§ 5 — Powers of the agency

New York § 5

• Jurisdiction: New York
• Law NYP: NYS Project Finance Agency Act7/75

Text

§ 5. Powers of the agency.\n Except as otherwise limited by this act and subject to the provisions\nof any contract with noteholders or bondholders, the agency shall have\npower:\n 1. To sue and be sued;\n 2. To have a seal and alter the same at pleasure;\n 3. To make and execute contracts and all other instruments necessary\nor convenient for the exercise of its powers and functions under this\nact;\n 4. To make and alter by-laws for its organization and internal\nmanagement;\n 5. To acquire, hold and dispose of real or personal property (whether\ntangible or intangible) for its corporate purposes;\n 6. To appoint officers, agents and employees, prescribe their duties\nand qualifications and fix their compensation;\n 7. To borrow money and issue negotiable or non-negotiable notes, bonds\nor other obligations and to provide for the rights of the holders\nthereof, and as security for the payment of the principal of and\ninterest on any notes or bonds so issued and any agreements made in\nconnection therewith, to assign or pledge any or all existing and future\nassets or revenues owned by or assigned or pledged to the agency and the\nreceipts to be derived therefrom;\n 8. To accept appropriations made to it by the state and to apply the\nproceeds of such appropriations, together with the proceeds of\nborrowings by the agency and any other funds available to it, for the\npurposes set forth in this act, and from time to time to enter into a\nrepayment agreement with the state in respect of such appropriations on\nsuch terms and conditions as the director of the budget determines are\nappropriate for the repayment of any and all outstanding sums then owed\nin such respect by the agency and each such agreement shall supersede\nall prior such agreements, provided that such repayment agreements shall\nrequire payments thereunder in any fiscal year of the agency only to the\nextent that the agency's revenues and receipts from operations\n(excluding borrowings, proceeds of sales of assets and appropriations)\nduring its preceding fiscal year shall exceed the aggregate amount\npayable by the agency during such preceding year for expenses (including\nreasonable reserves for contingencies) and debt service (without regard\nto any refunding of debt) plus the amount of any eligible purchases and\neligible loans made during either such year out of any balance of such\nrevenues and receipts from operations;\n 9. To invest any funds held in reserve or sinking funds, or any funds\nnot required for immediate use or disbursement, at the discretion of the\nagency, in obligations of the state or federal government, obligations\nthe principal and interest of which are guaranteed by the state or\nfederal government, or obligations of agencies of the federal\ngovernment, or special time deposits in, or certificates of deposit\nissued by, a bank or trust company authorized to do business in this\nstate and secured by a pledge of obligations of the United States of\nAmerica or obligations of the state or obligations the principal and\ninterest of which are guaranteed by the state or federal government or\nobligations of agencies of the federal government, provided that any\nsuch investment is one which may from time to time be legally purchased\nby savings banks of the state as investments of funds belonging to them\nor in their control;\n 10. To make eligible purchases at such purchase price as the\ncommissioner shall approve (including a purchase price at a premium over\nthe par value of the corporation first mortgage to be purchased) which\nshall be determined on the basis that such purchase price is to be\namortized over the remaining term of the corporation first mortgage at\nthe corporation's estimated average cost of borrowing (as determined by\nthe commissioner in accordance with any accepted method) utilizing the\nannual payments of principal and interest called for by such mortgage,\nand otherwise on such terms and conditions, not inconsistent with this\nact, as are satisfactory to the agency; provided that no eligible\npurchase shall be made by the agency unless, except as otherwise\npermitted by contract with bondholders or noteholders, the commissioner\nfinds that\n (a) the mortgage purchased is (or in the case of a purchase not\ninvolving the use of funds acquired through the issuance of bonds or\nnotes of the agency, can reasonably be anticipated to become) a valid\nfirst mortgage lien on a corporation project free and clear of all other\nliens and encumbrances which would materially affect the value or\nusefulness of the property secured thereby (or that arrangements\nsatisfactory to the commissioner for the discharge of such liens and\nencumbrances have been made) and that such first mortgage has been\nexecuted and recorded in accordance with the requirements of existing\nlaws; and\n (b) the estimated net revenues of such corporation project, after\nprovision has been made to cover all probable costs of operation and\nmaintenance, of fixed charges and operating reserves and depreciation\nreserves, if any, including any subsidy payments attributable to such\ncorporation project, shall be sufficient to pay the estimated principal\nof and interest on all bonds or notes of the agency issued or to be\nissued which are allocated or re-allocated by the commissioner to the\nfinancing of the purchase of such mortgage (after giving effect to such\nestimated net revenues related to mortgages purchased or acquired as\nsecurity for eligible loans made with state appropriations or other\navailable funds which are concurrently allocated or re-allocated to such\nfinancing) and any fees and charges of the agency applicable to such\neligible purchase.\n Subject to the provisions of any contract of the agency or the\ncorporation with their respective noteholders or bondholders, (i) the\ncorporation shall have authority to make an additional mortgage loan,\npursuant to the private housing finance law and the New York state urban\ndevelopment corporation act, for any corporation project the corporation\nfirst mortgage on which has been purchased by the agency, such loan to\nbe made on an additional mortgage junior and subordinate only to the\nmortgage that was purchased by the agency but otherwise equivalent to a\ncorporation first mortgage, (ii) the agency shall have authority to make\nan eligible purchase, pursuant to this act, of such additional mortgage\nnotwithstanding that it is not a corporation first mortgage, at any time\nat or after the making of the first advance on such additional mortgage\nby the corporation, with the purchase price (including any applicable\npremium) to be payable at such times and in such amounts as shall be\nagreed by the agency and the corporation, and (iii) upon such a purchase\nby the agency such additional mortgage may be consolidated with the\ncorporation first mortgage previously purchased by the agency;\n 11. To make eligible loans on such terms and conditions, not\ninconsistent with this act, as are satisfactory to the agency; provided\nthat no eligible loan shall be made by the agency unless, except as\notherwise permitted by contract with bondholders or noteholders, the\ncommissioner finds that\n (a) the mortgage securing the eligible loan is (or in the case of a\nloan not involving the use of funds acquired through the issuance of\nbonds or notes of the agency, can reasonably be anticipated to become) a\nvalid first mortgage lien on a corporation project free and clear of all\nother liens and encumbrances which would materially affect the value or\nusefulness of the property secured thereby (or that arrangements\nsatisfactory to the commissioner for the discharge of such liens and\nencumbrances have been made) and that such first mortgage has been\nexecuted and recorded in accordance with the requirements of existing\nlaws; and\n (b) the estimated net revenues of such corporation project, after\nprovision has been made to cover all probable costs of operation and\nmaintenance, of fixed charges and operating reserves and depreciation\nreserves, if any, including any subsidy payments attributable to such\ncorporation project, shall be sufficient to pay the estimated principal\nof and interest on all bonds or notes of the agency issued or to be\nissued which are allocated or re-allocated by the commissioner to the\nfinancing of such eligible loan (after giving effect to such estimated\nnet revenues related to mortgages purchased or acquired as security for\neligible loans made with state appropriations or other available funds\nwhich are concurrently allocated or re-allocated to such financing) and\nany fees and charges of the agency applicable to such eligible loan;\n 12. To use and apply all monies received by the agency on account of\nthe corporation first mortgages purchased by the agency or on account of\nthe corporation first mortgages and other assets or revenues assigned or\npledged to it as security for eligible loans:\n (a) In the case of such corporation first mortgages and other assets\nor revenues assigned or pledged by the agency as security for\noutstanding bonds of the agency, to meet payments of principal and\ninterest on such outstanding bonds and any fees and charges of the\nagency related to the respective corporation first mortgages, and any\nexcess shall be applied in accordance with paragraph (d) of this\nsubdivision;\n (b) In the case of such corporation first mortgages and other assets\nor revenues assigned or pledged by the agency as security for\noutstanding notes of the agency, to meet payments of principal and\ninterest on such outstanding notes (including the redemption of any note\npayment certificates delivered pursuant to subdivision three of section\nseven of this act) and any fees and charges of the agency related to the\nrespective corporation first mortgages, and any excess shall be applied\nin accordance with paragraph (d) of this subdivision;\n (c) In the case of any such corporation first mortgages and other\nassets or revenues assigned or pledged by the agency as security for its\nguaranty of obligations of the corporation, pursuant to subdivision\ntwenty-one of this section, to be applied in accordance with the\nprovisions of such guaranty, and any excess shall be applied in\naccordance with paragraph (d) of this subdivision; and\n (d) In the case of any such corporation first mortgages and other\nassets or revenues not assigned or pledged by the agency as security,\nand in the case of excess amounts to be applied in accordance with this\nparagraph as provided above, first, to meet payments of principal and\ninterest on any outstanding bonds or notes of the agency (including the\nredemption of any note payment certificates delivered pursuant to\nsubdivision three of section seven of this act) and the fees and charges\nof the agency, irrespective of the corporation project or projects from\nwhich such monies are derived, and, second, any balance shall be applied\nas follows: (i) in the case of any such monies received on account of\nsuch corporation first mortgages and other assets or revenues that had\nbeen assigned or pledged to the agency as security for eligible loans,\nto pay over such balance to the corporation in accordance with the terms\nand conditions of such eligible loans; and (ii) in the case of any such\nmonies received on account of such corporation first mortgages that had\nbeen purchased by the agency, to make further eligible purchases or\neligible loans to the extent deemed appropriate by the commissioner, to\npay any remaining balance to the corporation in reduction of the\nagency's obligations for repayment of appropriations theretofore\ntransferred by the state to the corporation pursuant to a chapter of the\nlaws of nineteen hundred seventy-five, and, in the event of payment in\nfull by the agency of such obligations, to apply any remaining balance\nas the members of the agency, in their discretion, with the approval of\nthe commissioner, shall determine to be in the best interests of the\nagency and the corporation and their respective bondholders and\nnoteholders.\n 13. To sell, at public or private sale, any obligations, property or\nrights representing, embodying or securing an eligible loan made by the\nagency or acquired in an eligible purchase;\n 14. In connection with the making of eligible purchases, eligible\nloans and commitments therefor, to make and collect such fees and\ncharges, including but not limited to reimbursements of all costs of\nfinancing by the agency, service charges and insurance premiums, as the\nagency shall determine to be reasonable;\n 15. To consent to the modification, with respect to rate of interest,\ntime of payment of any installment of principal or interest, security,\nor any other term, of any eligible loan, eligible loan commitment,\neligible purchase, eligible purchase commitment, contract or agreement\nof any kind to which the agency is a party;\n 16. To exercise exclusively all rights of the mortgagee under any\ncorporation first mortgage purchased by the agency or assigned to secure\nany eligible loan, to foreclose on any property subject to such mortgage\nor commence any action to protect or enforce any right conferred upon it\nby any law, mortgage, contract or other agreement, and to bid for and\npurchase such property at any foreclosure or at any other sale, or\nacquire or take possession of any such property; and in such event the\nagency may complete, administer, pay the principal of and interest on\nany obligations incurred in connection with such property, dispose of,\nand otherwise deal with, such property, in such manner as may be\nnecessary or desirable to protect the interests of the agency therein;\n 17. To procure insurance against any loss in connection with its\nproperty and other assets (including mortgages and mortgage loans) in\nsuch amounts, and from such insurers, as it deems desirable;\n 18. To accept any gifts or grants or loans of funds or property or\nfinancial or other aid in any form, including but not limited to\nmortgage insurance, from the federal government or any agency or\ninstrumentality thereof or from the state or from any other source and\nto comply, subject to the provisions of this act, with the terms and\nconditions thereof;\n 19. To engage the services of private consultants on a contract basis\nfor rendering professional and technical assistance and advice;\n 20. To enter into a contract with the New York state housing finance\nagency to market and service any agency bonds and notes approved by the\nagency and to contract with the New York state housing finance agency to\nrender such other services as the agency may request, including but not\nlimited to the use of the premises, personnel and personal property of\nthe New York state housing finance agency, and to provide for\nreimbursement to the New York state housing finance agency from the\nagency for any expenses necessarily incurred by the New York state\nhousing finance agency in carrying out the terms of any such contract.\nAny such contract shall be subject to the separate approval of the\ndirector of the budget;\n 21. To guarantee obligations of the corporation and to assign or\npledge as security for any such guaranty any or all of the obligations,\nproperty or rights representing, embodying or securing an eligible loan\nmade by the agency or acquired in an eligible purchase;\n 22. To do any and all things necessary or convenient to carry out its\npurposes and exercise the powers expressly given and granted in this\nact.\n