Secondary Financing in FHA Insured Low Income Housing Tax Credit Projects September 23, 2015

Transcription

1 Secndary Financing in FHA Insured Lw Incme Husing Tax Credit Prjects September 23, 2015 Aarn O Tle, Partner Klein Hrnig LLP 1325 G Street NW, Suite 770 Washingtn, DC atle@kleinhrnig.cm

2 Overview Why is Secndary Financing Used? Cmmn Types f Secndary Financing. FHA Underwriting Requirements Secndary Financing in General Secured Secndary Financing Repayment Subrdinatin Other issues Brrwer is trying t balance the cmpeting needs and requirements f multiple parties and prgrams. HUD flexibility is ften needed in rder t strike that balance and achieve the gal f prviding affrdable husing. 2

3 Why is Secndary Financing Used? Tax Credit deals will ften have a financing gap the csts exceed the amunt f FHA lan that the prject can supprt plus the amunt f tax credit equity. This is especially true in prjects that target lwer incme husehlds r that use taxexempt bnds and 4% credits. T see the difference in the equity raised by a 9% and a 4% tax credit transactin, cnsider the fllwing example 4% Deal 9% Deal Qualified Basis $5,000,000 $5,000,000 Applicable Percentage 3.21% 7.49% Ttal Credit Amunt (10 years) $1,605,000 $3,745,000 Credit Pricing Ttal Equity $1,540,800 $3,595,200 3

4 Cmmn Types f Secndary Financing CBDG HOME AHP and ther Cnduit Lans Seller Lans Deferred Develper Fee 4

5 Secndary Financing and FHA Underwriting Requirements Secndary Financing in General Current MAP Guide: Permits secured secndary financing fr lans frm federal, state r lcal gvernmental surces. Private secndary financing is permitted in nly a limited set f circumstances. Specifically, if a 223(f) lan, private financing is permitted if private lan plus FHA lan d nt exceed 92.5% LTV. Fr a 221(d)(4) lan r ther new cnstructin r substantial rehabilitatin lan, private secndary financing is nly permitted if FHAinsured lan is fr less than 50% f mrtgageable csts, and seller financing permitted in identity f interest transactins. Metcalf Mem dated January 30, 2015 states that subrdinate debt including seller financing n LIHTC deals may represent up t 100% f ttal prject csts s lng as HUD SNDA is used. Draft MAP Guide is nt s clear. Sectin A allws secndary financing withut any LTV limitatins, thugh it is nt clear if this nly applies t 223(f), and als nt clear if it includes seller lans. 5

6 Secndary Financing and FHA Underwriting Requirements Secndary Debt in General Cntinued Draft MAP Guide Sectin 8.7.B.4(a) says seller lans fr LIHTC prjects are nly permitted if the FHA lan is less than 80% LTV. Hw des this relate t Sectin A? What if it seller lan is a gvernmental lan. Draft MAP Guide Sectin A.3 states that private secndary debt is nly permitted if it can be shwn that it will be repaid frm 75% f surplus cash. True Debt issues: If a lan is nt true debt, it might result in taxable incme, and it might mean that csts paid fr with that debt are nt included in basis. Facts and circumstances test. Must shw reasnable likelihd f repayment. Often will need t use 100% f surplus cash, r refinancing, t shw full repayment. If lan is subrdinated, nt clear why a balln pses a risk t HUD. Draft MAP Guide Sectin prhibits bridge lans (bridging tax credit equity) t be made t the brrwer; they must be made t the spnsr r ther entity. 6

7 Secndary Financing and FHA Underwriting Requirements Secured Secndary Debt True debt: Adequate security is ne fact that supprts a finding f true debt. Current MAP Guide permits secured secndary financing fr lans frm federal, state r lcal gvernmental surces. Private secndary financing may nt be secured withut a waiver. Metcalf Mem dated January 30, 2015 states that subrdinate debt including seller financing n LIHTC deals may... be secured by the prject with use f HUD subrdinatin agreement. Draft MAP Guide Sectin D allws deferred develper fee lans t be secured by the prject, but therwise des nt appear t change the rule that private secndary lans, and seller lans in particular, may nt be secured by the prject. Draft MAP Guide Sectin states that bridge lans (bridging tax credit equity) may nt be secured by the prject. 7

8 Secndary Financing and FHA Underwriting Requirements Repayment Current MAP Guide limits repayment t 75% f surplus cash. Draft MAP Guide des nt change this, except that Sectin B states that the Owner may elect t make additinal payments frm excess cash flw. Smetimes the secndary financing surce may require a higher percentage. This is true fr seller lans in particular. The ability t make vluntary payments is nt equivalent t a lan bligatin. 8

9 Secndary Financing and FHA Underwriting Requirements Subrdinatin f Affrdability Cvenants In general, the FHA insured lan must be in the first lien psitin. Therefre, all regulatry agreements, including pre existing regulatry agreements, must be subrdinated. Gvernmental lenders want t ensure that the public benefit stays in place even if the prperty gets int truble. The Draft MAP Guide Sectin D.E. prvides that n a case bycase basis HUD may apprve nn mnetary use restrictins t be senir t the FHA mrtgage. HUD will verify that there is sufficient financial strength t mitigate any negative impact n marketability. HUD is already underwriting restricted rents. Fr existing prperties there will be histrical data n market demand. Once a mdified rider is apprved in a jurisdictin, it may cntinue t be used withut further apprval. 9

10 Secndary Financing and FHA Underwriting Requirements Other Issues Cmpund Interest Tax rules require lans (ther than gvernmental lans) t be at the Applicable Federal Rate, which is a cmpunding rate. Current MAP Guide requires simple interest n surplus cash lans. Draft MAP Guide Sectin 14.4.A.4 permits a waiver if accrual f interest will nt undermine lng term financial and physical integrity. Maturity Current MAP Guide and Draft MAP Guide require maturity date t be n sner than maturity f FHA lan. This may cnflict with the requirements f sme lenders, and nt clear why it is needed given that the subrdinate lender cannt enfrce its remedies while the FHA lan is utstanding. Brrwer likely is expecting t refinance at the end f the 15 year tax credit cmpliance perid. 10

11 Secndary Financing and FHA Underwriting Requirements Other Issues Cntinued Simultaneus Clsing Current MAP Guide (8.9.D.2) and Draft MAP Guide (8.7.D.2) require subrdinate gvernmental lans t clse simultaneusly with the FHA lan. Often the gvernmental lan is used fr pre develpment r acquisitin and is being left in place at the time f the cnstructin financing clsing. As lng as the HUD subrdinatin agreement is used this shuld nt be a cncern. Frm f Subrdinate Prmissry Nte Current MAP Guide and Draft MAP Guide are unclear as t whether HUD frm surplus cash ntes must be used, and when the secndary financing rider must be used, and lcal ffice practice varies. 11

12 12 Aarn O Tle, Partner Klein Hrnig LLP 1325 G Street NW, Suite 770 Washingtn, DC atle@kleinhrnig.cm