§3908 — Title 33 Navigation and Navigable Waters | U.S. Code

Summary

The Secretary or Administrator (whichever applies) may make secured loans to pay for approved projects, but only after working with the Office of Management and Budget and the project’s rating agencies to set a capital reserve subsidy and only if the project’s senior obligations get an investment‑grade rating. A loan cannot be more than 49 percent of the expected eligible project costs (so at least 51 percent must come from other sources), and total Federal help for a project generally cannot exceed 80 percent, with narrow exceptions for certain rural projects and special State authority financing. The loan must be repaid from the same taxes, user fees, or dedicated revenues that back the project’s senior debt and must include usual protections like rate or coverage requirements and, if needed, a lien on those revenues. Loan rules must match the project’s cash flow. Repayments start no later than 5 years after the project is substantially finished (or 5 years after first disbursement for a State infrastructure financing authority). Interest must be at least the yield on comparable U.S. Treasury securities at loan signing. The loan’s final maturity is the earlier of 35 years after substantial completion or the project’s useful life (35 years maximum for State authority loans counted from first disbursement). Fees may be charged and can be added into the loan. If a project can’t make scheduled payments, unpaid amounts may be added to the loan, will keep accruing interest, and be spread over the remaining term if the agency approves. Extra revenues can be used to prepay the loan without penalty, and loans may be sold or reoffered after completion (but original terms can’t be changed without the obligor’s written consent). Instead of making a loan, the agency may guarantee a lender’s loan if the budget cost is about the same; guarantee terms follow these rules except interest rates and prepayment terms may be negotiated with the agency’s consent.

Title 33, §3908

Navigation and Navigable Waters — Source: USLM XML via OLRC

(a)(1)Subject to paragraphs (2) and (3), the Secretary or the Administrator, as applicable, may enter into agreements with 1 or more obligors to make secured loans, the proceeds of which shall be used to finance eligible project costs of any project selected under section 3907 of this title.

(2)Before entering into an agreement under this subsection for a secured loan, the Secretary or the Administrator, as applicable, in consultation with the Director of the Office of Management and Budget and each rating agency providing a rating opinion letter under section 3907(a)(1)(D) of this title, shall determine an appropriate capital reserve subsidy amount for the secured loan, taking into account each such rating opinion letter.

(3)The execution of a secured loan under this section shall be contingent on receipt by the senior obligations of the project of an investment-grade rating.

(b)(1)A secured loan provided for a project under this section shall be subject to such terms and conditions, and contain such covenants, representations, warranties, and requirements (including requirements for audits), as the Secretary or the Administrator, as applicable, determines to be appropriate.

(2)The amount of a secured loan under this section shall not exceed the lesser of—

(A)an amount equal to 49 percent of the reasonably anticipated eligible project costs; and

(B)if the secured loan does not receive an investment-grade rating, the amount of the senior project obligations of the project.

(3)A secured loan under this section—

(A)shall be payable, in whole or in part, from State or local taxes, user fees, or other dedicated revenue sources that also secure the senior project obligations of the relevant project;

(B)shall include a rate covenant, coverage requirement, or similar security feature supporting the project obligations; and

(C)may have a lien on revenues described in subparagraph (A), subject to any lien securing project obligations.

(4)The interest rate on a secured loan under this section shall be not less than the yield on United States Treasury securities of a similar maturity to the maturity of the secured loan on the date of execution of the loan agreement.

(5)(A)The final maturity date of a secured loan under this section shall be the earlier of—

(i)the date that is 35 years after the date of substantial completion of the relevant project (as determined by the Secretary or the Administrator, as applicable); and

(ii)if the useful life of the project (as determined by the Secretary or Administrator, as applicable) is less than 35 years, the useful life the project.

(B)The final maturity date of a secured loan to a State infrastructure financing authority under this section shall be not later than 35 years after the date on which amounts are first disbursed.

(6)A secured loan under this section shall not be subordinated to the claims of any holder of project obligations in the event of bankruptcy, insolvency, or liquidation of the obligor of the project.

(7)(A)Except as provided in subparagraph (B), the Secretary or the Administrator, as applicable, may establish fees at a level sufficient to cover all or a portion of the costs to the Federal Government of making a secured loan under this section.

(B)On request of an eligible entity, the Secretary or the Administrator, as applicable, shall allow the fees under subparagraph (A) to be financed as part of the loan.

(8)The proceeds of a secured loan under this section may be used to pay any non-Federal share of project costs required if the loan is repayable from non-Federal funds.

(9)(A)Except as provided in subparagraph (B), for each project for which assistance is provided under this chapter, the total amount of Federal assistance shall not exceed 80 percent of the total project cost.

(B)Subparagraph (A) shall not apply to any rural water project—

(i)that is authorized to be carried out by the Secretary of the Interior;

(ii)that includes among its beneficiaries a federally recognized Indian tribe; and

(iii)for which the authorized Federal share of the total project costs is greater than the amount described in subparagraph (A).

(C)Notwithstanding subparagraph (A), a State infrastructure financing authority may finance up to 100 percent of the costs of a project using the proceeds of financial assistance authorized under section 3912(e) of this title, provided that, in the event of a default with respect to any such assistance, the State infrastructure financing authority is solely responsible for immediate repayment of such costs.

(10)Any eligible project costs incurred and the value of any integral in-kind contributions made before receipt of assistance under this chapter shall be credited toward the 51 percent of project costs to be provided by sources of funding other than a secured loan under this chapter (as described in paragraph (2)(A)).

(c)(1)The Secretary or the Administrator, as applicable, shall establish a repayment schedule for each secured loan provided under this section, based on the projected cash flow from project revenues and other repayment sources.

(2)(A)Scheduled loan repayments of principal or interest on a secured loan under this section shall commence not later than 5 years after the date of substantial completion of the project (as determined by the Secretary or Administrator, as applicable).

(B)(i)Scheduled loan repayments of principal or interest on a secured loan to a State infrastructure financing authority under this chapter shall commence not later than 5 years after the date on which amounts are first disbursed.

(ii)None of the funds for repayment of a secured loan under this title from a State infrastructure financing authority may come from funds provided to a State revolving loan fund under title VI of the Federal Water Pollution Control Act (33 U.S.C. 1381 et seq.) or section 300j–12 of title 42.

(3)(A)If, at any time after the date of substantial completion of a project for which a secured loan is provided under this section, the project is unable to generate sufficient revenues to pay the scheduled loan repayments of principal and interest on the secured loan, the Secretary or the Administrator, as applicable, subject to subparagraph (C), may allow the obligor to add unpaid principal and interest to the outstanding balance of the secured loan.

(B)Any payment deferred under subparagraph (A) shall—

(i)continue to accrue interest in accordance with subsection (b)(4) until fully repaid; and

(ii)be scheduled to be amortized over the remaining term of the secured loan.

(C)(i)Any payment deferral under subparagraph (A) shall be contingent on the project meeting such criteria as the Secretary or the Administrator, as applicable, may establish.

(ii)The criteria established under clause (i) shall include standards for reasonable assurance of repayment.

(4)(A)Any excess revenues that remain after satisfying scheduled debt service requirements on the project obligations and secured loan and all deposit requirements under the terms of any trust agreement, bond resolution, or similar agreement securing project obligations may be applied annually to prepay a secured loan under this section without penalty.

(B)A secured loan under this section may be prepaid at any time without penalty from the proceeds of refinancing from non-Federal funding sources.

(d)(1)Subject to paragraph (2), as soon as practicable after the date of substantial completion of a project and after providing a notice to the obligor, the Secretary or the Administrator, as applicable, may sell to another entity or reoffer into the capital markets a secured loan for a project under this section, if the Secretary or the Administrator, as applicable, determines that the sale or reoffering can be made on favorable terms.

(2)In making a sale or reoffering under paragraph (1), the Secretary or the Administrator, as applicable, may not change the original terms and conditions of the secured loan without the written consent of the obligor.

(e)(1)The Secretary or the Administrator, as applicable, may provide a loan guarantee to a lender in lieu of making a secured loan under this section, if the Secretary or the Administrator, as applicable, determines that the budgetary cost of the loan guarantee is substantially the same as that of a secured loan.

(2)The terms of a loan guarantee provided under this subsection shall be consistent with the terms established in this section for a secured loan, except that the rate on the guaranteed loan and any prepayment features shall be negotiated between the obligor and the lender, with the consent of the Secretary or the Administrator, as applicable.

Notes & Related Subsidiaries

Editorial Notes

References in Text

This title, referred to in subsec. (c)(2)(B)(ii), is title V of Pub. L. 113–121,

June 10, 2014, 128 Stat. 1322. Subtitle C (§§ 5021–5035) of title V of Pub. L. 113–121 enacted this chapter. For complete classification of title V to the Code, see Tables. The Federal Water Pollution Control Act, referred to in subsec. (c)(2)(B)(ii), is act

June 30, 1948, ch. 758, as amended generally by Pub. L. 92–500, § 2, Oct. 18, 1972, 86 Stat. 816. Title VI of the Act is classified generally to subchapter VI (§ 1381 et seq.) of chapter 26 of this title. For complete classification of this Act to the Code, see

Short Title

note set out under section 1251 of this title and Tables.

Amendments

2018—Subsec. (b)(9)(C). Pub. L. 115–270, § 4201(b)(1), added subpar. (C). Subsec. (c)(2)(B). Pub. L. 115–270, § 4201(a)(3), designated existing provisions as cl. (i), inserted heading, and added cl. (ii). 2016—Subsec. (b)(7). Pub. L. 114–322, § 5008(c)(1), designated existing provisions as subpar. (A), inserted heading, substituted “Except as provided in subparagraph (B), the Secretary” for “The Secretary”, and added subpar. (B). Subsec. (b)(10). Pub. L. 114–322, § 5008(c)(2), added par. (10).

Statutory Notes and Related Subsidiaries

“Secretary” Defined Secretary means the Secretary of the Army, see section 2 of Pub. L. 113–121, set out as a note under section 2201 of this title.

§3908 Secured Loans