§ 609.2 Definitions. When used in this part the following words have the following meanings. *Administrative Cost of a Loan Guarantee* means ( 1 ) The total of all administrative expenses that DOE incurs during: ( i ) The evaluation of an Application for a Guarantee;
( ii ) The negotiation and offer of a Term Sheet;
( iii ) The negotiation of a Loan Guarantee Agreement and related documents, including the issuance of a Guarantee; and
( iv ) The servicing and monitoring of a Loan Guarantee Agreement, including during the construction, startup, commissioning, shakedown, and operational phases of an Eligible Project.
( 2 ) The Administrative Cost of a Loan Guarantee does not include Transaction Costs.
*Applicant* means a prospective Borrower, Project Sponsor, or Eligible Lender that submits an Application to DOE.
*Application* means a submission of written materials to DOE completed in accordance with the applicable requirements published by DOE in guidance on the Title XVII website.
*Attorney General* means the Attorney General of the United States.
*Borrower* means any Person that enters into a Loan Guarantee Agreement with DOE and issues or otherwise becomes obligated for the Guaranteed Obligations.
*Cargo Preference Act* means the Cargo Preference Act of 1954, 46 U.S.C. 55305, as amended.
*Commercial Technology* means a technology in general use in the commercial marketplace in the United States at the time the Term Sheet is offered by DOE. A technology is in general use if it is being used in three or more facilities that are in commercial operation in the United States for the same general purpose as the proposed project, and has been used in each such facility for a period of at least five years. The five-year period for each facility shall start on the in-service date of the facility employing that particular technology or, in the case of a retrofit of a facility to employ a particular technology, the date the facility resumes commercial operation following completion and testing of the retrofit. For purposes of this section, facilities considered to be in commercial operation for five years include projects that have been the recipients of a loan guarantee from DOE under this part whether or not commercial operations have commenced.
*Conditional Commitment* means a Term Sheet offered by DOE and accepted by the offeree of the Term Sheet, all in accordance with § 609.6.
*Contracting Officer* means the Secretary of Energy or a DOE official authorized by the Secretary to enter into, administer or terminate DOE Loan Guarantee Agreements and related contracts on behalf of DOE.
*Credit Subsidy Cost* has the same meaning as “cost of a loan guarantee” in section 502(5)(C) of the Federal Credit Reform Act of 1990.
*Davis-Bacon Act* means the statute referenced in section 1702(k) of Title XVII.
*DOE* means the United States Department of Energy.
*Eligible Lender* means: ( 1 ) Any Person formed for the purpose of, or engaged in the business of, lending money, including State Energy Financing Institutions, financial institutions, and trusts or other entities designated as trustees or agents acting on behalf of institutional investors, bondholders, or other lenders that, as determined by DOE in each case, is: ( i ) Not debarred or suspended from participation in a Federal Government contract or participation in a non-procurement activity (under a set of uniform regulations implemented for numerous agencies, such as DOE, at 2 CFR part 180);
( ii ) Not delinquent on any Federal debt or loan;
( iii ) Legally authorized and empowered to enter into loan guarantee transactions authorized by Title XVII and this part;
( iv ) Able to demonstrate experience in originating and servicing loans for commercial projects similar in size and scope to the Eligible Project, or able to procure such experience through contracts acceptable to DOE; and
( v ) Able to demonstrate experience as the lead lender or underwriter by presenting evidence of its participation in large commercial projects or energy-related projects or other relevant experience, or able to procure such experience through contracts acceptable to DOE; or
( 2 ) The Federal Financing Bank.
*Eligible Project* has the meaning set forth in § 609.3.
*Energy Infrastructure* means a facility, and associated equipment, used for: ( 1 ) The generation or transmission of electric energy; or
( 2 ) The production, processing, and delivery of fossil fuels, fuels derived from petroleum, or petrochemical feedstocks.
*Energy Infrastructure Reinvestment Project* has the meaning set forth in § 609.3.
*Equity* means cash, and at DOE's sole discretion and subject to DOE's sole determination of value, in-kind contributions and property, in each case contributed to the permanent capital stock (or equivalent) of the Borrower or the Eligible Project by the shareholders or other owners of the Borrower or the Eligible Project. In-kind contributions may not include services, but may include physical and/or intellectual property. Equity does not include proceeds from the non-guaranteed portion of a Guaranteed Obligation, proceeds from any other non-guaranteed loan or obligation of the Borrower, or the value of any Federal, State, or local government assistance or support or any cost-share requirements under a Federal award.
*Facility Fee* means the fee, to be paid in the amount and in the manner provided in the Term Sheet, to cover the Administrative Cost of a Loan Guarantee for the period from the Application through issuance of the Guarantee.
*Federal Financing Bank* means an instrumentality of the United States Government created by the Federal Financing Bank Act of 1973, under the general supervision of the Secretary of the Treasury.
*Guarantee* means the undertaking of the United States of America, acting through the Secretary pursuant to Title XVII, to pay in accordance with the terms thereof, principal and interest of a Guaranteed Obligation.
*Guaranteed Obligation* means any loan or other debt obligation of the Borrower for an Eligible Project for which DOE guarantees all or any part of the payment of principal and interest under a Loan Guarantee Agreement entered into pursuant to Title XVII.
*Holder* means any Person that holds a promissory note made by the Borrower evidencing the Guaranteed Obligation (or his or her designee or agent).
*Innovative Energy Project* has the meaning set forth in § 609.3.
*Innovative Supply Chain Project* has the meaning set forth in § 609.3.
*Intercreditor Agreement* means any agreement or instrument (or amendment or modification thereof) among DOE and one or more other Persons providing financing or other credit arrangements to the Borrower (or an Eligible Project) or that otherwise provides for rights of DOE in respect of a Borrower or in respect of an Eligible Project, in each case in form and substance satisfactory to DOE.
*Loan Agreement* means a written agreement between a Borrower and an Eligible Lender containing the terms and conditions under which the Eligible Lender will make a loan or loans to the Borrower for an Eligible Project.
*Loan Guarantee Agreement* means a written agreement that, when entered into by DOE and a Borrower, and, if applicable, an Eligible Lender, establishes the obligation of DOE to guarantee the payment of all or a portion of the principal of, and interest on, specified Guaranteed Obligations, subject to the terms and conditions specified in the Loan Guarantee Agreement.
*Maintenance Fee* means the fee, to be paid in the amount and manner provided in the Term Sheet, to cover the Administrative Cost of a Loan Guarantee, other than extraordinary expenses, incurred in servicing and monitoring a Loan Guarantee Agreement after the issuance of the Guarantee.
*New or Significantly Improved Technology* means ( 1 ) A technology, or a defined suite of technologies, concerned with the production, storage, consumption, or transportation of energy, including of associated critical minerals and other components or other eligible energy-related project categories under section 1703(b) of Title XVII, and that is not a Commercial Technology, and that either: ( i ) Has only recently been developed, discovered, or learned; or
( ii ) Involves or constitutes one or more meaningful and important improvements in productivity or value, in comparison to Commercial Technologies in use in the United States at the time the Term Sheet is issued.
( 2 ) If regional variation significantly affects the deployment of a technology, such technology may still be considered “New or Significantly Improved Technology” if no more than 6 projects employ the same or similar technology as another project, provided no more than 2 projects that use the same or a similar technology are located in the same region of the United States.
*OMB* means the Office of Management and Budget in the Executive Office of the President.
*Person* means any natural person or any legally constituted entity, including a state or local government, tribe, corporation, company, voluntary association, partnership, limited liability company, joint venture, and trust.
*Project Costs* mean those costs, including escalation and contingencies, that are expended or accrued by a Borrower and are necessary, reasonable, customary, and directly related to the design, engineering, financing, construction, startup, commissioning, and shakedown of an Eligible Project, as specified in § 609.10. Project Costs do not include costs for the items set forth in § 609.10(d).
*Project Sponsor* means any Person that assumes substantial responsibility for the development, financing, and structuring of an Eligible Project and owns or controls, by itself and/or through individuals in common or affiliated business entities, a five percent or greater interest in the proposed Eligible Project or the Borrower.
*Reasonable Prospect of Repayment* has the meaning set forth in 42 U.S.C. 16512(d)(1)(B).
*Risk-Based Charge* means a charge that, together with the principal and interest on the Guaranteed Obligation, or at such other times as DOE may determine, is payable on specified dates during the term of a Guaranteed Obligation.
*Secretary* means the Secretary of Energy or a duly authorized designee or successor in interest.
*State* means any State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and any territory or possession of the United States.
*State Energy Financing Institution* means ( 1 ) A quasi-independent entity or an entity within a State agency or financing authority established by a State: ( i ) To provide financing support or credit enhancements, including loan guarantees and loan loss reserves, for Eligible Projects; and
( ii ) To create liquid markets for eligible projects, including warehousing and securitization, or take other steps to reduce financial barriers to the deployment of existing and new Eligible Projects.
( 2 ) The term “State Energy Financing Institution” includes an entity or organization established by an Indian Tribal entity or an Alaska Native Corporation to achieve the purposes described in paragraphs (1)(i) and (ii) of this definition.
*State Energy Financing Institution Project* has the meaning set forth in § 609.3.
*Term Sheet* means a written offer for the issuance of a loan guarantee, executed by the Secretary (or a DOE official authorized by the Secretary to execute such offer), delivered to the Applicant, that sets forth the detailed terms and conditions under which DOE and the Applicant will execute a Loan Guarantee Agreement.
*Title XVII* means Title XVII of the Energy Policy Act of 2005 (42 U.S.C. 16511-16517), as amended.
*Title XVII Loan Guarantee Program* means the program administered by DOE pursuant to Title XVII, regulations under this part, DOE guidance and policy documents, and other applicable laws and requirements.
*Transaction Costs* mean: ( 1 ) ( i ) Out-of-pocket costs of financial, legal, and other professional services associated with the financing of an Eligible Project, including services necessary to obtain required licenses and permits, prepare environmental reports and data, conduct legal and technical due diligence, develop and audit a financial model, negotiate the terms and provisions of project contracts and financing documents, including those costs associated with the advisors to DOE and any other Eligible Lender; and
( ii ) Costs of issuing Eligible Project debt, such as commitment fees, upfront fees, and other applicable financing fees, costs and expenses imposed by Eligible Lenders.
( 2 ) Transaction Costs do not include the Administrative Cost of a Loan Guarantee or Credit Subsidy Costs.
*United States* means the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and any territory or possession of the United States of America.