N.Y. NYS Project Finance Agency Act7/75 § 5: Powers of the agency

§ 5. Powers of the agency.

Except as otherwise limited by this act and subject to the provisions

of any contract with noteholders or bondholders, the agency shall have

power:

1. To sue and be sued;

2. To have a seal and alter the same at pleasure;

3. To make and execute contracts and all other instruments necessary

or convenient for the exercise of its powers and functions under this

act;

4. To make and alter by-laws for its organization and internal

management;

5. To acquire, hold and dispose of real or personal property (whether

tangible or intangible) for its corporate purposes;

6. To appoint officers, agents and employees, prescribe their duties

and qualifications and fix their compensation;

7. To borrow money and issue negotiable or non-negotiable notes, bonds

or other obligations and to provide for the rights of the holders

thereof, and as security for the payment of the principal of and

interest on any notes or bonds so issued and any agreements made in

connection therewith, to assign or pledge any or all existing and future

assets or revenues owned by or assigned or pledged to the agency and the

receipts to be derived therefrom;

8. To accept appropriations made to it by the state and to apply the

proceeds of such appropriations, together with the proceeds of

borrowings by the agency and any other funds available to it, for the

purposes set forth in this act, and from time to time to enter into a

repayment agreement with the state in respect of such appropriations on

such terms and conditions as the director of the budget determines are

appropriate for the repayment of any and all outstanding sums then owed

in such respect by the agency and each such agreement shall supersede

all prior such agreements, provided that such repayment agreements shall

require payments thereunder in any fiscal year of the agency only to the

extent that the agency's revenues and receipts from operations

(excluding borrowings, proceeds of sales of assets and appropriations)

during its preceding fiscal year shall exceed the aggregate amount

payable by the agency during such preceding year for expenses (including

reasonable reserves for contingencies) and debt service (without regard

to any refunding of debt) plus the amount of any eligible purchases and

eligible loans made during either such year out of any balance of such

revenues and receipts from operations;

9. To invest any funds held in reserve or sinking funds, or any funds

not required for immediate use or disbursement, at the discretion of the

agency, in obligations of the state or federal government, obligations

the principal and interest of which are guaranteed by the state or

federal government, or obligations of agencies of the federal

government, or special time deposits in, or certificates of deposit

issued by, a bank or trust company authorized to do business in this

state and secured by a pledge of obligations of the United States of

America or obligations of the state or obligations the principal and

interest of which are guaranteed by the state or federal government or

obligations of agencies of the federal government, provided that any

such investment is one which may from time to time be legally purchased

by savings banks of the state as investments of funds belonging to them

or in their control;

10. To make eligible purchases at such purchase price as the

commissioner shall approve (including a purchase price at a premium over

the par value of the corporation first mortgage to be purchased) which

shall be determined on the basis that such purchase price is to be

amortized over the remaining term of the corporation first mortgage at

the corporation's estimated average cost of borrowing (as determined by

the commissioner in accordance with any accepted method) utilizing the

annual payments of principal and interest called for by such mortgage,

and otherwise on such terms and conditions, not inconsistent with this

act, as are satisfactory to the agency; provided that no eligible

purchase shall be made by the agency unless, except as otherwise

permitted by contract with bondholders or noteholders, the commissioner

finds that

(a) the mortgage purchased is (or in the case of a purchase not

involving the use of funds acquired through the issuance of bonds or

notes of the agency, can reasonably be anticipated to become) a valid

first mortgage lien on a corporation project free and clear of all other

liens and encumbrances which would materially affect the value or

usefulness of the property secured thereby (or that arrangements

satisfactory to the commissioner for the discharge of such liens and

encumbrances have been made) and that such first mortgage has been

executed and recorded in accordance with the requirements of existing

laws; and

(b) the estimated net revenues of such corporation project, after

provision has been made to cover all probable costs of operation and

maintenance, of fixed charges and operating reserves and depreciation

reserves, if any, including any subsidy payments attributable to such

corporation project, shall be sufficient to pay the estimated principal

of and interest on all bonds or notes of the agency issued or to be

issued which are allocated or re-allocated by the commissioner to the

financing of the purchase of such mortgage (after giving effect to such

estimated net revenues related to mortgages purchased or acquired as

security for eligible loans made with state appropriations or other

available funds which are concurrently allocated or re-allocated to such

financing) and any fees and charges of the agency applicable to such

eligible purchase.

Subject to the provisions of any contract of the agency or the

corporation with their respective noteholders or bondholders, (i) the

corporation shall have authority to make an additional mortgage loan,

pursuant to the private housing finance law and the New York state urban

development corporation act, for any corporation project the corporation

first mortgage on which has been purchased by the agency, such loan to

be made on an additional mortgage junior and subordinate only to the

mortgage that was purchased by the agency but otherwise equivalent to a

corporation first mortgage, (ii) the agency shall have authority to make

an eligible purchase, pursuant to this act, of such additional mortgage

notwithstanding that it is not a corporation first mortgage, at any time

at or after the making of the first advance on such additional mortgage

by the corporation, with the purchase price (including any applicable

premium) to be payable at such times and in such amounts as shall be

agreed by the agency and the corporation, and (iii) upon such a purchase

by the agency such additional mortgage may be consolidated with the

corporation first mortgage previously purchased by the agency;

11. To make eligible loans on such terms and conditions, not

inconsistent with this act, as are satisfactory to the agency; provided

that no eligible loan shall be made by the agency unless, except as

otherwise permitted by contract with bondholders or noteholders, the

commissioner finds that

(a) the mortgage securing the eligible loan is (or in the case of a

loan not involving the use of funds acquired through the issuance of

bonds or notes of the agency, can reasonably be anticipated to become) a

valid first mortgage lien on a corporation project free and clear of all

other liens and encumbrances which would materially affect the value or

usefulness of the property secured thereby (or that arrangements

satisfactory to the commissioner for the discharge of such liens and

encumbrances have been made) and that such first mortgage has been

executed and recorded in accordance with the requirements of existing

laws; and

(b) the estimated net revenues of such corporation project, after

provision has been made to cover all probable costs of operation and

maintenance, of fixed charges and operating reserves and depreciation

reserves, if any, including any subsidy payments attributable to such

corporation project, shall be sufficient to pay the estimated principal

of and interest on all bonds or notes of the agency issued or to be

issued which are allocated or re-allocated by the commissioner to the

financing of such eligible loan (after giving effect to such estimated

net revenues related to mortgages purchased or acquired as security for

eligible loans made with state appropriations or other available funds

which are concurrently allocated or re-allocated to such financing) and

any fees and charges of the agency applicable to such eligible loan;

12. To use and apply all monies received by the agency on account of

the corporation first mortgages purchased by the agency or on account of

the corporation first mortgages and other assets or revenues assigned or

pledged to it as security for eligible loans:

(a) In the case of such corporation first mortgages and other assets

or revenues assigned or pledged by the agency as security for

outstanding bonds of the agency, to meet payments of principal and

interest on such outstanding bonds and any fees and charges of the

agency related to the respective corporation first mortgages, and any

excess shall be applied in accordance with paragraph (d) of this

subdivision;

(b) In the case of such corporation first mortgages and other assets

or revenues assigned or pledged by the agency as security for

outstanding notes of the agency, to meet payments of principal and

interest on such outstanding notes (including the redemption of any note

payment certificates delivered pursuant to subdivision three of section

seven of this act) and any fees and charges of the agency related to the

respective corporation first mortgages, and any excess shall be applied

in accordance with paragraph (d) of this subdivision;

(c) In the case of any such corporation first mortgages and other

assets or revenues assigned or pledged by the agency as security for its

guaranty of obligations of the corporation, pursuant to subdivision

twenty-one of this section, to be applied in accordance with the

provisions of such guaranty, and any excess shall be applied in

accordance with paragraph (d) of this subdivision; and

(d) In the case of any such corporation first mortgages and other

assets or revenues not assigned or pledged by the agency as security,

and in the case of excess amounts to be applied in accordance with this

paragraph as provided above, first, to meet payments of principal and

interest on any outstanding bonds or notes of the agency (including the

redemption of any note payment certificates delivered pursuant to

subdivision three of section seven of this act) and the fees and charges

of the agency, irrespective of the corporation project or projects from

which such monies are derived, and, second, any balance shall be applied

as follows: (i) in the case of any such monies received on account of

such corporation first mortgages and other assets or revenues that had

been assigned or pledged to the agency as security for eligible loans,

to pay over such balance to the corporation in accordance with the terms

and conditions of such eligible loans; and (ii) in the case of any such

monies received on account of such corporation first mortgages that had

been purchased by the agency, to make further eligible purchases or

eligible loans to the extent deemed appropriate by the commissioner, to

pay any remaining balance to the corporation in reduction of the

agency's obligations for repayment of appropriations theretofore

transferred by the state to the corporation pursuant to a chapter of the

laws of nineteen hundred seventy-five, and, in the event of payment in

full by the agency of such obligations, to apply any remaining balance

as the members of the agency, in their discretion, with the approval of

the commissioner, shall determine to be in the best interests of the

agency and the corporation and their respective bondholders and

noteholders.

13. To sell, at public or private sale, any obligations, property or

rights representing, embodying or securing an eligible loan made by the

agency or acquired in an eligible purchase;

14. In connection with the making of eligible purchases, eligible

loans and commitments therefor, to make and collect such fees and

charges, including but not limited to reimbursements of all costs of

financing by the agency, service charges and insurance premiums, as the

agency shall determine to be reasonable;

15. To consent to the modification, with respect to rate of interest,

time of payment of any installment of principal or interest, security,

or any other term, of any eligible loan, eligible loan commitment,

eligible purchase, eligible purchase commitment, contract or agreement

of any kind to which the agency is a party;

16. To exercise exclusively all rights of the mortgagee under any

corporation first mortgage purchased by the agency or assigned to secure

any eligible loan, to foreclose on any property subject to such mortgage

or commence any action to protect or enforce any right conferred upon it

by any law, mortgage, contract or other agreement, and to bid for and

purchase such property at any foreclosure or at any other sale, or

acquire or take possession of any such property; and in such event the

agency may complete, administer, pay the principal of and interest on

any obligations incurred in connection with such property, dispose of,

and otherwise deal with, such property, in such manner as may be

necessary or desirable to protect the interests of the agency therein;

17. To procure insurance against any loss in connection with its

property and other assets (including mortgages and mortgage loans) in

such amounts, and from such insurers, as it deems desirable;

18. To accept any gifts or grants or loans of funds or property or

financial or other aid in any form, including but not limited to

mortgage insurance, from the federal government or any agency or

instrumentality thereof or from the state or from any other source and

to comply, subject to the provisions of this act, with the terms and

conditions thereof;

19. To engage the services of private consultants on a contract basis

for rendering professional and technical assistance and advice;

20. To enter into a contract with the New York state housing finance

agency to market and service any agency bonds and notes approved by the

agency and to contract with the New York state housing finance agency to

render such other services as the agency may request, including but not

limited to the use of the premises, personnel and personal property of

the New York state housing finance agency, and to provide for

reimbursement to the New York state housing finance agency from the

agency for any expenses necessarily incurred by the New York state

housing finance agency in carrying out the terms of any such contract.

Any such contract shall be subject to the separate approval of the

director of the budget;

21. To guarantee obligations of the corporation and to assign or

pledge as security for any such guaranty any or all of the obligations,

property or rights representing, embodying or securing an eligible loan

made by the agency or acquired in an eligible purchase;

22. To do any and all things necessary or convenient to carry out its

purposes and exercise the powers expressly given and granted in this

act.