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Presentation, discussion, and possible action on a loan approval and a request for return and reallocation of tax credits under 10 TAC §11.6(5) related to Credit Returns Resulting from Force Majeure Events for Trailside Estates
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RECOMMENDED ACTION
recommendation
WHEREAS, the above listed development was awarded 9% housing tax credits during the 2022 competitive Application round;
WHEREAS, the Developer applied for additional funds under the Department’s 2024-3 TCAP-RF Notice of Funding Availability, which was released last year specifically for the purpose of addressing funding gaps in previously awarded Developments;
WHEREAS, the Department is now recommending approval of a loan in the amount of $7,136,489 to address this funding gap, with proposed loan terms and details concerning the Development’s financials outlined below;
WHEREAS, staff initially executed a Carryover Allocation Agreement with the Development Owner, which included certifications from the Development Owner that each building for which the allocation was made would be placed in service by December 31, 2024;
WHEREAS, the Board previously approved a force majeure request for the Development in 2023, which extended the deadline to be placed in service to December 31, 2025;
WHEREAS, the Department received a request from the Development Owner to extend the placement-in-service deadline under the provisions of 10 TAC §11.6(5) related to Credit Returns Resulting from Force Majeure Events;
WHEREAS, other than in situations covered by force majeure, the Department lacks authority to extend federal deadlines for placement in service; and
WHEREAS, the Development Owner has presented evidence that relief under force majeure is appropriate.
NOW, therefore, it is hereby
RESOLVED, that the that loan of $7,136,489 of TCAP-RF funds to Trailside Estates is approved, subject to conditions that may be applicable as found in the Real Estate Analysis Underwriting Report posted to the Department’s website and as described within this Board Action Request; and
FURTHER RESOLVED, the request for treatment under an application of the force majeure rule are approved, with the 2022 Qualified Allocation Plan and Uniform Multifamily Rules, and the 2025 Program Calendar applicable to the Development.
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BACKGROUND
LOAN APPROVAL
Development Information: Trailside Estates is to be located in Tyler, Smith County, and proposes the new construction of 74 units that will serve an elderly population. The Development will serve households with incomes at or below 30%, 50%, and 60% of Area Median Family Income (AMFI).
Financial Information: The Department’s $7,136,489 TCAP-RF loan is to be structured as fully repayable at 2.00% interest and is in first-lien position.
The Development initially received $1,575,000 in housing tax credits in 2022. Since the last underwriting, total building costs have increased by $3.1 million, and total development costs have increased by $5 million. The brings the total housing development cost to approximately $21.8 million.
The Department’s loan is proposed to replace most of the permanent loan from Sterling Bank, which was originally underwritten at 5.75% interest; $1 million of that loan will remain in place at 8.5% interest. Replacing most of this loan with the Department’s loan allows the deal to remain financially feasible despite the increase in costs.
FORCE MAJEURE REQUEST
An award of Competitive (9%) Housing Tax Credits was approved by the Board for the above-listed development in 2022. Staff executed a Carryover Allocation Agreement with the Development Owner which included a certification from the Development Owner that documentation for the 10% Test would be submitted by a set date, and, to satisfy the requirements of §42 of the Internal Revenue Code, each building for which the allocations were made would be placed in service by December 31, 2023. The Department received a request from the Development Owner to extend the placement-in-service deadline under the provisions of 10 TAC §11.6(5) related to Credits Returns Resulting from Force Majeure Events. Staff determined that this effective “extension” of the 10% Test deadline due to Force Majeure events was appropriate under these circumstances.
Per 10 TAC §11.6(5) of the Qualified Allocation Plan (QAP), related to Credits Returns Resulting from Force Majeure Events, a Development Owner is allowed to return issued credits within three years of award, and have those credits re-allocated to the Development outside of the usual regional allocation system if all the requirements of the subsection are met. Per 10 TAC §11.6(5), the Department’s Governing Board may approve the execution of a current program year Carryover Allocation Agreement regarding the returned credits with the Development Owner that returned such credits only if:
(A) The credits were returned as a result of "Force Majeure" events that occurred before issuance of Forms 8609. Force Majeure events are the following sudden and unforeseen circumstances outside the control of the Development Owner: acts of God such as fire, tornado, flooding, significant and unusual rainfall or subfreezing temperatures, or loss of access to necessary water or utilities as a direct result of significant weather events; explosion; vandalism; orders or acts of military authority; unrelated party litigation; changes in law, rules, or regulations; national emergency or insurrection; riot; acts of terrorism; supplier failures; or materials or labor shortages. If a Force Majeure event is also a presidentially declared disaster, the Department may treat the matter under the applicable federal provisions. Force Majeure events must make construction activity impossible or materially impede its progress.
The Development Owner has communicated to staff the specific challenges that impacted construction timelines and their ability to meet the 10% test and Placed-in-Service deadlines.
Trailside Estates is a 74-unit Development to be completed in Tyler. The project was awarded Housing Tax Credits in 2022 and received force majeure treatment in 2023, the approval of which extended the placed-in-service deadline to December 31, 2025. Since the award of Housing Tax Credits, the project has been impacted by significant cost increases, supply chain issues, and labor shortages that as a whole have created funding gaps and delayed the start of construction of the Development. To address these issues, the developer has applied for a Department Multifamily Direct Loan. While this will allow the project to move forward, the expected lead time on closing the loan of TCAP-RF funds puts the 10% Test and placed-in-service deadlines in severe jeopardy of being achieved.
Staff has determined there is sufficient evidence of “sudden and unforeseen circumstances outside the control of the Development Owner . . . [regarding] supplier failures; or materials or labor shortages,” as described in 10 TAC §11.6(5), for the Department to treat the Development under an application of the force majeure rule. If the Board approves the request to consider these force majeure events, the Development Owner will return the awarded credits and execution of a 2025 Carryover Allocation Agreement will result in a new award and a new placed-in-service deadline of December 31, 2027, for the Development, with a new 10% Test deadline of July 1, 2026. The 2021 Qualified Allocation Plan and Uniform Multifamily Rules will be applicable to the Development for the purposes of the force majeure event.
If the Board denies the requests regarding the force majeure events, the date by which the denied Development must be placed in service will remain as previously agreed. Because the Development Owner had anticipated not meeting the placed-in-service deadline, the credits are expected to be returned. If the Development Owner returns the credits, the credits would first be made available in the subregions from which they were originally awarded, pursuant to 10 TAC §11.6(2), related to returned credits. If there are pending Applications on the 2025 (depending on when the credits are returned) waiting list from the relevant subregions, the next Application would be awarded, assuming there are enough credits to make the award. If there are not enough credits in the subregion to make an award, the credits will go into the statewide collapse and contribute the next award.
Staff recommends the Board approve the requests for treatment under an application of the force majeure rule for the Development. Approval of this request does not change any federal or state deadlines for MFDL.