§ 4279.2 Definitions and abbreviations. ( a ) *Definitions.* The following definitions apply to this subpart: *Administrator.* The Administrator of Rural Business-Cooperative Service within the Rural Development mission area of the U.S. Department of Agriculture.
*Affiliate.* An entity that is related to another entity by owning shares or having an interest in the entity, by common ownership, or by any means of control.
*Agency.* The Rural Business-Cooperative Service or successor Agency assigned by the Secretary of Agriculture to administer the B&I Guaranteed Loan Program. References to the National or State Office should be read as prefaced by “Agency” or “Rural Development” as applicable.
*Agricultural production.* The breeding, raising, feeding, or housing of livestock for fiber or food for human consumption and the cultivation, growing, or harvesting of crops.
*Annual renewal fee.* The annual renewal fee is a fee that is paid once a year by the lender and is required to maintain the enforceability of the Loan Note Guarantee.
*Appraisal surplus.* The difference between the fair market value of an asset and its depreciated book value when the fair market value is higher.
*Arm's-length transaction.* A transaction between ready, willing, and able disinterested parties that are not affiliated with or related to each other and have no security, monetary, or stockholder interest in each other.
*Assignment Guarantee Agreement.* Form RD 4279-6, “Assignment Guarantee Agreement,” is the signed agreement among the Agency, the lender, and the holder containing the terms and conditions of an assignment of a guaranteed portion of a loan, using the single note system.
*Bankruptcy Code.* The provisions of title 11 of the United States Code or any successor statute.
*Biofuel.* A fuel derived from Renewable Biomass.
*Bond.* A form of debt security in which the authorized issuer (borrower) owes the bond holder (lender) a debt and is obligated to repay the principal and interest (coupon) at a later date(s) (maturity). An explanation of the type of bond and other bond stipulations must be attached to the bond issuance.
*Borrower.* The person that borrows, or seeks to borrow, money from the lender, including any party liable for the loan except for guarantors.
*Certificate of Incumbency and Signature.* Form RD 4279-7, “Certificate of Incumbency and Signature,” is used to validate authenticity of Agency representatives' signatures on Forms RD 4279-4, 4279-5, and 4279-6.
*Collateral.* The asset(s) pledged by the borrower to secure the loan.
*Commercially available.* A system that has a proven operating history for at least 1 year specific to the proposed application. Such a system is based on established design and installation procedures and practices. Professional service providers, trades, large construction equipment providers, and labor are familiar with installation procedures and practices. Proprietary and the balance of system equipment and spare parts are readily available, and service is readily available to properly maintain and operate the system. An established warranty exists for major parts and labor. If the system is currently commercially available only outside of the United States, authoritative evidence of the foreign operating history, performance, and reliability is required in order to address the proven operating history.
*Conditional Commitment.* Form RD 4279-3, “Conditional Commitment,” is the Agency's notice to the lender that the loan guarantee it has requested is approved subject to the completion of all conditions and requirements set forth by the Agency and outlined in the attachment to the Conditional Commitment.
*Conflict of interest.* A situation in which a person has competing personal, professional, or financial interests that prevents the person from acting impartially.
*Cooperative organization.* An entity that is legally chartered as a cooperative or an entity that is not legally chartered as a cooperative but is owned and operated for the benefit of its members, with returns of residual earnings paid to such members on the basis of patronage.
*Debt Collection Improvement Act.* The Debt Collection Improvement Act of 1996, 31 U.S.C. 3701 *et seq.* requires that any monies that are payable or may become payable from the United States under contracts and other written agreements to any person not an agency or subdivision of a State or local government may be subject to certain collection options, such as administrative offset, for a delinquent debt the person owes to the United States.
*Default.* The condition that exists when a borrower is not in compliance with the promissory note, the loan agreement, or other documents relating to the loan. Default could be a monetary or non-monetary default.
*Deficiency judgment.* A monetary judgment rendered by a court of competent jurisdiction after foreclosure and liquidation of all collateral securing the loan.
*Delinquency.* A loan for which a scheduled loan payment is more than 30 days past due and cannot be cured within 30 days.
*Energy projects.* Commercially available projects that generate energy or power or projects that produce biofuel. Projects that have energy outputs that are a by-product of operations or that the Agency otherwise determines is not an energy project are not subject to the increased equity requirement for energy projects required by § 4279.131(d)(1).
*Existing business.* A business that has been in operation for at least 1 full year. Mergers or changes in the business name or legal type of entity of a business that has been in operation for at least 1 full year are considered to be existing businesses as long as there is not a significant change in operations. Newly-formed entities that are buying existing businesses will be considered an existing business as long as the business being bought remains in operation and there is no significant change in operations.
*Existing lender debt.* A debt owed by a borrower to the same lender that is applying for or has received the Agency guarantee.
*Fair market value.* The price that could reasonably be expected for an asset in an arm's-length transaction between a willing buyer and a willing seller under ordinary economic and business conditions.
*Future recovery.* Funds collected by the lender after a final loss claim is processed.
*High impact business development investment.* A business that scores at least 25 points under § 4279.166(b)(4).
*High-priority project.* A project that scores more than 50 percent of the priority points available under § 4279.166(b)(1) through (5).
*Holder.* A person, other than the lender, who owns all or part of the guaranteed portion of the loan with no servicing responsibilities. When the single note option is used and the lender assigns a part of the guaranteed note to an assignee, the assignee becomes a holder only when the Agency receives notice and the transaction is completed through the use of the Assignment Guarantee Agreement.
*Immediate family.* Individuals who live in the same household or who are closely related by blood, marriage, or adoption, such as a spouse, domestic partner, parent, child, sibling, aunt, uncle, grandparent, grandchild, niece, nephew, or cousin.
*In-house expenses.* Expenses associated with activities that are routinely the responsibility of a lender's internal staff or its agents. In-house expenses include, but are not limited to, employees' salaries, staff lawyers, travel, and overhead.
*Interest.* A fee paid by a borrower to the lender as a form of compensation for the use of money. When money is borrowed, interest is paid as a fee over a certain period of time (typically months or years) to the lender as a percentage of the principal amount owed. The term interest does not include default or penalty interest or late payment fees or charges.
*Interim financing.* A temporary or short-term loan made with the clear intent when the loan is made that it will be repaid through another loan that provides permanent financing. Interim financing is frequently used to pay construction and other costs associated with a planned project, with permanent financing to be obtained after project completion.
*Lender.* The eligible lender approved by the Agency to make, service, and collect the Agency guaranteed loan that is subject to this subpart. Agency approval of the lender will be evidenced by an outstanding Form RD 4279-4, “Lender's Agreement,” between the Agency and the lender.
*Lender's Agreement.* Form RD 4279-4, “Lender's Agreement,” or predecessor form, between the Agency and the lender setting forth the lender's loan responsibilities.
*Liquidation expenses.* Costs directly associated with the liquidation of collateral, including preparing collateral for sale (*e.g.,* repairs and transport) and conducting the sale (*e.g.,* advertising, public notices, auctioneer expenses, and foreclosure fees). Liquidation expenses do not include in-house expenses. Legal/attorney fees are considered liquidation expenses provided that the fees are reasonable, as determined by the Agency, and cover legal issues pertaining to the liquidation that could not be properly handled by the lender and its in-house counsel.
*Loan agreement.* The agreement between the borrower and lender containing the terms and conditions of the loan and the responsibilities of the borrower and lender.
*Loan classification.* The process by which loans are examined and categorized by degree of potential loss in the event of default.
*Loan Note Guarantee.* Form RD 4279-5, “Loan Note Guarantee,” issued and executed by the Agency, containing the terms and conditions of the guarantee.
*Loan packager.* A person, other than the applicant borrower or lender, that prepares a loan application package.
*Loan service provider.* A person, other than the lender of record, that provides loan servicing activities to the lender.
*Loan-to-discounted value.* The ratio of the dollar amount of a loan to the discounted dollar value of the collateral pledged as security for the loan.
*Loan-to-value.* The ratio of the dollar amount of a loan to the dollar value of the collateral pledged as security for the loan.
*Local government.* A county, municipality, town, township, village, or other unit of general government, including tribal governments, below the State level.
*Material adverse change.* Any change in circumstance associated with a guaranteed loan, including the borrower's financial condition or collateral, that, individually or in the aggregate, has jeopardized, or could be reasonably expected to jeopardize, loan performance.
*Natural resource value-added product.* Any naturally occurring resource, including agricultural resources, that is processed to add value or to generate renewable energy from a natural resource.
*Negligent loan origination.* The failure of a lender to perform those services that a reasonably prudent lender would perform in originating its own portfolio of loans that are not guaranteed. The term includes the concepts of failure to act, not acting in a timely manner, or acting in a manner contrary to the manner in which a reasonably prudent lender would act.
*Negligent loan servicing.* The failure of a lender to perform those services that a reasonably prudent lender would perform in servicing (including liquidation of) its own portfolio of loans that are not guaranteed. The term includes the concepts of failure to act, not acting in a timely manner, or acting in a manner contrary to the manner in which a reasonably prudent lender would act.
*New business.* A startup or otherwise new business that has been in operation for less than 1 full year. New businesses include newly-formed entities leasing space or building ground-up facilities, even if the owners of the new or startup business own affiliated businesses doing the same kind of business.
*Parity.* A lien position whereby two or more lenders share a security interest of equal priority in collateral. In the event of default, each lender will be affected on an equal basis.
*Participation.* Sale of an interest in a loan by the lead lender to one or more participating lenders wherein the lead lender retains the note, collateral securing the note, and all responsibility for managing and servicing the loan. Participants are dependent upon the lead lender for protection of their interests in the loan. The relationship is typically formalized by a participation agreement. The participants and the borrower have no rights or obligations to one another.
*Person.* An individual or entity.
*Poverty.* A community or area (including a county, city, or equivalent such as parish, borough, municipio, or census designated place) where at least 20 percent of the population have income below the poverty line.
*Pro rata.* On a proportional basis.
*Promissory note.* Evidence of debt with stipulated repayment terms. “Note” or “promissory note” shall also be construed to include “Bond” or other evidence of debt, where appropriate.
*Protective advances.* Advances made by the lender for the purpose of preserving and protecting the collateral where the debtor has failed to, and will not or cannot, meet its obligations to protect or preserve collateral. Protective advances include, but are not limited to, advances affecting the collateral made for property taxes, rent, hazard and flood insurance premiums, and annual assessments. Legal/attorney fees are not a protective advance.
*Public body.* A municipality, county, or other political subdivision of a State; a special purpose district; an Indian tribe on a Federal or State reservation or other federally-recognized Indian tribe; or an organization controlled by any of the above.
*Renewable biomass.* ( 1 ) Materials, pre-commercial thinnings, or invasive species from National Forest System land or public lands (as defined in section 103 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702)) that: ( i ) Are by-products of preventive treatments that are removed to reduce hazardous fuels; to reduce or contain disease or insect infestation; or to restore ecosystem health;
( ii ) Would not otherwise be used for higher-value products; and
( iii ) Are harvested in accordance with applicable law and land management plans and the requirements for old-growth maintenance, restoration, and management direction of paragraphs (2), (3), and (4) of subsection (e) of section 102 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6512) and large-tree retention of subsection (f) of that section; or
( 2 ) Any organic matter that is available on a renewable or recurring basis from non-Federal land or land belonging to an Indian or Indian Tribe that is held in trust by the United States or subject to a restriction against alienation imposed by the United States, including: ( i ) Renewable plant material, including feed grains; other agricultural commodities; other plants and trees; and algae; and
( ii ) Waste material, including crop residue; other vegetative waste material (including wood waste and wood residues); animal waste and by-products (including fats, oils, greases, and manure); and food and yard waste.
*Report of loss.* Form RD 449-30, “Guaranteed Loan Report of Loss,” used by lenders when reporting a financial loss under an Agency guarantee.
*Rural Development.* The mission area of USDA that is comprised of the Rural Business-Cooperative Service, the Rural Housing Service, and the Rural Utilities Service and is under the policy direction and operational oversight of the Under Secretary for Rural Development.
*Spreadsheet.* A table containing data from a series of financial statements of a business over a period of time. A financial statement analysis normally contains spreadsheets for balance sheet and income statement items and includes a cash flow analysis and commonly used ratios. The spreadsheets enable a reviewer to easily scan the data, spot trends, and make comparisons.
*State.* Any of the 50 States of the United States, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, the Republic of Palau, the Federated States of Micronesia, and the Republic of the Marshall Islands.
*Subordination.* An agreement among the lender, borrower, and Agency whereby lien priorities on certain assets pledged to secure payment of the guaranteed loan will be reduced to a position junior to, or on parity with, the lien position of another loan.
*Tangible balance sheet equity.* Tangible equity divided by tangible assets. Formula: ((Assets—intangible assets)—liabilities)/(Assets—intangible assets) or (Equity—intangible assets)/(Assets—intangible assets).
*Transfer and assumption.* The conveyance by a borrower to an assuming borrower of the assets, collateral, and liabilities of the loan in return for the assuming borrower's binding promise to pay the outstanding debt.
*USDA Lender Interactive Network Connection (LINC).* The portal Web site currently at *https://usdalinc.sc.egov.usda.gov/* used by lenders to update loan data in the Agency's Guaranteed Loan System. Current LINC capabilities include loan closing and status reporting.
*Veteran.* For the purposes of assigning priority points, a veteran is a person who is a veteran of any war, as defined in title 38 U.S.C. 101(12).
*Working capital.* Current assets available to support a business' operations and growth. Working capital is calculated as current assets less current liabilities.
( b ) *Abbreviations.* The following abbreviations apply to this subpart: B&I—Business and Industry CFR—Code of Federal Regulations DCIA—Debt Collection Improvement Act FDIC—Federal Deposit Insurance Corporation FSA—Farm Service Agency GAAP—Generally Accepted Accounting Principles of the United States LINC—USDA Lender Interactive Network Connection NAD—National Appeals Division OMB—Office of Management and Budget REAP—Rural Energy for America Program U.S.—United States of America USDA—U.S. Department of Agriculture
( c ) *Accounting terms.* Accounting terms not otherwise defined in this part shall have the definition ascribed to them under GAAP.