33 U.S.C. § 3908 (NAVIGATION AND NAVIGABLE WATERS)
§ 3908. Secured loans
(a) Agreements
(1) In general
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) Financial risk assessment
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) Investment-grade rating requirement
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) Terms and limitations
(1) In general
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) Maximum amount
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) Payment
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) Interest rate
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) Maturity date
(A) In general
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) Special rule for State infrastructure financing authorities
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) Nonsubordination
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) Fees
(A) In general
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) Financing fees
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) Non-Federal share
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) Maximum Federal involvement
(A) In general
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) Exceptions
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) Exception for projects funded by a State infrastructure financing authority
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) Credit
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) Repayment
(1) Schedule
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) Commencement
(A) In general
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) Special rule for State infrastructure financing authorities
(i) Timing of scheduled loan repayments
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) Repayments
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) Deferred payments
(A) Authorization
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) Interest
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) Criteria
(i) In general
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) Repayment standards
The criteria established under clause (i) shall include standards for reasonable assurance of repayment.
(4) Prepayment
(A) Use of excess revenues
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) Use of proceeds of refinancing
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) Sale of secured loans
(1) In general
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) Consent of obligor
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) Loan guarantees
(1) In general
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) Terms
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.
(Pub. L. 113–121, title V, § 5029, June 10, 2014, 128 Stat. 1338; Pub. L. 114–322, title IV, § 5008(c), Dec. 16, 2016, 130 Stat. 1897; Pub. L. 115–270, title IV, § 4201(a)(3), (b)(1), Oct. 23, 2018, 132 Stat. 3877, 3878.)
heading: Editorial Notes
heading: References in Text
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.
heading: Amendments
text: 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).
heading: Statutory Notes and Related Subsidiaries
heading: “Secretary” Defined
text: 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.