42 U.S.C. § 8833: Guaranteed construction loans

Summary

The Secretary of Energy can promise and back loans to build municipal waste-to-energy projects. The guarantee can cover up to 90% of the loan’s principal and interest, and the loan itself cannot be more than 90% of the project’s construction cost as the Secretary estimates on the guarantee date. If later estimates show higher costs, the Secretary can guarantee extra money for that increase, but only up to 10% of the total estimated cost. If the Secretary pays the lender because the borrower defaults, the Secretary gets the lender’s rights to the loan. A guarantee can only be ended or canceled under its own terms, and it counts as final proof that the guarantee and loan terms meet the law. The Secretary may also pay the lender before a default if the borrower can’t make payments, it is in the public interest, and paying would likely help more than letting a default happen; the borrower must agree to repay the Secretary on fair terms. A loan only gets a guarantee if the borrower shows the lender won’t lend without one at reasonable market terms. For guaranteed state or local obligations issued after June 30, 1980 that are not general obligation debt, the interest paid is taxable as gross income. The Secretary of Energy can pay part of the interest to the issuer to reflect what would have been paid if the debt had been tax-exempt, following the Treasury’s rules. The Secretary may charge fees for guarantees, but the fee cannot be more than 1% of the maximum guarantee.

Title 42, §8833

The Public Health and Welfare, Source: USLM XML via OLRC

(a)Authority of Secretary of Energy

Subject to section 8835 and 8836 of this title, the Secretary of Energy may commit to guarantee, and guarantee, against loss on up to 90 per centum of the principal and interest, any loan which is made solely to provide funds for the construction of a municipal waste energy project and which does not exceed 90 per centum of the cost of the construction of the project involved, as estimated by the Secretary on the date of the guarantee or commitment to guarantee.

(b)Estimated project construction costs as determinative of revised amount of guarantee

In the event the total estimated costs of construction of the project thereafter exceed the total estimated costs initially determined by the Secretary of Energy, the Secretary may in addition, upon application therefor, guarantee, against loss on up to 90 per centum of the principal and interest, a loan for so much of the additional estimated total costs as does not exceed 10 per centum of the total estimated costs.

(c)Terms and conditions

The terms and conditions of loan guarantees under this section shall provide that, if the Secretary of Energy makes a payment of principal or interest upon the default by a borrower, the Secretary shall be subrogated to the rights of the recipient of such payment (and such subrogation shall be expressly set forth in the loan guarantee or related agreements).

(d)Termination, cancellation, or revocation, and conclusive nature of guarantee

Any loan guarantee under this section shall not be terminated, canceled, or otherwise revoked, except in accordance with the terms thereof and shall be conclusive evidence that such guarantee complies fully with the provisions of this chapter and of the approval and legality of the principal amount, interest rate, and all other terms of the securities, obligations, or loans and of the guarantee.

(e)Payment to lender

If the Secretary of Energy determines that—

(1)the borrower is unable to meet payments and is not in default,

(2)it is in the public interest to permit the borrower to continue to pursue the purposes of such project, and

(3)the probable net benefit to the United States in paying the principal and interest due under a loan guarantee agreement will be greater than that which would result in the event of a default,

then the Secretary may pay to the lender under a loan guarantee agreement an amount not greater than the principal and interest which the borrower is obligated to pay to such lender, if the borrower agrees to reimburse the Secretary for such payment on terms and conditions, including interest, which the Secretary determines are sufficient to protect the financial interests of the United States.

(f)Preconditions

A loan may not be guaranteed under this section unless the applicant for such loan has established to the satisfaction of the Secretary of Energy that the lender is not willing without such a guarantee to extend credit to the applicant at reasonable rates and terms, taking into consideration prevailing market rates and terms for loans for similar periods of time, to finance the construction of the project for which such loan is sought.

(g)Payment of interest; tax consequences

(1)With respect to any loan or debt obligation which is—

(A)issued after June 30, 1980, by, or on behalf of, any State or any political subdivision or governmental entity thereof,

(B)guaranteed by the Secretary of Energy under this section, and

(C)not supported by the full faith and credit of the issuer as a general obligation of the issuer,

the interest paid on such obligation and received by the purchaser thereof (or the purchaser’s successors in interest) shall be included in gross income for the purposes of chapter 1 of title 26.

(2)With respect to the amount of obligations described in paragraph (1) that the issuer would have been able to issue as tax exempt obligations (other than obligations secured by the full faith and credit of the issuer as a general obligation of the issuer), the Secretary of Energy is authorized to pay only to the issuer any portion of the interest on such obligations, as determined by the Secretary of the Treasury after taking into account the interest rate which would have been paid on the obligations had they been issued as tax exempt obligations without being so guaranteed by the Secretary of Energy and the interest rate actually paid on the obligations when issued as taxable obligations. Such payments shall be made in amounts determined by the Secretary of Energy, and in accordance with such terms and conditions as the Secretary of the Treasury shall require.

(h)Fees

(1)A fee or fees may be charged and collected by the Secretary of Energy for any loan guarantee under this section.

(2)The amount of such fee shall be based on the estimated administrative costs and risk of loss, except that such fee may not exceed 1 per centum of the maximum of the guarantee.

Notes & Related Subsidiaries

Editorial Notes

References in Text

This chapter, referred to in subsec. (d), was in the original “this title”, meaning title II of Pub. L. 96–294, June 30, 1980, 94 Stat. 683, known as the Biomass Energy and Alcohol Fuels Act of 1980, which enacted this chapter, section 1435 and 3129 of Title 7, Agriculture, and section 3391a of Title 15, Commerce and Trade, and amended section 341, 342, 3104, and 3154 of Title 7, section 753 of Title 15, and section 590h and 1642 of Title 16, Conservation. For complete classification of title II to the Code, see

Short Title

note set out under section 8801 of this title and Tables.

Amendments

1986—Subsec. (g)(1). Pub. L. 99–514 substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”, which for purposes of codification was translated as “title 26” thus requiring no change in text.

§8833 Guaranteed Construction Loans