46 C.F.R. Subpart C—Guarantees
Title 46 - Shipping
(a) In general. The maturity date of the Obligations must be satisfactory to us and must not exceed the anticipated physical and economic life of the Vessel or Vessels or Shipyard Project, and may be less than but no more than: (1) Twenty-five years from the date of delivery from the shipbuilder of a single new Vessel which is to be security for Guarantees; (2) Twenty-five years from the date of delivery from the shipyard of the last of multiple Vessels which are to be security for the Guarantees but that the amount of the Guarantees will relate to the amount of the depreciated actual cost of the multiple Vessels as of the Closing; (3) The later of twenty-five years from the date of original delivery of a reconstructed, or reconditioned Vessel which is to be security for the Guarantees, or at the expiration of the remaining useful life of the Vessel, as we determine; or (4) The technological life of the Shipyard Project. (b) Required redemptions. Where multiple Vessels or multiple Shipyard Project assets are to be used as security for the Guarantees, as set forth in paragraph (a) of this section, we may require payments of principal prior to maturity (redemptions) regarding all related Obligations, as we may deem necessary to maintain adequate security for the Guarantees. (c) Interest rate. We will make a determination as to the reasonableness of the interest rate of each Obligation, taking into account the range of interest rates prevailing in the private market for similar loans and the risks that we assume. (a) Actual Cost basis. We will issue a guarantee on an amount of the Obligation satisfactory to us based on the economic soundness of the transaction. The Obligation amount may be less than but not more than 75 percent or 87 (1) If minimum horsepower of the main engine is a requirement for Guarantees up to 87 (2) Where we refinance existing debt, the amount of new Obligations we issue for the existing debt may not exceed the lesser of: (i) The amount of outstanding debt being refinanced (whether or not receiving assistance under Title XI); or (ii) Seventy-five or 87 (b) Actual Cost items. Actual Cost is comprised essentially of those items which would customarily be capitalized as Vessel or Shipyard Project construction costs such as designing, engineering, constructing (including performance bond premiums that we approve), inspecting, outfitting and equipping. (1) Cost items include those items usually specified in Vessel or Shipyard Project construction contracts, e.g., changes and extras, cost of owner furnished equipment, shoreside spare parts and commitment fees and interest on the Obligations or other borrowings incurred during the construction period (excluding interest paid on subordinated debt considered to be Equity), and less income realized from investment of Escrow Fund deposits during the construction period. (2) Commissions (which represent a portion of the total shipyard contract price) may be included in the foreign equipment and services amount of the Actual Cost of an export project, provided: (i) A majority of the work done by the parties receiving the commissions is in the form of design and engineering work, and (ii) The commissions represent a small amount of the total contract price. (3) You may include Guarantee Fees determined in accordance with the provisions of section 1104(e) of the Act as an item of Actual Cost. (4) In approving an item of Actual Cost, we will consider all pertinent factors. (c) Items excludible from Actual Cost. Actual Cost shall not include any other costs such as the following: (1) Legal fees or expenses; (2) Accounting fees or expenses; (3) Commitment fees or interest other than those specifically allowed; (4) Fees, commissions or charges for granting or arranging for financing; (5) Fees or charges for preparing, printing and filing an application for Title XI Guarantees and supporting documents, for services rendered to obtain approval of the application and for preparing, printing and processing documents relating to the application for Guarantees; (6) Underwriting or trustee's fees; (7) Foreign, federal, state or local taxes, user fees, or other governmental charges; (8) Investigation fee determined in accordance with section 1104(f) of the Act and §298.15; (9) Predelivery Vessel operating expenses, Vessel insurance premiums and other items which may not be properly capitalized by the owner as costs of the Vessel under GAAP; (10) The cost of the condition survey required by §298.11(f) and all work necessary to meet the standards set forth in that paragraph; (11) The cost to the Shipowner of a Vessel which is to be reconstructed, or reconditioned, e.g., cost of acquisition or repair work; (12) Generally, any amount payable to the shipyard for early delivery of the Vessel; (13) Generally, any amount payable to the manufacturer of the Shipyard Project for early delivery of the equipment to the General Shipyard Facility; (14) Predelivery Shipyard Project expenses which may not be properly capitalized by the General Shipyard Facility as costs of the Shipyard Project under GAAP; and (15) The cost of major foreign components and other foreign components for which there is no waiver and their assembly when comprising any part of the hull and superstructure of a Vessel. (d) Substantiation of Actual Cost. (1) Before we make distribution from the Escrow Fund or Construction Fund (described in §§298.33 and 298.34), and prior to our final Actual Cost determination for each Vessel or Shipyard Project, you must submit to us documents substantiating all claimed costs eligible under paragraph (b) of this section or, alternatively, appropriate certification of such costs by an agent who has received our approval. (2) These documents may include, but need not be limited to, copies of invoices, change orders, subcontracts, and where we require, statements from independent certified or independent licensed public accountants that the costs for which you seek payment or reimbursement were actually paid or are payable for the construction of a Vessel or Shipyard Project. (3) You must summarize, index and arrange these documents according to cost categories by following the directions contained in our forms. (e) Escalation as part of Actual Cost. Escalation clauses in construction contracts shall be subject to our approval. After a review of the base contract price and the escalation clauses, we shall, in order to estimate the Actual Cost amount to be stated in the Letter Commitment, add to the approved base contract price the amount of estimated escalation as approved by us. We must subsequently approve the amount of escalation cost you claimed as a component of Actual Cost. (f) Monies received in respect of construction. (1) If you or any Person acting on your behalf, from time to time receives moneys due for construction of a Vessel or Shipyard Project (described in the Security Agreement) from the shipbuilder, guarantors, sureties or other Persons, you shall give us written notice of such fact. (2) As long as we have not paid the Guarantees, you or other recipient shall promptly deposit these moneys with us to be held by the Depository in accordance with the Depository Agreement. (3) We will determine the extent to which Actual Cost is to be reduced by these moneys. (4) In no event shall Actual Cost be reduced with respect to payments by the shipyard to a Vessel or Shipyard Project owner of liquidated damages for late delivery of the Vessel or Shipyard Project . (5) If we have paid the Guarantees, you or other recipient must promptly pay these moneys, including any liquidated damages, to us for deposit into the Maritime Guaranteed Loans account. (g) Depreciated Actual Cost. After a Vessel or Shipyard Project has been delivered or redelivered (in the case of reconstruction or reconditioning), the limitation on the amount of Guarantees will be 75 or 87 [65 FR 45152, July 20, 2000, as amended at 67 FR 61282, Sept. 30, 2002] (a) Generally, after delivery or completion of Shipyard Project, and until maturity of the Obligations, provisions of the Trust Indenture or other part of the Documentation require you to make periodic payment of principal and interest on the Obligations. (b) Usually, the payment of principal (amortization) shall be made semi-annually, but in no event, less frequently than on an annual basis, and in either case the amortization shall be in equal payments of principal (level principal), unless we consent to the periodic payment of a constant aggregate amount, comprised of both interest and principal components which are variable in amount (level payment). No other proposed method of amortization will be allowed which would reduce the amount of periodic amortization below that determined under the level principal or level payment basis at any time prior to maturity of the Obligations, except where: (1) You can demonstrate to our satisfaction that there will be adequate funds to discharge the Obligations at maturity; (2) You establish a fund with the Depository in which you deposit an equal annual amount necessary to redeem the outstanding Obligations at maturity; or (3) With regard to Eligible Export Vessels, in accordance with such other terms as we determine to be more favorable and to be compatible with export credit terms offered by foreign governments for the sale of vessels built in foreign shipyards. [65 FR 45152, July 20, 2000, as amended at 67 FR 61282, Sept. 30, 2002] (a) We may approve guarantees of Obligations to be secured by one or more Vessels or a Shipyard Project issued to refinance existing Title XI debt for either Vessels or for Shipyard Project and existing non-Title XI debt, so long as the existing debt has been previously issued for one of the purposes set forth in sections 1104(a)(1) through (4) of the Act. Section 1104 (a) (1) of the Act requires that, if the existing indebtedness was incurred more than one year after the delivery or redelivery of the related Vessel or Shipyard Project, the proceeds of such Obligations will be applied to the construction, reconstruction or reconditioning of other Vessels or Shipyard Project or as provided in §298.24. (b) We shall require any security lien on the Vessel(s) or Shipyard Project to be discharged immediately before we place a Mortgage or other security interest on any of the above assets. You must satisfy all necessary eligibility requirements as set forth in subpart B of this part, including economic soundness. (a) We may approve Guarantees for a Vessel which has been delivered (or redelivered in the case of reconstruction or reconditioning of a Vessel) more than one year prior to the issuance of the Guarantees only if: (1) The issuance of the Guarantees would otherwise satisfy the requirements of the Act and the regulations in this part, and (2) The proceeds of the Obligation financing such existing Vessel are used to finance: (i) The construction, reconstruction, or reconditioning of a different Vessel within one year of that Vessel's delivery or redelivery, as the case may be, or (ii) Facilities or equipment pertaining to marine operations. Such facilities or equipment must be of a specialized nature, used principally for servicing vessels and in handling waterborne cargo in the close proximity of the berthing area, excluding over-the-road equipment (other than chassis and containers), permanent or semipermanent structures and real estate, as well as new or less than one year old. (b) At the Closing of Guarantees covered by this section, you must deposit the proceeds of the Obligation into an Escrow Fund established to pay for the cost unless you demonstrate to our satisfaction that all such costs have been paid. We shall not execute Guarantees if any agreement in the Documentation directly or indirectly provides for: (a) The payment to an Obligee of interest, or other compensation for services which have not been performed, in a manner that such compensation or payment is being provided as interest in excess of the rate approved by us; or (b) Grants of security to an Obligee in addition to the Guarantees. You must obtain our approval of the amount and conditions of lease or charter hire payments if the payment of principal and interest on Obligations would be dependent, in any way, upon the lease or charter hire payments for a Vessel or Shipyard Project. (a) In general. (1) In accordance with section 207 and Title XI of the Act, we have the discretion to make or commit to make an advance or payment of funds to, or on behalf of the owner, or operator or directly to any other person or entity for items, including, but not limited to: (i) Principal, (ii) Interest, (iii) Insurance, and (iv) Other vessel-related expenses or fees. (2) We will make advances or payments only to protect, preserve or improve the collateral held as our security for Title XI debt. (3) When requesting an advance, you must demonstrate that: (i) Your problems are short term (less than two years) by using market and cash flow analysis and other projections. (ii) An advance(s), would assist you over temporary difficulties; and (iii) There is adequate collateral for the advance. (b) Filing requirements. (1) You shall apply for an advance or other payment as early as is reasonably possible. (2) Principal and interest payments. We must receive a request for an advance for principal and interest payments at least 30 days before the initial payment date. (3) Insurance payments. We must receive a request for an advance of insurance payments at least 30 days before a renewal or termination date. (4) Extenuating circumstances. We may consider requests for assistance with less notice, upon written documentation of extenuating circumstances. (5) Supporting data. Any requests for assistance must be accompanied by supporting data regarding: (i) Need for the advance, (ii) Financial assistance you sought from other sources, (iii) The measures that you are taking and have taken to alleviate the situation, (iv) Financial projections, (v) Proposed term of the repayment, (vi) Current and projected market conditions, (vii) Information on other available collateral, (viii) Liens and other creditor information, and (ix) Any other information which we may request.
Title 46: Shipping
PART 298—OBLIGATION GUARANTEES
Subpart C—Guarantees
§ 298.20 Term, redemptions, and interest rate.
§ 298.21 Limits.
§ 298.22 Amortization of Obligations.
§ 298.23 Refinancing.
§ 298.24 Financing a Vessel more than a year after delivery.
§ 298.25 Excess interest or other consideration.
§ 298.26 Lease payments.
§ 298.27 Advances.
