Continuation of Interest Reduction Payments after Refinancing Seciton 236 Projects

AGREEMENT FOR
INTEREST REDUCTION
PAYMENTS

U.S. Department of Housing
and Urban Development

OMB Control No. 2502-0572
(exp. 10/31/2014)

Office of Housing
Federal Housing Commissioner

Section 236(e)(2)
Public reporting burden for this collection of information is estimated to average 30 minutes per response, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. This agency may
not conduct or sponsor, and a person is not required to respond to, a collection of information unless that collection displays a valid OMB control number.
Section 532 of the Department of Veterans Affairs and Housing and Urban Development, Independent Agencies Appropriations Act, 2000 (Public Law
106-74, approved October 20, 1999) (“Appropriations Act”) established Section 236(e)(2) of the National Housing Act (NHA), which authorizes the
Secretary, under certain terms and conditions, to continue the payment of Interest Reduction Payments (IRP) after the prepayment of a Section 236
mortgage. HUD uses the information provided to ensure that owners continue to maintain the projects as low-income housing resources. These
agreements will allow HUD to preserve low-incoming housing units. All transactions are subject to the requirements of HUD’s Tenant Participation in
Multifamily Housing Project Regulations at 24 CFR Part 245. This information is required to obtain benefits. HUD does not ensure confidentiality to
respondents.

Old FHA Project No.: __________
New FHA Project No.: _________
Project Name: _________________
AGREEMENT FOR INTEREST REDUCTION PAYMENTS
THIS AGREEMENT, made this ___ day of ________________, 20__, by
_________________________, a ______________________ (hereinafter called “Borrower”), the
______________________ (hereinafter called “Lender”), the SECRETARY OF HOUSING AND URBAN
DEVELOPMENT, acting by and through the Federal Housing Commissioner, (hereinafter called the
“Secretary”) [and in cases where the lender is not HUD-approved, a fourth party is a signatory to the
contract in an oversight function, the ___________, hereinafter called the Public Agency].

WITNESSETH

WHEREAS, the Secretary is authorized under Section 236 of the National Housing Act, as
amended, (hereinafter referred to as “Section 236”) to make interest reduction payments (hereinafter
referred to as “IRP”) to a rental or cooperative housing project, which has a mortgage which is insured
under subsection (j), or upon such mortgage’s being assigned to HUD, and has implemented this authority
by regulation for projects owned by non-profit mortgagors, builder-seller mortgagors, limited distribution
mortgagors, cooperative and investor sponsor mortgagors, and public mortgagors;
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WHEREAS, the Secretary is authorized under Section 236 (b) to make IRP to lenders in the
section 236 non-insured program for the benefit of rental or cooperative housing projects owned by private
non-profit corporations or other private non-profit entities, limited dividend corporations or other limited
dividend entities, public entities, or cooperative housing corporations, which we financed under a state or
local program providing assistance through loans, loan insurance, or tax abatements;

WHEREAS __________ was the mortgagee of record for that certain Mortgage dated
______________________ and recorded ______________________ in the official land records of
______________________ County, ______________________, (the “236 Mortgage”); and such Mortgage was
prepaid and the refinanced debt has resulted in a mortgage held by _______________, the successor
mortgagee i.e., Lender, being placed upon the property dated ______________________ and recorded
______________________ in the official land records of ______________________ County,
_____[_________________, [State]
(the “236 (e) (2) Mortgage”);

WHEREAS, the Section 236 (e)(2) Mortgage encumbers a multifamily residential rental or cooperative
development known as “______________________ ” (the “Development”) located in the City of
______________________, _____________ County, State of _________ and title to which is recorded in the
office of the County Clerk and Recorder of ______________________ County, ______________________, in
Film __, Page ____, as Document No. ______; and

WHEREAS, pursuant to Section 236(e)(2) of the National Housing Act, added by section 532 of
the Departments of Veterans Affairs and Housing and Urban Development, Independent Agencies
Appropriations Act, 2000, HUD has the authority to permit a project for which IRP is being made, and for
which the mortgage on the project has been refinanced (whether such project is subject to an insured
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Section 236 mortgage or to a non-insured State Agency Section 236 mortgage) to continue to receive the
IRP as long as certain conditions set forth in the statute are met. These include that the owner will
continue to operate the project “in accordance with all low-income affordability restrictions for the project
in connection with the Federal assistance for the project for a period having a duration that is not less
than the term for which such interest reduction payments are made plus an additional 5 years.” By “all
low-income affordability restrictions” and the word “Federal” before “assistance,” Congress meant to cover
any low-income affordability restrictions in effect at the project on the date of the refinancing resulting in
a prepayment of the Section 236 mortgage, if such restrictions have resulted from Federal, as opposed to,
for example, state or local assistance, whether such assistance is presently being provided, or was
provided at some point in the past. Examples of affordability restrictions linked to Federal assistance
can include, but not be limited to, the Section 236 restrictions governing the use of IRP, use restrictions
on projects that were preservation eligible and received preservation incentives pursuant to an approved
plan of action, use restrictions deriving from tax credits, etc.

WHEREAS, pursuant to Section 236(e)(2), which provides that the IRP shall continue under
subsection (e)(2) “under the terms of the contract for such payments,” the IRP can continue if an insured
project is being refinanced, on the condition that the ownership entity would have been an eligible
ownership entity prior to the refinancing, and further, because subsection (e)(2) is a part of the Section
236 statute, the IRP can only continue if Section 236 statutory and regulatory requirements continue to
operate, such as the establishment of the operative rent, including calculation of a basic rental charge and
a fair market rental charge, the return to HUD, where appropriate, of excess income, the calculation of
the amount of the IRP, etc.

WHEREAS, the 236 Mortgage has been security for that certain loan which is evidenced by a
Mortgage Note in the original principal amount of $_____________ dated ______________________ (the “236
Mortgage Note”) which was made pursuant to Section 236, and as such, is subsidized in whole or in part
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with IRP made by the Secretary to the mortgagee of record, with payments made as shown on the
payment schedule attached hereto as Exhibit A; and

WHEREAS, the Mortgagor and successor mortgagee, i.e., Lender, desire that the IRP under
Section 236 continue, pursuant to the authority of Section 236(e)(2) after refinancing resulting in a
prepayment of the 236 Mortgage note, and replacement by a successor Mortgage Note; and
WHEREAS, pursuant to the provisions set forth in 24 CFR Part 236, the Secretary made interest
reduction payments to the mortgagee, and upon prepayment of the Section 236 mortgage, the successor
mortgagee, hereafter called “Lender,” must enter into an IRP contract with the Secretary in order for IRP
payments to continue pursuant to the authority of Section 236(e)(2); and

WHEREAS, the Lender (if it is HUD-approved) or Public Agency (if the Lender is not HUDapproved), whichever is applicable, is willing to undertake the administrative duties required by Section
236 with respect to the Development pursuant to this IRP contract between the Borrower, Lender, and
HUD, which involves the Lender’s supervision of the performance of the parties to this IRP contract (or
Public Agency’s supervision, if applicable), and, in the event of any violations thereof, the timely
notification to HUD of the nature of any non-performance.

WHEREAS, the dividends payable to the Borrower shall, if the mortgagor is a limited dividend
mortgagor, be limited pursuant to the terms and provisions of this Agreement. If prior to the Section
236(e)(2) transaction, the mortgagor was a limited dividend mortgagor with a Section 236 insured
mortgage, then upon completion of the transaction it remains controlled by the regulatory provision at 24
CFR 236.50 (rev. as of April 1, 1995), and saved by the current 24 CFR 236.1(c), which among other
things provides that the “amount of any allowable distribution, or disbursement from surplus cash shall
not exceed in any one fiscal year more than 6 percent of the mortgagor’s initial equity investment in the
project, as determined by the [Federal Housing] Commissioner.” If prior to the Section 236(e)(2)
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transaction, the mortgagor was a limited dividend mortgagor with a Section 236 state-agency, noninsured mortgage, then the extent of any limitation on distributions is not controlled by the section 236
regulation, but rather, is controlled by state or local law.

In either of the cases referred to in the paragraph above, in the event that there is Section 8 at the
project and the mortgagor is a limited distribution mortgagor, such mortgagor may also be governed by a
section 8 regulation governing the amount of the distribution.

NOW THEREFORE, the Secretary, the Lender, and the Borrower [and the Public Agency if
applicable] hereby agree to enter into this Agreement to reflect the continuation of the IRP for the benefit
of the Development after prepayment of the Section 236 mortgage to cover the successor Section 236(e)(2)
mortgage held by the Lender, and further agree as follows:

1. The loan amortization terms of the Section 236 Mortgage Note, attached hereto as Exhibit A,
had been submitted to and approved by the Secretary when the loan was initially insured by
the Secretary for the aforesaid maximum amount of the loan which was attributable to the cost
of subsidized dwelling units (as such term is defined below).

2. The successor mortgagee, i.e., Lender, represents that the Development consists of ____
dwelling units comprised of ____ zero-bedroom units, ____ one-bedroom units, _____twobedroom units [Insert greater number of bedroom units if appropriate]. [If prior to the section
236(e)(2) refinancing, the project was a non-insured section 236 (b) project, complete the
following two sentences] _____% of the dwelling units are designated as subsidized dwelling
units. The ratio of subsidized dwelling units and rooms to unsubsidized dwelling units and
rooms shall not be changed without approval of the Secretary.

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3. The Secretary previously reserved an amount for annual interest reduction payments to be
paid under the terms of the IRP contract, which schedule of payments is set forth in Exhibit A
attached hereto. The Secretary shall now make IRP on a monthly basis in equal monthly
installments based upon the successor Mortgage Note, but in no event can the IRP exceed the
amounts set forth in Exhibit A attached hereto for the month and year so designated;
notwithstanding the forgoing, in no event shall the annual interest reduction subsidy exceed
$_______________ in any given year. To the extent the IRP paid, pursuant to the successor
Mortgage Note is less annually than the IRP paid under the predecessor Mortgage Note, unutilized IRP moneys, after the term of the amortization schedule for predecessor Mortgage
Note, can be used to help subsidize the successor Mortgage Note for an additional period of
time. In no event can more IRP be paid out by HUD in the aggregate under the successor
Mortgage Note than would have been paid out if the 236 Mortgage Note had not been prepaid.
The successor IRP payment schedule for the Section 236(e)(2) mortgage note is set forth in
Exhibit B.

4. The term of this Agreement for IRP shall begin on the date on which the Lender enters into the
successor Mortgage Note. The initial IRP shall be due on the first day of the first month
following the date on which the Lender enters into the Successor Mortgage Note. All IRP made
hereunder shall be made upon receipt of a billing containing representations of facts by the
Lender on a form prescribed by the Secretary. If the Secretary finds that an IRP payment or
payments made to the Agency have been excessive because of inaccurate facts contained in the
Lender’s billing or other cause, the Lender shall be obligated immediately to refund the
amount that was overpaid. Adjustments in the IRP shall also be made in the event a
subsidized dwelling unit is destroyed or rendered not habitable for any reason, unless said unit
is restored or rehabilitated within a reasonable time (or in the case of a project that had been a

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non-insured section 236(b) project, prior to the refinancing pursuant to section 236(e)(2), unless
an unsubsidized unit is designated in its place).

5. The Borrower covenants and agrees with respect to each subsidized dwelling unit of the
Development that:
(a)

Unless HUD agrees to permit a basic rental charge and fair market rental charge
pursuant to 236(f)(1)(A)(ii)(II) and (iii)(II), the Borrower covenants and agrees with
respect to each subsidized dwelling unit of the Development that the Borrower has
established or shall establish for each such dwelling unit (i) a basic rental charge
determined on the basis of operating the Development with even monthly payments
of principal and interest with respect to the 236 Mortgage Note, bearing interest at
one percent per annum for an amortization period set forth in the 236 Mortgage
Note, and (ii) a fair market rental charge determined on the basis of operating the
Development with even monthly payments of principal and interest and fees and
charges (or mortgage insurance premium if mortgage insurance is involved) with
respect to the 236 Mortgage Note as approved by the Secretary based upon an
amortization period set forth in the 236 Mortgage Note. (Payments required to be
made under the _________________ Note described above may be included in the cost
of “operating the Development” for the purpose of the foregoing rental calculation.)
Such basic rental charges and fair market rental charges, as approved by the
Lender, will be provided to the Secretary for HUD’s approval.

(b)

Any revisions in the basic rental or fair market rental for any subsidized dwelling
unit shall be approved by the Lender and shall be submitted to HUD for its
approval, as further provided below in this paragraph (b). The Lender shall approve
rental revisions in conformity with applicable Federal statutes, HUD regulations
and directives and applicable state law and regulations, and shall notify the

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Secretary in writing of every such revision. The Secretary shall not unreasonably
withhold its approval of rent revisions approved by the Lender. Notice of approval
or disapproval of any revision by the Secretary shall be given within thirty days of
the date of receipt of the Lender’s notification to the Secretary of the revision. The
Lender has furnished the Secretary copies of such State and local laws and
regulations and shall inform him of any changes in such laws and regulations.
(c)

The Section 236 rent charged for each subsidized unit plus utility allowance, which
includes all utilities except telephone, will be equal to 30% of the tenant’s adjusted
annual income or the basic rental, whichever is greater, but in no event is the rental
charged to exceed the fair market rental.

(d)

The Borrower shall limit admission to those families whose incomes do not exceed
the lower of the applicable income limits that are set by the Secretary pursuant to
the Section 236 Regulations and applicable program requirements or by a state or
local Agency if the mortgage was originally a Section 236 non-insured mortgage
prior to the Section 236(e)(2) refinancing, and such state or local Agency remains the
lender after the refinancing. If the state or local agency is not the lender after the
refinancing, the income limits set by the Secretary pursuant to the Section 236
regulations and applicable program requirements for Section 236 insured mortgages
shall apply in this situation. The Borrower shall comply with the provision of any
applicable federal, state or local law prohibiting discrimination in housing on the
ground of race, ancestry, color, creed, national origin, disability, marital status,
familial status, age or sex, including Title VI of the Civil Rights Act of 1964 (Public
Law 88-352, 78 Stat. 241, 42 U.S.C. 2000d, et seq.), the Fair Housing Act (Title VIII
of the Civil rights Act of 1968, as amended, 42 U.S.C. 3535(d), 3600-3620), section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), and all requirements imposed
pursuant to the Regulations of the Department of Housing and Urban Development

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(24 CFR Part 107) issued pursuant to Executive Order 11063. The Borrower shall
require that contractors and subcontractors engaged in the construction or
rehabilitation of the Development provide equal opportunity for employment
without discrimination as to race, sex, marital status, color, disability, religion,
national origin or ancestry.
(e)

The Borrower shall not restrict occupancy by reason of the fact that there are
children in the family, unless the Development, or a portion thereof, has been
designed for an elderly family. A project or portion of a project designed for the
elderly can be restricted to a family where the head of household or spouse is 62
years of age or older. For such project or portion of a project, a single person 62
years of age or older shall be deemed a family. In no case, however, can an elderly
family be discriminated against in admissions because of children in that family who
are 18 years of age or younger.

(f)

No tenant of a subsidized dwelling unit shall be permitted to rent more than one
unit in the Development at any given time without the prior written approval of the
Secretary [and the Agency, if the Lender is not HUD-approved and the Agency is
overseeing the administrative duties required by Section 236].

(g)

On forms approved by the Lender [and Agency, if the Lender is not HUD-approved
and the Agency is overseeing the administrative duties required by Section 236], the
Borrower shall obtain from each prospective tenant of a subsidized dwelling unit a
certification of income and an annual recertification of income from all such tenants
who are paying less than fair market rental.

(h)

In a manner prescribed by the Lender (or the Public Agency, if the Lender is not
HUD-approved and such Public Agency is a signatory to this IRP contract, thereby
agreeing to oversee the administrative duties required by section 236), the Borrower
shall obtain written evidence substantiating the information given on such tenants'

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annual recertifications and shall retain the evidence in its files for three years. If
any annual recertification reveals a change in adjusted income whereby such a
tenant would be eligible for a lower or higher rent, such adjustment in rent charged
shall be made, provided that the adjusted rent for any such unit shall be the basic
rental or an amount equal to 30% of the tenant's income, whichever is greater, but
shall never exceed fair market rental.
(i)

Except to the extent that the Secretary has specifically authorized the Borrower to
retain such amounts, the Borrower shall remit to the Secretary on or before the
tenth day of each month the amount by which the rent collected on each subsidized
dwelling unit exceeds the approved basic rental for each unit, if any, in the same
manner as prescribed for similar Section 236 projects, which remittance shall be
accompanied by a monthly report on a form approved by the Secretary. A monthly
report shall be filed and a copy forwarded to the Agency even if no remittance is
required. In no event will the excess rents directly or indirectly flow back to the
Project unless authorized by HUD. Neither the Lender, [nor the Agency if it is
undertaking the administrative duties under Section 236 because the Lender is not
HUD-approved] shall have any direct or indirect responsibility relating to the
collection and/or remittance of Section 236 excess payments, provided, however, the
Agency shall retain the right to enforce such collection against the Borrower to
assure that the interest reduction payments are not terminated under paragraph 7
hereof.

(j)

The Borrower shall maintain accurate records and accounts in such form and
manner as the Agency may prescribe, including compliance with Subpart H of Part
205 of Title 24, of the Code of Federal regulations and shall make such records and
accounts available for inspection and audit by the Secretary at any time.

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(k)

The Borrower shall not sell, convey or transfer the Development, except to a
purchaser who is approved by the Secretary (and by the Lender if the mortgage is
not HUD-insured, or if such Lender consent is otherwise required), and is entitled to
participation under Section 236(e)(2) and who assumes the duties and obligations
under this Agreement.

(l)

Subject to HUD requirements, each of the dwelling units in the Project shall be
available for rental to members of the general public. None of the dwelling units in
the Project shall at any time be utilized on a transient basis, shall ever be leased or
rented for less than thirty (30) days or shall ever be used for other than housing
purposes. The Project shall not be used as a hotel, motel, dormitory, fraternity,
sorority house, rooming house, hospital, nursing home, sanitarium, rest home, or
trailer park or court for use on a transient basis.

(m)

The borrower will not initiate or cause any involuntary displacement

of a tenant

(except for cause as set out in the tenant’s lease) due to this transaction or any
financing, LIHTC, or state or local agency requirements.
(n)

The Borrower will, at all times, maintain the property in a condition which is decent,
safe and sanitary, and in good repair in accord with Subpart G of Part 205 of Title
24, of the Code of Federal regulations.

6.

The Lender covenants and agrees that without the prior written approval of the Secretary
it will not assign the 236 (e)(2) Mortgage or the 236 (e)(2) Mortgage Note; except that, in
connection with any new financing, the Lender may assign or pledge the 236 (e) (2)
Mortgage, and/or the 236 (e)(2) Mortgage Note, this Agreement, and the proceeds of
payments hereunder and its rights hereunder as security to its noteholders or bondholders
or to a trustee without such prior written approval of the Secretary, or sell a participation

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interest in the 236 (e)(2) Mortgage and the 236 Mortgage (e)(2) Note to a trustee, so long as
the Lender shall remain the record holder of the 236 (e)(2) Mortgage.

7.

(a)

The Secretary shall terminate payments under this Agreement if
(i)

the 236 (e) (2) Mortgage is extinguished;

(ii)

the Project ceases to be owned by an eligible owner;

(iii)

the Lender is no longer mortgagee of record and the Secretary has not
approved the Lender’s successor as mortgagee of record; or,

(iv)

the Lender, or the Public Agency, where the Lender is not HUD-approved,
does not meet its obligation to monitor the operation and condition of the
Project pursuant to Section 236 or does not certify, in a manner acceptable to
the Secretary, that it is satisfying this requirement.

(b)

The Secretary shall have the discretion to terminate IRP at any time under this
Agreement if either of the following events occurs:
(i)

Upon default by the Borrower or the Lender, If applicable, under any provision
of this Agreement; or

(ii) If an action of foreclosure is instituted by the Lender, except in the event the
Lender:
(1)

gives to the Secretary advance written notice of its

intention to

institute such foreclosure; and
(2) submits to the Secretary in advance a plan, acceptable to the Secretary,
and the Public Agency if the Lender is not-HUD-approved , providing for
continued eligibility of the Development for receiving the benefits of
Section 236;
(c) The Secretary The Secretary shall have the discretion to decrease the

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amount of the monthly IRP payment if the number of units in the project available for
rental by tenants also decreases. Any such decrease in the IRP payment shall be, to the
extent possible, in proportion to the decrease in the available units.

In the event the Secretary deems necessary the termination or decrease of payments under
this Agreement, he shall give prior written notice thereof to the parties indicated in
Paragraph 12 hereof stating the reasons therefor and providing for a reasonable period to
cure.
8.

If interest reduction payments are terminated or to be terminated pursuant to Paragraph 7
herein, such payments may, within one year, be reinstated or continued by the Secretary at
his discretion and on such conditions as he may prescribe.

9.

This Agreement shall terminate (a) when the 236(e)(2) Mortgage Note is paid in full, or (b)
upon termination of the IRP assistance, provided the Owner executes and records an
Amended and Restated Section 236(e)(2) Use Agreement (or Section 236(b) Use Agreement)
Following Termination of Section 236(e)(2) (or Section 236(b)) Agreement for Interest
Reductions Payments.

10.

Except as provided under Paragraphs 5(k) and 6 of this Agreement, the rights and
obligations under this contract are not assignable by the Borrower, Lender, or Agency
without prior written approval of the Secretary. In the event of any assignment not
permitted hereunder, the IRP shall terminate unless the Secretary agrees in writing to
reinstate them.

11.

The Borrower is an eligible mortgagor for purposes of Section 236(e)(2).

12.

Except as otherwise provided herein, all notices, demands, requests, instructions,
certifications and any other form of communication required or permitted to be given
hereunder in order to be binding on the recipient must be given in writing addressed as

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follows (or to such other address as any party hereto shall specify by notice to the other
parties):
If to HUD:

Department of Housing and Urban Development
Attention: Director of Multifamily Housing
Address
City, State & Zip

If to the Lender:

______________________
Attention: _________________,
Address
City, State & Zip

If to the Borrower:

Name
Address
City, State & Zip

If to the Agency:

Name
Address
City, State & Zip

13.

This Agreement may be executed in any number of counterparts, each of which shall be an
original, but all of which together shall constitute one instrument.

14.

The Mortgagor agrees to accept Section 8 project-based assistance, or project based
assistance from any successor program, on the same terms and conditions as the existing
Section 8 assistance for as long as this assistance is offered by the Secretary during the
remaining term of this Agreement.

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Signature page for ______________________ Apartments Interest Reduction Payments Agreement between
the Borrower and the Secretary of Housing and Urban Development.
Old FHA Project No.: ____________
New FHA Project No.: ___________

IN WITNESS WHEREOF, the parties hereto have set their hands and as of the day and year
above written.
BORROWER:
By:

_____________________,
a ______________________ limited partnership
By:

_____________________, its
general partner
By:

_____________________
Name:
Title:

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Signature page for ______________________ Apartments Interest Reduction Payments Agreement between
the _Mortgagee and the Secretary of Housing and Urban Development.
Old FHA Project No.: _____________
New FHA Project No.: ____________
MORTGAGEE:
______________________
_____________________________________
By:
_______________
Its:
_______________
[to be executed by the Agency also, if the lender
is not HUD-approved]
Agency:
______________________
_____________________________________
By:
_______________
Its:
_______________

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HUD SIGNATURE PAGE
Old FHA Project No.: _____________
NewFHA Project No.: ____________
FHA Project Name: ______________
SECRETARY OF HOUSING AND URBAN
DEVELOPMENT acting by and through the
FEDERAL HOUSING COMMISSIONER
_____________________________________________
By:
______________________________________
Its:
Authorized Agent

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Exhibit A
IRP Schedule
[Amortization Schedule of pre-refinanced 236 Loan, including
Amount and Term of Interest Reduction Payments]

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Exhibit B
IRP Schedule
[Amortization Schedule of 236(e)(2) post-refinanced Loan, including
Amount and Term of Interest Reduction Payments]

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