's.

For all TPA's other than transfers in escrow and to
preclude the mortgagor-seller from transferring beneficial
interest in future cases, the Department will require the
following language to be included in the sales agreement
establishing the terms and conditions of the proposed
transfer:

"This (describe document) is expressly
conditioned upon preliminary approval
by HUD of the transaction as set forth
in Form HUD 92266, Application for
Transfer of Physical Assets, and
supporting documents submitted to
HUD. No transfer of any interest in
the project under this sale agreement
shall be effective prior to such HUD
approval. Buyer will not take
possession of the project nor assume
benefits of project ownership prior to
such approval by HUD. The Buyer, his
heirs, executors, administrators or
assigns, shall have no right upon any
breach by Seller hereunder to seek
damages, directly or indirectly, from
the FHA Project which is the subject of
this transaction, including from any
assets, rents, issues or profits
thereof, and Buyer shall have no right
to effect a lien upon this project or
the assets, rents, issues, or profits
thereof."

If the transfer is by means of a land contract, the
following sentence should be added to the above

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language: "Buyer will not take possession or control of
the project prior to approval by HUD."

H. Workout Agreements. In general, the terms and conditions
of a workout agreement with the new buyer must be
established prior to submission of the transfer package.
All transfer documents must be consistent with the workout
agreement executed by HUD.

I. Prepayment Restrictions on Multifamily Rental Housing. In
the event that a transfer involves the prepayment of the
underlying HUD-insured or HUD-held mortgage subsequent to
the time of the transfer, field counsel should contact
this Division immediately for advice.

If you have any questions regarding this memorandum, please
contact Gains Hopkins, Chief Attorney, Financing, Origination and
Development Unit, at FTS 755-7090, Roberta Beary, at FTS 755-6975,
Michael Bylsma or Millicent Potts of his staff at FTS 755-7067.

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