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pdfLOAN GUARANTEE
SOLICITATION ANNOUNCEMENT
U.S. Department of Energy
Loan Programs Office
FEDERAL LOAN GUARANTEES FOR
TRIBAL ENERGY DEVELOPMENT PROJECTS
Solicitation Number: 89303018RLP000005
OMB Control Number: 1910-5134
OMB Expiration Date: January 31, 2020
Announcement Type: Initial
Issue Date:
First Part I Submission Due Date:
Last Part I Submission Due Date:
First Part II Submission Due Date:
Last Part II Submission Due Date:
1
2
July 17, 2018
September 19, 2018 1
November 1, 2019
October 17, 2018 2
November 30, 2019
Please refer to Section V.A for multiple due dates regarding Part I submissions.
Please refer to Section V.A for multiple due dates regarding Part II submissions.
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
I.
II.
Solicitation Description ..................................................................................................................... 1
A. Purpose of Solicitation .............................................................................................................. 1
B.
TELGP Program Application Process and Participant Roles .................................................... 1
C.
Finance Considerations for Applications .................................................................................. 3
Eligibility Information ...................................................................................................................... 4
A. Eligible Borrowers. ................................................................................................................... 4
B.
III.
IV.
V.
Eligible Projects. ....................................................................................................................... 4
Application Requirements ................................................................................................................ 5
A. Required Information and Materials ......................................................................................... 5
B.
Compliance with NEPA Regulations ........................................................................................ 5
C.
Davis-Bacon Requirements ....................................................................................................... 6
D.
Cargo Preference Act of 1954 Requirements ............................................................................ 7
Application and Evaluation Process ................................................................................................ 7
A. Application Components ........................................................................................................... 7
B.
Loan Guarantee Process Overview ........................................................................................... 8
C.
Summary of Application Evaluation Process ............................................................................ 9
D.
Review of Financial Factors (Weighting: 45%) ...................................................................... 11
E.
Review of Technical Factors (Weighting: 35%) ..................................................................... 12
F.
Review of Programmatic Factors (Weighting: 20%) .............................................................. 13
G.
Review of Policy Factors ........................................................................................................ 13
H.
Review and Determination to Proceed .................................................................................... 14
I.
Notification.............................................................................................................................. 14
Application Schedule and Instructions ......................................................................................... 14
A. Application Submission Schedule ........................................................................................... 14
B.
Electronic Application Submissions........................................................................................ 15
C.
Registrations ............................................................................................................................ 16
D.
Formatting Instructions ........................................................................................................... 16
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Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
VI.
E.
Multiple Applications .............................................................................................................. 18
F.
Required Certification ............................................................................................................. 18
Fees, Costs and Expenses ................................................................................................................ 18
A. Fees.......................................................................................................................................... 18
B.
Treasury Wiring Instructions................................................................................................... 19
C.
Loan Guarantee Credit Subsidy Cost ...................................................................................... 20
D.
Costs of Independent Consultants and Outside Counsel to DOE ............................................ 20
E.
Extraordinary Expenses ........................................................................................................... 20
F.
Other Agents’ Fees .................................................................................................................. 21
VII. Additional Information ................................................................................................................... 21
A. Government Right to Reject or Negotiate ............................................................................... 21
B.
Commitment of Public Funds.................................................................................................. 21
C.
Procurement or Financial Assistance Award .......................................................................... 21
D.
Warning Regarding False Statements ..................................................................................... 21
E.
Restrictions on Disclosure and Use of Information................................................................. 21
F.
Burden Disclosure Statement .................................................................................................. 22
G.
Questions ................................................................................................................................. 23
VIII. References ........................................................................................................................................ 23
ATTACHMENTS
ATTACHMENT A – APPLICATION REQUIREMENTS
ATTACHMENT B – NEPA GUIDANCE
ATTACHMENT C - APPLICABLE PROVISIONS OF THE TITLE XVII RULE
ATTACHMENT D - DAVIS-BACON REQUIREMENTS
ATTACHMENT E – SPECIFIED TERMS AND CONDITIONS OF GUARANTEED OBLIGATIONS
ATTACHMENT F – REQUIRED QUALIFICATIONS OF LEAD LENDERS AND HOLDERS
ATTACHMENT G – POST-CLOSING SERVICING AND MONITORING
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Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
UNITED STATES DEPARTMENT OF ENERGY
FULL ANNOUNCEMENT
Loan Guarantee Solicitation for Applications for Federal Loan Guarantees for Tribal Energy
Development Projects
Solicitation Number: 89303018RLP000005
I.
Solicitation Description
A. Purpose of Solicitation
This solicitation announcement (including all Attachments, the “Solicitation”) invites the submission of
applications from qualified financial institutions for partial, risk-sharing loan guarantees from the United
States Department of Energy (“DOE” or the “Department”) under Section 2602(c) of the Energy Policy
Act of 1992, as amended (25 USC Section 3502(c)) (the “Act”), in support of debt financing for tribal
energy development projects, as described in this Solicitation, that are located in the United States. The
Act authorizes a new federal loan guarantee program (the “Tribal Energy Loan Guarantee Program” or
“TELGP”) intended to benefit federally recognized Indian tribes and Alaska Native corporations, by
increasing the capacity of the commercial debt markets for their energy development initiatives. Through
TELGP, DOE may provide up to two billion dollars ($2,000,000,000), in aggregate, in partial loan
guarantees. Eight million five hundred thousand dollars ($8,500,000) in appropriated funds is available to
pay the Credit Subsidy Costs (as defined in Attachment C) associated with such loan guarantees.
DOE is implementing the Act through this Solicitation, which governs the issuance of loan guarantees
under the Act. All Applicants are encouraged to review and become familiar with the requirements of the
Act and this Solicitation.
The Act authorizes the Secretary of Energy (the “Secretary”) to issue partial loan guarantees of nonfederal loans made to federally recognized Indian tribes and Alaska native corporations, “for energy
development.” Accordingly, this Solicitation seeks partial, risk-sharing loan guarantee applications from
eligible financial institutions with respect to projects meeting the requirements set forth herein.
Copies of the authorities cited herein may be found at www.energy.gov/LPO/TELGP as of the date of this
Solicitation (the “Program Website”). All capitalized terms defined herein shall have the meanings
ascribed to them in this Solicitation, and all capitalized terms used but not defined in the body of this
Solicitation herein shall have the meanings ascribed to them in Attachment C.
Neither a procurement action under Title 48 of the Code of Federal Regulations (“CFR”) nor a financial
assistance award under 10 CFR Part 600 is contemplated by this Solicitation.
B. TELGP Program Application Process and Participant Roles
For this Solicitation, DOE will implement TELGP by working directly with qualified financial
institutions through a set of procedures modelled on those previously established by DOE in its Financial
Institution Partnership Program (“FIPP”) for the implementation of DOE’s loan guarantee program
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Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
established pursuant to Section 1705 of Title XVII of the Energy Policy Act of 2005, 22 U.S.C. 1651116514, as amended (“Title XVII”).
Based on FIPP, DOE has developed an application process that will evaluate the Applicant’s analysis of
the proposed borrower’s ability to repay the Guaranteed Obligation and any other project debt, the
Applicant’s and proposed borrower’s ability to meet the requirements of the Act and those set forth in this
Solicitation, as well as the proposed loan guarantee’s satisfaction of DOE’s loan underwriting criteria.
The TELGP application and evaluation process described in this Solicitation, including but not limited to
the provisions of Attachment C (the “Application Framework”), borrows substantially from the
regulations adopted by DOE to implement the Title XVII loan guarantee program, found at 10 CFR 609
(the “Title XVII Rule”). Nevertheless, the Application Framework implements the Act and does not
replace or change, and is not intended in any way to replace or change, the fundamental requirements of
the Act. Accordingly, the Application Framework should be viewed solely as a set of additional standards
and procedures designed to assist DOE in implementing TELGP as efficiently and prudently as possible,
consistent with the objectives of the Act.
In general, the Application Framework is intended to expedite the loan guarantee process and expand
capacity in the senior debt financing markets for the efficient and prudent financing of eligible tribal
energy development. This objective will be primarily accomplished, through the Application Framework,
by specifying particular roles for financial institutions participating in a project for which a loan guarantee
is sought under the Solicitation (referred to in this Solicitation as a “Project”) and establishing the
applicable qualifications for such participants. The key features of the Application Framework are
described below.
Lenders as Applicants. First, an application under this Solicitation may be submitted exclusively by a
financial institution or tribal lender that meets the qualifications of a “Lead Lender” set forth in
Attachment F to this Solicitation, which will fund and hold all or a portion of a debt obligation that is the
subject of DOE’s partial guarantee (i.e., the “Guaranteed Obligation,” as more fully defined in
Attachment C) in accordance with the requirements in Attachment E and as set forth in a written
agreement entered into between DOE and the Lead Lender (i.e., the “Loan Guarantee Agreement”) as
more fully defined in Attachment C) and related documentation. When a loan guarantee under this
Solicitation is issued at closing, such applicant (referred to in this Solicitation and application form
interchangeably as the “Applicant” or “Lender Applicant”) becomes a Holder and the Lead Lender, in
each case as defined in Attachment C. Each Guaranteed Obligation is generally expected to have one
Lead Lender, which will act as the administrative agent for the Guaranteed Obligation (the
“Administrative Agent”) and perform the servicing of the Guaranteed Obligation, including the duties set
forth in Attachment F. Proposed Borrowers and Project Sponsors may not apply directly to DOE under
this Solicitation but must instead work with financial institutions satisfying the qualification requirements
of a Lead Lender in order to access a loan guarantee under TELGP.
In order to participate in this Solicitation, a financial institution will be required to qualify in accordance
with standards that are related to its role in the financing of the Guaranteed Obligation. Specific
qualifications for Lead Lenders and Holders under this Solicitation are described in Attachment F. The
qualifications are intended to ensure that each such financial institution is demonstrably able to fulfill its
expected role. Financial institutions that are interested in participating in this Solicitation should refer to
Attachment F to determine their qualification status.
Lead Lenders will also have direct, continuing obligations to DOE and its agents, such as the “Master
Servicer” (as described in Attachment G), with regard to servicing and monitoring the Guaranteed
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Tribal Energy Development Projects
Obligation and the project being financed.
Risk Sharing. Any DOE loan guarantee issued under this Solicitation will be partial and risk-sharing.
Therefore, the Applicant and other participating financial institutions, as applicable, will be required to
share in a significant amount of the risk of the Guaranteed Obligation on a pari passu basis with the DOE
as guarantor. Applicants and other Holders are expected to evaluate, and receive credit approval for, the
Guaranteed Obligation in accordance with their standard internal credit policies and procedures for
comparable senior debt transactions, as if the Guaranteed Obligation were not partially guaranteed.
The Applicant will have the lead role in developing the overall financial structure of the proposed project
and the specific terms of the Guaranteed Obligation, in the usual and customary manner of a lead lender
or underwriter of a senior credit facility. However, under this Solicitation, the Applicant is also expected
to (a) ensure that the Guaranteed Obligation and the associated documentation conform to the
requirements of TELGP, including the provisions of Attachment E, in addition to the usual and customary
provisions that a reasonable and prudent lender would ordinarily require, and (b) describe in detail the
syndication, placement, distribution and other aspects of funding the Guaranteed Obligation and
demonstrate how the proposed plan complies with the objectives and parameters for use of a loan
guarantee under this Solicitation. Certain required and specified terms and conditions of the Guaranteed
Obligation are found in Attachment E.
C. Finance Considerations for Applications
Loan guarantees issued under TELGP must satisfy specific finance requirements as set forth in
Attachment C, particularly Section 609.8(c) thereof, and an Applicant should give consideration to the
ability of the Borrower and proposed project to satisfy such requirements in responding to this
Solicitation. For example, as required by Section 609.8(c)(7) of Attachment C, the Borrower must pledge
collateral or surety necessary to secure the repayment of the Guaranteed Obligation, and, consistent with
Section 609.8(c)(17) of Attachment C, the Project Sponsors must make a significant investment of Equity
(as defined in Section 609.2 of Attachment C) in the project.
For this Solicitation, the portion of a Guaranteed Obligation that may be guaranteed by DOE is limited to
no more than ninety percent (90%) of the maximum aggregate principal amount of, and interest on, the
Guaranteed Obligation during its term.
In addition, for this Solicitation, the Guaranteed Obligation is expected to be “traditional” senior secured
debt, structured in accordance with customary market terms applicable to a high- quality, limited or nonrecourse, long-term, energy project finance transaction. Applicants should not assume that DOE will
accept modifications to such standard terms to accommodate tax-oriented investment structures.
Generally, DOE expects in relation to each loan guarantee under TELGP that the information requested,
and the documentation produced, will conform substantially in scope, quality and detail with the
information typically requested and documentation typically produced during the course of an arm’s
length, commercially negotiated project or commercial financing of this scale. DOE expects to issue loan
guarantees to support projects primarily using limited or non- recourse project finance structures that
satisfy the financing requirements under TELGP and this Solicitation.
DOE will not assume pre-construction risks under this Solicitation.
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II.
Eligibility Information
Before seeking a loan guarantee, Applicants are strongly encouraged to verify that their proposed projects
satisfy each of the threshold determinations set forth in Section 609.5(a) of Attachment C.
In addition, all of the eligibility requirements listed below must be met.
A. Eligible Borrowers.
Loan guarantees under this Solicitation are available for loans made to Indian tribes or Alaska Native
corporations that are recognized as eligible for the special programs and services provided by the United
States to Indians because of their status as Indians, or duly authorized and existing corporate entities,
wholly-owned or controlled by the above (“Eligible Borrowers”).
B. Eligible Projects.
Loan guarantees under this Solicitation are available only for loans made for the financing of an “Eligible
Project.” An “Eligible Project” under this Solicitation consists of an energy development project that
1. is located in the United States at one or more locations, which may include Indian lands;
provided that a project that is comprised of installations or facilities at multiple location
must be constructed or deployed pursuant to an integrated and comprehensive business
plan;
2. is wholly or partially owned by an Eligible Borrower; and
3. would be expected to have, whether structured on a project finance or a corporate finance
basis, a credit rating from a nationally recognized rating agency of at least a credit rating
equivalent of ‘BB’ from Standard & Poor’s or Fitch or ‘Ba2’ from Moody’s, as evaluated
without the benefit of any DOE guarantee or any other credit support which would not be
available to DOE.
Examples of energy development activities. For purposes of this Solicitation, “energy development” is
understood to encompass a broad range of projects and activities for the development of energy resources,
products, and services. The following non-exclusive list of potential types of Eligible Projects is provided
for illustrative purposes only. Submission of an application supporting a project that fits within one or
more of the illustrative project types set forth below does not assure that such Applicant will be selected
for the issuance of a loan guarantee.
•
•
•
•
•
•
•
Electricity generation, transmission and/or distribution facilities, utilizing renewable or
conventional energy sources
Energy storage facilities, whether or not integrated with any of the above
Energy resource extraction, refining or processing facilities
Energy transportation facilities, including pipelines
District heating and cooling facilities
Cogeneration facilities
Distributed energy project portfolios, including portfolios of smaller distributed generation and
storage facilities employed pursuant to a unified business plan
These examples are not intended to be, and are not, exclusive or limiting. They are mentioned solely with
the intent of identifying types of projects that could be eligible, subject to technical review.
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Refinancing of existing projects. Projects that have completed construction are not eligible for a DOE
loan guarantee under this Solicitation. DOE will not issue loan guarantees to support or refinance Projects
that have already been fully financed; however, DOE may issue loan guarantees for the financing of
acquisitions involving the substantial improvement or modification of existing facilities.
Location of projects. Projects that are not located on Indian lands and do not provide energy services to
Indian lands or facilitate the development of energy resources located on Indian lands may qualify as
Eligible Projects, but Applicants seeking loan guarantees with respect to such Projects are strongly
encouraged to demonstrate in their Applications the measurable benefits of the Project to one or more
tribes, as applicable, for DOE’s consideration in its review of Policy Factors, as descried in Section IV.G
of this Solicitation
III.
Application Requirements
This Solicitation requires Applicants to submit timely information in sufficient detail to support a
thorough analysis of a proposed Loan Guarantee and a Project’s compliance with the objectives and
requirements established by the Act and this Solicitation, as well as the rigorous underwriting criteria
appropriate for projects of comparable scale. All information that DOE collects will be used and stored in
accordance with DOE policies and procedures.
A. Required Information and Materials
Required Materials. Attachment A sets forth the information and materials DOE requires from an
Applicant for the Applicant to demonstrate compliance with the information collection requirements this
Solicitation.
Additional Requested Information. In addition to information requested in this Solicitation, each
Applicant may also be required to submit additional information subsequently requested by DOE in order
to clarify an Application.
Information Provided to Applicant. With respect to information required to be provided by Applicant
with respect to other parties, including the Borrower, the Project Sponsors and other Project Participants,
the Applicant should consider and discuss the basis for its knowledge about such parties and matters. In
cases where Applicants have received certifications from such parties with respect to information
provided to the Applicant for use in the Applicant’s evaluation of a proposed loan or for use in responding
to this Application, or the Applicant has undertaken to verify such information independently, the
Applicant is encouraged to describe the basis for its own submission and certifications of such
information in response to this Solicitation.
B. Compliance with NEPA Regulations
The National Environmental Policy Act (“NEPA”) requires federal agencies to consider the potential
environmental impacts of their proposed actions. DOE must complete NEPA review before it makes a
decision to provide a loan guarantee. Therefore NEPA compliance is integrated into DOE’s Loan
Guarantee Program decision-making procedures to ensure that a project’s environmental impacts are
properly considered.
1. There are three possible levels of NEPA for an Applicant’s Project:
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Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
a) Environmental Impact Statement (“EIS”): For projects expected to have significant
effects on the quality of the human environment (biological, physical, and sociocultural resources);
b) Environmental Assessment (“EA”): For projects with the potential to significantly
impact biological, physical, and socio-cultural resources; and
c) Categorical Exclusion (“CX”): For projects that meet the conditions for excluding the
requirement to prepare an EA or EIS because analysis of similar actions has determined
such actions will not have significant impacts (e.g., re-equipping and retooling within
existing facilities).
2. The NEPA review process begins once the Project has been accepted into the continued
due diligence phase following Part II review. If DOE invites an Applicant to begin
negotiations for a loan guarantee, unless an EA or EIS has been prepared for the Project by
another federal agency, DOE will evaluate the Project to determine the appropriate level of
NEPA review required.
3. The Applicant, with DOE oversight, is responsible for providing all necessary analysis and
documentation to comply with NEPA and the applicable implementing regulations in the
CFR (40 CFR 1500-1508 and 10 CFR 1021).
4. An EIS typically requires an 18-24 month processing time, and an EA typically requires 69 months. Examples of projects normally requiring an EA or an EIS can be found in the
DOE NEPA implementing regulations at 10 CFR 1021, Appendices C and D to Subpart D,
respectively. A list of actions potentially eligible for categorical exclusion to the EA or EIS
requirements can be found at 10 CFR 1021 Appendix B to Subpart D.
5. Once DOE initiates the NEPA review process, Applicants should consult with DOE before
commencing any work on the Project site (beyond preliminary design activities). Such
consultation is necessary as certain actions that could cause adverse environmental impacts
or limit the choice of available alternatives for the Project may not be allowable during the
NEPA review process and could result in discontinuing consideration of an Application or
terminating an outstanding Conditional Commitment.
6. NEPA review must be completed before a loan guarantee can be issued.
Additional information on the NEPA process for loan guarantee projects is available in Attachment B and
on the Program Website.
C. Davis-Bacon Requirements
To the extent required by applicable federal law, all laborers and mechanics employed by contractors and
subcontractors in the performance of construction work financed in whole or in part by a loan guaranteed
under the Act must be paid wages at rates not less than those prevailing on projects of a character similar
in the locality as determined by the Secretary of Labor in accordance with subchapter IV of chapter 31 of
title 40, United States Code (the “Davis-Bacon Act”). The Loan Guarantee Agreement and related loan
documentation will require the Borrower to make representations and warranties, agree to covenants, and
satisfy conditions precedent to closing and to each disbursement that, in each case, relate to its
compliance with the Davis-Bacon Act and all applicable Davis-Bacon Act regulations, including all
requirements set forth in 29 CFR Part 5 and the wage determination schedule(s) that are applicable to the
Project, including all requirements set forth in 29 CFR 5.5(a), as tailored in Attachment D for
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Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
incorporation into Loan Agreements expected to be entered into under this Solicitation and incorporated
by reference into the Davis-Bacon Act provisions in Attachment D as if fully set forth therein. Borrowers
are advised that, in accordance with the Davis-Bacon Act and its implementing regulation at 29 CFR
1.6(g), to the extent applicable to a the Project, the Davis-Bacon Act obligations described above for
construction work financed in whole or in part with such a loan guarantee must be complied with
beginning with the “construction, prosecution, completion or repair” (as defined in 29 CFR 5.2(j)) of such
Project, regardless of whether the closing of the DOE loan guarantee has occurred. An exception to the
requirement to comply prior to closing of the DOE loan guarantee is available if the Administrator of the
Wage and Hour Division, Employment Standards Administration, United States Department of Labor
(“DOL”) finds that it is necessary and proper in the public interest to prevent injustice or undue hardship
and there is no evidence of intent to apply for federal funding or assistance prior to the start of
construction. For Projects subject to the Davis-Bacon Act, the Borrower will also be required to insert the
contract clauses in 29 CFR 5.5(a), as tailored in Attachment D, in all contracts, subcontracts and other
agreements with entities (including the Project Sponsor and affiliates) employing laborers and mechanics
in the performance of the Project) and is responsible for such compliance by any such contractor,
subcontractor and other entity. Copies of these authorities may be found at
https://www.dol.gov/dol/cfr/Title_29/Chapter_I.htm, and a copy of 29 CFR 5.5(a), as tailored for this
Solicitation, appears in Attachment D. Applicants should visit the DOL website at
http://www.dol.gov/whd/govcontracts/dbra.htm for additional guidance regarding the Davis-Bacon Act
and its related acts.
D. Cargo Preference Act of 1954 Requirements
Applicants and Borrowers should be aware that Projects that receive a loan guarantee under this
Solicitation may be required to comply with the Cargo Preference Act of 1954, which establishes certain
requirements for the use of U.S. flagged vessels in the movement of cargo in international waters. These
requirements may apply to shipments contracted for or made prior to receiving a loan guarantee. DOE
urges Applicants and their borrowers to contact the Maritime Administration directly to ensure that
relevant project agreements provide for compliance with the Cargo Preference Act.
General information on cargo preference can be found at the Maritime Administration’s web site:
www.marad.dot.gov/cargopreference. You may also address questions on cargo preference to the
Maritime Administration’s Office of Cargo Preference and Domestic Trade at (202) 366-4610 or via
email to [email protected].
IV.
Application and Evaluation Process
A. Application Components
The Application is divided into a Part I submission and a Part II submission.
Part I: The Part I submission provides DOE with a description of the Project, technical information,
background information on management, financing, construction, and operating strategies, and progress
to date of critical path schedules. These schedules include items such as obtaining licenses or regulatory
permits and approvals, site preparation and long-lead procurements, and are used as a basis for
determining the overall eligibility of the Project and the Project’s readiness to proceed. All Part I
submissions will be competitively evaluated against all others submitted during the corresponding round
of review. DOE will evaluate each Part I submission based upon the factors summarized in Attachment A
– Part I. Projects that do not meet the requirements set forth in this Solicitation will not receive any
further consideration.
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Part II: The Part II submission may be filed at any time after DOE invites an Applicant to make a Part II
submission. The Part II submission consists of the items summarized in Attachment A – Part II as well as
other information that may be requested to facilitate DOE’s continued due diligence review. All Part II
submissions will be competitively evaluated against all others submitted during the corresponding round
of review. DOE shall have the right, in its sole discretion, to defer consideration of a Part II submission to
a later round, if one is available, and to terminate an incomplete Application after the final round. Projects
that do not meet the requirements set forth in this Solicitation will not receive any further consideration.
Detailed instructions for the contents of the Parts I and II submissions are set forth in Attachment A.
B. Loan Guarantee Process Overview
The following table outlines the Application, approval, and post-selection process for obtaining a loan
guarantee under this Solicitation:
Stage
Issue Solicitation
Party Responsible
DOE
Costs due from Applicant
-
Confirm eligibility
Applicant
-
Fulfill Application requirements
Applicant
-
File Part I submission
Applicant
$10,000 of Application Fee
Review Part I and determine eligibility and
Project’s readiness to proceed
DOE
-
Invite qualified Applicants to file Part II
submission
DOE
-
File Part II submission
Applicant
Remainder of Application Fee
($25,000)
Review and evaluate Part II submissions
DOE
-
Invite selected Applicants to continue due
diligence
DOE
-
Execute payment agreements with DOE
advisors
Applicant/Sponsor
Retainers/deposits under
payment agreements
Continue due diligence of selected
Applications
DOE
Fees and expenses of third
party advisors, billed
periodically
Negotiate Term Sheets with selected
Applicants
DOE/Applicant
-
Issue Conditional Commitment for loan
guarantee
DOE
-
Negotiate transaction documents
DOE/Applicant
Fees and expenses of third
party advisors, billed
periodically
Fulfill conditions to closing
Applicant
-
Determine Credit Subsidy Cost
DOE
-
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Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
Execute Loan Guarantee Agreement
DOE/Applicant
Facility Fee
100 % of first annual
Maintenance Fee
100% of Risk-Based Charge
for first year
Third party closing costs
C. Summary of Application Evaluation Process
Part I Review. DOE will review each Part I submission to determine whether or not such submission is
responsive to the requirements of this Solicitation. DOE’s Part I evaluation will place particular
importance on verifying, preliminarily, that an Application meets the eligibility requirements set forth in
II.A, specifically focusing on determinations that -1. The Lender Applicant and each other Lender identified in the Application is an Eligible
Lender, and the Lender Applicant meets the requirements of a Lead Lender;
2. The Borrower is an Eligible Borrower;
3. The Project—
a) Is located in the United States;
b) Is owned wholly or partly by an Eligible Borrower; and
c) Provides a reasonable prospect of repayment of the principal and interest on the
Guaranteed Obligation and other Project debt.
Applicants for Projects that, in DOE’s Part I evaluation, are deemed eligible and ready to proceed, will
then be invited to make a Part II submission. DOE will conduct a more detailed, weighted review of each
Part II submission based on the factors referred to in this Solicitation.
Part II Review. Section 609.5 of Attachment C sets forth additional programmatic, technical, and
financial evaluation of Applications to be considered in the evaluation of an Application under the
Solicitation. During the Part II Evaluation Process, DOE will continue to evaluate the Application based
on such criteria as well as such other criteria that DOE deems relevant in evaluating the merits of an
Application including, without limitation, the following factors:
1. Whether the Project could be fully financed on a long-term basis by commercial banks,
institutional investors, or the capital markets without a federal loan guarantee;
2. Whether the Project has identified a dedicated and appropriate Project site. Generally, a
Project is restricted to one location within the United States. However, DOE may, in its
discretion, consider an Application for a Project that is proposed to be situated in more than
one location in the United States if multiple locations are integral components of a unitary
plan, necessary to the viability of the Project, and at least one of the locations is identified
in the Application;
3. The level of NEPA review required by DOE;
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Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
4. Whether the Guaranteed Obligation is expected to be senior-secured debt;
5. The best use of the loan guarantee (i.e., Applications that demonstrate the most efficient
and competitive uses of the loan guarantee);
6. The experience of the Borrower and Project Sponsors in the development of similar
projects, and the Lender Applicant’s experience in lending to similar projects; and
7. The percentage guarantee sought from DOE. The use of partial guarantees below the
statutory maximum of 90% and co-lenders will be viewed favorably by DOE.
DOE will make decisions as to whether to continue due diligence on projects competitively evaluated
during a given round of Part II reviews after the closing of such round. At any time following the closing
of any particular round of Part II submissions, DOE may select, for purposes of continuing due diligence,
underwriting, and negotiations, Applications meeting the requirements of the Act, this Solicitation and its
other underwriting criteria. Approval of an Application for the purposes of continuing due diligence,
underwriting, and negotiations is not an assurance that DOE will offer a Conditional Commitment or a
loan guarantee.
The term “due diligence” means the research and analysis that DOE conducts concerning a project for
which DOE is considering providing a loan guarantee. During the due diligence process, DOE confirms
all material facts regarding the project by, among other things, looking at various aspects relating to the
subject project, such as general company data, company financial information, corporate agreements,
relevant corporate and project legal documents, intellectual property rights, corporate insurance coverage,
corporate litigation history and documents, key personnel and their ability to perform the roles assigned to
them, environmental matters, corporate tax filings and documents, marketing information, internal
controls, information systems, and operational information. Such research and analysis may include
questions (among others) such as who will provide the funds, other than the DOE-guaranteed debt, for the
construction of the project; how will the project pay its operating expenses and repay its debt; which
parties are responsible for which risks; what experience does your construction contractor and operator
have on these types of projects; what permits are required to construct and operate the project and does
the project have such permits; and is it possible that there could be cost overruns under the construction
contract and, if so, who will pay for those cost overruns. In addition to information requested in this
Solicitation, each Applicant may also be required to submit additional information subsequently requested
by DOE in order to clarify an Application.
Mandatory criteria that DOE will use during each round of Part II reviews in determining which Project
Applications will proceed to the next stage are (1) whether the Project provides a reasonable prospect of
repayment of the principal and interest on the Guaranteed Obligation and other Project debt, and (2)
whether the Guaranteed Obligation and other Project debt, when combined with amounts available from
other sources, will be sufficient to carry out the Project. If these mandatory requirements are not validated
in any given round of Part II reviews, or, at DOE’s discretion, cannot be validated if required changes to
the Project and the financing proposal are made, such Application will not receive further consideration.
DOE shall consider the following factors (the “Initial Part II Factors”) in determining to make
guarantees to Projects under this Solicitation: financial factors, technical factors, and programmatic
factors. Additionally, DOE will consider policy factors described below in Section IV.G (“Policy
Factors”) in determining to make guarantees to Projects under this Solicitation. After evaluation of an
Application based on the Initial Part II Factors, selected Applications will then be evaluated against each
other based on Policy Factors. Only Applications for Projects that are determined to be highly qualified
based on Policy Factors will continue with due diligence. An Application for a Project that scores very
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highly on the Part II Initial Factors but does not score well on the Policy Factors is highly unlikely to
continue with due diligence. Applications for Projects that do not score well on the Initial Part II Factors
will not be part of the competition based on the Policy Factors.
The following table summarizes the relative weightings for each Initial Part II Factor:
Weighting
Financial Factors: Creditworthiness
45%
Technical Factors: Technical relevance, merit, technical approach,
35%
work plan, and construction plan
Programmatic Factors: Legal, environmental and regulatory
20%
TOTAL
100.0%
D. Review of Financial Factors (Weighting: 45%)
As part of its Part II review process, DOE will conduct a thorough review of all financial factors
associated with an Application. Among other considerations, the financial review will:
1. Assess factors affecting the creditworthiness of the Project, including:
a) The Project’s economic viability with and without the DOE loan guarantee, the
availability of other federal and state incentives other than the DOE loan guarantee, its
ability to generate sufficient cash flow to service the borrower’s debt obligations over
the life of the loan guarantee;
b) Each Project Sponsor’s financial commitment to the Project, financial strength,
including its ability to pay transaction costs arising out of the Project (e.g., fees and
expenses for DOE’s internal technical resources and its independent consultants and
outside counsel) on a timely basis, and the credibility of its business and financial
plans; and
c) Overriding market factors that could significantly influence the success of the Project;
2. Assess the financial viability of the Project, review the sources and uses of funds proposed
by the Applicant in the financial plans submitted with the Application, and review updates
and projections for future financial performance;
3. Consider the Project Sponsor’s prior financial and managerial investment in the Project and
its capability to implement the Project as proposed;
4. Consider the extent to which the Project uses partial guarantees and/or co-lenders; and
5. Review all other financial factors DOE deems appropriate.
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E. Review of Technical Factors (Weighting: 35%)
For its Part II technical review, DOE will evaluate the quality and scope of the Application’s technical
submission, which shall include the technical elements found in Section 609.5 of the Attachment C, as
supplemented below. Among the considerations for DOE’s technical review are:
1. Technical Relevance and Merit: DOE will evaluate the extent to which the Project will
apply commercially available technology on a national, state, regional, or local basis,
including:
a) The technical applicability of the proposed technology for near-term commercial
application;
b) The projection for long-term success and sustainability in operation of the technology
proposed.
2. Capabilities of the Project Team: DOE will evaluate the experience and abilities of the
Applicant and primary Project participants, including:
a) the relevance and depth of prior experience of the Applicant and key Project partners in
developing, constructing, and operating projects of similar size, scope and complexity;
competencies, strengths and experiences of key partners such as equipment suppliers,
engineering, architectural, and design agents or consultants, and vendors providing
essential support or services to the Project; and
b) whether the Project has obtained access to intellectual property needed to support the
Project including key technical components, processes, designs, feedstock, and
catalysts through licenses, procurements, or patents.
3. Technical Approach/Work Plan: Projects will be evaluated based on the strength of the
Project management plans to be used to achieve the stated cost, schedule, and technical
performance objectives and milestones, including:
a) scope, maturity, and completeness of pre-construction systems analysis, design detail
and prototype testing, including the level and maturity of front end engineering and
design;
b) relevance, scope, and maturity of the plans for Project execution and performance
measurement including integrated Project schedules;
c) progress implementing and executing these plans, including achievements attained to
date; and
d) relevance, scope, and maturity of Project’s risk management and mitigation plans;
e) the extent to which the technology being proposed has successfully performed in
previous applications of a similar nature
4. Construction Plan: DOE will evaluate the strength and completeness of the construction
plan for the Project, including:
a) progress in the development of the Project construction management approach, whether
the approach is through an engineering, procurement, and construction contract, or
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other general contracting arrangements; and the quality control measures to be
implemented on general contracts to promote overall success of the project through
construction
b) schedule and progress in securing contracts and services for Project execution
including the extent to which equipment, commodities, or services costs have been
identified, negotiated, and assigned; extent to which such costs are fixed or variable;
and adequacy of cost controls; and
c) when necessary construction rights and federal, state and local permits have been
identified, obtained, approved, or scheduled.
F. Review of Programmatic Factors (Weighting: 20%)
1. Legal Review (Weighting: 10%): As part of the Part II programmatic review, DOE will
review the Project’s legal structure and risks. This review may involve analysis of legal
documents among the parties, including equity owners, entities providing other forms of
financing, engineers and construction contractors, operation and maintenance contractors,
equipment suppliers, host communities, and any other counterparties of interest. DOE also
will analyze the intellectual property rights of all relevant parties in the Project. In addition,
DOE will evaluate the Project’s capacity to mitigate risk from potential legal and regulatory
issues that could jeopardize the success of the Project. Areas of review will include any
pending or threatened litigation involving the Project or any Project participant.
2. Environmental Review (Weighting: 10%): As part of the Part II programmatic review,
DOE will evaluate the Project to determine the appropriate level of environmental review,
including the level of NEPA review required. The Applicant must provide enough
information to enable DOE to determine the scope of affected environmental aspects
(biological, physical, and socio- cultural resources affected) and the level of NEPA review
that would be required if the Applicant were selected to begin negotiations with DOE.
More information on the NEPA process and examples of environmental data that should be
included in each Application may be found in Attachment B.
G. Review of Policy Factors
For any Application for a Project that scores highly enough to continue to the competition based on
Policy Factors, DOE will evaluate the extent to which such proposed loan guarantee achieves policy
objectives by considering the following Policy Factors:
1. Compare the percentage of guaranteed funds to total project costs relied upon by the
Application to the percentage of the guaranteed funds to total projects costs relied upon by
other Applications, with greater weight being given to Applications that rely upon a smaller
percentage of guaranteed funds;
2. Assess the extent to which the Applicant and the Project Sponsor are prepared to proceed to
Conditional Commitment and Closing with greater weight being given to Applications for
which the Applicant and the Project Sponsor are prepared to proceed more expeditiously
than other Applicants and Project Sponsors;
3. Assess the extent to which the Project provides measurable benefits to one or more Eligible
Borrowers or its members;
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4. Assess the extent to which the Project can be replicated, the benefits for the Borrower and
other Eligible Borrowers based on such replication, and the extent to which successful
deployment of the Project will accelerate the process of replication; and
5. Assess to what extent the Applicant has a plan to advance or assist in the advancement of
the financing of tribal energy development projects in the commercial marketplace.
H. Review and Determination to Proceed
In reviewing completed Applications, and in prioritizing and selecting Projects for due diligence review,
DOE will apply the criteria set forth in this Solicitation. For each round of review, submissions will be
considered in a competitive process (i.e., each submission will be evaluated against all other submissions
responsive to this Solicitation that are filed during the corresponding round of review).
If DOE reviews a submission and determines not to proceed, DOE will inform the Applicant in writing of
the reason(s) for not proceeding. If at any time after DOE invites an Applicant to file a Part II submission,
DOE determines not to proceed further with due diligence review or negotiation of a Term Sheet, DOE
will inform the Applicant in writing of the reason(s). The discontinuation of due diligence by DOE with
respect to any Application will not prejudice the Applicant from applying for a loan guarantee pursuant to
the terms of any other open DOE solicitation, including any Title XVII solicitation or from applying for a
loan guarantee under this Solicitation for another Project. DOE’s decision with respect to any Application
not to proceed further with the issuance, due diligence review, or negotiation of a term sheet shall be final
and non-appealable.
DOE will consult with the Secretary of the Treasury regarding the reasonableness of the interest rate
proposed by the Applicant for the Guaranteed Obligation.
I.
Notification
Selection of Projects for continued due diligence review will be made after the closing of each round of
Part II review. If DOE determines that a Project may be suitable for a loan guarantee, DOE will notify the
Applicant in writing, will continue its due diligence and, when appropriate, begin negotiating a Term
Sheet. There can be no assurance that any Project will be selected for continued due diligence review or
offered a Term Sheet.
V.
Application Schedule and Instructions
In order to encourage submissions of complete Applications as early as possible after the date of this
Solicitation, Part II submissions will be systematically reviewed on a continuous basis as soon as they are
received. However, final selection of qualified Applicants will not occur until after all Part II submissions
are competitively evaluated against all others submitted during the corresponding round of review.
A. Application Submission Schedule
The following are the Part I and Part II Application due dates:
1. Part I Due Dates
Round 1
Round 2
Round 3
9/19/2018
11/14/2018
1/16/2019
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Round 4
Round 5
Round 6
Round 7
Round 8
3/13/2019
5/15/2019
7/17/2019
9/18/2019
11/1/2019
2. Part II Due Dates
Round 1
Round 2
Round 3
Round 4
Round 5
Round 6
Round 7
Round 8
10/17/2018
12/19/2018
2/13/2019
4/17/2019
6/19/2019
8/14/2019
10/16/2019
11/30/2019
Additional rounds may be announced in a supplement to this Solicitation.
B. Electronic Application Submissions
Applicants must file Part I and Part II submissions in electronic form via the DOE Loan Program Office’s
online Application portal (the “Application Portal”). Supporting documents for Applications will be
accepted only in the following: Microsoft Excel files or Adobe “portable document format” (“PDF”) files.
Applicants should not encrypt, compress, or zip any files. For an Application to be considered under this
Solicitation:
Part I must be submitted electronically no later than 11:59 pm Eastern Time, on the due date for the
applicable Part I round of review.
To be considered for a particular Part II round of review, Applicants must file their Part II submission no
later than 11:59 pm Eastern Time on the corresponding due date for applicable round of Part II
submissions.
Application Portal Submission Process:
1. Applicants may access the Application Portal from the Program Website. The information
requested in Part I, Section A, should be entered directly into the text fields provided. The
information requested in Part I, Sections B through H, and in Part II should be provided by
means of PDF or Excel files uploaded through the Application Portal. Uploaded files must
indicate clearly the section and subsection of the Part I or Part II requirement to which the
information on the files pertain.
2. The Application Portal provides a process for making corrections to an Application if an
Application requires substantive changes or additions after it has been submitted and prior
to a submission deadline.
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3. DOE will determine the time of delivery for Part I or Part II of an Application based on the
time stamp for such submission generated by the Application Portal.
4. Prior to the applicable due date and time for the Part I and Part II submissions, it is the
responsibility of the Applicant to verify that each submission was successfully transmitted
and that DOE has received each such submission. This may be done by printing the
confirmation page provided to the Applicant from the Application Portal.
C. Registrations
To apply electronically via the Application Portal, Applicants must complete the following:
1. obtain a Dun and Bradstreet Data Universal Numbering System (“DUNS”) number (plus 4
digit extension, if applicable);
2. obtain a North American Industry Classification System (“NAICS”) code; and
3. register with the System for Award Management (“SAM”).
If the Applicant does not know or does not have a DUNS number, it may search for it or request one at:
http://fedgov.dnb.com/webform/displayHomePage.do.
If the Applicant does not know or does not have a NAICS code, it may search for it or request one at:
http://www.census.gov/eos/www/naics/.
If an Applicant is not registered with SAM, it may register at http://www.sam.gov/portal/public/SAM/.
The SAM registration must be completed and active before a payment can be made.
D. Formatting Instructions
Applicants must provide all requested information in the following format:
1. Documents supporting and forming any part of an Application must:
a) Be typed in Times New Roman 11 point font;
b) Use single-spaced paragraphs;
c) Adhere to a format consisting of standard 8.5” x 11” paper; and
d) Have 1” margins (top, bottom, left and right) with exceptions for charts, graphics, and
similar materials.
2. Applicants should provide a “short name” or other identifier in the file name for each
document that will allow for easy identification of the Project.
3. The file naming standard that DOE will use for uploaded files is specified in Table 1.
Certain documents uploaded through the Application Portal will be renamed automatically
to conform to this convention, as shown in the example that follows in Table 1.
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Table 1
Order
File Name Identifier
Identifier Specified as
Following
separator
#
1
Project Name
Project Name
Period
2
Part I or Part II
Submission Indicator
Roman numeral
Period
3
Category Character
Reference
Capital letter identifier for the section in the Solicitation
specifying the document category
Period
4
Category name
Name of the section in the Solicitation specifying the
document category
Period
5
Sub-category
Number(s)
Number identifier for the sub-section in the Solicitation
specifying the document sub-category.
Period
6
Version Number
If multiple sub-categories apply, list the sub-categories as a
comma-separated list in ascending numeric order.
Capital ‘V’ followed by the next consecutive version
Period
number in the system. The first version of any document is
specified as 1.
7
File Extension
File extension representing the file type
NONE
Example:
1. Project
Name
5. SubCategory
Number(s)
3.Category
Character
Reference
7. File
ProjectABC.I.D.Technical Information.1,2,3,4,5,6,7,8.V1.pdf
2.Submission
Indicator
4. Category
Name
6. Version
Number
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E. Multiple Applications
Applicants may apply more than once under this Solicitation, but a Project Sponsor or Applicant may
only submit one Application for a Project.
F. Required Certification
The following certification must be included with each Application:
“The undersigned certifies that the data and information submitted and the representations made in this
Application and any attachments to this Application are true and correct, to the best of the Applicant’s
knowledge and belief after due diligence, and that the Applicant has not omitted any material facts.
The undersigned further certifies that [s]he has full authority to bind the Applicant.
______________________________________
Applicant (Organization Name)
_____________________________________
Name of Applicant’s Authorized Officer
(will fulfill on-line certification)
______________________________________
Signature of Authorized Officer
(for paper copy only)
______________________________________
Title of Authorized Officer
______________________________________
Date”
VI.
Fees, Costs and Expenses
A. Fees
Certain fees are required as part of a complete Application. These fees defray the administrative costs
associated with DOE conducting its internal technical and financial review of the Project. Section IV.B
specifies each stage of the loan guarantee process at which Applicants must pay the Administrative Cost
of Issuing a Loan Guarantee. Non-refundable fees due to DOE during the course of the Application and
loan guarantee process must be paid directly to Treasury and are specified below:
1. Application Fee: Applicants must pay a non-refundable application fee (the “Application
Fee”) in the aggregate amount of Thirty-Five Thousand Dollars ($35,000) payable as
follows:
a) Ten Thousand Dollars ($10,000) must be paid on or prior to the date on which an
Applicant submits Part I of its Application. This first payment must be wired to
Treasury no later than 11:59 pm Eastern Time on the due date for the Applicant’s
desired round of Part I submissions.
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b) Twenty-Five Thousand Dollars ($25,000) must be paid on or prior to the date on which
an Applicant submits Part II of its Application. This second payment must be wired to
Treasury no later than 11:59 pm Eastern Time on the due date for the Applicant’s
desired round of Part II submission.
2. Facility Fee: On the closing date for the Loan Guarantee Agreement, the Applicant must
pay a non-refundable facility fee (the “Facility Fee”) in an amount equal to Twenty Five
basis points (0.25%) of guaranteed portion of the principal amount of the Guaranteed
Obligation.
3. Maintenance Fee: Applicants must pay a non-refundable annual maintenance fee (the
“Maintenance Fee”) to cover DOE’s administrative expenses, other than Extraordinary
Expenses, in servicing and monitoring the Loan Guarantee Agreement from the execution
of the Loan Guarantee Agreement by the Borrower through payment in full of the
Guaranteed Obligation in connection with such Loan Guarantee Agreement. The amount of
the Maintenance Fee is expected to vary, depending on the amount of the Guaranteed
Obligation, the guaranteed percentage, and the complexity of the Project. The Maintenance
Fee shall be paid each year in advance, commencing with payment of a pro-rated annual
payment prior to the financial closing date of the Loan Guarantee Agreement, on or prior to
the date and in the amount specified in the Loan Guarantee Agreement.
4. Risk-Based Charge. In order to encourage and supplement private lending activity, DOE
may collect from the Lead Lender, for deposit in the United States Treasury, a nonrefundable periodic Risk-Based Charge (as defined in Attachment C) which, together with
the interest rate on the Guaranteed Obligation that DOE determines to be appropriate, will
take into account the prevailing rate of interest in the private sector for similar loans and
risks. If assessed, the Risk-Based Charge shall be paid at such times and in such manner as
may be determined by DOE, but no less frequently than once each year, commencing with
payment of a pro-rated payment on the date the Guarantee is issued. The amount of the
Risk-Based Charge will be specified in the Loan Guarantee Agreement.
B. Treasury Wiring Instructions
Application Fees, Facility Fees, Maintenance Fees, and Risk-Based Charges will only be credited by wire
transfers to the following address; provided that such wiring instructions may be updated by DOE from
time to time:
Receiving Financial Institution U.S. Department of Treasury
Address
Federal Reserve Bank of New York
33 Liberty Street
New York, NY 10045
Receiver ABA Number
021030004
Receiver ABA short name
TREAS NYC
Business Function Code
CTR (or CTP)
Account (BNF/AC)
89000001
Beneficiary Name
DEPARTMENT OF ENERGY
Originator to Beneficiary
Information
Insert Solicitation name, type of fee and applicant name
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C. Loan Guarantee Credit Subsidy Cost
The “Credit Subsidy Cost” is the net present value of the estimated long-term cost to the U.S. government
of a loan guarantee as determined under the applicable provisions of the Federal Credit Reform Act of
1990, as amended (“FCRA”). The Credit Subsidy Cost is expressed as a percentage of the Guaranteed
Loan amount. DOE makes no representation regarding the amount of any particular Applicant’s Credit
Subsidy Cost. No guarantee shall be made unless an appropriation for the cost of the guarantee has been
made, the remaining amount of which is sufficient to cover the Credit Subsidy Cost.
Pursuant to the Consolidated Appropriations Act, 2017 (H.R. 244, Pub.L. 115–31) (the “Appropriations
Act”), Congress appropriated $8,500,000 (the “Appropriated Credit Subsidy”) to cover the Credit
Subsidy Costs associated with loan guarantees under TELGP, including, but not limited to, loan
guarantees issued under this Solicitation. DOE anticipates that it will allocate the Appropriated Credit
Subsidy to cover the Credit Subsidy Costs related to a Guaranteed Loan under the Act, as long as there is
remaining unallocated Appropriated Credit Subsidy.
In accordance with FCRA and this Solicitation, DOE must consult with OMB and obtain OMB’s
approval of DOE’s calculation of the Credit Subsidy Cost for each proposed loan guarantee prior to
issuing any loan guarantee.
D. Costs of Independent Consultants and Outside Counsel to DOE
Each Applicant shall be responsible for paying, or causing the applicable Project Sponsor or Borrower to
pay, the fees and expenses incurred by DOE’s independent consultants and outside legal counsel in
connection with such Applicant’s Project under all circumstances. Upon making the determination to
engage independent consultants or outside counsel with respect to an Application, DOE will continue
evaluating and processing an Application only upon a Project Sponsor’s entering into an agreement
satisfactory to DOE agreeing to pay the fees and expenses of the applicable independent consultant and/or
outside counsel. Applicants are advised that such services shall be rendered for the benefit of DOE in
connection with an Applicant’s Project and that DOE, not the Project Sponsor, is the client of such
independent consultants and outside counsel. In some cases, a retainer to cover such fees and expenses
may be required. In the event that a Project Sponsor fails to comply with the provisions of such payment
agreement, DOE may stop work on the Application and/or reject an Application.
DOE recognizes that Applicants under TELGP may also engage outside consultants and that these costs
may ultimately be borne by their respective Project Sponsors or Borrowers. To minimize such costs to
the extent possible, DOE encourages Applicants to coordinate with DOE with respect to the selection and
engagement of outside consultants before DOE’s due diligence process commences.
DOE shall not be financially liable to any independent consultant or outside counsel for services rendered
in connection with an Application under any circumstances whatsoever.
E. Extraordinary Expenses
In the event that a Project experiences difficulty relating to technical, financial, or legal matters or other
events (e.g., engineering failure or financial workouts) which require DOE to incur time or expenses
beyond standard monitoring (“Extraordinary Expenses”), DOE will be entitled to payment in full from
the Borrower of additional fees in an amount determined by DOE and of related fees and expenses of its
independent consultants and outside counsel, to the extent that such fees and expenses are incurred
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directly by DOE and to the extent such third parties are not paid directly by the Borrower or Project
Sponsor. Loan guarantee agreements with respect to guarantees under the Act shall provide that DOE
may charge the Applicant/Borrower additional fees to cover DOE’s Extraordinary Expenses in addition to
all other fees and expenses mentioned in this Solicitation.
F. Other Agents’ Fees
Applicants, proposed Borrowers and Project Sponsors are advised that the Borrower shall be responsible
for paying the fees and expenses of any agent, such as the Master Servicer described in Attachment G,
which is engaged by DOE in connection with Borrower’s project under all circumstances. The Borrower
will have certain special reporting obligations to DOE and its Master Servicer as described in Attachment
E in respect of the proposed project. Moreover, Lead Lenders, as Administrative Agents for Guaranteed
Obligations will have reporting obligations to DOE and the Master Servicer that are customarily
undertaken by Administrative Agents in project financings contemplated under this Solicitation. As such,
the Borrower shall be responsible for paying the fees and expenses of DOE’s Master Servicer that are
incurred in connection with its specific project pursuant to a fee agreement to be entered into at closing
between the Borrower and the Master Servicer.
VII. Additional Information
A. Government Right to Reject or Negotiate
DOE reserves the right, without qualification, to reject any or all applications received in response to this
Solicitation and to select any application as a basis for negotiation.
B. Commitment of Public Funds
DOE shall not be bound by oral representations made during the Application stage or during any
negotiations. No binding commitment, agreement, obligation, or right of any kind may be assumed or
enforced by any Applicant, Borrower, Project Sponsor or other Project participant against DOE other than
in accordance with a duly and validly executed Loan Guarantee Agreement.
C. Procurement or Financial Assistance Award
Neither a procurement action under Title 48 of the CFR nor a financial assistance award under 10 CFR
Part 600 is contemplated by this Solicitation.
D. Warning Regarding False Statements
It is a crime to knowingly make false statements to a federal agency. Misrepresentation or omission of
material facts may be the basis for denial of an Application for a loan guarantee from DOE. Penalties
upon conviction may include fine and imprisonment. For details, please refer to 18 U.S.C. §1001.
E. Restrictions on Disclosure and Use of Information
The information collected pursuant to this Solicitation will aid DOE in its review of Applications for loan
guarantees pursuant to the Act. Disclosure of this information may be made as required by law, including
the Freedom of Information Act, 5 U.S.C. §552 (“FOIA”).
Patentable ideas, trade secrets, proprietary and confidential commercial or financial information,
disclosure of which may harm the Applicant, should be included in an Application only to the extent that
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such information is necessary to convey an understanding of the Project. The use and disclosure of such
data may be restricted, to the extent consistent with applicable law, provided the Applicant specifically
identifies and marks such data in accordance with 10 CFR 600.15 described below:
1. Upload the following legend on a separate page in response to Section B of Part I and/or
Section A of Part II of the Application, respectively (be sure to specify the section
number(s) from the Application that contain(s) such data):
“Applicant hereby certifies that Section(s) [___] of this Application may contain trade
secrets or commercial or financial information that is privileged or confidential and is
exempt from public disclosure. Such information shall be used or disclosed only for
evaluation purposes or in accordance the loan guarantee agreement, if any, entered in
response to this Application. If this Applicant is issued a loan guarantee under Section
2602(c) of the Energy Policy Act of 1992, as amended (25 USC Section 3502(c)), as a
result of, or in connection with, the submission of this Application, DOE shall have the
right to use or disclose the data contained herein, other than such data that have been
properly declared in the loan guarantee agreement to be trade secrets or commercial or
financial information that is privileged or confidential and is exempt from public
disclosure.”
2. Include the following legend on the first or cover page of each document or electronic file
submitted that contains such data (be sure to specify the page numbers from such document
or electronic file that contains such data):
“Notice of Restriction on Disclosure and Use of Data
Pages [___] of this document may contain trade secrets or commercial or financial
information that is privileged or confidential and is exempt from public disclosure. Such
information shall be used or disclosed only for evaluation purposes or in accordance with a
financial assistance or loan agreement between the submitter and the Government. The
Government may use or disclose any information that is not appropriately marked or
otherwise restricted, regardless of source.”
3. Include the following legend on each page containing trade secrets or commercial or
financial information that is privileged or confidential:
“May contain trade secrets or commercial or financial information that is privileged or
confidential and exempt from public disclosure.”
4. In addition, each line or paragraph containing trade secrets or commercial or financial
information that is privileged or confidential must be marked with brackets or other clear
identification, such as highlighting.
F. Burden Disclosure Statement
This data is being collected to support Applications for loan guarantees from the Department of Energy
under the Act. The data you supply will be used for the review of Applications for loan guarantees under
the Act.
Public reporting burden for this collection of information is estimated to average 130 hours per response,
including the time for reviewing instructions, searching existing data sources, gathering and maintaining
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Loan Guarantee Solicitation Announcement
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the data needed, and completing and reviewing the collection of information. Send comments regarding
this burden estimate or any other aspect of this collection of information, including suggestions for
reducing this burden, to the Office of the Chief Information Officer, Records Management Division, IM23, U.S. Department of Energy, 1000 Independence Ave SW, Washington, DC, 20585-1290; and to the
Office of Management and Budget, OIRA, Washington, DC 20503.
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person
be subject to a penalty for failure to comply with, a collection of information subject to the requirements
of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB
control number. The OMB Control Number for this collection of information is 1910-5134. The OMB
expiration date for this collection of information is November 30, 2019.
Submission of this data is required to obtain a guarantee of the repayment of principal and interest on
loans relating to projects that qualify for such guarantees under the Act.
G. Questions
The name and address of the DOE representative whom a potential Applicant or Project Sponsor may
contact to receive a copy of this Solicitation is:
Brian Jefferis
U.S. Department of Energy, Loan Programs Office
Attn: Tribal Energy Loan Guarantee Program Applications
1000 Independence Avenue, SW
Washington, DC 20585
You may send questions to [email protected]. DOE representatives will respond to questions as
appropriate. All questions and responses may be made public on LPO’s website or elsewhere. Please
include “RE: TELGP Solicitation Question -” and a few words describing the question in the subject line.
If DOE decides to begin negotiations with an Applicant, DOE will assign a single point of contact for all
subsequent questions and/or discussions on matters relevant to the corresponding Application.
VIII. References
Statutes and regulations for which a link is not provided below may be found at the Program Website.
This Solicitation was developed pursuant to the following statutes and regulations:
1. Energy Policy Act of 1992, as amended (25 USC Section 3502(c))
2. Consolidated Appropriations Act, 2017 (H.R. 244, Pub.L. 115–31)
3. Davis-Bacon Act and related acts located at
http://www.dol.gov/whd/govcontracts/dbra.htm
4. OMB Circulars No. A-11 and A-129,
http://www.whitehouse.gov/omb/circulars_a129_rev2013 and the OMB website,
http://www.whitehouse.gov/omb/memoranda_default/
5. Council for Environmental Quality (CEQ) Regulations at 40 CFR 1500-1508 located at:
http://ceq.hss.doe.gov/nepa/regs/ceq/1500.htm#1500.5
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6. CEQ Guidance, “Forty Most Asked Questions Concerning CEQ’s NEPA Regulations,”
Question No. 11 (March 23, 1981) located at http://ceq.hss.doe.gov/nepa/regs/40/1119.HTM#11
7. Freedom of Information Act, 5 U.S.C.§552; located at http://www.foia.gov/index.html
(Remainder of this page intentionally left blank.)
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ATTACHMENT A – APPLICATION PARTS I AND II
The Application is divided into a Part I submission and a Part II submission. Part I of the Application
provides DOE with a description of the Project, technical information, expected environmental effects,
background information on management, financing strategy, and progress to date of critical path
schedules. This information will be used as a basis for determining the overall eligibility of the Project
and the Project’s readiness to proceed. DOE will evaluate each Part I submission based upon the factors
summarized herein, however, DOE may require that Applicants provide additional certifications or
supporting documentation as part of the Project evaluation process. If an Applicant is invited to submit a
Part II submission, to the extent that there are any material deviations from the information provided to
DOE in the Part I submission, the Applicant must update the information.
The information requested in Part I Section A is to be entered directly into the text fields provided in the
Application Portal. The information requested in Part I Sections B through H is to be provided on PDF or
Excel documents uploaded through the Application Portal. Uploaded documents must indicate clearly the
section and subsection of the Part I requirement to which the information on the documents pertains.
Note that all references to “Applicant” mean the “Applicant” or “Lender-Applicant” as defined in the
Solicitation.
I.
Part I Submission
A. Application Information
1. Project Information: Enter the Project name, enter the applicable technology category or
categories (______), and enter the Project/generation capacity (in Megawatts, Gallons per
Year, Tons per Year, or Other).
2. Project Location: Enter the following information regarding one or more Project locations:
address, city, state, zip code.
3. Project Sponsor(s): Enter the following information for each Project Sponsor with equity
of five percent (5.0%) or more: indicate whether lead sponsor (must have one lead
sponsor), entity name, website address, mailing address, city state, postal code, contact first
name, contact last name, contact title/position, contact phone, and contact email.
4. Applicant Information: Enter the following information for the Applicant: Entity name,
website address, mailing address, city, state, postal code, DUNS number, NAICS code,
primary contact information including first name, last name, title/position, phone, and email
5. Preliminary Questions: Answer the following questions. If the answer to any of these
questions is “No” include a detailed explanation of the circumstances that cause the answer
to be “No” in the space provided.
a) Do you confirm you have read and understand the Solicitation (Loan Guarantee
Solicitation Announcement from the U.S. Department of Energy Loan Programs Office
regarding Federal Loan Guarantees for Tribal Energy Development Projects)?
Attachment A – Part I Submission
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b) Is the Applicant legally authorized to enter into loan guarantee transactions and in good
standing with the U.S. Department of Energy and/or any other federal agency loan
guarantee program?
c) Is the Applicant current on payment of all amounts owed to the federal government?
d) Will the Project be built and operated entirely within the United States or its territories?
e) Do you confirm that to the best of the Applicant’s knowledge, after making diligent
inquiry, that no Project participant has been charged with or convicted of a
misdemeanor or felony (other than routine traffic violations) or been involved in any
securities litigation?
6. Summary of Loan Guarantee Request: Enter the following information regarding the
Applicant’s loan guarantee request: requested period of guarantee (years), total Project
Costs, proposed guarantee amount, debt, and equity. The sum of the amount entered for
debt and the amount entered for equity should equal the amount entered for total Project
Costs. The amount entered for the proposed guarantee amount should not be more than
90% of the amount entered for debt. On the basis of the above entered amounts,
calculations will be made to determine the following amounts: debt to equity ratio,
proposed guarantee amount to debt percentage, and proposed guarantee amount to total
Project Costs percentage.
B. Option to Restrict Disclosure and Use of Certain Data
Section VII.D of the Solicitation sets forth the steps an Applicant must take in order to restrict
the use and disclosure of certain data submitted in the Application. In order to restrict the use
and disclosure of certain data submitted in Part I of the Application (to the extent permitted by
applicable law) the Applicant must upload a separate page containing the legend set forth in
Section VII.D.1 of the Solicitation. If the Applicant does not want to restrict the use and
disclosure of any data submitted in the Application the Applicant must upload a separate page
containing the following statement: “Applicant does not identify any data the use and
disclosure of which is to be restricted.”
C. Organization (Corporate and Personnel)
1. Organizational Chart: Provide a current corporate organizational chart showing the
Applicant’s relationship to any subsidiaries, affiliates, parent organizations, or joint
ventures associated with the Project. Show the Applicant’s relationship to each Principal.
For the purpose of this Solicitation, a “Principal” is any legal or natural person who owns
or will own five or more percent of the Project.
2. Key Staff: List the full names (including middle name or initial) of key staff to be involved
with the Project.
3. Evidence of Authority: Submit evidence that the signatory of the Application has
authority to bind the Applicant to the commitments and representations made in the
Application and attests as to the accuracy of the information provided in the Application
process.
D. Project Description
Attachment A – Part I Submission
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1. Executive Summary: Provide a description of the nature and scope of the Project,
including the technology, site, environmental resources affected, purpose, size, capacity,
design features, key metrics, and key milestones. Describe the commercial feasibility of the
technology(ies) and how the Project Sponsor intends to employ such technology(ies) in the
Project. Include target dates for:
•
•
•
•
financial close of the Loan Guarantee Agreement;
commencement of site preparation and construction;
commercial operation; and
marketing the output.
2. Project Eligibility: Provide a detailed explanation of how and to what extent the Project
will qualify as an Eligible Project. DOE will base its determination that the Project is an
Eligible Project on the information the Applicant furnishes in its Part I submission.
Applicants are encouraged to be thorough in their explanations of a Project’s qualification
as an Eligible Project, including a discussion of the threshold determinations set forth in
Section 609.5(a) of Attachment C, all of the eligibility requirements of the Act and, and all
of the eligibility requirements listed in Section II of the Solicitation, “Eligibility
Information”.
3. Project Sponsors’ and Principals’ Capabilities: Describe Applicant’s, Borrower’s, each
Project Sponsor’s and each Principal’s capabilities, financial strengths, investment in the
venture to date and as anticipated during the construction and operation phases of the
venture (i.e., continuing financial support) and proposed equity investment in the Project,
as well as the Project’s strategic significance to each Project Sponsor and Principal.
4. Prior Experience: Summarize the prior experience of each project participant (described in
paragraph D.3 above) as it relates to carrying out undertakings similar to the one being
proposed. DOE will determine, in its sole and final judgment, whether the experience
described shows sufficient expertise.
5. Project Costs: Provide the estimated total Project Costs, as defined in Attachment C, and a
summary detailing key assumptions and the methodology used to calculate the Project
Costs. Include all eligible costs that have been paid and are expected to be paid and that are
directly related to the Project. Also include costs for escalation and contingencies in this
calculation. Distinguish between eligible and ineligible Project Costs as set forth in Section
609.10 of Attachment C.
6. Letters of Interest: Provide a letter of interest for all parties named in Section I.
E. Technical Information
Provide a top-level technical Project description, including the design, engineering, construction, and
operations and maintenance phases of the Project, including:
1. Description of Project Design: A description of the basic processes involved in the Project
design.
2. Description of Technology: A detailed description of the technology to be used in the
Project.
Attachment A – Part I Submission
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3. Sketches: Conceptual level sketches and details outlining general plant layout, process and
materials flows, and operating parameters and throughputs for key processes.
4. Critical Path Agreements Status: The status of critical path contracts and agreements,
such as a Front-end engineering agreement, technology license and teaming agreements,
Engineering, Procurement and Construction (“EPC”) contract, long-lead contracts,
feedstock agreements, and plant off-take or sales agreements.
5. Planning Documents: Key planning documents for the Project such as the construction
plan, operation and maintenance plan, waste disposal plan, and preliminary risk
management plan.
6. Acquisition Strategies: Raw material, equipment, and component supply chain acquisition
strategies.
7. [Intentionally Omitted]
F. Legal and Regulatory Information
1. Timelines for Regulatory Approval: Provide timelines for receipt of all required
regulatory approvals.
2. Status of Required Permits, etc.: Provide the status of any required federal, state, or local
environmental permits, approvals, or reviews.
3. Pending Investigations: Provide a summary of any pending or threatened (in writing)
action, suit, proceeding, or investigation by a governmental authority, of any kind,
including any action or proceeding by or before any governmental authority, that relates to
the Project or to the Applicant, any Project Sponsor, any Principal, or the anticipated
Borrower, and the status of any appeals.
G. Business and Financial Plans
1. Business Plan: Provide a description of the following elements of the business plan for the
Project:
a) Market analysis;
b) Feedstock (if applicable);
c) Off-take or sales agreements; and
d) Estimate of the number of construction jobs and permanent jobs expected to be created
or retained in the United States if the Project were to proceed as proposed in the
Application.
2. Financial Plan: Provide a description of the following elements of the proposed financial
plan for the Project:
a) The term sheet for the Guaranteed Obligation;
b) The amount of expected equity investments (identify participants and level of
participation, if applicable);
Attachment A – Part I Submission
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c) The preliminary funding plan for the project debt of which the Guaranteed Obligation
is a part, including the total amount for (i) working capital financing, (ii) medium-term
financing for machinery and equipment and (iii) longer-term financing for the site and
facility;
d) The timing of expected equity contributions and debt funding;
e) The timing of repayment of expected debt funding;
f) Whether the Project will benefit directly or indirectly from certain other forms of
federal support, such as grants or other loan guarantees from federal agencies or
entities, including DOE, federal agencies or entities as a customer or off-taker of the
Project’s products or services, or other federal contracts, including acquisitions, leases
and other arrangements, that support the Project; and
g) Other non-federal governmental (including state) incentives or other assistance on
which the Project relies, including grants, tax credits and other loan guarantees to
support the financing, construction and operation of the Project. Indicate whether any
such incentives or assistance are subject to clawback and the circumstances under
which a clawback could occur.
H. Application Certifications
1. Lobbying, Debarment, and Related Certifications and Assurances: In submitting an
Application for a loan guarantee under the Act, Applicants must provide certain
certifications and assurances contained in the form entitled “Certifications for Use with
Applications for Department of Energy Loan Guarantees for Tribal Energy Development
Projects” which form may be downloaded from the Program Website.
2. Applicant Validation Statement: Provide a written statement that, based on the Project
information provided by the Applicant, the Applicant attests that there is a reasonable
prospect that the guaranteed portion of the Guaranteed Obligation and any other Project
debt will be repaid on time and in full (including interest) from Project cash flow according
to the terms proposed in the Application.
3. Letter of Commitment: For an Application to be considered under this Solicitation, Part I
must include a letter of commitment signed by an authorized representative of the
Applicant in the form set forth on the final page of Attachment A – Part I Submission.
4. Penalty of Perjury Statement: The following certification must be included with each
Application:
“The undersigned certifies that the data and information submitted and the representations
made in this Application and any attachments to this Application are true and correct, to the
best of the Applicant’s knowledge and belief after due diligence, and the Applicant has not
omitted any material facts. The undersigned further certifies that [s]he has full authority to
bind the Applicant.
______________________________________
Applicant (Organization Name)
Attachment A – Part I Submission
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_____________________________________
Name of Applicant’s Authorized Officer
(will fulfill on-line certification)
______________________________________
Signature of Authorized Officer
(for paper copy only)
______________________________________
Title of Authorized Officer
______________________________________
Date”
Attachment A – Part I Submission
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Loan Guarantee Solicitation Announcement
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[SAMPLE LETTER OF COMMITMENT]
[DATE]
Executive Director
U.S. Department of Energy, Loan Programs Office
Attn: Renewable Energy Projects and Efficient Energy Projects Applications 1000 Independence Avenue,
SW
Washington, DC 20585
Dear Director:
This letter confirms our intent to seek a loan guarantee pursuant to Solicitation No. 89303018RLP000005,
dated July 17, 2018 (the “Solicitation”). We have met all mandatory requirements as specified in the
Solicitation including all attachments. Our Part I submission Application Fee was wired as per your
instructions set forth in the Solicitation.
We intend to submit our complete Part II submission on or before the due date for the [specify round by
number and/or Part II submission due date] round of Part II reviews as set forth in Section IV.A of the
Solicitation. Based on the Application process described in the Solicitation, we are prepared to close the
financing on or about xx/xx/20__.
If we decide to withdraw from consideration for a loan guarantee at any time, we will notify DOE in
writing of that decision as soon as possible.
Sincerely,
____________________________
Signature of Authorized Officer
[Name]
Attachment A – Part I Submission
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ATTACHMENT A – PART II SUBMISSION
Subject to the due dates set forth in Section V.A of the Solicitation, the Part II submission may be filed at
any time after DOE invites an Applicant to submit its Part II submission. The Part II submission consists
of the items summarized herein and in Attachment B as well as other information that may be requested
to facilitate DOE’s continued due diligence review. Projects eliminated by any of the requirements set
forth in Part II of this Attachment A will not receive any further consideration.
At any time after delivery of a Part II submission, to the extent that there are any material deviations from
the information provided to DOE in such Part II submission, the Applicant must notify DOE no later than
three (3) business days after becoming aware of any such change by requesting approval from DOE to
update their Part II submission via the Application Portal. Applicant must provide DOE with updated
information via the Application Portal no later than ten (10) business days after receiving notice from
DOE to Applicant of approval to re-open Applicant’s Application.
Responses are to be provided on PDF or Excel documents uploaded through the Application Portal.
Uploaded documents must indicate clearly the section and subsection of the Part II requirement to which
the information on the documents pertains.
I.
Part II Submission
A. Option to Restrict Disclosure and Use of Certain Data
Section VII.D of the Solicitation sets forth the steps an Applicant must take in order to restrict the use and
disclosure of certain data submitted in the Application. In order to restrict the use and disclosure of certain
data submitted in Part II of the Application (to the extent permitted by applicable law) the Applicant must
upload a separate page containing the legend set forth in Section VII.D.1 of the Solicitation. If the
Applicant does not want to restrict the use and disclosure of any data submitted in the Application the
Applicant must upload a separate page containing the following statement: “Applicant does not identify
any data the use and disclosure of which is to be restricted.”
B. Updates, Changes, and Additions to Part I Submission
Update the information in the Part I submission to the extent and information in the Part I submission has
changed from the information previously submitted. Provide a detailed description of all material
amendments, modifications, and additions to the information provided in Part I of the Application,
including any changes in the Project’s financing structure or other terms, the rationale for such changes
and the expected impact on the Project. Provide any and all updated audited financial statements since the
submission of Part I of the Borrower and Project Sponsors (including new parties joining the Project since
the Part I submission).
C. Submission Index
Provide an index of all of the requirements contained in this Solicitation and in Section 609.4 of
Attachment C and where in your Application submissions, including Parts I and II, these requirements are
addressed.
Attachment A – Part II Submission
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D. Project Description
1. Detailed Total Cost: Provide a detailed estimate of Project Costs in accordance with
generally accepted accounting principles and practices. Include a breakdown by cost
category, year of expenditure and basis for amounts, and include a description of the
methodology and key assumptions used to make each estimate. Also include costs for
escalation and contingencies, and indicate whether each cost is firm or subject to change.
Distinguish between eligible and ineligible Project Costs as set forth in Section 609.10 of
Attachment C.
2. State and Local Support: Describe the status of potential and actual forms, amounts, and
conditions of state and local support for the Project. Provide timelines for such assistance.
3. Project Location: Identify the proposed location in the United States and the rationale for
the site location. An Applicant proposing more than one location for a Project must set
forth in its Application its justification for siting the Project in more than one domestic
location.
4. [Intentionally Omitted]
E. Technical Information
1. Key Contracts and Agreements: Provide a top-level description, schedule, current status,
and drafts or executed copies of all critical path contracts and agreements relevant to the
investment, design, engineering, financing, construction, startup, commissioning,
shakedown, operation, and maintenance of the Project, including:
a) EPC contract(s);
b) Long-term contracts for materials, components and equipment to be used in the Project;
c) Any leases, operating, or maintenance contracts; and
d) Any additional relevant agreements or commitments.
e) If drafts or executed copies of any of the foregoing contracts and agreements are
unavailable, provide a detailed description of such contracts and agreements, including
all key terms and counterparties, and indicate when copies of such contracts and
agreements will be available.
2. Engineering and Construction Plans: A detailed description of the engineering and
design contractor(s), EPC contractor(s), equipment supplier(s), and construction schedules
for the Project.
a) For each engineering and design contractor, EPC contractor and equipment supplier to
be involved in the Project, describe their major activities as linked to specified cost
milestones and performance guarantees, as well as performance guarantees,
performance bonds, liquidated damages provisions, and equipment warranties to be
provided.
b) Describe the following:
Attachment A – Part II Submission
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Loan Guarantee Solicitation Announcement
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(i) The extent to which all required contractors are engaged; and
(ii) The extent to which pre-construction design has been completed.
c) Describe each contractor or supplier’s experience and qualifications as related to the
Project.
3. Key Site Components: Describe the key site components of the Project and risks
associated with their availability (e.g., water, electricity, gas, or other utilities). Describe
site access (roads, highway, and rail) including rights-of-way, easements, and logistical
considerations.
4. Operation Costs: Provide an estimate of operation costs on an annual basis.
5. Project Plan: Provide a comprehensive Project plan that will guide design, engineering,
and construction of the Project, including a description of:
a) Prior successful implementation of similar project plans for projects of this scale by the
Borrower or any Project Sponsor (Applicants that are not able to include examples of
successful implementation of similar project plans for projects of this scale should
provide a detailed description of the facts that they believe are sufficient to demonstrate
to DOE that the Project participants have the expertise that would be evidenced in
examples of successful implementation of similar project plans for projects of this
scale. DOE will determine, in its sole and final judgment, whether the experience
described shows sufficient expertise);
b) Each step of the proposed process;
c) Fully sourced or cited material and energy balance, including system simulation for
processes, using industry standard software;
d) The process for selecting an EPC firm, if applicable, or the internal resources used to
serve this function;
e) Equipment requirements;
f) Rights or licenses to use processes proposed;
g) An integrated schedule or Project work plan that encompasses time periods for design,
procurement (including long-lead procurements), construction (including mobilization,
testing and start-up), and commissioning. The Project work plan shall identify any
Project dependencies such as the timing of land-use agreements, environmental
permits, or licenses, or physical improvements such as utility tie-ins.
h) Minimum design specifications in which process flow diagrams are coupled to
preliminary cost estimates.
i)
Project management tools, including Gantt charts, resource-based scheduling or other
methods to assess and track progress;
j)
Staffing plans, including identification of costs and resources to design, engineer,
construct, and operate the Project;
Attachment A – Part II Submission
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k) Project risks and mitigation strategies, including risk related to scale-up, construction,
performance, etc. and the potential Project impact and mitigation of such risks; and
l)
Contingency plans to address cost overruns and schedule slippage.
6. Operating and Maintenance Plans: Provide the following:
a) The plant operating plan, proposed providers, expected staffing requirements,
anticipated parts inventory, major maintenance schedules, estimated annual downtime
and any performance guarantees and related liquidated damages provisions;
b) A description of the plans for commissioning and initial operations, taking into account
the construction schedule, the establishment of material supply chains, the hiring, and
training of management and operating personnel, logistics, potential bottlenecks, and
delays, financing for contingencies and working capital;
c) A description of any plans for expanding capacity over initial operations and the
Borrower’s or Project Sponsors’ experience with comparable ramp-ups; and
d) A description of the operations and maintenance plans for the Project, including
acquisition of critical spares, inventory sources, operations and maintenance
procedures, and associated risks.
7. Engineer’s Report: Provide an independent engineer’s report that includes a review,
evaluation, analysis, and recommendations in the following areas:
a) base technology,
b) Project feasibility;
c) engineering and design approach;
d) integrated Project schedule, including the schedule for completion;
e) cost estimates and technical input to the financial model;
f) contractual requirements and arrangements;
g) proposed supply chain;
h) Project risks, including mitigation activities and milestones;
i)
direct labor requirements during construction and operation;
j)
siting and permitting;
k) testing and commissioning;
l)
operation and maintenance; and
m) decommissioning plan and costs.
Attachment A – Part II Submission
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8. Decommissioning Plan: Provide a detailed description of the Project decommissioning,
deconstruction, and disposal plans (including any hazardous waste disposal plans),
including anticipated costs and arrangements that have been made to ensure that funding
will be available as necessary.
F. Legal and Regulatory Information
1. Legal Opinions/Material Reports: Provide a copy of all applicable legal opinions, and
other material reports, analyses and reviews concerning the Project.
2. Permits and Approvals: Provide a complete list of federal, state, and local permits,
licenses, and approvals required to site, construct, implement, and operate the Project,
including environmental authorizations or reviews necessary to commence construction.
For permits and approvals already received, provide the filing and approval dates and
parties involved. For all remaining required permits and approvals, provide documentation
validating the filing date and the expected date(s) for obtaining them and describe all
additional actions required to obtain such permits and approvals. Explain whether
governmental entities (other than DOE) are required to approve the activities of the
Applicant contemplated by this Solicitation or described in the Application.
3. Background and Legal Structure:
a) Describe the organizational history, ownership chain, and legal structure (e.g.,
corporation, partnership, or LLC) of the Borrower and each Project Sponsor.
b) Include copies of the statutory authorities under which the Borrower and each Project
Sponsor were created and copies of the good standing certificates for each such entity.
c) Provide a current organizational chart showing the Borrower’s relationship to each
Project Sponsor, the venture and to any subsidiaries or affiliates. Advise if there are any
proposed changes to the current organizational structure of the Applicant.
d) Describe whether the Project will be owned by a subsidiary of the Borrower or directly
by the Borrower.
4. Legal Authority: Describe the legal authority of the Borrower to carry out the Project
activities. Provide supporting documentation.
5. Litigation and/or Conflicts: Disclose any current, threatened (in writing), or pending
litigation involving the Borrower, a Principal, or, to the Applicant’s knowledge, any other
relevant party, related to permitting, public involvement, environmental issues, construction
defects, fraud, securities fraud, conflict of interest, failure to perform under a local, state or
federal contract, or other charges which may reflect on the Applicant’s, Principal’s, or any
Project Sponsor’s reputation, financial position or ability to complete the Project.
6. Potential Environmental Impacts: Submit a report containing the status of all state and
local environmental reviews and an analysis of the potential environmental impacts and
risks of the Project in sufficient detail to enable DOE to assess the significance of the
environmental impacts and risks and to determine the level of environmental review that
will be required. See Attachment B for guidance regarding required environmental
information for the NEPA review process.
Attachment A – Part II Submission
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G. Business Plan
Provide a business plan that demonstrates the Applicant’s expertise, financial strength, and
management capability to undertake and operate the Project as proposed.
1. Output: Provide a detailed description of the Project’s output.
2. Applicant’s Capability: Describe in detail the capabilities and experience of the Applicant
and each Project Sponsor, Principal, contractor, and every other counterparty that the
Applicant believes will enable the Project to be successful.
3. Market Analysis:
a) Include an analysis of the current and projected market for the Project’s output. Discuss
the prevailing economic and demographic trends in the target market, both on a
macroeconomic basis and for the Project’s output. Identify the market’s dependency on
tax benefits or other government policy. Provide a justification for revenue projections
(price and volume) and costs. Describe the Project’s projected customer base and
suppliers.
b) Describe the Applicant’s current and potential competitors for the Project’s output.
c) Provide a detailed description of any competitive advantages.
4. Operating and Market-Related Risks and Mitigation Strategies: Provide a detailed
analysis of the operating and market-related risks associated with the Project (e.g., market
factors, price volatility, etc.) and mitigation strategies to be employed (e.g., sales contracts
and reserves).
5. Management Plan:
a) Provide a staffing chart indicating the individuals (including position and
qualifications) proposed to operate the Project. Provide a description of the
management plan of operations to be employed in carrying out the Project, and
information concerning the management experience of each officer or key person
associated with the Project; and
b) Describe the role of management in the operation of the Applicant’s other businesses, if
any.
6. Supply and Sales Arrangements:
a) Provide a detailed analysis of the market for the Project’s feedstock and output;
b) Provide a detailed description of the Project’s plans for ensuring an adequate supply of
materials, equipment, and components as needed for successful operation. Provide
drafts or executed copies of all material supply contracts for the Project;
c) Provide the Project’s forecast for sales capacity and feedstock (availability and costs);
d) Provide drafts or executed copies of all feedstock agreements and sales contracts or
other revenue-generating agreements that will provide revenue for the Project. Provide
Attachment A – Part II Submission
37
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
an analysis of the creditworthiness of counterparties who are party to such agreements;
and
e) Provide copies and detailed summaries of all other material sales and revenue contracts.
7. Insurance Coverage: Provide a detailed description of the proposed insurance coverage
for the Project, together with a report from an insurance consultant that addresses the
appropriateness and adequacy of such coverage.
8. Growth Plan: Describe any proposals for expanding the business enterprise beyond the
Project.
9. Jobs Created/Retained: Provide a brief description of the number and types of jobs
expected to be created or retained in the United States if the Project were to proceed as
proposed in the Application. The types of jobs may be expressed using job titles, broad
labor categories, or the Applicant’s existing practice for describing jobs provided that the
descriptions so provided are commercially identifiable. The number of jobs shall be
expressed as full-time equivalent, calculated cumulatively as all hours worked divided by
the total number of hours in a full-time schedule, as defined by the Applicant. Applicants
should include in their narrative the information used to calculate the full-time equivalent
figure.
H. Financial Plan
1. Financial Statements: Provide unaudited financial statements for the Borrower for the past
three years (or since inception of the Borrower has not been in existence for at least three
years), prepared in accordance with generally accepted accounting principles in the United
States (“U.S. GAAP”). Include all associated notes and describe business and financial
interests of controlling or commonly controlled organization or persons, including parent
companies, subsidiaries, and other affiliated entities or partners of the Borrower or Project
Sponsors.
2. Project Financial Model and Analysis:
a) Include a working financial model (with formulas) with pro-forma financial statements
for the Project. List the major assumptions in a separate worksheet within the model.
(i) Include assumptions and calculations for the proposed tenor of the Guaranteed
Obligation, plus two (2) years.
(ii) Include detailed income statements, balance sheets, cash flow statements, and
waterfall statements.
(iii) Include financial ratios (e.g., interest coverage ratios, fixed charge coverage ratios,
debt- to-capital ratios, asset coverage ratios, and working capital ratios (including
high and low points)) and other relevant terms in the proposed term sheet.
Highlight those periods during construction and operation in which noncompliance with the proposed financial ratios is most likely.
(iv) Include sensitivity analyses that demonstrate the Project’s performance under
appropriate stress scenarios, including low sales prices, reduced Project
Attachment A – Part II Submission
38
Loan Guarantee Solicitation Announcement
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performance, loss of major customers, high input material prices, and the impact of
future competing technologies.
(v) Include cost assumptions based on compliance with the Davis-Bacon Act.
(vi) Include a complete description of the operational and financial assumptions and
methodologies incorporated in the financial model.
b) The financial analysis should demonstrate that there is reasonable prospect that the
Borrower will be able to repay the principal and interest on the Guaranteed Obligation
and any other Project debt incurred. Discuss the principal factors that could impair the
Borrower’s ability to meet its debt service obligations, including the Guaranteed
Obligation.
3. Detailed Financial Plan: Provide a detailed financial plan for the Project, prepared in
accordance with U.S. GAAP.
a) List all proposed sources of expected equity and debt funding by provider, type, and
aggregate amount, and provide a copy of the financial closing checklists for each
financing, if available.
b) Describe uses, timing, and amount of expected equity and debt funding.
c) For each party associated with the Project, provide a detailed description of their
projected liabilities over the term of the Loan Guarantee Agreement.
d) Include a summary of any funding intended to be procured through the use of special
purpose entities. Summarize each tranche of funding (e.g., amount, maturity,
amortization schedule, the proposed loan guarantee percentage, and whether it is a
fixed- or floating-rate tranche).
e) Include a summary of any funding that will be tax-advantaged debt to which Section
149(b) of the Internal Revenue Code may be applicable. Summarize measures that will
be taken to avoid (i) effective subordination of federally guaranteed debt to taxadvantaged debt, (ii) the use of any federal guarantee as collateral to secure taxadvantaged debt, and (iii) any linkage of federally guaranteed debt with tax-advantaged
debt.
f) Include a schedule indicating all anticipated short term financing or credit facilities
required for on-going operations of the Project, including all working capital facilities,
performance bonds and similar forms of financing available to or anticipated to be
available to the Project. Describe the nature of the security or collateral that is intended
to be made available to secure these working capital and other short term facilities.
4. Proposed Term Sheet: Include a proposed term sheet for the Guaranteed Obligation.
5. Credit History: Provide the credit history of the Borrower and any business entity owning
or controlling a five percent (5%) or greater interest in the Project or the Borrower, the
offtaker(s), the feedstock supplier, if applicable, and the EPC contractor. Provide the full
name of the entity, address, and date of organization.
Attachment A – Part II Submission
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Loan Guarantee Solicitation Announcement
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6. Collateral: Provide a listing, describe, and value all assets associated, or to be associated,
with the Project and any other assets that will serve as collateral for the Guaranteed
Obligations, including any intellectual property necessary for the operation of the Project.
Valuations must be supported by independent, third-party appraisals for existing assets and
commercial cost substantiation for assets to be constructed for the purpose of the Project,
and in all cases acceptable to DOE. An appraisal of real property must be performed by a
licensed or certified appraiser consistent with the Uniform Standards of Professional
Appraisal Practice promulgated by the Appraisal Standards Board of the Appraisal
Foundation. The appraisal should include information on the useful life of all physical
assets expected to serve as collateral, including a depreciation schedule (prepared in
accordance with U.S. GAAP).
7. Consideration of Pari Passu Status: Provide information and financing documents
regarding any existing senior secured debt of any party providing a guarantee or other
credit support.
8. Preliminary Credit Assessment: Provide the Applicant’s preliminary credit assessment
for the Project.
a) If the Project will be financed using a corporate financing structure or will benefit from
any third-party guarantees, provide a detailed public or private credit assessment of the
Borrower and Project Sponsor or such third-party guarantor. Such assessment should
take into account the impact of the proposed transaction on the Borrower and Project
Sponsor or such third- party guarantor’s credit rating and evaluate the Project Sponsor
or third-party guarantor’s financial viability in the absence of a DOE loan guarantee or
any other credit support.
b) If the Project will be financed using a project financing structure, provide a detailed
public or private credit assessment of the Project. Such assessment should evaluate the
Project in the absence of a DOE loan guarantee or any other credit support.
9. Other Financial Information: Include any other information about the Borrower and any
Project Sponsor that provides a comprehensive summary of the Borrower or Project
Sponsor’s business and financial situation, including specific information relevant to
analyzing historical cash flow on a secular, normalized basis.
I.
Certifications
1. Lobbying, Debarment, and Related Certifications and Assurances. Applicants must provide
certain certifications and assurances contained in the form entitled “Certifications for Use
with Applications for Department of Energy Loan Guarantees for Tribal Energy
Development Projects ” which form may be downloaded from the Program Website
2. Applicant Validation Statement: Provide a written statement and supporting analysis
attesting that, based on the information provided to DOE, there is a reasonable prospect that
all debt of the Project (including the Guaranteed Obligation) will be repaid on time and in
full (including interest) from cash flow generated by the Project and in accordance with the
terms proposed in the Application.
As part of the Project evaluation process, DOE may require that Applicants provide
additional certifications or supporting documentation. DOE is not authorized to issue a loan
guarantee for the benefit of any party that is delinquent on federal debt, including federal
Attachment A – Part II Submission
40
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
tax debt.
3. Penalty of Perjury Statement: The following certification must be included with each
Application:
“The undersigned certifies that the data and information submitted and the representations
made in this Application and any attachments to this Application are true and correct, to the
best of the Applicant’s knowledge and belief after due diligence, and the Applicant has not
omitted any material facts. The undersigned further certifies that [s]he has full authority to
bind the Applicant. 3
______________________________________
Applicant (Organization Name)
_____________________________________
Name of Applicant’s Authorized Officer
(will fulfill on-line certification)
______________________________________
Signature of Authorized Officer
(for paper copy only)
______________________________________
Title of Authorized Officer
______________________________________
Date”
Attachment A – Part II Submission
41
Loan Guarantee Solicitation Announcement
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ATTACHMENT B –NEPA Guidance
I.
Information to be submitted to DOE in an Application
Under Section III.B of this Solicitation, an Application must include a report containing an analysis of the
potential environmental impacts of the Project that will assist DOE in assessing whether the Project will
comply with all applicable environmental requirements and will enable DOE to complete any necessary
reviews under NEPA. Accordingly, each Applicant should submit the following information to assist
DOE in determining the appropriate level of NEPA review, and in preparing an EA or EIS if necessary:
A. Description of Project Facilities, Site, and Surrounding Location. Describe and, as
appropriate, identify and quantify:
1. Purpose of the Project facility and materials produced, including how they would be
transported;
2. Present an overall schematic process diagram that identifies all inputs and outputs;
3. New facilities to be constructed, existing facilities to be modified, and materials and
equipment to be used in construction;
4. Size of the new and modified facilities and of the total Project site (including support
facilities needed, such as parking lots and treatment facilities, and associated land uses,
such as agricultural production areas);
5. Extent of necessary site clearing and excavation;
6. Associated construction of transport infrastructure (e.g., access roads, railroad links, docks,
pipelines, and electrical transmission facilities) or waste treatment facilities;
7. Expected Project lifetime, including expansion of initial Project at the proposed site and to
other sites;
8. Project site and location, including a map;
9. Whether a Phase 1 Environmental Site Assessment (or other measure performed to meet
the INNOCENT LANDOWNERS – STANDARDS FOR CONDUCTING ALL
APPROPRIATE INQUIRES rule at 40 CFR Part 312) has been completed, if so,
summarize results;
10. Ownership of or jurisdiction over the land by tribal, federal, state, regional, or local agency;
11. Existing transportation corridors and infrastructure (e.g., electricity, natural gas, water, and
wastewater);
12. Nearby land use and features (e.g., residences, industrial facilities, and recreational areas);
13. Areas with special designation both on the Project location and nearby, including national
forests, historic or culturally significant sites, wetlands, floodplains, critical habitat for
42
Attachment B – NEPA Guide
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
designated threatened or endangered species or the presence of those species, prime and
unique farmland; and
14. Near-by human populations (including minority and low-income).
B. Resource Consumption Rates and Effluent Emissions Streams and Impacts.
1. For both construction and operation, describe and, as appropriate, identify and quantify:
a) Material resources to be used, including how they would be transported;
b) Source(s) and rates of water consumption and adequacy of water supply sources;
c) Onsite and offsite releases (air emissions, including carbon dioxide, odors; water
effluents and other liquid waste streams; solid and hazardous waste), including rate and
duration of such substances as criteria pollutants, wastewater, and hazardous
substances;
d) Onsite and offsite waste treatment and disposal; and
e) Number of on-site workers.
2. Identify a spectrum of scenarios that could result from process upsets or accidents.
3. Expected impacts to physical, biological, cultural, and socioeconomic resources from
facility construction and operation.
C. Status of other environmental and regulatory reviews. Such status reports should include,
but not be limited to:
1. If the Project would require review or permitting by another federal agency or by a state,
regional, or local agency, identify the required reviews and permits and tell the status of
each; and
2. If an environmental impact review (e.g., NEPA documentation or agency consultations) has
been prepared (or is in the process of being prepared or is anticipated) for the Project (by
another federal agency or a state agency), provide a summary or copy of the review.
D. Alternative sites or operating parameters. Please identify:
1. Any other sites considered for the Project, and state whether they remain options or give
the reasons for not proposing them; and
2. Any alternative operating parameters for the Project (e.g. materials or processes to be used)
and state whether they remain options or give the reasons why options are not available.
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Attachment B – NEPA Guide
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
ATTACHMENT C – Applicable Provisions of Title XVII Rule
§ 609.2 Definitions and interpretation.
(a)
Definitions. When used in this part the following words have the following meanings.
Act means Section 2602(c) of the Energy Policy Act of 1992, as amended (25 USC Section 3502(c)).
Administrative Cost of Issuing a Loan Guarantee means the total of all administrative expenses that DOE
incurs during:
(1)
The evaluation of an Application for a loan guarantee;
(2)
The negotiation and offer of a Term Sheet;
(3)
The negotiation of a Loan Guarantee Agreement and related documents, including the
issuance of a Guarantee; and
(4)
The servicing and monitoring of a Loan Guarantee Agreement, including during the
construction, startup, commissioning, shakedown, and operational phases of an Eligible
Project.
Applicant means a Person […] that submits and Application to DOE. [The terms “Applicant” and
“Lender Applicant” are used interchangeably in this Solicitation].
Application means a written submission of materials responsive the requirements of this Solicitation
including Section 609.4 of this Attachment.
Application Fee means the fee or fees required to be paid by an Applicant in connection with submission
of an Application and specified in a Solicitation. The Application Fee does not include the Credit
Subsidy Cost.
Attorney General means the Attorney General of the United States.
Borrower means any Person that is a borrower under a Loan Agreement.
Cargo Preference Act means the Cargo Preference Act of 1954, 46 U.S.C 55305, as amended.
Commercial Technology. [Intentionally omitted]
Conditional Commitment means a Term Sheet offered by DOE and accepted by the offeree of the Term
Sheet, all in accordance with § 609.6(c); provided, that the Secretary may terminate a Conditional
Commitment for any reason at any time prior to the execution of the Loan Guarantee Agreement; and
provided, further, that the Secretary may not delegate this authority to terminate a Conditional
Commitment.
Contracting Officer means the Secretary of Energy or a DOE official authorized by the Secretary to enter
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Attachment C – Applicable Provisions of Title XVII Rule
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
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, which is the net present value, at the time the Loan Guarantee
Agreement is executed, of the following estimated cash flows, discounted to the point of disbursement:
Davis-Bacon Act means subchapter IV of chapter 31 of title 40, United States Code.
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 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 the Act and these regulations;
(2)
(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
[Intentionally omitted]
Eligible Project has the meaning set forth in Section II.B of the Solicitation.
Equity means cash 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. Equity does
not include proceeds from the non-guaranteed portion of a Guaranteed Obligation, proceeds from any
other non-guaranteed loan or obligation, or the value of any government assistance or support.
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 Issuing a Loan Guarantee for the period from the Applicant’s acceptance
of the Term Sheet through issuance of the Guarantee.
Federal Financing Bank [Intentionally omitted]
Guarantee means the undertaking of the United States of America, acting through the Secretary pursuant
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Attachment C – Applicable Provisions of Title XVII Rule
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
to the Act, 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 part of the payment of principal and interest under a Loan Guarantee Agreement
entered into pursuant to the Act.
Holder means any Person that holds a promissory note made by the Borrower evidencing the Guaranteed
Obligation (or his designee or agent).
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 an Eligible
Lender, establishes the obligation of DOE to guarantee the payment of a portion of the principal of, and
interest on, specified Guaranteed Obligations, subject to the terms and conditions specified in the Loan
Guarantee Agreement.
New or Significantly Improved Technology [Intentionally omitted]
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 to be 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(a). Project Costs do not include costs for the items set forth in § 609.10(b).
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.
Risk-Based Charge means a charge that, together with the principal and interest on the guaranteed loan, 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.
Solicitation means this Solicitation, as the same may be modified or supplemented from time to time.
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Attachment C – Applicable Provisions of Title XVII Rule
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
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 offeree, that sets forth
the detailed terms and conditions under which DOE and the Applicant will execute a Loan Guarantee
Agreement.
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.
(b)
Interpretations. This part shall be interpreted using the following guidelines.
(1)
The word “discretion” when used with reference to DOE, including the Secretary, means
“sole discretion.”
(2)
Defined terms in the singular shall include the plural and vice versa, and the masculine,
feminine or neuter gender shall include all genders.
(3)
The word “or” is not exclusive.
(4)
References to laws by name or popular name are references to the version of such law
appearing in the United States Code and include any amendment, supplement or modification
of such law, and all regulations, rulings, and other laws promulgated thereunder.
(5)
References to information or documents required or allowed to be submitted to DOE mean
information or documents that are marked as provided in 10 CFR 600.15(b). A document or
information that is not marked as provided in 10 CFR 600.15(b) will not be considered as
having been submitted to or received by DOE.
(6)
A reference to a Person includes such Person’s successors and permitted assigns.
(7)
The words “include,” “includes” and “including” are not limiting and mean include, includes
and including “without limitation” and “without limitation by specification.”
(8)
The words “hereof,” “herein” and “hereunder” and words of similar import refer this part as a
whole and not to any particular provision of this part.
§ 609.3 Solicitations.
(a)
[Intentionally omitted]
(b)
[Intentionally omitted]
(c)
Using procedures as may be announced by DOE a potential Applicant or Borrower may request a
meeting with DOE to discuss a potential Application. At its discretion, DOE may meet with a
potential Applicant or Borrower, either in person or electronically, to discuss a potential
Application. DOE may provide a potential Applicant or Borrower with a preliminary response
regarding whether its proposed project may constitute an Eligible Project. DOE’s responses to
questions from potential Applicants and Borrowers and DOE’s statements to potential Applicants
and Borrowers are pre-decisional and preliminary in nature. Any such responses and statements are
subject in their entirety to any final action by DOE with respect to an Application submitted in
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Attachment C – Applicable Provisions of Title XVII Rule
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Tribal Energy Development Projects
accordance with § 609.4.
§ 609.4 Submission of applications.
(a)
[Intentionally omitted]
(b)
[Intentionally omitted]
(c)
An Application must include, at a minimum, the following information and materials:
(1)
A completed Application form signed by an individual with full authority to bind the
Applicant, including the commitments and representations made in each part of the
Application;
(2)
The applicable Application Fee;
(3)
[Intentionally omitted];
(4)
A description of the nature and scope of the proposed project, including:
(i)
Key project milestones;
(ii)
Location or locations of the proposed project;
(iii) Identification and commercial feasibility of the technology to be deployed;
(5)
An explanation of how the proposed project qualifies as an Eligible Project;
(6)
A detailed estimate of the total Project Costs together with a description of the methodology
and assumptions used;
(7)
A detailed description of the engineering and design contractor(s), construction contractor(s),
and equipment supplier(s);
(8)
The construction schedules for the proposed project, including major activity and cost
milestones;
(9)
A description of the material terms and conditions of the development and construction
contracts to include the performance guarantees, performance bonds, liquidated damages
provisions, and equipment warranties;
(10) A detailed description of the operations and maintenance provider(s), the plant operating
plan, estimated staffing requirements, parts inventory, major maintenance schedule, estimated
annual downtime, and performance guarantees and related liquidated damage provisions, if
any;
(11) A description of the management plan of operations to be employed in carrying out the
proposed project, and information concerning the management experience of each officer or
key person associated with the proposed project;
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Attachment C – Applicable Provisions of Title XVII Rule
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Tribal Energy Development Projects
(12) A detailed description of the proposed project decommissioning, deconstruction, and disposal
plan, and the anticipated costs associated therewith;
(13) An analysis of the market for any product (including but not limited to electricity and
chemicals) to be produced by, or services to be provided by, the proposed project, including
relevant economics justifying the analysis, and copies of
(i)
Any contracts for the sale of such products or the provision of such services, or
(ii)
Any other assurance of the revenues to be generated from sale of such products or
provision of such services;
(14) A detailed description of the overall financial plan for the proposed project, including all
sources and uses of funding, equity and debt, and the liability of parties associated with the
proposed project over the term of the Loan Guarantee Agreement;
(15) A copy of all material agreements, whether entered into or proposed, relevant to the
investment, design, engineering, financing, construction, startup commissioning, shakedown,
operations and maintenance of the proposed project;
(16) A copy of the financial closing checklist for the equity and debt to the extent available;
(17) The business plan on which the proposed project is based and the financial model with
respect to the proposed project for the proposed term of the Guaranteed Obligations,
including, as applicable, pro forma income statements, balance sheets, and cash flows. All
such information and data must include assumptions made in their preparation and the range
of revenue, operating cost, and credit assumptions considered;
(18) Financial statements for the three immediately preceding fiscal years of the Borrower (or
such shorter period as the Borrower has been in existence) that have been audited by an
independent certified public accounting firm, including all associated certifications, notes and
letters to management, as well as interim financial statements and notes for the current fiscal
year for the Borrower and all other Persons the credit of which is material to the success of
the transactions described in the Application;
(19) A copy of all legal opinions, and other material reports, analyses, and reviews related to the
proposed project that have been delivered prior to submission of any part of the Application;
(20) An independent engineering report prepared by an engineer with experience in the industry
and familiarity with similar projects. The report should address the proposed project's siting
and permitting arrangements, engineering and design, contractual requirements,
environmental compliance, testing, commissioning and operations, and maintenance;
(21) A credit history of the Borrower and each Project Sponsor;
(22) The Applicant’s credit assessment for the proposed project, without a loan guarantee;
(23) A list showing the status of and estimated completion date of required applications for
federal, state, and local permits, authorizations or approvals to site, construct, and operate the
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Attachment C – Applicable Provisions of Title XVII Rule
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
proposed project;
(24) A report containing an analysis of the potential environmental impacts of the proposed
project that will enable DOE to—
(i)
Assess whether the proposed project will comply with all applicable environmental
requirements; and
(ii)
Undertake and complete any necessary reviews under the National Environmental
Policy Act of 1969;
(25) A listing and description of the assets of or to be utilized for the benefit of the proposed
project, and of any other asset that will serve as collateral pledged in respect of the
Guaranteed Obligations, including appropriate data as to the value of such assets and the
useful life of any physical assets. With respect to real property assets listed, an appraisal that
is consistent with the “Uniform Standards of Professional Appraisal Practice,” promulgated
by the Appraisal Standards Board of the Appraisal Foundation, and performed by licensed or
certified appraisers, is required;
(26) An analysis demonstrating that, at the time of the Application, there is a reasonable prospect
that Borrower will be able to repay the Guaranteed Obligations (including interest) according
to their terms, and a complete description of the operational and financial assumptions and
methodologies on which this demonstration is based; and
(27) If proposed project assets or facilities are or will be jointly owned by the Borrower and one or
more other Persons, each of which owns an undivided ownership interest in such proposed
project assets or facilities, a description of the Borrower’s rights and obligations in respect of
its undivided ownership interest in such proposed project assets or facilities.
(d)
During the Application evaluation process pursuant to § 609.5, DOE may request additional
information, potentially including a preliminary credit rating or credit assessment from a credit
rating agency, with respect to the proposed project.
(e)
DOE will not consider any part of any Application or the Application as a whole complete unless
the Application Fee (or the required portion of the Application Fee related to a particular part of the
Application) has been paid. An Application Fee paid in connection with one Application is not
transferable to another Application. Except in the discretion of DOE, no portion of the Application
Fee is refundable;
(f)
DOE has no obligation to evaluate an Application that is not complete, and may proceed with such
evaluation, or a partial evaluation, only in its discretion.
(g)
Unless an Applicant requests an extension and such an extension is granted by DOE in its
discretion, an Application may be rejected if it is not complete within four years from the date of
submission (or date of submission of the first part thereof, in the case of Applications made in more
than one part).
(h)
Upon making a determination to engage independent consultants or outside counsel with respect to
an Application, DOE will proceed to evaluate and process such Application only following
execution by the Applicant or Project Sponsor, as appropriate, of an agreement satisfactory to DOE
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to pay the fees and expenses charged by the independent consultants and outside legal counsel.
§ 609.5 Programmatic, technical and financial evaluation of applications.
(a)
(b)
In reviewing completed Applications, and in prioritizing and selecting those as to which a Term
Sheet should be offered, DOE will apply the criteria set forth in the Act, the Solicitation, and this
Attachment C. Applications will be considered in a competitive process, i.e. each Application will
be evaluated against other Applications responsive to the Solicitation. Applications will be denied
if:
(1)
The proposed project is not an Eligible Project;
(2)
[Intentionally omitted]
(3)
The Person proposed to issue the loan or purchase other debt obligations constituting the
Guaranteed Obligations is not an Eligible Lender;
(4)
[Intentionally omitted]
(5)
Significant Equity for the proposed project will not be provided by the date of issuance of the
Guaranteed Obligations, or such later time as DOE in its discretion may determine; or
(6)
The proposed project does not present a reasonable prospect of repayment of the Guaranteed
Obligations.
If an Application has not been denied pursuant to § 609.5(a), DOE will evaluate the proposed
Project based on the criteria set forth in the Act, the Solicitation and the following:
(1)
[Intentionally omitted]
(2)
[Intentionally omitted]
(3)
[Intentionally omitted]
(4)
The extent to which the level of proposed support in the Application is consistent with a
reasonable prospect of repayment of the Guaranteed Obligations by considering, among other
factors:
(i)
The extent to which the requested amount of the loan guarantee, the requested amount
of Guaranteed Obligations and, if applicable, the expected amount of any other
financing or credit arrangements, are reasonable relative to the nature and scope of the
proposed project;
(ii)
The total amount and nature of the Project Costs and the extent to which Project Costs
are to be funded by Guaranteed Obligations; and
(iii) The feasibility of the proposed project and likelihood that it will produce sufficient
revenues to service its debt obligations over the life of the loan guarantee and assure
timely repayment of Guaranteed Obligations;
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(5)
The likelihood that the proposed project will be ready for full commercial operations in the
time frame stated in the Application;
(6)
The amount of Equity committed and to be committed to the proposed project by the
Borrower, the Project Sponsor, and other Persons;
(7)
Whether there is sufficient evidence that the Borrower will diligently implement the proposed
project, including initiating and completing the proposed project in a timely manner;
(8)
Whether and to what extent the Borrower will rely upon other Federal and non-Federal
Government assistance such as grants, tax credits, or other loan guarantees to support the
financing, construction, and operation of the proposed project and how such assistance will
impact the proposed project;
(9)
The levels of safeguards provided to the Federal Government in the event of default through
collateral, warranties, and other assurance of repayment described in the Application,
including the nature of any anticipated intercreditor arrangements;
(10) The Borrower's, or the relevant contractor’s, capacity and expertise to operate the proposed
project successfully, based on factors such as financial soundness, management organization,
and the nature and extent of corporate and individual experience;
(11) The ability of the proposed Borrower to ensure that the proposed project will comply with all
applicable laws and regulations, including all applicable environmental statutes and
regulations;
(12) The levels of market, regulatory, legal, financial, technological, and other risks associated
with the proposed project and their appropriateness for a loan guarantee provided by DOE;
(13) Whether the Application contains sufficient information, including a detailed description of
the nature and scope of the proposed project and the nature, scope, and risk coverage of the
loan guarantee sought to enable DOE to perform a thorough assessment of the proposed
project; and
(14) Such other criteria that DOE deems relevant in evaluating the merits of an Application.
(c)
After DOE completes its review and evaluation of a proposed project pursuant to § 609.5(b) and
this part, DOE will notify the Applicant in writing of its determination whether to proceed with due
diligence and negotiation of a Term Sheet in accordance with § 609.6. DOE will proceed only if it
determines that the proposed project is highly qualified and suitable for a Guarantee. Upon written
confirmation from the Applicant that it desires to proceed, DOE and the Applicant will commence
negotiations.
(d)
A determination by DOE not to proceed with a proposed project following evaluation pursuant to §
609.5(b) shall be final and non-appealable, but shall not prejudice the Applicant or other affected
Persons from applying for a Guarantee in respect of a different proposed project pursuant to
another, separate Application.
§ 609.6 Term sheets and conditional commitments.
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(a)
DOE, after negotiation of a Term Sheet with an Applicant, may offer such Term Sheet to an
Applicant or such other Person that is an affiliate of the Applicant and that is acceptable to DOE.
DOE’s offer of a Term Sheet shall be in writing and signed by the Contracting Officer. DOE’s
negotiation of a Term Sheet imposes no obligation on the Secretary to offer a Term Sheet to the
Applicant.
(b)
DOE shall terminate its negotiations of a Term Sheet if it has not offered a Term Sheet in respect of
an Eligible Project within four years after the date of the written notification set forth in § 609.5(c),
unless extended in writing in the discretion of the Contracting Officer.
(c)
If and when the offeree specified in a Term Sheet satisfies all terms and conditions for acceptance
of the Term Sheet, including written acceptance thereof and payment of all fees specified in §
609.11(f) and therein to be paid at or prior to acceptance of the Term Sheet, the Term Sheet shall
become a Conditional Commitment. Each Conditional Commitment shall include an expiration
date no more than two years from the date it is issued, unless extended in writing in the discretion
of the Contracting Officer. When and if all of the terms and conditions specified in the Conditional
Commitment have been met, DOE and the Applicant may enter into a Loan Guarantee Agreement.
(d)
If, subsequent to execution of a Conditional Commitment, the financing arrangements of the
Borrower, or in respect of an Eligible Project, change from those described in the Conditional
Commitment, the Applicant shall promptly provide updated financing information in writing to
DOE. All such updated information shall be deemed to be information submitted in connection
with an Application and shall be subject to § 609.4(b). Based on such updated information, DOE
may take one or more of the following actions:
(1)
Determine that such changes are not material to the Borrower, the Eligible Project or DOE;
(2)
Amend the Conditional Commitment accordingly;
(3)
Postpone the expected closing date of the associated Loan Guarantee Agreement; or
(4)
Terminate the Conditional Commitment.
§ 609.7 Closing on the loan guarantee agreement.
(a)
Subsequent to entering into a Conditional Commitment with an Applicant, DOE, after consultation
with the Applicant, will set a closing date for execution of a Loan Guarantee Agreement.
(b)
Prior to or on the closing date of a Loan Guarantee Agreement, DOE will ensure that:
(1)
An appropriation for the Credit Subsidy Cost has been made;
(2)
DOE has received from the Applicant the Facility Fee referred to in § 609.11(b);
(3)
OMB has reviewed and approved DOE's calculation of the Credit Subsidy Cost of the
Guarantee;
(4)
The Department of the Treasury has been consulted as to rate of interest charged to the
Borrower on the Guaranteed Obligation;
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(5)
The Loan Guarantee Agreement and related documents contain all terms and conditions DOE
deems reasonable and necessary to protect the interest of the United States;
(6)
Each holder of the Guaranteed Obligations is an Eligible Lender, and the servicer of the
Guaranteed Obligations meets the servicing performance requirements of § 609.9(b);
(7)
[Intentionally omitted]
(8)
All conditions precedent specified in the Conditional Commitment are either satisfied or
waived by the Contracting Officer and all other applicable contractual, statutory, and
regulatory requirements have been satisfied or waived by the Contracting Officer. If the
counterparty to the Conditional Commitment has not satisfied all such terms and conditions
on or prior to the closing date of the Loan Guarantee Agreement, the Secretary may, in his
discretion, set a new closing date, or terminate the Conditional Commitment; and
(9)
Prior to Closing, the Applicant must provide a credit rating from a nationally recognized
rating agency reflecting the Conditional Commitment for the Project without a Federal
guarantee, or another indication of the credit strength of the Project acceptable to DOE in its
sole discretion. If a credit rating is required, an updated rating must be provided to the
Secretary not later than 30 days prior to closing.
§ 609.8 Loan guarantee agreement.
(a)
Only a Loan Guarantee Agreement executed by the Contracting Officer can obligate DOE to issue a
Guarantee in respect of Guaranteed Obligations.
(b)
DOE is not bound by oral representations.
(c)
Each Loan Guarantee Agreement shall contain the following requirements and conditions, and shall
not be executed until the Contracting Officer determines that the following requirements and
conditions are satisfied:
(1)
The guaranteed portion of a loan may be separated from or “stripped” from the nonguaranteed portion of the Guaranteed Obligation, if the loan is participated, syndicated or
otherwise resold in the secondary debt market;
(2)
The Borrower shall be obligated to make full repayment of the principal and interest on the
Guaranteed Obligations and other debt of a Borrower over a period of up to the lesser of 30
years or 90 percent of the projected useful life of the Eligible Project's major physical assets,
as calculated in accordance with U.S. generally accepted accounting principles and practices.
The non-guaranteed portion (if any) of any Guaranteed Obligations must be repaid pro rata,
and on the same amortization schedule, with the guaranteed portion.
(3)
If any financing or credit arrangement of the Borrower or relating to the Eligible Project,
other than the Guaranteed Obligations, has an amortization period shorter than that of the
Guaranteed Obligations, DOE shall have determined that the resulting financing structure
allocates to DOE a reasonably proportionate share of the default risk, in light of:
(i)
DOE's share of the total debt financing of the Borrower,
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(ii)
Risk allocation among the credit providers to the Borrower, and
(iii) Internal and external credit enhancements.
(4)
The loan guarantee is consistent with the requirements of section 149(b) of the Internal
Revenue Code with respect to federal financing, directly or indirectly, of tax-exempt debt;
(5)
The principal amount of the Guaranteed Obligations, when combined with funds from other
sources committed and available to the Borrower, shall be sufficient to pay for expected
Project Costs (including adequate contingency amounts), the applicable items specified in §
609.10(b), and otherwise to carry out the Eligible Project;
(6)
There shall be a reasonable prospect of repayment by the Borrower of the principal of and
interest on the Guaranteed Obligations and all of its other debt obligations;
(7)
The Borrower shall pledge collateral or surety determined by DOE to be necessary to secure
the repayment of the Guaranteed Obligations. Such collateral or security may include
Eligible Project assets and assets not related to the Eligible Project;
(8)
The Loan Guarantee Agreement and related documents shall include detailed terms and
conditions that DOE deems necessary and appropriate to protect the interests of the United
States in the case of default, including ensuring availability of all relevant intellectual
property rights, technical data including software, and technology necessary for DOE or any
Person selected by DOE, to complete, operate, convey, and dispose of the defaulted Borrower
or the Eligible Project;
(9)
The Guaranteed Obligations shall not be subordinate to other financing. Guaranteed
Obligations are not subordinate to other financing if the lien on property securing the
Guaranteed Obligations, together with liens that are pari passu with such lien, if any, take
priority or precedence over other charges or encumbrances upon the same property and must
be satisfied before such other charges are entitled to participate in proceeds of the property's
sale. In DOE’s discretion, Guaranteed Obligations may share a lien position with other
financing;
(10) There is satisfactory evidence that the Borrower will diligently pursue the Eligible Project
and is willing, competent, and capable of performing its obligations under the Loan
Guarantee Agreement and the loan documentation relating to its other debt obligations;
(11) The Borrower shall have paid all fees and expenses due to DOE or the U.S. Government,
including such amount of the Credit Subsidy Cost as may be due and payable from the
Borrower pursuant to the Conditional Commitment, upon execution of the Loan Guarantee
Agreement;
(12) The Borrower, any Eligible Lender, and each other relevant party shall take, and be obligated
to continue to take, those actions necessary to perfect and maintain liens on collateral in
respect of the Guaranteed Obligations;
(13) DOE or its representatives shall have access to the offices of the Borrower and the Eligible
Project site at all reasonable times in order to monitor the—
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(i)
Performance by the Borrower of its obligations under the Loan Guarantee Agreement;
and
(ii)
Performance of the Eligible Project;
(14) DOE and Borrower have reached an agreement regarding the information that will be made
available to DOE and the information that will be made publicly available;
(15) The Borrower shall have filed applications for or obtained any required regulatory approvals
for the Eligible Project and is in compliance, or promptly will be in compliance, where
appropriate, with all Federal, state, and local regulatory requirements;
(16) The Borrower shall have no delinquent Federal debt;
(17) The Project Sponsors have made or will make a significant Equity investment in the
Borrower or the Eligible Project, and will maintain control of the Borrower or the Eligible
Project as agreed in the LGA; and
(18) The Loan Guarantee Agreement and related agreements shall include such other terms and
conditions as DOE deems necessary or appropriate to protect the interests of the United
States.
(d)
(e)
(f)
The Loan Guarantee Agreement shall provide that, in the event of a default by the Borrower:
(1)
Interest on the Guaranteed Obligations shall accrue at the rate stated in the Loan Guarantee
Agreement or the Loan Agreement, until DOE makes full payment of the defaulted
Guaranteed Obligations, and DOE shall not be required to pay any premium, default
penalties, or prepayment penalties; and
(2)
The holder of collateral pledged in respect of the Guaranteed Obligations shall be obligated to
take such actions as DOE may reasonably require to provide for the care, preservation,
protection, and maintenance of such collateral so as to enable the United States to achieve
maximum recovery.
(1)
An Eligible Lender or other Holder may sell, assign or transfer a Guaranteed Obligation to
another Eligible Lender that meets the requirements of § 609.9. Such latter Eligible Lender
shall be required to assume all servicing, monitoring and reporting requirements as provided
in the Loan Guarantee Agreement. Any transfer of the servicing, monitoring, and reporting
functions shall be subject to the prior written approval of DOE.
(2)
The Secretary, or the Secretary's designee or contractual agent, for the purpose of identifying
Holders with the right to receive payment under the Guaranteed Obligations, shall include in
the Loan Guarantee Agreement or related documents a procedure for tracking and identifying
Holders of Guaranteed Obligations. Any contractual agent approved by the Secretary to
perform this function may transfer or assign this responsibility only with the Secretary’s prior
written approval.
Each Loan Guarantee Agreement shall require the Borrower to make representations and
warranties, agree to covenants, and satisfy conditions precedent to closing and to each disbursement
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that, in each case, relate to its compliance with the Davis-Bacon Act and the Cargo Preference Act,
to the extent required by applicable law.
(g)
The Applicant, the Borrower or the Project Sponsor must estimate, calculate, record, and provide to
DOE any time DOE requests such information and at the times provided in the Loan Guarantee
Agreement all costs incurred in the design, engineering, financing, construction, startup,
commissioning and shakedown of the Eligible Project in accordance with generally accepted
accounting principles and practices.
§ 609.9 Lender servicing requirements.
(a)
When reviewing and evaluating a proposed Eligible Project, all Eligible Lenders shall at all times
exercise the level of care and diligence that a reasonable and prudent lender would exercise when
reviewing, evaluating and disbursing a loan made by it without a Federal guarantee.
(b)
Loan servicing duties shall be performed by an Eligible Lender, DOE, or another qualified loan
servicer approved by DOE. When performing its servicing duties, the loan servicer shall at all
times exercise the level of care and diligence that a reasonable and prudent lender would exercise
when servicing a loan made without a Federal guarantee, including:
(1)
During the construction period, monitoring the satisfaction of all of the conditions precedent
to all loan disbursements, as provided in the Loan Guarantee Agreement, Loan Agreement or
related documents;
(2)
During the operational phase, monitoring and servicing the Guaranteed Obligations and
collection of the outstanding principal and accrued interest as well as undertaking to ensure
that the collateral package securing the Guaranteed Obligations remains uncompromised; and
(3)
Until the Guaranteed Obligation has been repaid, providing annual or more frequent financial
and other reports on the status and condition of the Guaranteed Obligations and the Eligible
Project, and promptly notifying DOE if it becomes aware of any problems or irregularities
concerning the Eligible Project or the ability of the Borrower to make payment on the
Guaranteed Obligations or its other debt obligations.
§ 609.10 Project costs.
(a)
Project Costs include:
(1)
Costs of acquisition, lease, or rental of real property, including engineering fees, surveys, title
insurance, recording fees, and legal fees incurred in connection with land acquisition, lease or
rental, site improvements, site restoration, access roads, and fencing;
(2)
Costs of engineering, architectural, legal and bond fees, and insurance paid in connection
with construction of the facility;
(3)
Costs of equipment purchases, including a reasonable reserve of spare parts to the extent
required;
(4)
Costs to provide facilities and services related to safety and environmental protection;
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(5)
Costs of financial, legal, and other professional services, including services necessary to
obtain required licenses and permits and to prepare environmental reports and data;
(6)
Costs of issuing Eligible Project debt, such as fees, transaction, and costs referred to in §
609.10(a)(5), and other customary charges imposed by Eligible Lenders;
(7)
Costs of necessary and appropriate insurance and bonds of all types including letters of credit
and any collateral required therefor;
(8)
Costs of design, engineering, startup, commissioning and shakedown;
(9)
Costs of obtaining licenses to intellectual property necessary to design, construct, and operate
the Eligible Project;
(10) To the extent required by the Loan Guarantee Agreement and not intended or available for
any cost referred to in §609.10(b), costs of funding any reserve fund, including without
limitation, a debt service reserve, a maintenance reserve, and a contingency reserve for cost
overruns during construction; provided that proceeds of a Guaranteed Loan deposited to any
reserve fund shall not be removed from such fund except to pay Project Costs, to pay
principal of the Guaranteed Loan, or otherwise to be used as provided in the Loan Guarantee
Agreement;
(11) Capitalized interest necessary to meet market requirements and other carrying costs during
construction; and
(12) Other necessary and reasonable costs.
(b)
Project Costs do not include:
(1)
Fees and commissions charged to Borrower, including finder's fees, for obtaining Federal or
other funds;
(2)
Parent corporation or other affiliated entity's general and administrative expenses, and nonEligible Project related parent corporation or affiliated entity assessments, including
organizational expenses;
(3)
Goodwill, franchise, trade, or brand name costs;
(4)
Dividends and profit sharing to stockholders, employees, and officers;
(5)
Research, development, and demonstration costs of readying an innovative technology for
employment in a commercial project;
(6)
Costs that are excessive or are not directly required to carry out the Eligible Project, as
determined by DOE;
(7)
Expenses incurred after startup, commissioning, and shakedown before the facility, or, in
DOE’s discretion, any portion of the facility, has been placed in service;
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(8)
[Intentionally omitted]; and
(9)
Operating costs.
§ 609.11 Fees and charges.
(a)
[Intentionally omitted]
(b)
DOE may charge Applicants a non-refundable Facility Fee, with a portion being payable on or prior
to the date on which the Applicant executes the Commitment Letter and the remainder being
payable on or prior to the closing date for the Loan Guarantee Agreement.
(c)
In order to encourage and supplement private lending activity DOE may collect from Borrowers for
deposit in the United States Treasury a non-refundable Risk-Based Charge which, together with the
interest rate on the Guaranteed Obligation that LPO determines to be appropriate, will take into
account the prevailing rate of interest in the private sector for similar loans and risks. The RiskBased Charge shall be paid at such times and in such manner as may be determined by DOE, but no
less frequently than once each year, commencing with payment of a pro-rated payment on the date
the Guarantee is issued. The amount of the Risk-Based Charge will be specified in the Loan
Guarantee Agreement.
(d)
DOE may collect a maintenance fee to cover DOE’s administrative expenses, other than
extraordinary expenses, incurred in servicing and monitoring a Loan Guarantee Agreement. The
maintenance fee shall accrue from the date of execution of the Loan Guarantee Agreement through
the date of payment in full of the related Guaranteed Obligations. If DOE determines to collect a
maintenance fee, it shall be paid by the Borrower each year (or portion thereof) in advance in the
amount specified in the applicable Loan Guarantee Agreement.
(e)
In the event a Borrower or an Eligible Project experiences difficulty relating to technical, financial,
or legal matters or other events (e.g., engineering failure or financial workouts), the Borrower shall
be liable as follows:
(f)
(1)
If such difficulty requires DOE to incur time or expenses beyond those customarily expended
to monitor and administer performing loans, DOE may collect an extraordinary expenses fee
from the Borrower that will reimburse DOE for such time and expenses, as determined by
DOE; and
(2)
For all fees and expenses of DOE’s independent consultants and outside counsel, to the extent
that such fees and expenses are elected to be paid by DOE notwithstanding the provisions of
paragraphs (f) and (g) of this section.
Each Applicant, Borrower or Project Sponsor, as applicable, shall be responsible for the payment of
all fees and expenses charged by DOE’s independent consultants and outside legal counsel in
connection with an Application, Conditional Commitment or Loan Guarantee Agreement, as
applicable. Upon making a determination to engage independent consultants or outside counsel
with respect to an Application, DOE will proceed to evaluate and process such Application only
following execution by an Applicant, Borrower or Project Sponsor, as appropriate, of an agreement
satisfactory to DOE to pay the fees and expenses charged by the independent consultants and
outside legal counsel. Appropriate provisions regarding payment of such fees and expenses shall
also be included in each Term Sheet and Loan Guaranty Agreement or, upon a determination by
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DOE, in other appropriate agreements.
(g)
Notwithstanding payment by Applicant, Borrower or Project Sponsor, all services rendered by an
independent consultant or outside legal counsel to DOE in connection with an Application,
Conditional Commitment or Loan Guarantee Agreement shall be solely for the benefit of DOE (and
such other creditors as DOE may agree in writing). DOE may require, in its discretion, the
payment of an advance retainer to such independent consultants or outside legal counsel as security
for the collection of the fees and expenses charged by the independent consultants and outside legal
counsel. In the event an Applicant, Borrower or Project Sponsor fails to comply with the
provisions of such payment agreement, DOE in its discretion, may stop work on or terminate an
Application, a Conditional Commitment or a Loan Guarantee Agreement, or may take such other
remedial measures in its discretion as it deems appropriate.
(h)
DOE shall not be financially liable under any circumstances to any independent consultant or
outside counsel for services rendered in connection with an Application, Conditional Commitment
or Loan Guarantee Agreement except to the extent DOE has previously entered into an express
written agreement to pay for such services.
§ 609.12 Full faith and credit and incontestability.
The full faith and credit of the United States is pledged to the payment of principal and interest of
Guaranteed Obligations pursuant to Guarantees issued in accordance with the Act, the Solicitation and
this Attachment C. The issuance by DOE of a Guarantee shall be conclusive evidence that it has been
properly obtained; that the underlying loan qualified for such Guarantee; and that, but for fraud or
material misrepresentation by the Holder, such Guarantee shall be legal, valid, binding and enforceable
against DOE in accordance with its terms.
§ 609.13 Default, demand, payment, and foreclosure on collateral.
(a)
If a Borrower defaults in making a required payment of principal or interest on a Guaranteed
Obligation and such default has not been cured within the applicable grace period, the Holder may
make written demand for payment upon the Secretary in accordance with the terms of the
applicable Guarantee. If a Borrower defaults in making a required payment of principal or interest
on a Guaranteed Obligation and such default has not been cured within the applicable grace period,
the Secretary shall notify the Attorney General.
(b)
Subject to the terms of the applicable Guarantee, the Secretary shall make payment within 60 days
after receipt of written demand for payment from the Holder, provided that the demand for payment
complies in all respects with the terms of the applicable Guarantee. Interest shall accrue to the
Holder at the rate stated in the promissory note evidencing the Guaranteed Obligation, without
giving effect to the Borrower’s default in making a required payment of principal or interest on the
applicable Guarantee Obligation or any other default by the Borrower, until the Guaranteed
Obligation has been fully paid by DOE. Payment by the Secretary on the applicable Guarantee
does not change Borrower’s obligations under the promissory note evidencing the Guaranteed
Obligation, Loan Guarantee Agreement, Loan Agreement or related documents, including an
obligation to pay default interest.
(c)
Following payment by the Secretary pursuant to the applicable Guarantee, upon demand by DOE,
the Holder shall transfer and assign to the Secretary (or his designee or agent) the promissory note
evidencing the Guaranteed Obligation, all rights and interests of the Holder in the Guaranteed
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Obligation, and all rights and interests of the Holder in respect of the Guaranteed Obligation, except
to the extent that the Secretary determines that such promissory note or any of such rights and
interests shall not be transferred and assigned to the Secretary. Such transfer and assignment shall
include, without limitation, all of the liens, security and collateral rights of the Holder (or his
designee or agent) in respect of the Guaranteed Obligation.
(d)
Following payment by the Secretary pursuant to a Guarantee or other default of a Guaranteed
Obligation, the Secretary is authorized to protect and foreclose on the collateral, take action to
recover costs incurred by, and all amounts owed to, the United States as a result of the defaulted
Guarantee Obligation, and take such other action necessary or appropriate to protect the interests of
the United States. In respect of any such authorized actions that involve a judicial proceeding or
other judicial action, the Secretary shall act through the Attorney General. The foregoing
provisions of this paragraph shall not relieve the Secretary from its obligations pursuant to any
applicable Intercreditor Agreement. Nothing in this paragraph shall limit the Secretary from
exercising any rights or remedies pursuant to the terms of the Loan Guarantee Agreement.
(e)
The cash proceeds received as a result of any foreclosure on the collateral, or other action, shall be
distributed in accordance with the Loan Guarantee Agreement (subject to any applicable
Intercreditor Agreement).
(f)
[Intentionally omitted]
(g)
No action taken by the Holder or its agent or designee in respect of any collateral will affect the
rights of any person, including the Secretary, having an interest in the Guaranteed Obligations or
other debt obligations, to pursue, jointly or severally, legal action against the Borrower or other
liable persons, for any amounts owing in respect of the Guaranteed Obligation or other applicable
debt obligations.
(h)
In the event that the Secretary considers it necessary or desirable to protect or further the interest of
the United States in connection with exercise of rights as a lien holder or recovery of deficiencies
due under the Guaranteed Obligation, the Secretary may take such action as he determines to be
appropriate under the circumstances.
(i)
Nothing in this part precludes, nor shall any provision of this part be construed to preclude, the
Secretary from purchasing any collateral or Holder's or other Person’s interest in the Eligible
Project upon foreclosure of the collateral.
(j)
Nothing in this part precludes, nor shall any provision of this part be construed to preclude,
forbearance by any Holder with the consent of the Secretary for the benefit of the Borrower and the
United States.
(k)
The Holder and the Secretary may agree to a formal or informal plan of reorganization in respect of
the Borrower, to include a restructuring of the Guaranteed Obligation and other applicable debt of
the Borrower on such terms and conditions as the Secretary determines are in the best interest of the
United States.
§ 609.14 Preservation of collateral.
(a)
If the Secretary exercises his right under the Loan Guarantee Agreement to require the holder of
pledged collateral to take such actions as the Secretary (subject to any applicable Intercreditor
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Agreement) may reasonably require to provide for the care, preservation, protection, and
maintenance of such collateral so as to enable the United States to achieve maximum recovery from
the collateral, the Secretary shall, subject to compliance with the Antideficiency Act, 31 U.S.C.
1341 et seq., reimburse the holder of such collateral for reasonable and appropriate expenses
incurred in taking actions required by the Secretary (unless otherwise provided in applicable
agreements). Except as provided in § 609.13, no party may waive or relinquish, without the
consent of the Secretary, any such collateral to which the United States would be subrogated upon
payment under the Loan Guarantee Agreement.
(b)
In the event of a default, the Secretary may enter into such contracts as he determines are required
or appropriate, taking into account the term of any applicable Intercreditor Agreement, to care for,
preserve, protect or maintain collateral pledged in respect of Guaranteed Obligations. The cost of
such contracts may be charged to the Borrower.
§ 609.15 Audit and access to records.
Each Loan Guarantee Agreement and related documents shall provide that:
(a)
The Eligible Lender or other Holder or other party servicing the Guaranteed Obligations, as
applicable, and the Borrower, shall keep such records concerning the Eligible Project as are
necessary, including the Application, Term Sheet, Conditional Commitment, Loan Guarantee
Agreement, Credit Agreement, mortgage, note, disbursement requests and supporting
documentation, financial statements, audit reports of independent accounting firms, lists of all
Eligible Project assets and non-Eligible Project assets pledged in respect of the Guaranteed
Obligations, all off-take and other revenue producing agreements, documentation for all Eligible
Project indebtedness, income tax returns, technology agreements, documentation for all permits and
regulatory approvals and all other documents and records relating to the Borrower or the Eligible
Project, as determined by the Secretary, to facilitate an effective audit and performance evaluation
of the Eligible Project; and
(b)
The Secretary and the Comptroller General, or their duly authorized representatives, shall have
access, for the purpose of audit and examination, to any pertinent books, documents, papers and
records of the Borrower, Eligible Lender or DOE or other Holder or other party servicing the
Guaranteed Obligation, as applicable. Such inspection may be made during regular office hours of
the Borrower, Eligible Lender or DOE or other Holder, or other party servicing the Eligible Project
and the Guaranteed Obligations, as applicable, or at any other time mutually convenient.
§ 609.16 Deviations.
(a)
To the extent that the requirements under this part are not specified by the Act or other applicable
statutes, DOE may authorize deviations from the requirements of this part upon:
(1)
Either receipt from the Applicant, Borrower or Project Sponsor, as applicable, of—
(i)
A written request that the Secretary deviate from one or more requirements; and
(ii)
A supporting statement briefly describing one or more justifications for such deviation;
or
(iii) A determination by the Secretary in his discretion to undertake a deviation;
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(b)
(2)
A finding by the Secretary that such deviation supports program objectives and the special
circumstances stated in the request make such deviation clearly in the best interest of the
Government; and
(3)
If the waiver would constitute a substantial change in the financial terms of the Loan
Guarantee Agreement and related documents, and DOE deems such consultation to be
required under the circumstances, consultation by DOE with OMB and/or the Secretary of the
Treasury.
If a deviation under this section results in an increase in the applicable Credit Subsidy Cost, such
increase shall be funded either by additional fees paid by means of an appropriations act.
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ATTACHMENT D – REQUIRED DAVIS-BACON PROVISIONS
I.
Definitions. For purposes of this Attachment D and Section 1 of Attachment E, the definitions set
forth in Section 5.2 of title 29 of the Code of Federal Regulations (CFR) are incorporated by reference
herein, some of which are set forth below, except to the extent modified below, in addition to certain
additional terms set forth below:
“Davis-Bacon Act Covered Contract” means any contract, agreement or other arrangement for the
“construction, prosecution, completion or repair” (as such term is defined below) of the Project (including
the Loan Agreement).
“Contract Party” means any contractor, subcontractor (including any lower tier subcontractor) or other
entity (other than the Borrower but including, if applicable, the project sponsor or affiliate) that is party to
a Davis-Bacon Covered Contract; it being understood that the foregoing exclusion of Borrower from the
definition of Contract Party in no way affects the Borrower’s Davis-Bacon Act obligations as set forth in
this Attachment.
“Construction, prosecution, completion, or repair” or “performance of the Project” means the following:
(1) (A) All types of work done on a particular building or work at the site thereof, including work at a
facility which is deemed a part of the site of the work within the meaning of (paragraph (l) of 29 CFR
5.2) by laborers and mechanics employed by a construction contractor or construction subcontractor,
including without limitation—
(i) Altering, remodeling, installation (where appropriate) on the site of the work of items fabricated
off-site;
(ii) Painting and decorating;
(iii) Manufacturing or furnishing of materials, articles, supplies or equipment on the site of the
building or work (or, under the United States Housing Act of 1937; the Housing Act of 1949; and
the Native American Housing Assistance and Self- Determination Act of 1996 in the construction
or development of the project); and
(iv) (a) Transportation between the site of the work within the meaning of paragraph (l)(1) of 29 CFR
5.2 and a facility which is dedicated to the construction of the building or work and deemed a part
of the site of the work within the meaning of paragraph (l)(2) of 29 CFR 5.2; and
(B) Transportation of portion(s) of the building or work between a site where a significant portion of such
building or work is constructed, which is a part of the site of the work within the meaning of
paragraph (l)(1) of 29 CFR 5.2, and the physical place or places where the building or work will
remain.
(2) Except as provided in paragraph (j)(1)(iv)(A) of 29 CFR 5.2, the transportation of materials or
supplies to or from the site of the work by employees of the construction contractor or a construction
subcontractor is not “construction, prosecution, completion, or repair”.
“Contracting officer” means the individual, a duly appointed successor, or authorized representative who
is designated and authorized to enter into contracts on behalf of the Federal agency or any representative
designated by DOE to the Borrower from time to time for purposes of Davis-Bacon Act compliance.
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“Laborer or mechanic” includes at least those workers whose duties are manual or physical in nature
(including those workers who use tools or who are performing the work of a trade), as distinguished from
mental or managerial. The term laborer or mechanic includes apprentices, trainees, and helpers. The term
does not apply to workers whose duties are primarily administrative, executive, or clerical, rather than
manual. Persons employed in a bona fide executive, administrative, or professional capacity as defined in
part 541 of title 29 of the Code of Federal Regulations are not deemed to be laborers or mechanics.
Working foremen who devote more than 20 percent of their time during a workweek to mechanic or
laborer duties, and who do not meet the criteria of part 541, are laborers and mechanics for the time so
spent.
“Site of the work” is defined as follows:
(1) The site of the work is the physical place or places where the building or work called for in the DavisBacon Act Covered Contract will remain; and any other site where a significant portion of the
building or work is constructed, provided that such site is established specifically for the performance
of such contract or project;
(2) Except as provided in (iii) of this definition, job headquarters, tool yards, batch plants, borrow pits,
etc., are part of the site of the work, provided they are dedicated exclusively, or nearly so, to
performance of the Davis-Bacon Act Covered Contract or project, and provided they are adjacent or
virtually adjacent to the site of the work as defined in clause (i) of this definition;
(3) Not included in the site of the work are permanent home offices, branch plant establishments,
fabrication plants, tool yards, etc., of the Borrower or a Contract Party whose location and
continuance in operation are determined wholly without regard to a particular Federal or federally
assisted contract, such as the Loan Agreement, or project. In addition, fabrication plants, batch plants,
borrow pits, job headquarters, tool yards, etc., of a commercial or material supplier, which are
established by a supplier of materials for the project before opening of bids and not on the site of the
work as stated in clause (i) of this definition, are not included in the site of the work. Such permanent,
previously established facilities are not part of the site of the work, even where the operations for a
period of time may be dedicated exclusively, or nearly so, to the performance of a Davis- Bacon Act
Covered Contract.
“Wage determination” includes the original decision and any subsequent decisions modifying,
superseding, correcting, or otherwise changing the provisions of the original decision. The application of
the wage determination shall be in accordance with the provisions of Sec. 1.6 of title 29 of the Code of
Federal Regulations.
II.
Other Required Provisions.
(A) Minimum wages.
(i) All laborers and mechanics employed or working on the site of the work, will be paid
unconditionally and not less often than once a week, and without subsequent deduction or
rebate on any account (except such payroll deductions as are permitted by regulations issued
by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages
and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed
at rates not less than those contained in the wage determination of the Secretary of Labor
which is attached hereto as Schedule X and made a part hereof, regardless of any contractual
relationship which may be alleged to exist between the Borrower and such laborers and
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mechanics, or between any Contract Party and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section
1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid
to such laborers or mechanics, subject to the provisions of Section II(A)(iv) of this
Attachment; also, regular contributions made or costs incurred for more than a weekly period
(but not less often than quarterly) under plans, funds, or programs which cover the particular
weekly period, are deemed to be constructively made or incurred during such weekly period.
Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on
the wage determination for the classification of work actually performed, without regard to
skill, except as provided in Section II(D) below. Laborers or mechanics performing work in
more than one classification may be compensated at the rate specified for each classification
for the time actually worked therein: Provided, that the employer's payroll records accurately
set forth the time spent in each classification in which work is performed. The wage
determination (including any additional classification and wage rates conformed under
Section II(A)(ii) of this Attachment) and the Davis-Bacon poster (WH- 1321) shall be posted
at all times by the Borrower and each Contract Party at the site of the work in a prominent
and accessible place where it can be easily seen by the workers.
(ii)(a) The contracting officer shall require that any class of laborers or mechanics, including
helpers, which is not listed in the wage determination and which is to be employed under
the Davis- Bacon Act Covered Contract shall be classified in conformance with the wage
determination. The contracting officer shall approve an additional classification and wage
rate and fringe benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by
a classification in the wage determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a
reasonable relationship to the wage rates contained in the wage
determination.
(b) If the Borrower or any Contract Party, as the case may be, and the respective laborers and
mechanics to be employed in the classification (if known), or their representatives, and
the contracting officer agree on the classification and wage rate (including the amount
designated for fringe benefits where appropriate), a report of the action taken shall be
sent by the contracting officer to the Administrator of the Wage and Hour Division,
Employment Standards Administration, U.S. Department of Labor, Washington, DC
20210. The Administrator, or an authorized representative, will approve, modify, or
disapprove every additional classification action within 30 days of receipt and so advise
the contracting officer or will notify the contracting officer within the 30-day period that
additional time is necessary.
(c) In the event the Borrower or any Contract Party, as the case may be, the laborers or
mechanics to be employed in the classification or their representatives, and the
contracting officer do not agree on the proposed classification and wage rate (including
the amount designated for fringe benefits, where appropriate), the contracting officer
shall refer the questions, including the views of all interested parties and the
recommendation of the contracting officer, to the Administrator for determination. The
Administrator, or an authorized representative, will issue a determination within 30 days
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of receipt and so advise the contracting officer or will notify the contracting officer
within the 30- day period that additional time is necessary.
(d) The wage rate (including fringe benefits where appropriate) determined pursuant to
Sections II(A)(ii) (b) or (c) of this Attachment, shall be paid to all workers performing
work in the classification under any Davis-Bacon Act Covered Contract from the first
day on which work is performed in the classification.
(iii) Whenever the minimum wage rate prescribed in any Davis-Bacon Act Covered Contract for a
class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly
rate, the Borrower or any Contract Party shall either pay the benefit as stated in the wage
determination or shall pay another bona fide fringe benefit or an hourly cash equivalent
thereof.
(iv) If the Borrower or any Contract Party does not make payments to a trustee or other third
person, the Borrower or any Contract Party may consider as part of the wages of any laborer
or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe
benefits under a plan or program; provided, that the Secretary of Labor has found, upon the
written request of the Borrower or any Contract Party, that the applicable standards of the
Davis-Bacon Act have been met. The Secretary of Labor may require the Borrower or any
Contract Party to set aside in a separate account assets for the meeting of obligations under
the plan or program.
(B) Withholding.
The DOE contracting officer shall upon its own action or upon written request of an authorized
representative of the Department of Labor withhold or cause to be withheld from the Borrower or a
Contract Party, as the case may be, under this Contract or any other Federal contract with the same
Borrower or Contract Party, or any other federally-assisted contract subject to Davis-Bacon prevailing
wage requirements, which is held by the same Borrower or Contract Party, so much of the accrued
payments or advances as may be considered necessary to pay laborers and mechanics, including
apprentices, trainees, and helpers, employed or working on the site of the work the full amount of wages
required by the Contract. In the event of failure to pay any laborer or mechanic, including any apprentice,
trainee, or helper, employed or working on the site of the work, all or part of the wages required by the
Davis-Bacon Act Covered Contract, DOE may, after written notice to the Borrower take such action as
may be necessary to cause the suspension of any further disbursement under the DOE-Guaranteed Loan
until such violations have ceased, it being understood that any such suspension shall not affect the
validity of the DOE Guarantee on the portions of the DOE-Guaranteed Loan that have been disbursed
prior to the date of such suspension and remain outstanding as of such date.
(C) Payrolls and basic records.
(i) Payrolls and basic records relating thereto shall be maintained by the Borrower and each
Contract Party during the course of the work and preserved for a period of three years
thereafter for all of their respective laborers and mechanics employed or working at the
site of the work. Such records shall contain the name, address, and social security number
of each such worker, his or her correct classification, hourly rates of wages paid
(including rates of contributions or costs anticipated for bona fide fringe benefits or cash
equivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act),
daily and weekly number of hours worked, deductions made and actual wages paid.
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Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of
any laborer or mechanic include the amount of any costs reasonably anticipated in
providing benefits under a plan or program described in section 1(b)(2)(B) of the DavisBacon Act, the Borrower and each Contract Party shall maintain records which show that
the commitment to provide such benefits is enforceable, that the plan or program is
financially responsible, and that the plan or program has been communicated in writing to
the laborers or mechanics affected, and records which show the costs anticipated or the
actual cost incurred in providing such benefits. The Borrower and any Contract Party
employing apprentices or trainees under approved programs shall maintain written
evidence of the registration of apprenticeship programs and certification of trainee
programs, the registration of the apprentices and trainees, and the ratios and wage rates
prescribed in the applicable programs.
(ii)(a)
The Contract Party shall submit weekly for each week in which any Davis-Bacon
Act Covered Contract work is performed a copy of all payrolls to the Borrower. The
highest tier Contract Party is responsible for the submission of copies of payrolls by all
subcontractors and lower tier subcontractors. Unless otherwise directed by DOE, the
Borrower shall submit weekly for each week in which any Contract work is performed a
copy of all of its payrolls, as well as all payrolls of each Contract Party, to the DOE
contracting officer. The payrolls submitted shall set out accurately and completely all of
the information required to be maintained under Section II(C)(i) of this Attachment,
except that full social security numbers and home addresses shall not be included on
weekly transmittals. Instead the payrolls shall only need to include an individually
identifying number for each employee (e.g., the last four digits of the employee's social
security number). The required weekly payroll information may be submitted in any form
desired. Optional Form WH-347 is available for this purpose from the Wage and Hour
Division Web site at http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor
site. The Borrower is responsible for the submission of copies of its own payrolls and the
payrolls of each Contract Party, in each case, to the extent each employs laborers and
mechanics in the performance of the Project. Each Contract Party is responsible for the
submission of copies of payrolls by all subcontract or lower-tier Contract Parties. The
Borrower and each Contract Party shall maintain the full social security number and
current address of each of its own covered workers, and shall provide them upon request,
in the case of the Contract Party, to the Borrower, for transmission to the DOE or the
Wage and Hour Division of the Department of Labor for purposes of an investigation or
audit of compliance with prevailing wage requirements. It is not a violation of this
Section II(C)(ii)(a) of this Attachment. For a higher- tiered Contract Party to require a
lower-tiered Contract Party to provide addresses and social security numbers to such
Contract Party for its own records, without weekly submission to the DOE or the
Borrower.
(b) Each payroll submitted shall be accompanied by a “Statement of Compliance,” signed by
the Borrower or Contract Party or his or her agent who pays or supervises the payment of
the laborer or mechanic employed under the Davis-Bacon Act Covered Contract and shall
certify the following:
(1) That the payroll for the payroll period contains the information required to be
provided under Section II(C)(ii) of this Attachment, the appropriate information is
being maintained under Section II(C)(ii) of this Attachment, and that such
information is correct and complete;
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(2) That each laborer or mechanic (including each helper, apprentice, and trainee)
employed under the Davis-Bacon Act Covered Contract during the payroll period has
been paid the full weekly wages earned, without rebate, either directly or indirectly,
and that no deductions have been made either directly or indirectly from the full
wages earned, other than permissible deductions as set forth in Regulations, 29 CFR
part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage rates
and fringe benefits or cash equivalents for the classification of work performed, as
specified in the applicable wage determination incorporated into the Loan Agreement
and any other Davis-Bacon Act Covered Contract.
(c) The weekly submission of a properly executed certification set forth on the reverse side
of Optional Form WH-347 shall satisfy the requirement for submission of the “Statement
of Compliance” required by Section II(C)(ii)(b) of this Attachment.
(d) The falsification of any of the above certifications may subject the Borrower or any
Contract Party to civil or criminal prosecution under section 1001 of title 18 and section
3729 of title 31 of the United States Code.
(iii) The Borrower and each Contract Party shall make the records required under
subparagraph (b)(3)(i) of this Attachment available for inspection, copying, or
transcription by authorized representatives of the DOE or the Department of Labor, and
shall permit such representatives to interview employees during working hours on the
job. If the Borrower or any Contract Party fails to submit the required records or to make
them available, the DOE may, after written notice to the Borrower take such action as
may be necessary to cause the suspension of any further disbursement under the DOEGuaranteed Loan, it being understood that any such suspension shall not affect the
validity of the DOE Guarantee on the portions of the DOE-Guaranteed Loan that have
been disbursed prior to the date of such suspension and remain outstanding as of such
date. Furthermore, failure to submit the required records upon request or to make such
records available may be grounds for debarment action pursuant to 29 CFR 5.12.
(D) Apprentices and trainees.
(1)
Apprentices. Apprentices will be permitted to work at less than the predetermined rate for
the work they performed when they are employed pursuant to and individually registered in a bona fide
apprenticeship program registered with the U.S. Department of Labor, Employment and Training
Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State
Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of
probationary employment as an apprentice in such an apprenticeship program, who is not individually
registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer
and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary
employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any
craft classification shall not be greater than the ratio permitted to the Borrower or Contract Party as to the
entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate,
who is not registered or otherwise employed as stated above, shall be paid not less than the applicable
wage rate on the wage determination for the classification of work actually performed. In addition, any
apprentice performing work on the job site in excess of the ratio permitted under the registered program
shall be paid not less than the applicable wage rate on the wage determination for the work actually
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performed. Where a Borrower or Contract Party is performing construction on a project in a locality other
than that in which its program is registered, the ratios and wage rates (expressed in percentages of the
journeyman's hourly rate) specified in the Borrower or Contract Party 's registered program shall be
observed. Every apprentice must be paid at not less than the rate specified in the registered program for
the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the
applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the
provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits,
apprentices must be paid the full amount of fringe benefits listed on the wage determination for the
applicable classification. If the Administrator determines that a different practice prevails for the
applicable apprentice classification, fringes shall be paid in accordance with that determination. In the
event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship
Agency recognized by the Office, withdraws approval of an apprenticeship program, the Borrower or the
Contract Party will no longer be permitted to utilize apprentices at less than the applicable predetermined
rate for the work performed until an acceptable program is approved.
(2)
Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at
less than the predetermined rate for the work performed unless they are employed pursuant to and
individually registered in a program which has received prior approval, evidenced by formal certification
by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to
journeymen on the job site shall not be greater than permitted under the plan approved by the
Employment and Training Administration. Every trainee must be paid at not less than the rate specified in
the approved program for the trainee's level of progress, expressed as a percentage of the journeyman
hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in
accordance with the provisions of the trainee program. If the trainee program does not mention fringe
benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless
the Administrator of the Wage and Hour Division determines that there is an apprenticeship program
associated with the corresponding journeyman wage rate on the wage determination which provides for
less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is
not registered and participating in a training plan approved by the Employment and Training
Administration shall be paid not less than the applicable wage rate on the wage determination for the
classification of work actually performed. In addition, any trainee performing work on the job site in
excess of the ratio permitted under the registered program shall be paid not less than the applicable wage
rate on the wage determination for the work actually performed. In the event the Employment and
Training Administration withdraws approval of a training program, the Borrower or the Contract Party
will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work
performed until an acceptable program is approved.
(3)
Equal employment opportunity. The utilization of apprentices, trainees and journeymen
under this part shall be in conformity with the equal employment opportunity requirements of Executive
Order 11246, as amended, and 29 CFR part 30.
(E) Compliance with Copeland Act requirements. The Borrower and any Contract Party shall
comply with the requirements of 29 CFR part 3, which are incorporated by reference in this Loan
Agreement and any other Davis-Bacon Act Covered Contract.
(F) Subcontracts. The Borrower and any higher or lower tier Contract Party shall insert in any
Davis-Bacon Act Covered Contract the clauses contained in Section II and such other clauses as the DOE
may by appropriate instructions require, and also a clause requiring the higher tier Contract Party to
include these clauses in any lower tier Davis-Bacon Act Covered Contract. The Borrower shall be
responsible for the compliance by any Contract Party with all the Section II of this Attachment.
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(G) Contract termination: debarment. A breach of any of the contract clauses in Section II of this
Attachment will constitute an Event of Default by the Borrower under Article [X] of the Loan Agreement
and may be grounds for termination of any Davis- Bacon Act Covered Contract, and for debarment as a
contractor, a subcontractor or other entity as provided in 29 CFR 5.12; provided, however, that the
termination provision in this Section II(G) shall not apply to the Loan Agreement but that, in lieu of the
application of such termination provision of Section II(G), the remedies available to DOE under Section
[x] of the Loan Agreement shall apply upon such an Event of Default.
(H)
Compliance with Davis-Bacon and Related Act requirements. All rulings and
interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 (other than
Section 5.5(b) of 29 CFR part 5) are herein incorporated by reference in this Loan Agreement and any
other Davis-Bacon Act Covered Contract.
(I)
Disputes concerning labor standards.
Disputes arising out of the labor standards provisions of this Loan Agreement or any other Davis-Bacon
Act Covered Contract shall not be subject to the general disputes clause of such contract. Such disputes
shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts
5, 6, and 7. Disputes within the meaning of this clause include disputes between the Borrower or any
Contract Party and DOE, the Department of Labor, or the employees or their representatives.
J. Certification of eligibility.
(1)
By entering into this Loan Agreement and any other Davis-Bacon Covered Contract, the
Borrower and the Contract Party each certifies that neither it (nor he or she) nor any person or firm who
has an interest in the Borrower or the Contract Party's firm is a person or firm ineligible to be awarded
Government contracts by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(2)
No part of this Loan Agreement or any other Davis-Bacon Covered Contract shall be
assigned or subcontracted, as the case may be, to any person or firm ineligible for award of a Government
contract by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(3)
U.S.C. 1001.
The penalty for making false statements is prescribed in the U.S. Criminal Code, 18
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ATTACHMENT E – Specified Terms and Conditions of Guaranteed Obligations
This Attachment E sets out certain parameters for loans eligible to receive loan guarantees from the DOE
under this Solicitation. This includes certain terms and conditions required to be incorporated into an
Applicant’s proposed loan structure and documentation. Attachment E also summarizes the essential
terms and conditions of the Loan Guarantee Agreement under this Solicitation. This Attachment E
supplements Attachment C and also provides for specific implementation of certain of Attachment C’s
requirements, including Section 609. Lender Applicants, however, must separately consider and assure
their compliance with the broader requirements of Attachment C. Moreover, DOE reserves the right to
amend the terms of this Attachment E and the form Loan Guarantee Agreement referred to below to any
extent DOE considers desirable or appropriate to serve the programmatic objectives of the Act and
TELGP based on the experience DOE gains in connection with this Solicitation. DOE will post any such
material amendment on the Program Website.
Section 1 of this Attachment E identifies certain key terms and conditions for Loan Agreements and
Intercreditor Agreements eligible for DOE loan guarantees under the Solicitation. In some cases, these
key terms and conditions are set out as specific provisions required to be incorporated into a LenderApplicant’s proposed loan documentation in the form set out in this Attachment E, with only such
changes as may be necessary to conform to the definitions used by the Lender Applicant in its Loan
Agreement. Where key terms and conditions are described but not specifically set out in Section 1,
Lender-Applicants must craft provisions which comply with the descriptions.
Section 2 describes key provisions of the Loan Guarantee Agreement to be entered into among DOE,
each Holder and the Administrative Agent. The Loan Guarantee Agreement sets out the terms and
conditions of DOE’s loan guarantee, requires certain Holder eligibility certifications, and establishes
certain limitations on the transferability of the Guaranteed Obligation. The DOE’s form of Loan
Guarantee Agreement will be posted on the Program Website. The form of the Loan Guarantee
Agreement may not be altered by a Lender Applicant. The terms and conditions of a Lender Applicant’s
other loan documentation are to be conformed to those of the Loan Guarantee Agreement.
DOE will evaluate each Lender Applicant’s term sheet and any other financing documents, in each case,
setting forth its proposed loan structure, terms and conditions, as required to be provided by LenderApplicant in connection with its Part II submission, for compliance with the requirements of this
Attachment E, as well as with those set out in Attachment C and Attachment G. Lender-Applicants may
incorporate intercreditor provisions, which would otherwise constitute an Intercreditor Agreement, in the
proposed Loan Agreement and related collateral documentation. A separate Intercreditor Agreement is
not required where not appropriate for the proposed financing structure.
Section 1 - Loan Structuring and Required Terms and Conditions
Lender Participation: Consistent with the objectives and parameters for use of the DOE loan guarantee
under this Solicitation, it is expected that the Lead Lender’s funding commitment under the proposed
Loan Agreement will represent a substantial portion of the Guaranteed Obligation. The Lender
Applicant’s overall funding plan for the Guaranteed Obligation proposed in its Part II submission, which
will provide the extent of the Lead Lender’s funding commitment, will be evaluated by DOE. The Lead
Lender, and all other Holders, will be restricted from transferring their interests in the Guaranteed
Obligation in accordance with the provisions of the Loan Guarantee Agreement, as described in Section 2
of this Attachment E.
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Attachment E – Specified Terms and Conditions of Guaranteed Obligations
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Guaranteed Obligations: Pursuant to the terms of the Loan Guarantee Agreement described in Section 2
below, DOE will guarantee up to ninety percent (90%) of the maximum aggregate principal amount of
and interest on a Guaranteed Obligation.
Collateral: The Guaranteed Obligation shall be secured on a first priority basis and shall rank senior in
priority of payment to any other project-related debt of the Borrower, which shall be subject to usual and
customary subordination agreements. The Borrower's obligations under the Loan Agreement shall be
secured by all assets comprising or otherwise necessary for the construction and operation of the Eligible
Project, subject to customary third-party liens. The security interests shall be held for the benefit of the
Holders and DOE by one or more qualified collateral agents selected by the Lead Lender.
Priorities: The claims of the Holders and DOE shall be pari passu with one another, and distributions
shall be made on a pro rata basis, including with respect to principal and interest to the extent DOE
becomes subrogated to the Holders’ rights therein by reason of payment under the Loan Guarantee
Agreement; provided, however, that any claim of the Holders to breakage costs, make-whole amounts,
pre-payment premiums and other similar indemnified amounts shall be subordinated in priority of
payment to the payment of principal and interest. The payment of the Risk-Based Charge is to be treated
equally with interest in distribution priority. The DOE’s annual maintenance fee is to be treated equally
with the fees of the Administrative Agent and collateral agent in their distribution priority, and any other
fees and expenses incurred by DOE (or on its behalf) in connection with the Guaranteed Obligation
(including the fees and expenses of the Master Servicer) are to be treated equally with those incurred by
the Holders.
Loan Structures: It is DOE’s intent and expectation that Lender-Applicants will have flexibility to
structure Guaranteed Obligations so as to optimize access to private debt capital and achieve the lowest
possible cost of funds for an Eligible Project. A Guaranteed Obligation may be divided into two or more
loans or tranches, provided that no more than 90% of any tranche or loan is covered by DOE’s loan
guarantee. For example, a Guaranteed Obligation may be divided into loans or tranches which accrue
interest at a fixed rate or a floating rate, which have different tenors or amortization schedules, or which
carry different prepayment rights. No more that 90% of any such loan or tranche, however, may be
covered by the DOE loan guarantee. In addition, the structure of the Guaranteed Obligation shall include
usual and customary reserves which shall be available for, among other purposes, payment of fees and
expenses of DOE and the Holders that are associated with any pending or occurring event of default.
Interest Rate: The interest rate on any Guaranteed Obligation must be determined by DOE, after
consultation with the Treasury Department, to be reasonable, taking into account the range of interest
rates prevailing in the private sector for similar obligations of comparable risk guaranteed by the Federal
government.
Risk-Based Charge: A Risk-Based Charge shall be assessed at Closing and payable in accordance with
the Loan Guarantee Agreement.
Voting Rights: Consistent with its position generally as the majority creditor with respect to each
Guaranteed Obligation, DOE shall be a party to the Loan Agreement, as guarantor, and shall have
the exclusive right to exercise all voting and control rights usually and customarily provided to
lenders in similar project finance transactions – including, without limitation, the right to grant
amendments and waivers and, in the case of an event of default, to accelerate the Guaranteed
Obligation and exercise remedies, including foreclosure on collateral – with the following
exceptions and qualifications:
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Attachment E – Specified Terms and Conditions of Guaranteed Obligations
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Tribal Energy Development Projects
1. the consent of each affected Holder may be required with respect to (i) changes in interest rates,
amortization schedule, final maturity or Holder indemnity rights against the Borrower, (ii) any
change affecting the senior secured ranking of the Guaranteed Obligation or the priority of
payments under the Loan Agreement, or (iii) any release of collateral the result of which could
reasonably be expected to leave the Guaranteed Obligation less than fully secured;
2. the Loan Agreement shall provide for usual and customary automatic acceleration upon the
occurrence of a bankruptcy filing or other insolvency event;
3. the Loan Agreement may provide that, in the event of a default by the Borrower on its obligation
to pay any principal amount of, or interest on, the Guaranteed Obligation, then the following will
apply for so long as such default continues uncured:
a. in the event that DOE does not accelerate the maturity of the Guaranteed Obligation and
exercise remedies against the Borrower and the collateral within 90 days following such
payment default, then the Holders of a majority of the Guaranteed Obligation may require
that DOE meet and discuss with them (telephonically or otherwise) their preferred course
of action, provided that DOE’s exercise of its rights, including the right to continue
forbearance, shall nonetheless be undertaken in its sole discretion;
b. in the event that DOE does not accelerate and exercise remedies within 180 days
following such payment default, then the Holders by unanimous vote may take action to
accelerate the Guaranteed Obligation and exercise remedies; and
c. in the event that DOE does not accelerate and exercise remedies within 270 days
following such payment default, then the Holders of a two-thirds majority of the
Guaranteed Obligation may vote to accelerate and exercise remedies; and
4. other than in exigent circumstances, in the event DOE intends to grant an amendment of or
waiver under the Loan Agreement, or to accelerate the maturity of the Guaranteed Obligation and
direct the exercise of remedies, DOE will notify the Administrative Agent and provide the
Holders with a reasonable period of time and opportunity to be heard as to their preferred course
of action, provided that DOE’s exercise of its rights shall nonetheless be undertaken in its sole
discretion.
Remedies: In addition to other usual and customary remedies available to secured creditors, the Loan
Documentation shall include appropriate collateral access and project step-in rights necessary to provide
DOE with the option to assume control (through the appointment of a substitute contractor or operator, or
otherwise) over the construction or operation of the Eligible Project following an event of default.
DOE Fees and Expenses: The Loan Agreement shall obligate the Borrower to pay the following fees and
expenses to or for the benefit of DOE:
5. the maintenance fee, payable to DOE annually in advance beginning on the closing date, as
described in Section VIII of the Solicitation;
6. the fees of DOE’s Master Servicer (as described in Attachment G), to be paid on a quarterly basis
pursuant to a fee agreement (substantially in the form to be posted on the Program Website) to be
entered into at closing between the Borrower and the Master Servicer for the cost of servicing and
monitoring the Guaranteed Obligation during the construction, startup, commissioning and
operation of the Eligible Project; and
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Attachment E – Specified Terms and Conditions of Guaranteed Obligations
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
7. if the Eligible Project or the Borrower experiences technical, financial, legal or other events
which require DOE to incur additional time or expenses (including third-party expenses), DOE
shall be entitled to reimbursement in full of (i) such amounts as DOE reasonably determines in its
sole discretion are its additional internal administrative costs (including, without limitation, any
costs incurred in determining whether such events alter the Credit Subsidy Cost (as defined
below)), and (ii) the fees and expenses of its independent consultants and outside legal counsel,
and the additional fees of the Master Servicer, which in each case DOE may require that the
Borrower pay directly to such third parties.
Credit Subsidy Costs: The Loan Agreement shall provide that any amendment to or waiver of its terms
and conditions that constitutes a “modification” within the meaning set forth in Section 502(9) of FCRA
and OMB Circular A-11 may be subject to the availability to DOE of funds appropriated by Congress to
meet an increase, if any, in the Credit Subsidy Cost of the Guaranteed Obligation.
Conditions Precedent, Representations and Warranties: In addition to usual and customary provisions,
and those specified below, the Loan Agreement shall include conditions precedent and representations
and warranties concerning compliance with all of the requirements of and this Solicitation. As a condition
precedent to DOE's issuance of its loan guarantee, all such representations and warranties shall be true as
of the closing date. These shall include, but not limited to, the following:
The Borrower hereby represents and warrants that neither the Borrower nor any person or entity
which controls or is controlled by the Borrower has outstanding any delinquent Federal debt,
including, without limitation, under the Internal Revenue Code of 1986, as amended, unless the
delinquency has been resolved with the appropriate Federal agency in accordance with the
standards of the Debt Collection Improvement Act of 1996, as amended.
Agents: The Lead Lender is required to serve also as the Administrative Agent under the Loan Agreement
and Loan Guarantee Agreement. In addition to the duties usually and typically required of administrative
agents in connection with comparable financings, the Administrative Agent shall be required under the
Loan Agreement to perform the reporting duties set out in Attachment G. These duties include the
requirement that, in connection with any amendment or waiver requested by the Borrower, or if there
occurs a default or event of default, the Administrative Agent prepare and deliver to DOE a written
analysis of the precipitating events and expected consequences, and a recommendation as to the
appropriate course of action, together with any proposed amendment or waiver documentation. DOE shall
not be liable for, or provide, indemnification of any party, including any agent (e.g., Administrative
Agent, Master Servicer, collateral agent). The Master Servicer shall be included as a party to the Loan
Agreement and as a secured party for purposes of the payment of its fees and expenses, and the Borrower
and Holders (other than DOE as a subrogee) shall indemnify the Master Servicer to the same extent they
indemnify the other agents in the transaction.
Progress Reports and Financial Statements: During the construction and start-up phases of the Project, the
Borrower shall provide monthly project progress reports to DOE and the Master Servicer. Each report
shall be delivered within fifteen days following the end of each calendar month. The reports shall
compare actual timing, cost and financing against the original budget and the previous month. Each report
shall explain the reasons for any significant variances and the likely impact on the project going forward.
During the operational phase of the Project, the Borrower shall provide financial statements, prepared in
accordance with U.S. GAAP, plus calculations of the senior debt service coverage ratio and other
financial measures required under the Loan Agreement, to DOE and the Master Servicer on a quarterly
basis (consisting of an income statement, balance sheet and cash flow statement, with associated notes as
appropriate), with certification by the Borrower that the statements are true and correct, and accurately
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Attachment E – Specified Terms and Conditions of Guaranteed Obligations
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
reflect the financial condition and results of operations of the Borrower, in all material respects. At all
times, from receipt by DOE of an application until the Guaranteed Obligation is fully repaid, the
Borrower will be obligated to inform DOE expeditiously (but in no event later than three business days
after discovery) of any condition having, or potentially having, a material adverse effect on either the
project or the ability of the Borrower to carry out its obligations. Copies of all other notices and reports
required under the Loan Agreement to be delivered by the Borrower to the Administrative Agent shall be
delivered also to the Master Servicer and to DOE. DOE reserves the right to require submission of
additional information as it deems necessary.
FOIA: The following provision relating to the Freedom of Information Act is to be included in the Loan
Agreement in satisfaction of Section 609.8(d)(14) of Attachment C:
The parties acknowledge and agree that all correspondence, books, documents, papers and records
relating to the structuring, negotiation and execution of this Loan Agreement and the transactions
contemplated herein, including but not limited to this Loan Agreement, the Loan Documents, the
Application, Term Sheet and all supporting documentation, financial statements, audit reports of
independent accounting firms, permits and regulatory approvals furnished or otherwise made available
to DOE, will be handled in accordance with all applicable federal laws, rules, or regulations, including
but not limited to the Trade Secrets Act, 18 U.S.C. §1905, and the Freedom of Information Act (FOIA), 5
U.S.C. §552, and DOE's implementing regulations at 10 C.F.R. 1004.
Choice of Law and Submission to Jurisdiction: The Borrower shall submit to the jurisdiction of the state
and federal courts located in New York, NY and the District of Columbia, and shall waive any right to
claim inconvenience of the forum. The choice of law provision in the Loan Agreement and any other
transaction document to which DOE is a party, or under which it may have or come to have any rights or
obligations, whether by subrogation or otherwise (other than mortgages and other similar agreements
appropriately the subject of local law, which may substitute reference to such law for that of New York in
the following clause), shall be as follows:
This agreement shall be governed by, and construed and interpreted in accordance with, the federal law
of the United States. To the extent that federal law does not specify the appropriate rule of decision for a
particular matter at issue, it is the intention and agreement of the parties hereto that the law of the State
of New York shall be adopted as the governing federal rule of decision.
Section 2 - Loan Guarantee Agreement
Loan Guarantee Agreement: DOE will develop a template form of Loan Guarantee Agreement for use
under the Solicitation. The Loan Guarantee Agreement may not be altered by a Lender-Applicant. The
terms and conditions of a Lender-Applicant’s other loan documentation are to be conformed to those of
the Loan Guarantee Agreement.
Parties to the Loan Guarantee Agreement: DOE, as guarantor, the Holders, as beneficiaries, and the
Administrative Agent, as agent for the Holders, shall be parties to the Loan Guarantee Agreement.
Full Faith and Credit: The guarantee of DOE issued pursuant to the terms of the Loan Guarantee
Agreement will be irrevocable and unconditional and will expressly carry the full faith and credit of the
United States of America.
Principal and Interest Coverage: The DOE guarantee will cover up to ninety percent (90%) of the unpaid
principal of a Guaranteed Obligation, including in circumstances where such principal becomes due as the
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Attachment E – Specified Terms and Conditions of Guaranteed Obligations
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
result of an acceleration of the Guaranteed Obligation. The DOE guarantee also will cover up to ninety
percent (90%) of unpaid interest on a Guaranteed Obligation calculated to the date of payment by DOE at
the rate determined in accordance with the terms of the Loan Agreement, but excluding any default
premium (which will be for the account of DOE). Pursuant to Section 609.8(d)(1) of Attachment C, the
DOE loan guarantee will not cover any fees, costs, expenses, make- whole amounts, prepayment
premiums, breakage costs, indemnified liabilities, default interest or any other similar amounts payable
under the Loan Documents.
Interest/Payment Options: The Lender-Applicant will have the option to elect in its application between
two payment formats under the Loan Guarantee Agreement, depending upon whether interest on the
Guaranteed Obligation is calculated on a fixed rate or a floating rate basis.
1. If the Lender-Applicant elects in its application that interest will be paid on a floating rate basis,
then DOE will pay the full amount of principal and interest due in a single payment following any
payment default. In this case of a single lump sum payment, payment will be made by DOE
within sixty (60) days after receipt of written demand from the Administrative Agent.
2. If the Lender-Applicant elects in its application that interest will be paid on a fixed rate basis,
then DOE will make payment in installments in accordance with the interest payment provisions
and principal amortization schedule set out in the Loan Agreement as though no default or
acceleration had occurred. In this case of installment payments, the first installment will be made
by DOE sixty (60) days after receipt of written demand from the Administrative Agent and each
subsequent installment will be paid on the payment date provided for under the terms of the Loan
Agreement.
3. In all cases payment will be made by DOE to the Administrative Agent as agent on behalf of the
Holders. Written demand for payment may be made after any applicable grace period under the
Loan Agreement plus five additional business days have passed without Borrower’s having cured
the payment default.
Risk-Based Charge: The Loan Guarantee Agreement and related loan documentation will contain
provisions for the payment of the Risk-Based Charge to DOE.
Subrogation: Upon the making of demand for payment under the Loan Guarantee Agreement, whether
resulting in a lump sum payment or installment payments, DOE will become subrogated to all of the
Holders’ right, title and interest in, to and under the Guaranteed Obligation and all related loan
documents, other than with respect to certain excluded claims. The rights of DOE obtained by
subrogation and assignment shall be in addition to, and not to the exclusion of, all other rights of DOE set
out in any of the loan documents, which shall be exercisable by DOE without regard to or need of any
subrogation or assignment under the Loan Guarantee Agreement.
Revocation of Borrower Payments: DOE’s loan guarantee obligation under the Loan Guarantee
Agreement will be reinstated with respect to any payments of principal or interest on a Guaranteed
Obligation that are rescinded or must otherwise be returned to the Borrower by the Holders as the result
of a subsequent bankruptcy of the Borrower or pursuant to the final order of any court of competent
jurisdiction.
Certain Transfer Restrictions: The Loan Guarantee Agreement includes certain restrictions on the rights
of the Administrative Agent and the Holders to transfer interests in the Guaranteed Obligation and the
DOE loan guarantee.
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Attachment E – Specified Terms and Conditions of Guaranteed Obligations
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
1. The Administrative Agent will not be permitted to resign from or assign its rights and obligations
under the Loan Agreement and Loan Guarantee Agreement without the prior written consent of
DOE.
2. Subject to DOE’s prior written consent, which shall not be unreasonably withheld or delayed,
Holders (as defined in 609.2 of Attachment C) will be free to assign, sell, pledge or otherwise
transfer their interests in the Guaranteed Obligation and the DOE loan guarantee to any other
entity which qualifies to be a Holder under Attachment F, provided that:
a. a Holder’s rights under the Loan Guarantee Agreement shall not be transferred at any
time, in whole or in part, disproportionately from such Holder’s rights under the Loan
Agreement such that DOE’s loan guarantee would apply to a greater percentage of the
transferee’s interest in the Guaranteed Obligation than the guaranteed percentage
applicable to the Guaranteed Obligation overall. Holders, however, will be free to
effectively separate and convey indirect interests in the guaranteed and unguaranteed
portions of a Guaranteed Obligation by transferring to other investors economic or
beneficial interests, but not legal rights, in the Guaranteed Obligation and DOE loan
guarantee, including, for example, by means of granting loan participations or issuing
covered notes; and
b. Holders will not be permitted to assign, sell, pledge or otherwise transfer its interests in
the Guaranteed Obligation and the DOE loan guarantee (other than indirect interests, as
described above) during the period from closing date to the date the Eligible Project
enters into commercial operation plus two years, other than, with DOE’s prior written
consent which shall not be unreasonably withheld or delayed, to (i) another current
Holder, (ii) an affiliate of the transferring Holder which meets the qualifications to be a
Holder under Attachment F, or (iii) a special purpose entity wholly owned and controlled
or exclusively managed by the transferring Holder.
Certifications: Each Holder, including any permitted assignee, will be required to provide DOE with a
certification stating that it meets the qualifications to be a Holder under Attachment F and that it has and
will comply with certain other federal regulatory requirements, including with respect to debarment from
participation in federal programs. The form of such certification will be attached to the Loan Guarantee
Agreement.
Governing Law: The Loan Guarantee Agreement will include the following governing law provision:
This agreement shall be governed by, and construed and interpreted in accordance with, the
federal law of the United States. To the extent that federal law does not specify the appropriate
rule of decision for a particular matter at issue, it is the intention and agreement of the parties
hereto that the law of the State of New York shall be adopted as the governing federal rule of
decision.
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Attachment E – Specified Terms and Conditions of Guaranteed Obligations
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
ATTACHMENT F – REQUIRED QUALIFICATIONS OF LEAD LENDERS AND HOLDERS
This Attachment F sets out the qualifications required of (i) all Holders of Guaranteed Obligations that
will be considered by the DOE under this Solicitation and (ii) Lender-Applicants seeking to qualify as
Lead Lenders in connection with such Guaranteed Obligations. The qualifications set out herein apply
only with respect to those Guaranteed Obligations for which Applications have been submitted under this
specific Solicitation.
Section 1: Holders
Each Holder (as defined in Section 609.2 of Attachment C), at the time of execution of the Loan
Agreement and the Loan Guarantee Agreement (or at the time it obtains a direct interest therein), shall
meet the following qualifications:
1. Not be debarred or suspended from participation in a Federal government contract (under 48 CFR
part 9.4) 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);
2. Not be delinquent on any Federal debt or loan;
3. Be legally authorized to enter into loan guarantee transactions authorized by the Act and the
Solicitation and be in good standing with DOE and other Federal agency loan guarantee
programs; and
4. Be able to demonstrate, or have access to, experience in participating in loans for commercial
projects similar in size and scope to the project under consideration. For this purpose,
‘participating’ means (a) being a lender in a capacity as a principal with an investment at risk and
(b) evaluating such loan investments primarily with regard to long-term credit risk.
Section 2: Lead Lenders
Each Applicant that becomes a Lead Lender and Holder (as defined in Section 609.2 of Attachment C), at
the time of the execution of the Loan Agreement and the Loan Guarantee Agreement, (i) shall be (x)
regulated by a Federal financial institution regulatory agency, or (y) if not so regulated, satisfy such
financial and capital requirements as are determined by DOE to be required based on the proposed debt
structure, including minimum net worth requirements based on business volume; and (ii) shall satisfy the
qualifications of an Eligible Lender, as required by Section 609.9 of Attachment C.
As described more fully in Section I.B of the Solicitation, each Guaranteed Obligation is required to have
at least one Holder meeting the above requirements of a Lead Lender. Such Lead Lender will act as the
Administrative Agent under the Loan Agreement and the Loan Guarantee Agreement.
Section 3: Scope of Qualification
For the purposes of determining whether an entity satisfies the applicable requirements of this Attachment
F, “Holder” and “Lead Lender” include: (a) an entity that itself meets such requirements, (b) the
consolidated affiliates, business divisions and subsidiaries of a financial institution that meets such
requirements, and (c) relevant non-consolidated entities owned, controlled or the business of which is
exclusively managed by such a financial institution.
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Attachment F – Required Qualifications of Lead Lenders and Holders
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
ATTACHMENT G – Post-Closing Servicing and Monitoring
Master Servicer Overview.
As described in Section I.B of the Solicitation and in Attachment E, Administrative Agents shall perform
the primary loan administration or servicing functions, including the servicing duties set forth in Section
609.9 of Attachment C, with respect to their applicable Guaranteed Obligations. The dual oversight duties
of the Master Servicer shall consist of servicing and loan monitoring oversight of such Administrative
Agents with respect to their applicable Guaranteed Obligations issued in connection with the Solicitation.
The Borrower shall be responsible under all circumstances for paying the fees and expenses of DOE’s
Master Servicer that are incurred in connection with their specific projects, without recourse to DOE by
any party, including the Borrower, the Master Servicer and any Administrative Agent.
In coordination with DOE, the Master Servicer shall supervise such loan administration or servicing of
Administrative Agents with respect to their Guaranteed Obligations and shall undertake such duties
generally consisting of verifying payment to Holders, of principal and interest on Guaranteed Obligations
and, to DOE, of certain fees as described more fully below; compliance checking and monitoring based
on reports submitted; loan balancing and reconciliation with Borrowers and their Holders; intervention in
payment reconciliation efforts and, if necessary, in collection efforts as interim servicer (as described
below). In addition, consistent with Section 609.8(e)(2) of Attachment C, the Master Servicer shall itself
undertake, and ensure that Lead Lenders, as Administrative Agents, have instituted, procedures for
tracking and identifying Holders of Guaranteed Obligations in accordance with Loan Agreements.
In connection with its loan or portfolio monitoring duties, the Master Servicer shall be required to
undertake duties generally consisting of periodic detailed examination of individual loans and their
financial and operational aspects as they are serviced and represented to DOE by Administrative Agents
as possessing a certain credit quality status for purposes of verifying certain credit and project
performance aspects of special interest to the DOE; proper and timely response to events of default,
requests for waivers and other events impacting the quality and proper administration of the underlying
loan; and overseeing the credit administration practices of Administrative Agents to verify their
compliance with standard industry best practice.
Servicing Oversight Responsibilities.
The Master Servicer is required to support LPO in its management of the financial payment aspects of
Guaranteed Obligations issued in connection with the Solicitation. As part of this support, the Master
Servicer must oversee the collection and monitoring by Administrative Agents of all scheduled and actual
payment activities of projects issued Guaranteed Obligations in connection with the Solicitation and will
be required to review and verify the timely payment by Borrowers of annual maintenance fees and
extraordinary costs and expenses, in each case, as described in Section VI of the Solicitation, as well as
other payments due to DOE and its agents, such as the Master Servicer. At times, the Master Servicer
may be required to intervene in payment reconciliation efforts, as necessary, and provide to DOE notice
of any delinquency or shortfall. In addition, the Master Servicer will also perform compliance reviews of
regular reports as required in Attachment E and as provided by or through the Administrative Agents on
underlying Guaranteed Obligations to ensure they comply with standardized information requirements on
Borrowers and required affirmative or negative covenants and reporting requirements in Loan
Agreements. Such duties will include collection and review of officer certifications and similar
documents provided to Administrative Agents by individual Borrowers. The Master Servicer shall
supervise the performance of Lead Lenders, as Administrative Agents, of the servicing duties set forth in
Section 609.9 of Attachment C.
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Attachment G – Post-Closing Servicing and Monitoring
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
Further, consistent with Section 609.8(e)(2) of Attachment C, the Master Servicer shall ensure that Lead
Lenders, as Administrative Agents, have instituted procedures for tracking and identifying Holders of
Guaranteed Obligations in accordance with their Loan Agreements and shall itself undertake to create and
maintain a centralized system of tracking and identifying Holders of Guaranteed Obligations. Finally, the
Master Servicer may be required to act as interim servicer for those Guaranteed Obligations for which the
Administrative Agent has failed to perform adequately; or may be required to identify and install a
replacement servicer as necessary to assure continued accurate servicing of individual Guaranteed
Obligations. While primary loan administration or servicing functions will ordinarily be performed by
Administrative Agents, such functions may only be delegated or assigned to third parties with the
permission of the DOE.
Loan Monitoring Responsibilities.
The Master Servicer will also be required to support LPO in capturing and verifying information on the
long-term credit quality of Guaranteed Obligations issued in connection with the Solicitation that are
managed by Administrative Agents as primary servicers. As required in Section 2 of Attachment E under
“Progress Reports and Financial Statements,” copies of all notices and reports required under a Loan
Agreement to be delivered by the Borrower to the Administrative Agent shall be delivered also to the
Master Servicer and to DOE. These reports will provide standardized information on Borrower
compliance with project specific affirmative and negative covenants and undertakings that are conditions
of the underlying Guaranteed Obligations as set forth in the Loan Agreements.
These reports, which will include officers’ certificates and similar reports from the underlying Borrowers,
will be collected and reviewed by the Master Servicer as part of its servicing duties. However, prudent
loan monitoring and portfolio management practices require regular detailed reviews of the future
repayment prospects of the Guaranteed Obligations issued in connection with the Solicitation. In
performing the loan monitoring and portfolio management duties, the Master Servicer will ensure that
individual Guaranteed Obligations and the portfolio as a whole and discreet sub- segments of the portfolio
have maintained the anticipated level of credit quality at the time the DOE loan guarantee was issued or
will monitor their potential to improve or deteriorate in credit quality. In addition, the Master Servicer
will examine the credit administration practices of Administrative Agents to verify their compliance with
standard industry best practice. As DOE gains experience under the first TELGP Solicitation, and to the
extent DOE commits any loan monitoring decision to the judgment of individual Administrative Agents,
the Master Servicer shall be required to examine the internal credit policy standards and procedures and
implementation of such policies and procedures by the Administrative Agents in order to provide
appropriate assurance to DOE that operational and market risks are sufficiently mitigated to prevent
undue risk to the applicable Guaranteed Obligation and to DOE’s loan portfolio under the Solicitation.
Finally, the Master Servicer shall oversee the Administrative Agent or other servicers’ (including, for
example, collateral agents) obligations under Section 609.16(a) of Attachment C to undertake those
actions necessary to perfect and maintain liens, as applicable, on assets which are pledged as collateral for
Guaranteed Obligations and under Section 609.17 to provide audit and access to records as required
thereunder.
Payment of the Master Servicer.
As provided in Section VIII.4 of the Solicitation, Borrowers shall be responsible under all circumstances
for paying the fees and expenses of DOE’s Master Servicer that are incurred in connection with their
specific projects, without recourse to DOE by any party, including the Borrower, the Master Servicer and
any Administrative Agent. For duties associated with the servicing and loan monitoring roles of the
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Attachment G – Post-Closing Servicing and Monitoring
Loan Guarantee Solicitation Announcement
Tribal Energy Development Projects
Master Servicer, payment for such services is expected to be collected by an Administrative Agent from
its Borrower and remitted to the Master Servicer on a quarterly basis pursuant to an agreement
(substantially in the form to be posted on the Program Website in due course) to be entered into at closing
between the Borrower and the Master Servicer. The basis of such fees will be determined based on market
rates. In addition, as described in Section VIII of the Solicitation and in Section 1 of Attachment E under
“DOE Fees and Expenses,” the Master Servicer shall be entitled to payment by the Borrower to the extent
the project experiences technical, financial, legal or other events (e.g., engineering failure or financial
workouts) that require time or expenses beyond standard monitoring.
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Attachment G – Post-Closing Servicing and Monitoring
| File Type | application/pdf |
| Author | Lachenmayr, Andrea |
| File Modified | 2018-07-16 |
| File Created | 2018-07-16 |