Current through Register Vol. 35, No. 18, September 24, 2024
The committee shall consider loan applications at a regularly
scheduled public meeting. The committee will review the application for
conformance with the applicable standards and will take action on the
application. Such action will take the form of an approval, approval with
conditions, tabling or denial. Applicants will be notified of the committee's
decisions within 14 calendar or 10 business days of the committee's meeting. If
approved division staff will prepare the state's agreement documents for review
and approval of the committee.
E.
The loan participation agreement shall contain the following:
(1) the names and street addresses of all
parties participating in the project by making a contribution of funds to the
loan pool; and
(2) recitals of the
project, definitions, and
(3) a
statement specifying the parties' respective percentages of financial
participation or "share" in the loan pool, such participation shall be
described as a "sale of participation" in the loan or loan subsidy by each
party; and
(4) a statement
describing the manner in which MSRL funds will be contributed to the loan pool;
the lending institution shall notify the division that according to the
schedule for disbursements of loan funds to the borrower, a contribution of
MSRL funds into the loan pool is necessary; the division shall make an
appropriate request to the department of finance and administration and the
state treasurer's office to effect a contribution of MSRL funds into the loan
pool; and
(5) a statement that upon
deposit of the MSRLF contribution to the loan pool, the MSRLF contribution
shall accrue interest at the rate of three percent per annum; and
(6) a statement that the lending institution
shall disburse loan funds to the borrower in no more than five separate
installments and as provided in Subsection B of 12.21.3.8 NMAC herein;
and
(7) a statement that the
division shall establish an inspection schedule relating to the purposes and
goals of the Main Street Revolving Loan Act, authorized uses of the MSRL
contributions, and compliance with the development agreement and preservation
covenants and deed restrictions and the MSRL standards; and
(8) a statement that provides that the
lending institution shall establish an inspection schedule relating to
construction progress; and
(9) a
statement that provides that MSRLF contributions that are not disbursed to the
borrower, as provided in Subsection B of 12.21.3.8 NMAC herein, shall be
returned by the lending institution to the division; and
(10) a statement describing the rates of
interest charged to the borrower for the loan or loan subsidy attributable to
each party who contributed to the loan pool, including the rate charged on the
MSRLF contribution as stated in Section C of
3-60C-6
NMSA 1978, and other rates charged on funds contributed by the lending
institution; and
(11) a statement
indicating the combined interest rate of the loan or loan subsidy;
and
(12) a statement describing the
administration of the loan pool by the lending institution, including that the
lending institution shall:
(a) receive and
deposit the MSRLF contributions into the loan pool and, within five working
days after receipt of a payment from the borrower, transfer to the division its
share of any collections, including interest due to the division; and
(b) service and manage the loan or loan
subsidy and collateral according to customary and prudent lending practices;
and
(c) be responsible for all
aspects of loan origination, servicing, collections, and security;
and
(d) document the loan or loan
subsidy in the form a promissory note, loan agreement, mortgage and other
security agreements(s) that may be required by the lending institution;
and
(e) require that the promissory
note, mortgage and other loan documents provide that events of default include
the borrower's failure to make timely payments of amounts due under the loan or
loan subsidy, comply with the standards, or comply with the development
agreement and covenants and deed restrictions; and
(f) ensure that the original priority of the
mortgage extends to each subsequent disbursement of loan proceeds to the
borrower; and
(g) provide the
division with copies of all documents pertaining to the loan or loan subsidy;
and
(h) monitor the borrower's
maintenance of any insurance required on the collateral, payment of all taxes,
fees and other charges assessed or otherwise imposed upon the collateral;
and
(i) promptly notify the
committee and division of any event of default existing for more than thirty
days, and of other significant information relating to the loan; and
(j) upon notification of a default, consult
with the division as to the appropriate course of action and take such agreed
upon action with the prior written approval of the division; and
(13) a statement that the lending
institution shall execute and deliver satisfactions, endorsements, receipts,
discharges or releases as may be necessary in the proper serving and collection
of the loan or loan subsidy; the lending institution shall not modify or
supplement any documents associated with the loan or loan subsidy, agree to any
extension of time or waiver or forgiveness of debt, take or permit any action
that will release the borrower or any guarantor from any obligation or
liability with regard to the loan, or impair the validity or priority of the
lending institution's or committee's interest in the collateral unless the
lending institution obtains the committee's prior written consent;
and
(14) a statement permitting
payment of charges related to loan origination, closing, and other service
charges incurred by the lending institution in its administration of the loan
pool, to be paid from loan funds contributed by the lending institution;
and
(15) a statement describing the
committee and division's right to have access to loan or loan subsidy records
in the possession of the lending institution; and
(16) a statement describing all terms of the
loan or loan subsidy issued from the loan pool, including:
(a) a detailed description of all repair,
restoration or rehabilitation for the project as approved by the division and
any modifications, exhibits or additional documents as approved by the division
and the lending institution; and
(b) a statement that the restoration,
rehabilitation, or repair must be completed within two years from the date the
loan is approved by the division and closed by the lending institution;
and
(c) a statement that the term
of the loan or loan subsidy shall be five years and interest and principal
shall be paid in equal installments no less than annually with the first
installment due within one year of the date the loan is closed by the lending
institution; this statement shall also provide that the loan shall be amortized
over a period not to exceed twenty years, with a balloon payment due at the end
of the five year term; in lieu of a balloon payment, the lending institution
may purchase the remaining loan amount due to the division; and
(d) a statement that the loan or loan subsidy
shall be secured by the collateral; and
(e) a statement that all restoration,
rehabilitation, or repair shall be completed in conformity with the MSRL fund
standards for rehabilitation as determined by the division; and
(f) a statement that failure by the borrower
to comply with the standards shall be an event of default under the promissory
note and the mortgage; and
(g) a
statement that the division shall notify the borrower of any noncompliance with
the standards, that the borrower has a specific period of time to cure the
noncompliance, and if the default is not cured the division shall notify the
lending institution of the default and the lending institution shall pursue
appropriate remedies as stated in the loan participation agreement, promissory
note or mortgage; and
(h) a
statement that the lending institution shall condition the closing of the loan
or loan subsidy upon the borrower's execution of a development agreement and
covenants and deed restrictions with the committee, as described in Subsection
F of 12.21.3.13 NMAC of these regulations; and that if the loan is repaid prior
to the expiration of five years from the date the loan or loan subsidy is
closed by the lending institution, the covenants and deed restrictions shall
not be extinguished and shall remain in effect until the termination date of
the development agreement and covenant and deed restriction; and a requirement
that this provision be contained in the mortgage and all other documents
evidencing security for the loan or loan subsidy; and
(i) a statement that the promissory note,
mortgage, and any other documents pertaining to security for the loan or loan
subsidy shall include provisions stating that the borrower's default in
connection with any loan, loan subsidy or other obligation secured by a lien
superior to the mortgage or development agreement and covenants and deed
restrictions shall constitute an event of default of the mortgage and loan
agreement; the division and the lending institution shall have the right (but
not the obligation) to cure any default in connection with superior liens and
charge the costs of curing to the borrower; and
(j) a statement requiring that a construction
sign acknowledging the assistance of the MSRL, division and the lending
institution, or other participating party, shall be displayed prominently at
the project being restored, rehabilitated or repaired; and
(k) a statement requiring the lending
institution to require the borrower to maintain financial records regarding the
project throughout the term of the loan or loan subsidy and shall make such
records available to the lending institution and the division upon request;
and
(17) a statement
regarding the lending institution's transfer of payments to the division,
including any interest, in conformity with the division's share of
participation in the loan pool; and
(18) a statement regarding quarterly reports
to the participating parties from the lending institution concerning the
project's financial and restoration, rehabilitation or repair status;
and
(19) a statement identifying
the name and street address of individuals to whom written notice of matters
concerning the project shall be addressed and directed; and
(20) a statement describing the applicable
law that governs the loan participation agreement; and
(21) a statement providing for severability,
non-assignability, amendment of the loan participation agreement, and
(22) a statement regarding execution of the
loan participation agreement in counterparts; and duly witnessed signatory
lines of the parties.
F.
Development agreement and covenants and deed restrictions: The committee shall
enter into a development agreement and covenants and deed restrictions with the
property owner/borrower to govern the restoration, rehabilitation, or repair of
a project. The development agreement and covenants and deed restrictions shall
contain the following:
(1) the names and
street addresses of the parties, including the property owner's heirs,
successors and assigns and the date the agreement is executed; and
(2) recitals, including a statement that all
covenants and deed restrictions shall run with the land for no less than a
period of five years, shall bind all future owners and occupants of the
property during that time, and be recorded; and
(3) covenants applicable to the property
owner and that pertain to the owner's obligations to do or refrain from doing
specified activities that affect the condition of the restoration,
rehabilitation or repaired property; and
(4) a statement that nothing in the
development agreement prohibits the owner from obtaining financial assistance
from sources other than the MSRL fund, provided that the lien of the covenants
and deed restrictions shall not be made subordinate to any mortgage or other
lien interest made in connection with other financial assistance without the
committee's approval; and
(5) a
statement that the standard of review for compliance with the covenants and
deed restrictions or review of construction, alteration, repair, maintenance,
or casualty damage, shall be the MSRL standards and any applicable state or
local standards; and
(6) a
statement that the division determines the applicability of the standards and
the application of alternative standards that the division determines to be
reasonable; and
(7) a provision
regarding casualty damage or destruction to the property; and
(8) covenants applicable to the committee and
that pertain to conveyance, assignment or transfer of its interest in the
development agreement; and
(9) a
provision regarding inspection of the property; and
(10) a provision describing the division's
remedies to correct violations of the development agreement and covenants and
deed restrictions; and
(11) a
provision regarding notice from the owner to the committee in the event the
owner proposes to sell the property; and
(12) a requirement that as long as the
covenants and deed restrictions run with the land, the owner shall insert the
covenants and deed restrictions in any subsequent deed or other legal
instrument by which the owner divests itself of either the fee simple title to,
or its possessory interest in the property; and
(13) a provision regarding recording of the
development agreement and covenants and deed restrictions; and
(14) provisions regarding subordination of
subsequent mortgages and the rights of the division with respect to senior
liens, which shall require that:
(a) the
covenants and deed restrictions shall have priority over all mortgages, other
rights affecting the property including tax liens, which are granted after
execution and recording of the development agreement; and
(b) the covenants and deed restrictions shall
not be extinguished or terminate upon a mortgagee taking title to the property
within five years of the date of closing of the loan, as a result of
foreclosure or otherwise; and
(c)
that the borrower's default in connection with any loan or other obligation
secured by a lien superior to the mortgage or lien of the covenants and deed
restrictions shall constitute an event of default of the covenants and deed
restrictions, and that the division or lending institution shall have the right
to cure any such default and charge the costs of curing to the borrower;
and
(d) if a mortgage grants to a
mortgagee the right to receive proceeds of a condemnation proceeding arising
from an exercise of eminent domain as to any part of the property or the right
to receive insurance proceeds as a result of any casualty, hazard or accident
occurring to or about the property, the mortgagee shall have a superior claim
to the insurance and condemnation proceeds and entitled to the same in
preference to the division until the mortgage is paid off and discharged,
notwithstanding that the mortgage is subordinate in priority to the covenants
and deed restrictions; and
(e) if a
mortgagee has received an assignment of the leases, rents and profits of the
property as security or additional security for a loan, the mortgagee shall
have a superior claim to the leases, rents and profits of the property and
shall be entitled to receive same in preference to the division until said
mortgagee's debt is paid off, notwithstanding that the mortgage is subordinate
to the covenants and deed restrictions; and
(f) until a mortgagee or purchaser at
foreclosure obtains ownership of the property following foreclosure of its
mortgage or deed in lieu of foreclosure, the mortgagee or purchaser shall have
no obligation, debt or liability under the covenants and deed restrictions;
and
(15) a statement of
the name and street address of the individuals to whom written notice is to be
directed; and
(16) a requirement
that upon the request of the division, the owner shall provide evidence of
compliance with terms of the development agreement and covenants and deed
restrictions; and
(17) provisions
regarding evidence of compliance, and interpretation and enforcement of the
development agreement and covenants and deed restrictions; and
(18) an expiration date of the development
agreement and covenants and deed restrictions, and duly witnessed and notarized
signature lines of the owner and the division.
G. Promissory note:
(1) A promissory note signed by the borrower
and evidencing the loan or loan subsidy may be required by the lending
institution. With the inclusion of the requirement of Paragraph (2) of
Subsection G of 12.21.3.13 NMAC below, the form of the note and its terms shall
be determined by the lending institution using customary and prudent lending
practices by lending institutions in New Mexico.
(2) The promissory note shall include a
provision that events of default include without limitation, the borrower's
failure to make timely payments of amounts due under the loan or loan subsidy,
comply with the standards, or comply with the development agreement and
covenants and deed restrictions.
H. Mortgage:
(1) A mortgage evidencing the security
interest for the loan or loan subsidy may be required by the lending
institution. With the inclusion of the requirement in Paragraph (2) of
Subsection H of 12.21.3.13 NMAC below, the form of the mortgage and its terms
shall be determined by the lending institution using customary and prudent
lending practices for lending institutions in New Mexico.
(2) The mortgage shall include a provision
that events of default include without limitation, the borrower's failure to
make timely payments of amounts due under the loan or loan subsidy, comply with
the standards, or comply with the development agreement and covenants and deed
restrictions.
I. Loan
agreement:
(1) A loan agreement evidencing the
loan or loan subsidy may be required by the lending institution. With the
inclusion of the requirement in Paragraph (2) of Subsection G of 12.21.3.13
NMAC below, the form of the agreement and its terms shall be determined by the
lending institution using customary and prudent lending practices for lending
institutions in New Mexico.
(2) The
mortgage shall include a provision that events of default include without
limitation, the borrower's failure to make timely payments of amounts due under
the loan or loan subsidy, comply with the standards, or comply with the
development agreement and covenants and deed restrictions.