HomeMy Public PortalAboutSelect Board Meeting Packet - 05.24.2021 (9am)PROMISSORY NOTE
$255,000.00 _____________, 2021
FOR VALUE RECEIVED, the undersigned, Brewster Woods Preservation Associates
Limited Partnership (“Borrower”), a Massachusetts limited liability partnership, having an
address of c/o Preservation of Affordable Housing, Inc., 2 Oliver Street, Suite 500, Boston, MA
02108, promises to pay to the order of the Town of Brewster, acting by and through the
Brewster Community Preservation Committee (the “Town”), having an address of 2198 Main
Street, Brewster, MA 02631, or at such other place as the Town may from time to time designate
in writing, the principal sum of Two Hundred Fifty-Five Thousand and 00/100 Dollars
($255,000.00) (the “Loan”), without interest thereon except as set forth herein.
1. Said Note is to secure the performance of the obligations of: (a) Preservation of
Affordable Housing, Inc. (“POAH”), and Housing Assistance Corporation (“HAC” and, with
POAH, the “Recipients”) under, and compliance with the terms and conditions of, a certain
Amended and Restated Community Preservation Act Grant Agreement by and between the
Town and the Recipients (the “Grant Agreement”), incorporated herein by reference, whereby
the Town is providing the Recipients a loan in the amount of $255,000.00 (the “Loan Funds”)
with zero percent (0%) interest, to construct 29 units of rental affordable housing (the “Project”)
and one manager’s unit on a parcel of land located at 141 Brewster Road (a/k/a 30 and 40
Brewster Road), Brewster, and owned by the Brewster Housing Authority (the “Property”), and
to rent the same in perpetuity to low-income households, and (b) the obligations of Borrower
under that certain MassDocs Affordable Housing Restriction by and among Borrower, the Town,
and others, recorded herewith the Barnstable Registry of Deeds (the “Affordable Housing
Restriction”), which obligations, being non-recourse against Borrower, are secured by a
mortgage granted to the Town on the Property, securing the Recipients’ obligation to repay the
entire sum of the Grant Funds in the event that the Recipients do not comply with the Grant
Agreement (the “Mortgage”).
2. The full principal balance hereunder, with interest at the rate of five percent (5%)
per annum, shall, at the option of the Town, become and be due and payable immediately upon
the occurrence of an Event of Default, as set forth more particularly herein.
3. It shall be a “default” if (a) the Loans Funds are used for purpose other than to
construct the Project; (b) the Recipients fail to comply with the provisions of the Grant
Agreement, and/or (d) Borrower defaults on any of its obligations under this Note, the Mortgage,
and/or the Affordable Housing Restriction (collectively, the “Governing Documents”)
4. A default shall not be considered an “Event of Default” under this Note unless
Borrower or the Recipients fail to perform any of its or their obligations under this Note and/or
the Governing Documents or this Note and the Grant Agreement, as the case may be, and the
same is not cured within thirty (30) days from written notice from the Town thereof.
Notwithstanding anything to the contrary contained in this Note or the Mortgage, Lender hereby
agrees that Borrower’s limited partner shall have the right, but not the obligation, to cure any
defaults of the Borrower hereunder and under the Mortgage, and the Lender agrees to accept
cures tendered by Borrower’s limited partner on behalf of the Borrower within the applicable
cure periods set forth therein.
5. The Maturity Date of the Loan shall be the last date of the fortieth (40th) year
following the date hereof, which is June______, 2061 (the “Maturity Date”). Except in the
Event of Default, no payments of principal, interest, or other amounts due under this Note shall
be due by Borrower to the Town before the Maturity Date.
6. Borrower shall pay all costs and expenses, including attorneys’ fees, incurred or
expended by the Town for the collection of this Note upon an Event of Default. All payments
received by the Town are to be applied first to costs and expenses accrued and unpaid, with the
balance to principal. Borrower acknowledges that the loan evidenced by this Note is non-
transferable.
7. No exercise of any remedy hereunder shall preclude any other or future exercises
thereof. The holder hereof shall have the right after default to proceed directly against Borrower
in such manner as the Town may see fit.
8. This Note shall have the effect of an instrument under seal and shall be governed
by the laws of The Commonwealth of Massachusetts. If any provision of this Note or the
application thereof to any party or circumstance shall, for any reason and to any extent, be
invalid or unenforceable, neither the remainder of this Note, nor the application of such provision
to any other party or circumstance shall be affected thereby, but rather the same shall be enforced
to the maximum extent permitted by law.
[document text ends— signature page follows]
Executed under seal this ____ day of _________________, 2021.
Brewster Woods Preservation Associates Limited Partnership
By: POAH HAC Brewster Woods, LLC, its general partner
By Preservation of Affordable Housing, Inc., its managing member
By: _________________________________________
Name: Aaron Gornstein
Title: President and Chief Executive Officer
752604/BREW/0005
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TOWN OF BREWSTER
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
THIS LEASEHOLD MORTGAGE AND SECURITY AGREEMENT (this “Mortgage”)
is made on this _____ day of _______________, 2021, by and between Brewster Woods
Preservation Associates Limited Partnership (“Borrower”), having an address of c/o
Preservation of Affordable Housing, Inc., 2 Oliver Street, Suite 500, Boston, MA 02108, and the
Town of Brewster (“Lender”), a Massachusetts municipal corporation or its designee, having an
address of Brewster Town Hall, 2198 Main Street, Brewster, MA 02631-3701.
I. GRANTING CLAUSE
Borrower is indebted to Lender in the principal sum of $255,000 (the “Loan Amount”),
which Loan Amount shall be used construct infrastructure improvements, twenty-nine (29) units
of affordable housing, and one (1) manager’s unit on the Property (defined below) and to rent the
same to income-eligible tenants (the “Project”) (the “Loan”), which indebtedness is evidenced by
Borrower’s Promissory Note of even date herewith (the “Note”), providing for repayment of the
Loan Amount under certain conditions and providing for other conditions of the Loan.
To secure to Lender Borrower’s repayment obligations under the Note (which shall be a
non-recourse loan), and the performance of the covenants and agreements of Borrower contained
in the Note, this Mortgage, the Community Preservation Act Grant Agreement, and the
Affordable Housing Restriction (defined below), and/or terms of any other agreement entered
into by Borrower and Lender, Borrower hereby mortgages, grants and conveys to Lender, with
MORTGAGE COVENANTS, upon STATUTORY CONDITION and with the STATUTORY
POWER OF SALE, the Borrower’s leasehold interest in the property located at 141 Brewster
Road (a/k/a 30 and 40 Brewster Woods Drive), Brewster, described in a deed to the Brewster
Housing Authority (“BHA”) and recorded with the Barnstable Registry of Deeds (the
“Registry”) in Book __________, Page _____________ (the “Land”), as set forth more
particularly in Exhibit A attached hereto, pursuant to a nine-nine (99)-year Ground Lease
between Borrower and the BHA, which Land is subject to a MassDocs Affordable Housing
Restriction between Borrower, Lender and others, recorded with the Registry prior hereto (the
“Affordable Housing Restriction”);
TOGETHER with all the buildings and improvements now or hereafter erected on such
Land, and all fixtures, easement, rights, licenses, appurtenances and rents, all of which shall be
deemed to be and remain a part of the property covered by this Mortgage; and all of the
foregoing, together with Borrower’s leasehold interest in said Land, are hereinafter referred to as
the “Property.”
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Borrower covenants that Borrower is lawfully seized of the leasehold estate hereby
conveyed and has the right to mortgage, grant and convey a leasehold interest in and to the
Property, and that the Property is free from any mortgages and other encumbrances except for
the first mortgage granted by Borrower to Bank of America, N.A. (the “Senior Lender”) and the
second mortgage granted by Borrower to The Commonwealth of Massachusetts acting by and
through the Department of Housing and Community Development (the “Agent Lender”), for
itself and as agent for the following lenders (together with the Agent Lender, the “MassDocs
Lenders”): The Commonwealth of Massachusetts, acting by and through the Department of
Housing and Community Development under the Affordable Housing Trust Fund Statute,
M.G.L. c. 121D, by the Massachusetts Housing Finance Agency, as Administrator; Community
Economic Development Assistance Corporation, a body politic and corporate, duly organized
and existing in accordance with Chapter 40H of the Massachusetts General Laws; Massachusetts
Housing Partnership Fund Board, as agent for The Commonwealth of Massachusetts, acting by
and through the Department of Housing and Community Development under the Housing
Stabilization and Investment Trust Fund Statute, M.G.L. c. 121F; and Barnstable County, a body
politic of the Commonwealth of Massachusetts, acting by and through its County
Commissioners, to secure the loan amounts granted by the Senior Lender and the MassDocs
Lenders for the lease and construction of the affordable housing development on the Property.
Borrower warrants and covenants to defend generally the leasehold title to the Property against
all claims and demands, subject to encumbrances of record.
II. COVENANTS
Borrower and Lender covenant and agree as follows:
1. Repayment. In the event that Borrower sells or transfers the Property or there is
any other event of default (defined below) before the last day of the fortieth (40th) year following
the date of the Note, which is June ________, 2061 (the “Maturity Date”), Borrower shall repay
to Lender the Loan Amount with interest, all as set forth in the Note.
The principal amount owing on the Note and all other charges, as therein provided, and
all other amounts of money owing by the Borrower to the Lender pursuant to and secured by this
Mortgage, shall immediately become due and payable without notice or demand upon the
appointment of a receiver or liquidator, whether voluntary or involuntary, of the Borrower, or
upon the filing of a petition by or against the Borrower under the provisions of the Bankruptcy
Act of 1898, as amended, or upon the making by the Borrower of an assignment for the benefit
of the Borrower’s creditors.
The Lender is authorized to declare, at its option, all or any part of such indebtedness
immediately due and payable also upon the happening of any of the following events (after
expiration of all applicable notice and cure periods):
(a) Failure of Borrower to use the Loan Amount to construct the Project;
(b) Nonperformance by Borrower of any covenant, agreement, term or condition of this
Mortgage, the Note, the Grant Agreement, the Affordable Housing Restriction, and/or
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any other agreement heretofore, herewith or hereafter made by Borrower with Lender
(collectively, the “Governing Documents”);
(c) Except for (i) the mortgage granted by Borrower to the Senior Lender, which
mortgage is recorded with the Registry prior hereto (the “Senior Mortgage”), and (ii)
the mortgage to the MassDocs Lenders recorded with the Registry prior hereto
(together with the Senior Mortgage, the “Permitted Mortgages”), both of which
Permitted Mortgages are senior to this Mortgage per the terms of that certain Master
Subordination Agreement by and among the Senior Lender, the Agent Lender, the
Lender and the Borrower, dated as of the date hereof and recorded herewith (the
“Master Subordination Agreement”), Borrower shall not mortgage or encumber the
Property or any part thereof, or refinancing any mortgage, or place any new
mortgages or any other encumbrance on the Property, without the prior written
consent of Lender, which consent may not be unreasonably withheld provided that
the total indebtedness encumbering the Property does not exceed ninety percent
(90%) of the then-restricted value of the Property. Except for the Permitted
Mortgages or as otherwise provided in the Master Subordination Agreement, any
other mortgage granted on the Property by Borrower shall be subject to this
Mortgage. Notwithstanding the foregoing, Borrower shall not refinance, increase the
amount of, modify, amend, or extend any mortgage, including the Permitted
Mortgages, or the debt or any obligation secured thereby without obtaining Lender’s
prior written consent, subject to the terms of the Master Subordination Agreement;
(d) Failure of Borrower to perform any covenant, agreement, term or condition in the
Permitted Mortgages and any other lien upon the Property, or any part thereof, which
has or shall have priority over the lien of this Mortgage; and/or
(e) Lender’s discovery of Borrower’s failure in any application of Borrower to Lender to
disclose any fact deemed by Lender to be material, or the making therein, or in any of
the agreements entered into by Borrower with Lender (including, but not limited to,
the Note and this Mortgage) of any material misrepresentation by, on behalf of, or for
the benefit of Borrower.
Any event enumerated in this Section, upon the happening of any of which the Note shall
become, or may be declared to be, immediately due and payable, are in this Mortgage called an
“event of default.”
Notwithstanding anything to the contrary contained in this Mortgage or the Note, Lender
hereby agrees that Borrower’s limited partner shall have the right, but not the obligation, to cure
any defaults of the Borrower hereunder and under the Note, and the Lender agrees to accept
cures tendered by Borrower’s limited partner on behalf of the Borrower within the applicable
cure periods set forth therein. Copies of all notices which are sent to Borrower under the terms of
this Mortgage or the Note shall also be sent to Borrower's limited partner at: Bank of America,
N.A., MA1-225-02-02, 225 Franklin Street, Boston, MA 02110, Attention: Jill Amero (Asset
Manager - Brewster Woods) with copy to: Holland & Knight LLP, 10 St. James Avenue, Boston,
MA 02116, Attention: Sara C. Heskett, Esq.
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2. Other Mortgages; Charges; Liens. Borrower shall perform all of Borrower’s
obligations under the Permitted Mortgages, including Borrower’s covenants to make payments
when due. Borrower shall pay or cause to be paid all taxes, assessments and other charges and
impositions attributable to the Property that may attain a priority over this Mortgage.
3. Hazard Insurance. Borrower shall keep improvements now existing or hereafter
erected on the Property insured against loss by fire and other hazards included within the term
“extended coverage.” All insurance thereof shall include a standard mortgage clause in favor of
Lender, and shall name Lender as loss payee and as an additional insured party. Lender shall
hold the policies and renewals thereof, subject to the terms of the Permitted Mortgages and the
Master Subordination Agreement. In the event of loss, Borrower shall give prompt notice to the
insurance carrier and to Lender. Lender may make proof of loss if not made promptly by
Borrower.
4. Preservation and Maintenance of Property. Borrower shall keep the Property
in good repair and shall not commit waste or permit impairment or deterioration of the Property.
Borrower shall comply with any law, by-law, ordinance, restriction, regulation, order or code
affecting the Property or the use thereof, including, without limitation, those relating to oil,
hazardous or toxic substances or materials or any other environmental contaminants. If this
Mortgage is on a unit in a condominium or a planned unit development, Borrower shall perform
all of Borrower’s obligations under the declaration or covenants creating or governing the
condominium or planned unit development, and constituent documents.
5. Protection of Lender’s Security. If Borrower fails to perform the covenants and
agreements contained in this Mortgage, or if any action or proceeding is commenced which
materially affects Lender’s interest in the Property, Lender, at Lender’s sole option, upon notice
to Borrower, may (but shall not be obligated to) disburse such sums and take such actions as are
necessary to protect Lender’s interest, and any expenses so incurred by Lender, including
reasonable attorney’s fees, shall be added to the sums secured by this Mortgage.
6. Inspection. Lender may make or cause to be made reasonable entries upon and
inspections of the Property, provided that Lender shall give Borrower notice prior to any such
inspection specifying reasonable cause therefor related to Lender’s interest in the Property.
7. Damage by Fire or Other Casualty; Condemnation. If by reason of any
damage or destruction to the Property, any sums are paid under any insurance policy mentioned
in Section 3, such proceeds shall, subject to the rights of the holders of the Permitted Mortgages
and the terms of the Master Subordination Agreement, be paid to Lender alone, to be applied
toward reimbursement of all costs and expenses of Lender in collecting such proceeds, and, at
the option of Lender, either toward payment of the indebtedness secured hereby or any portion
thereof, rebuilding or replacement of that part of the Property so damaged or destroyed;
provided, however, if the holders of the Permitted Mortgages decide to apply available insurance
proceeds to reconstruction of the Property, Lender shall consent to such application. The
proceeds of any award or claim for damages, direct or consequential, in connection with any
condemnation or other taking of the Property, or part thereof, or for conveyance in lieu of
condemnation are hereby assigned and shall be paid to Lender to the extent of the amount of the
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outstanding Loan, as provided in the Note, subject to the terms and conditions of the Permitted
Mortgages and the Master Subordination Agreement.
8. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of
the time for payment or modification of the conditions of the terms for payment of the sums
secured by this Mortgage granted by Lender to any successor in interest of Borrower shall not
operate to release, in any manner, the liability of the original Borrower and Borrower’s
successors in interest. Lender shall not be required to commence proceedings against such
successor or refuse to extend time for payment or otherwise modify amortization of the sums
secured by this Mortgage by reason of demand made by the original Borrower and Borrower’s
successors in interest. Any forbearance by Lender in exercising any right or remedy hereunder,
or otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any
such right or remedy.
9. Successors and Assigns Bound; Joint and Several Liability; Co-signers.
Borrower’s interest under the Note and this Mortgage may not be transferred, assigned, or
assumed without the written consent of Lender, which consent shall not be unreasonably
withheld, provided such transfer, assignment or assumption is consistent with the terms and
conditions of the Deed Rider. The covenants and agreement herein contained shall bind, and the
rights hereunder shall inure to, the respective successors and assigns of Lender and Borrower.
All covenants and agreements of Borrower shall be joint and several.
10. Notice. Except for any notice required under applicable law to be given in
another manner, any notice required or given under this Mortgage shall be send by certified mail,
return receipt requested, by hand-delivery, and/or by recognized overnight courier addressed to
the parties at the address set forth above, which address may be changed by written notice to the
other given in the manner herein provided.
11. Governing Law; Conflict with Master Subordination Agreement;
Severability. The terms of this Mortgage shall be construed in accordance with the laws of the
Commonwealth of Massachusetts and any disputes regarding this Mortgage shall be brought in
the courts of the Commonwealth of Massachusetts. If any provision or clause of this Mortgage
conflicts with the Master Subordination Agreement, the provisions of the Master Subordination
Agreement shall control. If any provision or clause of any of the Governing Documents conflict
with the provisions of this Mortgage, such conflict shall not affect other provisions of the
Governing Documents which can be given effect without the conflicting provision, and to this
end the provisions of the Governing Documents are declared to be severable.
Notwithstanding anything to the contrary contained in this Mortgage or the Note, the
interest of the Borrower's limited partner shall be freely transferrable and removal, or withdrawal
in lieu of removal, of Borrower's general partner for cause in accordance with Borrower's
amended and restated limited partnership agreement shall not constitute a default under this
Mortgage or the Note provided that Borrower’s limited partner delivers prior written notice
thereof to Lender and that Borrower’s limited partner selects a substitute general partner in
accordance with the amended and restated limited partnership agreement.
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12. Breach; Remedies. Subject to the terms and conditions of the Permitted
Mortgages, upon Borrower's breach of the STATUTORY CONDITION or any covenant or
agreement of Borrower in the Note or this Mortgage, including the covenant to pay when due
any sums secured by this Mortgage (“Borrower Breach”), Lender, prior to acceleration, shall
give notice to Borrower, as provided in paragraph 10 hereof, specifying; (1) the breach; (2) the
action required to cure such breach; (3) a date, not less than 30 days from the date the notice is
mailed to Borrower, by which such breach must be cured; and (4) that failure to cure such breach
on or before the date specified in the notice may result in acceleration of the sums secured by this
Mortgage and sale of the Property. The notice shall further inform Borrower of the right to
reinstate after acceleration and the right to bring a court action to assert the nonexistence of a
default or any other defense of Borrower to acceleration and sale.
If the breach is not cured on or before the date specified in the notice, Lender, at Lender's
option, may declare all of the sums secured by this Mortgage to be immediately due and payable
without further demand and may invoke the STATUTORY POWER OF SALE and any other
remedy permitted by applicable law. Lender shall be entitled to collect all reasonable costs and
expenses incurred in pursuing the remedies provided in this Section 12, including, but not limited
to, reasonable attorneys’ fees, all of which shall be secured by this Mortgage.
If Lender invokes the STATUTORY POWER OF SALE, Lender shall mail a copy of a
notice of sale of its interest in the Property to Borrower and to any other person required by
applicable law, in the manner provided by applicable law. Lender shall publish the notice of sale
and its interest in the Property shall be sold in the manner prescribed by applicable law. Lender
or Lender's designee may purchase the Property at any sale. The proceeds of the sale shall be
applied in the following order: (a) to all reasonable costs and expenses of the sale, including
reasonable attorneys' fees and costs of title evidence; (b) to all sums secured by any mortgage
with a lien which has priority over this Mortgage; (c) to all sums secured by this Mortgage; and
(d) the excess, if any, to the person or persons legally entitled thereto.
14. Borrower's Right to Reinstate. Notwithstanding Lender's acceleration of the
sums secured by this Mortgage due to Borrower's breach, subject to the terms and conditions of
the Permitted Mortgages, Borrower shall have the right to have any proceedings begun by
Lender to enforce this Mortgage discontinued at any time prior to the earlier to occur of (i) sale
of Lender’s interest in the Property pursuant to the Statutory Power of Sale contained in this
Mortgage or (ii) entry of a judgment enforcing this Mortgage provided: (a) Borrower cures all
breaches of any of the terms of the Governing Documents; (b) Borrower pays all reasonable
expenses incurred by Lender in enforcing the covenants and agreements of Borrower contained
in the Governing Documents and in enforcing Lender's remedies as provided in Section 12
hereof, including, but not limited to, reasonable attorneys' fees; and (c) Borrower takes such
action as Lender may reasonably require to assure that the lien of this Mortgage, Lender's interest
in the Property, and Borrower's obligation to pay the sums secured by this Mortgage shall
continue unimpaired. Upon such payment and cure by Borrower, the Note, this Mortgage and
the obligations secured hereby shall remain in full force and effect as if no acceleration had
occurred.
13. Assignment of Rents. Subject to the rights of the holders of the Permitted
Mortgages, Borrower hereby assigns to Lender any and all leases and subleases of the Property
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or any part thereof, and all of Borrower’s right to receive any or all rent and other income
reserved in such leases, provided, however, that Borrower or its designee shall retain the right to
receive such rent until the occurrence of a default under any instrument executed in connection
with this transaction. Borrower shall execute and deliver any such further instruments as Lender
may request to evidence further the foregoing assignment, which shall be in form satisfactory to
Lender, and Borrower hereby grants Lender full power and authority as Borrower’s irrevocable
attorney in fact to make, execute, acknowledge, deliver and record such assignments.
14. Security Agreement. This instrument is intended to also be a Security
Agreement under the Uniform Commercial Code (“UCC”). The conveyance of the Property
shall constitute a grant of a UCC Security Interest therein and the recording of this instrument
shall have the effect of a fixture filing. In addition to any other remedy contained herein, upon
the occurrence of any Event of Default by Borrower and at any time thereafter, Lender shall have
all of the remedies of a secured party under the UCC as now in effect in the Commonwealth of
Massachusetts, and such further remedies as may from time to time hereafter be provided under
Massachusetts law for a secured party.
15. Non-Recourse. Notwithstanding anything to the contrary contained herein, no
member of Borrower, nor any partner, member, director, stockholder, officer or constituent
entity therein, shall have any personal liability whatsoever for the payment of any sums, charges
or amounts which may be payable pursuant to or in connection with this Mortgage, the Note or
for performance of any of Borrower’s obligations, it being agreed that the Lender shall look
solely to Borrower’s interest in the Property for recovery of any claims against Borrower, and
shall not bring any action nor seek to assert any other liability against any member of Borrower,
nor any director, stockholder, officer or constituent entity therein, nor against any other assets of
Borrower.
16. Cumulative Remedies. All remedies provided in this Mortgage are distinct and
in addition to any other right or remedy under this Mortgage or afforded by law or equity, and
may be exercised concurrently, independently or successively.
17. Release. Upon the expiration of the term of the Note or upon proper payment of
all sums secured by this Mortgage, Lender shall discharge this Mortgage without cost to
Borrower. Borrower shall pay all costs of recordation, if any.
758523/BREW/00031
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This Mortgage is executed under seal this ________ day of ________ 2021.
MORTGAGOR:
Brewster Woods Preservation Associates Limited Partnership
By: POAH HAC Brewster Woods, LLC, its general partner
By Preservation of Affordable Housing, Inc., its managing member
By: _________________________________________
Name: Aaron Gornstein
Title: President and Chief Executive Officer
COMMONWEALTH OF MASSACHUSETTS
________________, ss.
On this ______ day of ____________, 2021, before me, the undersigned Notary Public,
personally appeared Aaron Gornstein, who proved to me through satisfactory evidence of
identification, which was ________________________, to be the person whose name is signed
on the preceding or attached document and acknowledged to me that he/she/they signed it
voluntarily for its stated purpose on behalf of Preservation of Affordable Housing, Inc., the
managing member of POAH HAC Brewster Woods, LLC, the general partner of Brewster
Woods Preservation Association Limited Partnership.
____________________________________
(Official Signature and Seal of Notary)
758523/BREW/00031
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EXHIBIT A
PROPERTY DESCRIPTION
Property Address: 141 Brewster Road (a/k/a 30 and 40 Brewster Woods Drive), Brewster,
Massachusetts
Said parcel is described in a deed recorded with the Barnstable Registry of Deeds in Book
_______, Page _____.
758523/BREW/00031
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Audit Trail
Title
File Name
Document ID
Audit Trail Date Format
Status
Brewster Woods Amendment
20200603171740852.pdf
c030421fdff9692b894afbaf8713f2abd9e53f7a
MM / DD / YYYY
Completed
06 / 03 / 2020
21:19:17 UTC
Sent for signature to Faythe Ellis
(faythe.ellis@outlook.com), Peter Lombardi
(plombardi@brewster-ma.gov), Mimi Bernardo
(mbernardo@brewster-ma.gov) and Shirin Everett
(SEverett@k-plaw.com) from dkalinick@brewster-ma.gov
IP: 131.109.131.20
06 / 04 / 2020
15:20:12 UTC
Viewed by Faythe Ellis (faythe.ellis@outlook.com)
IP: 67.189.244.161
06 / 04 / 2020
15:59:27 UTC
Viewed by Peter Lombardi (plombardi@brewster-ma.gov)
IP: 131.109.131.20
06 / 05 / 2020
15:59:35 UTC
Viewed by Mimi Bernardo (mbernardo@brewster-ma.gov)
IP: 24.60.241.246
06 / 05 / 2020
16:10:03 UTC
Viewed by Shirin Everett (severett@k-plaw.com)
IP: 173.252.137.196
Audit Trail
Title
File Name
Document ID
Audit Trail Date Format
Status
06 / 04 / 2020
15:20:43 UTC
Signed by Faythe Ellis (faythe.ellis@outlook.com)
IP: 67.189.244.161
06 / 04 / 2020
15:59:41 UTC
Signed by Peter Lombardi (plombardi@brewster-ma.gov)
IP: 131.109.131.20
06 / 05 / 2020
15:59:49 UTC
Signed by Mimi Bernardo (mbernardo@brewster-ma.gov)
IP: 24.60.241.246
06 / 05 / 2020
16:17:11 UTC
Signed by Shirin Everett (severett@k-plaw.com)
IP: 173.252.137.196
The document has been completed.06 / 05 / 2020
16:17:11 UTC
Brewster Woods Amendment
20200603171740852.pdf
c030421fdff9692b894afbaf8713f2abd9e53f7a
MM / DD / YYYY
Completed
FIRST AMENDMENT TO
AMENDED AND RESTATED
COMMUNITY PRESERVATION ACT GRANT AGREEMENT
This First Amendment to Amended and Restated Community Preservation Act Grant
Agreement (this “First Amendment”) is entered into on this 23
rd day of October, 2020 by and
between the Town of Brewster (the “Town”), a municipal corporation duly organized under the
laws of Massachusetts and having a usual place of business at 2198 Main Street, Brewster, MA
02631, acting by and through the Community Preservation Committee (the “CPC”), and
Preservation of Affordable Housing, Inc. (“POAH”), having an address of 40 Court Street,
Suite 700, Boston, MA 02108, and Housing Assistance Corporation (“HAC” and, together
with POAH, the “Recipients”), with an address of 460 Main Street, Hyannis, MA, 02601.
Recitals
Whereas, by the vote taken under Article 9 of the May 1, 2017 Town Meeting, the Town
of Brewster, on the CPC’s recommendation, awarded $550,000 under the Community
Preservation Act, G.L. c. 43B (the “CPA”), to the Recipients for the Brewster Woods Project;
Whereas, the Brewster Woods Project consists of the construction and development of
thirty (30) residential units, consisting of eight (8) one-bedroom, nineteen (19) two-bedroom, and
three (3) three-bedroom apartments (the “Units”) on the parcel of land located on Brewster Road
(the “Property”), owned by the Brewster Housing Authority, with CPA funds being used to
construct twenty-nine (29) of said Units, and the rental of said twenty-nine (29) Units to income
eligible persons, as described more particularly in the Project Description section of the Project
Funding Application (the foregoing, the “Project”); and
Whereas, the Recipients and the Town entered into a Community Preservation Act Grant
Agreement dated September 15, 2017 (as amended by the Amendment and Restated Community
Preservation Grant Agreement dated April 30, 2020, the “Grant Agreement”) to set forth the
terms and conditions under which the Town would disburse the CPA grant funds. Capitalized
terms used but not defined herein shall have the meaning ascribed to such terms in the Grant
Agreement;
Whereas, the Grant Agreement requires the Recipients to grant to the Town and to
DHCD a Regulatory Agreement encumbering the Property in perpetuity and surviving the
foreclosure of any mortgages or other liens thereon;
Whereas, the Recipients obtained a Comprehensive Permit from the Brewster Zoning
Board of Appeals to undertake the Project;
Whereas, the Recipients intend/have obtained financing in part under the Low Income
Housing Tax Credit (LIHTC) Program, and it is a condition of such financing that the lenders be
able to foreclosure on their mortgages and terminate the affordable housing restriction if it is
financially infeasible to comply with said restriction;
Doc ID: 2b77f6495941b607d8ad93cd1bf000bafacdc2ff
Whereas, the Recipients have requested the Zoning Board of Appeals to modify the
Comprehensive Permit and requested the CPC and the Town Administrator to amend the Grant
Agreement to allow the affordability restrictions to terminate upon foreclosure; and
Whereas, the Zoning Board of Appeals has modified the Comprehensive Permit to allow
for a partial release of the affordability requirements set forth therein; and
Whereas, the CPC and the Town Administrator are amenable to amending the Grant
Agreement to allow for a partial release of the affordability requirements set forth herein.
Now, Therefore, the Town and the Recipients agree to amend the Grant Agreement as
follows:
1. Amendment. Section 2 of the Grant Agreement, entitled “Affordability
Restrictions” is hereby deleted in its entirety and replaced with the following Section 2:
2. Affordability Restrictions. The Grant Funds are awarded to the Recipients on the
condition that the Town, the Recipients, and the Department of Housing and
Community Development (“DHCD”) enter into a Regulatory Agreement and
Declaration of Restrictions on terms satisfactory to the Town, which shall require that
twenty-nine (29) of the Units on the Property (the “Affordable Units”) be used for
affordable housing purposes in perpetuity, rented to households earning no more than
sixty percent (60%) of the Area Median Income (“AMI”) as determined by the U.S.
Department of Housing and Urban Development (“HUD”) (it being acknowledged
that seven (7) of the Affordable Units will be made available to households with
incomes at or below 30% AMI), survive foreclosure of any mortgages and/or other
liens encumbering the Property, and grant the Town the independent permanent right
to enforce the terms thereof without regard to whether DHCD remains as a party
thereto (the “Regulatory Agreement”). All mortgages and/or other liens shall be
subordinated to the Regulatory Agreement. No Grant Funds, other than the Matching
Funds, shall be disbursed until the Regulatory Agreement has been recorded against
the title to the Property. All the Affordable Units must be included in the Town’s
Subsidized Housing Inventory (“SHI”). Notwithstanding the foregoing, it is hereby
agreed that, in the event that the Recipients obtain funding under the Low Income
Housing Tax Credit (LIHTC) Program, the affordability requirements set forth herein
may be partially terminated if, upon foreclosure of such financing, compliance with
the requirements set forth above is financially infeasible, provided, however, that
notwithstanding any such foreclosure, at least fourteen (14) of the Affordable Units
shall be used in perpetuity for low or moderate income housing (the “Remaining
Affordable Units”), of which eight (8) Remaining Affordable Units shall be rented in
perpetuity to and occupied by households whose income is not greater than 80% of
the AMI, as determined by HUD, and the six (6) Remaining Affordable Units shall be
rented in perpetuity to and occupied by households whose income is not greater than
60% of AMI (all of the foregoing, the “Surviving Affordability Requirements”). The
Doc ID: 2b77f6495941b607d8ad93cd1bf000bafacdc2ff
Surviving Affordability Requirements shall survive the foreclosure any mortgages
and/or other liens encumbering the Property.
2. Ratification. Other than as modified herein, the Grant Agreement remains unchanged
in all other respects and is hereby affirmed and ratified.
In Witness Whereof, the parties have signed this First Amendment as of the date first
written above.
RECIPIENTS
Preservation of Affordable Housing, Inc. Housing Assistance Corporation
By: ___________________________________ By: __________________________
Name: Aaron Gornstein Name: Alisa Magnotta
Title: President & Chief Executive Title: CEO
By: ___________________________________ By: __________________________
Name: Name:
Title: Title:
TOWN OF BREWSTER,
By its Community Preservation Committee
____________________________________
By its Chairperson
Faythe Ellis
TOWN OF BREWSTER
___________________________________
By its Town Administrator
Peter Lombardi
AS TO FORM ONLY
KP Law, Shirin Everett
Town Counsel
736053/BREW/0129
Doc ID: 2b77f6495941b607d8ad93cd1bf000bafacdc2ff
Audit Trail
Title
File Name
Document ID
Audit Trail Date Format
Status
Brewster CPC Brewster Woods Agreement Amendment
KP-#736053-v1-BRE...ewster_Woods).pdf
2b77f6495941b607d8ad93cd1bf000bafacdc2ff
MM / DD / YYYY
Completed
11 / 06 / 2020
20:12:18 UTC
Sent for signature to Peter Lombardi
(plombardi@brewster-ma.gov), Faythe Ellis
(faythe.ellis@outlook.com), Shirin Everett
(SEverett@k-plaw.com), Alisa Magnotta
(alisa@haconcapecod.org) and Aaron Gornstein
(agornstein@poah.org) from dkalinick@brewster-ma.gov
IP: 131.109.131.20
11 / 09 / 2020
15:29:31 UTC
Viewed by Peter Lombardi (plombardi@brewster-ma.gov)
IP: 131.109.131.20
11 / 09 / 2020
15:29:46 UTC
Signed by Peter Lombardi (plombardi@brewster-ma.gov)
IP: 131.109.131.20
11 / 09 / 2020
16:50:21 UTC
Viewed by Faythe Ellis (faythe.ellis@outlook.com)
IP: 67.189.244.161
Audit Trail
Title
File Name
Document ID
Audit Trail Date Format
Status
11 / 09 / 2020
16:50:49 UTC
Signed by Faythe Ellis (faythe.ellis@outlook.com)
IP: 67.189.244.161
11 / 09 / 2020
16:51:32 UTC
Viewed by Shirin Everett (severett@k-plaw.com)
IP: 173.252.137.254
11 / 09 / 2020
16:54:32 UTC
Signed by Shirin Everett (severett@k-plaw.com)
IP: 173.252.137.254
11 / 09 / 2020
16:54:44 UTC
Viewed by Alisa Magnotta (alisa@haconcapecod.org)
IP: 209.222.82.231
11 / 23 / 2020
23:00:52 UTC
Signed by Alisa Magnotta (alisa@haconcapecod.org)
IP: 24.91.205.215
11 / 24 / 2020
14:53:48 UTC
Viewed by Aaron Gornstein (agornstein@poah.org)
IP: 38.140.158.130
Brewster CPC Brewster Woods Agreement Amendment
KP-#736053-v1-BRE...ewster_Woods).pdf
2b77f6495941b607d8ad93cd1bf000bafacdc2ff
MM / DD / YYYY
Completed
Audit Trail
Title
File Name
Document ID
Audit Trail Date Format
Status
11 / 24 / 2020
14:55:47 UTC
Signed by Aaron Gornstein (agornstein@poah.org)
IP: 38.140.158.130
The document has been completed.11 / 24 / 2020
14:55:47 UTC
Brewster CPC Brewster Woods Agreement Amendment
KP-#736053-v1-BRE...ewster_Woods).pdf
2b77f6495941b607d8ad93cd1bf000bafacdc2ff
MM / DD / YYYY
Completed