36-55.33:1 - Mortgage loan terms and conditions
§ 36-55.33:1. Mortgage loan terms and conditions.
A. All mortgage loans made by HDA pursuant to § 36-55.31 of this chaptershall be subject to the following terms and conditions:
1. The ratio of mortgage loan principal amount to total housing developmentcosts and the amortization period of any mortgage loans made by HDA which arefederally insured mortgages, in whole or in part, or which are otherwiseassisted or aided, directly or indirectly, by the federal government, shallbe governed by the rules and regulations provided in or pursuant to thefederal government program under which the HDA mortgage loan or part thereofis insured, guaranteed, assisted or aided; but in no event shall suchamortization period exceed 50 years.
2. A mortgage loan made by HDA may be prepaid to maturity after a period ofyears, and on such terms and conditions, as are determined by HDA in itsrules and regulations or in the HDA resolution authorizing, or commitmentfor, such mortgage loan.
3. (Effective until October 1, 2010) HDA shall have authority to establishand modify from time to time the interest rates at which it shall makemortgage loans and commitments therefor. Such interest rates shall beestablished by HDA in its sole discretion at the lowest level consistent withHDA's cost of operation and its responsibilities to the holders of its bonds,bond anticipation notes and other obligations. In addition to such interestcharges, HDA may make and collect such fees and charges, including but notlimited to reimbursement of HDA's financing costs, service charges, insurancepremiums and mortgage insurance premiums, as HDA determines to be reasonable.No person shall, by way of defense or otherwise, avail himself of any of theprovisions of Chapter 7.2 (§ 6.1-330.47 et seq.) of Title 6.1 to avoid ordefeat the payment of any interest or fee which he shall have contracted topay on any loan or forbearance of money made, directly or indirectly, orassisted in any manner by HDA under or pursuant to this chapter.
3. (Effective October 1, 2010) HDA shall have authority to establish andmodify from time to time the interest rates at which it shall make mortgageloans and commitments therefor. Such interest rates shall be established byHDA in its sole discretion at the lowest level consistent with HDA's cost ofoperation and its responsibilities to the holders of its bonds, bondanticipation notes and other obligations. In addition to such interestcharges, HDA may make and collect such fees and charges, including but notlimited to reimbursement of HDA's financing costs, service charges, insurancepremiums and mortgage insurance premiums, as HDA determines to be reasonable.No person shall, by way of defense or otherwise, avail himself of any of theprovisions of Chapter 3 (§ 6.2-300 et seq.) of Title 6.2 to avoid or defeatthe payment of any interest or fee which he shall have contracted to pay onany loan or forbearance of money made, directly or indirectly, or assisted inany manner by HDA under or pursuant to this chapter.
B. Mortgage loans made by HDA to housing sponsors to finance the ownershipand operation of housing developments and multifamily residential housingintended for occupancy by persons and families of low and moderate income,pursuant to subdivision (10) of § 36-55.31, shall be subject to the followingterms and conditions in addition to those contained in subsection A of thissection:
1. The amount disbursed with respect to an HDA mortgage loan to a limitedprofit housing sponsor shall not exceed 95 percent of the total housingdevelopment costs and to a nonprofit housing sponsor shall not exceed 100percent of the total housing development costs. Subsequent to thedisbursement of such amount, additional amounts may be from time to timedisbursed if the sum of the amount to be so disbursed and the thenoutstanding principal balance of the HDA mortgage loan does not exceed 95percent of the market value of the housing development or residential housingas then determined by the Authority. The amortization period of such an HDAmortgage loan shall be as determined by HDA in its rules and regulations orin the HDA resolution authorizing, or commitment for, such mortgage loan; butin no event shall such amortization period exceed 50 years.
2. The instrument evidencing any such HDA mortgage loan and the mortgagesecuring any such HDA mortgage loan shall be in such form and contain suchterms and conditions as shall be prescribed or approved by HDA. The aforesaidmortgage and instrument evidencing an HDA mortgage loan may containexculpatory provisions relieving the housing sponsor or its principal orprincipals from personal liability if deemed desirable by HDA.
3. With respect to any such HDA mortgage loan made to a limited profithousing sponsor, HDA may require that such limited profit housing sponsor notmake distributions in any one year with respect to the housing development ormultifamily residential housing financed by such HDA mortgage loan in excessof such percentage of such limited profit housing sponsor's equity in thehousing development or multifamily residential housing as may be determinedby HDA in its rules and regulations or in the HDA resolution authorizing, orcommitment for such mortgage loan. None of the partners, principals,stockholders or holders of a beneficial interest in such limited profithousing sponsor shall earn, accept or receive a return in any one year withrespect to the housing development or multifamily residential housingfinanced by such HDA mortgage loan greater than his applicable proportion ofany such percentage of such limited profit housing sponsor's equity in thehousing development or multifamily residential housing as may be determinedby HDA in its rules and regulations or in the HDA resolution authorizing, orcommitment for, such mortgage loan. The right to any such limiteddistribution or return may be cumulative to the extent provided by HDA in itsrules and regulations or in the HDA resolution authorizing, or commitmentfor, such mortgage loan. For the purpose of this section, the terms"distribution" and "return" are intended to mean payments on account ofthe housing development or multifamily residential housing financed by suchHDA mortgage loan resulting from the operation thereof. Any payment to aperson or entity who is a partner, principal, stockholder or holder of abeneficial interest in such limited profit housing sponsor shall not bedeemed a "distribution" or "return" to such person or entity if the fundswith which such payment is made are funds paid or contributed to such limitedprofit housing sponsor by persons or entities purchasing a beneficialinterest in such limited profit housing sponsor. At or after the completionof construction, rehabilitation or improvement of the housing development ormultifamily residential housing financed by such HDA mortgage loan, suchlimited profit housing sponsor's equity in the housing development ormultifamily residential housing shall be established in the manner providedby HDA in its rules and regulations or in the HDA resolution authorizing, orcommitment for such mortgage loan. Such equity shall be determined by HDA, atits option, as either (i) the difference between the total housingdevelopment costs as to the housing development or multifamily residentialhousing and the final principal amount of such HDA mortgage loan, or (ii) thedifference between the fair market value of such housing development and thefinal principal amount of such HDA mortgage loan. HDA may thereafter fromtime to time adjust such equity to be equal to the difference, as of the dateof adjustment, between the fair market value of such housing development andthe outstanding principal balance of such HDA mortgage loan. HDA may reviewand regulate a proposed retirement of any capital investment in, orredemption of any stock of, such limited profit housing sponsor in the mannerprovided by HDA in its rules and regulations or in the HDA resolutionauthorizing, or commitment for, such mortgage loan.
4. With respect to any such HDA mortgage loan, HDA may require the housingsponsor and other parties related to the housing development or multifamilyresidential housing financed by such HDA mortgage loan to execute suchagreements, assurances, guarantees and certifications as HDA shall determineto be necessary including, without limitation, agreements between HDA andsuch housing sponsor and its partners, principals or stockholders tolimitations established by HDA as to rentals and other charges, profits,fees, the use and disposition of the real property constituting the site ofor relating to the housing development or multifamily residential housing andother property of such housing sponsor, and the use and disposition offranchises of such housing sponsor to the extent more restrictive limitationsare not provided by the law under which such housing sponsor is incorporatedor organized.
5. As a condition of any such HDA mortgage loan, HDA shall have the power tosupervise the housing sponsor in accordance with the provisions of §36-55.34:1 at all times during which such HDA mortgage loan is outstandingand thereafter as necessary to preserve the federal tax exemption of thenotes or bonds issued by HDA to finance such HDA mortgage loan.
C. Mortgage loans made by HDA to persons and families of low and moderateincome to finance the purchase or refinancing of single-family residentialhousing, pursuant to subdivision (11) of § 36-55.31, shall be subject to thefollowing terms and conditions in addition to those contained in subsection Aof this section:
1. The amount disbursed with respect to such HDA mortgage loan shall notexceed 100 percent of the sales price or market value of the single-familyresidential housing, as determined or approved by or on behalf of HDA. HDAmay also disburse additional amounts to finance such closing costs and feesas it may deem necessary or appropriate, and all such disbursements andfinancings of closing costs and fees subsequent to the enactment of thischapter are hereby validated. The amortization period of such an HDA mortgageloan shall be as determined by HDA in its rules and regulations or in the HDAresolution authorizing, or commitment for, such mortgage loan; but in noevent shall such amortization period exceed 50 years. If during the term ofthe HDA mortgage loan (i) the outstanding principal balance of the HDAmortgage loan is expected to increase to an amount in excess of the originalprincipal balance or (ii) the amount of monthly payments on the HDA mortgageloan will or may be adjusted, HDA shall so notify the applicants prior to theexecution of the HDA mortgage loan. Such notice shall describe the terms andconditions under which the outstanding principal balance or the amount ofmonthly payments, or both, may be so increased or adjusted, and such noticeshall be signed by the applicants.
2. Such an HDA mortgage loan shall be made only after a determination thatsuch a mortgage loan is not otherwise available from private lenders uponreasonably equivalent terms and conditions, and the HDA resolutionauthorizing, or commitment for, such mortgage loan shall contain such adetermination.
3. The instrument evidencing any such HDA mortgage loan and the mortgagesecuring any such HDA mortgage loan shall be in such form and contain suchterms and conditions as shall be prescribed or approved by HDA. With respectto any such HDA mortgage loan, HDA may require the person or family of low ormoderate income to execute such agreements, assurances, guarantees andcertifications as HDA shall determine to be necessary including, withoutlimitation, agreements between HDA and such person or family of low ormoderate income relating to the use, occupancy, maintenance and sale of thesingle-family residential housing financed by such HDA mortgage loan and thepayment, prepayment and assignment of such HDA mortgage loan.
D. Mortgage loans made by HDA to housing sponsors or persons or families oflow or moderate income to finance the construction, rehabilitation,preservation or improvement of housing developments or residential housingintended, upon completion of such construction, rehabilitation, preservationor improvement, for ownership or occupancy by persons and families of low andmoderate income, pursuant to subdivision (12) of § 36-55.31 of this chapter,shall be subject to the following terms and conditions in addition to thosecontained in subsection A of this section:
1. The amount disbursed with respect to such an HDA mortgage loan to alimited profit housing sponsor shall not exceed 95 percent of the totalhousing development costs and to a nonprofit housing sponsor or a person orfamily of low or moderate income shall not exceed 100 percent of the totalhousing development costs. Subsequent to the disbursement of such amount,additional amounts may be from time to time disbursed if the sum of theamount to be so disbursed and the then outstanding principal balance of theHDA mortgage loan does not exceed 95 percent of the market value of thehousing development or residential housing as then determined by theAuthority. Without regard as to whether HDA intends to remain the lender inrespect to such mortgage loan throughout the amortization period thereof, theamortization period of such an HDA mortgage loan shall be as determined byHDA in its rules and regulations or in the HDA resolution authorizing, orcommitment for, such mortgage loan.
2. In considering any application for such an HDA mortgage loan, HDA shallgive first priority to applications relating to housing developments orresidential housing which are or will be well-planned and well-designed, andalso shall give consideration to:
a. The comparative need for housing for persons and families of low andmoderate income in the area proposed to be served by the housing developmentor residential housing;
b. The ability of the applicant to construct, rehabilitate or improve andmarket or operate, manage and maintain the housing development or residentialhousing;
c. The existence of zoning or other regulations to protect adequately thehousing development or residential housing against detrimental future useswhich could cause undue depreciation in the value of the housing developmentor residential housing;
d. The availability of adequate parks, recreational areas, utilities,schools, transportation and parking; and
e. The existence of statewide housing plans.
3. With respect to any such HDA mortgage loan, HDA may require the housingsponsor, person or family of low or moderate income, contractors, architects,marketing agents, management agents and other parties related to the housingdevelopment or residential housing financed by such HDA mortgage loan toexecute such agreements, assurances, guarantees and certifications as HDAshall determine to be necessary including, without limitation, agreementsbetween HDA and such housing sponsor and its partners, principals orstockholders or such person or family of low or moderate income tolimitations established by HDA as to rentals and other charges, profits,fees, the use and disposition of the real property constituting the site ofor relating to the housing development or residential housing and otherproperty of such housing sponsor, and the use and disposition of franchisesof such housing sponsor to the extent more restrictive limitations are notprovided by the law under which such housing sponsor is incorporated ororganized. HDA shall require the housing sponsor or person or family of lowor moderate income receiving such HDA mortgage loan, or the constructioncontractor, or both, to furnish such assurances of completion of theconstruction, rehabilitation or improvement as determined by HDA in its rulesand regulations or in the HDA resolution authorizing, or commitment for, suchmortgage loan.
4. As a condition of any such HDA mortgage loan to a housing sponsor, HDAshall have the power to supervise such housing sponsor in accordance with theprovisions of § 36-55.34:1 at all times during which such HDA mortgage loanis outstanding and thereafter as necessary to preserve the federal taxexemption of the notes or bonds issued by HDA to finance such HDA mortgageloan.
5. With respect to any such HDA mortgage loan, the provisions of subdivisions2 and 3 of subsection B of this section shall be applicable.
E. Mortgage loans made by HDA pursuant to subdivision 13 of § 36-55.31 tofinance the construction, rehabilitation, preservation or improvement, orownership and operation, of economically mixed projects or portions thereofand, if any such project is within a revitalization area designated in orpursuant to § 36-55.30:2, any nonhousing buildings that are incidental tosuch project or are determined by such governing body of the city or countyto be necessary or appropriate for the revitalization of such area or for theindustrial, commercial or other economic development of such area shall besubject to the following terms and conditions in addition to those containedin subsection A of this section:
1. The principal amount of such an HDA mortgage loan shall not exceed 95percent of the total housing development costs, and the amortization periodof such an HDA mortgage loan shall be as determined by HDA in its rules andregulations or in the HDA resolution authorizing, or in the commitment for,such mortgage loan; but in no event shall such amortization period exceed 50years.
2. Such an HDA mortgage loan shall be made only if the provisions of §36-55.30:2 are satisfied.
3. The instrument evidencing any such HDA mortgage loan and the mortgagesecuring any such HDA mortgage loan shall be in such form and contain suchterms and conditions as shall be prescribed or approved by HDA. The aforesaidmortgage and instrument evidencing an HDA mortgage loan may containexculpatory provisions relieving a housing sponsor, if any, or its principalor principals from personal liability if deemed desirable by HDA.
4. The nonhousing buildings shall be financed by such an HDA mortgage loanonly if the HDA shall receive a certification from the housing sponsor that amortgage loan for the financing of such nonhousing buildings is not otherwiseavailable from private lenders upon reasonably equivalent terms andconditions.
(1975, c. 536; 1979, c. 374; 1982, c. 176; 1987, c. 164; 1988, c. 556; 1989,c. 161; 1991, c. 447; 2004, c. 187; 2010, c. 794.)