Form HUD-90163-CA Capital Advance Program Use Agreement

Capital Advance Program
Use Agreement
For Section 202 of the Housing Act of 1959 or
Section 811 of the National Affordable Housing Act

U.S. Department of Housing
and Urban Development
Office of Housing
Federal Housing Commissioner

OMB Approval No. 2502-0470 (exp. 8/31/2013)

Public reporting burden for this collection of information is estimated to average 1 hour 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. HUD may not collect this
information, and you are not required to complete this form, unless it displays a currently valid OMB control number.
This information collection is necessary to ensure that viable projects are developed. It is important to obtain information from applicants to assist HUD in
determining if nonprofit organizations initially funded continue to have the financial and administrative capacity needed to develop a project and that the
project design meets the needs of the residents. The Department will use this information to determine if the project meets statutory requirements with
respect to the development and operation of the project, as well as ensuring the continued marketability of the projects. This information is required in order
to obtain benefits. This information is considered non-sensitive and no assurance of confidentiality is provided.

This Agreement made the ________________ day of __________________ , 20 ______ , by and between the United States of America, Secretary
of Housing and Urban Development (hereinafter called “HUD”) and _________________________________________________________________,
a private nonprofit corporation, organized and existing under and by virtue of the laws of the State of ___________________ (hereinafter called the
“Owner”), provides as follows:
Whereas, the Owner and HUD have entered into a Capital Advance Agreement to assist in financing a rental housing project to house elderly
persons or persons with disabilities, (hereinafter called “persons”), in accordance with Section 202 of the Housing Act of 1959 or Section 811 of the
National Affordable Housing Act, and the applicable regulations;
Whereas, HUD through the Capital Advance Agreement has provided funding for the Project identified as project number ______________________
, financed with a Note and Mortgage (Deed of Trust), dated ___________________ and covering real property as described in Exhibit “A” attached
hereto, which Mortgage was recorded in the Recorder's Office of _______________________ County on _______________________, as Instrument
______________________ , Book _____________________ , Page ________________ ;
Whereas, The Project is subject to a Regulatory Agreement, dated _________________ and recorded on ____________________ in the Recorder's
Office of ________________________ County as document number _______________ , Book ___________ , Page ______ ;
Whereas, pursuant to Section 202 of the Housing Act of 1959 (elderly projects) or Section 811 of the National Affordable Housing Act (disabled
projects) and the corresponding regulations, in exchange for HUD's agreement to provide capital advance financing and project rental assistance
payments, the Owner has agreed to continue to operate the Project only as rental housing for very-low income elderly or disabled persons for not less
than 40 years from ______________________________________________ , unless otherwise approved by HUD;
Now Therefore, in consideration of the mutual promises set forth herein and of other valuable consideration, the parties hereby agree as follows:
5.

Release. The endorsement by a duly authorized officer of HUD (1)
upon any conveyance or transfer made by the Owner of any real or
personal property which is determined to be excess to the needs of
the Project, or (2) upon any instrument of conveyance or dedication
of property, or any interest therein, for use as streets, alleys, or other
public rights-of-way, or for the establishment, operation and maintenance of public utilities, or (3) upon any instrument transferring or
conveying an interest therein, or (4) upon any instrument of release
made by the Owner of the Project shall be effective to release such
property from the restrictive covenants hereby created.

6.

Enforcement. In the event of a breach or threatened breach of any
of the provisions of this Agreement, any eligible tenant or applicant
for occupancy, or the Secretary or his or her successors or delegates, may institute proper legal action to enforce performance of
such provisions, to enjoin any acts in violation of such provisions, to
recover whatever damages can be proven, and/or to obtain whatever
other relief may be appropriate.

7.

Severability. The invalidity, in whole or in part, of any of the
provisions set forth above shall not affect or invalidate any remaining
provisions.

Page 1 of 3

form HUD-90163-CA (12/20/2005)
ref. Handbook 4571.4 & 4571.5

1.

Definitions. All terms used in this Agreement have the same
meaning as set forth in the definitions in 24 CFR Part 889 or 890.

2.

Term. This Agreement shall remain in effect for not less than 40
years from __________________________________ , unless
otherwise approved by HUD.

3.

Use Restriction. The Project shall be used solely as rental housing
for very-low income elderly or disabled persons.

4.

Transfer. HUD has been granted and is possessed of an interest in
the above described Project such that the Owner shall remain seized
of the title to said property andrefrain from transferring, conveying,
assigning, leasing, mortgaging, pledging, or otherwise encumbering
or permitting or suffering any transfer, conveyance, assignment,
lease, mortgage, pledge or other encumbrance of said property or
any part thereof without the release of said covenants by HUD. The
Owner has constituted HUD as its attorney-in-fact to transfer the
project to another private nonprofit corporation in the event of default
under the Capital Advance Agreement or the Regulatory Agreement.
The Owner may transfer the Project during the term of this Agreement only with the prior written approval of HUD, and any such
grantee shall assume the obligations under this Agreement as a
condition of any transfer. In any event, this Agreement shall be
binding upon the Owner's successors and assigns.

In Witness Whereof, HUD and the Owner by its officers thereunto duly authorized has caused these presents to be signed in its name
and its corporate seal to be hereunto affixed and attested this _________________ day of ________________________________ ,
20______ .
(Seal)

Attest:
Name of Owner:

Secretary:

By: (President)

United States of America, Secretary of Housing and Urban Development
By:

Title:

Page 2 of 3

form HUD-90163-CA (12/20/2005)
ref. Handbook 4571.4 & 4571.5

State or

)

County of

)

ss:

)
Before me, ____________________________________________________ , a Notary Public in and for said State,
on this __________ day of _______________________________ , 20 _______ ,
personally appeared ________________________________________________________________ ,
who is personally well known to me to be the ____________________________________________ , of HUD, and the person who
executed the foregoing instrument by virtue of the authority vested in him by section 202 of the Housing Act of 1959 or section 811 of
the National Affordable Housing Act, and I having first made known to him the contents thereof, he did acknowledge the signing thereof
to be a free and voluntary act and done on behalf of the Secretary of Housing and Urban Development for the uses, purposes and
considerations therein set forth.
Witness my hand and official seal this ________ day of __________________________________ , 20___.
(Seal)
______________________________________________________ (Notary Public)
My commission expires _______________________ , 20 ______ .
State or

)

County of

)

ss:

)
On this __________ day of _____________________________ , 20 _______ , before me residing therein, duly commissioned and
sworn, personally appeared _____________________________________________ , a Notary Public in and for said county and State,
proved to me on the basis of satisfactory evidence to be the Secretary of __________________________________________ , that
executed the within instrument and acknowledged to me that such __________________________________________ executed the
same.
In Witness Whereof, I have hereunto set my hand and affixed my official seal the day and year in this Certificate first above written.
(Seal)
____________________________________________________________ (Notary Public)
My commission expires _______________________ , 20 ______ .
State or

)

County of

)

ss:

)
On this __________ day of __________________________________ , 20 _______ , before me residing therein, duly commissioned and sworn, personally appeared __________________________________ , a Notary Public in and for said county and State,
proved to me on the basis of satisfactory evidence to be the President of ______________________________________________ ,
that executed the within instrument and acknowledged to me that such ______________________________________ executed the
same.
In Witness Whereof, I have hereunto set my hand and affixed my official seal the day and year in this Certificate first above written.
(Seal)
______________________________________________________ (Notary Public)
My commission expires _______________________ , 20 ______ .
Page 3 of 3

form HUD-90163-CA (12/20/2005)
ref. Handbook 4571.4 & 4571.5